Cases and Materials International Law

Contemporary
International Law
Materials and Cases
Bishkek 2012
ACKNOWLEDGEMENTS
Editors and Contributors

Elida K. Nogoibaeva, Dean of Faculty, American University of Central Asia.
Michelle Leighton, Associate Professor of Law, and Deputy Director Tian Shan
Policy Center, American University of Central Asia, Former U.S. Fulbright
Scholar.
Kamila Mateeva, Chair of International and Business Law Department,
American University of Central Asia.
Aiaz Baetov, Acting Associate Professor of Law, Kyrgyz National University, Staff
Attorney ABA ROLI Office in Kyrgyzstan (American Bar Association Rule of
Law Initiative).
Nurzat Myrsalieva, Consultant, Former Associate Legal Officer for Central Asia
Project, Open Society Justice Initiative.
Jibek Koichukulova, Assistant Professor Private International Law, Kyrgyz State
Academy of Law.
Saiyora Tashmatova, Assistant Professor, Public International Law, Kyrgyz State
Academy of Law.
Alina Murzaeva, Assistant Professor, International and Business Law Department,
American University of Central Asia.
Student Contributors
American University of Central Asia: Altynai Abdyldaeva, Myrzagul Aida-
ralieva, Zulaika Anvarbekova, Chynara Baichaeva, Shirin Gurdova, Aigerim
Kebekchieva, Medina Kuldaeva, Ermek Mamaev, Nazik Muradova, Altynai
Ryspaeva, Nurjan Subanbekova, Sultan Tolomushev, Asel Tursunbekova. Kyrgyz
State Academy of Law: Jyldyz Turcalieva.
Project and Publication Coordinators

Kanykei E. Kasybekova, Instructor, International and Business Law Department,
American University of Central Asia. Ruslan Myrzalimov, Kyrgyz National University,
Publication Coordinator. Assistance by Adis Sydykbaev, TSPC Project Coordinator.
Copy Editors
Steven Lustig, Associate Professor, Acting Chair of Business Administration
Department, American University of Central Asia, Aiaz Baetov, Kyrgyz National
University, for the Russian Edition, and Gulnaz Naamatova, Director Legal Clinic,
American University of Central Asia, for additional edits and translation.
Project Liaisons
Fulbright Association of the Kyrgyz Republic: Dr. Baktybek Keldibekov,
Deputy Director, Kyrgyz-Chinese Institute, Kyrgyz National University, President
of the Fulbright Association, Ruslan Myrzalimov, Director International Depart-
ment, Kyrgyz National University and Former Association President Baktibek
Ismailov, Ministry of Education, Kyrgyz Republic.
The Editors thank the authors, scholars and publishers who agreed to
contribute their work in gratis to this book which will be provided at no cost
to university faculty and students of Kyrgyzstan in support of their legal educa-
tion, including David Weissbrodt and Fionnuala Ni Aolain, Ashfaq Khalfan and
Marie-Claire Cordonier Segger, Dinah Shelton, Richard Lillich, Hurst Hannum,
and James Anaya, Vyacheslav V. Gavrilov, Andrew Clapham, Sir Franklin Berman,
Noemi Gal-Or, Alison MacDonald, Louis-Philippe Rouillard, Oxford University
Press, Aspen Publishers, The American Bar Association, New Zealand Armed
Forces Law Review, Santa Clara University Law Review, and the United Nations.
We also thank for circulation, insights or peer review Chynara Musabekova, Bek-
bosun Borubashov, Leonard Hammer, Diane Amann, and Naomi Roht-Arriaza,
and the Max Planck Institute for its in-depth resources on the International
Court of Justice. The Editors also thank Adviser Kanatbek Abdukadyrov, Dean
International Law Faculty, Kyrgyz State Academy of Law, and the American
University of Central Asia Tian Shan Policy Center, Rodger L. Dillon, Director,
and AUCA International and Business Law Department, for additional support.
Special thanks to the United States Embassy in the Kyrgyz Republic for
support of the Project and the publication of the book in Russian and English
languages, and enormous thanks to the Project’s key advisers from the U.S.
Embassy Ms. Guljan Tolbaeva, Cultural Affairs Assistant, and the Public Affairs
Officer, Kimberly McDonald.
Ta b l e o f C o n t e n t s
ACKNOWLEDGEMENTS............................................................................................................2
Editors and Contributors..................................................................................................2

Student Contributors...........................................................................................................2
Project and Publication Coordinators....................................................................2
Copy Editors................................................................................................................................2
Project Liaisons.........................................................................................................................3
TABLE OF CASES.................................................................................................................................... 19
PART I.............................................................................................................................................................. 30
CHAPTER 1
INTRODUCTION.................................................................................................................................. 30
The Evolving Nature of International Law ............................................................. 30
Getting the most from this Resource Book .......................................................... 32
CHAPTER 2
SOURCES OF INTERNATIONAL PUBLIC LAW............................................................... 33
Statute of the International Court of Justice.......................................................... 33

Article 38.................................................................................................................................... 33
Treaty Law.......................................................................................................................................... 33
Maritime Delimitation and Territorial Questions (Qatar v.
Bahrain), 1994....................................................................................................................... 33
Anglo-Iranian Oil Co. Case (United Kingdom v. Iran), 1952............ 34
International Customary Law............................................................................................ 36
North Sea Continental Shelf Cases (Germany v. Denmark and
Netherlands), 1969............................................................................................................ 36
Right of Passage over Indian Territory (Portugal v. India), 1960... 40
Legality of the Threat or Use of Nuclear Weapons in Armed
Conflict, I.C.J. Advisory Opinion, 1996............................................................... 42
General Principles of Law...................................................................................................... 49
Prosecutor v. Drazen Erdemovic, International Criminal Tribunal
for the Former Yugoslavia, 1997............................................................................. 49
Secondary Sources of Law..................................................................................................... 60
4 Contemporary International Law Materials and Cases

Statute of the International Court of Justice, Article 38, Section
1(d)................................................................................................................................................. 60
The S.S. “Lotus” Case (France v. Turkey), 1927.............................................. 60
Military and Paramilitary Activities in and against Nicaragua
(Nicaragua v. United States), 1986......................................................................... 61
Jus Cogens Norms........................................................................................................................ 62
Military and Paramilitary Activities in and Against Nicaragua
(Nicaragua v. United States), 1986......................................................................... 62
Kamrul Hossain, Jus Cogens and Obligations Under the U.N.
Charter......................................................................................................................................... 63
CHAPTER 3
SUBJECTS OF INTERNATIONAL LAW.................................................................................. 69
Overview............................................................................................................................................. 69
Brownlie, “Subjects of International Law”...................................................... 69
Blakesley, “States and Statehood: The Aura of Sovereignty”.............. 79
States...................................................................................................................................................... 80
Definition of a State
Montevideo Convention on the Rights and Duties of States........... 80
Membership in the United Nations
The United Nations Charter, Article 3................................................................ 80
Defined Territory and Population
Western Sahara, I.C.J. Advisory Opinion, 1975............................................. 81
Principle That All States Are Equal......................................................................... 84
Declaration on Principles of International Law Operation
Concerning Friendly Relations and Co-operation Among States in
Accordance with the Charter of the United Nations.............................. 84
Conflict, I.C.J. Advisory Opinion, 1996............................................................... 86
Question of Statehood: International Legal Personality...................... 88
Land and Maritime Boundary Between Cameroon and Nigeria,
(Cameroon v. Nigeria: Equatorial Guinea intervening), 2002......... 88
Creation of New States............................................................................................................ 89
Declaration of Independence of a People—Recognition of a New
State................................................................................................................................................ 89
Declaration of Independence by Kosovo, I.C.J. Advisory Opinion,
2010............................................................................................................................................... 89
Contemporary International Law Materials and Cases 5

European Community
Declarations on Creation of New States........................................................... 92
Declaration on Yugoslavia and On The Guidelines On The
Recognition Of New States, December 16, 1991....................................... 92
Declaration on the “Guidelines on the Recognition of New States
in Eastern Europe and in the Soviet Union”.................................................. 93
Succession of States........................................................................................................... 94
Gabčíkovo-Nagymaros Project (Hungary v. Slovakia), 1997........... 94
Representative of State Entity................................................................................... 95
Application of the Convention on Prevention and Punishment of
Genocide (Bosnia — Herzegovina v. Yugoslavia), 1996....................... 95
Intergovernmental Organizations as Subjects of International Law
(IGOs)................................................................................................................................................... 97
United Nations and International Bodies....................................................... 97
Reparations for Injuries Suffered in the Service of the United
Nations, I.C.J. Advisory Opinion, 1949............................................................... 97
Conflict, I.C.J. Advisory Opinion, 1996 (on the matter of the World
Health Organization)....................................................................................................... 99
The Force of Resolutions of United Nations Bodies............................ 102
Application of the Convention on the Prevention and Punishment
of the Crime of Genocide, (Bosnia/Herzegovina v. Yugoslavia)
(Security Council/UN), 1993.................................................................................. 102
East Timor (Portugal v. Australia), 1995......................................................... 105
Immunity from Legal Process of a Special Rapporteur of the
Commission on Human Rights, I.C.J. Advisory Opinion, 1999.... 107
National Liberation Movements and Other Groups............................ 111
General Assembly of the United Nations, 62nd Session, Question
of Palestine............................................................................................................................ 111
United Nations General Assembly Resolution 3237(XXIX),
Observer Status for the Palestine Liberation Organization, 22
November 1974................................................................................................................. 113
Individuals, NGOs and Business Enterprises as Subjects........................... 114
Andrew Clapham, “The Role of the Individual in International
Law”............................................................................................................................................ 114
LaGrand Case (Germany v. United States), 2011.................................... 118
Alice De Jong, “Transnational Corporations and International Law:

Bringing TNCs out of the Accountability Vacuum”.............................. 122
International Court of Justice: Practice Directions.............................. 122
Practice Direction XII, Consideration of NGO Amicus Curiae
Briefs........................................................................................................................................... 122
Rebasti and Vieruccci, “A Legal Status for NGOs in Contemporary
International law?”.......................................................................................................... 123
CHAPTER 4
TERRITORIAL SOVEREIGNTY................................................................................................ 126
The Concept of Territory in International Law................................................. 126

Martin Dixon, “Jurisdiction and Sovereignty”........................................... 126
The S.S. “Lotus” Case (France v. Turkey), 1927........................................... 131
(Nicaragua v. United States), 1986...................................................................... 136
Territorial Sovereignty
and Self-Determination....................................................................................................... 139
East Timor (Portugal v. Australia), 1995......................................................... 139
Sovereignty over Pulau Ligitan and Pulau Sipadan (Indonesia v.
Malaysia), 2001.................................................................................................................. 140
Sovereignty and Development of Natural Resources.................................. 143
United Nations General Assembly Resolution 1803, 14 December
1962, “Permanent Sovereignty over Natural Resources”................. 143
Territorial Sovereignty and the Seas........................................................................... 146
Fisheries Jurisdiction Case (United Kingdom v. Iceland), 1974.. 146
Maritime Delimitation and Territorial Questions between Qatar
and Bahrain (Qatar v. Bahrain), 2001.............................................................. 150
Maritime Delimitation in the Black Sea (Romania v. Ukraine),
2009............................................................................................................................................ 151
CHAPTER 5
STATE RESPONSIBILITY............................................................................................................... 156
State Responsibility for Internationally Wrongful Acts.............................. 156

International Law Commission Draft Articles.......................................... 156
Chapter I.................................................................................................................................. 156
GENERAL PRINCIPLES................................................................................................. 156
Article 1. Responsibility of a State for its internationally wrongful
acts............................................................................................................................................... 156

Article 2. Elements of an internationally wrongful act of a State.156
Article 3. Characterization of an act of a State as internationally
wrongful.................................................................................................................................. 157
Breach of an International Obligation.................................................................... 157
United States Diplomatic and Consular Staff in Tehran (U.S. v.
Iran), 1980............................................................................................................................. 157
Gabčíkovo-Nagymaros Project (Hungary v. Slovakia), 1997........ 158
Rainbow Warrior Case (New Zealand v. France), 1990..................... 158
Attribution of Conduct to a State................................................................................. 159
Immunity from Legal Process of a Special Rapporteur of the
Commission on Human Rights, I.C.J. Advisory Opinion, 1999.... 159
James Crawford, “Human Rights and State Responsibility”........... 164
Attribution to the State of human rights violations by non-State
actors.......................................................................................................................................... 164
Circumstances Precluding Wrongfulness.............................................................. 170
Rainbow Warrior Arbitration (New Zealand v France), 1987...... 170
Legal Consequences of International Wrongful Act..................................... 181

Arrest Warrant (Democratic Republic of the Congo v. Belgium),
2002............................................................................................................................................ 182
Land and Maritime Boundary (Cameroon v. Nigeria: Equatorial
Guinea Intervening), 2002....................................................................................... 185
CHAPTER 6
DISPUTE RESOLUTION AND
INTERNATIONAL LAW COMPLIANCE.............................................................................. 186
Disputes Between States..................................................................................................... 186

Martin Dixon, “The Peaceful Settlement of Disputes”....................... 186
U.N. Charter, Chapter I (Art. 1-2) and Chapter VI (Arts. 33-38).. 194
U.N. Resolution “Manila Declaration” on State Obligations for
Peaceful Settlement of Disputes........................................................................... 196
International Law Implementation and Compliance................................. 203

Vyacheslov V. Gavrilov ................................................................................................ 203
Selected International Tribunals................................................................................... 209
International Court of Justice (I.C.J.)................................................................ 209
The Court................................................................................................................................ 209
The origins............................................................................................................................. 210
The International Court of Justice (I.C.J.)..................................................... 211
Statute of the International Court of Justice.............................................. 213
Chapter II - Competence of the Court, Article 34.................................. 213
Case Concerning Military and Paramilitary Activities in and against
Nicaragua (Nicaragua v United States),1986............................................. 214
Boundary Disputes.................................................................................................................. 215
Malcolm Shaw, Boundary Treaties...................................................................... 215
Frontier Dispute, (Burkina Faso v. Republic of Mali)........................... 216
Consideration of Arbitral Awards................................................................................. 218
Maritime Delimitation of Territory (Qatar v. Bahrain), 2001........ 218
Inherent Right to Challenge Arbitral Award ....................................................... 221
Arbitral Award (Guinea Bissau v. Senegal), 1989..................................... 221
Obligations of Negotiation............................................................................................... 223
Conflict, I.C.J. Advisory Opinion, 1996............................................................ 223
European Court Of Justice................................................................................................. 225
The Court of Justice of the European Union.............................................. 226
Costa v. Enel, ECJ /European Community Supremacy (Italian
Company) Nationalization of Italian Company..................................... 228
Global Trade Disputes........................................................................................................... 230
See World Trade Organization Rules, Infra, Part II, Chapter 6...... 230
Human Rights Disputes........................................................................................................ 230
See International and Regional Tribunals, Infra, Part II,
Chapter 2. .......................................................................................................................... 230
PART II......................................................................................................................................................... 231

CHAPTER 1
USE OF FORCE..................................................................................................................................... 231
UN Charter and Prohibition of Use of Force....................................................... 231

UN Charter, Article 2...................................................................................................... 231
UN Charter and Use of Force........................................................................................... 231
“The UN Charter and the Use of Force,” Sir. Franklin Berman..... 231
Legality of the Threat or Use of Nuclear Weapons, I.C.J. Advisory
Opinion, 1996..................................................................................................................... 236
The Legality of Use of Force: Self Defense............................................................. 237
UN Charter, Article 51.................................................................................................. 237
Legality of the Threat or Use of Nuclear Weapons, I.C.J. Advisory
Opinion, 1996..................................................................................................................... 243
Ruth Wedgwood, “UN Peace Keeping Operations and the Use of
Force”......................................................................................................................................... 245
Nurullah Yamali, “The Use of Force For Collective Security and
Peacekeeping at the End of the Twentieth Century”........................... 246
Anticipatory/Preemptive Use of Force.................................................................... 247
Louis-Philippe Rouillard, “The Caroline Case: Anticipatory Self-
Defense in Contemporary International Law”......................................... 247
“Legality of Use of Force Against Iraq,” Legal Opinion by Public
Interest Lawyers on Behalf of Peacerights................................................... 254
“The Consequences for the World Legal Order of The War on Iraq,”
Noel Cox.................................................................................................................................. 260
CHAPTER 2
HUMAN RIGHTS................................................................................................................................. 263
Introduction................................................................................................................................. 263
What are Human Rights? .......................................................................................... 263
Overview of Office of the High Commissioner for Human Rights
(OHCHR)................................................................................................................................ 263
Development of International Human Rights Law.............................. 265
The International Bill of Human Rights
Fact Sheet No.2 (Rev.1)................................................................................................ 266
Treaty Bodies................................................................................................................................ 269

Human Rights Treaty Bodies: Monitoring the Core International
Human Rights Treaties................................................................................................. 269
Constitution of the Kyrgyz Republic: Human Rights Provisions.272
Opinion on the Draft Constitution of the Kyrgyz Republic........... 273
International Human Rights Norms.......................................................................... 273
International Covenant on Civil and Political Rights (ICCPR).... 273
Shirin Aumeeruddy-Cziffra, et. al. v. Mauritius, Decision of the
Human Rights Committee, 1981......................................................................... 274
Human Rights Committee, General Comment 18................................ 277
Non-discrimination....................................................................................................... 277
Right to Life.................................................................................................................................... 280
Yekaterina Pavlovna Lantsova v. Russia, Decision of the Human
Rights Committee, 2002............................................................................................. 280
Human Trafficking................................................................................................................... 284
Modern-Day Slavery....................................................................................................... 284
Human Trafficking, OSCE Fact Sheet............................................................... 284
Self-Determination.................................................................................................................. 287
General Comment 12, Human Rights Committee, Treaty Body for
the International Covenant on Civil and Political Rights................ 287
United Nations General Assembly Resolution 2649 on Self-
Determination ................................................................................................................... 288
“Self-Determination and Conflict Resolution: From Kosovo to
Sudan,” The Honorable Louise Arbour............................................................ 289
Frontier Dispute (Burkina Faso v. Mali), 1986.......................................... 291
Torture and Fair Trial.............................................................................................................. 292
International Covenant on Civil and Political Rights......................... 292
Otabek Akhadov v. Kyrgyzstan, Decision of the Human Rights
Committee, 2011.............................................................................................................. 293
Dimitry Gridin v. Russia, Decision of the Human Rights
Committee, 2000.............................................................................................................. 296
Felix Kulov v. Kyrgyzstan, Decision of the Human Rights
Committee, 2010.............................................................................................................. 299
Zhakhongir Maksudov, et al. v. Kyrgyzstan, Decision of the Human
Rights Committee, 2008............................................................................................. 301
Freedom of Association and Assembly.................................................................... 307

Ismayilov v. Azerbaijan, Decision of
the European Court of Human Rights, 2008.............................................. 307
Tolekan Isamailova v. Kyrgyzstan, Decision of
the Kyrgyz Constitutional Court, 2 March 2010...................................... 310
Freedom of Expression and Religion........................................................................ 311
Raihon Hudoyberganova v. Uzbekistan, Decision of
the Human Rights Committee, 2004................................................................ 311
Freedom of Expression and Right to Information......................................... 316
Nurbek Toktakunov v. Kyrgyzstan, Decision of
the Human Rights Committee, 2011................................................................ 316
Freedom of Elections............................................................................................................. 319
United Nations Universal Declaration
on Human Rights (1948)........................................................................................... 319
Protocol I of the European Convention
on Human Rights (1952)........................................................................................... 320
Mathieu-Mohin and Klerfeyt v. Belgium, Decision of
the European Court of Human Rights............................................................. 320
Displacement, Migration, Internally Displaced People.............................. 323
Michelle Leighton, “Population Displacement,
Relocation, and Migration”...................................................................................... 323
International Covenant on Economic, Social
and Cultural Rights (ICESCR).......................................................................................... 328
Paul Hunt, “State Obligations, Indicators, Benchmarks
and the Right to Education”.................................................................................... 328
Housing Rights............................................................................................................................ 330
The Government of the Republic of South Africa, et al. v.
Grootboom .......................................................................................................................... 330
Labor Rights ................................................................................................................................. 334
Elida Nogoibaeva, “The Application of International
Labor Law in the Legal System of the Kyrgyz Republic”.................... 334
Right to Health............................................................................................................................ 338
International Covenant on Civil and Political Rights,
Articles 11 and 12............................................................................................................. 338
ICESCR General Comment 14 .............................................................................. 339

Substantive issues arising in the implementation
of the International Covenant on Economic,
Social and Cultural Rights.......................................................................................... 339
ICESCR General Comment 15, The Right to Water ............................. 342
UN Office of the High Commissioner
for Human Rights, Fact Sheet No. 35, The Right to Water............... 342
HIV/AIDS and specific water needs.................................................................. 342
Right to Food................................................................................................................................ 343
United Nations Food and Agriculture Organization,
Fact Sheet No. 34.............................................................................................................. 343
The right to food in international law ........................................................... 343
Group Rights................................................................................................................................. 344
Ethnic Minorities.............................................................................................................. 344
International Covenant on Civil
and Political Rights Articles 2 and 27............................................................... 344
UN Office of the High Commissioner
for Human Rights, Fact Sheet No. 18, Minority Rights ...................... 344
Alekseyev v. Russian, Decision of
Rights of Children..................................................................................................................... 349
The Convention on the Rights of the Child................................................ 349
Committee on the Rights of the Child,
Concluding Observations on Kyrgyzstan...................................................... 350
Rights of Women....................................................................................................................... 353
Overview of Convention on the Elimination
of All Forms of Discrimination against Women...................................... 353
A.S. v. Hungary, Decision of the Committee on Elimination of
Discrimination Against Women, 2006............................................................ 355
Overview of International and Regional Systems of Enforcement.. 357
David Weissbrodt, Fionnuala Ni Aolain, “Development of Human
Rights Law Within the U.N. Structure: Charter Base Human Rights
Bodies”...................................................................................................................................... 357
Regional Systems: Europe................................................................................................... 370
Leyla Sahin v. Turkey, Decision of the European Court of Human
Rights, 2004.......................................................................................................................... 370

Regional Systems: Inter-American............................................................................... 374
International Human Rights: Problems of Law,
Policy, and Practice......................................................................................................... 374
Indigenous Peoples Rights................................................................................................. 379
United Nations Declaration on
the Rights of Indigenous Peoples........................................................................ 379
Environmental Rights............................................................................................................ 379
Laurie R. Tanner, “Kawas vs. Honduras –
Protecting Environmental Defenders,” 2011............................................ 379
Regional Systems: Africa...................................................................................................... 383
Burkinabe African Commission Case............................................................... 383
CHAPTER 3
INTERNATIONAL HUMANITARIAN LAW....................................................................... 386
Sources of International
Humanitarian Law................................................................................................................... 386
The First Geneva Convention................................................................................ 386
List of Customary Rules of International
Humanitarian Law........................................................................................................... 388
Legality of the Threat or Use of Nuclear Weapons,
I.C.J. Advisory Opinion, 1996.................................................................................. 398
Prosecutor v. Dusko Tadić, International
Criminal Tribunal for Yugoslavia......................................................................... 402
Jus Ad Bellum and Jus In Bello....................................................................................... 404
Fundamental Distinction Between Jus Ad Bellum
(On The Legality Of The Use Of Force) And Jus In Bello
(On The Humanitarian Rules To Be Respected In Warfare)........... 404
International Law Commission,
Articles on State Responsibility............................................................................. 407
Inter-American Commission on Human Rights, Tablada................ 410
Combatants and Prisoners of War............................................................................... 412
The First Protocol Additional to the Geneva Conventions
(Protocol I)............................................................................................................................ 412
The Third Geneva Convention, 1949.............................................................. 413
Convention on the Safety of UN Personnel................................................ 415

Optional Protocol to the Convention on the Safety of United
Nations and Associated Personnel..................................................................... 417
Detention of Unlawful Combatants................................................................. 418
United States, Military Commissions................................................................ 424
Montreux Document on pertinent international legal obligations
and good practices for States related to operations of private
military and security companies during armed conflict................... 427
The Second Geneva Convention, 1949.......................................................... 430
British Military Court at Hamburg, the Peleus Trial.............................. 432
ICRC Report on Yemen, 1967................................................................................. 437
Security Council Resolution 1193 (1998).................................................... 441
Protection of Civilians........................................................................................................... 442
The Fourth Geneva Convention 1949............................................................ 442
The First Protocol Additional to
the Geneva Conventions, 1977............................................................................ 448
UN Secretary-General’s Reports on the Protection of Civilians in
Armed Conflict............................................................................................................................ 454
Report of the Secretary-General to the Security Council on the
Protection of Civilians in Armed Conflict.................................................... 454
Report of the secretary-general on the protection of civilians in
armed conflict.................................................................................................................... 455
Prosecutor v. Kunarac, Kovac and Vukovic, ICTY, 2002................... 459
Means and Methods of Warfare..................................................................................... 464
The First Protocol Additional to
the Geneva Conventions, 1977............................................................................ 464
The Geneva Chemical Weapons Protocol, 1925..................................... 465
John H. McNeill “The International Court of Justice, Advisory
Opinion in the Nuclear Weapons Cases - A first appraisal”............ 466
Implementation of International Humanitarian Law................................. 470
Legal Consequences of the Construction of a Wall
in the Occupied Palestinian Territory.............................................................. 470
Implementation of International Humanitarian Law
in the Kyrgyz Republic.......................................................................................................... 474
ICRC, Advisory Services on International Humanitarian Law...... 474

Law of the Kyrgyz Republic “On Use and Protection
of the Red Cross/Red Crescent Emblems”................................................... 477
Regulations of the Permanent Interdepartmental Commission
Under the Ministry of Justice of the Kyrgyz Republic on
Implementation of International Humanitarian Law........................ 480
CHAPTER 4
CRIMINAL RESPONSIBILITY.................................................................................................... 481
Tribunals and the ICC............................................................................................................ 481

Yusuf Aksar, “From The Ad Hoc Tribunals to a Permanent
International Criminal Court,”2004.................................................................. 481
Principal of Universal Jurisdiction.............................................................................. 483
Arrest Warrant
(Democratic Republic of the Congo v. Belgium), 2002..................... 483
James Crawford, “Human Rights and State Responsibility”........... 487
Command Responsibility................................................................................................... 490
Prosecutor v. Juvénal Kajelijeli............................................................................... 490

Genocide.......................................................................................................................................... 492
Application of the Convention for the Prevention and
Punishment of the Crime of Genocide
(Bosnia and Herzegovina v. Serbia and Montenegro)........................ 492
Jorgic v. Germany, Decision of

Prosecutor v. Radislav Krstic.................................................................................... 499
Crimes Against Humanity................................................................................................... 502

Prosecutor v. Radislav Krstic.................................................................................... 506
Prosecutor v. Tadic........................................................................................................... 509
War Crimes..................................................................................................................................... 510
Trial of General Tomoyuki Yamashita.............................................................. 510
The German High Command Trial.................................................................... 511

CHAPTER 5
INTERNATIONAL ENVIRONMENTAL LAW................................................................... 514
Historical Overview................................................................................................................. 514

Principles of International Environment and Sustainable
Development Law........................................................................................................... 516
New Delhi Declaration of Principles of International
Law Relating to Sustainable Development.................................................. 523
Selected Treaty Bodies.......................................................................................................... 532
Principal Environmental Bodies.......................................................................... 532
Selected Treaty Bodies.................................................................................................. 533
Water Resources......................................................................................................................... 534
Pulp Mills on the River Uruguay (Uruguay v. Argentina), 2010
......................................................................................................................................................... 534
United Nations Law of the Sea “UNCLOS”................................................... 540
Kyrgyz Transboundary Water Commission
with Neighbor States..................................................................................................... 541
Hazardous Waste and Toxics............................................................................................ 543
Overview of Basel Convention on Control of Transboundary
Movement of Waste....................................................................................................... 543
U.N. Special Rapporteur on Toxics Report on Kyrgyzstan............... 545
Cote d’Ivoire: The Toxic Dumping Case Against Trafigura.............. 546
Wildlife and Biodiversity..................................................................................................... 548
Conservation of Wildlife and Protection of Biodiversity................. 548
Threats to Biodiversity................................................................................................. 549
The U.N. Convention on Biological Diversity............................................ 549
Protection of the Meridian Frog, Decision of
the European Court of Justice, 2007................................................................. 553
Climate Change.......................................................................................................................... 556
UN Framework Convention on Climate Change and Kyoto
Protocol................................................................................................................................... 556
The Kyoto Protocol Mechanisms........................................................................ 556
Republic of Estonia v. European Commission.......................................... 558
Human Rights and the Environment........................................................................ 564
Dubetska and Others v. Ukraine, Decision of

the European Court of Human Rights , 2011............................................. 564
Budayeva v. Russia, Decision of
Corporate Responsibility for Environmental Harm ..................................... 572
U.N. Guiding Principles on Business and Human Rights.................. 572
Guiding Principles on Business and Human Rights:
Implementing the United Nations
“Protect, Respect and Remedy” Framework............................................... 575
International Network for Economic, Social & Cultural Rights
(ESCR-Net) and Human Rights Watch – joint statement to UN
Human Rights Council, 4 Jun 2010................................................................... 577
Annette Hughes, Rachel Nicolson and Catie Shavin,
Allens Arthur Robinson Law Firm - 4 May 2010...................................... 578
CHAPTER 6
INTERNATIONAL TRADE LAW................................................................................................ 579
History and Basic Principles of WTO........................................................................ 579
Tariff Binding and GATT Article II................................................................................ 580

Argentina – Measures Affecting Imports of Footwear, Textiles,
Apparel and Other Items, 1997............................................................................. 580
National Treatment and GATT Article III............................................................... 585
Japan – Taxes on Alcoholic Beverages, 1996............................................. 585
Most Favored Nations Treatment and GATT...................................................... 594
Indonesia – Certain Measures Affecting
the Automobile Industry, 1998.............................................................................. 594
Environmental Protection and Trade....................................................................... 598
United States – Restrictions on Imports of Tuna.................................... 598
United States – Standards for Reformulated
and Conventional Gasoline..................................................................................... 606
Regional Trade Agreements..................................................................................... 611
WTO Dispute Settlement System................................................................................. 613
World Trade Organization........................................................................................ 613
Convention on the Settlement of Investment Disputes
Between States and Nationals of Other States, 1965........................... 627

TABLE OF CASES
Most of the cases referred to in the book are selected portions of the In-
ternational Court of Justice decisions. Only the title of the case and year of
judgement are listed in the headings. The footnote to each case lists the ICJ
Report citation (the official volumes of decisions for the Court).
Accordance with International Law of the Unilateral Declaration
of Independence in Respect of Kosovo, I.C.J. Advisory Opinion, 2010.
The U.N. General Assembly requested an advisory opinion of the International
Court of Justice on the Unilateral Declaration of Independence by Kosovo. The
territory of Kosovo is the subject of a dispute between Serbia and the Republic
of Kosovo established by the declaration. This was the first case regarding a
unilateral declaration of independence to be brought before the Court.
Anglo-Iranian Oil Co. Case (United Kingdom v. Iran), 1952. The
case involved a dispute between the United Kingdom (UK) and Iran. The UK
alleged that the Iranian Oil Nationalization act of 1951 violated a convention
agreed upon by the Anglo-Persian Oil Co. (now British Petroleum (BP)) and the
Imperial Government of Persia (now Iran) in 1933 which granted the Anglo-
Iranian Oil Co. a 60-year license to mine oil in 100,000 square miles (260,000
km2) of Iran’s territory in return for a percentage royalty. On 26 May 1951,
the UK brought a case against Iran before the International Court of Justice,
demanding that the 1933 agreement be upheld and that Iran pay damages and
compensation for disrupting the UK-incorporated company’s profits.
Application of Convention on Prevention and Punishment for the
Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montene-
gro), 1996. On March 20, 1993, the Government of. Bosnia filed an Application
before the International Court of Justice alleging violations of the 1948 Conven-
tion on the Prevention and Punishment of the Crime of Genocide (Genocide
Convention) by the Government of the Yugoslavia. Bosnia asked the Court to
order Yugoslavia to cease the acts constituting such violations and declare that
Yugoslavia had incurred international responsibility for which it must make
appropriate reparation. Yugoslavia sought to dismiss the case. It argued that the
Application was not admissible because of the lack of an international dispute
and the lack of authority of the President of Bosnia at the time the Application
was filed. Yugoslavia also alleged that the Court lacked jurisdiction.
Arbitral Award (Guinea Bissau v. Senegal), 1989. On August 23, 1989,
Guinea-Bissau instituted proceedings against Senegal in the International

Court of Justice seeking a declaration that the award of arbitration between
the parties, rendered on July 31, 1989, was “inexistent” for lack of a real ma-
jority. Subsidiarily, Guinea-Bissau contended that the award was null and void
because the Tribunal had failed to answer the second of two questions put to
it, had not decided on the delimitation of the maritime area concerned as a
whole by a single line on a map, and had not given the reasons for so failing
to exercise its jurisdiction.
Argentina - Measures Affecting Imports of Footwear, Textiles, Ap-
parel and Other Items, WTO Panel Report, 1997. The great majority of
Argentina’s import tariffs are fixed in ad valorem terms. Regarding textiles,
clothing and footwear, Argentina maintained a regime of minimum specific
import duties as from 1993. This regime was applied through resolutions and
decrees having fixed terms. Argentina approved the results of the Uruguay
Round through Law No. 24.425, promulgated on 23 December 1994. These
results included a bound rate of duty of 35 per cent ad valorem with respect
to textiles, apparel and footwear imported into Argentina. In parallel, Argentina
continued to apply a system of minimum specific import duties in the foot-
wear, textile and apparel sectors. Regarding footwear, the minimum specific
duty was revoked in 1997. Provisional safeguard measures were applied in that
sector on 25 February 1997. Concurrently, since 1989, Argentina applied a tax
on imported products intended to finance statistical services to importers, ex-
porters and the general public. The Panel procedure concerned the Argentine
measures adopted in order to apply the above mentioned regime, as established
and maintained inter alia through the laws, decrees and resolutions.
Arrest Warrant (Democratic Republic of the Congo v. Belgium),
2002. In 1993, Belgium’s Parliament voted in a “law of universal jurisdiction,”
allowing it to judge people accused of war crimes, crimes against humanity or
genocide. In 2001, four Rwandans were convicted and sentenced to from 12
to 20 years’ imprisonment for their involvement in 1994 Rwandan genocide.
An arrest warrant was issued in 2000 under this law against Abdoulaye Yerodia
Ndombasi, the then Minister of Foreign Affairs of the Democratic Republic of
the Congo, whose challenge to this action was considered by the International
Court of Justice.
Budayeva v. Russia, European Court of Human Rights, 2008. The
applicants lived in Tyrnauz in the mountain district near Mount Elbrus in the
Republic of Kabardino-Balkariya (Russia). Mudslides led to death and destruc-
tion of property. Prior slides were recorded in the area every year since 1937,
especially in summer. The case concerned the applicants’ allegations that the
Russian authorities violated their human rights as they failed to heed warnings

about the likelihood of a large-scale mudslide, which in fact did occur, dev-
astating Tyrnauz in July 2000. Authorities failed to implement evacuation and
emergency relief policies or, after the disaster, to carry out a judicial enquiry.
Costa v. Enel, ECJ European Community Supremacy (Italian Com-
pany) Nationalization of Italian Company, 1964. The European Court of
Justice considered the supremacy of European Union law over the laws of its
member states under a proceeding concerning Mr. Costa, an Italian citizen, who
had owned shares in an electricity company and opposed to the nationaliza-
tion of the electricity sector in Italy. He refused to pay his electricity bill, which
amounted to 1,925 lira (€0.99), in protest and was sued for nonpayment by the
newly created state electricity company, ENEL. In his defense he argued that the
nationalization of the electricity industry violated the Treaty of Rome and the
Italian Constitution. The Italian judge, the Giudice Conciliatore of Milan referred
the case first to the Italian Constitutional Court and then to the European Court
of Justice.
Dimitry Gridin v. Russia, Human Rights Committee, 2007. The
Committee found in favor of the author of the communication, Dimitry Le-
onodovich Gridin, a Russian student, who claimed to be a victim of Russia’s
violation of articles 9, 10, and 14, (due process of law and right to fair trail)
under the International Covenant on Civil and Political Rights.
Felix Kulov v. Kyrgyzstan, Human Rights Committee,2011. The
Committee found in favor of the author of the communication Mr. Felix Kulov,
a Kyrgyz national, who claimed while serving a prison sentence in Kyrgyzstan
to be the victim of violations by Kyrgyzstan of his rights under articles 2, 7,(pro-
hibition of torture) 9 (freedom from arbitrary arrest and detention), and 14
of the International Covenant on Civil and Political Rights.
Dubetska and others v. Ukraine, European Court of Human Rights,
2011. The applicants, 11 Ukrainian nationals, complained to the European
Court of Human Rights that they suffered chronic health problems and dam-
age to their homes and living environment from a coal mine and a factory
operating nearby. A State-owned coal mine started operating in 1960 in the
vicinity of the applicants’ houses, and a mine spoil heap was erected around
100 metres away from the Dubetska-Nayda family house. In 1979, the State
opened a coal processing factory which subsequently produced a 60-metre
spoil heap about 430 metres from the Dubetska-Nayda family house and
420 metres from the Gavrylyuk-Vakiv family house. The spoil heap remained
State property even after a 2007 decision to privatize the factory. A number
of studies by governmental and non-governmental entities found that the
operation of the mine and factory had had adverse environmental effects,

including flooding, polluted ground water and air and soil subsidence. The
reports concluded that people living in the factory’s and mine’s surround-
ing area were exposed to a higher risk of cancer and respiratory and kidney
diseases. The applicants challenged the government’s actions to allow the
facilities as violations of human rights.
East Timor (Portugal v. Australia), 1995. On 22 February 1991 Por-
tugal instituted proceedings against Australia concerning “certain activities of
Australia with respect to East Timor.” Portugal acted as the administering Power
over East Timor in accordance with Chapter XI of the Charter of the United
Nations. It claimed that Australia, by the conclusion of a Treaty of “Coopera-
tion in an area between the Indonesian Province of East Timor and Northern
Australia,” had failed to observe the obligation to respect the powers and duties
of Portugal as the administering power of East Timor, as well as the right of
the people of East Timor to self-determination and the related rights. Australia,
according to Portugal’s allegations, had thereby incurred international respon-
sibility vis-à-vis both the people of East Timor and Portugal, which claimed to
have remained the administering power according to several resolutions of
the General Assembly and the Security Council, even though it had left East
Timor when Indonesia invaded East Timor in 1975. Australia objected to the
jurisdiction of the Court and the admissibility of the application.
Republic of Estonia v European Commission, European Court of
Justice, 2009. The case involved a challenge to a European Union directive
adopted to promote reductions of greenhouse gas emissions in a cost-effective
and economically efficient manner. Directive 2003/87/EC established a scheme
for emission allowance trading within the Community requiring each Member
State to develop a national allocation plan (NAP) stating the total quantity
of allowances that it intends to allocate for that period and how it proposes
to allocate them. In the case of incompatibility with the criteria listed in the
Directive, the Commission may reject all or part of the NAP. In 2006, Poland
and Estonia notified their NAPs for the period from 2008 to 2012 to the Com-
mission. By two decisions in 2007, the Commission found these NAPs to be
incompatible with the criteria listed in the Directive. Poland and Estonia chal-
lenged the Commission’s decisions before the European Court of Justice and
sought annulment of these decisions.
Fisheries Jurisdiction Case (United Kingdom v. Iceland), 1974. The
United Kingdom invoked the jurisdiction of the International Court of Justice
regarding its reliance upon an Exchange of Notes of 11 March 1961 with
Iceland and to resolve the dispute arising out of Iceland’s assertion in 1958 of
a 12-mile exclusive fishing zone. The application arose out of a resolution of

the Icelandic legislature of 15 February 1972 envisaging the extension of the
exclusive zone to 50 miles. Iceland failed to appear in the proceedings.
Frontier Dispute, Judgment (Burkina Faso v. Republic of Mali),
1986. Pursuant to a Special Agreement, the Republic of Upper Volta (now
Burkina Faso) and the Republic of Mali submitted a dispute concerning a part
of their common frontier with Burkina Faso to a special Chamber of the Inter-
national Court of Justice for the delimitation of the boundary in the disputed
area between the former French colonies at the end of the colonial period.
Gabčíkovo-Nagymaros Project (Hungary v. Slovakia), 1997. On 2
July 1993, Hungary and Slovakia notified the International Court of Justice
that a dispute had arisen on use of territory and the Danube under the Special
Agreement between Hungary and Czechoslovakia. Specifically, the dispute
concerned the implementation and the termination of the Budapest Treaty
of 16 September 1977 on the Construction and Operation of the Gabčikovo-
Nagymaros System of Locks on the Danube. Among other issues, Hungary
asserted that it was lawful not to allow the construction of the dam until
further environmental assessments were completed as needed to safeguard
its natural environment and protect the well-being of its people.
Indonesia – certain measures affecting the automobile industry,
WTO Panel Report, 1998. The decision concerned European Communities
challenges to Indonesia’s local content requirements linked to certain sales tax
benefits and customs duty benefits and its violation of the provisions of Article
2 of the Agreement on Trade-Related Investment Measures (the “TRIMs Agree-
ment”) and violations concerning the sales tax discrimination aspects under
Article III:2 of the GATT 1994. It also concerned Indonesia’s 1996 National Car
Programme, and its violation of Article 2 of the TRIMs Agreement and Articles I
and III:2 of the GATT 1994., The Panel recommended “that the Dispute Settle-
ment Body request Indonesia to bring its measures into conformity with its
obligations under the WTO Agreement.
Ismayilov v. Azerbaijan, European Court of Human Rights 2008.
The applicant to the European Court of Human Rights, Mr. Ismayilov, alleged
that the significant delays in the state registration of the public association
of which he was a founder amounted to a violation of his right to freedom
of association, that the domestic courts were not independent and impartial,
and that the domestic remedies were not effective in lawsuits filed by public
associations against the Ministry of Justice of Azerbaijan.
Japan – Taxes on alcoholic beverages, WTO Appellate Body Report,
1996. Japan and the United States appeal from certain issues of law and legal
interpretations in the Panel Report, Japan - Taxes on Alcoholic Beverages1 (the

“Panel Report”). That Panel was established to consider complaints by the European
Communities, Canada and the United States against Japan relating to the Japanese
Liquor Tax Law (Shuzeiho), Law No. 6 of 1953 as amended (the “Liquor Tax Law”).
Jorgic v. Germany, European Court of Human Rights, 2007. Bosnian
Serb Nikola Jorgic was the leader of a paramilitary group that took part in acts of
terror against the Muslim population. The crimes were carried out with the back-
ing of the Serb rulers and were designed to contribute to their policy of “ethnic
cleansing”. Jorgic arrested Muslims and put them in prison camps where they
were tortured. The Court also found that in June 1992, he took part in the execu-
tion of 22 inhabitants of Grabska (among them disabled and elderly people), who
had gathered in the open in order to escape fighting. Three other Muslims had
to carry the dead to a mass grave. A few days later, Jorgic ordered the expulsion
of their village and the brutal ill-treatment of 40-50 inhabitants from Sevarlije;
six of them were shot dead. The seventh victim, who was not fatally wounded,
died later when he was burned together with the six bodies. In September 1992,
Jorgic put a tin bucket on the head of a prisoner in the central prison of Doboj
and hit it with such force that the victim died as a consequence of the blow. For
these acts, Jorgic was convicted for genocide by the German courts.
LaGrand Case (Germany v. U.S.A), 2011. The LaGrand case was a legal
action heard before the International Court of Justice concerning the Vienna
Convention on Consular Relations. The I.C.J. found that its own temporary court
orders were legally binding and that the rights contained in the convention
could not be denied by the application of domestic legal procedures.
Land and Maritime Boundary (Cameroon v. Nigeria: Equatorial
Guinea intervening), 2002. In March 1994, Cameroon brought a dispute
before the International Court of Justice concerning the question of sovereignty
over the Bakassi Peninsula. In June 1994, Cameroon extended the subject of
the dispute to include the question of sovereignty over Cameroonian territory
in the area of Lake Chad and the frontier between Cameroon and Nigeria from
Lake Chad to the sea. In 1999, the Court authorized an intervention by Guinea,
which sought to protect its legal rights in the light of pending maritime bound-
ary claims between Cameroon and Nigeria.
Legality of the Threat or Use of Nuclear Weapons in Armed Conflict,
I.C.J. Advisory Opinion, 1996. The International Court of Justice consid-
ered first a request by the World Health Organization (WHO) for an advisory
opinion on the topic in which it found it had no jurisdiction to consider the
matter. A request was then brought in 1994 by the United Nations General
Assembly in which the Court did find it had jurisdiction to hear the matter. It
delivered its advisory opinion on 8 July 1996 and is an authoritative opinion

TABLE OF CASES
concerning the legality under international law of the use or the threatened
use of nuclear weapons.
The S.S. “Lotus” Case (France v. Turkey), 1927. After a collision on
2 August 1926 between the S.S. Lotus, a French steamship and the S.S. Boz-
Kourt, a Turkish steamer, in a region just north of Mytilene, the government
of Turkey brought criminal proceedings against a French officer, Monsieur
Demons, of the S.S. Lotus for the drowning of eight Turkish nationals aboard
the Boz-Kourt. On 7 September 1927, the case was presented to the Perma-
nent Court of International Justice to decide whether Turkey had authority to
try Monsieur Demons.
Maritime Delimitation in the Black Sea (Romania v. Ukraine), 2009.
On 16 September 2004, Romania brought a case against Ukraine before the
International Court of Justice relating to a dispute concerning the establish-
ment of a single maritime boundary between the two states in the Black Sea,
thereby delimiting the continental shelf and the exclusive economic zones
(EEZ) appertaining to them. Romania requested the Court to draw the boundary
in accordance with international law and, specifically, the criteria of Article 4
of the Additional Agreement between Romania and Ukraine of October 1997.
Maritime Delimitation and Territorial Questions between Qatar
and Bahrain (Qatar v. Bahrain), 2001. On 8 July 1991, Qatar instituted pro-
ceedings before the International Court of Justice against the State of Bahrain in
respect of certain disputes between the two States relating to sovereignty over
the Hawar islands, sovereign rights over the shoals of Dibal and Qit’at Jaradah,
and the delimitation of the maritime areas of the two States.
Mathieu-Mohin and Klerfeyt v. Belgium, Decision of the European
Court of Human Rights, 1987. The applicants to the European Court of
Human Rights, Ms. Lucienne Mathieu-Mohin and Mr. George Klerfeyt, lived in
the communes of the Al-Vilvord administrative district, which was part of the
bilingual Brussels region and the electoral district of Brussels. On direct elec-
tions in the late 1970’s they were elected to the House of Representatives (Ms.
Mathieu-Mohin) and Senate (Mr. Klerfeyt). During that period of time, Belgium
was divided on a linguistic basis into several regions, which was governed by
regional councils, and included members of both houses of parliament, elected
in their respective districts (in the bilingual region of Brussels two councils
were created). In the administrative county where the applicants were elected,
most of the population was Flemish, and it was governed by Flemish Council.
However, the applicants could not join it since they took a parliamentary oath
in French, thus belonging only to Francophone faction. The Court considered
violations of the European Convention on Human Rights in this context.

PA R T I
Military and Paramilitary Activities in and Against Nicaragua (Ni-

caragua v. United States), 1986. The case involved a claim by Nicaragua
against the United States before the International Court of Justice for its role
in assisting the Contras in the rebellion against Nicaragua, including for the
mining of Nicaragua’s harbor. The United States refused to participate in the
proceedings after the Court rejected its challenge that the I.C.J. lacked jurisdic-
tion to hear the case. The Court decided it had jurisdiction and proceeded to
decide the case on the merits. The Court found in favor of Nicaragua.
North Sea Continental Shelf Cases, (Germany v. Denmark and
Netherlands), 1969. The case involved a series of disputes brought to the
International Court of Justice in 1969 regarding disagreements among Den-
mark, Germany, and the Netherlands on the “delimitation” of areas—rich in oil
and gas—of the continental shelf in the North Sea.
Nurbek Toktokunov v. Kyrgyzstan, Human Rights Committee,
2011. The author of the communication to the Human Rights Committee, Mr.
Nurbek Toktokunov, a Kyrgyz national, claimed to be the victim of violations
by Kyrgyzstan of his rights under article 2, read together with article 14 (right
to fair trial and due process of law), and article 19 (freedom of expression)
under the International Covenant on Civil and Political Rights. The Optional
Protocol entered into force for the State party on 7 January 1995.
Otabek Akhadov v. Kyrgyzstan, Human Rights Committee, 2011.
The author of the communication brought to the Human Rights Committee, Mr.
Otabek Akhadov, a national of Uzbekistan claimed to be a victim of violations
by Kyrgyzstan of his rights under article 6, (right to life) article 7 (prohibition
of torture), article 9 (freedom from arbitrary arrest and detention, article 10
(humane treatment in detention), and article 14 (right to fair trial and due
process of law) the International Covenant on Civil and Political Rights.
Prosecutor v. Dragoljub Kunarac, Radomir Kovac and Zoran Vu-
kovic, 2002.The International Criminal Court of Yugoslavia (war crimes tribu-
nal) convicted the three defendants for their role in the mass rape of Muslim
women during the conflict in Bosnia-Hercegovina. The Tribunal considered
the issue of rape of Muslim women as a crime against humanity.
Prosecutor v. Drazen Erdemovich, International Criminal Tribunal
for the Former Yugoslavia, 1997. As a soldier in the 10th Sabotage Detach-
ment (during Bosnian war), Erdemović was charged with shooting, killing, and
participating with other members of his unit and soldiers from another brigade
in the shooting and killing, of hundreds of unarmed Bosnian Muslim men on or
about 16 July 1995. Erdemović was charged on the basis of individual criminal
responsibility (Article 7(1) of the Statute) of the International Criminal Tribunal

TABLE OF CASES
for the former Yugoslavia (ICTY) with murder (crimes against humanity, Article
5), and alternatively, murder (violations of the laws or customs of war, Article 3).
Prosecutor v. Dusko Tadić, 2005. Tadic was a Bosnian Serb war criminal,
former SDS leader in Kozarac and a former member of the paramilitary forces
supporting the attack on the district of Prijedor. He was convicted of crimes
against humanity, grave breaches of the Geneva Conventions, and violations
of the customs of war by the International Criminal Tribunal for the Former
Yugoslavia (ICTY) for his actions in the Prijedor region, including the Omar-
ska, Trnopolje and Keraterm detention camps. He was sentenced to 25 years
of imprisonment.
Prosecutor v. Juvenal Kajelijeli. The case involved charges against
Kajelijeli based on his responsibility for attacks against Tutsis of the Mukingo,
Nkuli, and Kigombe communes during April 1994. The Trial Chamber found
Kajelijeli guilty of genocide, direct and public incitement to commit genocide,
and extermination as a crime against humanity. It found him not guilty of
conspiracy to commit genocide and crimes against humanity (rape and “other
inhumane acts”), and dismissed the charges of complicity in genocide and
crimes against humanity (murder and persecution). He was sentenced to two
terms of life imprisonment and one term of 15 years to be served concurrently.
Prosecutor v. Radislav Krstic, 2004. Radislav Krstić was the Deputy
Commander and Chief-of -Staff of the Drina Corps within the Bosnian Serb
Army (“VRS”). In 1998, Krstić was indicted by the International Criminal Tri-
bunal for the former Yugoslavia (ICTY) in connection with the attacks led
by the Serb forces on the Muslim enclave of Srebrenica and its surroundings
from July 1995 onwards. On 2 August 2001, the Trial Chamber found Radislav
Krstić guilty of murder, persecutions and genocide. This was the first time that
the ICTY irrevocably established that genocide was committed in Srebrenica
Krstić became the first man convicted of genocide by the Tribunal and was
sentenced to 46 years in prison.
Pulp Mills on the River Uruguay (Uruguay v. Argentina), 2010. On
20 April 2010 the International Court of Justice (I.C.J.) in The Hague delivered
its judgment in the case of Pulp Mills on the River Uruguay (Argentina v. Uru-
guay). The dispute concerned the construction of a pulp mill by Uruguay on the
River Uruguay. Argentina had argued the Uruguayan pulp mills were pumping
dangerous waste into the mutual river on the border between the two countries.
Raihon Hudoyberganova v. Uzbekistan, Human Rights Commit-
tee,2004. The Committee held in favor of the author of the communication
is Raihon Hudoyberganova, an Uzbek national born in 1978. She claimed that
her right to freedom of of thought, conscience, and religion under the Interna-

PA R T I
tional Covenant on Civil and Political Rights was violated when her university
excluded her because she refused to remove the headscarf that she wore in
accordance with her religious beliefs.
Rainbow Warrior Case (New Zealand v. France), 1990. The case in-
volved a dispute between New Zealand and France that arose in the aftermath
of the sinking of the British-registered Greenpeace ship Rainbow Warrior. It
was arbitrated by UN Secretary-General Javier Pérez de Cuéllar in 1986, who
considered international law related to State responsibility.
The Government of the Republic of South Africa. v. Grootboom
and others, Constitutional Court of South Africa, 2000. The residents of
Wallacedene lived in severe poverty, without any basic services such as water,
sewage or refuse removal. The area was partly waterlogged and dangerously
close to a main thoroughfare. Many Wallacedene residents had long since placed
their names on a waiting list for low-income housing. As time wore on, a group
of about 900 people, including Irene Grootboom, began to move from Walla-
cedene onto adjacent, vacant, privately-owned land that had been ear-marked
for low-cost housing. The private landowner obtained an eviction order and the
sheriff was ordered to dismantle and remove any structures remaining on the
land. The evicted community, with nowhere to go, moved onto the Wallacedene
sports field and tried to erect temporary structures. With legal assistance, the
community formally notified the municipality of the situation and demanded
that the municipality meet its constitutional obligation to provide temporary
accommodation. The case was eventually brought before the highest constitu-
tional court in South Africa.
Sovereignty over Pulau Ligitan and Pulau Sipadan (Indonesia v. Ma-
laysia), 2001. The case concerned disputed sovereignty over two small islands
in the Celebes Sea off the coast of Borneo. It was initiated by a special agreement
between Indonesia and Malaysia of 30 September 1998. On 23 October 2001,
the I.C.J. denied (14 to 1) the application of the Philippines to intervene on failure
of the applicant to demonstrate an interest of a legal nature specific to the case.
Trial of General Tomoyuki Yamashita, U.S. Supreme Court, 1946.
From 29 October to 7 December 1945, an American military tribunal in Manila
tried General Yamashita for war crimes relating to the Manila Massacre and
many atrocities in the Philippines and Singapore against civilians and prison-
ers of war, such as the Sook Ching massacre, and sentenced him to death. This
case considered command responsibility for war crimes and is known as the
Yamashita Standard.
Yekaterina Pavlovna Lantsova v. Russia, Human Rights Committee,
2002. The author of the communication brought to the Human Rights Com-

TABLE OF CASES
mittee, Yekaterina Pavlovna Lantsova, was the mother of Vladimir Albertovich

Lantsov, deceased. Mrs. Lantsova claimed that her son was a victim of viola-
tions by Russia of article 6 (right to life) article 7 (prohibition of torture) and
article 10 (freedom from arbitrary arrest and humane treatment in detention,
due process of law) of the International Covenant on Civil and Political Rights.
Western Sahara, I.C.J. Advisory Opinion, 1975. The International
Court of Justice delivered an Advisory opinion on the legal issues related to
Western Sahara which had arisen from the international controversy surround-
ing the proposed Spanish decolonization of the phosphate-rich territory. Both
Morocco and Mauritania sought to incorporate the Western Sahara without
a referendum of the territory’s population. East state pressed its claim in the
United Nations, and on December 13, 1974, the General Assembly requested
an advisory opinion from the Court.
WTO Panel Report on United States-restrictions on imports of Tuna,
GATT Panel Report, 1994. In eastern tropical areas of the Pacific Ocean,
schools of yellowfin tuna often swim beneath schools of dolphins. When tuna
is harvested with purse seine nets, dolphins are trapped in the nets. They often
die unless they are released. The U.S. Marine Mammal Protection Act set dolphin
protection standards for the domestic American fishing fleet and for countries
whose fishing boats catch yellowfin tuna in that part of the Pacific Ocean. If a
country exporting tuna to the United States cannot prove to U.S. authorities that
it meets the U.S. dolphin protection standards the U.S. government must embargo
all imports of the fish from that country. In this dispute, Mexico’s exports of tuna
to the U.S. were banned. The Report concerns Mexico’s complaint against the
U.S. in 1991 under the GATT dispute settlement procedure.
Zhakhongir Maksudov, et. al v. Kyrgyzstan Human Rights Com-
mittee, 2006. The authors of the communications brought to the Human
Rights Committee, Zhakhongir Maksudov, Adil Rakhimov, Yakub Tashbaev
and Rasuldzhon Pirmatov, were Uzbek nationals born in 1975, 1974, 1956 and
1959, respectively. At the time of submission of their cases, all authors were
granted refugee status by the Office of the United Nations High Commissioner
for Refugees (UNHCR) and were detained in a detention centre (SIZO) of Osh,
Kyrgyzstan, awaiting removal to Uzbekistan and were eventually deported to
Uzbekistan. They claimed violations by Kyrgyzstan of their rights under article
6 (right to life), article 7 (prohibition of torture) article 9 (freedom from arrest
and arbitrary detention),and article 14 (right to fair trial and due process of
law)under the International Covenant on Civil and Political Rights.

PA R T I
PA R T I
CHAPTER 1
INTRODUCTION
In so far as international law is observed, it provides us with stability and

order and with a means of predicting the behavior of those with whom we have
reciprocal legal obligations.
J. William Fulbright
The Evolving Nature of International Law

International law has been referred to frequently as the ‘law of nations.’
Traditionally, international legal frameworks were established to regulate and
facilitate the relations among states, and more recently to promote peace and
security. These foundations of international law remain a constant in today’s
world, but the landscape is changing. Scholars share a common understanding
that the sources, even subjects, of international law are expanding as the world
becomes interlinked and ever more globalized, and as domestic relations affect
international relations. The actors most influencing trends in international
trade and investment priorities, economic development, and rules of equitable
governance and human freedoms are more often intergovernmental bodies and
non-state actors, such as businesses, trade associations, humanitarian and human
rights agencies, and other civil society organizations. These groups are direct
beneficiaries of the stable order provided by a world that adheres to international
legal standards. The implementation of such standards at the national level
contributes to strengthening the rule of law and equitable order in domestic af-
fairs, and to facilitating the exchange of goods, services, and ideas across borders.
The Constitution of the Kyrgyz Republic is one of the most progressive in
recognition and incorporation of international standards as a means of facili-
tating good governance, providing in Article 6(3):
International treaties to which the Kyrgyz Republic is a party
that have entered into force under the established legal procedure

CHAPTER 1 INTRODUCTION
and also the universally recognized principles and norms of

international law shall be the constituent part of the legal system
of the Kyrgyz Republic.
The provisions of international treaties on human rights shall
have direct action and be of priority in respect of provisions of
other international treaties.
The challenges countries face in addressing domestic level issues can affect
other countries of a region or the international community as a whole. The
recent financial crisis that emerged in the United States, Greece, and other
countries of Europe is but one example. As scholars have noted:
The changing nature of international legal rules today responds
to a new generation of worldwide problems. The most striking
feature of these problems is that they arise from within states
rather than from state actors themselves.1
As the issues society faces become more closely interlinked, global gover-
nance mechanisms and international law play an ever increasing role in do-
mestic life. Those engaged in navigating this ever changing terrain or seeking
to promote better international relations must continually keep current on the
evolution of law created by new multilateral treaties, global regulatory bodies,
and the jurisprudence of international tribunals. As experts, we never cease to
be students of this evolutionary process.
This book seeks to capture both the foundational principles on which our
international legal system depends, and normative frameworks representing
future legal trends. The cases and materials were selected to provide a distinct
focus on issues relevant to Kyrgyzstan and Central Asian countries. In this way,
the book can be a useful resource to support university teachers and students
in their studies related to international law, foreign affairs, business, and other
fields. It may also be a helpful guide for lawyers, policy makers, or others
working on global issues in Central Asia. It is anticipated that the resources and
materials will continue to be updated over time and made available on CD and
web formats for the benefit of all users.
1
Anne-Marie Slaughter & William Burke-White, “The Future of International Law is
Domestic (or, The European Way of Law),” 47 Harvard Int’l L. J. 327, (No. 2, Summer
2006).

PA R T I
Getting the most from this Resource Book

The book is divided into two major parts. Part I contains chapters on inter-
national legal principles related to the sources and subjects of international law.
These serve as the normative architecture for the development of global rules.
This part also includes chapters on territorial sovereignty, state responsibility
and dispute resolution, matters which have been the focus of legal discourse
among nations for the better part of the past hundred years and which have
helped shape the present context.
Part II comprises chapters on key emerging areas of substantive law--those
areas where governments are engaging in negotiation and where normative
standards are developing fairly rapidly. These relate to international rules on
the use of force, human rights and humanitarian crises, criminal responsibility,
environmental protection, and international trade and investment.
The book seeks to cover a broad area of jurisprudence but is not meant to
be a law textbook in the traditional sense. Rather, it is designed as a compila-
tion of necessary and useful materials that can supplement existing curriculum
and practice. As such, the book retains an objective viewpoint, presenting the
original texts or excerpts of scholarly articles, resolutions, declarations, and
treaties of the United Nations, decisions of international and regional tribunals,
and intergovernmental organization standards. It can be used by students and
practitioners alike in their pursuit of understanding modern international law
and existing international legal frameworks.


CHAPTER 2 SOURCES OF INTERNATIONAL PUBLIC LAW
CHAPTER 2
SOURCES OF INTERNATIONAL PUBLIC LAW
Statute of the International Court of Justice

Article 38
1. The Court, whose function is to decide in accordance with international
law such disputes as are submitted to it, shall apply:
a. international conventions, whether general or particular,
establishing rules expressly recognized by the contesting states;
b. international custom, as evidence of a general practice
accepted as law;
c. the general principles of law recognized by civilized nations;
d. subject to the provisions of Article 59, judicial decisions and
the teachings of the most highly qualified publicists of the
various nations, as subsidiary means for the determination of
rules of law.
Treaty Law
Maritime Delimitation and Territorial Questions (Qatar v.
Bahrain), 19942
***
22. The Parties agree that the exchanges of letters of December 1987
constitute an international agreement with binding force in their mutual
relations. Bahrain however maintains that the Minutes of 25 December 1990
were no more than a simple record of negotiations, similar in nature to the
Minutes of the Tripartite Committee; that accordingly they did not rank as
2
Maritime Delimitation and Territorial Questions between Qatar and Bahrain (Qatar
v. Bahrain), Merits, Judgment, I.C.J. Reports, 1994, p. 112.

PA R T I
an international agreement and could not; therefore, serve as a basis for the
jurisdiction of the Court.
23. The Court would observe, in the first place, that international agree-
ments may take a number of forms and be given a diversity of names. Article
2, paragraph (1) (a) of the Vienna Convention on the Law of Treaties of 23
May 1969 provides that for the purposes of that Convention,
“ ‘treaty’ means an international agreement concluded between States in
written form and governed by international law, whether embodied in a single
instrument or in two or more related instruments and whatever its particular
designation.”
Furthermore, as the Court said, in a case concerning a joint
communiqué, “it knows of no rule of international law which
might preclude a joint communiqu é from constituting an
international agreement to submit a dispute to arbitration or
judicial settlement” (Aegean Sea Continental Shelf; Judgment. I.C.J.
Reports 1978, p. 39, para. 96).
In order to ascertain whether an agreement of that kind has been con-
cluded, “the Court must have regard above al1 to its actual terms and to the
particular circumstances in which it was drawn up.” (ibid.)
Anglo-Iranian Oil Co. Case (United Kingdom v. Iran), 19523
***
[p.95] The Application referred to the Declarations by which the Govern-
ment of the United Kingdom and the Government of Iran accepted the com-
pulsory jurisdiction of the Court in accordance with Article 36, paragraph 2,
of the Court’s Statute….
[p. 102] On April 29th, 1933, an agreement was concluded between the
Imperial Government of Persia (now the Imperial Government of Iran, which
name the Court will use hereinafter) and the Anglo-Persian Oil Company, Lim-
ited (later the Anglo-Iranian Oil Company, Limited), a Company incorporated
in the United Kingdom. This agreement was ratified by the Iranian Majlis on
May 28th, 1933, and came into force on the following day after having received
the Imperial assent.
On March 15th and 20th, 1951, the Iranian Majlis and Senate, respectively,
3
Anglo Iranian Oil Co. Case (United Kingdom v. Iran), Preliminary Objection, Judg-
ment, I.C.J. Reports, 1952, p. 93.

passed a law enunciating the principle of nationalization of the oil industry in

Iran. On April 28th and 3oth, 1951, they passed another law “concerning the
procedure for enforcement of the law concerning the nationalization of the
oil industry throughout the country.” These two laws received the Imperial
assent on May 1st, 1951.
As a consequence of these laws, a dispute arose between the Government
of Iran and the Anglo-Iranian Oil Company, Limited. The Government of the
United Kingdom adopted the cause of this British Company and submitted,
in virtue of the right of diplomatic protection, an Application to the Court on
May 26th, 1951, instituting proceedings in the name of the Government of the
United Kingdom of Great Britain and Northern Ireland against the Imperial
Government of Iran….
[p. 111] The Court will now consider whether… or not the concession
contract of 1933 or the settlement of the dispute in that year constituted an
agreement between the Government of Iran and the Government of the United
Kingdom is a question relating to jurisdiction, the solution of which does not
depend upon a consideration of the merits. It can be and must be determined
at this stage, quite independently of the facts surrounding the act of national-
ization complained of by the United Kingdom….
The United Kingdom maintains that,… the Government of Iran undertook
certain treaty obligations towards the Government of the United Kingdom.
It endeavors to establish those obligations by contending that the agreement
signed by the Iranian Government with the Anglo-Persian Oil Company on
April 29th, 1933, has a double character, the character of being at once a
concessionary contract between the Iranian Government and the Company
and a treaty between the two Governments. It is further argued by the United
Kingdom that even if the settlement reached in 1933 only amounted to a tacit
or an implied agreement, it must be considered to be within the meaning of
the term “treaties or conventions” contained in the Iranian Declaration.
The Court cannot accept the view that the contract signed between the
Iranian Government and the Anglo-Persian Oil Company has a double char-
acter. It is nothing more than a concessionary contract between a government
and a foreign corporation. The United Kingdom Government is not a party to
the contract; there is no privity of contract between the Government of Iran
and the Government of the United Kingdom. Under the contract the Iranian
Government cannot claim from the United Kingdom Government any rights
which it may claim from the Company, nor can it be called upon to perform
towards the United Kingdom Government any obligations which it is bound
to perform towards the Company. The document bearing the signatures of

PA R T I
the representatives of the Iranian Government and the Company has a single
purpose: the purpose of regulating the relations between that Government and
the Company in regard to the concession. It does not regulate in any way the
relations between the two Governments.
This juridical situation is not altered by the fact that the concessionary con-
tract was negotiated and entered into through the good offices of the Council
of the League of Nations, acting through its Rapporteur. The United Kingdom,
in submitting its dispute with the Iranian Government to the League Council,
was only exercising its right of diplomatic protection in favour of one of its
nationals. It was seeking redress for what it believed to be a wrong which Iran
had committed against a juristic person of British nationality. The final report
by the Rapporteur to the Council on the successful conclusion of a new con-
cessionary contract between the Iranian Government and the Company gave
satisfaction to the United Kingdom Government. The efforts of the United King-
dom Government to give diplomatic protection to a British national had thus
borne fruit, and the matter came to an end with its removal from the agenda.
Throughout the proceedings before the Council, Iran did not make any en-
gagements to the United Kingdom other than to negotiate with the Company,
and that engagement was fully executed. Iran did not give any promise or make
any pledge of any kind to the United Kingdom in regard to the new concession.
The fact that the concessionary contract was reported to the Council and placed
in its records does not convert its terms into the terms of a treaty by which
the Iranian Government is bound vis-à-vis the United Kingdom Government.
International Customary Law

North Sea Continental Shelf Cases (Germany v. Denmark
and Netherlands), 19694
***
70. The Court must now proceed to the last stage in the argument put
forward on behalf of Denmark and the Netherlands. This is to the effect that
even if there was at the date of the Geneva Convention no rule of customary
international law in favour of the equidistance principle, and no such rule was
crystallized in Article 6 of the Convention, nevertheless such a rule has come
into being since the Convention, partly because of its own impact, partly on the
4
North Sea Continental Shelf Cases (Federal Republic of Germany/Denmark; Federal
Republic of Germany/Netherlands), Judgment, I.C.J. Reports, 1969, p. 3.

basis of subsequent State practice, - and that this rule, being now a rule of cus-
tomary international law binding on all States, including therefore the Federal
Republic, should be declared applicable to the delimitation of the boundaries
between the Parties’ respective continental shelf areas in the North Sea.
71. In so far as this contention is based on the view that Article 6 of the
Convention has had the influence, and has produced the effect, described, it
clearly involves treating that Article as a norm-creating provision which has
constituted the foundation of, or has generated a rule which, while only con-
ventional or contractual in its origin, has since passed into the general corpus
of international law, and is now accepted as such by the opinio juris, so as to
have become binding even for countries which have never, and do not, become
parties to the Convention. There is no doubt that this process is a perfectly
possible one and does from time to time occur: it constitutes indeed one of the
recognized methods by which new rules of customary international law may
be formed. At the same time this result is not lightly to be regarded as having
been attained.
72. It would in the first place be necessary that the provision concerned
should, at al1 events potentially, be of a fundamentally norm-creating char-
acter such as could be regarded as forming the basis of a general rule of law.
Considered in abstracto the equidistance principle might be said to fulfill this
requirement. Yet in the particular form in which it is embodied in Article 6 of
the Geneva Convention, and having regard to the relationship of that Article
to other provisions of the Convention, this must be open to some doubt. In
the first place, Article 6is so framed as to put second the obligation to make
use of the equidistance method, causing it to come after a primary obligation
to effect delimitation by agreement. Such a primary obligation constitutes an
unusual preface to what is claimed to be a potential general rule of law. With-
out attempting to enter into, still less pronounce upon any question of ,jus
cogens, it is well understood that, in practice, rules of international law can,
by agreement, be derogated from in particular cases, or as between particular
parties,-but this is not normally the subject of any express provision, as it is in
Article 6 of the Geneva Convention. Secondly the part played by the notion
of special circumstances relative to the principle of equidistance as embodied
in Article 6, and the very considerable, still unresolved controversies as to the
exact meaning and scope of this notion, must raise further doubts as to the
potentially norm-creating character of the rule. Finally, the faculty of making
reservations to Article 6, while it might not of itself prevent the equidistance
principle being eventually received as general law, does add considerably to
the difficulty of regarding this result as having been brought about (or being
potentially possible) on the basis of the Convention :for so long as this faculty

PA R T I
continues to exist, and is not the subject of any revision brought about in con-
sequence of a request made under Article 13 of the Convention-of which there
is at present no official indication-it is the Convention itself which would, for
the reasons already indicated, seem to deny to the provisions of Article 6 the
same norm-creating character as, for instance, Articles 1 and 2 possess.
73. With respect to the other elements usually regarded as necessary be-
fore a conventional rule can be considered to have become a general rule of
international law, it might be that, even without the passage of any consider-
able period of time, a very widespread and representative participation in the
convention might suffice of itself, provided it include that of States whose
interests were specially affected. In the present case however, the Court notes
that, even if allowance is made for the existence of a number of States to whom
participation in the Geneva Convention is not open, or which, by reason for
instance of being land-locked States, would have no interest in becoming par-
ties to it, the number of ratifications and accessions so far secured is, though
respectable, hardly sufficient. That non-ratification may sometimes be due to
factors other than active disapproval of the convention concerned can hardly
constitute basis on which positive acceptance of its principles can be implied:
the reasons are speculative, but the facts remain.
74. As regards the time element, the Court notes that it is over ten years
since the Convention was signed, but that it is even now less than five since
it came into force in June 1964, and that when the present proceedings were
brought it was less than three years, while less than one had elapsed at the
time when the respective negotiations between the Federal Republic and the
other two Parties for a complete delimitation broke down on the question of
the application of the equidistance principle. Although the passage of only a
short period of time is not necessarily, or of itself, a bar to the formation of a
new rule of customary international law on the basis of what bras originally a
purely conventional rule, an indispensable requirement would be that within
the period in question, short though it might be, State practice, including that
of States whose interests are specially affected, should have been both exten-
sive and virtually uniform in the sense of the provision invoked;- and should
moreover have occurred in such a way as to show a general recognition that
a rule of law or legal obligation is involved.
75. The Court must now consider whether State practice in the matter
of continental shelf delimitation has, subsequent to the Geneva Convention,
been of such a kind as to satisfy this requirement. Leaving aside cases which,
for various reasons, the Court does not consider to be reliable guides as prec-
edents, such as delimitations effected between the present Parties themselves,

or not relating to international boundaries, some fifteen cases have been cited
in the course of the present proceedings, occurring mostly since the signature
of the 1958 Geneva Convention, in which continental shelf boundaries have
been delimited according to the equidistance principle-in the majority of the
cases by agreement, in a few others unilaterally-or else the delimitation was
foreshadowed but has not yet been carried out. Amongst these fifteen are the
four North Sea delimitations United Kingdom/Norway-Denmark-Netherlands,
and Norway/Denmark already mentioned in paragraph 4 of this Judgment.
But even if these various cases constituted more than a very small proportion
of those potentially calling for delimitation in the world as a whole, the Court
would not think it necessary to enumerate or evaluate them separately, since
there are, a priori, several grounds which deprive them of weight as precedents
in the present context.
76. To begin with, over half the States concerned, whether acting unilater-
ally or conjointly, were or shortly became parties to the Geneva Convention,
and were therefore presumably, so far as they were concerned, acting actually
or potentially in the application of the Convention. From their action no in-
ference could legitimately be drawn as to the existence of a rule of customary
international law in favour of the equidistance principle. As regards those States,
on the other hand, which were not, and have not become parties to the Con-
vention, the basis of their action can only be problematical and must remain
entirely speculative. Clearly, they were not applying the Convention. But from
that no inference could justifiably be drawn that they believed themselves to be
applying a mandatory rule of customary international law. There is not a shred
of evidence that they did and, as has been seen (paragraphs 22 and 23), there
is no lack of other reasons for using the equidistance method, so that acting,
or agreeing to act in a certain way, does not of itself demonstrate anything of
a juridical nature.
77. The essential point in this connection-and it seems necessary to stress
it-is that even if these instances of action by non-parties to the Convention
were much more numerous than they in fact are, they would not, even in the
aggregate, suffice in themselves to constitute the opinion juries;-for, in order
to achieve this result, two conditions must be fulfilled. Not only must the acts
concerned amount to a settled practice, but they must also be such, or be car-
ried out in such a way, as to be evidence of a belief that this practice is rendered
obligatory by the existence of a rule of Law requiring it. The need for such a
belief, i.e. the existence of a subjective element, is implicit in the very notion
of the opinio juris sive necessitatis. The States concerned must therefore feel
that they are conforming to what amounts to a legal obligation. The frequency,
or even habitual character of the acts is not in itself enough. There are many

PA R T I
international acts, e.g., in the field of ceremonial and protocol, which are per-
formed almost invariably, but which are motivated only by considerations of
courtesy, convenience or tradition, and not by any sense of legal duty.
78. In this respect the Court follows the view adopted by the Permanent
Court of International Justice in the Lotus case, as stated in the following pas-
sage, the principle of which is, by analogy, applicable almost word for word,
mutatis mutandis, to the present case (P.C.I.J., Series A, No. 10, 1927, at p. 28):
“Even if the rarity of the judicial decisions to be found . . . were
sufficient to prove . . . the circumstance alleged . . ., it would merely
show that States had often, in practice, abstained from instituting
criminal proceedings, and not that they recognized themselves
as being obliged to do so; for only if such abstention were based
on their being conscious of having a duty to abstain would it be
possible to speak of an international custom. The alleged fact does
not allow one to infer that States have been conscious of having
such a duty on the other hand, . . .there are other circumstances
calculated to show that the contrary is true.”
Applying this dictum to the present case, the position is simply that in
certain cases-not a great number-the States concerned agreed to draw or did
draw the boundaries concerned according to the principle of equidistance.
There is no evidence that they so acted because they felt legally compelled to
draw them in this way by reason of a rule of customary law obliging them to
do so-especially considering that they might have been motivated by other
obvious factors.
Right of Passage over Indian Territory (Portugal v. India),

19605
***
[p. 39] For the purpose of determining whether Portugal has established the
right of passage claimed by it, the Court must have regard to what happened
during the British and post-British periods. During these periods, there had
developed between the Portuguese and the territorial sovereign with regard to
passage to the enclaves a practice upon which Portugal relies for the purpose
of establishing the right of passage claimed by it….
5
Case Concerning Right of Passage over Indian Territory (Portugal v. India), Merits,
Judgment, I.C.J. Reports 1960, p. 6.

[p. 40] The Court, therefore, concludes that, with regard to private per-
sons, civil officials and goods in general there existed during the British and
post-British periods a constant and uniform practice allowing free passage
between Daman and the enclaves. This practice having continued over a period
extending beyond a century and a quarter unaffected by the change of regime
in respect of the intervening territory which occurred when India became in-
dependent, the Court is, in view of all the circumstances of the case, satisfied
that that practice was accepted as law by the Parties and has given rise to a
right and a correlative obligation.
The Court therefore holds that Portugal had in 1954 a right of passage
over intervening Indian territory between coastal Daman and the enclaves and
between the enclaves, in respect of private persons, civil officials and goods in
general, to the extent necessary, as claimed by Portugal, for the exercise of its
sovereignty over the enclaves, and subject to the regulation and control of India.
As regards armed forces, armed police and arms and ammunition, the posi-
tion is different.
It appears that during the British period up to 1878 passage of armed forces
and armed police between British and Portuguese possessions was regulated on
a basis of reciprocity. No distinction appears to have been made in this respect
with regard to passage between Daman and the enclaves. There is nothing to
show that passage of armed forces and armed police between Daman and
the enclaves or between the enclaves was permitted or exercised as of right….
[p. 42] It would thus appear that, during the British and post-British periods,
Portuguese armed forces and armed police did not pass between Daman and
the enclaves as of right and that, after 1878, such passage could only take place
with previous authorization by the British and later by India, accorded either
under a reciprocal arrangement already agreed to, or in individual cases. Having
regard to the special circumstances of the case, this necessity for authorization
before passage could take place constitutes, in the view of the Court, a negation
of passage as of right. The practice predicates that the territorial sovereign had
the discretionary power to withdraw or to refuse permission. It is argued that
permission was always granted, but this does not, in the opinion of the Court,
affect the legal position. There is nothing in the record to show that grant of
permission was incumbent on the British or on India as an obligation….
[p.43] There was thus established a clear distinction between the practice
permitting free passage of private persons, civil officials and goods in general,
and the practice requiring previous authorization, as in the case of armed forces,
armed police, and arms and ammunition.

PA R T I
The Court is, therefore, of the view that no right of passage in favour of
Portugal involving a correlative obligation on India has been established in
respect of armed forces, armed police, and arms and ammunition. The course
of dealings established between the Portuguese and the British authorities with
respect to the passage of these categories excludes the existence of any such
right. The practice that was established shows that, with regard to these catego-
ries, it was well understood that passage could take place only by permission of
the British authorities. This situation continued during the post-British period.
Portugal also invokes general international custom, as well as the general
principles of law recognized by civilized nations, in support of its claim of a right
of passage as formulated by it. Having arrived at the conclusion that the course
of dealings between the British and Indian authorities on the one hand and the
Portuguese on the other established a practice, well understood between the
Parties, by virtue of which Portugal had acquired a right of passage in respect of
private persons, civil officials and goods in general, the Court does not consider
it necessary to examine whether general international custom or the general
principles of law recognized by civilized nations may lead to the same result.
As regards armed forces, armed police and arms and ammunition, the find-
ing of the Court that the practice established between the Parties required for
passage in respect of these categories the permission of the British or Indian
authorities, renders it unnecessary for the Court to determine whether or not,
in the absence of the practice that actually prevailed, general international
custom or the general principles of law recognized by civilized nations could
have been relied upon by Portugal in support of its claim to a right of passage
in respect of these categories.

Conflict, I.C.J. Advisory Opinion, 19966
***
21. The use of the word “permitted” in the question put by the General
Assembly was criticized before the Court by certain States on the ground that
this implied that the threat or the use of nuclear weapons would only be per-
missible if authorization could be found in a treaty provision or in customary
international law. Such a starting point, those States submitted, was incompat-
ible with the very basis of international law, which rests upon the principles
of sovereignty and consent; accordingly, and contrary to what was implied by
6
Legality of the Threat or Use of Nuclear Weapons in Armed Conflict, Advisory Opin-
ion, I.C.J. Reports 1996, p. 66.

use of the word “permitted,” States are free to threaten or use nuclear weap-
ons unless it can be shown that they are bound not to do so by reference to a
prohibition in either treaty law or customary international law. Support for this
contention was found in dicta of the Permanent Court of International Justice
in the “Lotus” case that “restrictions upon the independence of States cannot
. . . be presumed” and that international law leaves to States “a wide measure
of discretion which is only limited in certain cases by prohibitive rules” (P.C.I.J.,
Series A, No. 10, pp. 18 and 19). Reliance was also placed on the dictum of the
present Court in the case concerning Military and Paramilitary Activities in and
against Nicaragua (Nicaragua v. United States of America) that:
“in international law there are no rules, other than such rules
as may be accepted by the State concerned, by treaty or otherwise,
whereby the level of armaments of a sovereign State can be limited”
(I.C.J. Reports 1986, p. 135, para. 269).
For other States, the invocation of these dicta in the “Lotus” case was inap-
posite; their status in contemporary international law and applicability in the
very different circumstances of the present case were challenged.
It was also contended that the above-mentioned dictum of the present
Court was directed to the possession of armaments and was irrelevant to the
threat or use of nuclear weapons. Finally, it was suggested that, were the Court
to answer the question put by the Assembly, the word “permitted” should be
replaced by “prohibited.”
22. The Court notes that the nuclear-weapon States appearing before it
either accepted, or did not dispute, that their independence to act was indeed
restricted by the principles and rules of international law, more particularly
humanitarian law (see below, paragraph 86), as did the other States which took
part in the proceedings. Hence, the argument concerning the legal conclusions
to be drawn from the use of the word “permitted,” and the questions of burden
of proof to which it was said to give rise, are without particular significance for
the disposition of the issues before the Court….
52. The Court notes by way of introduction that international customary
and treaty law does not contain any specific prescription authorizing the threat
or use of nuclear weapons or any other weapon in general or in certain cir-
cumstances, in particular those of the exercise of legitimate self-defense. Nor,
however, is there any principle or rule of international law which would make
the legality of the threat or use of nuclear weapons or of any other weapons
dependent on a specific authorization. State practice shows that the illegality
of the use of certain weapons as such does not result from an absence of au-
thorization but, on the contrary, is formulated in terms of prohibition….

PA R T I
60. Those States that believe that recourse to nuclear weapons is illegal stress
that the conventions that include various rules providing for the limitation or
elimination of nuclear weapons in certain areas (such as the Antarctic Treaty of
1959 which prohibits the deployment of nuclear weapons in the Antarctic, or
the Treaty of Tlatelolco of 1967 which creates a nuclear-weapon-free zone in
Latin America) or the conventions that apply certain measures of control and
limitation to the existence of nuclear weapons (such as the 1963 Partial Test-
Ban Treaty or the Treaty on the Non-Proliferation of Nuclear Weapons)al 1 set
limits to the use of nuclear weapons. In their view, these treaties bear witness,
in their own way, to the emergence of a rule of complete legal prohibition of
al1 uses of nuclear weapons.
61. Those States who defend the position that recourse to nuclear weapons
is legal in certain circumstances see a logical contradiction in reaching such a
conclusion. According to them, those Treaties, such as the Treaty on the Non-
Proliferation of Nuclear Weapons, as well as Security Council resolutions 255
(1968) and 984 (1995) which take note of the security assurances given by
the nuclear-weapon States to the non nuclear-weapon States in relation to any
nuclear aggression against the latter, cannot be understood as prohibiting the
use of nuclear weapons, and such a claim is contrary to the very text of those
instruments. For those who support the legality in certain circumstances of
recourse to nuclear weapons, there is no absolute prohibition against the use
of such weapons. The very logic and construction of the Treaty on the Non-
Proliferation of Nuclear Weapons, they assert, confirm this. This Treaty, whereby,
they contend, the possession of nuclear weapons by the five nuclear-weapon
States has been accepted, cannot be seen as a treaty banning their use by those
States; to accept the fact that those States possess nuclear weapons is tanta-
mount to recognizing that such weapons may be used in certain circumstances.
Nor, they contend, could the security assurances given by the nuclear-weapon
States in 1968, and more recently in connection with the Review and Extension
Conference of the Parties to the Treaty on the Non-Proliferation of Nuclear
Weapons in 1995, have been conceived without its being supposed that there
were circumstances in which nuclear weapons could be used in a lawful man-
ner. For those who defend the legality of the use, in certain circumstances, of
nuclear weapons, the acceptance of those instruments by the different non-
nuclear-weapon States confirms and reinforces the evident logic upon which
those instruments are based.
62. The Court notes that the treaties dealing exclusively with acquisition,
manufacture, possession, deployment and testing of nuclear weapons, without
specifically addressing their threat or use, certainly point to an increasing con-
cern in the international community with these weapons; the Court concludes

from this that these treaties could therefore be seen as foreshadowing a future
general prohibition of the use of such weapons, but they do not constitute such
a prohibition by themselves. As to the treaties of Tlatelolco and Rarotonga and
their Protocols, and also the declarations made in connection with the indefi-
nite extension of the Treaty on the Non-Proliferation of Nuclear Weapons, it
emerges from these instruments that :
(a) a number of States have undertaken not to use nuclear
weapons in specific zones (Latin America; the South Pacific)
or against certain other States (non-nuclear-weapon States
which are parties to the Treaty on the Non-Proliferation of
Nuclear Weapons) ;
(b) nevertheless, even within this framework, the nuclear-weapon
States have reserved the right to use nuclear weapons in certain
circumstances; and
(c) these reservations met with no objection from the parties
to the Tlatelolco or Rarotonga Treaties or from the Security
Council.
63. These two treaties, the security assurances given in 1995 by the nuclear-
weapon States and the fact that the Security Council took note of them with
satisfaction, testify to a growing awareness of the need to liberate the com-
munity of States and the international public from the dangers resulting from
the existence of nuclear weapons. The Court more over notes the signing, even
more recently, on 15 December 1995, at Bangkok, of a Treaty on the Southeast
Asia Nuclear-Weapon-Free Zone, and on 11 April 1996, at Cairo, of a treaty on
the creation of a nuclear weapons-free zone in Africa. It does not, however, view
these elements as amounting to a comprehensive and universal conventional
prohibition on the use, or the threat of use, of those weapons as such.
64. The Court will now turn to an examination of customary international
law to determine whether a prohibition of the threat or use of nuclear weapons
as such flows from that source of law. As the Court has stated, the substance of
that law must be “looked for primarily in the actual practice and opinio juris
of States” (Continental Shelf (Libyan Arab Jarnahiriya/Malta), Judgment, I. C. J.
Reports 1985, p. 29, para. 27).
65. States which hold the view that the use of nuclear weapons is illegal have
endeavored to demonstrate the existence of a customary rule prohibiting this
use. They refer to a consistent practice of non-utilization of nuclear weapons
by States since 1945 and they would see in that practice the expression of an
opinio juris on the part of those who possess such weapons.

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66. Some other States, which assert the legality of the threat and use of
nuclear weapons in certain circumstances, invoked the doctrine and prac-
tice of deterrence in support of their argument. They recall that they have
always, in concert with certain other States, reserved the right to use those
weapons in the exercise of the right to self-defence against an armed attack
threatening their vital security interests. In their view, if nuclear weapons
have not been used since 1945, it is not on account of an existing or nascent
custom but merely because circumstances that might justify their use have
fortunately not arisen.
67. The Court does not intend to pronounce here upon the practice known
as the “policy of deterrence.” It notes that it is a fact that a number of States
adhered to that practice during the greater part of the Cold War and continue
to adhere to it. Furthermore, the members of the international community are
profoundly divided on the matter of whether non-recourse to nuclear weap-
ons over the past 50 years constitutes the expression of an opinio juris. Under
these circumstances the Court does not consider itself able to find that there
is such an opinio juris.
68. According to certain States, the important series of General Assembly
resolutions, beginning with resolution 1653 (XVI) of 24 November1961, that
deal with nuclear weapons and that affirm, with consistent regularity, the il-
legality of nuclear weapons, signify the existence of a rule of international
customary law which prohibits recourse to those weapons. According to other
States, however, the resolutions in question have no binding character on their
own account and are not declaratory of any customary rule of prohibition of
nuclear weapons; some of these States have also pointed out that this series
of resolutions not only did not meet with the approval of al1 of the nuclear-
weapon States but of many other States as well.
69. States which consider that the use of nuclear weapons is illegal indi-
cated that those resolutions did not claim to create any new rules, but were
confined to a confirmation of customary law relating to the prohibition of
means or methods of warfare which, by their use, overstepped the bounds of
what is permissible in the conduct of hostilities. In their view, the resolutions
in question did no more than apply to nuclear weapons the existing rules of
international law applicable in armed conflict; they were no more than the
“envelope” or instrumentum containing certain pre-existing customary rules
of international law. For those States it is accordingly of little importance that
the instrumentum should have occasioned negative votes, which cannot have
the effect of obliterating those customary rules which have been confirmed
by treaty law.

70. The Court notes that General Assembly resolutions, even if they are not
binding, may sometimes have normative value. They can, in certain circum-
stances, provide evidence important for establishing the existence of a rule or
the emergence of an opinio juris. To establish whether this is true of a given
General Assembly resolution, it is necessary to look at its content and the con-
ditions of its adoption; it is also necessary to see whether an opinio juris exists
as to its normative character. Or a series of resolutions may show the gradual
evolution of the opinio juris required for the establishment of a new rule.
71. Examined in their totality, the General Assembly resolutions put before
the Court declare that the use of nuclear weapons would be “a direct viola-
tion of the Charter of the United Nations”; and in certain formulations that
such use “should be prohibited.” The focus of these resolutions has sometimes
shifted to diverse related matters; however, several of the resolutions under
consideration in the present case have been adopted with substantial numbers
of negative votes and abstentions; thus, although those resolutions are a clear
sign of deep concern regarding the problem of nuclear weapons, they still fa11
short of establishing the existence of an opinio juris on the illegality of the use
of such weapons.
72. The Court further notes that the first of the resolutions of the General
Assembly expressly proclaiming the illegality of the use of nuclear weapons,
resolution 1653 (XVI) of 24 November 1961 (mentioned in subsequent resolu-
tions), after referring to certain international declarations and binding agree-
ments, from the Declaration of St. Petersburg of 1868 to the Geneva Protocol
of 1925, proceeded to qualify the legal nature of nuclear weapons, determine
their effects, and apply general rules of customary international law to nuclear
weapons in particular. That application by the General Assembly of general
rules of customary law to the particular case of nuclear weapons indicates that,
in its view, there was no specific rule of customary law which prohibited the
use of nuclear weapons; if such a rule had existed, the General Assembly could
simply have referred to it and would not have needed to undertake such an
exercise of legal qualification.
73. Having said this, the Court points out that the adoption each year by
the General Assembly, by a large majority, of resolutions recalling the content
of resolution 1653 (XVI), and requesting the member States to conclude a con-
vention prohibiting the use of nuclear weapons in any circumstance, reveals
the desire of a very large section of the international community to take, by a
specific and express prohibition of the use of nuclear weapons, a significant step
forward along the road to complete nuclear disarmament. The emergence, as
lex lata, of a customary rule specifically prohibiting the use of nuclear weapons

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as such is hampered by the continuing tensions between the nascent opinio

juris on the one hand, and the still strong adherence to the practice of deter-
rence on the other.
74. The Court not having found a conventional rule of general scope, nor a
customary rule specifically proscribing the threat or use of nuclear weapons per
se, it will now deal with the question whether recourse to nuclear weapons must
be considered as illegal in the light of the principles and rules of international
humanitarian law applicable in armed conflict and of the law of neutrality….
95. Nor can the Court make a determination on the validity of the view that
the recourse to nuclear weapons would be illegal in any circumstance owing
to their inherent and total incompatibility with the law applicable in armed
conflict. Certainly, as the Court has already indicated, the principles and rules
of law applicable in armed conflict –at the heart of which is the overriding
consideration of humanity – make the conduct of armed hostilities subject to
a number of strict requirements. Thus, methods and means of warfare, which
would preclude any distinction between civilian and military targets, or which
would result in unnecessary suffering to combatants, are prohibited. In view of
the unique characteristics of nuclear weapons, to which the Court has referred
above, the use of such weapons in fact seems scarcely reconcilable with respect
for such requirements. Nevertheless, the Court considers that it does not have
sufficient elements to enable it to conclude with certainty that the use of nuclear
weapons would necessarily be at variance with the principles and rules of law
applicable in armed conflict in any circumstance.
96. Furthermore, the Court cannot lose sight of the fundamental right of
every State to survival, and thus its right to resort to self-defence, in accordance
with Article 51 of the Charter when its survival is at stake. Nor can it ignore
the practice referred to as “policy of deterrence,” to which an appreciable sec-
tion of the international community adhered for many years. The Court also
notes the reservations which certain nuclear weapon States have appended to
the undertakings they have given, notably under the Protocols to the Treaties
of Tlatelolco and Rarotonga, and also under the declarations made by them
in connection with the extension of the Treaty on the Non-Proliferation of
Nuclear Weapons, not to resort to such weapons.
97. Accordingly, in view of the present state of international law viewed
as a whole, as examined above by the Court, and of the elements of fact at its
disposal, the Court is led to observe that it cannot reach a definitive conclusion
as to the legality or illegality of the use of nuclear weapons by a State in an ex-
treme circumstance of self-defence, in which its very survival would be at stake.

General Principles of Law

Prosecutor v. Drazen Erdemovic, International Criminal
Tribunal for the Former Yugoslavia, 19977
***
8. Between 13 July 1995 and approximately 22 July 1995, thousands of
Bosnian Muslim men were summarily executed by members of the Bosnian
Serb army and Bosnian Serb police….
12. On or about 16 July 1995, Drazen Erdemovic did shoot and kill and did
participate with other members of his unit and soldiers from another brigade
in the shooting and killing of unarmed Bosnian Muslim men at the Pilica col-
lective farm. These summary executions resulted in the deaths of hundreds of
Bosnian Muslim male civilians.... Drazen Erdemovic claims that he received
the order from Brano Gojkovic, commander of the operations at the Branjevo
farm at Pilica, to prepare himself along with seven members of his unit for a
mission the purpose of which they had absolutely no knowledge. He claimed it
was only when they arrived on-site that the members of the unit were informed
that they were to massacre hundreds of Muslims…. He declared that had he
not carried out the order, he is sure he would have been killed or that his wife
or child would have been directly threatened….
16. The Appeals Chamber has raised… preliminary questions to the parties
in a Scheduling Order dated 5 May 1997:
(1) In law, may duress afford a complete defence to a charge of crimes
against humanity and/or war crimes such that, if the defence is proved at trial,
the accused is entitled to an acquittal?...
19. For the reasons set out in the Joint Separate Opinion of Judge McDonald
and Judge Vohrah and in the Separate and Dissenting Opinion of Judge Li, the
majority of the Appeals Chamber finds that duress does not afford a complete
defence to a soldier charged with a crime against humanity and/or a war crime
involving the killing of innocent human beings….
32. As to the first preliminary question addressed to the parties in this
appeal, “[i]n law, may duress afford a complete defence to a charge of crimes
against humanity and/or war crimes such that, if the defence is proved at trial,
7
International Tribunal for the Prosecution of Persons Responsible for Serious Vio-
lations of International Humanitarian Law Committed in the Territory of Former
Yugoslavia since 1991 former Yugoslavia, October 7, 1997, (citations omitted).

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the accused in entitled to an acquittal?,” three factors bear upon this general
statement of the issue. Firstly, the particular war crime or crime against human-
ity committed by the Appellant involved the killing of innocent human beings.
Secondly, as will be shown in the ensuing discussion, there is a clear dichotomy
in the practice of the main legal systems of the world between those systems
which would allow duress to operate as a complete defence to crimes involving
the taking of innocent life, and those systems which would not. Thirdly, the Ap-
pellant in this case was a soldier of the Bosnian Serb army conducting combat
operations in the Republic of Bosnia and Herzogovina at the material time. As
such, the issue may be stated more specifically as follows: In law, may duress
afford a complete defence to a soldier charged with crimes against humanity
or war crimes where the soldier has killed innocent persons?...
56. It is appropriate now to inquire whether the “general principles of law
recognised by civilised nations,” established as a source of international law in
Article 38(1)(c) of the I.C.J. Statute, may shed some light upon this intricate
issue of duress. Paragraph 58 of the Report of the Secretary-General of the
United Nations presented on 3 May 1993 expressly directs the International
Tribunal to this source of law:
The International Tribunal itself will have to decide on various
personal defences which may relieve a person of individual
criminal responsibility, such as minimum age or mental incapacity,
drawing upon general principles of law recognised by all nations.
Further, Article 14 of the International Law Commission s Draft Code of
Crimes Against the Peace and Security of Mankind provides:
The competent court shall determine the admissibility of
defences in accordance with the general principles of law, in the
light of the character of each crime.
57. A number of considerations bear upon our analysis of the application
of “general principles of law recognised by civilised nations” as a source of
international law. First, although general principles of law are to be derived
from existing legal systems, in particular, national systems of law, it is gener-
ally accepted that the distillation of a “general principle of law recognised by
civilised nations” does not require the comprehensive survey of all legal systems
of the world as this would involve a practical impossibility and has never been
the practice of the International Court of Justice or other international tribu-
nals which have had recourse to Article 38(1)(c) of the I.C.J. Statute. Second,
it is the view of eminent jurists, including Baron Descamps, the President of
the Advisory Committee of Jurists on Article 38(1)(c), that one purpose of
this article is to avoid a situation of non-liquet, that is, where an international

tribunal is stranded by an absence of applicable legal rules. Third, a “general

principle” must not be confused with concrete manifestations of that principle
in specific rules. As stated by the Italian-Venezuelan Mixed Claims Commission
in the Gentini case:
A rule…is essentially practical and, moreover, binding; there
are rules of art as there are rules of government, while a principle
expresses a general truth, which guides our action, serves as a
theoretical basis for the various acts of our life, and the application
of which to reality produces a given consequence.
In light of these considerations, our approach will necessarily not involve a
direct comparison of the specific rules of each of the world’s legal systems, but
will instead involve a survey of those jurisdictions whose jurisprudence is, as a
practical matter, accessible to us in an effort to discern a general trend, policy
or principle underlying the concrete rules of that jurisdiction which comports
with the object and purpose of the establishment of the International Tribunal.
As Lord McNair pointed out in his Separate Opinion in the South-West
Africa Case,
[i]t is never a question of importing into international law
private law institutions “lock, stock and barrel,” ready made and
fully equipped with a set of rules. It is rather a question of finding
in the private law institutions indications of legal policy and
principles appropriate to the solution of the international problem
at hand. It is not the concrete manifestation of a principle in
different national systems - which are anyhow likely to vary - but
the general concept of law underlying them that the international
judge is entitled to apply under paragraph (c). (Emphasis added.)
It is thus generally the practice of international tribunals to employ the
general principle in its formulation of a legal rule applicable to the facts of the
particular case before it. This practice is most evident in the treatment of the
general principle of “good faith and equity” in cases before the International
Court of Justice and the Permanent Court of International Justice. For example
in the North Sea Continental Shelf Cases before the International Court of
Justice, the Court had regard to “equitable principles” in its formulation of
the rule delimiting the boundaries of continental shelves. In the Diversion of
Water from the Meuse Case (Netherlands v. Belgium) before the Permanent
Court of International Justice, Judge Hudson in his Individual Opinion, after
accepting that equity is a “general principle of law recognised by civilised
nations,” stated:

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It would seem to be an important principle of equity that where

two parties have assumed an identical or a reciprocal obligation,
one party which is engaged in a continuing non-performance of
that obligation should not be permitted to take advantage of a
similar non-performance of that obligation by the other party.
In the Chorzow Factory Case (Merits), the Permanent Court observed that
“it is a principle of international law, and even a general conception of law,
that any breach of an engagement involves an obligation to make reparation.”
58. In order to arrive at a general principle relating to duress, we have
undertaken a limited survey of the treatment of duress in the world’s legal sys-
tems. This survey is necessarily modest in its undertaking and is not a thorough
comparative analysis. Its purpose is to derive, to the extent possible, a “general
principle of law” as a source of international law….
It is clear from the differing positions of the principal legal systems of the
world that there is no consistent concrete rule which answers the question
whether or not duress is a defence to the killing of innocent persons. It is not
possible to reconcile the opposing positions and, indeed, we do not believe that
the issue should be reduced to a contest between common law and civil law.
59. The penal codes of civil law systems, with some exceptions, consistently
recognise duress as a complete defence to all crimes. The criminal codes of civil
law nations provide that an accused acting under duress “commits no crime” or
“is not criminally responsible” or “shall not be punished.” We would note that
some civil law systems distinguish between the notion of necessity and that
of duress. Necessity is taken to refer to situations of emergency arising from
natural forces. Duress, however, is taken to refer to compulsion by threats of
another human being. Where a civil law system makes this distinction, only
the provision relating to duress will be referred to.
(The Court considered both states of Civil and Common Law systems such
as:
(a) Civil Law systems: France, Belgium, The Netherlands, Spain, Germany,
Italy, Norway, Sweden, Finland, Venezuela, Nicaragua, Chile, Panama, Mexico,
Former Yugoslavia,)
(For instance,)...
Spain
In the Spanish Penal Code of 1995, Article 20 provides that the criminal
responsibility of an accused is removed where he is compelled to perform a
certain act by an overwhelming fear.

Germany
Section 35(1) of the German Penal Code of 1975 (amended as at 15 May
1987) provides:
If someone commits a wrongful act in order to avoid an
imminent, otherwise unavoidable danger to life, limb, or liberty,
whether to himself or to a dependant or someone closely
connected with him, the actor commits the act without culpability.
This is not the case if under the circumstances it can be fairly
expected of the actor that he suffer the risk; this might be fairly
expected of him if he caused the danger, or if he stands in a special
legal relationship to the danger. In the latter case, his punishment
may be mitigated in conformity with section 49(1).
(b) Common law systems: England, United States and Australia, Canada,
South Africa, India, Malaysia, Nigeria, Japan, China, Morocco, Somalia, Ethiopia.
(For instance,)...
England
60. In England, duress is a complete defence to all crimes except murder,
attempted murder and, it would appear, treason. Although there is no direct
authority on whether duress is available in respect of attempted murder, the
prevailing view is that there is no reason in logic, morality or law in granting
the defence to a charge of attempted murder whilst withholding it in respect
of a charge of murder.
United States and Australia
The English position that duress operates as a complete defence in respect
of crimes generally is followed in the United States and Australia with variations
in the federal state jurisdictions as to the precise definition of the defence and
the range of offences for which the defence is not available.…
63. In numerous national jurisdictions, certain offences are excepted from
the application of the defence of duress. Traditional common law rejects the de-
fence of duress in respect of murder and treason. Legislatures in many common
law jurisdictions, however, often prescribe a longer list of excepted offences.
64. Despite these offences being excluded from the operation of duress as
a defence, the practice of courts in these jurisdictions is nevertheless to miti-
gate the punishment of persons committing excepted offences unless there
is a mandatory penalty of death or life imprisonment prescribed for the of-
fence. In the United Kingdom, section 3(3)(a) of the Criminal Justice Act 1991

PA R T I
provides that a court “shall take into account all such information about the
circumstances of the offence (including any aggravating or mitigating factors)
as is available to it.”
Mitigating factors may relate to the seriousness of the offence, and in par-
ticular, may reflect the culpability of the offender. It is clearly established in
principle and practice that where an offender is close to having a defence to
criminal liability, this will tend to reduce the seriousness of the offence.
In R. v. Beaumont, the Court of Appeal reduced the offender s sentence
because he had been entrapped into committing the offence even though
entrapment is no defence in English law.
Similarly, in Australian sentencing jurisprudence and practice, the culpabil-
ity of the offender is taken into account in sentencing. Section 9(2)(d) of the
Penalties and Sentences Act 1992 (Qld) requires a court to take into account
“the extent to which the offender is to blame for the offence.” Section 5(2)
(d) of the Sentencing Act 1991 (Vic) refers to “the offender s culpability and
degree of responsibility for the offence.” In R. v. Okutgen, the Victorian Court
of Criminal Appeal held that provocation is a factor mitigating crimes of vio-
lence. In R. v. Evans, credence was given to the principle that a sentence should
reflect the degree of participation of an offender in an offence. The degree of
participation is taken to reflect the degree of the offender s culpability….
65. Courts in civil law jurisdictions may also mitigate an offender s punish-
ment on the ground of duress where the defence fails. In some systems, the
power to mitigate punishment on the ground of duress is expressly stated in
the provisions addressing duress. In other jurisdictions in which the criminal
law is embodied in a penal code, the power to mitigate may be found in general
provisions regarding mitigation of sentence.
66. Having regard to the above survey relating to the treatment of duress
in the various legal systems, it is, in our view, a general principle of law recog-
nized by civilized nations that an accused person is less blameworthy and less
deserving of the full punishment when he performs a certain prohibited act
under duress. We would use the term “duress” in this context to mean “immi-
nent threats to the life of an accused if he refuses to commit a crime” and do
not refer to the legal terms of art which have the equivalent meaning of the
English word “duress” in the languages of most civil law systems. This alleviation
of blameworthiness is manifest in the different rules with differing content in
the principal legal systems of the world as the above survey reveals. On the one
hand, a large number of jurisdictions recognize duress as a complete defence
absolving the accused from all criminal responsibility. On the other hand, in
other jurisdictions, duress does not afford a complete defense to offences

generally but serves merely as a factor which would mitigate the punishment
to be imposed on a convicted person. Mitigation is also relevant in two other
respects. Firstly, punishment may be mitigated in respect of offences which
have been specifically excepted from the operation of the defence of duress
by the legislatures of some jurisdictions. Secondly, courts have the power to
mitigate sentences where the strict elements of a defence of duress are not
made out on the facts.
It is only when national legislatures have prescribed a mandatory life sen-
tence or death penalty for particular offences that no consideration is given
in national legal systems to the general principle that a person who commits
a crime under duress is less blameworthy and less deserving of the full punish-
ment in respect of that particular offence.
67. The rules of the various legal systems of the world are, however, largely
inconsistent regarding the specific question whether duress affords a complete
defence to a combatant charged with a war crime or a crime against humanity
involving the killing of innocent persons. As the general provisions of the nu-
merous penal codes set out above show, the civil law systems in general would
theoretically allow duress as a complete defence to all crimes including murder
and unlawful killing. On the other hand, there are laws of other legal systems
which categorically reject duress as a defence to murder. Firstly, specific laws
relating to war crimes in Norway and Poland do not allow duress to operate as
a complete defence but permit it to be taken into account only in mitigation
of punishment. Secondly, the Ethiopian Penal Code of 1957 provides in Article
67 that only “absolute physical coercion” may constitute a complete defence
to crimes in general. Where the coercion is “moral,” which we would interpret
as referring to duress by threats, the accused is only entitled to a reduction of
penalty. This reduction of penalty may extend, where appropriate, even to a
complete discharge of the offender from punishment. Thirdly, the common
law systems throughout the world, with the exception of a small minority of
jurisdictions of the United States which have adopted without reservation Sec-
tion 2.09 of the United States Model Penal Code, reject duress as a defence to
the killing of innocent persons.
(a) The case-law of certain civil law jurisdictions
68. We would add that although the penal codes of most civil law juris-
dictions do not expressly except the operation of the defence of duress in
respect of offences involving the killing of innocent persons, the penal codes
of Italy, Norway, Sweden, Nicaragua, Japan, and the former Yugoslavia require
proportionality between the harm caused by the accused s act and the harm
with which the accused was threatened. The effect of this requirement is that

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it leaves for determination in the case law of these civil law jurisdictions the
question whether killing an innocent person is ever proportional to a threat
to the life of an accused. The determination of that question is not essential
to the disposal of this case and it suffices to say that courts in certain civil law
jurisdiction may well consistently reject duress as a defence to the killing of
innocent persons on the ground that the proportionality requirement in the
provisions governing duress is not met. For example, the case law of Norway
does not allow duress as a defence to murder. During the last months of World
War Two, three Norwegian policemen were forced to participate in the execu-
tion of a compatriot who was sentenced to death by a Nazi special court. After
the war, they were prosecuted under the Norwegian General Civil Penal Code
for treason (paragraph 86) and murder (paragraph 233) and pleaded duress
(paragraph 47) as a defence. It was urged upon the court that if they had re-
fused to follow the order, they would have been shot along with the person
who had been sentenced. Whilst accepting the version of the facts given by the
accused, the court nevertheless declined to call their act “lawful” and stated:
And when this is so, the Penal Code will not allow punishment
to be dispensed with merely because the accused acted under
duress, even where it was of such a serious nature as in the case at
bar, since according to the decision of the court of assize it must be
deemed clear that the force did not preclude intentional conduct
on the part of the accused.
In other words, the Norwegian court found that the proportionality re-
quired by paragraph 47 between the harm caused by the accused’s act and the
harm with which the accused were threatened, was not satisfied. Accordingly,
despite the general applicability to all crimes of paragraph 47 as set out in the
Code, it would appear that a Norwegian court when interpreting this general
provision will deny the defence to an accused person charged with murder
because paragraph 47 requires that the circumstances afford justification to
the accused in “regarding [the] danger as particularly significant in relation to
the damage that might be caused by his act.”
69. In addition, the provisions governing duress in the penal codes of Ger-
many and the former Yugoslavia suggest the possibility that soldiers in an armed
conflict may, in contrast to ordinary persons, be denied a complete defence
because of the special nature of their occupation. Section 35 (1) of the German
Penal Code provides that duress is no defence “if under the circumstances it
can be fairly expected of the actor that he suffer the risk; this might be fairly
expected of him if he stands in a special legal relationship to the danger. In the
latter case, his punishment may be mitigated in conformity with section 49(1).”

Article 10(4) of the Penal Code of the Socialist Federal Republic of Yugoslavia
provides that “[t]here is no extreme necessity where the perpetrator was under
an obligation to expose himself to the danger.”
(b) The principle behind the rejection of duress as a defence to murder in
the common law
70. Murder is invariably included in any list of offences excepted by legisla-
tion in common law systems from the operation of duress as a defence. The
English common law rule is that duress is no defence to murder, either for a
principal offender or a secondary party to the crime. The House of Lords in
R.v Howe and Others overruled the earlier decision of a differently constituted
House of Lords in Lynch v. DPP for Northern Ireland in which it was held that
duress could afford a defence to murder for a principal in the second degree.
Thus, R v. Howe restored the position of the English common law to the tra-
ditional position that duress is not available as a defence to murder generally.
There are two aspects to this position. The first is a firm rejection of the view
in English law that duress, generally, affects the voluntariness of the actus reus
or the mens rea. In R .v Howe, Lord Hailsham stated at page 777:
the second unacceptable view is that, possibly owing to a
misunderstanding which has been read into some judgements,
duress as a defence affects only the existence or absence of mens
rea. The true view is stated in Lynchs case [1975] 1 AC 653 at 703
by Lord Kilbrandon (of the minority) and by Lord Edmund-Davies
(of the majority) in their analysis. Lord Kilbrandon said:
“. . . the decision of the threatened man whose constancy is
overborne so that he yields to the threat, is a calculated decision to
do what he knows to be wrong, and therefore that of a man with,
perhaps to some exceptionally limited extent, a “guilty mind.” . . “
The speech of Lord Wilberforce in Lynch v. DPP for Northern Ireland points
out that
“an analogous result is achieved in a civil law context: duress
does not destroy the will, for example, to enter into a contract, but
prevents the law from accepting what has happened as a contract
valid in law.”
It is of interest to note that this view of duress is shared by the Italian Court
of Cassation in the Bernardi and Randazzo case where it stated that
[duress] leaves intact all the elements of criminal imputability.
The person at issue acts with a diminished freedom of determination,

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but acts voluntarily in order to escape an imminent and inevitable

serious danger to his body and limb.
71. Given that duress has been held at common law not to negate mens
rea, the availability of the defence turns on the question whether, in spite of the
elements of the offence being strictly made out, the conduct of the defendant
should be justified or excused. The second aspect of the common law stance
against permitting duress as a defence to murder is the assertion in law of a
moral absolute. This moral point has been pressed consistently in a long line
of authorities in English law and is accepted by courts in other common law
jurisdictions as the basis for the rejection of duress as a defence to murder.
Indeed, it is also upon this assertion which the decisions of the British military
tribunals in the Stalag Luft III case and the Feurstein case based their rejection
of duress as a defence to murder.
In Hales Pleas of the Crown, the author states:
. . . if a man be desperately assaulted, and in peril of death,
and cannot otherwise escape, unless to satisfy his assailant s fury
he will kill an innocent person then present, the fear and actual
force will not acquit him of the crime and punishment of murder,
if he commit the fact for he ought rather to die himself, than kill
an innocent. . . ..
Blackstone reasoned that a man under duress ought rather to die himself
than escape by the murder of an innocent…
Lord Griffiths in R. v. Howe, formulates the rationale thus:
It [the denial of duress as a defence to murder] is based upon
the special sanctity that the law attaches to human life and which
denies to a man the right to take an innocent life even at the price
of his own or another s life.
Lord Mackay of Clashfern in the same case said:
It seems to me plain that the reason that it was for so long
stated by writers of authority that the defence of duress was
not available in a charge of murder was because of the supreme
importance that the law afforded to the protection of human life
and that it seemed repugnant that the law should recognise in
any individual in any circumstances, however, extreme, the right
to choose that one innocent person should be killed rather than
another.

Lord Jauncey of Tullichettle stated his view in R v. Gotts:

The reason why duress has for so long been stated not to be
available as a defence to a murder charge is that the law regards the
sanctity of human life and the protection thereof as of paramount
importance ..... I would agree with Lord Griffiths (Reg. v. Howe
[1987] AC 417, 444A) that nothing should be done to undermine
in any way the highest duty of the law to protect the freedom and
lives of those that live under it...
(c) No consistent rule from the principal legal systems of the world
72. It is clear from the differing positions of the principal legal systems of
the world that there is no consistent concrete rule which answers the question
whether or not duress is a defence to the killing of innocent persons. It is not
possible to reconcile the opposing positions and, indeed, we do not believe that
the issue should be reduced to a contest between common law and civil law.
We would therefore approach this problem bearing in mind the specific
context in which the International Tribunal was established, the types of crimes
over which it has jurisdiction, and the fact that the International Tribunal s
mandate is expressed in the Statute as being in relation to “serious violations
of international humanitarian law.”
After the above survey of authorities in the different systems of law and ex-
ploration of the various policy considerations which we must bear in mind, we
take the view that duress cannot afford a complete defence to a soldier charged
with crimes against humanity or war crimes in international law involving
the taking of innocent lives. We do so having regard to our mandated obliga-
tion under the Statute to ensure that international humanitarian law, which is
concerned with the protection of humankind, is not in any way undermined.
In the result, we do not consider the plea of the Appellant was equivocal
as duress does not afford a complete defence in international law to a charge
of a crime against humanity or a war crime which involves the killing of in-
nocent human beings.

PA R T I
Secondary Sources of Law

Statute of the International Court of Justice, Article 38,
Section 1(d)
1. The Court, whose function is to decide in accordance with
international law such disputes as are submitted to it, shall apply:
[…]
d. judicial decisions and the teachings of the most highly qualified
publicists of the various nations, as subsidiary means for the
determination of rules of law.
The S.S. “Lotus” Case (France v. Turkey), 19278
***
[p. 23] …it is certain that the courts of many countries, even of countries
which have given their criminal legislation a strictly territorial character, in-
terpret criminal law in the sense that offences, the authors of which at the
moment of commission are in the territory of another State, are nevertheless
to be regarded as having been committed in the national territory, if one of
the constituent elements of the offence, and more especially its effects, have
taken place there. French courts have, in regard to a variety of situations, given
decisions sanctioning this way of interpreting the territorial principle. Again,
the Court does not know of any cases in which governments have protested
against the fact that the criminal law of some country contained a rule to
this effect or that the courts of a country construed their criminal law in this
sense. Consequently, once it is admitted that the effects of the offence were
produced on the Turkish vessel, it becomes impossible to hold that there is a
rule of international law which prohibits Turkey from prosecuting Lieutenant
Demons because of the fact that the author of the offence was on board the
French ship….
[p. 26] In the first place, as regards teachings of publicists, and apart from
the question as to what their value may be from the point of view of estab-
lishing the existence of a rule of customary law, it is no doubt true that al1 or
nearly al1 writers teach that ships on the high seas are subject exclusively to
the jurisdiction of the State whose flag they fly. But the important point is the
significance attached by them to this principle; now it does not appear that in
8
The Case of the S.S. “Lotus” (France v. Turkey), Permanent Court of International
Justice (P.C.I.J.), Series A No. 70, 7 September 1927.

general, writers bestow upon this principle a scope differing from or wider than
that explained above and which is equivalent to saying that the jurisdiction of
a State over vessels on the high seas is the same in extent as its jurisdiction in
its own territory. On the other hand, there is no lack of writers who, upon a
close study of the special question whether a State can prosecute for offences
committed on board a foreign ship on the high seas, definitely come to the
conclusion that such offences must be regarded as if they had been commit-
ted in the territory of the State whose flag the ship flies, and that consequently
the general rules of each legal system in regard to offences committed abroad
are applicable….
On the other hand, there is no lack of cases in which a State has claimed
a right to prosecute for an offence, committed on board a foreign ship, which
it regarded as punishable under its legislation. Thus Great Britain refused the
request of the United States for the extradition of John Anderson, a British
seaman who had committed homicide on board an American vessel, stating
that she did not dispute the jurisdiction of the United States but that she was
entitled to exercise hers concurrently. This case, to which others might be added,
is relevant in spite of Anderson’s British nationality, in order to show that the
principle of the exclusive jurisdiction of the country whose flag the vessel flies
is not universally accepted.
The cases in which the exclusive jurisdiction of the State whose flag was
flown has been recognized would seem rather to have been cases in which the
foreign State was interested only by reason of the nationality of the victim, and
in which, according to the legislation of that State itself or the practice of its
courts, that ground was not regarded as sufficient to authorize prosecution for
an offence committed abroad by a foreigner.
Military and Paramilitary Activities in and against

Nicaragua (Nicaragua v. United States), 19869
***
188. The Court thus finds that both Parties take the view that the principles
as to the use of force incorporated in the United Nations Charter correspond,
in essentials, to those found in customary international law. The Parties thus
both take the view that the fundamental principle in this area is expressed in
the terms employed in Article 2, paragraph 4, of the United Nations Charter.
They therefore accept a treaty-law obligation to refrain in their international
9
Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United
States of America), Merits, Judgment, I.C.J. Reports 1986, p. 14.

PA R T I
relations from the threat or use of force against the territorial integrity or po-
litical independence of any State, or in any other manner inconsistent with
the purposes of the United Nations. The Court has however to be satisfied that
there exists in customary international law an opinio juris as to the binding
character of such abstention. This opinio juris may, though with al1 due cau-
tion, be deduced from, inter alia, the attitude of the Parties and the attitude of
States towards certain General Assembly resolutions, and particularly resolution
2625 (XXV) entitled “Declaration on Principles of International Law concern-
ing Friendly Relations and Co-operation among States in accordance with the
Charter of the United Nations.” The effect of consent to the text of such resolu-
tions cannot be understood as merely that of a “reiteration or elucidation” of
the treaty commitment undertaken in the Charter. On the contrary, it may be
understood as an acceptance of the validity of the rule or set of rules declared
by the resolution by themselves. The principle of non-use of force, for example,
may thus be regarded as a principle of customary international law, not as such
conditioned by provisions relating to collective security, or to the facilities or
armed contingents to be provided under Article 43 of the Charter. It would
therefore seem apparent that the attitude referred to expresses an opinio juris
respecting such rule (or set of rules), to be thenceforth treated separately from
the provisions, especially those of an institutional kind, to which it is subject
on the treaty-law plane of the Charter.
Jus Cogens Norms

Military and Paramilitary Activities in and Against
***
190. A further confirmation of the validity as customary international law
of the principle of the prohibition of the use of force expressed in Article 2,
paragraph 4, of the Charter of the United Nations may be found in the fact
that it is frequently referred to in statements by State representatives as being
not only a principle of customary international law but also a fundamental or
cardinal principle of such law. The International Law Commission, in the course
of its work on the codification of the law of treaties, expressed the view that
‘the law of the Charter concerning the prohibition of the use of force in itself
constitutes a conspicuous example of a rule in international law having the
character of jus cogens’ (paragraph (1) of the commentary of the Commission
10
Ibid.

to Article 50 of its draft Articles on the Law of Treaties, ILC Yearbook, 1966-II,
p. 247). Nicaragua in its Memorial on the Merits submitted in the present case
states that the principle prohibiting the use of force embodied in Article 2,
paragraph 4, of the Charter of the United Nations ‘has come to be recognized
as jus cogens’. The United States, in its Counter-Memorial on the questions of
jurisdiction and admissibility, found it material to quote the views of scholars
that this principle is a ‘universal norm’, a ‘universal international law’, a ‘univer-
sally recognized principle of international law’, and a ‘principle of jus cogens’.
Kamrul Hossain, Jus Cogens and Obligations Under the

U.N. Charter11
Recognition of Jus Cogens in International Law
During the early nineteenth century, recognition of jus cogens was estab-
lished. Professor Oppenheim stated that there existed a number of “universally
recognized principles” of international law that rendered any conflicting treaty
void, and therefore, the peremptory effect of such principles was itself a “unani-
mously recognized customary rule of International Law.” For example, he stated
that a treaty supporting piracy is void for being contrary to the “universally recog-
nized principles” of international law. Moreover, the concept of jus cogens twice
found favor cannot contract out. See [1963] 2 Y.B. Int’l L. Comm’n 52, U.N. Doc. A/
CN.4/Ser.A/1963. in a judicial context, first, in the decision of the French-Mexican
Claims Commission in the 1928 Pablo Nájera Case, and later by Judge Schücking
of the Permanent Court of International Justice in the 1934 Oscar Chinn Case
[1934] PCIJ 2 (12 December 1934). Subsequent to this 1934 case, judges of the
International Court of Justice made similar references to jus cogens in a number
of separate and dissenting opinions. For example, in a 1993 Bosnian case, Judge
Lauterpacht expressed his opinion on the possibility that the Security Council
had violated the genocide prohibition and therewith alleged jus cogens when
imposing an arms embargo on both Serbia and Bosnia. In 1991, Resolution 713
of the Security Council imposed arms embargo. While this resolution disregarded
the state’s inherent right of self-defense, the Security Council had been unable
to take measures necessary to maintain peace and security in Bosnia. The con-
sequences led to ethnic cleansing, genocide and large-scale human sufferings.
Therefore, the argument of alleged violation of jus cogens has some potential
weight. Furthermore, the Vienna Convention on the Law of Treaties has given
the recognition of the norms of jus cogens in Article 53, where it states:
11
Santa Clara Journal of International Law 72, at 74-85 (2005). [Citations omitted]
[Reprinted with permission of the Journal]

PA R T I
A treaty is void, if, at the time of its conclusion, it conflicts with a peremp-
tory norm of general international law. For the purpose of the present conven-
tion, a peremptory norm of general international law is a norm accepted and
recognized by the international community of states as a whole, as a norm
from which no derogation is permitted and which can be modified only by a
subsequent norm of general international law having the same character. That
means a treaty is no longer an international legal document, if, at the time of
its conclusion, it conflicts with the norms of jus cogens, which are peremptory
in nature. This article sets up the four criteria for a norm to be determined as
jus cogens, specifically: (1) status as a norm of general international law; (2)
acceptance by the international community of states as a whole; (3) immunity
from derogation; and (4) modifiable only by a new norm having the same
status. On the other hand, Finnish scholar Lauri Hannikainen demonstrated
that if a norm of general international law protects an overriding interest or
value of the international community, and if any derogation would seriously
jeopardize that interest or value, then the peremptory character of the norm
may be presumed if the application of the criteria of peremptory norms pro-
duces no noteworthy negative evidence. Recognition of the rules of jus cogens
was again confirmed in 1986 at the Vienna Convention on the Law of Treaties
between States and International Organizations or Between International Or-
ganizations. The importance of the rules of jus cogens was confirmed by the
trend to apply it beyond the law of the treaties, in particular, in the law of state
responsibility. Specifically, the International Law Commission (ILC) proposed
the notion of international crimes resulting from the breach by a state of an
international obligation “essential for the protection of fundamental interests
of the international community,” which is, in fact, closely linked to the doctrine
of international jus cogens. In the Nicaragua Case, the International Court of
Justice clearly affirmed jus cogens as an accepted doctrine in international law.
The I.C.J. relied on the prohibition on the use of force as being “a conspicu-
ous example of a rule of international law having the character of jus cogens.”
Status of the Norm in International Law
A peremptory norm may, it would appear, be derived from a custom or a
treaty, but not, it is submitted, from any other source. This statement is, however,
self-contradictory. Indeed, there are serious problems associated with the asser-
tions that a norm of jus cogens could be the result of the natural law, or, one
or any of the traditional primary sources of international law, namely, treaties,
customs or general principles of laws. According to Professor Michael Byers
of the Duke University Law School, treaties can, at best, only be contributing
factors in the development of jus cogens rules for two reasons. First, a treaty
cannot bind its parties’ abilities to modify the treaty terms nor to relieve the

party’s obligations under it, such as through a subsequent treaty to which all
the same parties have consented. Second, all generally accepted jus cogens rules
apply universally yet none of the treaties, which have codified these rules, have
been universally ratified. No treaty, not even the Charter of the Charter of the
United Nations, can establish a rule of general international law. Treaties can
only create obligations between their parties.
As for the assertion that jus cogens rules to be considered as customary
international law, more ambiguity exists. Customs are binding only in the case
of an established opinio juris wherein a state believes to be bound by a said
practice due to its creation from customary rule.
However, persistent objection of any customary principle creates an ex-
ception to have the binding nature of such rules. There are also other ways to
supersede customary rules, such as through the development of rules of spe-
cial customary international law and the conclusion of treaties. On the other
hand, in case of the rules of jus cogens, these rules are binding regardless of the
consent of the parties concerned and regardless of the states’ own individual
opinion to be bound since these rules are too fundamental for states to escape
responsibility. Modification of the rules of jus cogens is only possible when a
new peremptory norm of equal weight emerges.
As for the binding character of jus cogens, acceptance by the large major-
ity of states of such norm would amount to universal legal obligation for the
international community as a whole. These are superior rules and bear the
common values for the international community as a whole. Michael Byers,
however, tends to show that jus cogens rules are derived from the “process of
customary international law,” which is itself a part of international constitu-
tional order. He argues that opinio juris (or something resembling opinio juris)
appears to be at the root of the non-detractable character of jus cogens rules,
because states simply do not believe that it is possible to contract out of jus
cogens rules or to persistently object to them. States regard these rules as be-
ing so important to the international society of states and to how that society
defines itself, such that they cannot conceive of an exception. Article 53 of the
Vienna Convention, however, contains no reference to any element of practice.
One could then hardly conceive jus cogens as a strengthened form of custom.
David Kennedy termed jus cogens as super-customary norm.
In fact, two views predominate regarding the foundation of the concept
of jus cogens, the first, as directly originating from international law, or the
second, as being based on the one of the existing sources of international law.
However, some argue and accept that a jus cogens recognizes a wholly new
source of law capable of generally binding rules.

PA R T I
This idea was developed during the Vienna Conference on the Law of the
Treaties at which jus cogens was interpreted to indicate that a majority could
bring into existence peremptory norms which could bind the international com-
munity of states as a whole, regardless of the individual consent of the states.
Thus, the result is a new source of law founded on the basis that a community
as a whole may create rules that will bind all its members, notwithstanding their
possible individual dissent. Others argue that the existing sources have been
modified to allow majority rulemaking in the context of higher law. However,
the negotiating history of the Vienna Convention does not support the view
that the notion of jus cogens emerges as a new source of general international
law. Rather, there was a clear tendency to view jus cogens as the product of the
existing sources. For example, France argued that if the draft article on jus cogens
was interpreted to mean that a majority could bring into existence peremptory
norms that would be valid erga omnes, then the result created an international
source of law. France objected to such a possibility on the ground that such a
new source of law would be subject to no “control and lacking all responsibility.”
Moreover, complexity remains in the interpretation of Article 53, regarding the
phrase: “acceptance and recognized by the international community of States
as a whole.” M.K. Yasseen, the former Chairman of the Drafting Committee of
the Vienna conference on the Law of Treaties, states that [T]here is no question
of requiring a rule to be accepted and recognized as peremptory by all States. It
would be enough if a very large majority did so; that would mean that, if one state
in isolation refused to accept the peremptory character of a rule, or if that state
was supported by a very small number of states, the acceptance and recognition of
the peremptory character of the rule by the international community as a whole
would not be affected. Yasseen further stated that no individual state should have
the right of veto. Additionally, in the ILC commentary to the Article 19 of the
Draft Articles on State Responsibility, it explained the meaning of “as a whole”
within the context of requiring international recognition of international crimes:
[T]his certainly does not mean the requirement of unanimous recognition by
all the members of the community, which would give each state an inconceivable
right of veto. What it is intended to ensure is that a given international wrongful
act shall be recognized as an “international crime,” not only by some particular
group of states, even if it constitutes a majority, but by all the essential compo-
nents of the international community. This means that “a very large majority”
will not necessarily be able to impose its will on “a very small minority” if that
“small minority” represents a significant element of the international community.
The same view was expressed at the Vienna Conference by the representative
of the United States, namely, that the recognition of the peremptory character
of a norm “would require, at a minimum, absence of dissent by any important

element of the international community.” The representative of Australia stressed

that “rules could only be regarded as having the status of jus cogens if there was
the substantial concurrence of states belonging to all principal legal systems.”
Debate continues, not concerning the existence of the notion of jus cogens,
but on two other issues. The first one concerns the status of jus cogens either as
a new source of international law or as part of other existing sources of interna-
tional law. The second one concerns the process of law-making under the norm
of jus cogens. While there is realistically no special source for creating constitu-
tional or fundamental principles in the present international legal order, we all
know that international law itself is under the constant process of development
— “development towards greater coherence.” The existence of the concept of jus
cogens was, nonetheless, not denied by the states at the Vienna Conference on
the Law of Treaties. Rather, it was argued that the essence of the concept is that it
must affect all states without exception. Indeed, states at the Vienna Convention
reached an agreement on a constitutional principle that the peremptory norms
bound all members of the international community, notwithstanding their pos-
sible dissent. It was also argued that the principal criterion of peremptory rules
was considered to be the fact that they serve the interest of the international
community, not the needs of individual states. However, some counter with the
domestic law analogy — good customs, morals and public policies were applied
in specific cases without insoluble difficulties even though these items were not
necessarily defined in municipal law. Moreover, since the adoption of the Vienna
Convention on Law of the Treaties, the norm of jus cogens has gained a wide
support among the commentators and writers. Therefore, it could be argued that
the objecting states are bound by the concept so far as Article 53 of the Vienna
Convention is declaratory of an already existing international law concerning
jus cogens. In fact, the principle of consent is a further structural principle of
international law, distinct from jus cogens.
Uncertainty on the contents of Jus Cogens
Problems remain as to the application of the norm, in terms of which rules
must necessarily be covered under the said norms. There was serious doubt
concerning the fact that the norm could be misused in interpreting the rules to
be covered under jus cogens. Over-inclusiveness or under-inclusiveness of the
facts might come into being. For example, during the negotiating process of the
United Nations Convention on the Law of the Sea (UNCLOS), the common focus
of the developing countries was to ensure that they represented the interests of
all mankind since they constituted the majority. However, a very small number of
Western states opposed the majority’s proposals, particularly those regarding the
legal status of the seabed. Consequently, developing countries turned to the notion

PA R T I
of jus cogens. They claimed that the principles of common heritage of mankind, as
proclaimed by the 1970 United Nations General Assembly resolution on the seabed,
were principles of jus cogens. This argument was clearly rejected by the minority
of western states. Nonetheless, the majority, led by the Group of 77, continued to
rely on the notion of jus cogens in order to impose specific normative solutions
regarding the seabed. The Group of 77 asserted that since the common heritage
of mankind is a customary rule which has the force of peremptory norm, then it
would follow that the unilateral legislation and limited agreements were illegal
and were, therefore, violations of this principle. Another example could be found
concerning the legal nature of the principle of permanent sovereignty over natural
resources proclaimed in a number of the U.N. General Assembly resolutions. This
issue was raised at the Vienna Conference on Succession of States in Respect of
State Property, Archives and Debts. The Draft Convention on Succession of States
contained a rule requiring that agreements concluded between a predecessor
state and a newly independent state concerning succession to state property of
the predecessor state not “infringe the principle of the permanent sovereignty of
every people over its wealth and natural resources.” In its commentary to a draft
article containing this rule, the ILC noted that some of the members of the Commis-
sion expressed the view that agreements violating the principle of the permanent
sovereignty should be void ab initio. Relying on this commentary, the developing
states claimed that the principle of permanent sovereignty over wealth and natural
resources was a principle of jus cogens. The conference was also used to impart the
jus cogens character to other broad principles, including the right of the peoples
to development, to information about their history, and to their cultural heritage.
The idea of invoking some of the General Assembly Resolutions in terms of the
norm of jus cogens, with a plea that resolutions achieve support from the large
majority of states, was criticized by the Western states that resolutions adopted at
the General Assembly are only recommendatory. These do not have any binding
force. Therefore, while a very large majority of states support lawmaking under the
concept of jus cogens at the session in General Assembly, it could hardly be pos-
sible, unless the other significant elements of international community, namely the
western states, agreed to do so. Nonetheless, three categories of jus cogens found
genuine support, as suggested by the German scholar Ulrich Scheuner:
(1) the rules protecting the foundations of international order, (i.e., the
prohibition of genocide or of the use of force in international relations except
in self-defence),
(2) the rule concerning peaceful cooperation in the protection of common
interests (i.e., freedom of the seas) and the rules protecting the most funda-
mental and basic human rights, and
(3) rules for the protection of the civilians in time of war.

CHAPTER 3 SUBJECTS OF INTERNATIONAL LAW
CHAPTER 3
SUBJECTS OF INTERNATIONAL LAW
Overview
Brownlie, “Subjects of International Law”12
1. INTRODUCTION.
A subject of the law is an entity capable of possessing international rights
and duties and having the capacity to maintain its rights by bringing interna-
tional claims.13 This definition, though conventional, is unfortunately circular
since the indicia referred to depend on the existence of a legal person. All that
can be said is that an entity of a type recognized by customary law as capable
of possessing rights and duties and of bringing international claims, and having
these capacities conferred upon it, is a legal person. If the first condition is not
satisfied, the entity concerned may still have legal personality of a very restricted
kind, dependent on the agreement or acquiescence of recognized legal persons
and opposable on the international plane only to those agreeing or acquiescent.
The principal formal contexts in which the question of personality has arisen
have been: capacity to make claims in respect of breaches of international law,
capacity to make treaties and agreements valid on the international plane, and
the enjoyment of privileges and immunities from national jurisdictions. States
have these capacities and immunities, and indeed the incidents of statehood as
developed under the customary law have provided the indicia for, and instru-
ments of personality in, other entities. Apart from states, organizations may have
these capacities and immunities if certain conditions are satisfied. The first of
the capacities set out above, for organizations of a certain type, was established
by the Advisory Opinion in the Reparation for Injuries case. The first Waldock
Report prepared for the International Law Commission on the law of treaties
recognized the capacity of international organizations to become parties to
international agreements, and this recognition reflected the existing practice
12
Ian Brownlie, Principles of Public International Law, 7th ed. (Oxford: Oxford Univer-
sity Press, 2008), 57-67. [Excerpt reprinted with kind permission of Oxford University
Press. Some citations omitted.]
13
Reparation for Injuries case, I.C.J. Reports (1949), 179.

PA R T I
between organisations and also between states and organizations. Finally, while
an organization probably cannot claim privileges and immunities like those
of a sovereign state as of right, it can claim to be a suitable candidate for the
conferment of like privileges and immunities.
It is states and organizations (if appropriate conditions exist) which rep-
resent the normal types of legal person on the international plane. However,
as will become apparent in due course, the realities of international relations
are not reducible to a simple formula and the picture is somewhat complex.
The ‘normal types’ have congeners which create problems, and various enti-
ties, including non-self-governing peoples and the individual, have a certain
personality. Moreover, abstraction of types of acceptable persons at law falls
short of the truth, since recognition and acquiescence may sustain an entity
which is anomalous, and yet has a web of legal relations on the international
plane. But in spite of the complexities, it is as well to remember the primacy
of states as subjects of the law. As Professor Friedmann observes:14
“The basic reason for this position is, of course, that ‘the world
is to-day organized on the basis of the co-existence of States, and
that fundamental changes will take place only through State action,
whether affirmative or negative. The States are the repositories of
legitimated authority over peoples and territories. It is only in terms
of State powers, prerogatives, jurisdictional limits and law-making
capabilities that territorial limits and jurisdiction, responsibility
for official actions, and a host of other questions of co-existence
between nations can be determined…This basic primacy of the State
as a subject of international relations and law would be substantially
affected, and eventually superseded, only if national entities, as
political and legal systems, were absorbed in a world state.”
2. ESTABLISHED LEGAL PERSONS
(a) States
This category, the most important, has its own problems. The existence
of ‘dependent’ states with certain qualified and delegated legal capacities
complicates the picture, but, providing the conditions for statehood exist, the
‘dependent’ state retains its personality. The position of members of federal
unions is interesting. In the constitutions of Switzerland and the German Federal
Republic component states are permitted to exercise certain of the capacities
of independent states, including the power to make treaties. In the normal case,
such capacities are probably exercised as agents for the union, even if the acts
14
The Changing Structure of International Law (1964), 213.

concerned are done in the name of the component state. However, where the
union originated as a union of independent states, the internal relations retain
an international element, and the union may act as agent for the states.15 The
United States constitution enables the states of the Union to enter into agree-
ments with other states of the Union or with foreign states with the consent of
Congress. In Canada the federal government has the exclusive power to make
treaties with foreign states.
(b) Political entities legally proximate to states
Political settlements both in multilateral and bilateral treaties have from time
to time produced political entities, such as the former Free City of Danzig, which,
possessing a certain autonomy, fixed territory and population, and some legal
capacities on the international plane, are rather like states. Politically such enti-
ties are not sovereign states in the normal sense, yet legally the distinction is not
very significant. The treaty origin of the entity and the existence of some form of
protection by an international organization—the League of Nations in the case of
Danzig—matter little if, in the result, the entity has autonomy and a nucleus of the
more significant legal capacities, for example the power to make treaties, to main-
tain order and exercise jurisdiction within the territory, and to have an independent
nationality law. The jurisprudence of the Permanent Court recognized that Danzig
had international personality, except in so far as treaty obligations created special
relations in regard to the League and to Poland.16 The special relations of Danzig
were based upon Articles 100-8 of the Versailles Treaty. The League of Nations had
a supervisory function and Poland was placed in control of the foreign relations
of Danzig. The result was very much a protectorate, the legal status and constitu-
tion of which were externally supervised. To describe legal entities like Danzig as
‘internationalized territories’ is not very helpful since the phrase covers a number
of distinct entities and situations and begs the question of legal personality. The
Italian Peace Treaty of 1947 provided for the creation of a Free Territory of Trieste
with features broadly similar to those of the Free City of Danzig, but placed under
the direct control of the United Nations Security Council.17
15
This appears to be the position in Switzerland.
16
See “Free City of Danzig and the ILO” (1930), PCIJ, Ser. B, no. 18; and Polish Nation-
als in Danzig (1932), Ser. A/B, no. 44, pp. 23-4. Germany occupied the Free City in
1939 and since 1945 the area has been part of Poland.
17
The Permanent Statute of Trieste was not implemented: the administration of the
territory was divided by agreement in 1954; the partition was made definitive by the
Treaty of Osimo, in force 3 Apr. 1977, Rivista did.i. 60,674. See Verzijl, International
Law in Historical Perspective, 504-5; and, on the issue of sovereignty, infra, pp. 68-9.
On the position of the Holy See and Taiwan see infra, pp. 67,68.

PA R T I
(c) Condominia
A condominium, as a joint exercise of state power within a particular terri-
tory by means of an autonomous local administration, may bear a resemblance
to entities of the type considered latterly. However, the local administration
can only act as an agency of the states participating in the condominium, and
normally even its capacity as agent is limited.18
(d) Internationalized territories
The label ‘internationalized territory’ has been applied by writers to a variety of
legal regimes. It may be applied very loosely to cases like Danzig and Trieste where
a special status was created by multilateral treaty and protected by an international
organization. In these instances the special status was attached to entities with
sufficient independence and legal capacity to admit of legal personality. However,
a special status of this kind may attach without the creation of a legal person. An
area within a sovereign state may be given certain rights of autonomy under treaty
without this leading to any degree of separate personality on the international
plane: this was the case with the Memel Territory, which enjoyed a special status in
the period 1924 to 1939, yet remained a part of Lithuania. Another type of regime,
more truly international, involves exclusive administration of a territory by an
international organization or an organ thereof: this was the regime proposed for
the city of Jerusalem by the Trusteeship Council in 1950 but never implemented.
In such a case no new legal person is established except in so far as an agency of
an international organization may have a certain autonomy.
(e) UN administration of territories immediately prior to independence
In relation to territories marked out by the United Nations as under a regime
of illegal occupation and qualified for an expeditious transition to indepen-
dence, an interim transitional regime may be installed under UN supervision.
Thus the final phase of the attainment of Namibian independence involved the
Security Council, the General Assembly, and the UN Transition Assistance Group,
established by Security Council resolution 435 (1978) of 29 September 1978.
In 1999 the long drawn out crisis concerning the illegal Indonesian occupa-
tion of East Timor was the subject of decisive action by the Security Council in
Resolution 1272 (1999) of 25 October 1999. This established the United Na-
tions Transitional Administration in East Timor (UNTAET) with a mandate to
prepare East Timor for independence. UNTAET had full legislative and executive
powers and assumed its role independently of any competing authority. After
elections, East Timor became independent in 2002.
18
See 9 ICLQ (1960), 258. On the New Hebrides see O’Connell, 43 BY (1968-9), 71-145.

(f) International organizations

The conditions under which an organization acquires legal personality on
the international plane and not merely as a legal person within a particular
system of national law are examined in Chapter 31. The most important person
of this type is of course the United Nations.
(g) Agencies of states
Entities acting as the agents of states, with delegated powers, may have
the appearance of enjoying a separate personality and considerable viability
on the international plane. Thus components of federal states probably have
treaty-making capacity, where this is provided for internally, as agents of the
federal state.19 By agreement states may create joint agencies with delegated
powers of a supervisory, rule-making, and even judicial nature. Examples are the
administration of a condominium,20 an arbitral tribunal, the International Joint
Commission set up under an agreement concerning boundary waters between
Canada and the United States in 1909,21 and the former European Commission
of the Danube.22 As the degree of independence and the legal powers of the
particular agency increase it will approximate to an international organization.
3. SPECIAL TYPES OF PERSONALITY
(a) Non-self-governing peoples
Quite apart from the question of protected status, and the legal effect of
particular agreements under which territories have been placed under mandate
or trusteeship, it is very probable that the populations of ‘non-self-governing
territories’ within the meaning of Chapter XI of the United Nations Charter
have legal personality, albeit of a special type. This proposition depends on the
examination of the principle of self- determination….
(b) National liberation movements
In the course of the anti-colonial actions conducted within the United
Nations and within regional organizations, the practice of both the organs of
the United Nations and the member States conferred legal status upon certain
19
See Fitzmaurice, Yrbk. ILC (1956), ii. 118 п.; and Morin, 3 Canad. Yrbk.(1965), 127-
86. See further the draft articles on the law of treaties, ILC (1966), Art. 5 (2). On the
role of the chartered companies such as the English East India Company and the
Dutch East India Company, see Schwarzenberger, International Law, i. (3rd ed.), 80-1;
McNair, Opinions, i. 41, 55; and the Palmas award, RIAA, ii at p. 858.
20
Supra, p. 59; infra, pp. 113-14.
21
See Baxter, The Law of International Waterways (1964), 107.
22
Ibid. 103-6,126-9.

PA R T I
national liberation movements. Most, but by no means all, of the peoples rep-
resented by such movements have acquired statehood. In 1974 the General
Assembly accorded recognition to the Angolan, Mozambican, Palestinian, and
Rhodesian movements. These liberation movements were recognized as such
by regional organizations. The political and legal roots of the concept of na-
tional liberation movements are to be found in the Declaration of Principles
of International Law concerning Friendly Relations and Co-operation among
States in accordance with the Charter of the United Nations (Resolution 2625
(XV), adopted without vote, 24 October 1970), and the principle of self-
determination, of which the beneficiary is a ‘people’.
National liberation movements may, and usually do, have other roles, as de
facto governments and belligerent communities.
The political entities recognized as liberation movements have a number
of legal rights and duties, the more significant of which are as follows:
(a) In practice liberation movements are accorded the capacity
to conclude binding international agreements with other
international legal persons.
(b) The rights and obligations set by the generally recognized
principles of humanitarian law. The provisions of the Geneva
Protocol I of 1977 apply to conflicts involving national
liberation movements if certain conditions are fulfilled: see
Articles 1(4) and 96(3) of the Protocol.
(c) The legal capacity of national liberation movements is reflected
in the right to participate in the proceedings of the United
Nations as observers, this right being conferred expressly
in various General Assembly resolutions. Thus the Palestine
Liberation Organisation (PLO) was granted observer status
in Resolution 3237 (XXIX), adopted on 22 November 1974.
In conclusion, it is necessary to recall the impact of the designation of
a non-self- governing people engaged in a process of national liberation
upon the colonial (or dominant) power. The colonial authorities do not, for
example, have the legal capacity to make agreements affecting the boundar-
ies or status of the territory to which the liberation process is applicable. 23
23
See the Award in the Delimitation of the Maritime Boundary between Guinea-Bissau
and Senegal (1989): RIAA, Vol. XX, 138-9, paras. 49-52.

(c) States in statu nascendi

For certain legal purposes it is convenient to assume continuity in a politi-
cal entity and thus to give effect, after statehood has been attained, to legal
acts occurring before independence. Considerations relating to the principle
of self-determination and the personality of non-self-governing peoples may
of course reinforce a doctrine of continuity.
(d) Legal constructions
A state’s legal order maybe projected on the plane of time for certain pur-
poses although politically it has ceased to exist.
(e) Belligerent and insurgent communities
In practice, belligerent and insurgent bodies within a state may enter into
legal relations and conclude agreements valid on the international plane with
states and other belligerents and insurgents. Sir Gerald Fitzmaurice has attrib-
uted treaty-making capacity to lpara-Statal entities recognized as possessing
a definite if limited form of international personality, for example, insurgent
communities recognized as having belligerent status - de facto authorities in
control of specific territory’. This statement is correct as a matter of principle,
although its application to particular facts will require caution. The status of
the particular belligerent community may be affected by the considerations
offered elsewhere as to the principle of self-determination and the personal-
ity of non-self-governing peoples. A belligerent community often represents a
political movement aiming at independence and secession.
(f) Entities sui generis
Whilst due regard must be had to legal principle, the lawyer cannot afford
to ignore entities which maintain some sort of existence on the international
legal plane in spite of their anomalous character. Indeed, the role played by
politically active entities such as belligerent communities indicates that, in the
sphere of personality, effectiveness is an influential principle. Furthermore, as
elsewhere in the law, provided that no rule of jus cogens is broken, acquiescence,
recognition, and the incidence of voluntary bilateral relations can do much
to obviate the more negative consequences of anomaly. Some of the special
cases may be considered very briefly. In a Treaty and Concordat in 1929, Italy
recognized ‘the Sovereignty of the Holy See in the international domain’ and
its exclusive sovereignty and jurisdiction over the City of the Vatican. A number
of states recognize the Holy See, and have diplomatic relations with it and the
Holy See has been a party to multilateral conventions, including those on the
law of the sea concluded in 1958. Functionally, and in terms of its territorial and
administrative organization, the Vatican City is proximate to a state. However, it

PA R T I
has certain peculiarities. It has no population, apart from the resident function-
aries, and its sole purpose is to support the Holy See as a religious entity. Some
jurists regard the Vatican City as a state, although its special functions make
this doubtful. However, it is widely recognized as a legal person with treaty-
making capacity. Its personality seems to rest partly on its approximation to a
state in function, in spite of peculiarities, including the patrimonial sovereignty
of the Holy See, and partly on acquiescence and recognition by existing legal
persons. More difficult to solve is the question of the personality of the Holy See
as a religious organ apart from its territorial base in the Vatican City. It would
seem that the personality of political and religious institutions of this type can
only be relative to those states prepared to enter into relationships with such
institutions on the international plane. Even in the sphere of recognition and
bilateral relations, the legal capacities of institutions like the Sovereign Order
of Jerusalem and Malta must be limited simply because they lack the territorial
and demographic characteristics of states. In the law of war the status of the
Order mentioned is merely that of a ‘relief society’ within the meaning of the
Prisoner of War Convention, 1949, Article 125.
Two other political animals require classification. ‘Exile governments’ may
be accorded considerable powers within the territory of most states and be ac-
tive in various political spheres. Apart from voluntary concessions by states and
the use of ‘exile governments’ as agencies for illegal activities against lawfully
established governments and states, the legal status of an ‘exile government’ is
consequential on the legal condition of the community it claims to represent,
which may be a state, belligerent community, or non-self-governing people.
Prima facie its legal status will be established the more readily when its exclu-
sion from the community of which it is an agency results from acts contrary
to the jus cogens, for example, an unlawful resort to force. Lastly, the case of
territory the title to which is undetermined, and which is inhabited and has
an independent administration, creates problems. On the analogy of belliger-
ent communities and special regimes not dependent on the existence of the
sovereignty of a particular state (for example, internationalized territories and
trust territories), communities existing on territory with such a status may be
treated as having a modified personality, approximating to that of a state. On
one view of the facts, this is the situation of Taiwan (Formosa). Since 1972 the
United Kingdom has recognized the Government of the People’s Republic of
China as the sole Government of China and acknowledges the position of the
Chinese Government that Taiwan is a province of China. The question will arise
whether Taiwan is a ‘country’ within particular legal contexts.24
24
See Rogers v. Cheng Fu Sheng, ILR 31, 349; Reel v. Holder [1981] 1 WLR 1226; ILR 74,

(g) Individuals
There is no general rule that the individual cannot be a ‘subject of inter-
national law’, and in particular contexts he appears as a legal person on the
international plane. At the same time to classify the individual as a ‘subject’ of
the law is unhelpful, since this may seem to imply the existence of capacities
which do not exist and does not avoid the task of distinguishing between the
individual and other types of subject.
4. CONTROVERSIAL CANDIDATURES
Reference to states and similar political entities, to organizations, to non-
self-governing peoples, and to individuals, does not exhaust the tally of agen-
cies active on the international scene. Thus corporations of municipal law,
whether private or public corporations, engage in economic activity in one or
more states other than the state under the law of which they were “incorpo-
rated” or in which they have their economic seat. The resources available to
the individual corporation maybe greater than those of the smaller states, and
they may have powerful diplomatic backing from governments. Such corpo-
rations can and do make agreements, including concession agreements, with
foreign governments, and in this connection in particular, jurists have argued
that the relations of states and foreign corporations as such should be treated
on the international plane and not as an aspect of the normal rules governing
the position of aliens and their assets on the territory of a state. In principle,
corporations of municipal law do not have international legal personality.
Thus a concession or contract between a state and a foreign corporation is
not governed by the law of treaties. However, in the present connection it
must be pointed out that it will not always be easy to distinguish corporations
which are so closely controlled by governments as to be state agencies, with
or without some degree of autonomy, and private corporations not sharing
the international law capacity of a state. It will be clear that the conferment of
separate personality by a particular national law is not necessarily conclusive of
autonomy vis-a-vis the state for purposes of international law. Thus ownership
of shares may give a state a controlling interest in a private law corporation’.
Important functions are performed today by bodies which have been
grouped under the labels ‘intergovernmental corporations of private law’ and
‘etablissements publics internationaux’. The point is that states may by treaty
create legal persons the status of which is regulated by the national law of one
or more of the parties. However, the treaty may contain obligations to create
a privileged status within the national law or laws to which the corporation is
105, CA.

PA R T I
subjected. The parties by their agreement may accord certain immunities to the
institution created and confer on it various powers. Where the independence
from the national laws of the parties is marked, then the body concerned may
simply be a joint agency of the states involved, with delegated powers effective
on the international plane and with a privileged position vis-a-vis local law in
respect of its activities. Where there is, in addition to independence from na-
tional law, a considerable quantum of delegated powers and the existence of
organs with autonomy indecision and rule-making, then the body concerned
has the characteristics of an international organization. It is when the institution
created by treaty has a viability and special function which render the descrip-
tion ‘joint agency’ inappropriate, and yet has powers and privileges primarily
within the national legal systems and jurisdictions of the various parties, that
it calls for use of a special category. An example of intergovernmental enter-
prise of this kind is Eurofima, a company set up by a treaty involving fourteen
states in 1955, with the object of improving the resources of railway rolling
stock. The treaty established Eurofima as a corporation under Swiss law with
modifications in that law provided for in the treaty. The parties agreed that
they would recognize this (Swiss) private law status, as modified by the treaty,
within their own legal systems. The corporation is international in function
and the fourteen participating railway administrations provide the capital.
The corporation is also given privileges on the international plane, including
exemption from taxation in Switzerland, the state of domicile. However, use-
ful as the category ‘etablissements publics internationaux’ may be, it is not an
instrument of exact analysis, and does not represent a distinct species of legal
person on the international plane. This type of arrangement is the product of
a careful interlocking of the national and international legal orders on a treaty
basis, and the nature of the product will vary considerably from case to case.
5. SOME CONSEQUENCES
The content of the previous sections must serve as a warning against facile
generalizations on the subject of legal personality. In view of the complex nature
of international relations and the absence of a centralized law of corporations,
it would be strange if the legal situation had an extreme simplicity. The number
of entities with personally for particular purposes is considerable. Moreover,
the tally of autonomous bodies increases if agencies of states and organiza-
tions, with a quantum of delegated powers, are taken into account. The listing
of candidates for personality, the characters the reader will encounter, has a
certain value, and yet such a procedure has some pitfalls. In the first place, a
great deal depends on the relation of the particular entity to the various aspects
of the substantive law. Thus the individual is in certain contexts regarded as a
legal person, and yet it is obvious that he cannot make treaties. The context of

problems remains paramount. Further, subject to the operations of the jus co-
gens, comprising certain fundamental principles, the institutions of recognition
have been active in sustaining anomalous relations. And finally, the intrusion
of agency and representation has created problems, both of application and
of principle. Thus it is not always easy to distinguish a dependent state with
its own personality from a subordinate entity with no independence, a joint
agency of states from an organization, or a private or public corporation under
some degree of state control from the state itself.
Blakesley, “States and Statehood: The Aura of Sovereignty”25

1. Nomenclature, Standing, and Role of States. In the international legal
system the terms “nations,” “peoples,” “states,” and “nation-states” are used
interchangeably and somewhat imprecisely, from a socio-anthropological
standpoint, to refer to the legally-organized political power-structures that are
the highest authority in a country, i.e., states. These entities have long been, and
still are, the major structural units of the legal-political order of the planet…
For centuries, states have been the recognized actors in the international legal
system, where living persons as such theoretically have had no standing, except
through their states. In classical theory, states are the “subjects” of “inter-state”
law that they make for themselves, either by accepted custom or by specific
agreements….
States traditionally, therefore, have had the virtually exclusive role in the
evolution of the modern international legal system. Some scholars recently have
seen international law as almost entirely the product of the Western World, hav-
ing entered its “modern” stage at the end of the Thirty Years War, via the treaties
made at Westphalia, in 1648, when sovereign equality moved from a few key
monarchies, the Holy Roman Empire, and the Holy See, to a number of newly-
independent states. [Citations omitted].However, international organizations now
play increasingly important roles as subjects of international law and as major
contributors to it. You will see that regional economic integration organizations
(REIOs) as supranational organizations have new roles in acting directly and
significantly on the legal rights and duties of individuals, companies and other
entities in the Members States as well as directly upon the Member States as such.
Traditional international organizations which normally function as centers of
cooperation among their Member States are also increasingly moving in such
fields of human rights law to act directly on the rights and duties of individuals
and other non-state entities. Non-Governmental organizations as well are ac-
25
Christopher L. Blakesley, Edwin B. Firmage, Richard F. Scott, and Sharon A. Williams,
The International Legal System: Cases and Materials, 5th ed. (2001), Ch. 2.

PA R T I
tive participants in the development and administration of international law, as

seen in the valuable work of the International Committee of the Red Cross. In
such major fields as international environment, human rights, world trade and
investment law, and in the development of the International Criminal Court,
non-governmental organizations have made signal contributions….
2. The Elements of Statehood. The definition of state in Section 201 of the
1987 Restatement may be useful: “… an entity which has a defined territory and
permanent population, under the control of its own government, and which
engages in, or has the capacity to engage in, formal relations with other such
entities.” This definition does not make reference to any central legal process
by which those facts are to be determined. The lack of a central legal process
for this purpose stands in contrast to domestic legal systems in which legal
entities such as corporations are created by explicitly required legal processes.
A corporation can be defined as an entity that has been created by compliance
with that prescribed process. No such legal process exists in the case of the
formation of entities called states.
States
Definition of a State
Montevideo Convention on the Rights and Duties of States26

Article 1
The state as a person of international law should possess the following
qualifications: (a) a permanent population; (b) a defined territory; (c) govern-
ment; and (d) capacity to enter into relations with the other states.
Membership in the United Nations
The United Nations Charter, Article 3

The original Members of the United Nations shall be the states which, hav-
ing participated in the United Nations Conference on International Organiza-
tion at San Francisco, or having previously signed the Declaration by United
Nations of 1 January 1942, sign the present Charter and ratify it in accordance
with Article 110.
26
Signed at Montevideo, 26 December 1933, entered into force, 26 December 1934,
Article 8 reaffirmed by Protocol, 23 December 1936.

Article 4
1. Membership in the United Nations is open to all other peace-loving states
which accept the obligations contained in the present Charter and, in the judg-
ment of the Organization, are able and willing to carry out these obligations.
2. The admission of any such state to membership in the United Nations
will be effected by a decision of the General Assembly upon the recommenda-
tion of the Security Council.
Defined Territory and Population
Western Sahara, I.C.J. Advisory Opinion, 197527
***
75. Having established that it is seised of a request for advisory opinion
which it is competent to entertain and that it should comply with that request,
the Court will now examine the two questions which have been referred to it
by General Assembly resolution 3292 (XXIX). These questions are so formu-
lated that an answer to the second is called for only if the answer to the first
is in the negative:
“1. Was Western Sahara (Rio de Oro and Sakiet El Hamra) at the time of
colonization by Spain a territory belonging to no one (terra nullius)?
If the answer to the first question is in the negative,
II. What were the legal ties between this territory and the Kingdom of Mo-
rocco and the Mauritanian entity?”…
79. Turning to Question 1, the Court observes that the request specifically
locates the question in the context of “the time of colonization by Spain,”
and it therefore seems clear that the words “Was Western Sahara . . . a territory
belonging to no one (terra nullius)?” have to be interpreted by reference to
the law in force at that period. The expression “terra nullius” was a legal term
of art employed in connection with “occupation” as one of the accepted legal
methods of acquiring sovereignty over territory. “Occupation” being legally an
original means of peaceably acquiring sovereignty over territory otherwise than
by cession or succession, it was a cardinal condition of a valid “occupation”
that the territory should be terra nullius - a territory belonging to no-one - at
the time of the act alleged to constitute the “occupation” (cf. Legal Status of
Eastern Greenland, P.C.I.J., Series A/B, No. 53, pp. 44 f. and63 f.). In the view of
27
Western Sahara, Advisory Opinion, I.C.J. Reports 1975, p. 12.

PA R T I
the Court, therefore, a determination that Western Sahara was a “terra nullius”
at the time of colonization by Spain would be possible only if it were established
that at that time the territory belonged to no-one in the sense that it was then
open to acquisition through the legal process of “occupation.”
80. Whatever differences of opinion there may have been among jurists,
the State practice of the relevant period indicates that territories inhabited by
tribes or peoples having a social and political organization were not regarded
as terrae nullius. It shows that in the case of such territories the acquisition of
sovereignty was not generally considered as effected unilaterally through “oc-
cupation” of terra nullius by original title but through agreements concluded
with local rulers. On occasion, it is true, the word “occupation” was used in a
non-technical sense denoting simply acquisition of sovereignty; but that did
not signify that the acquisition of sovereignty through such agreements with
authorities of the country was regarded as an “occupation” of a “terra nullius”
in the proper sense of these terms. On the contrary, such agreements with
local rulers, whether or not considered as an actual “cession” of the territory,
were regarded as derivative roots of title, and not original titles obtained by
occupation of terrae nullius.
81. In the present instance, the information furnished to the Court shows
that at the time of colonization Western Sahara was inhabited by peoples which,
if nomadic, were socially and politically organized in tribes and under chiefs
competent to represent them. It also shows that, in colonizing Western Sahara,’
Spain did not proceed on the basis that it was establishing its sovereignty over
terrae nullius. In its Royal Order of 26 December 1884, far from treating the case
as one of occupation of terra nullius, Spain proclaimed that the King was taking
the Rio de Oro under his protection on the basis of agreements which had been
entered into with the chiefs of the local tribes: the Order referred expressly to
“the documents which the independent tribes of this part of the coast” had
“signed with the representative of the Sociedad Espafiola de Africanistas,” and
announced that the King had confirmed “the deeds of adherence” to Spain.
Likewise, in negotiating with France concerning the limits of Spanish territory
to the north of the Rio de Oro, that is, in the Sakiet El Hamra area, Spain did
not rely upon any claim to the acquisition of sovereignty over a terra nullius.
82. Before the Court, differing views were expressed concerning the nature
and legal value of agreements between a State and local chiefs. But the Court is
not asked by Question 1 to pronounce upon the legal character or the legality
of the titles which led to Spain becoming the administering Power of Western
Sahara. It is asked only to state whether Western Sahara (Rio de Oro and Sakiet
El Hamra) at the time of colonization by Spain was “a territory belonging to no

one (terra nullius).” As to this question, the Court is satisfied that, for the reasons
which it has given, its answer must be in the negative. Accordingly, the Court
does not find it necessary first to pronounce upon the correctness or otherwise
of Morocco’s view that the territory was not terra nullius at that time because
the local tribes, so it maintains, were then subject to the sovereignty of the
Sultan of Morocco; nor upon Mauritania’s corresponding proposition that the
territory was not terra nullius because the local tribes, in its view, then formed
part of the “Bilad Shinguitti” or Mauritanian entity. Any conclusions that the
Court may reach with respect to either of these points of view cannot change
the negative character of the answer which, for other reasons already set out,
it has found that it must give to Question 1….
87. Western Sahara (Rio de Oro and Sakiet El Hamra) is a territory having
very special characteristics which, at the time of colonization by Spain, largely
determined the way of life and social and political organization of the peoples
inhabiting it. In consequence, the legal régime of Western Sahara, including its
legal relations with neighbouring territories, cannot properly be appreciated
without reference to these special characteristics. The territory forms part of
the great Sahara desert which extends from the Atlantic Coast of Africa to Egypt
and the Sudan. At the time of its colonization by Spain, the area of this desert
with which the Court is concerned was being exploited, because of its low and
spasmodic rainfall, almost exclusively by nomads, pasturing their animals or
growing crops as and where conditions were favourable. It may be said that
the territory, at the time of its colonization, had a sparse population that, for
the most part, consisted of nomadic tribes the members of which traversed
the desert on more or less regular routes dictated by the seasons and the wells
or water-holes available to them. In general, the Court was informed, the right
of pasture was enjoyed in common by these tribes; some areas suitable for
cultivation, on the other hand, were subject to a greater degree to separate
rights. Perennial water-holes were in principle considered the property of the
tribe which put them into commission, though their use also was open to
all, subject to certain customs as to priorities and the amount of water taken.
Similarly, many tribes were said to have their recognized burial grounds, which
constituted a rallying point for themselves and for allied tribes. Another feature
of life in the region, according to the information before the Court, was that
inter-tribal conflict was not infrequent.
88. These various points of attraction of a tribe to particular localities were
reflected in its nomadic routes. But what is important for present purposes is the
fact that the scarcity of the resources and the spasmodic character of the rainfall
compelled al1 those nomadic tribes to traverse very wide areas of the desert. In
consequence, the nomadic routes of none of them were confined to Western

PA R T I
Sahara; some passed also through areas of southern Morocco, or of present-day

Mauritania or Algeria, and some even through further countries. All the tribes
were of the Islamic faith and the whole territory lay within the Dar al-Islam. In
general, authority in the tribe was vested in a sheikh, subject to the assent of the
“Juma’a,” that is, of an assembly of its leading members, and the tribe had its own
customary law applicable in conjunction with the Koranic law. Not infrequently
one tribe had ties with another, either of dependence or of alliance, which were
essentially tribal rather than territorial ties of allegiance or vassalage.
89. It is in the context of such a territory and such a social and political
organization of the population that the Court has to examine the question of
the “legal ties” between Western Sahara and the Kingdom of Morocco and the
Mauritanian entity at the time of colonization by Spain. At the conclusion of the
oral proceedings, as will be seen, Morocco and Mauritania took up what was
almost a common position on the answer to be given by the Court on Ques-
tion II. The contentions on which they respectively base the legal ties which
they claim to have had with Western Sahara at the time of its colonization by
Spain are, however, different and in some degree opposed.
The Court will, therefore, examine them separately.
Principle That All States Are Equal
Declaration on Principles of International Law Operation

Concerning Friendly Relations and Co-operation Among
States in Accordance with the Charter of the United
Nations28
PREAMBLE
The General Assembly,
Reaffirming in the terms of the Charter of the United Nations that the main-
tenance of international peace and security and the development of friendly
relations and co-operation between nations are among the fundamental pur-
poses of the United Nations,
Recalling that the peoples of the United Nations are determined to practice
tolerance and live together in peace with one another as good neighbours,
28
U.N. General Assembly, Declaration of Principles of International Law Concerning
Friendly Relations and Co-operation Among States in Accordance with the Charter
of the United Nations, 24 October 1970, General Assembly resolution 2625 (XXV),
of 24 October 1970,GAOR (25th Sess., 1883 Plen Mtg), UN Doc A/Res/2625.

Bearing in mind the importance of maintaining and strengthening inter-

national peace founded upon freedom, equality, justice and respect for fun-
damental human rights and of developing friendly relations among nations
irrespective of their political, economic and social systems or the levels of their
development,
Bearing in mind also the paramount importance of the Charter of the
United Nations in the promotion of the rule of law among nations,
Considering that the faithful observance of the principles of international
law concerning friendly relations and co-operation among States and the ful-
fillment in good faith of the obligations assumed by States, in accordance with
the Charter, is of the greatest importance for the maintenance of international
peace and security and for the implementation of the other purposes of the
United Nations,
Noting that the great political, economic and social changes and scientific
progress which have taken place in the world since the adoption of the Charter
give increased importance to these principles and to the need for their more
effective application in the conduct of States wherever carried on,
Recalling the established principle that outer space, including the Moon
and other celestial bodies, is not subject to national appropriation by claim of
sovereignty, by means of use or occupation, or by any other means, and mind-
ful of the fact that consideration is being given in the United Nations to the
question of establishing other appropriate provisions similarly inspired,
Convinced that the strict observance by States of the obligation not to
intervene in the affairs of any other State is an essential condition to ensure
that nations live together in peace with one another, since the practice of any
form of intervention not only violates the spirit and letter of the Charter, but
also leads to the creation of situations which threaten international peace and
security,
Recalling the duty of States to refrain in their international relations from
military, political, economic or any other form of coercion aimed against the
political independence or territorial integrity of any State,
Considering it essential that all States shall refrain in their international
relations from the threat or use of force against the territorial integrity or po-
litical independence of any State, or in any other manner inconsistent with the
purposes of the United Nations,
Considering it equally essential that all States shall settle their international
disputes by peaceful means in accordance with the Charter,

PA R T I
Reaffirming, in accordance with the Charter, the basic importance of sov-

ereign equality and stressing that the purposes of the United Nations can be
implemented only if States enjoy sovereign equality and comply fully with the
requirements of this principle in their international relations,
Convinced that the subjection of peoples to alien subjugation, domination
and exploitation constitutes a major obstacle to the promotion of international
peace and security, Convinced that the principle of equal rights and self-de-
termination of peoples constitutes a significant contribution to contemporary
international law, and that its effective application is of paramount importance
for the promotion of friendly relations among States, based on respect for the
principle of sovereign equality,
Convinced in consequence that any attempt aimed at the partial or total
disruption of the national unity and territorial integrity of a State or country or
at its political independence is incompatible with the purposes and principles
of the Charter.

***
Dissenting opinions of Judge Shahabuddeen and Judge Weeramantry.
[p. 417 D.O. Shahabuddeen] There would be difficulty also in following
how it is that what is inalienable for some States is alienable for others. It is an
attribute of sovereignty that a State may by agreement restrain the exercise of
its competence; yet how far it may do so without losing its status as a State is
another question.30 Since the right of self-defence is “inherent” in a State, it is
not possible to conceive of statehood which lacks that characteristic. See the
illustration in General Assembly resolution 49/10 of 3 November 1994,
“[r]eaffirming ... that as the Republic of Bosnia and Herzegovina is, a sover-
eign, independent State and a Member of the United Nations, it is entitled to
all rights provided for in the Charter of the United Nations, including the right
to self-defence under Article 51 thereof.”
Arrangements for the exercise of the right of self-defence are a different matter.
But, so far as the right itself is concerned, if the right includes a right to use nuclear
29
Legality of the Use by a State of Nuclear Weapons in Armed Conflict, Advisory Opin-
ion, I.C.J. Reports 1996, p. 66, pp. 226-27.
30
See argument of M. Yasseen in I.C.J. Pleadings, Interpretation of the Agreement of 25
March 1951 between the WHO and Egypt, pp. 298-299.

weapons, the latter is not a small part of the former. It was no doubt for this reason
that, in the parallel case brought by the World Health Organization, it was argued
that to “deny the victim of aggression the right to use the only weapons which
might save it would be to make a mockery of the inherent right of self-defence.”31
The argument is understandable, granted the premise that the right to use nuclear
weapons is part of the inherent right of self-defence. The question is whether the
premise is correct. For, if it is correct, then, by the same token, there is difficulty in
seeing how the NNWS which were parties to the NPT could have wished to part
with so crucially important a part of their inherent right of self-defence….
[p. 526-527 D.O. Weeramantry] As with all sections of the international
legal system, the concept of equality is built into the texture of the laws of war.
Another anomaly is that if, under customary international law, the use of the
weapon is legal, this is inconsistent with the denial, to 180 of the 185 Members
of the United Nations, of even the right to possession of this weapon. Customary
international law cannot operate so unequally, especially if, as is contended by
the nuclear powers, the use of the weapon is essential to their self-defence. Self-
defence is one of the most treasured rights of States and is recognized by Article 51
of the United Nations Charter as the inherent right of every Member State of the
United Nations. It is a wholly unacceptable proposition that this right is granted
in different degrees to different Members of the United Nations family of nations.
De facto inequalities always exist and will continue to exist so long as the
world community is made up of sovereign States, which are necessarily unequal
in size, strength, wealth and influence. But a great conceptual leap is involved
in translating de facto inequality into inequality de jure. It is precisely such a
leap that is made by those arguing, for example, that when the Protocols to
the Geneva Conventions did not pronounce on the prohibition of the use of
nuclear weapons, there was an implicit recognition of the legality of their use
by the nuclear powers. Such silence meant an agreement not to deal with the
question, not a consent to legality of use. The “understandings” stipulated by the
United States and the United Kingdom that the rules established or newly intro-
duced by the 1977 Additional Protocol to the four 1949 Geneva Conventions
would not regulate or prohibit the use of nuclear weapons do not undermine
the basic principles which antedated these formal agreements and received
expression in them. They rest upon no conceptual or juristic reason that can
make inroads upon those principles. It is conceptually impossible to treat the
silence of these treaty provisions as overruling or overriding these principles.
31
Statement of the Government of the United Kingdom (para. 24), in the case concern-
ing Legality of the Use by a State of Nuclear Weapons in Armed Conflict (Request for
Advisory Opinion).

PA R T I
Question of Statehood: International Legal Personality
Land and Maritime Boundary Between Cameroon and

Nigeria, (Cameroon v. Nigeria: Equatorial Guinea
intervening), 200232
***
Dissenting Opinion of Judge Ajibola
[p. 568-569 D.O. Ajibola] The Court agrees with Cameroon in that it does
not accept the submission of Nigeria that the City States of Old Calabar have
international legal personality. As far as Cameroon is concerned, this is a myth
or a kind of mirage. It argues that the City States of Old Calabar cannot claim
any international legal entity separate from the State of Nigeria. During the oral
proceedings counsel for Nigeria argued about the City States of Old Calabar thus:
“These City States were the holders of an original historic title over the cities
and their dependencies, and the Bakassi Peninsula was for long a dependency
of Old Calabar.” (Ibid.,Vol. I, p. 67 para. 5.2.).
Although Cameroon accepts that “[w]ithout doubt, Efik trading took place
over a vast area of what is now south-eastern Nigeria and western Cameroon”
(Reply of Cameroon, Vol. I, p. 247, para. 5.24), yet it asserts that there were other
ethnic groups in that area of the Bakassi Peninsula, which at that time showed
a “complex pattern of human settlement” (ibid.,Vol. I, p. 247, para. 5.24).
In deciding whether the City States of Old Calabar is an international legal
entity, one should look to the nature of the Treaty entered into between Great
Britain and the Kings and Chiefs of Old Calabar in 1884. In the first place, this
is not the first treaty of this kind signed by the Kings and Chiefs. As I have al-
ready mentioned, Great Britain signed altogether 17 treaties of this kind with
the Kings and Chiefs of Old Calabar. Secondly, Great Britain referred to it not as
a mere agreement, a declaration or exchange of Notes, but as a treaty ¾ Treaty
with the Kings and Chiefs of Old Calabar, September 10, 1884” (Counter-
Memorial of Nigeria, Vol. IV, Ann. NC-M 23, p. 109). How then could Great
Britain sign a document, and call it a treaty if it were not so? It would have
been described as an “ordinance” had it been a document involving a colony
of Great Britain. There is therefore no doubt that the City States of Old Calabar
have international legal personality.
32
Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria:
Equatorial Guinea intervening), Judgment, I.C.J. Reports 2002, p. 303.

Creation of New States

Declaration of Independence of a People—Recognition of a
New State
Declaration of Independence by Kosovo, I.C.J. Advisory

Opinion, 201033
***
IV. THE QUESTION WHETHER THE DECLARATION OF INDEPENDENCE
IS IN ACCORDANCE WITH INTERNATIONAL LAW
78. The Court now turns to the substance of the request submitted by
the General Assembly. The Court recalls that it has been asked by the Gen-
eral Assembly to assess the accordance of the declaration of independence
of 17 February 2008 with “international law” (resolution 63/3 of the General
Assembly, 8 October 2008). The Court will first turn its attention to certain
questions concerning the lawfulness of declarations of independence under
general international law, against the background of which the question posed
falls to be considered, and Security Council resolution 1244 (1999) is to be
understood and applied. Once this general framework has been determined,
the Court will turn to the legal relevance of Security Council resolution 1244
(1999), and determine whether the resolution creates special rules, and ensu-
ing obligations, under international law applicable to the issues raised by the
present request and having a bearing on the lawfulness of the declaration of
independence of 17 February 2008.
A. General international law
79. During the eighteenth, nineteenth and early twentieth centuries, there
were numerous instances of declarations of independence, often strenuously
opposed by the State from which independence was being declared. Sometimes
a declaration resulted in the creation of a new State, at others it did not. In no
case, however, does the practice of States as a whole suggest that the act of
promulgating the declaration was regarded as contrary to international law. On
the contrary, State practice during this period points clearly to the conclusion
that international law contained no prohibition of declarations of indepen-
dence. During the second half of the twentieth century, the international law
of self-determination developed in such a way as to create a right to indepen-
33
Accordance with International Law of The Unilateral Declaration Of Independence
in Respect of Kosovo, Advisory Opinion, I.C.J. Reports 22 July 2010, pp. 29-32.

PA R T I
dence for the peoples of non-self-governing territories and peoples subject

to alien subjugation, domination and exploitation (cf. Legal Consequences
for States of the Continued Presence of South Africa in Namibia (South West
Africa) notwithstanding Security Council Resolution 276 (1970), Advisory
Opinion, I.C.J. Reports 1971, pp. 31-32, paras. 52-53; East Timor (Portugal v.
Australia), Judgment, I.C.J. Reports 1995, p. 102, para. 29; Legal Consequences
of the Construction of a Wall in the Occupied Palestinian Territory, Advisory
Opinion, I.C.J. Reports 2004 (I), pp. 171-172, para. 88). A great many new States
have come into existence as a result of the exercise of this right. There were,
however, also instances of declarations of independence outside this context.
The practice of States in these latter cases does not point to the emergence
in international law of a new rule prohibiting the making of a declaration of
independence in such cases.
80. Several participants in the proceedings before the Court have contended
that a prohibition of unilateral declarations of independence is implicit in the
principle of territorial integrity. The Court recalls that the principle of territorial
integrity is an important part of the international legal order and is enshrined
in the Charter of the United Nations, in particular in Article 2, paragraph 4,
which provides that:
“All Members shall refrain in their international relations from the threat
or use of force against the territorial integrity or political independence of any
State, or in any other manner inconsistent with the Purposes of the United Na-
tions.” In General Assembly resolution 2625 (XXV), entitled “Declaration on
Principles of International Law concerning Friendly Relations and Co-operation
among States in Accordance with the Charter of the United Nations,” which
reflects customary international law (Military and Paramilitary Activities in and
against Nicaragua (Nicaragua v. United States of America), Merits, Judgment, I.C.J.
Reports 1986, pp. 101-103, paras. 191-193), the General Assembly reiterated
“[t]he principle that States shall refrain in their international relations from the
threat or use of force against the territorial integrity or political independence
of any State.” This resolution then enumerated various obligations incumbent
upon States to refrain from violating the territorial integrity of other sovereign
States. In the same vein, the Final Act of the Helsinki Conference on Security and
Co-operation in Europe of 1 August 1975 (the Helsinki Conference) stipulated
that “[t]he participating States will respect the territorial integrity of each of
the participating States” (Art. IV). Thus, the scope of the principle of territorial
integrity is confined to the sphere of relations between States.
81. Several participants have invoked resolutions of the Security Council
condemning particular declarations of independence: see, inter alia, Security

Council resolutions 216 (1965) and 217 (1965), concerning Southern Rhode-
sia; Security Council resolution 541 (1983), concerning northern Cyprus; and
Security Council resolution 787 (1992), concerning the Republika Srpska. The
Court notes, however, that in all of those instances the Security Council was
making a determination as regards the concrete situation existing at the time
that those declarations of independence were made; the illegality attached to
the declarations of independence thus stemmed not from the unilateral char-
acter of these declarations as such, but from the fact that they were, or would
have been, connected with the unlawful use of force or other egregious viola-
tions of norms of general international law, in particular those of a peremptory
character (jus cogens). In the context of Kosovo, the Security Council has never
taken this position. The exceptional character of the resolutions enumerated
above appears to the Court to confirm that no general prohibition against
unilateral declarations of independence may be inferred from the practice of
the Security Council.
82. A number of participants in the present proceedings have claimed,
although in almost every instance only as a secondary argument, that the
population of Kosovo has the right to create an independent State either as
a manifestation of a right to self-determination or pursuant to what they de-
scribed as a right of “remedial secession” in the face of the situation in Kosovo.
The Court has already noted (see paragraph 79 above) that one of the major
developments of international law during the second half of the twentieth
century has been the evolution of the right of self-determination. Whether,
outside the context of non-self-governing territories and peoples subject to
alien subjugation, domination and exploitation, the international law of self-
determination confers upon part of the population of an existing State a right
to separate from that State is, however, a subject on which radically different
views were expressed by those taking part in the proceedings and expressing
a position on the question. Similar differences existed regarding whether in-
ternational law provides for a right of “remedial secession” and, if so, in what
circumstances. There was also a sharp difference of views as to whether the
circumstances which some participants maintained would give rise to a right
of “remedial secession” were actually present in Kosovo.
83. The Court considers that it is not necessary to resolve these questions
in the present case. The General Assembly has requested the Court’s opinion
only on whether or not the declaration of independence is in accordance with
international law. Debates regarding the extent of the right of self-determination
and the existence of any right of “remedial secession,” however, concern the
right to separate from a State. As the Court has already noted (see paragraphs
49 to 56 above), and as almost all participants agreed, that issue is beyond the

PA R T I
scope of the question posed by the General Assembly. To answer that question,
the Court need only determine whether the declaration of independence vio-
lated either general international law or the lex specialis created by Security
Council resolution 1244 (1999).
84. For the reasons already given, the Court considers that general interna-
tional law contains no applicable prohibition of declarations of independence.
Accordingly, it concludes that the declaration of independence of 17 February
2008 did not violate general international law. Having arrived at that conclu-
sion, the Court now turns to the legal relevance of Security Council resolution
1244, adopted on 10 June 1999.
European Community: Declarations on Creation of New

States
Declaration on Yugoslavia and On The Guidelines On

The Recognition Of New States, December 16, 199134
[Requirements for process of recognition of these new states]
The European Community and its member States discussed the situation
in Yugoslavia in the light of their guidelines on the recognition of new states
in Eastern Europe and in the Soviet Union. They adopted a common posi-
tion with regard to the recognition of Yugoslav Republics- In this connection
they concluded the following: The Community and its member States agree
to recognise the independence of all the Yugoslav Republics fulfilling all the
conditions set out below. The implementation of this decision will take place
on January 15, 1992. They are therefore inviting all Yugoslav Republics to state
by 23 December whether: they wish to be recognised as independent States;
they accept the commitments contained in the above mentioned guidelines;
“[Reproduced from European Political Cooperation Press Release P. 129/91.
[The Introductory Note to the selection of documents regarding the situation
in the former Yugoslavia appears at 31 LL.M. 1421 (1992). The selection of
documents includes U.N. Security Council Resolutions, 31I.L.M. 1427 (1992); the
Conference on Yugoslavia Arbitration Commission Opinions, with Introductory
Note, 31 LL.M 1488 (1992); Documents adopted at the London Conference of
the International Conference on the Former Yugoslavia, 31 LL.M. 1527 (1992);
and the U.N. Secretary-General Report on the International Conference on the
Former Yugoslavia, 31 LL.M. 1549 (1992).]
34
31 I.L.M. 1485 (1992) Extraordinary IPC Ministerial Meeting/ Brussels, 16 December
1991.

1486 they accept the provisions laid down in the draft Convention - es-
pecially those in Chapter II on human rights and rights of national or ethnic
groups - under consideration by the Conference on Yugoslavia; they continue
to support the efforts of the Secretary General and the Security Council of the
United Nations, and the continuation of the Conference on Yugoslavia. The ap-
plications of those Republics which reply positively will be submitted through
the Chair of the Conference to the Arbitration Commission for advice before
the implementation date. In the meantime, the Community and its member
States request the UN Secretary General and the UN Security Council to con-
tinue their efforts to establish an effective cease-fire and promote a peaceful
and negotiated outcome to the conflict. They continue to attach the greatest
importance to the early deployment of a UN peacekeeping force referred to
in UN Security Council Resolution 724. The Community and its member States
also require a Yugoslav Republic to commit itself, prior to recognition, to adopt
constitutional and political guarantees ensuring that it has no territorial claims
towards a neighbouring Community State and that it will conduct no hostile
propaganda activities versus a neighbouring Community State, including the
use of a denomination which implies territorial claims.
Declaration on the “Guidelines on the Recognition of New

States in Eastern Europe and in the Soviet Union”35
In compliance with the European Council’s request, Ministers have assessed
developments In Eastern Europe and in the Soviet Union with a view to elabo-
rating an approach regarding relations with new states In this connection they
have adopted the following guidelines on the formal recognition of new states
in Eastern Europe and in the Soviet Union: “The community and its Member
States confirm their attachment to the principles of the Helsinki Final Act and
the Charter of 1487 Paris, in particular the principle of self-determination. They
affirm their readiness to recognise subject to the normal standards of international
practice and the political realities in each case, those new states which, following
the historic changes in the region, have constituted themselves on a democratic
basis, have accepted the appropriate international obligations and have commit-
ted themselves in good faith to a peaceful process and to negotiations. Therefore,
they adopt a common position on the process of recognition of these new states,
which requires: respect for the provisions of the Charter of the United Nations and
the commitments subscribed to in the Final Act of Helsinki and in the Charter of
Paris, especially with regard to the rule of law, democracy and human rights; - guar-
antees for the rights of ethnic and national groups and minorities in accordance
35
31 I.L.M. 1486 ( 1992).

PA R T I
with the commitments subscribed to in the framework of the CSCE; - respect for
the inviolability of all frontiers which can only be changed by peaceful means and
by common agreement; - acceptance of all relevant commitments with regard
to disarmament and nuclear non-proliferation as well as to security and regional
stability; - commitment to settle by agreement, including where appropriate by
recourse to arbitration, all questions concerning state succession and regional
disputes. The Community and its Member States will not recognise entities which
are the result of aggression. They would take account of the effects of recognition
on neighbouring states. The commitments to these principles opens the way to
recognition by the Community and its Member States and to the establishment
of diplomatic relations. It could be laid down in agreements.
Brussels, The Hague, 16 December 1991.
Succession of States
Gabčíkovo-Nagymaros Project (Hungary v. Slovakia),

199736
***
123. The Court does not find it necessary for the purposes of the present
case to enter into a discussion of whether or not Article 34 of the 1978 Conven-
tion reflects the state of customary international law. More relevant to its present
analysis is the particular nature and character of the 1977 Treaty. An examination
of this Treaty confirms that, aside from its undoubted nature as a joint investment,
its major elements were the proposed construction and joint operation of a large,
integrated and indivisible complex of structures and installations on specific parts
of the respective territories of Hungary and Czechoslovakia along the Danube.
The Treaty also established the navigational regime for an important sector of
an international waterway, in particular the relocation of the main international
shipping lane to the bypass canal. In so doing, it inescapably created a situation
in which the interests of other users of the Danube were affected. Furthermore,
the interests of third States were expressly acknowledged in Article 18, whereby
the parties undertook to ensure “uninterrupted and safe navigation on the inter-
national fairway” in accordance with their obligations under the Convention of
18 August 1948 concerning the Regime of Navigation on the Danube.
In its Commentary on the Draft Articles on Succession of States in respect
of Treaties, adopted at its twenty-sixth session, the International Law Commis-
36
Gabčíkovo-Nagymaros Project (Hungary v. Slovakia), Judgment, I.C.J. Reports 1997,
p. 7.

sion identified “treaties of a territorial character” as having been regarded both

in traditional doctrine and in modern opinion as unaffected by a succession of
States (Official Records of the United Nations Conference on the Succession
of States in respect of Treaties, Vol. III, Doc. A/CONF 80/16/Add.2, p. 27, para.
2). The draft text of Article 12, which reflects this principle, was subsequently
adopted unchanged in the 1978 Vienna Convention. The Court considers that
Article 12 reflects a rule of customary international law; it notes that neither
of the Parties disputed this. Moreover, the Commission indicated that “treaties
concerning water rights or navigation on rivers are commonly regarded as
candidates for inclusion in the category of territorial treaties” (ibid., p. 33, para.
26). The Court observes that Article 12, in providing only, without reference to
the treaty itself, that rights and obligations of a territorial character established
by a treaty are unaffected by a succession of States, appears to lend support to
the position of Hungary rather than of Slovakia.
However the Court concludes that this formulation was devised rather to
take account of the fact that, in many cases, treaties which had established
boundaries or territorial regimes were no longer-in force (ibid., pp. 26-37).
Those that remained in force would nonetheless bind a successor State.
Taking all these factors into account, the Court finds that the content of the
1977-Treaty indicates that it must be regarded as establishing a territorial regime
within the meaning of Article 12 of 1978 Vienna Convention. It created rights
and obligations “attaching to” the parts of the Danube to which it relates; thus
the Treaty itself cannot be affected by a succession of States. The Court therefore
concludes that the 1977 Treaty became binding upon Slovakia on 1 January 1993.
Representative of State Entity
Application of the Convention on Prevention and

Punishment of Genocide (Bosnia — Herzegovina v.
Yugoslavia), 199637
***
Dissenting Opinion of Judge Kreca
[p. 681 D.O. Kreca] In the light of the contents of the Dayton Agreements
and in particular in the light of the current state of affairs, Bosnia and Herze-
govina may be qualified in terms of international law as a State in statu nascendi.
37
Application of the Convention on the Prevention and Punishment of the Crime of
Genocide, Preliminary Objections, Judgment, I.C.J. Reports 1996, p. 595, Dissenting
Opinion Of Judge Korea p. 681, para. 23.

PA R T I
At the time of the entry into force of the Dayton Agreements, the Republic of
Bosnia and Herzegovina, as a State within the administrative borders of the
former Yugoslav federal unit of the same name, possessed literally no relevant
attribute of a State in terms of international law….
[p. 684 D.O. Kreca] At present, an absence of the crucial State elements in
terms of international law makes Bosnia and Herzegovina within its administra-
tive borders a State sui generis: a combination of a contractual relationship of
two entities with a strongly installed element of an international protectorate.
This status is expressed at two levels, that is
(a) the factual level, as reflected in the position of IFOR. These forces are,
by definition, a “multinational military Implementation Force”38 deployed to
Bosnia and Herzegovina to “help ensure compliance with the provisions of this
Agreement”39). IFOR is not only one armed force which shall “have complete
and unimpeded freedom of movement by ground, air, and water throughout
Bosnia and Herzegovina”40 but is even authorized to “take such actions as
required, including the use of necessary force, to ensure compliance with this
Annex, and to ensure its own protection”41;
(b) the legal level, since particularly relevant provisions of Article VI of the
Constitution of Bosnia and Herzegovina (Constitutional Court), which is an
inherently adjudicative body which has “exclusive jurisdiction to decide any
dispute that arises under this Constitution between the Entities or between
Bosnia and Herzegovina and an Entity or Entities , or between institutions of
Bosnia and Herzegovina”42
38
Article 1 of the Agreement on the Military Aspects of the Peace Settlement, doc.
A/50/790/S/1995/999, p. 7.
39
Ibid.
40
Ibid., p. 19.
41
Ibid., p. 8.
42
Ibid., p. 71.

Intergovernmental Organizations as
Subjects of International Law (IGOs)
United Nations and International Bodies
Reparations for Injuries Suffered in the Service of the

United Nations, I.C.J. Advisory Opinion, 194943
The question concerning reparation for injuries suffered in the service of
the United Nations, was referred to the Court by the General Assembly of the
United Nations (Resolution of the General Assembly dated December 3rd.
1948) in the following terms:
“I. In the event of an agent of the United Nations in the
performance of his duties suffering injury in circumstances
involving the responsibility of a State, has the United Nations,
as an Organization, the capacity to bring an international claim
against the responsible de jure or de facto government with a view
to obtaining the reparation due in respect of the damage caused
(a) to the United Nations, (b) to the victim or to persons entitled
through him?...
“11. In the event of an affirmative reply on point I (b), how is
action by the United Nations to be reconciled with such rights as
may be possessed by the State of which the victim is a national?”
With respect to questions I (a) and I (b), the Court established a distinction
according to whether the responsible State is a Member or not of the United
Nations. The Court unanimously answered question I (a) in the affirmative. On
question I (b) the Court was of opinion by 11 votes against 4 that the Orga-
nization has the capacity to bring an international claim whether or not the
responsible State is a Member of the United Nations.
Finally, on point 11, the Court was of opinion by 10 votes against 5 that
when the United Nations as an organization is bringing a claim for reparation
for damage caused to its agent, it can only do so by basing its claim upon a
breach of obligations due to itself; respect for this rule ‘will usually prevent
a conflict between the action of the United Nations and such rights as the
agent’s national State may possess; moreover, this reconciliation must depend
43
Summary of the Advisory Opinion, published by the Court, See, http://www.I.C.J.-cij.
org/docket/files/4/1837.pdf).

PA R T I
up considerations applicable to each particular case, and upon agreements to

be made between the Organization and individual States….
[In its Opinion]… the Court makes a number of preliminary observations
on the question submitted to it. It proceeds to… analyses the : “capacity to
bring an international claim.” This capacity certainly belongs to a State. Does
it also belong to the Organization? This is tantamount to asking whether the
Organization has international personality. In answering this question which
is not settled by the actual terms of the Charter, the Court goes on to consider
what characteristics the Charter was intended to give to the Organization. In
this connection, the Court states that the Charter conferred upon the Organiza-
tion rights and obligations which are different from those of its Members. The
Court stresses, further, the important political tasks of the Organization: the
maintenance of international peace and security. Accordingly the Court con-
cludes that the Organization possessing as it does rights and obligations has at
the same time a large measure of international personality and the capacity to
operate upon an international plane, although it is certainly not a super-state.
The Court then examines the very heart of the subject, namely, whether
the sum of the international rights of the Organization comprises the right to
bring an international claim to obtain reparation from a State in respect of the
damage caused by the injury of an agent of the Organization in the course of
the performance of his duties.
On the first point:, I (a), of the Request for Opinion the Court unanimously
]reaches the conclusion that the Organization has the capacity to bring an
international claim against a State (whether a Member or non-member) for
damage resulting from a breach by that State of its obligations towards the
Organization. The Court points out that it is not called upon to determine the
precise extent of the reparation which the Organization would be entitled to
recover; the measure of the reparation should depend upon a number of fac-
tors which the Court gives as examples.
Then the Court proceeds to examine question I (b), namely, whether the
United Nations, as an Organization, has the capacity to bring an international
claim with a view to obtaining the reparation due in respect of the damage
caused, not to the Organization itself, but to the victim or to persons entitled
through him.
In dealing with this point the Court analyses the question of diplomatic pro-
tection of nationals. The Court points out in this connection that really only the
Organization has the capacity to present a claim in the circumstances referred to,
inasmuch as at the basis of any international claim there must be a breach by the
defendant State of an obligation towards the Organization. In the present case

the State of which the victim is a national could not complain of a breach of an
obligation towards itself. Here the obligation is assumed in favour of the Orga-
nization. However, the Court admits that the analogy of the traditional rule of
diplomatic protection of nationals abroad does not in itself justify an affirmative
reply. In fact, there exists no link of nationality between the Organization and its
agents. This is a new situation and it must be analyzed. Do the provisions of the
Charter relating to the functions of the Organization imply that the latter is em-
powered to assure its agents limited protection? These powers, which are essential
to the performance of the functions of the Organization, must be regarded as a
necessary implication arising from the Charter. In discharging its functions, the
Organization may find it necessary to entrust its agents with important missions
to be performed in disturbed arts of the world. These agents must be ensured
of effective protection. It is only in this way that the agent will be able to carry
out his duties satisfactorily. The Court therefore reaches the conclusion that the
Organization has the capacity to exercise functional protection in respect of its
agents. The situation is comparatively simple: in the case of Member States, for
these have assumed various obligations towards the Organization.
But what is the situation when a claim is brought against a State which is
not a Member of the Organization? The Court is of opinion that the Members
of the United Nations created an entity possessing objective international per-
sonality and not merely personality recognized by them alone. As in the case of
Question I (a),the Court therefore answers Question I (6) in the affirmative….

Conflict, I.C.J. Advisory Opinion, 1996 (on the matter of the
World Health Organization)44
***
19. In order to delineate the field of activity or the area of competence of
an international organization one must refer to the relevant rules of the organi-
zation and, in the first place, to its constitution. From a formal standpoint, the
constituent instruments of international organizations are multilateral treaties,
to which the well-established rules of treaty interpretation apply. As the Court
has said with respect to the Charter:
“On the previous occasions when the Court has had to interpret the Char-
ter of the United Nations, it has followed the principles and rules applicable
44
Legality of the Use by a State of Nuclear Weapons in Armed Conflict, On the matter
of the World Health Organization, Advisory Opinion, I.C.J. Reports 1996, p. 66, pp.
74-75, 82-83, and dissenting opinion of Judge Koroma p. 198.

PA R T I
in general to the interpretation of treaties, since it has recognized that the

Charter is a multilateral treaty, albeit a treaty having certain special character-
istics.” (Certain Expenses of the United Nations (Article 17, paragraph 2, of the
Charter), Advisory Opinion, I.C.J. Reports 1962, p. 157).
But the constituent instruments of international organizations are also trea-
ties of a particular type; their object is to create new subjects of law endowed with
a certain autonomy, to which the parties entrust the task of realizing common
goals. Such treaties can raise specific problems of interpretation owing, inter alia,
to their character which is conventional and at the same time institutional; the
very nature of the organization created, the objectives which have been assigned
to it by its founders, the imperatives associated with the effective performance
of its functions, as well as its own practice, are all elements which may deserve
special attention when the time comes to interpret these constituent treaties.
According to the customary rule of interpretation as expressed in Article 31 of
the 1969 Vienna Convention on the Law of Treaties, the terms of a treaty must
be interpreted “in their context and in the light of its object and purpose” and
there shall be “taken into account, together with the context:…
(b) any subsequent practice in the application of the treaty which estab-
lishes the agreement of the parties regarding its interpretation.”
The Court has had occasion to apply this rule of interpretation several times
(see Arbitral Award of 31 July 1989 (Guinea-Bissau v. Senegal), Judgment, I.C.J.
Reports 1991, pp. 69-70, para. 48; Land, Island and Maritime Frontier Dispute
(El Salvador/Honduras: Nicaragua intervening), Judgment, I.C.J Reports 1992,
pp. 582-583, para. 373, and p. 586, para. 380; Territorial Dispute (Libyan Arab
Jamahiriya/Chad) Judgment, I.C.J. Reports 1994, pp. 21-22, para. 41; Maritime
Delimitation and Territorial Questions between Qatar and Bahrain (Qatar v.
Bahrain), Jurisdiction and Admissibility, Judgment, I.C.J. Reports 1995, p. 18,
para. 33); it will also apply it in this case for the purpose of determining whether,
according to the WHO Constitution, the question to which it has been asked
to reply arises “within the scope of [the] activities’’ of that Organization.
…29. Other arguments have nevertheless been put forward in the proceed-
ings to found the jurisdiction of the Court in the present case. It has thus been
argued that World Health Assembly resolution, having been adopted by the
requisite majority, “must be presumed to have been validly adopted” (cf. Legal
Consequences for States of the Continued Presence of South Africa in Namibia
(South West Africa) notwithstanding Security Council Resolution 276 (1970),
Advisory Opinion, I.C.J. Reports 1971, p. 22, para. 20). The Court would observe
in this respect that the question whether a resolution has been duly adopted
from a procedural point of view and the question whether that resolution has

been adopted intra vires are two separate issues. The mere fact that a majority
of States, in voting on a resolution, have complied with all the relevant rules of
form cannot in itself suffice to remedy any fundamental defects, such as acting
ultra vires, with which the resolution might be afflicted.
As the Court has stated, “each organ must, in the first place at least, deter-
mine its own jurisdiction” (Certain Expenses of the United Nations (Article 17,
paragraph 2, of the Charter), Advisory Opinion, I.C.J. Reports 1962, p. 168). It
was therefore certainly a matter for the World Health Assembly to decide on
its competence - and, thereby, that of the WHO - to submit a request to the
Court for an advisory opinion on the question under consideration, having
regard to the terms of the Constitution of the Organization and those of the
Agreement of 10 July 1948 bringing it into relationship with the United Nations.
But likewise it is incumbent on the Court to satisfy itself that the conditions
governing its own competence to give the opinion requested are met; through
the reference made, respectively, by Article 96, paragraph 2, of the Charter to
the “scope of [the] activities” of the Organization and by Article X, paragraph
2, of the Agreement of 10 July 1948 to its “competence,” the Court also finds
itself obliged in the present case, to interpret the Constitution of the WHO.
The exercise of the functions entrusted to the Court under Article 65, para-
graph l, of its Statute requires it to furnish such an interpretation, independently
of any operation of the specific recourse mechanism which Article 75 of the
WHO Constitution reserves for cases in which a question or dispute arises be-
tween States concerning the interpretation or application of that instrument;
and in doing so the Court arrives at different conclusions from those reached
by the World Health Assembly when it adopted resolution WHA46.40.
Dissenting Opinion of Judge Koroma
[p. 203 D.O. Koroma] Although the resolution containing the request is not
itself a treaty, however, like the Court in its majority opinion, its interpretation
can be guided by the relevant provisions of the 1969 Vienna Convention on
the Law of Treaties so as to establish that the question formulated in the reso-
lution falls within the competence or scope of activities of the Organization,
as defined in its Constitution.
[p. 219 D.O. Koroma] On the question whether an international organiza-
tion is entitled to determine its own competence or jurisdiction, the Court had
this to say in its Advisory Opinion in the Certain Expenses case:
“In the legal systems of States, there is often some procedure for determin-
ing the validity of even a legislative or governmental act, but no analogous
procedure is to be found in the structure of the United Nations. Proposals made

PA R T I
during the drafting of the Charter to place the ultimate authority to interpret
the Charter in the International Court of Justice were not accepted; the opinion
which the Court is in course of rendering is an advisory opinion. As anticipated
in 1945 therefore, each organ must, in the first place at least, determine its own
jurisdiction.” (Certain Expenses of the United Nations (Article 17, paragraph 2,
of the Charter), I.C.J. Reports 1962, p. 168; (second emphasis added.)
In that same Opinion, the Court stated that
“when the Organization takes action which warrants the assertion that it
was appropriate for the fulfillment of one of the stated purposes of the United
Nations, the presumption is that such action is not ultra vires the Organiza-
tion” (ibid.).
What this shows, in my view, is that prior to the present case and in accordance
with its jurisprudence; the Court has held that international organizations are com-
petent to determine their competence or jurisdiction. On this occasion, the Court
decided to depart from this its jurisprudence, but with hardly any explanation or
reason but not only did the Court choose not to follow its jurisprudence on this
occasion in the past, while not denying itself the right to examine the competence
of the body making the request, it rejected certain objections to its jurisdiction
based on the claims that such bodies were not competent to make the request
(Interpretation of Peace Treaties with Bulgaria, Hungary and Romania, First Phase,
I.C.J. Reports 1950, pp. 72 et seq., and Reservations to the Convention on the Pre-
vention and Punishment of the Crime of Genocide, I.C.J. Reports 1951, pp. 19-20).
The Force of Resolutions of United Nations Bodies
Application of the Convention on the Prevention

and Punishment of the Crime of Genocide, (Bosnia/
Herzegovina v. Yugoslavia) (Security Council/UN),
199345
***
Separate Opinion of Judge Lauterpacht
[pp. 439-441 S.O. Lauterpacht] On the face of it, Security Council resolution
713 (1991)46 is a valid prohibition of the supply of arms and military equipment
45
Application of the Convention on the Prevention and Punishment of the Crime of
Genocide (Bosnia/Herzegovina v Yugoslavia (Serbia and Montenegro), Provisional
Measures, Order, I.C.J. Reports 1993, p. 325.
46
“... that all States shall, for the purpose of establishing peace and stability in Yugo-

to those involved in the Yugoslav conflict and is binding on all Members of the
United Nations. Although the resolution is open to the comments expressed
above in paragraphs 91-96, it cannot be said with certainty that in themselves
these comments affect the continuing validity of the resolution. The fact that
some of the members of the Security Council indicated that they would not
have supported the resolution in the absence of the consent of Yugoslavia, in
relation to whose territory the embargo was adopted, could only be relevant
in the absence of a determination by the Security Council that the situation fell
within Chapter VII of the Charter. Once the Security Council indicated that it
was acting “under Chapter VII,” it was no longer constrained by the necessity
of obtaining the consent of any State to the measures that it considered the
circumstances to require.
This is not to say that the Security Council can act free of all legal controls
but only that the Court’s power of judicial review is limited. That the Court has
some power of this kind can hardly be doubted, though there can be no less
doubt that it does not embrace any right of the Court to substitute its discretion
for that of the Security Council in determining the existence of a threat to the
peace, a breach of the peace or an act of aggression, or the political steps to be
taken following such a determination. But the Court, as the principal judicial
organ of the United Nations, is entitled, indeed bound, to ensure the rule of
law within the United Nations system and, in cases properly brought before
it, to insist on adherence by all United Nations organs to the rules governing
their operation. The Court has already, in the Lockerbie case, given an exten-
sive interpretation of the powers of the Security Council when acting under
Chapter VII, in holding that a decision of the Council is, by virtue of Articles
25 and 103 of the Charter, able to prevail over the obligations of the parties
under any other international agreement (see Questions of Interpretation and
Application of the 1971 Montreal Convention arising from the Aerial Incident
at Lockerbie (Libyan Arab Jamahiriya v. United Kingdom), Provisional Measures,
Order of 14 April 1992, I.C.J. Reports 1992, p. 15 para. 39).
The present case, however, cannot fall within the scope of the doctrine
just enunciated. This is because the prohibition of genocide, unlike the mat-
ters covered by the Montreal Convention in the Lockerbie case to which the
terms of Article 103 could be directly applied, has generally been accepted as
having the status not of an ordinary rule of international law but of jus cogens.
slavia, immediately implement a general and complete embargo on all deliveries of

weapons and military equipment to Yugoslavia until the Security Council decides
otherwise following consultation between the Secretary-General and the Govern-
ment of Yugoslavia” (resolution 713 (1991), para. 6).

PA R T I
Indeed, the prohibition of genocide has long been regarded as one of the few
undoubted examples of jus cogens. Even in 1951, in its Advisory Opinion on
Reservations to the Convention on the Prevention and Punishment of the
Crime of Genocide, the Court affirmed that genocide was “contrary to moral
law and to the spirit and aims of the United Nations” (a view repeated by the
Court in paragraph 51 of today’s Order) and that “the principles underlying the
Convention are provisions which are recognized by civilized nations as binding
on States even without any conventional obligation” (I.C.J. Reports 1951, p. 22).
An express reference to the special quality of the prohibition of genocide
may also be seen in the work of the International Law Commission in the
preparation of Article 50 of the draft articles on the Law of Treaties (Yearbook
of the International Law Commission, 1966, Vol. II, pp. 248-249) which even-
tually materialized in Article 53 of the Vienna Convention on the Law of Trea-
ties and in the same Commission’s commentary on Article 19 (international
crimes and delicts) of the draft articles on State Responsibility (Yearbook of the
International Law Commission, 1976, Vol. II, Pt. 2, p. 103). The concept of jus
cogens operates as a concept superior to both customary international law and
treaty. The relief which Article 103 of the Charter may give the Security Council
in case of conflict between one of its decisions and an operative treaty obliga-
tion cannot - as a matter of simple hierarchy of norms - extend to a conflict
between a Security Council resolution and jus cogens. Indeed, one only has to
state the opposite proposition thus - that a Security Council resolution may
even require participation in genocide - for its unacceptability to be apparent.
Nor should one overlook the significance of the provision in Article 24 (2)
of the Charter that, in discharging its duties to maintain international peace
and security, the Security Council shall act in accordance with the Purposes and
Principles of the United Nations. Amongst the Purposes set out in Article 1(3)
of the Charter is that of achieving international co-operation “in promoting
and encouraging respect for human rights and for fundamental freedoms for
all without distinction as to race, sex, language or religion.”
Now, it is not to be contemplated that the Security Council would ever
deliberately adopt a resolution clearly and deliberately flouting a rule of jus
cogens or requiring a violation of human rights. But the possibility that a Secu-
rity Council resolution might inadvertently or in an unforeseen manner lead to
such a situation cannot be excluded. And that, it appears, is what has happened
here. On this basis, the inability of Bosnia-Herzegovina sufficiently strongly to
fight back against the Serbs and effectively to prevent the implementation of
the Serbian policy of ethnic cleansing is at least in part directly attributable
to the fact that Bosnia-Herzegovina’s access to weapons and equipment has

been severely limited by the embargo. Viewed in this light, the Security Council
resolution can be seen as having in effect called on Members of the United Na-
tions, albeit unknowingly and assuredly unwillingly, to become in some degree
supporters of the genocidal activity of the Serbs and in this manner and to that
extent to act contrary to a rule of jus cogens.
What legal consequences may flow from this analysis? One possibility is
that, in strict logic, when the operation of paragraph 6 of Security Council
resolution 713 (1991) began to make Members of the United Nations acces-
sories to genocide, it ceased to be valid and binding in its operation against
Bosnia-Herzegovina; and that Members of the United Nations then became free
to disregard it. Even so, it would be difficult to say that they then became posi-
tively obliged to provide the Applicant with weapons and military equipment.
There is, however, another possibility that is, perhaps, more in accord with
the realities of the situation. It must be recognized that the chain of hypotheses
in the analysis just made involves some debatable links - elements of fact, such
as that the arms embargo has led to the imbalance in the possession of arms
by the two sides and that that imbalance has contributed in greater or lesser
degree to genocidal activity such as ethnic cleansing; and elements of law, such
as that genocide is jus cogens and that a resolution which becomes violative of
jus cogens must then become void and legally ineffective. It is not necessary for
the Court to take a position in this regard at this time. Instead, it would seem
sufficient that the relevance here of jus cogens should be drawn to the atten-
tion of the Security Council, as it will be by the required communication to it
of the Court’s Order, so that the Security Council may give due weight to it in
future reconsideration of the embargo.
East Timor (Portugal v. Australia), 199547
***
30. Australia objects that the United Nations resolutions regarding East
Timor do not say what Portugal claims they say; that the last resolution of the
Security Council on East Timor goes back to 1976 and the last resolution of
the General Assembly to 1982, and that Portugal takes no account of the pas-
sage of time and the developments that have taken place since then; and that
the Security Council resolutions are not resolutions which are binding under
Chapter VII of the Charter or otherwise and, moreover, that they are not framed
in mandatory terms.
47
East Timor (Portugal v. Australia), Judgment, I.C.J. Reports 1995, p. 90, 103-104, and
Weeramantry dissenting opinion pp. 190-91.

PA R T I
31. The Court notes that the argument of Portugal under consideration
rests on the premise that the United Nations resolution, and in particular those
of the Security Council, can be read as imposing an obligation on States not to
recognize any authority on the part of Indonesia over the territory and, where
the latter is concerned, to deal only with Portugal. The Court is not persuaded,
however, that the relevant resolutions went so far.
For the two Parties, the Territory of East Timor remains a non-self-governing
territory and its people has the right to self-determination. Moreover, the
General Assembly, which reserves to itself the right to determine the territories
which have to be regarded as non-self-governing for the purposes of the ap-
plication of Chapter XI of the Charter, has treated East Timor as such a territory.
The competent subsidiary organs of the General Assembly have continued to
treat East Timor as such to this day. Furthermore, the Security Council, in its
resolutions 384 (1975) and 389 (1976) has expressly called for respect for “the
territorial integrity of East Timor as well as the inalienable right of its people to
self-determination in accordance with General Assembly resolution 1514 (XV).”
Nor is it at issue between the Parties that the General Assembly has expressly
referred to Portugal as the “administering Power” of East Timor in a number
of the resolutions it adopted on the subject of East Timor between 1975 and
1982, and that the Security Council has done so in its resolution 384 (1975).
The Parties do not agree, however, on the legal implications that flow from the
reference to Portugal as the administering Power in those texts.
32. The Court finds that it cannot be inferred from the sole fact that the
above-mentioned resolutions of the General Assembly and the Security Council
refer to Portugal as the administering Power of East Timor that they intended
to establish an obligation on third States to treat exclusively with Portugal as
regards the continental shelf of East Timor.
Dissenting Opinion of Judge Weeramantry
[p. 190-191 D.O. Weeramantry] The proposition that lapse of time wears
down the binding force of resolutions needs to be viewed with great caution.
In cases where resolutions in fact impose obligations at international law, this
Court would then, in effect, be nullifying obligations which the appropriate
organ of the United Nations, properly seised of that matter, has chosen to
impose. More especially is caution required from the Court in regard to resolu-
tions dealing with obligations erga omnes and rights such as self-determination
which are fundamental to the international legal system. The Court would, in
the absence of compelling reasons to the contrary, show due respect for the
valid resolutions duly passed by its sister organs.

It is to be noted that Australia’s argument that the resolutions of the Security

Council have fallen into desuetude cannot be accepted for a further reason.
The argument of desuetude breaks down before the fact that the Committee
of Twenty-Four, which is the General Assembly’s organ for overseeing the mat-
ter of decolonization, has kept the East Timor question alive on its agenda year
after year. Moreover, the Committee has in its report to the General Assembly
referred to this in successive years. The Committee would not be expected to
keep this matter on their books if it is, as Australia has suggested, a dead issue.
Immunity from Legal Process of a Special Rapporteur of

the Commission on Human Rights, I.C.J. Advisory Opinion,
199948
***
50. In the process of determining whether a particular expert on mission is
entitled, in the prevailing circumstances, to the immunity provided for in Section
22 (b), the Secretary-General of the United Nations has a pivotal role to play.
The Secretary-General, as the chief administrative officer of the Organization,
has the authority and the responsibility to exercise the necessary protection
where required. This authority has been recognized by the Court when it stated:
“Upon examination of the character of the functions entrusted to the Or-
ganization and of the nature of the missions of its agents, it becomes clear that
the capacity of the Organization to exercise a measure of functional protection
of its agents arises by necessary intendment out of the Charter.” (Reparation
for Injuries Suffered in the Service of the United Nations, Advisory Opinion,
I.C.J. Reports 1949, p. 184.)
51. Article VI, Section 23,of the General Convention provides that “[p]
rivileges and immunities are granted to experts in the interests of the United
Nations and not for the personal benefit of the individuals themselves.” In exer-
cising protection of United Nations experts, the Secretary-General is therefore
protecting the mission with which the expert is entrusted. In that respect, the
Secretary-General has the primary responsibility and authority to protect the
interests of the Organization and its agents, including experts on mission. As
the Court held:
“In Order that the agent may perform his duties satisfactorily, he must feel
that this protection is assured to him by the Organization, and that he may
48
Difference Relating to Immunity from Legal Process of a Special Rapporteur of the
Commission on Human Rights, Advisory Opinion, I.C.J. Reports 1999, p. 62.

PA R T I
count on it. To ensure the independence of the agent, and, consequently, the
independent action of the Organization itself, it is essential that in performing
his duties he need not have to rely on any other protection than that of the
Organization ...” (Ibid., p. 183.)
52. The determination whether an agent of the Organization has acted
in the course of the Performance of his mission depends upon the facts of a
particular case. In the present case, the Secretary-General, or the Legal Counsel
of the United Nations on his behalf, has on numerous occasions informed the
Government of Malaysia of his finding that Mr. Cumaraswamy had spoken
the words quoted in the article in International Commercial Litigation in his
capacity as Special Rapporteur of the Commission and that he consequently
was entitled to immunity from “every kind” of legal process.
53. As is clear from the written and oral pleadings of the United Nations,
the Secretary-General was reinforced in this view by the fact that it has become
standard practice of Special Rapporteurs of the Commission to have contact
with the media. This practice was confirmed by the High Commissioner for
Human Rights who, in a letter dated 2 October 1998, included in the dossier,
wrote that: “it is more common than not for Special Rapporteurs to speak to
the press about matters pertaining to their investigations, thereby keeping the
general public informed of their work.”
54. As noted above… Mr. Cumaraswamy was explicitly referred to several times
in the article “Malaysian Justice on Trial” in International Commercial Litigation
in his capacity as United Nations Special Rapporteur on the Independence of
Judges and Lawyers. In his reports to the Commission … Mr. Cumaraswamy had
set out his methods of work, expressed concern about the independence of the
Malaysian judiciary, and referred to the civil lawsuits initiated against him. His
third report noted that the Legal Counsel of the United Nations had informed
the Government of Malaysia that he had spoken in the performance of his mis-
sion and was therefore entitled to immunity from legal process.
55. As noted in Paragraph 18 above, in its various resolutions the Commis-
sion took note of the Special Rapporteur’s reports and of his methods of work.
In 1997, it extended his mandate for another three years (see paragraphs 18
and 45 above). The Commission presumably would not have so acted if it had
been of the opinion that Mr. Cumaraswamy had gone beyond his mandate and
had given the interview to International Commercial Litigation outside the
course of his functions. Thus the Secretary-General was able to find Support
for his findings in the Commission’s Position.
56. The Court is not called upon in the present case to pass upon the aptness
of the terms used by the Special Rapporteur or his assessment of the situation.

In any event, in view of all the circumstances of this case, elements of which
are set out in paragraphs 1 to 15of the note by the Secretary-General, the Court
is of the opinion that the Secretary-General correctly found that Mr. Cumaras-
wamy, in speaking the words quoted in the article in International Commercial
Litigation, was acting in the course of the Performance of his mission as Special
Rapporteur of the Commission. Consequently, Article VI, Section 22 (b), of the
General Convention is applicable to him in the present case and affords Mr.
Cumaraswamy immunity from legal process of every kind….
60. As the Court has observed, the Secretary-General, as the chief adminis-
trative officer of the Organization, has the primary responsibility to safeguard
the interests of the Organization; to that end, it is up to him to assess whether its
agents acted within the scope of their functions and, where he so concludes, to
protect these agents, including experts on mission, by asserting their immunity.
This means that the Secretary-General has the authority and responsibility to
inform the government of a member State of his finding and, where appropri-
ate, to request it to act accordingly and, in particular, to request it to bring his
finding to the knowledge of the local Courts if acts of an agent have given or
may give rise to Court proceedings.
61. When national Courts are seised of a case in which the immunity of
a United Nations agent is in issue, they should immediately be notified of any
finding by the Secretary-General concerning that immunity. That finding, and
its documentary expression, creates a presumption which can only be set aside
for the most compelling reasons and is thus to be given the greatest weight
by national Courts.
The governmental authorities of a party to the General Convention are
therefore under an obligation to convey such Information to the national
Courts concerned, since a proper application of the Convention by them is
dependent on such information.
Failure to comply with this Obligation, among others, could give rise to
the Institution of proceedings under Article VIII, Section 30, of the General
Convention….
Dissenting Opinion of Judge Weeramantry
[pp. 96-97 S.O. Weeramantry] Since it is essential to United Nations staff that
they receive sufficient protection to be able to discharge their missions with
independence, and since the duty of protecting its staff in the exercise of such
duties lies so heavily on the United Nations, great importance must attach to
the views of its chief functionary, the Secretary-General, regarding the question
whether immunity does or does not attach in a given case.

PA R T I
The Secretary-General is better informed than any external authority re-

garding such questions as the limits of a given agent’s functions, the purpose or
purposes the appointment was intended to serve, and the needs of the United
Nations in relation to any particular inquiry. He is better informed than any
other authority of the practice relating to, and the factual background sur-
rounding, the particular matter. With his unique overview of the entire scheme
of United Nations operations, he, more than any other authority, can assess a
given agent’s functions within the overall context of the rationale, traditions
and operational framework of United Nations activities as a whole.
Any attempt to determine the applicability of the privileges and immunities
of the United Nations to a particular rapporteur in particular circumstances
without reference to the opinion of the Secretary-General would fail to take
into account an important part of the material essential to an informed decision.
Moreover, within the United Nations system, there is a practice of recogni-
tion of the conclusiveness of the Secretary-General’s authority in this regard,
and there are General Assembly resolutions, such as resolution 36/238 of 18
December 1981, which indicate the special importance accorded to the view of
the Secretary-General on the entire range of matters relating to administration
within the Organization. The views of the United Nations’ highest administra-
tive authority on an essentially administrative matter such as the extent of a
particular official’s sphere of authority - a question so eminently within his
knowledge and supervisory functions - cannot be disregarded without detri-
ment to the entire system.
The Secretary-General’s determination as to whether a particular action
was within an official’s or rapporteur’s sphere of authority should therefore
be viewed as binding on the domestic tribunal, unless compelling reasons can
be established for displacing that weighty presumption. I am in complete and
respectful agreement with the Court in this regard. There is no element of ar-
bitrariness here, for if a State disputes such a ruling by the Secretary-General,
there is always room for the matter to be brought before this Court for an
advisory opinion in terms of Section 30 of the Convention.

National Liberation Movements and Other Groups49
General Assembly of the United Nations, 62nd Session,

Question of Palestine
Background
This item, which had been on the agenda of the second and third sessions of
the General Assembly, was included in the agenda of the twenty-ninth session,
in 1974, at the request of 55 Member States (A/9742 and Corr.1 and Add.1, 2,
3 and 4). At that session, the Assembly invited the Palestine Liberation Orga-
nization (PLO), the representative of the Palestinian people, to participate in
its deliberations on the question of Palestine in plenary meetings (resolution
3210 (XXIX)). At the same session, the Assembly reaffirmed the inalienable
rights of the Palestinian people in Palestine, emphasizing that their realization
was indispensable for the solution of the question of Palestine (resolution 3236
(XXIX)). The Assembly also invited the PLO to participate, in the capacity of
observer, in its sessions and its work and in all international conferences con-
vened under its auspices; and considered that the PLO was similarly entitled
with regard to all international conferences convened by other organs of the
United Nations (resolution 3237 (XXIX)).
At its thirtieth session, the General Assembly called for the invitation of the
PLO to participate on an equal footing with other parties in all efforts, delibera-
tions and conferences on the Middle East that were held under the auspices of
the United Nations and to take part in the Geneva Peace Conference on the
Middle East as well as in all other efforts for peace (resolution 3375 (XXX)). At
the same session, the Assembly established the Committee on the Exercise of
the Inalienable Rights of the Palestinian People; requested the Committee to
consider and recommend to the Assembly a programme of implementation,
designed to enable the Palestinian people to exercise the rights previously
recognized; and requested the Security Council to consider the question of
the exercise by the Palestinian people of their inalienable rights (resolution
3376 (XXX)).
The General Assembly considered the item on the question of Palestine at
its thirty-first to sixtieth sessions (resolutions 31/20, 32/40 A and B, 33/28 A
to C, 34/65 A to D, 35/169 A to E, 36/120 A to F, 37/86 A to E, 38/58 A to E,
39/49 A to D, 40/96 A to D, 41/43 A to D, 42/66 A to D, 43/175 A to C, 43/176,
49
1974 UN General Assembly recognized and accorded recognition to the Angolan,
Mozambican, Palestinian, and Rhodesian movements. Add UN GA 3237 (XXIX)
(November 22, 1974 PLO observer status to UN).

PA R T I
43/177, 44/2, 44/41 A to C, 44/42, 45/67 A to C, 45/68, 45/69, 46/74 A to C,

46/75, 46/76, 47/64 A to E, 48/158 A to D, 49/62 A to D, 50/84 A to D, 51/23,
51/24, 51/25, 51/26, 52/49, 52/50, 52/51, 52/52, 53/39, 53/40, 53/41, 53/42,
54/39, 54/40, 54/41, 54/42, 55/52, 55/53, 55/54, 55/55, 56/33, 56/34, 56/35,
56/36, 57/107, 57/108, 57/109, 57/110, 58/18, 58/19, 58/20, 58/21, 59/28,
59/29, 59/30, 59/31, 60/36, 60/37, 60/38 and 60/39)….
At its forty-third session, the General Assembly acknowledged the procla-
mation of the State of Palestine by the Palestine National Council on 15 No-
vember 1988; affirmed the need to enable the Palestinian people to exercise
their sovereignty over their territory occupied since 1967; and decided that,
effective as at 15 December 1988, the designation “Palestine” should be used
in place of the designation “Palestine Liberation Organization” in the United
Nations system, without prejudice to the observer status and functions of the
PLO within the United Nations system, in conformity with relevant United
Nations resolutions and practice (resolution 43/177).
At its sixty-first session, the General Assembly requested the Committee
on the Exercise of the Inalienable Rights of the Palestinian People to continue
to exert all efforts to promote the realization of the inalienable rights of the
Palestinian people, to support the Middle East peace process and to mobilize
international support for and assistance to the Palestinian people, and autho-
rized the Committee to make such adjustments in its approved programme of
work as it might consider appropriate and necessary in the light of develop-
ments and to report thereon to the Assembly at its sixty-second session and
thereafter (resolution 61/22).
At the same session, the General Assembly requested the Division for Pal-
estinian Rights of the Secretariat, as part of the observance of the International
Day of Solidarity with the Palestinian People on 29 November, to continue to
organize, under the guidance of the Committee on the Exercise of the Inalien-
able Rights of the Palestinian People, an annual exhibit on Palestinian rights
or a cultural event in cooperation with the Permanent Observer Mission of
Palestine to the United Nations (resolution 61/23).
The General Assembly also requested, at its sixty-first session, the De-
partment of Public Information of the Secretariat, in full cooperation and
coordination with the Committee on the Exercise of the Inalienable Rights
of the Palestinian People, to continue, with the necessary flexibility as might
be required by developments affecting the question of Palestine, its special
information programme for the biennium 2006-2007, in particular, inter alia,
to strengthen the annual training programme for Palestinian broadcasters and
journalists (resolution 61/24).

Also at the same session, the General Assembly… demanded that Israel, the
occupying Power, comply with its legal obligations under international law, as
mentioned in the advisory opinion of the International Court of Justice and
as demanded in resolutions ES-10/13 of 21 October 2003 and ES-10/15 of
20 July 2004 and, inter alia, that it immediately cease its construction of the
wall in the Occupied Palestinian Territory, including East Jerusalem; reiterated
its demand for the complete cessation of all Israeli settlement activities in the
Occupied Palestinian Territory, including East Jerusalem, and in the occupied
Syrian Golan, and called for the full implementation of the relevant Security
Council resolutions; reaffirmed its commitment to the two-State solution of
Israel and Palestine, living side by side in peace and security within recognized
borders, based on the pre-1967 borders; urged Member States to expedite the
provision of economic, humanitarian and technical assistance to the Palestin-
ian people and the Palestinian Authority; and requested the Secretary- General
to continue his efforts with the parties concerned, and in consultation with
the Security Council, towards the attainment of a peaceful settlement of the
question of Palestine and the promotion of peace in the region and to submit
to the Assembly at its sixty-second session a report on those efforts and on
developments on the matter (resolution 61/25).
United Nations General Assembly Resolution 3237(XXIX),

Observer Status for the Palestine Liberation Organization,
22 November 1974
Having considered the question of Palestine,
Taking into consideration the universality of the United Nations prescribed
in the Charter,
Recalling its resolution 3102 (XXVIII) of 12 December 1973,
Taking into account Economic and Social Council resolutions 1835 (LVI)
of 14 May 1974 and 1840 (LVI) of 15 May 1974,
Noting that the Diplomatic Conference on the Reaffirmation and Develop-
ment of International Humanitarian Law Applicable in Armed Conflicts, the
World Population Conference and the World Food Conference have in effect
invited the Palestine Liberation Organization to participate in their respective
deliberations,
Noting also that the Third United Nations Conference on the Law of the
Sea has invited the Palestine Liberation Organization to participate in its de-
liberations as an observer,

PA R T I
1. Invites the Palestine Liberation Organization to participate

in the sessions and the work of the General Assembly in the
capacity of observer;
2. Invites the Palestine Liberation Organization to participate
in the sessions and the work of all international conferences
convened under the auspices of the General Assembly in the
capacity of observer;
3. Considers that the Palestine Liberation Organization is entitled
to participate as an observer in the sessions and the work of
all international conferences convened under the auspices of
other organs of the United Nations;
4. Requests the Secretary-General to take the necessary steps for
the implementation of the present resolution.
Individuals, NGOs and Business Enterprises

as Subjects
Andrew Clapham, “The Role of the Individual in
International Law”50
Abstract…
This short piece tackles the role of the individual in international law….
[…]Ever since the 1966 edition of Principles of International Law Brownlie
has asserted, ‘There is no general rule that the individual cannot be a “subject
of international law,” and in particular contexts he appears as a legal person on
the international plane’.51 Indeed it does make sense to shift the discussion from
subjectivity to personality, and from general theory to particular contexts. But
this still begs the question: what exactly does this appearance of the individual
on the international scene bring with it in term of rights and obligations under
general international law?52
50
Professor of Public International Law, Graduate Institute of International and
Development Studies, Geneva, Director of the Geneva Academy of International
Humanitarian Law and Human Rights. Email: andrew.clapham@graduateinstitute.
ch. [Reprinted with permission of the author].
51
(7th ed., 2008), at 65.
52
Shaw’s discussion in the 6th edition of his International Law (2008), at 258, asserts
that ‘modern prac-tice does demonstrate that individuals have become increasingly

Let us consider first the issue of individual obligations under international

criminal law. In the soliloquy which opens his book of selected papers Cassese
quotes the two US members of the Commission on the Responsibility of the
Authors of the War and on the Enforcement of the Penalties who stated in 1919
that ‘the laws and principles of humanity are not certain, varying with time,
place and circumstances, and according, it may be, to the conscience of the
individual judge. There is no fixed and universal standard of humanity’.53 But
he narrates that by the end of World War II the International Military Tribunal
judges argued:
To assert that it is unjust to punish those who in defiance of
treaties and assurances have attacked neighbouring states without
warning is obviously untrue, for in such circumstances the attacker
must know that he is doing wrong, and so far from it being unjust
to punish him, it would be unjust if his wrong were allowed to go
unpunished.54
Individual judges acting collectively felt they could determine what was
obviously wrong, against humanity, and unjust, to the extent that they felt it
was obvious that individuals had obligations under international law and could
be punished, even with death by hanging, for violating those international
obligations.
So we find the individual as the bearer of individual obligations under in-
ternational criminal law in the context of international armed conflicts. Almost
50 years later, in the Tadic decision of the Appeals Chamber of the International
Criminal Tribunal for the former Yugoslavia, the idea is applied to individual
criminal responsibility for certain violations of humanitarian law committed
recognised as participants and sub-jects of international law’, but the subsequent paras
are confined to recalling those treaties which allow individuals to appeal directly to an
international body, and he recalls at 259 that it is now established that international
law proscribes certain heinous conduct so that it ‘imports direct individual criminal
responsibility’.
53
‘Soliloquy’, in Cassese, supra note 5, at pp. lxii-lxiii, quoting the ‘Report Presented to
the Preliminary Peace Conference by the Commission on the Responsibility of the
Authors of War and on the Enforcement of penalties’, in Violations of the Laws and
Customs of War, Report of Majority and Dissenting Reports of Americans and Japanese
members of the Commission of Responsibilities, Conference of Paris 1919 (1919), at
13.
54
Ibid., at p. lxii with a reference to Trial of the Major War Criminals before the Interna-
tional Military Tribunal- Nuremberg 14 November 1945-1 October 1946(Nuremberg
International Military Tribunal, 1947), at 219 (emphasis added).

PA R T I
in non-international armed conflicts.55 By 2002 we have a Statute in force for

a permanent International Criminal Court with jurisdiction over individuals
covering not only war crimes but also genocide and crimes against humanity.
Over the last 60 years we have also seen a change in the status of the indi-
vidual as a holder of rights under international law. How can we deduce these
international rights? For Cassese one can assume ‘corresponding rights’ to ev-
ery individual’s ‘strict international obligation fully to respect some important
values (maintenance of peace, protection of human dignity etc.)’.56 He claims:
It would be not only consistent from the viewpoint of legal
logic but also in keeping with new trends emerging in the world
community to argue that the international right in respect of those
obligations accrues to all individuals: they are entitled to respect for
their life and limbs, and for their dignity; hence they have a right
not to become a victim of war crimes, crimes against humanity,
aggression, torture, terrorism. At least for the time being, this
international right, deriving from general international rules, is not,
however, attended by a specific means, or power, of enforcement
that belongs to individuals.57
In other words individuals currently have obligations and rights but no
remedies under general international law. A traditional international lawyer
might claim that inducing rights from obligations in this way is not appropri-
ate, as states can impose obligations on individuals under criminal law without
automatically generating the rights to a civil remedy for the victim. Similarly, the
traditionalist might argue that even human rights treaties simply created rights
and obligations for the states parties. Individuals were the beneficiaries of these
treaties, just as animals might be the beneficiaries of an endangered species
convention. Although the treaty might create rights enforceable at the national
level, that might be a quirk of national law, rather than an inevitable consequence
of international law (it could be argued). Originally under the regional human
rights treaties the international law in question was sometimes seen as merely
granting individuals procedural rights to seise, say, the European Commission
of Human Rights, but the settlement of the dispute in legal terms demanded
that the Commission decide whether to present a case to the Court. As is well
known this changed for that Convention in 1998 with the adoption of the 11th
55
See ICTY, Appeals Chamber, Decision on the defence motion for Interlocutory Ap-
peal on Jurisdiction, Prosecutor v. Tadic, (IT-94-1-AR72), 2 Oct. 1995, especially at
paras 128-13 7.
56
International Law (2nd ed., 2005), at 145.
57
Ibid.

Protocol allowing the individual victim to seise the Court directly. The same is
now possible with regard to the African Court of Human and Peoples’ Rights.
Can we reason therefore that the individual has not only criminal law ob-
ligations but also rights under international law? At this point we should recall
the doctrinal debate which has raged over whether it made sense for individuals
to be considered ‘subjects’ of international law. Gaja has recently addressed the
issue in the context of the question whether non-governmental organizations
should be included in the scope of the ILC’s work on the responsibility of in-
ternational organizations. Here the doctrine concerning the current category
of subjects seems to exclude non-governmental organizations, but Gaja, having
recalled the International Court of Justice’s conclusions regarding the UN and
its specialized agencies, exposes the indeterminate nature of the concept (or
conception) of subjects of international law. Gaja recalls the implications of
the same Court’s LaGrand dictum:
The Court’s assertion of the legal personality of international organizations
needs to be viewed in the context of its more recent approach to the question
of legal personality in international law. The Court stated in the LaGrand case
that individuals are also subjects of international law.58 This approach may lead
the Court to assert the legal personality even of non-governmental organiza-
tions. It would be difficult to understand why individuals may acquire rights
and obligations under international law while the same could not occur with
any international organization, provided that it is an entity which is distinct
from its members…59
To be clear I am suggesting that individuals may have a role to play with
regard to respect for international law which goes beyond their international
criminal law obligations. This could involve obligations which have not been
criminalized, or simply mean that an act could give rise to simultaneous criminal
and civil violations of international law.
58
Footnote 47 in the original reads: ‘I.C.J. Reports 2001, para. 77. The Court referred
to the Vienna Con-vention on Consular Relations of 24 April 1963 and concluded
that “article 36, paragraph 1, creates individual rights.”
59
First report on responsibility of international organizations, UN Doc.A/CN.4/532, 26
Mar. 2003, at para.17. See also the Report of the ILC Working Group, ‘The Responsi-
bility of International Organiza-tions: Scope and Orientation of the Study’, UN Doc.
A/CN.4/L.622, 6 June 2002, at para.11: ‘[t]he topic would be considerably widened if
the study were to comprise also organizations that States establish under municipal
laws, for example under the law of a particular State, and non-governmental orga-
nizations. Thus, it may seem preferable to leave questions of responsibility relating
to this type of organization aside, at least provisionally.’

PA R T I
Article 58 of the ILC’s Drafts Articles on State Responsibility reads: ‘These

articles are without prejudice to any question of the individual responsibility
under international law of any person acting on behalf of a State.’ The ILC’s
Commentary explains that Article 58 was drafted so as not to preclude any
development with regard to international civil liability for individuals.60
To summarize the status of the individual in international law: since
Nuremberg and Tadic we have known that individuals have criminal law obli-
gations under the laws of armed conflict. Despite doctrinal reticence to accord
individuals subjectivity, individuals are now seen as having not only criminal
law obligations but also rights under international law. If we do not want the
development of international law to stagnate we should perhaps admit the
progressive idea that individuals have, in addition to these rights and criminal
law obligations, certain international civil law obligations; this step could help
to build an international community which properly recognizes the role of the
individual in international law.
LaGrand Case (Germany v. United States), 201161
***
75. Germany further contends that “the breach of Article 36 by the United
States did not only infringe upon the rights of Germany as a State party to the
[Vienna] Convention but also entailed a violation of the individual rights of the
LaGrand brothers.” Invoking its right of diplomatic protection, Germany also
seeks relief against the United States on this ground.
Germany maintains that the right to be informed of the rights under Article
36, paragraph 1 (b), of the Vienna Convention, is an individual right of every
national of a State party to the Convention who enters the territory of another
State party. It submits that this view is supported by the ordinary meaning of
the terms of Article 36, paragraph 1 (b), of the Vienna Convention, since the
last sentence of that provision speaks of the “rights” under this subparagraph
of “the person concerned,” i.e., of the foreign national arrested or detained.
Germany adds that the provision in Article 36, paragraph 1 (b), according to
which it is for the arrested person to decide whether consular notification is to
60
‘So far this principle has operated in the field of criminal responsibility, but it is not
excluded that developments may occur in the field of individual civil responsibility.
As a saving clause Article 58 is not intended to exclude that possibility; hence the
use of the general term “individual responsibility”’: Draft Articles on Responsibility
of States for Wrongful Acts, with commentaries, Yearbook of the International Law
Commission, 2001, Vol. II, Part Two, at 142 (footnote omitted).
61
LaGrand Case (Germany v. United States), I.C.J. Reports 2001, p.466 and Oda dissent.

be provided, has the effect of conferring an individual right upon the foreign
national concerned. In its view, the context of Article 36 supports this conclu-
sion since it relates to both the concerns of the sending and receiving States
and to those of individuals. According to Germany, the travaux preparatoires of
the Vienna Convention lend further support to this interpretation. In addition,
Germany submits that the “United Nations Declaration on the human rights of
individuals who are not nationals of the country in which they live,” adopted
by General Assembly resolution 40/144 on 13 December 1985, confirms the
view that the right of access to the consulate of the home State, as well as the
information on this right, constitute individual rights of foreign nationals and
are to be regarded as human rights of aliens.
76. The United States questions what this additional claim of diplomatic
protection contributes to the case and argues that there are no parallels between
the present case and cases of diplomatic protection involving the espousal by a
State of economic claims of its nationals. The United States maintains that the
right of a State to provide consular assistance to nationals detained in another
country, and the right of a State to espouse the claims of its nationals through
diplomatic protection, are legally different concepts.
The United States contends, furthermore, that rights of consular notifica-
tion and access under the Vienna Convention are rights of States, and not of
individuals, even though these rights may benefit individuals by permitting
States to offer them consular assistance. It maintains that the treatment due
to individuals under the Convention is inextricably linked to and derived from
the right of the State, acting through its consular officer, to communicate with
its nationals, and does not constitute a fundamental right or a human right.
The United States argues that the fact that Article 36 by its terms recognizes
the rights of individuals does not determine the nature of those rights or the
remedies required under the Vienna Convention for breaches of that Article. It
points out that Article 36 begins with the words “[w]ith a view to facilitating the
exercise of consular functions relating to nationals of the sending State,” and
that this wording gives no support to the notion that the rights and obligations
enumerated in paragraph 1 of that Article are intended to ensure that nationals
of the sending State have any particular rights or treatment in the context of
a criminal prosecution. The travaux preparatoires of the Vienna Convention
according to the United States, do not reflect a consensus that Article 36 was
addressing immutable individual rights, as opposed to individual rights deriva-
tive of the rights of States.
77. The Court notes that Article 36, paragraph 1 (b), spells out the obli-
gations the receiving State has towards the detained person and the sending

PA R T I
State. It provides that, at the request of the detained person, the receiving State
must inform the consular post of the sending State of the individual’s detention
“without delay.” It provides further that any communication by the detained
person addressed to the consular post of the sending State must be forwarded
to it by authorities of the receiving State “without delay.” Significantly, this
subparagraph ends with the following language:
“The said authorities shall inform the person concerned without delay of
his rights under this subparagraph” (emphasis added). Moreover, under Article
36, paragraph 1 (c), the sending State’s right to provide consular assistance to
the detained person may not be exercised “if he expressly opposes such action.”
The clarity of these provisions, viewed in their context, admits of no doubt. It
follows, as has been held on a number of occasions, that the Court must apply
these as they stand (see Acquisition of Polish Nationality, Advisory Opinion,
1923, P.C.I.J., Series B, No. 7, p. 20; Competence of the General Assembly for
the Admission of a State to the United Nations, Advisory Opinion, I.C.J. Reports
1950, p. 8; Arbitral Award of 31 July 1989, Judgment, I.C.J. Reports 1991, pp.
69-70, para. 48; Territorial Dispute (Libyan Arab Jamahiriya/Chad), Judgment,
I.C.J. Reports 1994, p. 25,para. 51). Based on the text of these provisions, the
Court concludes that Article 36, paragraph 1, creates individual rights, which,
by virtue of Article I of the Optional Protocol, may be invoked in this Court
by the national State of the detained person. These rights were violated in the
present case.
78. At the hearings, Germany further contended that the right of the in-
dividual to be informed without delay under Article 36, paragraph 1, of the
Vienna Convention was not only an individual right, but has today assumed
the character of a human right. In consequence, Germany added, “the charac-
ter of the right under Article 36 as a human right renders the effectiveness of
this provision even more imperative.” The Court having found that the United
States violated the rights accorded by Article 36, paragraph 1, to the LaGrand
brothers, it does not appear necessary to it to consider the additional argument
developed by Germany in this regard.
Separate Opinion of Judge Shi
[p. S.O. Shi] …The result of the debate was the adoption of the twenty States’
amendment with the insertion of the words “if he so requests” at the beginning
of the subparagraph. The last sentence of Article 36, paragraph 1 (b), i.e., the
provision that the competent authorities of the receiving State “shall inform
the person concerned without delay of his rights” (United Nations Conference
on Consular Relations, 1963, Vol. 1, pp. 336-343) was inserted belatedly as a
compromise between the aforesaid two opposing views. Thus, it is not possible

to conclude from the negotiating history that Article 36, paragraph 1 (b), was
intended by the negotiators to create individual rights. Moreover, if one keeps
in mind that the general tone and thrust of the debate of the entire Confer-
ence concentrated on the consular functions and their practicability, the better
view would be that no creation of any individual rights independent of rights
of States was envisaged by the Conference.
Separate Opinion of Judge Oda
[pp. 536 D.O. Oda] …I see no convincing argument to support the determi-
nation of the Court that “Article 36, paragraph 1, creates individual rights for
the detained person in addition to the rights accorded the sending State, and ...
consequently the reference to ‘rights’ in paragraph 2 must be read as applying
not only to the rights of the sending State, but also to the rights of the detained
individual” (Judgment, para. 89).
I shall take the liberty of expressing my puzzlement at the reason for and
relevance of the Court’s reference in the Judgment to Article 36, paragraph 1
(c), of the Convention in connection with the rights of a detained person. I
believe that this provision was included in the Convention simply to provide
for the situation in which an arrested foreign national waives consular notifica-
tion in order to prevent his criminal conduct or even his presence in a foreign
country from becoming known in his home country; that provision may not
have any further significance.
[p. 537 D.O. Oda]…I am not convinced of the correctness of the Court’s
holding that the Vienna Convention on Consular Relations grants to foreign
individuals any rights beyond those which might necessarily be implied by the
obligations imposed on States under that Convention. In addition, I cannot but
think that the Court holds the view that the Vienna Convention on Consular
Relations grants more extensive protection and greater or broader individual
rights to foreign nationals (in this case, German nationals in the United States)
than would be enjoyed by nationals in their home countries (in this case,
Americans in the United States).
If the Vienna Convention on Consular Rights is to be interpreted as granting
rights to individuals, those rights are strictly limited to those corresponding to
the obligations borne by the States under the Convention and do not include
substantive rights of the individual, such as the rights to life, property, etc. I find
the Judgment devoid of any convincing explanation of this point.

PA R T I
Alice De Jong, “Transnational Corporations and International

Law: Bringing TNCs out of the Accountability Vacuum”62
Both theory and practice have now firmly abandoned the traditional
doctrine that states are the exclusive subjects of international law. By the
middle of the twentieth century, both international organizations and in-
dividuals had been brought under the coverage of international law... So far
as individuals are concerned, persons in States which have ratified the First
Optional Protocol can now lodge individual complaints to the UN Human
Rights Council in the event of State failure to protect the rights contained
in the International Covenant on Civil and Political Rights. The 1998 Rome
Statute of the International Criminal Court (ICC) provides an avenue for
bringing individuals to account for “the most serious crimes of concern to the
international community as a whole” (Rome Statute, 1998, article 5). So far
as legal (corporate) persons are concerned, however, there are no equivalent
duties imposed on them by international law…What TNCs do have, however, is
access to a variety of protections and rights contained in bilateral and bilateral
investment treaties. Chapter 11 of the North American Free Trade Agreement
(NAFTA)[8-10], for example, protects TNCs from arbitrary expropriation of
their assets by the host government. Article 1110 of the NAFTA allows TNC
investors to bring a host government to compulsory arbitration in the event
of expropriation without due compensation. America’s bilateral trade and
investment treaties also provide for protection of the rights of TNCs invest-
ing outside the country of incorporation, and for compulsory arbitration in
the event of a host-government-investors dispute.
International Court of Justice: Practice Directions
Practice Direction XII, Consideration of NGO Amicus

Curiae Briefs63
The Court first adopted in October 2001 Practice Directions for use by
States appearing before it. Practice Directions involve no alteration to the Rules
of Court, but are additional hereto. They are the result of the Court’s ongoing
review of its working methods. Any amendments to the Practice Directions,
following their adoption by the Court, are now posted on the Court’s website
62
Excerpt from Alice de Jong, “Transnational Corporations and International Law:
Bringing TNCs out of the Accountability Vacuum,” p.68 available at: www.emeraldin-
sight.com/1742-2043.htm.
63
International Court of Justice; Practice Directions, http://www.I.C.J.-cij.org/docu-
ments/index.php?p1=4&p2=4&p3=0.

and published in the Court’s Yearbook, with a note of any temporal reservations
relating to their applicability.
***
Practice Direction XII
1. Where an international non governmental organization submits a written
statement and/or document in an advisory opinion case on its own initiative,
such statement and/or document is not to be considered as part of the case file.
2. Such statements and/or documents shall be treated as publications readily
available and may accordingly be referred to by States and intergovernmental
organizations presenting written and oral statements in the case in the same
manner as publications in the public domain.
3. Written statements and/or documents submitted by international non
governmental organizations will be placed in a designated location in the Peace
Palace. All States as well as intergovernmental organizations presenting written
or oral statements under Article 66 of the Statute will be informed as to the
location where statements and/or documents submitted by international non
governmental organizations may be consulted.
Rebasti and Vieruccci, “A Legal Status for NGOs in

Contemporary International law?”64
Introduction
In recent years we have witnessed an unprecedented activity of Non-
Governmental Organisations (NGOs)65 at the international level. NGOs have
played a crucial role in setting the international agenda, in influencing interna-
tional rule-making and in contributing to the implementation of international
norms. They have proven to be a driving force in some of the major innovations
undergone in the international system (e.g. the establishment of a permanent
International Criminal Court) but also vital partners in the day-to-day enforce-
ment of international standards and programs.
64
Emanuele Rebasti and Luisa Vierucci, at http://www.esil-sedi.eu/fichiers/en/Vieruc-
ciRebasti_971.pdf.
65
The notion of NGO is not univocal in the international practice or in academic debate.
In the present study the term is used to identify organizations established by private
initiative, formally free from any governmental influence and without profit-making
aim. The notion is considered equivalent to the one of “Civil Society Organization”
or more generally to “civil society.” The latter term is thus meant to have a narrower
meaning than the one retained by some IGOs (e.g. UN) where it includes also the
private sector.

PA R T I
The new dimension of the phenomenon raises the problem of whether

(and if so, how) it is necessary to redefine the traditional (non) legal status of
NGOs in the international order and to provide civil society with a clear legal
framework for its action. Following the outcomes of a workshop held at the
European University Institute in 2002 (Florence Workshop), we have specifi-
cally focused on two privileged fields of NGOs action: the relationship with
Inter-Governmental Organisations (IGOs) and the participation in international
judicial proceedings. Interaction with intergovernmental organizations has
always represented a central part of NGOs activity at the international level.
Since the time of the League of Nations66, forms of cooperation have devel-
oped in response to a convergence of NGOs and IGOs’ interests. On the one
hand, the institutional structures of international cooperation provide NGOs
with the forum they necessitate to make their voice heard beyond the bound-
aries of the nation State and with a political target for the exercise of their
non-governmental diplomacy. On the other, IGOs have increasingly looked
at non-governmental organizations as strategic allies to ensure the success of
their policies and programs, either by disseminating information and raising
public awareness or by means of direct action on the field.
However the growth of non-governmental action both in quantitative
and in qualitative terms has put under pressure the existing participatory tools
and raised new problems. Nongovernmental organizations claims a broader
involvement in the intergovernmental process, which they criticize for be-
ing auto-referential and undemocratic. Conversely, as civil society gains more
power, it is called upon to justify its legitimacy and to meet higher demands
for accountability and transparency. Moreover, an higher level of participation
requires that the existing patterns of relationship are streamlined in order to
avoid duplication, loss of information and waste of resources….
Access to justice is one of the major components of the relations between
IOs and civil society. This component has become increasingly crucial by rea-
son of the proliferation of international courts and tribunals that has been
taking place in the last 15 years. While international justice was until recently
prerogative of states, with the limited exception of some human rights and
investment treaties granting legal standing to physical or legal persons, the
last decade of the XX century bore witness to the creation of international
jurisdictions with competence over individuals (e.g. the International Criminal
Court (ICC)), the International Criminal Tribunal for the former Yugoslavia
66
See Seary, “The Early History – From the Congress of Vienna to the San Francisco
Conference” in Willets ed., The Conscience of the World – The Influence of Non-
Governmental Organisations in the UN System, 1996.

(ICTY) and for Rwanda (ICTR)). The proliferation of judicial bodies coupled
with enhanced public participation of NGOs at the international level calls for
a re-assessment of the interrelationship between these two entities mostly with
a view to verifying the state of the art from an international law angle. This
means investigating whether NGOs are satisfied with the access to justice they
are currently experiencing as well as speculating on the opportunity eventu-
ally to suggest changes de lege ferendain order to making their participation
to international justice more fruitful.


PA R T I
CHAPTER 4
TERRITORIAL SOVEREIGNTY
The Concept of Territory in International

Law
Martin Dixon, “Jurisdiction and Sovereignty”67
The concept of ‘jurisdiction’ in international law can cover a multitude of
sins. In this chapter, we shall examine the nature and extent of a state’s author-
ity over territory, persons and aircraft....
6.1. General principles of jurisdiction
In the Lotus Case (1927) PCIJ Ser. A No. 10, the Permanent Court of In-
ternational Justice stated that ‘the first and foremost restriction imposed by
international law upon a state is that-failing the existence of a permissive rule
to the contrary-it may not exercise its power in any form in the territory of
another state’. In other words, unless it is expressly permitted, State A may
not exercise jurisdiction in the territory of State B. However, the Court went
on to explain that this did not mean that a state was barred from exercising
jurisdiction in its own territory in respect of any acts which took place abroad.
In international law, there was no general prohibition against states extending
their legislative jurisdiction to persons, property and events taking place outside
their territory. In fact, the reverse was true, and many international dispute it
was for the state alleging lack of jurisdiction to prove the, existence of a rule
of international law specifically curtailing the general power which every state
possessed. This general ability to assume prescriptive jurisdiction the right to
legislate for matters beyond the territorial domain- flowed from the absolute
sovereignty of the state and could be curtailed only by positive limitation.
It appears from the Lotus Case, then, that we have two competing general
rules of jurisdiction. On the one hand, the ‘first and foremost’ rule is that one
state may not exercise jurisdiction in the territory of another state. On the other
67
Excerpt from Martin Dixon, Textbook on International Law, pp. 132-34, 136-37, 5th
ed. [Reprinted with permission Oxford University Press, 2005].

CHAPTER 4 TERRITORIAL SOVEREIGNTY
hand, there is an equally general principle that a state is entirely free to project
its jurisdiction over any matter taking place outside its territory, so long as this
is not prohibited by a contrary rule of international law in a specific case. Can
both these statements of principle be correct, for they appear to be mutually
exclusive? The answer lies in the fact that the concept of state jurisdiction over
persons, property and territory encompasses two distinct ideas.
6.1.1 The jurisdiction to prescribe
The power of a state to bring any (matter within the cognisance of its
national law is called its prescriptive jurisdiction. The second principle of the
Lotus Case refers to this. It is the power of a state, to assert the applicability of
its national law to any person, property, territory or event, wherever they may
be situated or wherever they may occur. As we have seen from the dicta in
the Lotus Case, in the exercise of its prescriptive jurisdiction a state is virtually
unlimited by international law, save only that it may have accepted specific
international obligations limiting its competence. Two good examples of the
prescriptive jurisdiction of the UK are the Broadcasting Act 1990 which makes
it an offence under UK law to broadcast from the high seas in a manner which
interferes with domestic broadcasting services, and the case of Joyce v DPP
[1946J AC 347, which illustrates that the offence of treason may be committed
by any person owing allegiance to the Crown who has done a treasonable act,
wherever that act took place. In essence, the jurisdiction to prescribe comprises
a generally unfettered power to claim jurisdiction over any matter. However,
the practical effect of this jurisdiction is curtailed by the first of the principles
outlined in the Lotus Case—the jurisdiction to enforce.
6.1.2 The jurisdiction to enforce
Whereas a state may have a general power under international law to
prescribe jurisdiction, the enforcement of that jurisdiction can generally take
place only within its own territory. Specifically, a state cannot, as the above
quotation from the Lotus Case makes’ clear, enforce its prescriptive jurisdiction
in the territory of another state. Consequently, the actual exercise of jurisdic-
tion—the operation of a police force, national courts etc.—is limited to the
territory of the state asserting jurisdiction unless there is an agreement that
the enforcement jurisdiction can take place elsewhere. So when a person over
whom the state has prescribed jurisdiction enters the territory, the state may
proceed to exercise its powers, as in Joyce v DPP. It cannot, in the absence of
special permission, seek to enforce its prescriptive jurisdiction outside of its
territory. A rare example of such a special permission is the UK/Netherlands
Agreement 1999, permitting the trial of the Lockerbie subjects by a Scottish
court, according to Scots law, in Dutch territory.

PA R T I
In fact, then, the two principles identified in the Lotus Case are not contra-
dictory. They are concerned with two different species of jurisdiction. Under
international law, a state may assert, by its national law, a jurisdiction that is
virtually unlimited. However, any enforcement of that jurisdiction is confined
to its own territory and must not, without special agreement, be exercised in
any form in the territory of another state. As we shall see, the territorial exclu-
siveness of the jurisdiction to enforce is one of the most important principles
of international law.
6.1.3 The absolute nature of territorial jurisdiction
Third, and as a corollary to the first of the Lotus principles, it is a funda-
mental rule of international law that the jurisdiction of a state within its own
territory is complete and absolute. The state has power and authority over
all persons, property and events occurring within its territory. This is a basic
attribute of sovereignty and flows from the very existence of the state as an
international legal person. Furthermore, no other power, including, the United
Nations (Charter Art. 2(7)), may exercise an enforcement jurisdiction in state
territory and matters arising within domestic jurisdiction cannot form the sub-
ject matter of international claims, save in exceptional cases (such as human
rights). It is for this reason, for example, that police officers from other states
have no authority within the UK and may operate there only with the consent
of the relevant UK authorities.
However, it is clear that the absolute and complete nature of territorial
jurisdiction can be modified either by general principles of international law
or by specific obligations freely undertaken by the territorial sovereign. For
example, a state is obliged under international law to refrain from exercising
its territorial jurisdiction over diplomats… and public vessels of other states (e.g.
Schooner Exchange v McFaddon (1812) 7 Cranch 116). These have immunity
from jurisdiction. Similarly, a state may agree by treaty that another state can
exercise some form of enforcement jurisdiction within its territory (e.g. the
UK/Netherlands Agreement 1999) or the grant of jurisdiction may be an aspect
of the grant of sovereignty, as with the.UK sovereign military bases in Cyprus
and the US military base in Cuba.
To sum up, then, the basic principles of jurisdiction are, first, that a state
has authority under international law to apply its national laws to matters
arising within and outside its territory, irrespective of the nationality of the
object of that jurisdiction: this’s its prescriptive jurisdiction. Second, this pre-
scriptive jurisdiction is curtailed in practice by the fact that the enforcement of
jurisdiction may take place only in a state’s own territory unless some special
permission has been granted to exercise enforcement jurisdiction in an area

under the sovereignty of another state. Third, a state has absolute and exclusive
power of enforcement within its own territory over all matters arising therein,
unless that: power is curtailed by some rule of international law, either general
or specific. No other state or international legal person may trespass into the
‘domestic jurisdiction’ of the territorial sovereign.
6.2.1 Territorial jurisdiction
This principle is inherent in what has been discussed above. It is, simply, that
a state has jurisdiction over all matters arising in its territory. This is so whether
the individuals concerned are nationals, friendly aliens or enemy aliens, and,
for example, was the primary ground for Scotland’s assertion of jurisdiction in
the Lockerbie case. There is no doubt that this rule accords with international
practice and the greater part of the criminal and civil jurisdiction exercised by
states is based on this principle. Some doubts remain as to when an act can
be said to have ‘taken place’ on the territory of a state, but these have been
substantially reduced by the development of the ‘objective’ and ‘subjective’
approaches to territorial jurisdiction.
(a) Objective territoriality. A state will have jurisdiction over offences which
are completed in its territory, even though some element constituting the of-
fence (or civil wrong) took place abroad. In the Lotus Case, for example, a
collision between The Lotus, a French ship, and a Turkish vessel resulted, in the
death of eight persons on the Turkish vessel. France objected to the exercise
of jurisdiction by Turkey over the French Officer of the Watch. However, after
noting that the Turkish vessel was to be assimilated to Turkish territory, the
PCIJ decided that Turkey was entitled to exercise jurisdiction by virtue of the
fact that a constituent element in the offence of manslaughter—death—had
occurred on Turkish territory.
(b) Subjective territoriality. This is simply the converse of the principle just
discussed. Thus, a state has jurisdiction over all offences and matters commenc-
ing in its territory, even if some element—or the completion of the offence—
takes place in another state.
In the United Kingdom, the territoriality of jurisdiction is regarded as of
fundamental importance, as made clear in Compania Naviera Vascortgado v
Steamship ‘Cristitta’ [1938] AC 485, when the court emphasised the absolute-
ness of the court’s reach within the territory. So, by way of corollary, in R v
Governor of Belmarsh Prison, ex parte Martin (1995] 2 All ER 548, the Court of
Appeal refused in the absence of clear words to construe an Act of Parliament
as operating extraterritorialty, that is in respect of acts occurring outside the
territory, as this was contrary to the normal UK presumption about the reach
of its jurisdiction. More importantly, the UK once took the general view that

PA R T I
as a matter of common law a crime did not ‘occur’ within state territory (so
did not trigger an exercise of jurisdiction) unless the last event constituting the
crime took place within the UK: there was a self-imposed presumption against
subjective territoriality, even though international law permitted just such an
approach. When transnational crime was little known this was not a serious
limitation. However, in the ‘global village’, the fact that an individual might
escape UK jurisdiction because an offence was completed abroad, even if all
preliminary steps in the commission of the ‘crime’ were undertaken within the
territory, became more difficult to justify. Consequently, the Law Commission
reviewed the matter and its modified proposals resulted in the enactment of
the Criminal Justice Act 1993, ss. 1-3. This preserves the principle of territoriality
in criminal matters - in the sense that there is no general modification of the
principle that jurisdiction does not exist for acts occurring outside the terri-
tory—but authorises courts in England and Wales to exercise jurisdiction over
certain crimes. Where a constituent element of the crime occurred within UK
territory, whether or not the final element was completed therein. It is a move
to subjective territoriality. This is perfectly in conformity with international
law and is a pattern already followed in other states. It must also be appreci-
ated that the UK may still exercise an extraterritorial jurisdiction where such is
specifically provided for by Act of Parliament (e.g. Civil Aviation (Amendment)
Act 1996) or where justified by the other international principles of jurisdic-
tion considered below.
6.2.2 Nationality jurisdiction
It is clear that international law permits (but does not require) a state to
exercise jurisdiction over its nationals, wherever they may be when the offence
or civil wrong is committed. A national is entitled to the diplomatic protection
of his or her state at all times and, as a corollary, he or she is subject to its civil
and criminal jurisdiction. Necessarily, the jurisdiction will not be exercised
until the national physically comes within the territory of his or her home
state and it may be that the state takes no action, because the matter has been
dealt with by the state in whose territory the events did occur. However, there
is a recognised legal right to exercise jurisdiction on the basis of nationality,
and this is now exercised by the UK in respect of offences of a serious nature
(e.g. murder, some sexual offences). Thus, in the Trial of Earl Russel [1901] AC
446, the defendant, a UK national, was convicted of bigamy even though the
second act of marriage took place outside the United Kingdom. This case is
also an early (and then rare) example of the subjective territorial principle in
operation in the United Kingdom.

The S.S. “Lotus” Case (France v. Turkey), 192768
***
By a special agreement signed at Geneva on October 12, 1926, between the
Governments of the French and Turkish Republics… [the parties] have submit-
ted to the Permanent Court of International Justice the question of jurisdiction
which has arisen between them following upon the collision which occurred
on August and, 1926, between the steamships Boz-Kourt and Lotus.
According to the special agreement, the Court has to decide the following
questions:
“(1) Has Turkey, contrary to Article 15 of the Convention of Lausanne of July
24th, 1923, respecting conditions of residence and business and jurisdiction, acted
in conflict with the principles of international law--and if so, what principles--by
instituting, following the collision which occurred on August 2nd, 1926, on the
high seas between the French steamer Lotus and the Turkish steamer Boz-Kourt
and upon the arriva1 of the French steamer at Constantinople-as well as against
the captain of the Turkish steamship-joint criminal proceedings in pursuance of
Turkish law against M. Demons, officer of the watch on board the Lotus at the
time of the collision, in consequence of the loss of the Boz-Kourt having involved
the death of eight Turkish sailors and passengers?”
***
On August 2nd, 1926, just before midnight, a collision occurred between
the French mail steamer Lotus, proceeding to Constantinople, and the Turk-
ish collier Boz-Kourt, between five and six nautical miles to the north of Cape
Sigri (Mitylene). The Boz-Kourt, which was cut in two, sank, and eight Turkish
nationals who were on board perished. After having done everything possible
to succor the shipwrecked persons, of whom ten were able to be saved, the
Lotus continued on its course to Constantinople, where it arrived on Au-
gust 3rd.
At the time of the collision, the officer of the watch on board the Lotus was
Monsieur Demons, a French citizen, lieutenant in the merchant service and first
officer of the ship, whilst the movements of the Boz-Kourt were directed by its
captain, Hassan Bey, who was one of those saved from the wreck….
On August 5th, Lieutenant Demons was requested by the Turkish authori-
ties to go ashore to give evidence. The examination,… led to the placing under
68
The Case of the S.S. “Lotus” (France v Turkey), Permanent Court of International
Justice (PCIJ), Series A No. 70, 7 September 1927.

PA R T I
arrest of Lieutenant Demons without previous notice being given to the French
Consul-General -and Hassan Bey, amongst others. This arrest, which has been
characterized by the Turkish Agent as arrest pending trial (arrestation preven-
tive), was effected in order to ensure that the criminal prosecution instituted
against the two officers, on a charge of manslaughter, by the Public Prosecutor
of Stamboul, on the complaint of the families of the victims of the collision,
should follow its normal course.
The case was first heard by the Criminal Court of Stamboul on August 28th.
On that occasion, Lieutenant Demons submitted that the Turkish Courts had
no jurisdiction; the Court, however, overruled his objection.…
On September 15th, the Criminal Court delivered its judgment, the terms
of which have not been communicated to the Court by the Parties. It is, how-
ever, common ground, that it sentenced Lieutenant Demons to eighty days’
imprisonment and a fine of twenty-two pounds, Hassan Bey being sentenced
to a slightly more severe penalty….
The action of the Turkish judicial authorities with regard to Lieutenant
Demons at once gave rise to many diplomatic representations and other steps
on the part of the French Government or its representatives in Turkey, either
protesting against the arrest of Lieutenant Demons or demanding his release,
or with a view to obtaining the transfer of the case from the Turkish Courts to
the French Courts.
As a result of these representations, the Government of the Turkish Repub-
lic declared on September 2nd, 1926, that “it would have no objection to the
reference of the conflict of jurisdiction to the Court at The Hague.”
THE LAW
1.-The collision which occurred on August 2nd, 1926, between the S.S. Lotus,
flying the French flag, and the S.S. Boz-Kourt flying the Turkish flag, took place
on the high seas : the territorial jurisdiction of any State other than France and
Turkey therefore does not enter into account.
2.-The violation, if any, of the principles of international law would have
consisted in the taking of criminal proceedings against Lieutenant Demons. It
is not therefore a question relating to any particular step in these proceedings-
such as his being put to trial, his arrest, his detention pending trial or the
judgment given by the Criminal Court of Stamboul-but of the very fact of the
Turkish Courts exercising criminal jurisdiction. That is why the arguments put
forward by the Parties in both phases of the proceedings relate exclusively to
the question whether Turkey has or has not, according to the principles of
international law, jurisdiction to prosecute in this case. …

3.-The prosecution was instituted because the loss of the Boz-Kourt involved
the death of eight Turkish sailors and passengers. It is…a case of prosecution for
involuntary manslaughter....[T]here is no doubt that their death may be regarded
as the direct outcome of the collision, and the French Government has not
contended that this relation of cause and effect cannot exist….
II
…[T]he Court must now ascertain which were the principles of international
law that the prosecution of Lieutenant Demons could conceivably be said to
contravene.
It is Article 15 of the Convention of Lausanne of July 24th, 1923, respecting
conditions of residence and business and jurisdiction, which refers the contract-
ing Parties to the principles of international law as regards the delimitation of
their respective jurisdiction. This clause is as follows: “Subject to the provi-
sions of Article 16, all questions of jurisdiction shall, as between Turkey and
the other contracting Powers, be decided in accordance with the principles
of international law.”
… Now the Court considers that the words “principles of international law,”
as ordinarily used, can only mean international law as it is applied between all
nations belonging to the community of States….
III
International law governs relations between independent States. The
rules of law binding upon States therefore emanate from their own free will as
expressed in conventions or by usages generally accepted as expressing prin-
ciples of law and established in order to regulate the relations between these
co-existing independent communities or with a view to the achievement of
common aims. Restrictions upon the independence of States cannot therefore
be presumed.
Now the first and foremost restriction imposed by international law upon
a State is that-failing the existence of a permissive rule to the contrary-it may
not exercise its power in any form in the territory of another State. In this sense
jurisdiction is certainly territorial; it cannot be exercised by a State outside its
territory except by virtue of a permissive rule derived from international custom
or from a convention.
It does not, however, follow that international law prohibits a State from
exercising jurisdiction in its own territory, in respect of any case which relates
to acts which have taken place abroad, and in which it cannot rely on some
permissive rule of international law. Such a view would only be tenable if inter-

PA R T I
national law contained a general prohibition to States to extend the application

of their laws and the jurisdiction of their courts to persons, property and acts
outside their territory, and if, as an exception to this general prohibition, it al-
lowed States to do so in certain specific cases. But this is certainly not the case
under international law as it stands at present. Far from laying down a general
prohibition to the effect that States may not extend the application of their
laws and the jurisdiction of their courts to persons, property and acts outside
their territory, it leaves them…a wide measure of discretion which is only limited
in certain cases by prohibitive rules; as regards other cases, every State remains
free to adopt the principles which it regards as best and most suitable.
This discretion left to States by international law explains the great variety
of rules which they have been able to adopt without objections or complaints
on the part of other States; it is…to remedy the difficulties resulting from such
variety that efforts have been made for many years past, both in Europe and
America, to prepare conventions the effect of which would be precisely to limit
the discretion at present left to States in this respect by international law, thus
making good the existing lacunae in respect of jurisdiction or removing the
conflicting jurisdictions arising from the diversity of the principles adopted by
the various States.
In these circumstances, all that can be required of a State is that it should
not overstep the limits which international law places upon its jurisdiction;
within these limits, its title to exercise jurisdiction rests in its sovereignty….
IV
The Court will now proceed to ascertain whether general international
law, to which Article 15 of the Convention of Lausanne refers, contains a rule
prohibiting Turkey from prosecuting Lieutenant Demons.
For this purpose, it will in the first place examine the value of the arguments
advanced by the French Government, without however omitting to take into
account other possible aspects of the problem, which might show the existence
of a restrictive rule applicable in this case.
The arguments advanced by the French Government, other than those
considered above, are, in substance, the three following:
(1) International law does not allow a State to take proceedings with regard
to offences committed by foreigners abroad, simply by reason of the nationality
of the victim; and such is the situation in the present case because the offence
must be regarded as having been committed on board the French vessel….
As regards the first argument…there has been a collision on the high seas be-

tween two vessels flying different flags, on one of which was one of the persons
alleged to be guilty of the offence, whilst the victims were on board the other.
This being so, the Court does not think it necessary to consider the conten-
tion that a State cannot punish offences committed abroad by a foreigner simply
by reason of the nationality of the victim. For this contention only relates to
the case where the nationality of the victim is the only criterion on which the
criminal jurisdiction of the State is based. Even if that argument were correct
generally speaking-and in regard to this the Court reserves its opinion-it could
only be used in the present case if international law forbade Turkey to take
into consideration the fact that the offence produced its effects on the Turk-
ish vessel and consequently in a place assimilated to Turkish territory in which
the application of Turkish criminal law cannot be challenged, even in regard
to offences committed there by foreigners. But no such rule of international
law exists. No argument has come to the knowledge of the Court from which
it could be deduced that States recognize themselves to be under an obligation
towards each other only to have regard to the place where the author of the
offence happens to be at the time of the offence.
On the contrary, it is certain that the courts of many countries, even of
countries which have given their criminal legislation a strictly territorial char-
acter, interpret criminal law in the sense that offences, the authors of which at
the moment of collision are in the territory of another State, are nevertheless
to be regarded as having been committed in the national territory, if one of
the constituent elements of the offence, and more especially its effects, have
taken place there. French courts have, in regard to a variety of situations, given
decisions sanctioning this way of interpreting the territorial principle. Again,
the Court does not know of any cases in which governments have protested
against the fact that the criminal law of some country contained a rule to this
effect or that the courts of a country construed their criminal law in this sense.
Consequently, once it is admitted that the effects of the offence were produced
on the Turkish vessel, it becomes impossible to hold that there is a rule of in-
ternational law which prohibits
Turkey from prosecuting Lieutenant Demons because of the fact that the
author of the offence was on board the French ship. Since, as has already been
observed, the special agreement does not deal with the provision of Turkish
law under which the prosecution was instituted, but only with the question
whether the prosecution should be regarded as contrary to the principles of
international law, there is no reason preventing the Court from confining itself
to observing that, in this case, a prosecution may also be justified from the point
of view of the so-called territorial principle….

PA R T I
The offence for which Lieutenant Demons appears to have been prosecuted
was an act-of negligence or imprudence-having its origin on board the Lotus,
whilst its effects made themselves felt on board the Boz-Kourt. These two ele-
ments are, legally, entirely inseparable, so much so that their separation renders
the offence non-existent. Neither the exclusive jurisdiction of either State, nor
the limitations of the jurisdiction of each to the occurrences which took place
on the respective ships would appear calculated to satisfy the requirements of
justice and effectively to protect the interests of the two States. It is only natural
that each should be able to exercise jurisdiction and to do so in respect of the
incident as a whole. It is therefore a case of concurrent jurisdiction.
For these reasons…the COURT [finds]…Turkey…has not acted in conflict with
the principles of international law…

***
212. The Court should now mention the principle of respect for State sover-
eignty, which in international law is of course closely linked with the principles
of the prohibition of the use of force and of non-intervention. The basic legal
concept of State sovereignty in customary international law, expressed in, inter
alia, Article 2, paragraph 1, of the United Nations Charter, extends to the internal
waters and territorial sea of every State and to the air space above its territory.
As to superjacent air space, the 1944 Chicago Convention on Civil Aviation
(Art. 1) reproduces the established principle of the complete and exclusive
sovereignty of a State over the air space above its territory. That convention, in
conjunction with the 1958 Geneva Convention on the Territorial Sea, further
specifies that the sovereignty of the coastal State extends to the territorial sea
and to the air space above it, as does the United Nations Convention on the
Law of the Sea adopted on 10 December 1982. The Court has no doubt that
these prescriptions of treaty law merely respond to firmly established and
longstanding tenets of customary international law.
213. The duty of every State to respect the territorial sovereignty of others
is to be considered for the appraisal to be made of the facts relating to the
mining which occurred along Nicaragua’s coasts. The legal rules in the light of
which these acts of mining should be judged depend upon where they took
place. The laying of mines within the ports of another State is governed by
69

the law relating to internal waters, which are subject to the sovereignty of the
coastal State. The position is similar as regards mines placed in the territorial
sea. It is therefore the sovereignty of the coastal State which is affected in such
cases. It is also by virtue of its sovereignty that the coastal State may regulate
access to its ports….
251. The effects of the principle of respect for territorial sovereignty inevi-
tably overlap with those of the principles of the prohibition of the use of force
and of non-intervention. Thus the assistance to the contras, as well as the direct
attacks on Nicaraguan ports, oil installations, etc., referred to in paragraphs 81
to 86 above, not only amount to an unlawful use of force, but also constitute
infringements of the territorial sovereignty of Nicaragua, and incursions into its
territorial and internal waters. Similarly, the mining operations in the Nicaraguan
ports not only constitute breaches of the principle of the non-use of force, but
also affect Nicaragua’s sovereignty over certain maritime expanses. The Court
has in fact found that these operations were carried on in Nicaragua’s territo-
rial or internal waters or both (paragraph 80), and accordingly they constitute
a violation of Nicaragua’s sovereignty. The principle of respect for territorial
sovereignty is also directly infringed by the unauthorized overflight of a State’s
territory by aircraft belonging to or under the control of the government of
another State. The Court has found above that such overflights were in fact
made (paragraph 91 above).
These violations cannot be justified either by collective self-defence, for
which, as the Court has recognized, the necessary circumstances are lacking,
nor by any right of the United States to take counter-measures involving the
use of force in the event of intervention by Nicaragua in El Salvador, since no
such right exists under the applicable international law. They cannot be justified
by the activities in El Salvador attributed to the Government of Nicaragua. The
latter activities, assuming that they did in fact occur, do not bring into effect any
right belonging to the United States which would justify the actions in ques-
tion. Accordingly, such actions constitute violations of Nicaragua’s sovereignty
under customary international law….
258. …A State’s domestic policy falls within its exclusive jurisdiction, pro-
vided of course that it does not violate any obligation of international law. Every
State possesses a fundamental right to choose and implement its own political,
economic and social systems. Consequently, there would normally be no need
to make any enquiries, in a matter outside the Court’s jurisdiction, to ascertain
in what sense and along what lines Nicaragua has actually exercised its right.
259. However, the assertion of a commitment raises the question of the
possibility of a State binding itself by agreement in relation to a question of

PA R T I
domestic policy, such as that relating to the holding of free elections on its
territory. The Court cannot discover, within the range of subjects open to in-
ternational agreement, any obstacle or provision to hinder a State from making
a commitment of this kind. A State, which is free to decide upon the principle
and methods of popular consultation within its domestic order, is sovereign
for the purpose of accepting a limitation of its sovereignty in this field. This
is a conceivable situation for a State which is bound by institutional links to a
confederation of States, or indeed to an international organization. Both Ni-
caragua and the United States are members of the Organization of American
States. The Charter of that Organization however goes no further in the direc-
tion of an agreed limitation on sovereignty of this kind than the provision in
Article 3 (d) that:
“The solidarity of the American States and the high aims which are sought
through it require the political organization of those States on the basis of the
effective exercise of representative democracy”; on the other hand, it provides
for the right of every State “to organize itself as it sees fit” (Art. 12), and to
“develop its cultural, political and economic life freely and naturally” (Art. 16).
263. The finding of the United States Congress also expressed the view that
the Nicaraguan Government had taken “significant steps towards establishing
a totalitarian Communist dictatorship.” However the regime in Nicaragua be
defined, adherence by a State to any particular doctrine does not constitute a
violation of customary international law; to hold otherwise would make non-
sense of the fundamental principle of State sovereignty, on which the whole
of international law rests, and the freedom of choice of the political, social,
economic and cultural system of a State. Consequently, Nicaragua’s domestic
policy options, even assuming that they correspond to the description given
of them by the Congress finding, cannot justify on the legal plane the various
actions of the Respondent complained of. The Court cannot contemplate the
creation of a new rule opening up a right of intervention by one State against
another on the ground that the latter has opted for some particular ideology
or political system….
269. …in international law there are no rules, other than such rules as may
be accepted by the State concerned, by treaty or otherwise, whereby the level
of armaments of a sovereign State can be limited, and this principle is valid for
all States without exception.

Territorial Sovereignty
and Self-Determination
East Timor (Portugal v. Australia), 199570
***
Dissenting Opinion of Judge Skubiszewski
[pp. 270-271 D.O. Skubiszewski] Here the distinction between sovereignty
and its exercise is a useful one. As already recalled, the Friendly Relations Dec-
laration provides that “[t]he territory of a colony or other non-self-governing
territory has, under the Charter, a status separate and distinct from the [met-
ropolitan] territory of the State administering it.” The reason for that separ-
ateness and distinctness is self-determination. But the provision quoted does
not aim at depriving the State of its title to sovereignty which it held prior to
the Charter and the Declaration. The State has remained sovereign. The said
provision imposes restrictions on the exercise of the State’s sovereignty. These
restrictions are far-reaching. Portugal rightly referred to its “prerogatives [of]
sovereignty” (para. 75 above), though on occasions it has avoided the word
“sovereignty” in describing its position with regard to East Timor. Instead it has
used the terms “jurisdiction” (CR 95/4, p. 10, para. 2, Co-Agent, counsel and
advocate of Portugal, J. M. S. Correia), and “authority” (CR 95/12, p. 44, para.
3, idem). Nonetheless Portugal explains that the “Administering Powers are
independent States which keep their attributes as such when they act on the
international scene in relation to the non-self-governing territories for whose
administration they are responsible.” (Ibid.).
It is submitted that these “attributes” are nothing more than sovereignty,
the exercise of which has been restricted in favour of the self-determination
of the people concerned. Portugal stresses that the people of the Territory is
“the holder of the sovereignty inherent in the capacity to decide for itself its
future international legal status” (CR 95/4, p. l3, para. 6, idem) and that “the
international law of decolonization has transferred the sovereignty relating
to such territories to their own peoples” (CR 95/12, p. 44, para. 3, idem). Un-
der international law these contentions must be understood as referring to
self-determination: it is the people which decide on its implementation; but
“people” as the holder of “sovereignty” is a concept which, at least in part, lies
beyond the realm of law.
70
East Timor (Portugal v. Australia), Judgment, I.C.J. Reports 1995, p. 90..

PA R T I
Sovereignty over Pulau Ligitan and Pulau Sipadan

(Indonesia v. Malaysia), 200171
Separate Opinion of Judge Franck
[p. 652] ...I wish to explicate a legal basis for the Court’s decision which, while
consistent with it, has not been advanced by the Court, perhaps because it was
insufficiently advanced by the Parties, although discussed in passing by Malaysia
(CR 2001/2, p. 56, para. 10 (Lauterpacht)) and the Philippines (CR 2001/3, p.
23, para. 14 (Magallona)). I shall endeavour to demonstrate why that legal basis
is of some importance and why the Court need not have been deterred from
making this clear. The point of law is quite simple, but ultimately basic to the
international rule of law. It is this: historic title, no matter how persuasively
claimed on the basis of old legal instruments and exercises of authority, can-
not - except in the most extraordinary circumstances - prevail in law over the
rights of non-self-governing people to claim independence and establish their
sovereignty through the exercise of bona fide self-determination.
[pp. 655] Under traditional international law, the right to territory was vested
exclusively in rulers of States. Lands were the property of a sovereign to be de-
fended or conveyed in accordance with the laws relevant to the recognition,
exercise and transfer of sovereign domain. In order to judicially determine a
claim to territorial title erga omnes, it was necessary to engage with the forms
of international conveyancing, tracing historic title through to a critical date
or dates to determine which State exercised territorial sovereignty at that point
in time. Under modern international law, however, the enquiry must necessar-
ily be broader, particularly in the context of decolonization. In particular, the
infusion of the concept of the rights of a “people” into this traditional legal
scheme, notably the right of peoples to self-determination, fundamentally
alters the significance of historic title to the determination of sovereign title.
Previous judgments of this Court (in particular, its Advisory Opinion of 26
January 1971 on the Legal Consequences for States of the Continued Presence
of South Africa in Namibia (South West Africa) notwithstanding Security Council
Resolution 276 (1970), I.C.J. Reports 1971, pp. 31-32, paras. 52-53 and its Ad-
visory Opinion of 16 October 1975 in Western Sahara, I.C.J. Reports 1975, pp.
31-33, paras. 54-59) contribute to and recognize the development of the right
of non-self-governing peoples to self-determination which “requires a free and
genuine expression of the will of the peoples concerned” (Western Sahara, ibid.,
p. 32, para. 55). The Court recognized in the Namibia case that, “the subsequent
71
Sovereignty over Pulau Ligitan and Pulau Sipadan (Indonesia v. Malaysia), Applica-
tion, for Permission to Intervene, Judgment, I.C.J. Reports 2001, p. 575.

development of international law in regard to non-self-governing territories,

as enshrined in the Charter of the United Nations, made the principle of self-
determination applicable to all of them” (I.C.J. Reports 1971, p. 31, para. 52).
In the case concerning East Timor (Portugal v. Australia), the Court recognized
the principle of self-determination to be “one of the essential principles of
contemporary international law” (I.C.J. Reports 1995, p. 102, para. 29).
The decisions of this Court confirm the prime importance of this principle
of self-determination of peoples. The firm basis for the principle is also anchored
in universal treaty law, State practice and opinio juris. Article 1, paragraph 2, of
the United Nations Charter indicates that one of the purposes of the United
Nations is “[t]o develop friendly relations among nations based on respect for
the principle of equal rights and self-determination of peoples.” The principle
also finds express and implied reflection in other provisions of the Charter,
namely Article 55, Article 73 and Article 76 (b). Common Article 1 of the Inter-
national Covenant on Civil and Political Rights and the International Covenant
on Economic Social and Cultural Rights provides that “[a]ll peoples have the
right of self-determination,” and emphasizes in Article 1 (3), that “States Parties
to the present Covenant . . . shall respect [the] right [of self-determination], in
conformity with the provisions of the Charter of the United Nations.”
This treaty law has been affirmed, developed and given more tangible form by
numerous resolutions of the General Assembly, which have consistently received
broad support. General Assembly resolution 637 (VII), adopted on 16 Decem-
ber 1952, was an early recognition that “every Member of the United Nations,
in conformity with the Charter, should respect the maintenance of the right of
self-determination,” a right which was stated to be a “prerequisite to the full
enjoyment of all fundamental human rights.” The “Declaration on the Granting
of Independence to Colonial Countries and Peoples,” General Assembly resolu-
tion 1514 (XV), adopted without dissent on 14 December 1960, is regarded as
fundamental to the process of decolonization. It is applicable to all “territories
which have not yet attained independence” and establishes that “[a]ll peoples
have the right to self-determination” while insisting that “[a]ny attempt aimed
at the partial or total disruption of the national unity and the territorial integrity
of a country is incompatible with the purposes and principles of the Charter of
the United Nations.” In General Assembly resolution 1541 (XV), adopted with
only two dissents on 15 December 1960, the General Assembly contemplated
more than one method of self-determination for non-self-governing territories,
including “[i]ntegration with an independent State.” General Assembly resolution
2131 (XX), “Declaration on the Inadmissibility of Intervention in the Domestic
Affairs of States and the Protection of Their Independence and Sovereignty,”
adopted by 109 countries without dissent on 21 December 1965, declared that,

PA R T I
“[a]ll States shall respect the right of self-determination and independence of

peoples and nations, to be freely exercised without any foreign pressure, and
with absolute respect for human rights and fundamental freedoms.” The prin-
ciple of self-determination was further included among the “basic principles of
international law” set out in the “Declaration on Principles of International Law
concerning Friendly Relations and Co-operation among States in accordance
with the Charter of the United Nations,” adopted by consensus as the Annex to
resolution 2625 (XXV) on 24 October 1970. According to this document, “all
peoples have the right freely to determine, without external interference, their
political status and to pursue their economic, social and cultural development,
and every State has the duty to respect this right in accordance with the provi-
sions of the Charter” (emphasis added).
The independence of North Borneo was brought about as the result of the
expressed wish of the majority of the people of the territory in a 1963 election.
The Secretary-General of the United Nations was entrusted under the Manila
Accord of 31 July 1963 with the task of ascertaining the wishes of the people of
North Borneo, and reported that the majority of the peoples of North Borneo
had given serious and thoughtful consideration to their future and: “[had] con-
cluded that they wish to bring their dependent status to an end and to realize
their independence through freely chosen association with other peoples in
their region with whom they feel ties of ethnic association, heritage, language,
religion, culture, economic relationship, and ideals and objectives.” (Quoted by
the Representative of Malaysia to the General Assembly, 1219th meeting, 27
September 1963, Official Records of the General Assembly, 18th Session, UN
Doc. No. A/PV.1219.).
In 1963, Britain filed its last report to the United Nations on North Bor-
neo as an Article 73 (e) Non-Self-Governing Territory (Note by the Secretary-
General, Political and Constitutional Information on Asian Territories under
United Kingdom Administration, UN Doc. No. A/5402/Add.4 (4 April 1963)).
Thereafter, the United Nations removed North Borneo from the list of colonial
territories under its decolonization jurisdiction (see Yearbook of the United
Nations, 1964, pp. 411-435, which omits North Borneo from the Committee’s
list of territories), thereby accepting that the process of decolonization had
been completed by a valid exercise of self-determination.
Accordingly, in light of the clear exercise by the people of North Borneo of
their right to self-determination, it cannot matter whether this Court, in any
interpretation it might give to any historic instrument or efficacy, sustains or not
the Philippines claim to historic title. Modern international law does not recog-
nize the survival of a right of sovereignty based solely on historic title; not, in any

event, after an exercise of self-determination conducted in accordance with the

requisites of international law, the bona fides of which has received international
recognition by the political organs of the United Nations. Against this, historic
claims and feudal pre-colonial titles are mere relics of another international legal
era, one that ended with the setting of the sun on the age of colonial imperium.
The lands and people claimed by the Philippines formerly constituted most
of an integral British dependency. In accordance with the law pertaining to
decolonization, its population exercised their right of self-determination. What
remains is no mere boundary dispute. It is an attempt to keep alive a right to
reverse the free and fair decision taken almost 40 years ago by the people of
North Borneo in the exercise of their legal right to self-determination. The
Court cannot be a witting party to that.
Sovereignty and Development of Natural

Resources
United Nations General Assembly Resolution 1803, 14
December 1962, “Permanent Sovereignty over Natural
Resources”72
Recalling its resolutions 523 (VI) of 12 January 1952 and 626 (VII) of 21
December 1952,
Bearing in mind its resolution 1314 (XIII) of 12 December 1958, by which it
established the Commission on Permanent Sovereignty over Natural Resources
and instructed it to conduct a full survey of the status of permanent sovereignty
over natural wealth and resources as a basic constituent of the right to self-
determination, with recommendations, where necessary, for its strengthening,
and decided further that, in the conduct of the full survey of the status of the
permanent sovereignty of peoples and nations over their natural wealth and
resources, due regard should be paid to the rights and duties of States under
international law and to the importance of encouraging international coopera-
tion in the economic development of developing countries,
Bearing in mind its resolution 1515 (XV) of 15 December 1960, in which it
recommended that the sovereign right of every State to dispose of its wealth and
72
United Nations General Assembly Resolution 1803 (XVII) of 14 December 1962,
GAOR (Supp., No. 17 at 15), U.N. Doc. A/5217.

PA R T I
its natural resources should be respected, Considering that any measure in this
respect must be based on the recognition of the inalienable right of all States
freely to dispose of their natural wealth and resources in accordance with their
national interests, and on respect for the economic independence of States,
Considering that nothing in paragraph 4 below in any way prejudices
the position of any Member State on any aspect of the question of the rights
and obligations of successor States and Governments in respect of property
acquired before the accession to complete sovereignty of countries formerly
under colonial rule,
Noting that the subject of succession of States and Governments is being
examined as a matter of priority by the International Law Commission,
Considering that it is desirable to promote international co-operation for
the economic development of developing countries, and that economic and
financial agreements between the developed and the developing countries
must be based on the principles of equality and of the right of peoples and
nations to self-determination,
Considering that the provision of economic and technical assistance, loans
and increased foreign investment must not be subject to conditions which
conflict with the interests of the recipient State, Considering the benefits to
be derived from exchanges of technical and scientific information likely to
promote the development and use of such resources and wealth, and the im-
portant part which the United Nations and other international organizations
are called upon to play in that connection,
Attaching particular importance to the question of promoting the eco-
nomic development of developing countries and securing their economic
independence,
Noting that the creation and strengthening of the inalienable sovereignty
of States over their natural wealth and resources reinforces their economic
independence,
Desiring that there should be further consideration by the United Nations
of the subject of permanent sovereignty over natural resources in the spirit of
international co-operation in the field of economic development, particularly
that of the developing countries,

I
Declares that:
1. The right of peoples and nations to permanent sovereignty over their
natural wealth and resources must be exercised in the interest of their national
development and of the well-being of the people of the State concerned.
2. The exploration, development and disposition of such resources, as well
as the import of the foreign capital required for these purposes, should be in
conformity with the rules and conditions which the peoples and nations freely
consider to be necessary or desirable with regard to the authorization, restric-
tion or prohibition of such activities.
3. In cases where authorization is granted, the capital imported and the
earnings on that capital shall be governed by the terms thereof, by the national
legislation in force, and by international law. The profits derived must be shared
in the proportions freely agreed upon, in each case, between the investors and
the recipient State, due care being taken to ensure that there is no impairment,
for any reason, of that State’s sovereignty over its natural wealth and resources.
4. Nationalization, expropriation or requisitioning shall be based on grounds
or reasons of public utility, security or the national interest which are recognized
as overriding purely individual or private interests, both domestic and foreign.
In such cases the owner shall be paid appropriate compensation, in accordance
with the rules in force in the State taking such measures in the exercise of its
sovereignty and in accordance with international law. In any case where the
question of compensation gives rise to a controversy, the national jurisdiction
of the State taking such measures shall be exhausted. However, upon agree-
ment by sovereign States and other parties concerned, settlement of the dispute
should be made through arbitration or international adjudication.
5. The free and beneficial exercise of the sovereignty of peoples and nations
over their natural resources must be furthered by the mutual respect of States
based on their sovereign equality.
6. International co-operation for the economic development of develop-
ing countries, whether in the form of public or private capital investments,
exchange of goods and services, technical assistance, or exchange of scientific
information, shall be such as to further their independent national develop-
ment and shall be based upon respect for their sovereignty over their natural
wealth and resources.
7. Violation of the rights of peoples and nations to sovereignty over their
natural wealth and resources is contrary to the spirit and principles of the

PA R T I
Charter of the United Nations and hinders the development of international

co-operation and the maintenance of peace.
8. Foreign investment agreements freely entered into by or between sover-
eign States shall be observed in good faith; States and international organiza-
tions shall strictly and conscientiously respect the sovereignty of peoples and
nations over their natural wealth and resources in accordance with the Charter
and the principles set forth in the present resolution.
Territorial Sovereignty and the Seas

Fisheries Jurisdiction Case (United Kingdom v. Iceland),
197473
[Jurisdiction over fishing claims in territorial waters, I.C.J. Summary of
Opinion]74
The Court recalled that in 1948 the Althing (the Parliament of Iceland) had
passed a law concerning the Scientific Conservation of the Continental Shelf
Fisheries, which empowered the Government to establish conservation zones
wherein all fisheries should be subject to Icelandic rules and control to the ex-
tent compatible with agreements with other countries. ..Following a number of
incidents and a series of negotiations, Iceland and the United Kingdom agreed
on an Exchange of Notes which took place on 11 March 1961 and specified
inter alia that the United Kingdom would no longer object to a 12-mile fishery
zone, that Iceland would continue to work for the implementation of the 1959
resolution regarding the extension of fisheries jurisdiction but would give the
United Kingdom six months’ notice of such extension and that “in case of a
dispute in relation to such extension, the matter shall, at the request of either
Party be referred to the International Court of Justice.”
In 1971, the Icelandic Government announced that the agreement on fish-
eries jurisdiction with the United Kingdom would be terminated and that the
limit of exclusive Icelandic fisheries jurisdiction would be extended to 50miles.
…On 14 July 1972 new Regulations were introduced whereby Iceland’s fishery
Limits would be extended to 50 miles as from 1 September 1972 and all fishing
activities by foreign vessels inside those limits be prohibited. Their enforcement
73
Fisheries Jurisdiction (United Kingdom v. Iceland), Merits, Judgment, I.C.J. Reports
1974, p. 3.
74
Fisheries Jurisdiction Case, Summary of the Judgement, I.C.J. Summaries, available at:
http://www.I.C.J.-cij.org/docket/files/55/5979.pdf.

gave rise, while proceedings before the Court were continuing and Iceland was
refusing to recognize the Court’s decisions, to a series of incidents and negotia-
tions which resulted [in] an interim agreement between the United Kingdom
and Iceland…”pending a settlement of the substantive dispute….
[Opinion of the Court]75
11. In the course of the written proceedings, the following submissions
were presented on behalf of the Government of the United Kingdom:
“The United Kingdom asks the Court to adjudge and declare:
(a) That there is no foundation in international law for the claim by Iceland
to be entitled to extend its fisheries jurisdiction by establishing a zone of ex-
clusive fisheries jurisdiction extending to 50 nautical miles from the baselines
hereinbefore referred to; and that its claim is therefore invalid; and
(b) that questions concerning the conservation of fish stocks in the waters
around Iceland are not susceptible in international law to regulation by the
unilateral extension by Iceland of its exclusive fisheries jurisdiction to 50 nauti-
cal miles from the aforesaid baselines but are matters that may be regulated, as
between Iceland and the United Kingdom, by arrangements agreed between
those two countries,...”
…49. The Applicant has challenged the Regulations promulgated by the
Government of Iceland on 14 July 1972, and since the Court has to pronounce
on this challenge, the ascertainment of the law applicable becomes necessary.
As the Court stated in the Fisheries case: “The delimitation of sea areas has
always an international aspect; it cannot be dependent merely upon the will
of the coastal State as expressed in its municipal law. Although it is true that
the act of delimitation is necessarily a unilateral act, because only the coastal
State is competent to undertake it, the validity of the delimitation with regard
to other States depends upon international law.” (I.C.J. Reports 1951, p. 132.)
The Court will therefore proceed to the determination of the existing rules of
international law relevant to the settlement of the present dispute.
50. The Geneva Convention on the High Seas of 1958, which was adopted
“as generally declaratory of established principles of international law,” defines
in Article 1 the term “high seas” as “all parts of the sea that are not included in
the territorial sea or in the interna1 waters of a State.” Article 2 then declares
that “The high seas being open to all nations, no State may validly purport to
subject any part of them to its sovereignty” and goes on to provide that the
75
Fisheries Jurisdiction (United Kingdom v. Iceland), Merits, Judgment, I.C.J. Reports
1974, p. 3.

PA R T I
freedom of the high seas comprises, inter dia, both for coastal and non-coastal
States, freedom of navigation and freedom of fishing. The freedoms of the
high seas are however made subject to the consideration that they “shall be
exercised by all States with reasonable regard to the interests of other States
in their exercise of the freedom of the high seas.”
51. The breadth of the territorial sea was not defined by the 1958 Conven-
tion on the Territorial Sea and the Contiguous Zone. It is true that Article 24 of
this Convention limits the contiguous zone to 12 miles “from the baseline from
which the breadth of the territorial sea is measured.” At the 1958 Conference,
the main differences on the breadth of the territorial sea were limited at the time
to disagreements as to what limit, not exceeding 12 miles, was the appropriate
one. The question of the breadth of the territorial sea and that of the extent of
the coastal State’s fishery jurisdiction were left unsettled at the 1958 Confer-
ence. These questions were referred to the Second Conference on the Law of
the Sea, held in 1960. Furthermore, the question of the extent of the fisheries
jurisdiction of the coastal State, which had constituted a serious obstacle to the
reaching of an agreement at the 1958 Conference, became gradually separated
from the notion of the territorial sea. This was a development which reflected
the increasing importance of fishery resources for all States.
52. The 1960 Conference failed by one vote to adopt a text governing the
two questions of the breadth of the territorial sea and the extent of fishery rights.
However, after that Conference the law evolved through the practice of States on
the basis of the debates and near-agreements at the Conference. Two concepts
have crystallized as customary law in recent years arising out of the general con-
sensus revealed at that Conference. The first is the concept of the fishery zone,
the area in which a State may claim exclusive fishery jurisdiction independently
of its territorial sea; the extension of that fishery zone up to a 12-mile limit from
the baselines appears now to be generally accepted. The second is the concept of
preferential rights of fishing in adjacent waters in favour of the coastal State in a
situation of special dependence on its coastal fisheries, this preference operating
in regard to other States concerned in the exploitation of the same fisheries, and
to be implemented in the way indicated in paragraph 57 below.
53. In recent years the question of extending the coastal State’s fisheries
jurisdiction has come increasingly to the forefront. The Court is aware that a
number of States has asserted an extension of fishery limits. The Court is also
aware of present endeavours, pursued under the auspices of the United Nations,
to achieve in a third Conference on the Law of the Sea the further codifica-
tion and progressive development of this branch of the law, as it is of various
proposals and preparatory documents produced in this framework, which

must be regarded as manifestations of the views and opinions of individual

States and as vehicles of their aspirations, rather than as expressing principles
of existing law. The very fact of convening the third Conference on the Law of
the Sea evidences a manifest desire on the part of all States to proceed to the
codification of that law on a universal basis, including the question of fisher-
ies and conservation of the living resources of the sea. …So it was in the past,
and so it necessarily is today. In the circumstances, the Court, as a court of law,
cannot render judgment sub specie legis ferendae, or anticipate the law before
the legislator has laid it down….
57. The contemporary practice of States leads to the conclusion that the
preferential rights of the coastal State in a special situation are to be implement-
ed by agreement between the States concerned, either bilateral or multilateral,
and, in case of disagreement, through the means for the peaceful settlement
of disputes provided for in Article 33 of the Charter of the United Nations.…
59. There can be no doubt of the exceptional dependence of Iceland on
its fisheries. That exceptional dependence was explicitly recognized by the
Applicant in the Exchange of Notes of 11 March 1961, and the Court has also
taken judicial notice of such recognition, by declaring that it is “necessary to
bear in mind the exceptional dependence of the Icelandic nation upon coastal
fisheries for its livelihood and economic development” (I.C.J. Reports 1972, p.
16, para. 23).
60. The preferential rights of the coastal State come into play only at
the moment when an intensification in the exploitation of fishery resources
makes it imperative to introduce some system of catch-limitation and sharing
of those resources, to preserve the fish stocks in the interests of their rational
and economic exploitation. This situation appears to have been reached in
the present case….
61. The Icelandic regulations challenged before the Court have been is-
sued and applied by the Icelandic authorities as a claim to exclusive rights
thus going beyond the concept of preferential rights. Article 2 of the Icelandic
Regulations of 14 July 1972 States: “Within the fishery limits all fishing activi-
ties by foreign vessels shall be prohibited in accordance with the provisions
of Law No. 33 of 19 June 1922, concerning Fishing inside the Fishery Limits.”
Article 1 of the 1922 Law provides: “Only Icelandic citizens may engage in
fishing in the territorial waters of Iceland, and only Icelandic boats or ships
may be used for such fishing.” The language of the relevant government regu-
lations indicates that their object is to establish an exclusive fishery zone, in
which al1 fishing by vessels registered in other States, including the United
Kingdom, would be prohibited.

PA R T I
62. The concept of preferential rights is not compatible with the exclusion
of all fishing activities of other States. A coastal State entitled to preferential
rights is not free, unilaterally and according to its own uncontrolled discretion,
to determine the extent of those rights. The characterization of the coastal
State’s rights as preferential implies a certain priority, but cannot imply the
extinction of the concurrent rights of other States, and particularly of a State
which, like the Applicant, has for many years been engaged in fishing in the
waters in question, such fishing activity being important to the economy of
the country concerned… Accordingly, the fact that Iceland is entitled to claim
preferential rights does not suffice to justify its claim unilaterally to exclude
the Applicant’s fishing vessels from all fishing activity in the waters beyond the
limits agreed to in the 1961 Exchange of Notes….
67. The provisions of the Icelandic Regulations of 14 July 1972 and the
manner of their implementation disregard the fishing rights of the Applicant.
Iceland’s unilateral action thus constitutes an infringement of the principle
enshrined in Article 2 of the 1958 Geneva Convention on the High Seas which
requires that all States, including coastal States, in exercising their freedom of
fishing, pay reasonable regard to the interests of other States….
71. …. Due recognition must be given to the rights of both Parties, namely
the rights of the United Kingdom to fish in the waters in dispute, and the pref-
erential rights of Iceland. Neither right is an absolute one: the preferential rights
of a coastal State are limited according to the extent of its special dependence
on the fisheries and by its obligation to take account of the rights of other States
and the needs of conservation; the established rights of other fishing States
are in turn limited by reason of the coastal State’s special dependence on the
fisheries and its own obligation to take account of the rights of other States,
including the coastal State, and of the needs of conservation.
Maritime Delimitation and Territorial Questions between

Qatar and Bahrain (Qatar v. Bahrain), 200176
***
196. Bahrain claims that Qit’at Jaradah comes under Bahraini sovereignty,
since it has displayed its authority over it in various ways, and that this was
recognized by the British Government in 1947. In this respect it has referred to
a number of activities, including the erection of a beacon, the ordering of the
drilling of an artesian well, the granting of an oil concession, and the licensing
76
v. Bahrain), Merits, Judgment, I.C.J. Reports 2001, p. 40.

of fish traps. Qatar contends that Qit’at Jaradah, being a low-tide elevation, can-
not be appropriated, and that, since it is situated in the part of the territorial
sea which belong to Qatar, Qatar has sovereign rights over it.
197. The Court first notes that Qit’at Jaradah is a very small island situated
within the 12-mile limit of both States. According to the report of the expert
commissioned by Bahrain, at high tide its length and breadth are about 12 by 4
metres, whereas at low tide they are 600 and 75 metres. At high tide, its altitude
is approximately 0.4 metres.
Certain types of activities invoked by Bahrain such as the drilling of artesian
wells would, taken by themselves, be considered controversial as acts performed
à titre de souverain. The construction of navigational aids, on the other hand,
can be legally relevant in the case of very small islands. In the present case, tak-
ing into account the size of Qit’at Jaradah, the activities carried out by Bahrain
on that island must be considered sufficient to support Bahrain’s claim that it
has sovereignty over it.
198. In this context the Court recalls that the Permanent Court of Inter-
national Justice observed in the Legal Status of Eastern Greenland case that
“It is impossible to read the records of the decisions in cases as to territo-
rial sovereignty without observing that in many cases the tribunal has been
satisfied with very little in the way of the actual exercise of sovereign rights,
provided that the other State could not make out a superior claim.” (P.C.I.J.,
Series A/B, No. 53, p. 46.).
Maritime Delimitation in the Black Sea (Romania v.

Ukraine), 200977
(Territorial Demarcation)
The Court notes that both Parties consider the coast of the Crimean Pen-
insula between Cape Tarkhankut and Cape Sarych, as well as the Ukrainian
coast from their common territorial boundary running for a short distance in
a north and subsequently in a north-easterly direction until the Nistru/Dnies-
ter Firth (Romania designates this point as Point S) as the relevant Ukrainian
coast. Their disagreement concerns the coast extending from this point until
Cape Tarkhankut.
77
Maritime Delimitation in the Black Sea (Romania v. Ukraine), Summary of the Judge-
ment, I.C.J. Summaries, available at: http://www.I.C.J.-cij.org/docket/files/132/14989.
pdf Full case, see Maritime Delimitation in the Black Sea (Romania v. Ukraine), Judg-
ment, I.C.J. Reports 2009, p. 61.

PA R T I
The Court, in considering the issue in dispute, would recall two principles
underpinning its jurisprudence on this issue: first, that the “land dominates the
sea” in such a way that coastal projections in the seaward direction generate
maritime claims (North Sea Continental Shelf (Federal Republic of Germany/
Denmark; Federal Republic of Germany/Netherlands), Judgment, I.C.J. Reports
1969, p. 51, para. 96); second, that the coast, in order to be considered as rel-
evant for the purpose of the delimitation, must generate projections which
overlap with projections from the coast of the other party. Consequently “the
submarine extension of any part of the coast of one Party which, because of
its geographic situation, cannot overlap with the extension of the coast of the
other, is to be excluded from further consideration by the Court” (Continental
Shelf (Tunisia/Libyan Arab Jamahiriya), Judgment, I.C.J. Reports 1982, p. 61,
para. 75).
The Court therefore cannot accept Ukraine’s contention that the coasts of
Karkinits’ka Gulf form part of the relevant coast. The coasts of this gulf face
each other and their submarine extension cannot overlap with the extensions
of Romania’s coast. The coasts of Karkinits’ka Gulf do not project in the area to
be delimited. Therefore, these coasts are excluded from further consideration
by the Court….
6. Relevant maritime area78
The Court observes that the legal concept of the “relevant area” has to be
taken into account as part of the methodology of maritime delimitation.
In the first place, depending on the configuration of the relevant coasts in
the general geographical context and the methods for the construction of their
seaward projections, the relevant area may include certain maritime spaces and
exclude others which are not germane to the case in hand.
Secondly, the relevant area is pertinent to checking disproportionality. This
will be done as the final phase of the methodology. The purpose of delimita-
tion is not to apportion equal shares of the area, nor indeed proportional
shares. The test of disproportionality is not in itself a method of delimitation.
It is rather a means of checking whether the delimitation line arrived at by
other means needs adjustment because of a significant disproportionality in
the ratios between the maritime areas which would fall to one party or other
by virtue of the delimitation line arrived at by other means, and the lengths of
their respective coasts.
The Court further observes that for the purposes of this final exercise in
78
Id. Opinion of I.C.J. decision at paras. 106-114.

the delimitation process the calculation of the relevant area does not purport
to be precise and is approximate. The object of delimitation is to achieve a
delimitation that is equitable, not an equal apportionment of maritime areas
(North Sea Continental Shelf (Federal Republic of Germany/Denmark; Federal
Republic of Germany/Netherlands), Judgment, I.C.J. Reports 1969, p. 22, para.
18; Maritime Delimitation in the Area between Greenland and Jan Mayen
(Denmark v. Norway), Judgment, I.C.J Reports 1993, p. 67, para. 64).
The Court notes that the delimitation will occur within the enclosed Black
Sea, with Romania being both adjacent to, and opposite Ukraine, and with
Bulgaria and Turkey lying to the south. It will stay north of any area where third
party interests could become involved….
7. Delimitation methodology79
When called upon to delimit the continental shelf or exclusive economic
zones, or to draw a single delimitation line, the Court proceeds in defined stages.
These separate stages, broadly explained in the case concerning Conti-
nental Shelf (Libyan Arab Jamahiriya/Malta) (Judgment, I.C.J. Reports 1985,
p. 46, para. 60), have in recent decades been specified with precision. First,
the Court will establish a provisional delimitation line, using methods that are
geometrically objective and also appropriate for the geography of the area in
which the delimitation is to take place. So far as delimitation between adjacent
coasts is concerned, an equidistance line will be drawn unless there are com-
pelling reasons that make this unfeasible in the particular case (see Territorial
and Maritime Dispute between Nicaragua and Honduras in the Caribbean Sea
(Nicaragua v. Honduras), Judgment of 8 October 2007, para. 281). So far as
opposite coasts are concerned, the provisional delimitation line will consist
of a median line between the two coasts. No legal consequences flow from
the use of the terms “median line” and “equidistance line” since the method
of delimitation is the same for both.
Equidistance and median lines are to be constructed from the most ap-
propriate points on the coasts of the two States concerned, with particular
attention being paid to those protuberant coastal points situated nearest to the
area to the delimited. The Court considers elsewhere the extent to which the
Court may, when constructing a single-purpose delimitation line, deviate from
the base points selected by the parties for their territorial seas. When construc-
tion of a provisional equidistance line between adjacent States is called for,
the Court will have in mind considerations relating to both parties’ coastlines
when choosing its own base points for this purpose. The line thus adopted is
79
Id. at paras. 115-122.

PA R T I
heavily dependent on the physical geography and the most seaward points of
the two coasts.
In keeping with its settled jurisprudence on maritime delimitation, the first
stage of the Court’s approach is to establish the provisional equidistance line.
At this initial stage of the construction of the provisional equidistance line the
Court is not yet concerned with any relevant circumstances that may obtain and
the line is plotted on strictly geometrical criteria on the basis of objective data.
In the present case the Court thus begins by drawing a provisional equi-
distance line between the adjacent coasts of Romania and Ukraine, which will
then continue as a median line between their opposite coasts.
The course of the final line should result in an equitable solution (Articles
74 and 83 of UNCLOS). Therefore, the Court will at the next, second stage
consider whether there are factors calling for the adjustment or shifting of
the provisional equidistance line in order to achieve an equitable result (Land
and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria:
Equatorial Guinea intervening), Judgment, I.C.J. Reports 2002, p. 441, para. 288).
The Court has also made clear that when the line to be drawn covers several
zones of coincident jurisdictions, “the so-called equitable principles/relevant
circumstances method may usefully be applied, as in these maritime zones this
method is also suited to achieving an equitable result” (Territorial and Maritime
Dispute between Nicaragua and Honduras in the Caribbean Sea (Nicaragua v.
Honduras), Judgment of 8 October 2007, para. 271).
This is the second part of the delimitation exercise to which the Court will
turn, having first established the provisional equidistance line.
Finally, and at a third stage, the Court will verify that the line (a provisional
equidistance line which may or may not have been adjusted by taking into
account the relevant circumstances) does not, as it stands, lead to an inequi-
table result by reason of any marked disproportion between the ratio of the
respective coastal lengths and the ratio between the relevant maritime area of
each State by reference to the delimitation line. A final check for an equitable
outcome entails a confirmation that no great disproportionality of maritime
areas is evident by comparison to the ratio of coastal lengths.
This is not to suggest that these respective areas should be proportionate to
coastal lengths - as the Court has said “the sharing out of the area is therefore
the consequence of the delimitation, not vice versa” (Maritime Delimitation in
the Area between Greenland and Jan Mayen (Denmark v. Norway), Judgment,
I.C.J. Reports 1993, p. 67, para. 64).…

11. The disproportionality test80

The Court now turns to check that the result thus far arrived at, so far as
the envisaged delimitation line is concerned, does not lead to any significant
disproportionality by reference to the respective coastal lengths and the ap-
portionment of areas that ensue. This Court agrees with the observation that
“it is disproportion rather than any general principle of proportionality which
is the relevant criterion or factor... there can never be a question of completely
refashioning nature... it is rather a question of remedying the disproportionality
and inequitable effects produced by particular geographical configurations or
features” (Anglo-French Continental Shelf Case, RIAA, Vol. XVIII, p. 58, para. 101).
The continental shelf and exclusive economic zone allocations are not to
be assigned in proportion to length of respective coastlines. Rather, the Court
will check, ex post facto, on the equitableness of the delimitation line it has
constructed (Delimitation of the maritime boundary between Guinea and
Guinea-Bissau, RIAA, Vol. XIX, paras. 94-95).
This checking can only be approximate. Diverse techniques have in the
past been used for assessing coastal lengths, with no clear requirements of
international law having been shown as to whether the real coastline should
be followed, or baselines used, or whether or not coasts relating to internal
waters should be excluded.
The Court cannot but observe that various tribunals, and the Court itself,
have drawn different conclusions over the years as to what disparity in coastal
lengths would constitute a significant disproportionality which suggested the
delimitation line was inequitable, and still required adjustment. This remains
in each case a matter for the Court’s appreciation, which it will exercise by
reference to the overall geography of the area….
12. The maritime boundary delimiting the continental shelf and exclusive
economic zones81
The Court observes that a maritime boundary delimiting the continental
shelf and exclusive economic zones is not to be assimilated to a State boundary
separating territories of States. The former defines the limits of maritime zones
where under international law coastal States have certain sovereign rights for
defined purposes. The latter defines the territorial limits of State sovereignty.
Consequently, the Court considers that no confusion as to the nature of the
maritime boundary delimiting the exclusive economic zone and the continental
shelf arises and will thus employ this term.
80
81

PA R T I
CHAPTER 5
STATE RESPONSIBILITY
State Responsibility for Internationally

Wrongful Acts
International Law Commission Draft Articles82
Chapter I
GENERAL PRINCIPLES
Article 1. Responsibility of a State for its

internationally wrongful acts
Every internationally wrongful act of a State entails the international re-
sponsibility of that State.
Commentary
(1) Article 1 states the basic principle underlying the articles as a whole,
which is that a breach of international law by a State entails its international
responsibility. An internationally wrongful act of a State may consist in one or
more actions or omissions or a combination of both. Whether there has been
an internationally wrongful act depends, first, on the requirements of the ob-
ligation which is said to have been breached and, secondly, on the framework
conditions for such an act….
Article 2. Elements of an internationally wrongful act

of a State
There is an internationally wrongful act of a State when conduct consisting
of an action or omission:
82
U.N. International Law Commission, Draft Articles on Responsibility of States for
Internationally Wrongful Acts, 2001. Full articles and comments available at: http://
untreaty.un.org/ilc/texts/9_6.htm.

CHAPTER 5 STATE RESPONSIBILITY
(a) is attributable to the State under international law; and

(b) constitutes a breach of an international obligation of the State.
Commentary
Article 2 specifies the conditions required to establish the existence of an
internationally wrongful act of the State, i.e. the constituent elements of such
an act. Two elements are identified. First, the conduct in question must be
attributable to the State under international law. Secondly, for responsibility
to attach to the act of the State, the conduct must constitute a breach of an
international legal obligation in force for that State at that time.
Article 3. Characterization of an act of a State as

internationally wrongful
The characterization of an act of a State as internationally wrongful is
governed by international law.
Such characterization is not affected by the characterization of the same
act as lawful by internal law.
Commentary
(1) Article 3 makes explicit a principle already implicit in article 2, namely that
the characterization of a given act as internationally wrongful is independent of
its characterization as lawful under the internal law of the State concerned. There
are two elements to this. First, an act of a State cannot be characterized as interna-
tionally wrongful unless it constitutes a breach of an international obligation, even
if it violates a provision of the State’s own law. Secondly and most importantly, a
State cannot, by pleading that its conduct conforms to the provisions of its internal
law, escape the characterization of that conduct as wrongful by international law.
Breach of an International Obligation

United States Diplomatic and Consular Staff in Tehran (U.S.
v. Iran), 198083
***
56. The principal facts material for the Court’s decision on the merits of
the present case have been set out earlier in this Judgment. Those facts have
to be looked at by the Court from two points of view. First, it must determine
83
United States Diplomatic and Consular Staff in Tehran (U.S. v. Iran), Judgment, I.C.J.
Reports 1980, p. 3.

PA R T I
how far, legally, the acts in question may be regarded as imputable to the Ira-
nian State. Secondly, it must consider their compatibility or incompatibility
with the obligations of Iran under treaties in force or under any other rules of
international law that may be applicable. The events which are the subject of
the United States’ claims fall into two phases which it will be convenient to
examine separately.

199784
***
78. Moreover, in practice, the operation of Variant C led Czechoslovakia to
appropriate, essentially for its use and benefit, between 80 and 90 per cent of
the waters of the Danube before returning them to the main bed of the river,
despite the fact that the Danube is not only a shared international watercourse
but also an international boundary river.
Czechoslovakia submitted that Variant C was essentially no more than
what Hungary had already agreed to and that the only modifications made
were those which had become necessary by virtue of Hungary’s decision not
to implement its treaty obligations. It is true that Hungary, in concluding the
1977 Treaty, had agreed to the damming of the Danube and the diversion of its
waters into the bypass canal. But it was only in the context of a joint operation
and a sharing of its benefits that Hungary had given its consent. The suspen-
sion and withdrawal of that consent constituted a violation of Hungary’s legal
obligations, demonstrating, as it did, the refusal by Hungary of joint operation;
but that cannot mean that Hungary forfeited its basic right to an equitable and
reasonable sharing of the resources of an international watercourse. The Court
accordingly concludes that Czechoslovakia, in putting Variant C into operation,
was not applying the 1977 Treaty but, on the contrary, violated certain of its
express provisions, and, in so doing, committed an internationally wrongful act.
Rainbow Warrior Case (New Zealand v. France), 199085
***
56. The reason is that the general principles of International Law concern-
ing State responsibility are equally applicable in the case of breach of treaty
obligation, since in the international law field there is no distinction between
84
Gabčíkovo-Nagymaros Project (Hungary v. Slovakia), Judgment, I.C.J. Reports 1997, p. 7.
85
Arbitration Tribunal 1990, vol. XX (Sales No.E/F.93.V.3), p. 215 (1990).(p. 251, para.
75).

contractual and tortious responsibility, so that any violation by a State of any

obligation, of whatever origin, gives rise to State responsibility and consequently,
to the duty of reparation. The particular treaty itself might of course limit or
extend the general Law of State Responsibility, for instance by establishing a
system of remedies for it. The Permanent Court proclaimed this fundamental
principle in the Chorzow Factory (Jurisdiction) case, stating:
It is a principle of international law that the breach of an engagement
involves an obligation to make reparation in an adequate form. Reparation,
therefore, is the indispensable complement of a failure to apply a convention
(P.C.I.J., Series A, Nos. 9, 21 (1927)).
And the present Court has said:
It is clear that refusal to fulfill a treaty obligation involves international
responsibility (Peace Treaties (second phase) 1950, I.C.J. Reports, 221, 228).
The conclusion to be reached on this issue is that, without prejudice to the
terms of the agreement which the Parties signed and the applicability of certain
important provisions of the Vienna Convention on the Law of Treaties, the
existence in this case of circumstances excluding wrongfulness as well as the
questions of appropriate remedies, should be answered in the context and in
the light of the customary Law of State Responsibility.
Attribution of Conduct to a State

Immunity from Legal Process of a Special Rapporteur of
the Commission on Human Rights, I.C.J. Advisory Opinion,
199986
***
[p. 87] The Court concludes that the Government of Malaysia had an ob-
ligation, under Article 105 of the Charter and under the General Convention,
to inform its Courts of the position taken by the Secretary-General. According
to a well-established rule of international law, the conduct of any organ of a
State must be regarded as an act of that State. This rule, which is of a customary
character, is reflected in Article 6 of the Draft Articles on State Responsibility
adopted provisionally by the International Law Commission on first reading,
which provides:
86
Difference Relating to Immunity from Legal Process of a Special Rapporteur of the
Commission on Human Rights, Advisory Opinion, I.C.J. Reports 1999, p. 62.

PA R T I
“The conduct of an Organ of the State shall be considered as an act of that

State under international law, whether that Organ belongs to the constituent,
legislative, executive, judicial or other power, whether its functions are of an
international or an internal character, and whether it holds a superior or a
subordinated position in the organization of the State.” (Yearbook of the In-
ternational Law Commission, 1973, Vol. II, p. 193.)
Because the Government did not transmit the Secretary-General’s finding to
the competent Courts, and the Minister for Foreign Affairs did not refer to it in his
own certificate, Malaysia did not comply with the above-mentioned obligation.
Separate Opinion of Judge Oda
[p. 107 S.O. Oda] (Paragraph (2) (a) of the operative part) The Malaysian
national courts decided to examine Mr. Cumaraswamy’s plea in the merits phase
of the proceedings against him. Malaysia, as a State, is responsible for the actions
of its national courts in allowing the proceedings against Mr. Cumaraswamy
to be pursued, rather than dismissing them. In other words, it is Malaysia, as a
State, that is responsible for the failure of its organs - the judicial power in this
case - to ensure Mr. Cumaraswamy’s legal immunity. The matter of whether or
not an executive department of the Malaysian Government informed its courts
of the position taken by the Secretary-General is not a relevant issue in this case.
Separate Opinion of Judge Rezek
[p. 109 S.O. Rezek] I share the views of the majority on these points, but I
would wish to emphasize that the obligation incumbent upon Malaysia is not
merely to notify the Malaysian courts of the finding of the Secretary-General,
but to ensure that the immunity is respected.
This is in no way to suggest a course of conduct incompatible with the very
notion of the independence of the judiciary (which independence, moreover,
constitutes the subject-matter of the Special Rapporteur’s mission). The Govern-
ment will ensure respect for immunity if, having endorsed the finding of the
Secretary-General, it uses all the means at its disposal in relation to the judiciary
(action by the public prosecutor or the advocate-general in the majority of
countries) in order to have that immunity applied, in exactly the same way as
it defends its own interests and positions before the courts. Admittedly, where
the judiciary is an independent power, it is always possible that, notwithstand-
ing the Government’s efforts, immunity may finally be denied by the highest
judicial instance. In that hypothetical case, just as in the concrete one of the
refusal by the Malaysian courts to deal with the question of immunity in limine
litis, Malaysia would incur international responsibility vis-à-vis the United Na-
tions by reason of the acts of a power other than the executive. That would

not be a situation unknown to international law, or indeed a rare occurrence

in the history of international relations.

***
109. What the Court has to determine at this point is whether or not the
relationship of the contras to the United States Government was so much one
of dependence on the one side and control on the other that it would be right
to equate the contras, for legal purposes, with an organ of the United States
Government, or as acting on behalf of that Government. Here it is relevant to
note that in May 1983 the assessment of the Intelligence Committee, in the
Report referred to in paragraph 95 above, was that the contras “constitute[d]
an independent force” and that the “only element of control that could be
exercised by the United States” was “cessation of aid.” Paradoxically this assess-
ment serves to underline, a contrario, the potential for control inherent in the
degree of the contras’ dependence on aid. Yet despite the heavy subsidies and
other support provided to them by the United States, there is no clear evidence
of the United States having actually exercised such a degree of control in all
fields as to justify treating the contras as acting on its behalf….
111. In the view of the Court it is established that the contra force has,
at least at one period, been so dependent on the United States that it could
not conduct its crucial or most significant military and paramilitary activities
without the multi-faceted support of the United States. This finding is funda-
mental in the present case. Nevertheless, adequate direct proof that all or the
great majority of contra activities during that period received this support has
not been, and indeed probably could not be, advanced in every respect. It will
suffice the Court to stress that a degree of control by the United States Govern-
ment, as described above, is inherent in the position in which the contra force
finds itself in relation to that Government….
115. The Court has taken the view (paragraph 110 above) that United
States participation, even if preponderant or decisive, in the financing, organizing,
training, supplying and equipping of the contras, the selection of its military or
paramilitary targets, and the planning of the whole of its operation, is still insuf-
ficient in itself, on the basis of the evidence in the possession of the Court, for the
purpose of attributing to the United States the acts committed by the contras in
87

PA R T I
the course of their military or paramilitary operations in Nicaragua. All the forms of
United States participation mentioned above, and even the general control by the
respondent State over a force with a high degree of dependency on it, would not
in themselves mean, without further evidence, that the United States directed or
enforced the perpetration of the acts contrary to human rights and humanitarian
law alleged by the applicant State. Such acts could well be committed by members
of the contras without the control of the United States. For this conduct to give rise
to legal responsibility of the United States, it would in principle have to be proved
that that State had effective control of the military or paramilitary operations in
the course of which the alleged violations were committed.
116. The Court does not consider that the assistance given by the United
States to the contras warrants the conclusion that these forces are subject to the
United States to such an extent that any acts they have committed are imput-
able to that State. It takes the view that the contras remain responsible for their
acts, and that the United States is not responsible for the acts of the contras,
but for its own conduct vis-à-vis Nicaragua, including conduct related to the
acts of the contras. What the Court has to investigate is not the complaints
relating to alleged violations of humanitarian law by the contras, regarded by
Nicaragua as imputable to the United States, but rather unlawful acts for which
the United States may be responsible directly in connection with the activities
of the contras. The lawfulness or otherwise of such acts of the United States
is a question different from the violations of humanitarian law of which the
contras may or may not have been guilty. It is for this reason that the Court does
not have to determine whether the violations of humanitarian law attributed
to the contras were in fact committed by them. At the same time, the ques-
tion whether the United States Government was, or must have been, aware at
the relevant time that allegations of breaches of humanitarian law were being
made against the contras is relevant to an assessment of the lawfulness of the
action of the United States. In this respect the material facts are primarily those
connected with the issue in 1983 of a manual of psychological operations….
155. Secondly, even supposing it well established that military aid is reach-
ing the armed opposition in El Salvador from the territory of Nicaragua, it still
remains to be proved that this aid is imputable to the authorities of the latter
country. Indeed, the applicant State has in no way sought to conceal the pos-
sibility of weapons en route to the armed opposition in El Salvador crossing
its territory but it denies that this is the result of any deliberate official policy
on its part. As the Court observed in 1949:
“it cannot be concluded from the mere fact of the control exercised by a
State over its territory and waters that that State necessarily knew, or ought to

have known, of any unlawful act perpetrated therein, nor yet that it necessarily
knew, or should have known, the authors. This fact, by itself and apart from
other circumstances, neither involves prima facie responsibility nor shifts the
burden of proof.” (Corfu Channel, I.C.J. Reports 1949, p. 18.)….
157. ... if the flow of arms is in fact reaching El Salvador without either Hon-
duras or El Salvador or the United States succeeding in preventing it, it would
clearly be unreasonable to demand of the Government of Nicaragua a higher
degree of diligence than is achieved by even the combined efforts of the other
three States. In particular, when Nicaragua is blamed for allowing consignments
of arms to cross its territory, this is tantamount, where El Salvador is concerned,
to an admission of its inability to stem the flow. This is revealing as to the
predicament of any government, including that of Nicaragua, faced with this
arms traffic: its determination to put a stop to it would be likely to fail. More
especially, to the extent that some of this aid is said to be successfully routed
through Honduras, this accusation against Nicaragua would also signify that
Honduras, which is not suspected of seeking to assist the armed opposition in
El Salvador, is providing involuntary proof that it is by no means certain that
Nicaragua can combat this clandestine traffic any better than Honduras. As the
means at the disposal of the governments in the region are roughly comparable,
the geographical obstacles, and the intrinsic character of any clandestine arms
traffic, simply show that this traffic may be carried on successfully without
any complicity from governmental authorities, and even when they seek to
put a stop to it. Finally, if it is true that the exceptionally extensive resources
deployed by the United States have been powerless to prevent this traffic from
keeping the Salvadorian armed opposition supplied, this suggests even more
clearly how powerless Nicaragua must be with the much smaller resources
at its disposal for subduing this traffic if it takes place on its territory and the
authorities endeavour to put a stop to it.
158. Confining itself to the regional States concerned, the Court accord-
ingly considers that it is scarcely possible for Nicaragua’s responsibility for an
arms traffic taking place on its territory to be automatically assumed while the
opposite assumption is adopted with regard to its neighbours in respect of
similar traffic. Having regard to the circumstances characterizing this part of
Central America, the Court considers it more realistic, and consistent with the
probabilities, to recognize that an activity of that nature, if on a limited scale,
may very well be pursued unbeknown to the territorial government.
Separate Opinion of Judge Ago
[pp. 188-189 S.O. Ago] On the other hand, the negative answer returned by
the Court to the Applicant’s suggestion that the misdeeds committed by some

PA R T I
members of the contra forces should be considered as acts imputable to the

United States of America is likewise in conformity with the provisions of the
International Law Commission’s draft.88 It would indeed be inconsistent with
the principles governing the question to regard members of the contra forces
as persons or groups acting in the name and on behalf of the United States of
America. Only in cases where certain members of those forces happened to have
been specifically charged by United States authorities to commit a particular act,
or carry out a particular task of some kind on behalf of the United States, would
it be possible so to regard them. Only in such instances does international law
recognize, as a rare exception to the rule, that the conduct of persons or groups
which are neither agents nor organs of a State, nor members of its apparatus even
in the broadest acceptation of that term, may be held to be acts of that State.
James Crawford, “Human Rights and State Responsibility”89
Attribution to the State of human rights violations by

non-State actors
(a) Sub-State units and organs of the State
The position is clearest, where the entity performing an act is a unit of the
State. The acts of the territorial subdivisions and administrative organs com-
prising the State are assimilated for purposes of international responsibility to
the State itself. This holds, regardless of the position under municipal law. The
international law of responsibility does not allow the State to escape respon-
sibility by pleading separation between, for example, Arizona and the United
States, or a French administrative agency and France, even as municipal law
may assign legal consequences to the distinctions. The subsidiary parts and
the State as a whole are treated, for purposes of responsibility, as one and the
same. This position is reflected in the Draft Articles:
“Article 4
Conduct of organs of a State
1. The conduct of any State organ shall be considered an act
of that State under international law, whether the organ exercises
legislative, executive, judicial or any other functions, whatever the
88
I refer to Articles 11 (Conduct of persons not acting on behalf of the State) and 8
(Attribution to the State of the conduct of persons acting in fact on behalf of the
State), read together.
89
12th Raymond & Beverly Sackler Distinguished Lecture Series. Human Rights and
State Responsibility. James Crawford. [Reprinted with permission of the author]

position it holds in the organization of the State, and whatever its

character as an organ of the central government or of a territorial
unit of the State.
2. An organ includes any person or entity which has that status
in accordance with the internal law of the State.”
The rule set out in Article 4 was in play, in the several cases in which the
United States was challenged under the Vienna Convention on Consular
Relations for derogations of the rights of individuals sentenced to death
for crimes under the laws of certain of the United States—e.g., Virginia (in
Breard (Paraguay v. USA)90), Arizona (in LaGrand (Germany v USA)91) and
Arizona, Arkansas, California, Illinois, Nevada, Ohio, Oklahoma, Oregon and
Texas (in Avena).92
The position is the same with administrative organs as with territorial units.
The International Court in Difference Relating to Immunity from Legal Process
of a Special Rapporteur of the Commission on Human Rights said:
“According to a well-established rule of international law, the
conduct of any organ of a State must be regarded as an act of that
State. This rule… is of a customary character.”93
The State will not avoid responsibility, merely by showing that its organ
or individual agent “exceed[ed] its authority or contravene[ed] instructions.”
Only where the acts in question have been done in a wholly private capacity,
without colour of State authority, will responsibility be avoided. This rule is
set out in ARSIWA Article 7:
“Excess of authority or contravention of instructions
The conduct of an organ of a State or of a person or entity
empowered to exercise elements of the governmental authority
shall be considered an act of the State under international law if
the organ, person or entity acts in that capacity, even if it exceeds
its authority or contravenes instructions.”
The rule of Article 7 has been expressed in the human rights setting. For
example, the Inter-American Court of Human Rights in the Velásquez Rodríguez
case said:
90
I.C.J. Reports 1998 p 248.
91
92
93
I.C.J. Reports 1999 p 62, 87 (para 62).

PA R T I
“This conclusion [that there has been a breach of the American

Convention on Human Rights] is independent of whether the
organ or official has contravened provisions of internal law or
overstepped the limits of his authority: under international law a
State is responsible for the acts of its agents undertaken in their
official capacity and for their omissions, even when those agents
act outside the sphere of their authority or violate internal law.”94
(b) Private individuals and non-State entities
The more difficult cases, for determining whether the responsibility of
the State is implicated, are those in which the acts in question are done by a
private party.
(i) Presumption that private parties are autonomous from the State
The conduct of any human being or legal entity, if it has a link of nationality,
habitual residence or incorporation to a particular State, might be attributed
to that State. But international law acknowledges the autonomy of individuals
and the organisations they constitute, and it also views the State as distinct from
its nationals. Thus there is a presumption, more or less strong depending on
the context, that the conduct of private persons is not as such attributable to
the State. This was demonstrated by the Tellini case in 1923. An international
commission had been established to delimit the border between Greece and
Albania. Its Chairman and several of its members were assassinated on Greek
territory. The League of Nations Council referred questions arising out of the
incident to a Committee of Jurists. The Committee said:
“The responsibility of a State is only involved by the commission
in its territory of a political crime against the persons of foreigners
if the State has neglected to take all reasonable measures for the
prevention of the crime and the pursuit, arrest and bringing to
justice of the criminal.”95
The rules of State responsibility are limitative, in the sense that a State is not
responsible for the conduct of non-State actors, unless the State has specifi-
cally agreed to accept attribution or the circumstances fall under one of the
exceptional categories identified in the rules. The Iran-United States Claims
Tribunal said, “in order to attribute an act to the State, it is necessary to identify
with reasonable certainty the actors and their association with the State.”96
94
Inter-Am Ct. H.R. Ser C No 4 (1989), 95 ILR 259, 296 (para 170).
95
League of Nations, OJ, 5th Year, No. 4 (April 1924), p 524.
96
Yeager v. Islamic Republic of Iran (1987) 17 Iran-U.S.C.T.R. 92, 101-2.

Having established that the position is not absolute, that the conduct of
private parties is not to be attributed to the State, it falls to be considered under
what circumstances such conduct will implicate State responsibility.
(ii) Non-State actors as agents of the State
A non-State actor might be engaged by the State to “exercise elements of
the governmental authority.” Where this is the case, conduct of the non-State
actor may be attributed to the State. According to ARSIWA Article 5,
“The conduct of a person or entity which is not an organ of the
State under article 4 but which is empowered by the law of that
State to exercise elements of the governmental authority shall be
considered an act of the State under international law, provided the
person or entity is acting in that capacity in the particular instance.”
There are various situations in which non-State actors are agents of a State.
For example, in recent years, in some countries, public organs have contracted
with private security firms to take over the management of prisons. This is an
example of a private party acting as agent of the State—a situation in which
its acts will be attributed to the State for international law purposes. Prison
management, it would seem almost as a matter of course, is one area that gives
rise to challenges under human rights law.97 Alfred Aman expresses concern that
private prison companies might (1) influence public authorities to increase the
number of sentences and thus the number of “clients.” Aman admits that “[t]
here is no evidence that private providers attempt to either influence sentencing
or statute drafting in order to increase the number of prisoners”—but identi-
fies this as a risk nonetheless. In his view the removal of public monitoring
organs from private prisons presents the risk that the prison managers will be
unaccountable for violations of human rights.98
(iii) Non-State actors under the direction or control of a State
Situations also may be presented, in which the State, though it has not
formally engaged a private party as its agent, nonetheless directs or controls
its activity. Under Article 8 of the ILC Articles:
97
Some 140,000 prison beds in the U.S, UK and Australia are managed by private firms,
and problems of international human rights law have been identified in this: Colin
Fenwick, “Private Use of Prisoner’s Labor: Paradoxes of International Human Rights
Law,” (2005) 27 Human Rights Quarterly 249.
98
Alfred C. Aman, Jr., “Privatization, Prisons, Democracy, and Human Rights: The Need
to Extend the Province of Administrative Law,” (2005) 12 Indiana J Global Legal
Studies 511, 543-5.

PA R T I
“The conduct of a person or group of persons shall be

considered an act of a State under international law if the
person or group of persons is in fact acting on the instructions
of, or under the direction or control of, that State in carrying
out the conduct.”
The rule set out in Article 8 has arisen in practice in connection with
State support for insurrectionist movements opposing the government of
another State.
(c) Armed opposition groups: attribution of their acts to the State
The actions of an armed opposition group, engaged, for example, in a civil
war against government forces of a State, are not normally to be attributed
to the State. However, there are situations in which the conduct of such a
group may be attributed to the State on the territory of which it operates; or
to another State. The position of armed opposition groups under the law of
responsibility is particularly relevant to the question of human rights, as viola-
tions of human rights may proliferate in a situation of insurrection against the
established government of a State.
Where an armed opposition group is acting on the instructions or under
the direction or control of another State, the conduct of the group may be at-
tributed to that State. The standard, however, is stringent, and international
tribunals require a clear finding that particular conduct was effectively under
the foreign State’s direction or control, or taking place on the foreign State’s
instruction, before responsibility will be attributed to the foreign State. The
International Court, in the Case Concerning Military and Paramilitary Activities
in and against Nicaragua held that
“[D]espite the heavy subsidies and other support provided to
them by the United States, there is no clear evidence of the United
States having actually exercised such a degree of control in all
fields as to justify treating the contras as acting on its behalf… All
the forms of United States participation mentioned above, and
even the general control by the respondent State over a force
with a high degree of dependency on it, would not in themselves
mean, without further evidence, that the United States directed
or enforced the perpetration of the acts contrary to human rights
and humanitarian law alleged by the applicant State. Such acts
could well be committed by members of the contras without the
control of the United States. For this conduct to give rise to legal
responsibility of the United States, it would in principle have to
be proved that that State had effective control of the military

or paramilitary operations in the course of which the alleged

violations were committed.”99
The Appeals Chamber of the International Criminal Tribunal for the Former
Yugoslavia formulated the position somewhat differently—expressly distin-
guishing its approach from that of the International Court in the Nicaragua
case. In Prosecutor v Tadić, the Chamber said:
“The requirement of international law for the attribution to
States of acts performed by private individuals is that the State
exercises control over the individuals. The degree of control may,
however, vary according to the factual circumstances of each
case. The Appeals Chamber fails to see why in each and every
circumstance international law should require a high threshold
for the test of control.”100
The ICTY was concerned with the criminal responsibility of individuals,
and this distinguishes its position from that of the International Court in the
Nicaragua case, where State responsibility was in issue. Moreover, the ques-
tion under consideration in Tadić was whether international humanitarian
law applied to the case—not whether responsibility existed for particular acts.
A non-State group may find itself exercising a public function, where the
government of the State has disappeared, and the exercise of the public func-
tion is necessary. In such a situation, the conduct of the non-State group may
be attributed to the State. This is an exceptional case, but not unheard of: Post-
revolutionary situations, for example, may give rise to this form of attribution,
as did the situation during the Islamic Revolution in Iran.
It is a well-established position, reflected, for example, in the early 20th
century Mexican and Venezuelan mixed claims commissions, that the activities
of an insurrectionist movement, which then succeeds in taking over the State,
are attributable to the State.
99
Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. USA), Merits,
I.C.J. Rep 1986 p 14, 62, 64-5 (para 109, 115).
100
Case IT-94-1, Prosecutor v Tadić (1999) 38 ILM 1518, 1541 (para 117) (emphasis
original).

PA R T I
Circumstances Precluding Wrongfulness

Rainbow Warrior Arbitration (New Zealand v France),
1987101
***
76. Under the title “Circumstances Precluding Wrongfulness” the Inter-
national Law Commission proposed in Articles 29 to 35 a set of rules which
include three provisions, on force majeure and fortuitous event (Article 31),
distress (Article 32), and state of necessity (Article 33), which may be relevant
to the decision on this case.
77. …[T]here are several reasons for excluding the applicability of the excuse
of force majeure in this case. As pointed out in the report of the International
Law Commission, Article 31 refers to “a situation facing the subject taking
the action, which leads it, as it were, despite itself, to act in a manner not in
conformity with the requirements of an international obligation incumbent
on it” (Yrbk. I.J.C., 1979, vol. II, para. 2, p. 122, emphasis in the original). Force
majeure is “generally invoked to justify involuntary, or at least unintentional
conduct,” it refers “to an irresistible force or an unforeseen external event
against which it has no remedy and which makes it ‘materially impossible’ for
it to act in conformity with the obligation,” since “no person is required to do
the impossible” (Ibid., p. 123, para. 4).…
…New Zealand is right in asserting that the excuse of force majeure is not
of relevance in this case because the test of its applicability is of absolute and
material impossibility, and because a circumstance rendering performance
more difficult or burdensome does not constitute a case of force majeure.
Consequently, this excuse is of no relevance in the present case.
78. Article 32 of the Articles drafted by the International Law Commis-
sion deals with another circumstance which may preclude wrongfulness in
international law, namely, that of the “distress” of the author of the conduct
which constitutes the act of State whose wrongfulness is in question….The com-
mentary of the International Law Commission explains that “‘distress’ means
a situation of extreme peril in which the organ of the State which adopts that
conduct has, at that particular moment, no means of saving himself or persons
entrusted to his care other than to act in a manner not in conformity with
the requirements of the obligation in question”…. The question therefore is to
determine whether the circumstances of distress in a case of extreme urgency
101
26 ILM 1346, Special Arbitration Tribunal (1987).

involving elementary humanitarian considerations affecting the acting organs

of the State may exclude wrongfulness in this case.
79. In accordance with the previous legal considerations, three conditions
would be required to justify the conduct followed by France in respect to Major
Mafart and Captain Prieur:
1) The existence of very exceptional circumstances of extreme urgency
involving medical or other considerations of an elementary nature, provided
always that a prompt recognition of the existence of those exceptional circum-
stances is subsequently obtained from the other interested party or is clearly
demonstrated.
2) The reestablishment of the original situation of compliance with the
assignment in Hao as soon as the reasons of emergency invoked to justify the
repatriation had disappeared.
3) The existence of a good faith effort to try to obtain the consent of New
Zealand in terms of the 1986 Agreement.
The Case of Major Mafart
80. The New Zealand reaction to the French initiative for the removal of
Major Mafart appears to have been conducted in conformity with the above
considerations….
81. The sending of Dr. Croxson to examine Major Mafart the same day
of the arrival of the latter in Paris had the same implication indicated above,
namely, that if the alleged conditions of urgency justifying the evacuation were
verified, consent would very likely have been given to what was until then a
unilateral removal….Dr. Croxson’s first report, of 14 December 1987, accepts
that Major Mafart needed “detailed investigations which were not available in
Hao” and his answer to the crucial question of whether there was justification
for the emergency evacuation is equivocal.
83. This sixth report, dated 12 February 1988, on the other hand, evidences that
there was by that time a clear obligation of the French authorities to return Major
Mafart to Hao, by reason of the disappearance of the urgent medical emergency
which had determined his evacuation. This report, together with the absence of
other medical reports showing the recurrence of the symptoms which determined
the evacuation, demonstrates that Major Mafart should have been returned to Hao
at least on 12 February 1988, and that failure to do so constituted a breach by the
French Government of its obligations under the First Agreement. This breach is
not justified by the decision of the French authorities to retain Major Mafart in
metropolitan France on the ground that he was “unfit to serve overseas.”

PA R T I
88. …Both parties recognized that the return of Major Mafart to Hao de-
pended mainly on his state of health. Thus, the French Ministry of Foreign
Affairs in its note of 30 December 1987 to the New Zealand Embassy referring
to France’s respect for the 1986 Agreement had said that Major Mafart will re-
turn to Hao when his state of health allowed. Consequently, there was no valid
ground for Major Mafart continuing to remain in metropolitan France and the
conclusion is unavoidable that this omission constitutes a material breach by
the French Government of the First Agreement.
The Case of Captain Prieur
89. As to the situation of Captain Prieur, the French authorities advised the
New Zealand Government, on 3 May 1988, that she was pregnant, adding that
a medical report indicated that “this pregnancy should be treated with special
care . . . “ The advice added that “the medical facilities on Hao are not equipped
to carry out the necessary medical examinations and to give Mrs. Prieur the
care required by her condition.”…
93. The facts above, which are not disputed, show that New Zealand would
not oppose Captain Prieur’s departure, if that became necessary because of
special care which might be required by her pregnancy….
94. On the other hand, it appears that during the day of 5 May the French
Government suddenly decided to present the New Zealand Government with
the fait accompli of Captain Prieur’s hasty return for a new reason, the health
of Mrs. Prieur’s father, who was seriously ill, hospitalized for cancer.
96. …during the day of 5 May 1988, France did not seek New Zealand’s
approval in good faith for Captain Prieur’s sudden departure; and accordingly,
that the return of Captain Prieur, who left Hao on Thursday, 5 May at 11.30 p.m.
(French time) and arrived in Paris on Friday, 6 May, thus constituted a violation
of the obligations under the 1986 Agreement.
97. Moreover, France continued to fall short of its obligations by keeping
Captain Prieur in Paris after the unfortunate death of her father on 16 May 1988.…
99. In summary, the circumstances of distress, of extreme urgency and the
humanitarian considerations invoked by France may have been circumstances
excluding responsibility for the unilateral removal of Major Mafart without
obtaining New Zealand’s consent, but clearly these circumstances entirely fail
to justify France’s responsibility for the removal of Captain Prieur and from the
breach of its obligations resulting from the failure to return the two officers
to Hao (in the case of Major Mafart once the reasons for their removal had
disappeared). There was here a clear breach of its obligations and a breach of
a material character.


1997102
***
49. The Court will now consider the question of whether there was, in 1989,
a state of necessity which would have permitted Hungary, without incurring
international responsibility, to suspend and abandon works that it was com-
mitted to perform in accordance with the 1977 Treaty and related instruments.
50. In the present case, the Parties are in agreement in considering that the
existence of a state of necessity must be evaluated in the light of the criteria laid
down by the International Law Commission in Article 33 of the Draft Articles
on the International Responsibility of States that it adopted on first reading.
That provision is worded as follows:
“Article 33. State of necessity
1. A state of necessity may not be invoked by a State as a ground for
precluding the wrongfulness of an act of that State not in conformity with an
international obligation of the State unless:
(a) the act was the only means of safeguarding an essential interest
of the State against a grave and imminent peril; and
(b) the act did not seriously impair an essential interest of the State
towards which the obligation existed.
2. In any case, a state of necessity may not be invoked by a State
as a ground for precluding wrongfulness:
(a) if the international obligation with which the act of the State is
not in conformity arises out of a peremptory norm of general
international law; or
(b) if the international obligation with which the act of the State
is not in conformity is laid down by a treaty which, explicitly
or implicitly, excludes the possibility of invoking the state of
necessity with respect to that obligation; or
(c) if the State in question has contributed to the occurrence
of the state of necessity.”(Yearbook of the International Law
Commission, 1980, Vol. ll, Part 2, p. 34.)
In its Commentary, the Commission defined the “state of necessity” as being
102
Gabčíkovo-Nagymaros Project (Hungary v. Slovakia), Judgment, I.C.J. Reports 1997,
p. 7.

PA R T I
“the situation of a State whose sole means of safeguarding an essential

interest threatened by a grave and imminent peril is to adopt conduct not in
conformity with what is required of it by an international obligation to another
State” (ibid., para. 1).
It concluded that “the notion of state of necessity is ... deeply rooted in
general legal thinking” ibid., p. 49, para. 31).
51. The Court considers, first of all, that the state of necessity is a ground
recognized by customary international law for precluding the wrongfulness of
an act not in conformity with an international obligation. It observes moreover
that such ground for precluding wrongfulness can only be accepted on an excep-
tional basis. The International Law Commission was of the same opinion when it
explained that it had opted for a negative form of words in Article 33 of its Draft
“in order to show, by this formal means also, that the case
of invocation of a state of necessity as a justification must be
considered as really constituting an exception - and one even more
rarely admissible than is the case with the other circumstances
precluding wrongfulness...”(ibid., p. 51, para. 40).
Thus, according to the Commission, the state of necessity can only be in-
voked under certain strictly defined conditions which must be cumulatively
satisfied; and the State concerned is not the sole judge of whether those con-
ditions have been met.
52. In the present case, the following basic conditions set forth in Draft Ar-
ticle 33 are relevant: it must have been occasioned by an “essential interest” of
the State which is the author of the act conflicting with one of its international
obligations; that interest must have been threatened by a “grave and imminent
peril”; the act being challenged must have been the “only means” of safeguarding
that interest; that act must not have “seriously impair[ed] an essential interest”
of the State towards which the obligation existed; and the State which is the
author of that act must not have “contributed to the occurrence of the state
of necessity.” Those conditions reflect customary international law. The Court
will now endeavor to ascertain whether those conditions had been met at the
time of the suspension and abandonment, by Hungary, of the works that it was
to carry out in accordance with the 1977 Treaty.
53. The Court has no difficulty in acknowledging that the concerns ex-
pressed by Hungary for its natural -environment in the region affected by the
Gabčíkovo-Nagymaros Project related to an “essential interest” of that State,
within the meaning given to that expression in Article 33 of the Draft of the
International Law Commission.

The Commission, in its Commentary, indicated that one should not, in

that context, reduce an “essential interest” to a matter only of the “existence”
of the State, and that the whole question was, ultimately, to be judged in the
light of the particular case (see Yearbook of the International Law Commis-
sion, 1980, Vol. II, Part 2, p. 49, para. 32); at the same time, it included among
the situations that could occasion a state of necessity, “a grave danger to... the
ecological preservation of all or some of [the] territory [of a State]” (ibid., p. 35,
para. 3); and specified, with reference to State practice, that “It is primarily in
the last two decades that safeguarding the ecological balance has come to be
considered an ‘essential interest’ of all States.” Ibid., p. 39, para. l4.) The Court
recalls that it has recently had occasion to stress, in the following terms, the
great significance that it attaches to respect for the environment, not only for
States but also for the whole of mankind:
“the environment is not an abstraction but represents the living space, the
quality of life and the very health of human beings, including generations un-
born. The existence of the general obligation of States to ensure that activities
within their jurisdiction and control respect the environment of other States or
of areas beyond national control is now part of the corpus of international law
relating to the environment.” (Legality of the Threat or Use of Nuclear Weapons,
Advisory Opinion, I.C.J. Reports 1996, pp. 241-242, para. 29.)
54. The verification of the existence, in 1989, of the “peril” invoked by
Hungary, of its “grave and imminent” nature, as well as of the absence of any
“means” to respond to it, other than the measures taken by Hungary to suspend
and abandon the works, are all complex processes. As the Court has already
indicated (see paragraphs 33 et seq. above), Hungary on several occasions
expressed, in 1989, its “uncertainties” as to the ecological impact of putting in
place the Gabčíkovo-Nagymaros barrage system, which is why it asked insis-
tently for new scientific studies to be carried out.
The Court considers, however, that, serious though these uncertainties
might have been they could not, alone, establish the objective existence of
a “peril” in the sense of a component element of a state of necessity. The
word “peril” certainly evokes the idea of “risk”; that is precisely what dis-
tinguishes “peril” from material damage. But a state of necessity could not
exist without a “peril” duly established at the relevant point in time; the
mere apprehension of a possible “peril” could not suffice in that respect. It
could moreover hardly be otherwise, when the “peril” constituting the state
of necessity has at the same time to be “grave” and “imminent.” “Imminence”
is synonymous with “immediacy” or “proximity” and goes far beyond the
concept of “possibility.” As the International Law Commission emphasized in

PA R T I
its commentary, the “extremely grave and imminent” peril must “have been
a threat to the. interest at the actual time” (Yearbook of the International
Law Commission, 1980, Vol. II, Part 2, p. 49, para. 33). That does not exclude,
in the view of the Court, that a “peril” appearing in the long term - might
be held to be “imminent” as soon as it is established, at the relevant point
in time, that the realization of that peril, however far off it might be, is not
thereby any less certain and inevitable.
The Hungarian argument on the state of necessity could not convince the
Court unless it was at least proven that a real, “grave” and “imminent” “peril”
existed in 1989 and that the measures taken by Hungary were the only pos-
sible response to it….
57. The Court concludes from the foregoing that, with respect to both Nagy-
maros and Gabčíkovo, the perils invoked by Hungary, without prejudging their
possible gravity, were not sufficiently established in 1989, nor were they “im-
minent”; and that Hungary had available to it at that time means of responding
to these perceived perils other than the suspension and abandonment of works
with which it had been entrusted. What is more, negotiations were under way
which might have led to a review of the Project and the extension of some of
its time-limits, without there being need to abandon it. The Court infers from
this that the respect by Hungary, in 1989, of its obligations under the terms of
the 1977 Treaty would not have resulted in a situation “characterized so aptly
by the maxim summum jus summa injuria” (Yearbook of the International Law
Commission, 1980, Vol. II, Part 2, p. 49, para. 31).
Moreover, the Court notes that Hungary decided to conclude the 1977
Treaty, a Treaty which - whatever the political circumstances prevailing at the
time of its conclusion - was treated by Hungary as valid and in force until the
date declared for its termination in May 1992. As can be seen from the material
before the Court, a great many studies of a scientific and technical nature had
been conducted at an earlier time, both by Hungary and by Czechoslovakia.
Hungary was, then, presumably aware of the situation as then known, when it
assumed its obligations under the Treaty. Hungary contended before the Court
that those studies had been inadequate and that the state of knowledge at that
time was not such as to make possible a complete evaluation of the ecological
implications of the Gabčíkovo-Nagymaros Project. It is nonetheless the case
that although the principal object of the 1977 Treaty was the construction of a
System of Locks for the production of electricity, improvement of navigation on
the Danube and protection against flooding, the need to ensure the protection
of the environment had not escaped the parties, as can be seen from Articles
l5, l9 and 20 of the Treaty.

What is more, the Court cannot fail to note the positions taken by Hungary
after the entry into force of the 1977 Treaty. In 1983, Hungary asked that the works
under the Treaty should go forward more slowly, for reasons that were essentially
economic but also, subsidiarily, related to ecological concerns. In 1989, when, ac-
cording to Hungary itself, the state of scientific knowledge had undergone a sig-
nificant development, it asked for the works to be speeded up, and then decided,
three months later, to suspend them and subsequently to abandon them. The Court
is not however unaware that profound changes were taking place in Hungary in
1989, and that, during that transitory phase, it might have been more than usually
difficult to co-ordinate the different points of view prevailing from time to time.
The Court infers from all these elements that, in the present case, even if it
had been established that there was, in 1989, a state of necessity linked to the
performance of the 1977 Treaty, Hungary would not have been permitted to
rely upon that state of necessity in order to justify its failure to comply with its
treaty obligations, as it had helped, by act or omission to bring it about.
80. Slovakia also maintained that it was acting under a duty to mitigate
damages when it carried out Variant C. It stated that “It is a general principle
of international law that a party injured by the non-performance of another
contract party must seek to mitigate the damage he has sustained.”
It would follow from such a principle that an injured State which has failed
to take the necessary measures to limit the damage sustained would not be en-
titled to claim compensation for that damage which could haye been avoided.
While this principle might thus provide a basis for the calculation of damages,
it could not, on the other hand, justify an otherwise wrongful act...
83. In order to be justifiable, a countermeasure must meet certain conditions
(see Military and Paramilitary Activities in and against Nicaragua (Nicaragua v.
United States of America) Merits, Judgment, I.C.J. Reports 1986, p. 127, para.
249. See also Arbitral Award of 9 December 1978 in the case concerning the
Air Service Agreement of 27 March 1946 between the United States of America
and France, United Nations, Reports of International Arbitral Awards (RIAA),
Vol. XVIH, pp. 443 et seq.; also Articles 47 to 50 of the Draft Articles on State
Responsibility adopted by the International Law Commission on first reading,
“Report of the International Law Commission on the work of its forty-eighth
session, 6 May-26 July 1996,” Official Records of the General Assembly, Fifty-
first Session, Supplement No. 10 (A/51/10), pp. 144-145.).
In the first place it must be taken in response to a previous international
wrongful act of another State and must be directed against that State. Although
not primarily presented as a countermeasure, it is clear that Variant C was a
response to Hungary’s suspension and abandonment of works and that it was

PA R T I
directed against that State; and it is equally clear, in the Court’s view, that Hun-
gary’s actions were internationally wrongful.
84. Secondly, the injured State must have called upon the State committing
the wrongful act to discontinue its wrongful conduct or to make reparation
for it. It is clear from the facts of the case, as recalled above by the Court (see
paragraphs 61 et seq.), that Czechoslovakia requested Hungary to resume the
performance of its treaty obligations on many occasions.
85. In the view of the Court, an important consideration is that the effects
of a countermeasure must be commensurate with the injury suffered, taking
account of the rights in question.
In 1929, the Permanent Court of International Justice, with regard to navi-
gation on the River Oder, stated as follows:
“[the] community of interest in a navigable river becomes the basis of a
common legal right, the essential features of which are the perfect equality of
all riparian States in the user of the whole course of the river and the exclu-
sion of any preferential privilege of any one riparian State in relation to the
others”(Territorial Jurisdiction of the International Commission of the River
Oder, Judgment No. 16, 1929, P.C.I.J., Series A, No. 23, p. 27).
Modern development of international law has strengthened this principle
for non-navigational uses of international watercourses as well, as evidenced
by the adoption of the Convention of 21 May 1997 on the Law of the Non-
Navigational Uses of International Watercourses by the United Nations General
Assembly.
The Court considers that Czechoslovakia, by unilaterally assuming control
of a shared resource, and thereby depriving Hungary of its right to an equitable
and reasonable share of the natural resources of the Danube - with the con-
tinuing effects of the diversion of these waters on the ecology of the riparian
area of the Szigetköz - failed to respect the proportionality which is required by
international law.
86. Moreover, as the Court has already pointed out (see paragraph 78),
the fact that Hungary had agreed in the context of the original Project to the
diversion of the Danube (and, in the Joint Contractual Plan, to a provisional
measure of withdrawal of water from the Danube) cannot be understood as
having authorized Czechoslovakia to proceed with a unilateral diversion of
this magnitude without Hungary’s consent.
87. The Court thus considers that the diversion of the Danube carried out
by Czechoslovakia was not a lawful countermeasure because it was not pro-

portionate. It is therefore not required to pass upon one other condition for
the lawfulness of a countermeasure, namely that its purpose must be to induce
the wrongdoing State to comply with its obligations under international law,
and that the measure must therefore be reversible.
Dissenting Opinion of Judge Herczegh
[pp. 182-183 –D.O. Herczegh] State of necessity is a very narrow concept
in general international law. In the course of the International Law Commis-
sion’s work on the codification of State responsibility, the great majority of its
members were of the view “that any possibility of the notion of state of neces-
sity being applied where it is really dangerous must certainly be prevented, but
that this should not be so in cases where it is and will continue to be [a] useful
...” “The imperative need for compliance with the law must not be allowed to
result in situations so aptly characterized by the maxim summum jus summa
injuria” (Yearbook of the International Law Commission, 1980, Vol. 11, Part 2,
p. 49, para. 31). Thus the International Law Commission, expressing an almost
general approach and conviction, stressed that the situation had to involve an
“essential” interest of the State in question. That “essential” character naturally
depends upon the circumstances in which a State finds itself, which cannot be
defined beforehand, in the abstract. The peril threatening the essential interest
must be extremely grave and imminent, and it must have been avertable only
by means conflicting with an international obligation. In a state of necessity,
there is a “grave danger to the existence of the State itself, to its political or
economic survival, the maintenance of conditions in which its essential ser-
vices can function, the keeping of its internal Peace, the survival of part of its
population, the ecological preservation of all or some of its territory ...” (ibid.,
p. 35, para. 3).
Invoking a state of necessity is not a way to terminate treaty obligations
lawfully, that is, to terminate an international treaty. However, the party in ques-
tion will be released from the consequences of the violation of international
law, since it acted in a state of necessity. The state of necessity is a circumstance
which exonerates from responsibility: in other words, it exonerates the author
of the unlawful act from that international responsibility. Hence the problem
has not been resolved - and cannot be resolved - by the law of treaties, but
pertains to the provisions of the international law of State responsibility.
Dissenting Opinion of Judge Fleischhauer
[pp. 212-213 D.O. Fleischhauer] The principle that no State may profit from
its own violation of a legal obligation does not condone excessive retaliation.
The principle, as stated by the Permanent Court and applied to the present
case, means that one Party, Hungary, would not be entitled to avail itself of the

PA R T I
fact that the other Party, Czechoslovakia, has not fulfilled an obligation if the
first Party, Hungary, has by an illegal act prevented the other, Czechoslovakia,
from fulfilling the obligation in question. This, however, is not the case here.
The obligation not fulfilled by Czechoslovakia is the duty to respect Hungary’s
entitlement to an equitable and reasonable share in the waters of the Danube.
Hungary has not made it impossible for Czechoslovakia to respect that right;
as I have pointed out above, the unilateral realization of Variant C by Czecho-
slovakia was neither automatic nor the only possible reaction to Hungary’s
breaches of the Treaty. A broader interpretation of the principle in question
which would disregard the requirement of proportionality, would mean that
the right to countermeasures would go further, in respect to disproportionate
intersecting violations of a treaty, as it goes under general international law. It is
therefore wrong to apply the principle quite schematically to cases where there
are intersecting (“reciprocal”) violations of a treaty as the Court does where
it states “that although it has found that both Hungary and Czechoslovakia
failed to comply with their obligations under the 1977 Treaty, this reciprocal
wrongful conduct did not bring the Treaty to an end nor justify its termina-
tion” (para. 114).
Dissenting Opinion of Judge Vereshchetin
[p. 222 D.O. Vereshchetin] The basic conditions for the lawfulness of a coun-
termeasure are (1) the presence of a prior illicit act, committed by the State at
which the countermeasure is targeted; (2) the necessity of the countermeasure;
and (3) its proportionality in the circumstances of the case. Certain kinds of
acts are entirely prohibited as countermeasures, but they are not relevant to
the present case (these acts being the threat or use of force, extreme economic
or political coercion, infringement of the inviolability of diplomatic agents,
derogations from basic human rights or norms of jus cogens).
[p. 230-231 D.O. Vereshchetin] Article 30 of the International Law Com-
mission’s Draft on State Responsibility, which codifies general international
law, provides:
“The wrongfulness of an act of a State not in conformity with an obligation
of that State toward another State is precluded if the act constitutes a measure
legitimate under international law against that other State, in consequence of
an internationally wrongful act of that other State.”
All the conditions required by Article 30 of the International Law Commis-
sion’s Draft on State Responsibility are met in the present case. Variant C was
conceived as a provisional and reversible solution (see para. 10 above), which
may be explained as an attempt to induce Hungary to comply with its 1977
Treaty obligations and it cannot be considered a disproportionate reaction.

Therefore, even assuming that the construction and the putting into operation
of Variant C could be characterized as an internationally wrongful act commit-
ted by Czechoslovakia, its wrongfulness would be precluded because is was a
legitimate countermeasure.
The Judgment takes a different view and “considers that Czechoslovakia,
by unilaterally assuming control of a shared resource, and thereby depriving
Hungary of its right to an equitable and reasonable share of the natural re-
sources of the Danube - with the continuing effects of the diversion of these
waters on the ecology of the riparian area of the Szigetköz - failed to respect the
proportionality which is required by international law” (see para. 85).
However, “the withdrawal of water from the Danube” is regulated by Article
14 of the 1977 Treaty. Not only Article 14 but also all the Treaty provisions
that may support the conduct of Czechoslovakia, continued by Slovakia, have
to be applied to determine whether or not it was lawful, since the Judgment
acknowledges that the 1977 Treaty and related instruments are in force be-
tween the parties.
In my opinion, it is not necessary to choose between the aforementioned
grounds to justify the action undertaken by Czechoslovakia, continued by
Slovakia, because the juridical consequences are the same, i.e., the building
and putting into operation of Variant C was not an internationally wrongful
act committed by Czechoslovakia; and Slovakia, as its sole successor State,
has not committed any internationally wrongful act in operating Variant
C to date.
Legal Consequences of International

Wrongful Act
Gabčíkovo-Nagymaros Project (Hungary v. Slovakia), 1997103
***
Dissenting Opinion of Judge Skubiszewski
[pp. 239-240 D.O.Skubiszewski] A State that concluded a treaty with an-
other State providing for the execution of a project like Gabčíkovo-Nagymaros
cannot, when that project is near completion, simply say that all should be
cancelled and the only remaining problem is compensation. This is a situation
103
Ibid.

PA R T I
where, especially under equitable principles, the solution must go beyond mere
pecuniary compensation. The Court has found that the refusal by Hungary to
implement the Treaty was unlawful. By breaching the Treaty, Hungary could
not deprive Czechoslovakia and subsequently Slovakia of all the benefits of the
Treaty and reduce their rights to that of compensation. The advanced stage of
the work on the Project made some performance imperative in order to avoid
harm: Czechoslovakia and Slovakia had the right to expect that certain parts
of the Project would become operational.
Thus, pecuniary compensation could not, in the present case, wipe out
even some, not to speak of all, of the consequences of the abandonment of
the Project by Hungary. How could an indemnity compensate for the absence
of flood protection, improvement of navigation and production of electricity?
The attainment of these objectives of the 1977 Treaty was legitimate not only
under the Treaty but also under general law and equity. The benefits could in no
way be replaced and compensated by the payment of a sum of money. Certain
works had to be established and it was vital that they be made operational. For
the question here is not one of damages for loss sustained, but the creation of
a new system of use and utilization of the water.
Arrest Warrant (Democratic Republic of the Congo v.

Belgium), 2002104
***
75. The Court has already concluded (see paragraphs 70 and 71) that the
issue and circulation of the arrest warrant of 11 April 2000 by the Belgian
authorities failed to respect the immunity of the incumbent Minister for For-
eign Affairs of the Congo and, more particularly, infringed the immunity from
criminal jurisdiction and the inviolability then enjoyed by Mr. Yerodia under
international law. Those acts engaged Belgium’s international responsibility.
The Court considers that the findings so reached by it constitute a form of sat-
isfaction which will make good the moral injury complained of by the Congo.
76. However, as the Permanent Court of International Justice stated in its
Judgment of 13 September 1928 in the case concerning the Factory at Chorzów:
“[t]he essential principle contained in the actual notion of an illegal act - a
principle which seems to be established by international practice and in par-
ticular by the decisions of arbitral tribunals - is that reparation must, as far as
possible, wipe out all the consequences of the illegal act and reestablish the
104
Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium),

situation which would, in all probability, have existed if that act had not been
committed” (P.C.I.J., Series A, No. 17, p. 47).
In the present case, “the situation which would, in all probability, have
existed if [the illegal act] had not been committed” cannot be re-established
merely by a finding by the Court that the arrest warrant was unlawful under
international law. The warrant is still extant, and remains unlawful, notwith-
standing the fact that Mr. Yerodia has ceased to be Minister for Foreign Affairs.
The Court accordingly considers that Belgium must, by means of its own choos-
ing, cancel the warrant in question and so inform the authorities to whom it
was circulated.
77. The Court sees no need for any further remedy: in particular, the Court
cannot, in a judgment ruling on a dispute between the Congo and Belgium,
indicate what that judgment’s implications might be for third States, and the
Court cannot therefore accept the Congo’s submissions on this point.
Dissenting Opinion Judge Oda
[p. 53 D.O. Oda] I find little sense in the Court’s finding in paragraph (3) of
the operative part of the Judgment, which in the Court’s logic appears to be
the consequence of the finding set out in paragraph (2) (Judgment, para. 78).
Given that the Court concludes that the violation of international law occurred
in 2000 and the Court would appear to believe that there is nothing in 2002
to prevent Belgium from issuing a new arrest warrant against Mr. Yerodia, this
time as a former Foreign Minister and not the incumbent Foreign Minister,
there is no practical significance in ordering Belgium to cancel the arrest war-
rant of April 2000. If the Court believes that this is an issue of the sovereign
dignity of the Congo and that that dignity was violated in 2000, thereby caus-
ing injury at that time to the Congo, the harm done cannot be remedied by
the cancellation of the arrest warrant; the only remedy would be an apology
by Belgium. But I do not believe that Belgium caused any injury to the Congo
because no action was ever taken against Mr. Yerodia pursuant to the warrant.
Furthermore, Belgium was under no obligation to provide the Congo with
any assurances that the incumbent Foreign Minister’s immunity from criminal
jurisdiction would be respected under the 1993 Law, as amended in 1999, but
that is not the issue here.
***
[p. 89-90 J.S.O. Higgins, Kooijmans, Buergenthal] In paragraph (3) of the
dispositif, the Court “[f]inds that the Kingdom of Belgium must, by means of its
own choosing, cancel the arrest warrant of 11 April 2000 and so inform the au-
thorities to whom that warrant was circulated.” In making this finding, the Court

PA R T I
relies on the proposition enunciated in the Factory at Chorzów case pursuant

to which “reparation must, as far as possible, wipe out all the consequences of
the illegal act and re-establish the situation which would ... have existed if that
act had not been committed” (P.C.I.J., Series A, No. 17, p. 47). Having previously
found that the issuance and circulation of the warrant by Belgium was illegal
under international law, the Court concludes that it must be withdrawn because
“the warrant is still extant, and remains unlawful, notwithstanding the fact that
Mr. Yerodia has ceased to be Minister for Foreign Affairs.”
We have been puzzled by the Court’s reliance on the Factory at Chorzów
case to support its finding in paragraph (3) of the dispositff. It would seem
that the Court regards its order for the cancellation of the warrant as a form
of restitutio in integrum. Even in the very different circumstances which faced
the Permanent Court in the Factory at Chorzów case, restitutio in the event
proved impossible. Nor do we believe that restoration of the status quo ante
is possible here, given that Mr. Yerodia is no longer Minister for Foreign Affairs.
Moreover - and this is more important - the Judgment suggests that what
is at issue here is a continuing illegality, considering that a call for the with-
drawal of an instrument is generally perceived as relating to the cessation of a
continuing international wrong (International Law Commission, Commentary
on Article 30 of the Articles of State Responsibility, A/56/10 (2001), p. 216).
However, the Court’s finding in the instant case that the issuance and circula-
tion of the warrant was illegal, a conclusion which we share, was based on
the fact that these acts took place at a time when Mr. Yerodia was Minister
for Foreign Affairs. As soon as he ceased to be Minister for Foreign Affairs, the
illegal consequences attaching to the warrant also ceased. The mere fact that
the warrant continues to identify Mr. Yerodia as Minister for Foreign Affairs
changes nothing in this regard as a matter of international law, although it may
well be that a misnamed arrest warrant, which is all it now is, may be deemed
to be defective as a matter of Belgian domestic law; but that is not and cannot
be of concern to this Court. Accordingly, we consider that the Court erred in
its finding on this point.
***
[pp. 83 D.O. Van den Wyngaert] I still need to give reasons for my vote
against paragraph 78 (3) of the dispositif, calling for the cancellation and the
“de-circulation” of the disputed arrest warrant. Even assuming, arguendo, that
the arrest warrant was illegal in the year 2000, it was no longer illegal at the
moment when the Court gave Judgment in this case. Belgium’s alleged breach
of an international obligation did not have a continuing character: it may
have lasted as long as Mr. Yerodia was in office, but it did not continue in time

thereafter. For that reason, I believe the International Court of Justice cannot
ask Belgium to cancel and “decirculate” an act that is not illegal today.105
Land and Maritime Boundary (Cameroon v. Nigeria:

Equatorial Guinea Intervening), 2002106
***
318. Cameroon, however, is not only asking the Court for an end to Nige-
ria’s administrative and military presence in Cameroonian territory but also for
guarantees of non-repetition in the future. Such submissions are undoubtedly
admissible (La Grand (Germany v. United States of America), Judgment of 27
June 2001, paras. 117 et seq.). However, the Judgment delivered today specifies
in definitive and mandatory terms the land and maritime boundary between
the two States. With all uncertainty dispelled in this regard, the Court cannot
envisage a situation where either Party, after withdrawing its military and po-
lice forces and administration from the other’s territory, would fail to respect
the territorial sovereignty of that Party. Hence Cameroon’s submissions on this
point cannot be upheld.
319. In the circumstances of the case, the Court considers moreover that, by
the very fact of the present Judgment and of the evacuation of the Cameroonian
territory occupied by Nigeria, the injury suffered by Cameroon by reason of the
occupation of its territory will in all events have been sufficiently addressed. The
Court will not therefore seek to ascertain whether and to what extent Nigeria’s
responsibility to Cameroon has been engaged as a result of that occupation.
105
See Art. 14 of the 2001 ILC Draft Articles on State Responsibility, United Nations doc.
A/CN.4/L.602/Rev.1, concerning the extension in time of the breach of an interna-
tional obligation, which states the following:
The breach of an international obligation by an act of a State not having a
“1.
continuing character occurs at the moment when the act is performed, even
if its effects continue.
2.
The breach of an international obligation by an act of a State having a continu-
ing character extends over the entire period during which the act continues
and remains not in conformity with the international obligation ...”
106
Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria:
Equatorial Guinea intervening), Judgment, I.C.J. Reports 2002, p. 303.

PA R T I
CHAPTER 6
DISPUTE RESOLUTION AND
INTERNATIONAL LAW COMPLIANCE
Disputes Between States

Martin Dixon, “The Peaceful Settlement of Disputes”107
According to Art. 2(3) of the United Nations Charter, all members ‘shall
settle their international disputes by peaceful means in such a manner that
international peace and security, and’ justice, are not endangered’. While this
obligation is addressed primarily to members of the Organisation, there is no
doubt that this principle is one of the; central obligations of international law
which all states must observe. (Legality of the Use of Force Case (Provisional
Measures) Yugoslavia v Belgium etc. (1999) 39 ILM 950). It is the natural coun-
terpart to the prohibition of the use of force and may also have acquired the
status of jus cogens. The forceful resolution of disputes, the use of force by one
state to impose its will on another, is now legally obsolete and the obligation
to settle disputes by peaceful* means is a corollary of this.
The precise scope of the obligation is, however, that states should settle
disputes peacefully, not that they should settle them. In other words, there is
no general rule requiring a state to settle its grievances. Rather, the rule is that
if a state does decide to settle, this must be done in a peaceful manner. As we
shall see, the absence of a general obligation to settle disputes is reflected in the
fact that the jurisdiction of the International Court of Justice (and most other
tribunals) is not compulsory. A state cannot be compelled to submit a dispute
with another state to a third party for settlement unless it has given its consent
in some form or other. The only exception to this is the obligation under Art. 33
of the Charter to settle disputes which are likely to endanger international peace
and security. Furthermore, the obligation to settle disputes peacefully applies to
international disputes only. There is no explicit rule in general international law
requiring a state to settle internal grievances peacefully. A state may, therefore,
107
Excerpt from Martin Dixon, Textbook on International Law, pp. 132-34, 136-37, 5th
ed. (2005)[Reprinted with permission of Oxford University Press].

CHAPTER 6 DISPUTE RESOLUTION AND INTERNATIONAL LAW COMPLIANCE
use force in its relations with its own citizens in its own territory, subject only to
limitations imposed by human rights law or other specific obligations, such as
the requirements of a mandatory resolution of the Security Council. Conversely,
it is also clear that a dispute may be ‘international’ even though the parties (or
some of them) are not states. Recent examples are the dispute between the
Bosnian Muslims, Serbs and Croats and the disputes between rival groups in
Sudan. Consequently, the obligation to settle disputes peacefully encompasses
all disputes occurring on the international plane, including those considered
in the previous chapter arising between a state and a foreign company over an
internationalized contract (e.g. Texaco v Libya (1977) 53ILR 389).
It is vital that the obligation to settle disputes peacefully should be supported
by practical means. In fact, international law knows many methods of dispute
settlement and it is important to remember that the International Court of
Justice plays only a small part in this process. There are many other tribunals—
international, regional and bilateral—which resolve disputes ‘judicially’, as well
as several ways in which disputes can be resolved ‘diplomatically’. While there
are no set criteria by which to identify a ‘judicial’ means of settlement, generally
this is taken to mean the settlement of a dispute according to international law,
usually by an impartial third party, the outcome of which is legally binding on
the disputants. The growing list of cases settled by the International Tribunal
for the Law of the Sea (ITLOS) is a good example. However, even in modes of
dispute settlement which are essentially ‘diplomatic’, international law is not
irrelevant. In direct negotiations, for example, each side will have a battery of
legal principles with which to support its economic and political arguments.
Consequently, it should not be thought that any of the various methods of
dispute settlement are exclusively ‘judicial’ or ‘diplomatic’. International law
will play a part in each, varying from being the sole criterion before the I.C.J. to
one of several in ‘negotiations’ and ‘mediation’. Similarly, there is no exclusive
method by which any particular dispute, or any aspect of it, need be resolved,
as seen by the many methods specified in the Law of the Sea Convention of
1982. In practice, the means of dispute settlement are cumulative and they do
not operate in isolation.
10.1 Negotiation
As in national law, the most common method of settlement is direct nego-
tiations between the parties. This ‘method’ accounts for the great majority of
settlements between states and appears to be the one most preferred. There is
no set procedure for negotiations and these may be at arm’s length or face to
face. Necessarily any negotiated settlement will be legally binding only if this
is the wish of the parties, and then it may be encapsulated in a treaty. Other-

PA R T I
wise, the terms of the agreement may be recorded in an exchange of notes or

diplomatic memoranda having no legal effect. Further, while international law
may play a significant part in the negotiations between the parties, as with the
dispute between Congo and Uganda concerning alleged acts of aggression and
intervention 1999/2000, it is clear that political, economic and social consid-
erations are also important. This is not surprising given that international law
does not operate in a vacuum. Direct negotiations between the parties enable
the states concerned to reach a comprehensive settlement, having regard to
all the factors, of which international law may be one.
Occasionally, a state may be able to underpin its negotiations with the
threat of legal proceedings. This is not as potent a weapon as it is in national
law because of the absence of compulsory judicial settlement of disputes.
However, where available, the threat or reality of judicial settlement may be
used to crystallize an issue between the states and force a resolution, as with
Congo and Uganda. Nevertheless, it is often the case that neither party wishes
to use judicial means precisely because of the narrow focus this entails. It has
been suggested that once a state has voluntarily entered into negotiations, it is
under a binding legal obligation to negotiate in good faith. If this was a rule of
international law, it would seem to require states to act honestly and reasonably
and to make a genuine attempt to reach a settlement. It would not mean that
they had to settle the dispute, but that having made an attempt, they should
carry it through in good faith. In reality this obligation is probably too vague to
be of any practical value although it should be remembered that it is quite pos-
sible for states to bind themselves by treaty to proceed to negotiations should
a dispute arise and here it would seem that there is both a legal obligation to
negotiate and, perhaps, an obligation to make genuine and reasonable efforts
to reach a solution.
10.2 Mediation and good offices
Although it is quite possible to distinguish mediation and good offices from
negotiation, in practice they are very much part of the same process. ‘Good of-
fices’ are a preliminary to direct negotiations between the parties. The person
offering his ‘good offices’—usually a neutral trusted by both sides—will attempt
to persuade the parties to negotiate. Such was the task of the US Secretary of
State, Alexander Haig, in the days preceding “the United Kingdom’s reoccupa-
tion of the Falkland Islands, and has been the role of the UN and OAU in the
dispute between Congo and Uganda. Mediation is simply a continuation of this,
and often the mediator will be the person who originally brought the parties
together. A mediator is a person, again approved by both parties, who takes part
in the negotiations and whose task is to suggest the terms of a settlement and

to attempt to bring about a compromise between the two opposing views. In

recent years, the UN Secretary-General has offered his ‘good offices’ in a variety
of situations and has then gone on to mediate when the parties have come
together. An example was the dispute-between the Soviet Union, Pakistan and
Afghanistan concerning the presence of Soviet troops in the latter’s territory.
A similar function seems to have been served by the EU and UN ‘peace envoys’
in respect of the conflicts in the former Yugoslavia.
10.3 Inquiry
The use of commissions of inquiry is most often intended to establish the
factual basis for a settlement between states. The parties to a dispute will agree
to refer the matter to an impartial body whose task is to produce an unbiased
finding of facts. It is then up to the parties to negotiate a settlement on the
basis of these facts. While it is rare that the parties agree to be legally bound
to accept the findings of such an inquiry, in practice it is just as rare for their
conclusions to be ignored. The commission of inquiry is invaluable in the pres-
ent system of international law where no compulsory fact-finding machinery
exists and where, in reality, many disputes are compounded by the simple truth
that neither party is prepared to accept the other’s version of events.
10.4 Settlement by the United Nations
The United Nations has a variety of institutionalized and informal methods
through which states may settle disputes. Obviously, the ‘good offices’ of the
Secretary-General and judicial settlement by the I.C.J. (an organ of the UN) fall
into this category. (These are dealt with separately; see 10.2 and 10.8.).
10.4.1 The General Assembly
The General Assembly has wide-ranging authority to make recommenda-
tions for the settlement of disputes. Subject to the primacy of the Security Coun-
cil in matters comprising a threat to or breach of the peace, the Assembly ‘may
recommend measures for the peaceful adjustment of any situation, regardless
of origin, which it deems likely, to impair the general welfare or friendly welfare
among nations’ (UN Charter Art. 14). However, as with the great majority of
Assembly resolutions, these ‘recommendations’ are not legally binding and the
Assembly has no power to make authoritative and binding determinations of
fact. It cannot impose a settlement on the parties, although it may often provide
the impetus that is needed for a negotiated solution. In practice, the effect of
Assembly discussions and resolutions is variable. Any formal determination or
recommendation must necessarily carry some weight, but it is also true that the
Assembly is a political body that makes decisions according to block allegiances
rather than impartial judgment. The Assembly contributed significantly to the

PA R T I
solution of the problem of the former South-West Africa (now Namibia) and
has buttressed the Secretary-General in his efforts to bring peace to Iran and
Iraq. Yet it has had little success with the dispute between India and Pakistan
over Kashmir and the prospects for a solution to the Cypriot problem—once
very rosy—now look less promising. Much depends, as always, on the will of
the parties to a dispute, rather than on the will of the Assembly. Indeed, the
political nature of the Assembly means that questions of international law
are not always at the front of its concern and it would seem more suited to
the solution of political and economic disputes, especially those in which the
Assembly itself has an interest. Thus, the Assembly will be vital in matters con-
cerning statehood and membership, as it was with China in 1974 the states
of the former Yugoslavia in 1992 and in East Timor in 2002. These are issues
having considerable legal significance in respect of which the Assembly has
particular expertise.
10.4.2 The Security Council
Under Chapter VI of the Charter (Pacific Settlement of Disputes), the Security
Council has various powers and responsibilities in respect of the settlement of dis-
putes. First, if all other means have failed, the parties to a dispute which is likely to
endanger international peace and security are under an obligation to refer it to the
Security Council. Second, any member or non-member of the Organisation may,
without the parties’ consent, refer any dispute to the Council to see if it is likely
to endanger the maintenance of international peace and security. In both cases,
the Council may recommend appropriate procedures or methods of settlement,
as well as the actual terms of a compromise. In practice, the procedural aspects of
these provisions are quite readily invoked, especially the reference power enjoyed
by uninvolved states. Generally, the Council is reluctant to make a concrete rec-
ommendation without the participation of all interested parties, as was the case
with the India/Pakistan conflict in 1971. It is also clear that the Security Council
cannot actually impose a settlement on the parties, save only that its residual
power to deal with threats to the peace and acts of aggression remains intact (e.g.
the Congo/Uganda/Rwanda Resolution, 16 June 2000, SC Res. .1304 (2000)) and
this could conceivably lead to the Council imposing a settlement if the precon-
ditions of Art. 39 were established (breach of the peace, threat to the peace, act
of aggression). Again, however, the Security Council is primarily concerned with
political, not legal matters, and its task is to keep the peace rather than to judge
the rights and wrongs of a dispute. According to Art. 36(3) of the Charter, the
Council must bear in mind that ‘legal disputes should as a general rule be referred
by the parties to the International Court of Justice’, although it has no power to
force states to submit to this jurisdiction. In this respect, note must be taken of
three I.C.J. decisions which bear on the relationship between the Council and the

Court. In the Lockerbie Case one of the grounds upon which the I.C.J. decided
not to grant ‘interim measures of protection’ to the plaintiff state (on which see
below) was that the Security Council had taken concrete measures in respect of
the dispute after determining that the matter fell, within Art. 39: This illustrates not
only that most disputes have both a legal and a political dimension, but also that
the Security Council can assume paramount responsibility for dispute settlement
in such cases as it deems appropriate. Conversely, in the Case Concerning Armed
Activities on the Territory of the Congo (Congo v Uganda) (Provisional Measures),
1 July 2000, the I.C.J. did grant interim measures of protection to Congo, which
in terms were very similar to those ‘demanded’ in SC Resolution 1304 of 16 June
2000. Apparently, in contrast to Security Council action in the Lockerbie Case, in
the Congo situation the Council had not reached a decision determinative of the
rights which Congo now claimed deserved protection. No doubt this is a logically
defensible distinction, but it requires a fine judgment by the. Court. Thirdly, in the
Advisory Opinion concerning the Legal Consequences of the Construction of a
Wall in the Occupied Palestinian Territory 2004 I.C.J. Rep, the Court again touched
on the relationship of the UN with the Court (including, but not specifically, the
Security Council). Admittedly, this was an Advisory Opinion rather than a judg-
ment in a contentious case, but the Court seems clear that the mere fact that other
UN bodies are considering a dispute is no bar to the Court considering the legal
aspects of the same dispute.
10.4.3 Other agencies
A number of specialized agencies operating under the general aegis of the
United Nations may also assist in the resolution of disputes between states.
These agencies deal with a variety of matters of a specific nature and they
provide a forum for discussion and an impetus to settlement in much the same
way as the General Assembly. Included in this category are the International
Labour Organisation, the International Monetary Fund, the International Civil
Aviation Authority and the International Atomic Energy Agency.
10.5 Conciliation
Conciliation can be regarded either as a ‘non-judicial’ or a ‘semi-judicial’
procedure for the settlement of disputes. Once again the process of concili-
ation may deal with a variety of questions, including matters of international
law. Bearing this in mind, conciliation denotes the reference of a dispute to a
third party, often a commission or committee, whose task is to produce a report
recommending proposals for settlement. Conciliation commissions are differ-
ent from commissions of inquiry because the latter do not produce concrete
proposals. In this regard, conciliation is similar to arbitration. However, here
also there is one vital difference. Generally, the reports of- conciliation commis-

PA R T I
sions are not legally binding on the parties, although the simple fact that the
matter has been referred to a third party combined with the force of a formal
recommendation means that the great majority of proposed settlements are not
ignored. The report and the proposed solution of the conciliation commission
may, of course, form the basis for future negotiations. Conciliation is, then, the
middle ground between inquiry and arbitration. A settlement is proposed by a
neutral third party, but it is not binding. Conciliation commissions were estab-
lished by the 1899 and 1907 Hague Conventions for the Pacific Settlement of
Disputes and by the General Act for the Pacific Settlement of Disputes 1928. A
more recent example is provided by the Jan Meyen Conciliation Commission
(Iceland v Norway) (1981) 20 ILM 797 on maritime delimitation. Conciliation
commissions may be used as one of the dispute settlement procedures estab-
lished by the 1982 Convention on the Law of the Sea.
10.6 Settlement by regional machinery
There is a great variety of regional organisations that are instrumental in the
peaceful settlement of disputes. These range from political bodies such as the
Organisation of American States and the Organisation of African Unity (see e.g. its
role in the Congo/Uganda dispute), to economic forums such as the Caribbean
Community and Common Market, (Carricom) and the World Trade Organisa-
tion (formerly GATT), to more judicial bodies such as the European Court of
Human Rights, the Central American Court of Justice and Inter-American Court
of Human Rights. In this context, note must also be taken of the political-legal
Dispute Settlement Mechanism of the Organisation for Security and Co-operation
in Europe (formerly the CSCE). This Organisation has increased in importance
following the massive political changes in Eastern Europe in the late twentieth
century. Obviously, these forums are eminently suitable for the resolution of local
disputes, and their precise terms of reference will vary accordingly.
10.7 Arbitration
The International Law Commission has defined arbitration as ‘a procedure
for the settlement of disputes between states by a binding award on the basis
of law and as a result of an undertaking voluntarily accepted’. It is the most
commonly used ‘judicial’ means for the settlement of disputes much more so
than reference to the International Court of Justice Arbitration awards have
contributed significantly to the development of many areas of international law,
and this has not diminished even now that we have more established standing
courts. The decisions of the US-Mexican Claims Commission 1926, for example,
did much to clarify the law of state responsibility, and the arbitral award in the
Island of Palmas Case (1928) 2 RIAA 829, is the locus classicus on acquisition of
territory. The US-Iran Claims Tribunal resolved many of the disputes that arose

out of the rupture of relations between these two states in 1979 and has made
significant pronouncements on the law relating to expropriation of foreign-
owned property (e.g. the Amoco Finance Case 15 Iran-US CTR 189 (1987)).
Like all methods of pacific settlement in international law, arbitration is
voluntary. States must consent beforehand to the exercise of jurisdiction by the
arbitrators. This may be done on an ad hoc basis, as-with the Guinea/Guinea-
Bissau Maritime Delimitation Case 77 ILR 636 and the. Canada/France Maritime
Delimitation (1992) 31 ILM 114S, or consent may be given in advance to a
specific procedure, as with the Permanent Court of Arbitration, although the
submission of actual disputes may depend on further consent. This last body,
established by the 1899 and 1907 Hague Conventions on Pacific Settlement,
provides an institutionalized procedure for the settlement of disputes by arbi-
tration and recent moves have been made to revive its role in dispute settle-
ment. A recent example is the Eritrea/ Yemen Arbitration Concerning Maritime
Delimitation, 1999, it must also be remembered that arbitration proceedings
are not limited to the determination of disputes between states. An important
function of arbitration, and one which the I.C.J. cannot undertake, is to settle
disputes between states and other bodies having international personality. Typi-
cally, such arbitrations involve states and multinational corporations, although
exceptionally individuals may be given the right to claim directly against a state.
One of the most important examples of an arbitration procedure for non-
states and states is the International Centre for the Settlement of Investment
Disputes, established by International Convention in 1964, which provides a
forum for the settlement of disputes between states and corporations arising
out of capital investment in the former’s territory. Two examples of arbitrations
heard under this framework are AAPL v Sri Lanka and Southern Pacific v Egypt,
both important in the law of state responsibility. In addition, there is now a set
of Model Rules for International Commercial Arbitration (28 ILM 231) again
reflecting the practical importance of arbitration in the-world of commerce.
Moving away from the machinery of arbitration, what are its legal charac-
teristics? In general parlance, ‘arbitration’ can denote any settlement achieved
by reference to a third party. However, as the Permanent Court of Justice indi-
cated in its Advisory Opinion on the Interpretation of the Treaty of Lausanne
Case. (1925) PCIJ Ser. В-No. 12, arbitration in international law has a more
specific meaning. First, arbitration is a procedure for the settlement of a legal
dispute. Arbitration is concerned with the rights and duties of the parties under
international law and a settlement is achieved by the application of this law
to the facts of the case. This is not to say that political or economic factors are
irrelevant, but rather that they, of themselves, cannot affect the outcome. Like
the I.C.J., arbitration is concerned primarily with questions of international law.

PA R T I
U.N. Charter, Chapter I (Art. 1-2) and Chapter VI (Arts. 33-38)

UN CHARTER
CHAPTER I: PURPOSES AND PRINCIPLES
Article 1
The Purposes of the United Nations are:
To maintain international peace and security, and to that end: to take effec-
tive collective measures for the prevention and removal of threats to the peace,
and for the suppression of acts of aggression or other breaches of the peace,
and to bring about by peaceful means, and in conformity with the principles of
justice and international law, adjustment or settlement of international disputes
or situations which might lead to a breach of the peace;
To develop friendly relations among nations based on respect for the
principle of equal rights and self-determination of peoples, and to take other
appropriate measures to strengthen universal peace;
To achieve international co-operation in solving international problems
of an economic, social, cultural, or humanitarian character, and in promoting
and encouraging respect for human rights and for fundamental freedoms for
all without distinction as to race, sex, language, or religion; and
To be a centre for harmonizing the actions of nations in the attainment of
these common ends.
Article 2
The Organization and its Members, in pursuit of the Purposes stated in
Article 1, shall act in accordance with the following Principles.
The Organization is based on the principle of the sovereign equality of all
its Members.
All Members, in order to ensure to all of them the rights and benefits re-
sulting from membership, shall fulfill in good faith the obligations assumed by
them in accordance with the present Charter.
All Members shall settle their international disputes by peaceful means
in such a manner that international peace and security, and justice, are not
endangered.
All Members shall refrain in their international relations from the threat or
use of force against the territorial integrity or political independence of any
state, or in any other manner inconsistent with the Purposes of the United
Nations.

All Members shall give the United Nations every assistance in any action
it takes in accordance with the present Charter, and shall refrain from giving
assistance to any state against which the United Nations is taking preventive
or enforcement action.
The Organization shall ensure that states which are not Members of the
United Nations act in accordance with these Principles so far as may be neces-
sary for the maintenance of international peace and security.
Nothing contained in the present Charter shall authorize the United Nations
to intervene in matters which are essentially within the domestic jurisdiction
of any state or shall require the Members to submit such matters to settlement
under the present Charter; but this principle shall not prejudice the application
of enforcement measures under Chapter VII….
CHAPTER VI: PACIFIC SETTLEMENT OF DISPUTES
Article 33
The parties to any dispute, the continuance of which is likely to endanger
the maintenance of international peace and security, shall, first of all, seek a
solution by negotiation, enquiry, mediation, conciliation, arbitration, judicial
settlement, resort to regional agencies or arrangements, or other peaceful
means of their own choice.
The Security Council shall, when it deems necessary, call upon the parties
to settle their dispute by such means.
Article 34
The Security Council may investigate any dispute, or any situation which
might lead to international friction or give rise to a dispute, in order to deter-
mine whether the continuance of the dispute or situation is likely to endanger
the maintenance of international peace and security.
Article 35
Any Member of the United Nations may bring any dispute, or any situation
of the nature referred to in Article 34, to the attention of the Security Council
or of the General Assembly.
A state which is not a Member of the United Nations may bring to the
attention of the Security Council or of the General Assembly any dispute to
which it is a party if it accepts in advance, for the purposes of the dispute, the
obligations of pacific settlement provided in the present Charter.
The proceedings of the General Assembly in respect of matters brought to its
attention under this Article will be subject to the provisions of Articles 11 and 12.

PA R T I
Article 36
The Security Council may, at any stage of a dispute of the nature referred to
in Article 33 or of a situation of like nature, recommend appropriate procedures
or methods of adjustment.
The Security Council should take into consideration any procedures for
the settlement of the dispute which have already been adopted by the parties.
In making recommendations under this Article the Security Council should
also take into consideration that legal disputes should as a general rule be re-
ferred by the parties to the International Court of Justice in accordance with
the provisions of the Statute of the Court.
Article 37
Should the parties to a dispute of the nature referred to in Article 33 fail to
settle it by the means indicated in that Article, they shall refer it to the Security
Council.
If the Security Council deems that the continuance of the dispute is in fact
likely to endanger the maintenance of international peace and security, it shall
decide whether to take action under Article 36 or to recommend such terms
of settlement as it may consider appropriate.
Article 38
Without prejudice to the provisions of Articles 33 to 37, the Security Council
may, if all the parties to any dispute so request, make recommendations to the
parties with a view to a pacific settlement of the dispute.
U.N. Resolution “Manila Declaration” on State Obligations

for Peaceful Settlement of Disputes108
37/10 The General Assembly,
Reaffirming the principle of the Charter of the United Nations that all States
shall settle their international disputes by peaceful means in such a manner that
international peace and security, and justice, are not endangered,
Conscious that the Charter of the United Nations embodies the means and
an essential framework for the peaceful settlement of international disputes, the
continuance of which is likely to endanger the maintenance of international
peace and security,
108
General Assembly resolution 37/10 of 15 November 1982, GAOR (68th Plen. Sess.)
U.N. Doc. A/Res/37/10 (1982).

Recognizing the important role of the United Nations and the need to
enhance its effectiveness in the peaceful settlement of international disputes
and the maintenance of international peace and security, in accordance with
the principles of justice and international law, in conformity with the Charter
of the United Nations,
Reaffirming the principle of the Charter of the United Nations that all
States shall refrain in their international relations from the threat or use of
force against the territorial integrity or political independence of any State,
or in any other manner inconsistent with the purposes of the United Nations,
Reiterating that no State or group of States has the right to intervene, di-
rectly or indirectly, for any reason whatsoever, in the internal or external affairs
of any other State,
Reaffirming the Declaration on Principles of International Law concern-
ing Friendly Relations and Co-operation among States in accordance with the
Charter of the United Nations,
Bearing in mind the importance of maintaining and strengthening inter-
national peace and security and the development of friendly relations among
States, irrespective of their political, economic and social systems or levels of
economic development,
Reaffirming the principle of equal rights and self-determination of peoples
as enshrined in the Charter of the United Nations and referred to in the Dec-
laration on Principles of International Law concerning Friendly Relations and
Co-operation among States in accordance with the Charter of the United Na-
tions and in other relevant resolutions of the General Assembly,
Stressing the need for all States to desist from any forcible action which
deprives peoples, particularly peoples under colonial and racist regimes or
other forms of alien domination, of their inalienable right to self-determination,
freedom and independence, as referred to in the Declaration on Principles of
International Law concerning Friendly Relations and Co-operation among
States in accordance with the Charter of the United Nations,
Mindful of existing international instruments as well as respective principles
and rules concerning the peaceful settlement of international disputes, includ-
ing the exhaustion of local remedies whenever applicable,
Determined to promote international co-operation in the political field and
to encourage the progressive development of international law and its codifica-
tion, particularly in relation to the peaceful settlement of international disputes,

PA R T I
Solemnly declares that:

I
1. All States shall act in good faith and in conformity with the purposes and
principles enshrined in the Charter of the United Nations with a view to avoiding
disputes among themselves likely to affect friendly relations among States, thus
contributing to the maintenance of international peace and security. They shall live
together in peace with one another as good neighbours and strive for the adop-
tion of meaningful measures for strengthening international peace and security.
2. Every State shall settle its international disputes exclusively by peaceful
means in such a manner that international peace and security, and justice, are
not endangered.
3. International disputes shall be settled on the basis of the sovereign equal-
ity of States and in accordance with the principle of free choice of means in
conformity with obligations under the Charter of the United Nations and with
the principles of justice and international law. Recourse to, or acceptance of,
a settlement procedure freely agreed to by States with regard to existing or
future disputes to which they are parties shall not be regarded as incompatible
with the sovereign equality of States.
4. States parties to a dispute shall continue to observe in their mutual rela-
tions their obligations under the fundamental principles of international law
concerning the sovereignty, independence and territorial integrity of States,
as well as other generally recognized principles and rules of contemporary
international law.
5. States shall seek in good faith and in a spirit of co-operation an early
and equitable settlement of their international disputes by any of the follow-
ing means: negotiation, inquiry, mediation, conciliation, arbitration, judicial
settlement, resort to regional arrangements or agencies or other peaceful means
of their own choice, including good offices. In seeking such a settlement, the
parties shall agree on such peaceful means as may be appropriate to the cir-
cumstances and the nature of their dispute.
6. States parties to regional arrangements or agencies shall make every effort
to achieve pacific settlement of their local disputes through such regional arrange-
ments or agencies before referring them to the Security Council. This does not
preclude States from bringing any dispute to the attention of the Security Council
or of the General Assembly in accordance with the Charter of the United Nations.
7. In the event of failure of the parties to a dispute to reach an early solution
by any of the above means of settlement, they shall continue to seek a peaceful

solution and shall consult forthwith on mutually agreed means to settle the
dispute peacefully. Should the parties fail to settle by any of the above means
a dispute the continuance of which is likely to endanger the maintenance of
international peace and security, they shall refer it to the Security Council in
accordance with the Charter of the United Nations and without prejudice to
the functions and powers of the Council set forth in the relevant provisions
of Chapter VI of the Charter.
8. States parties to an international dispute, as well as other States, shall
refrain from any action whatsoever which may aggravate the situation so as to
endanger the maintenance of international peace and security and make more
difficult or impede the peaceful settlement of the dispute, and shall act in this
respect in accordance with the purposes and principles of the United Nations.
9. States should consider concluding agreements for the peaceful settlement
of disputes among them. They should also include in bilateral agreements and
multilateral conventions to be concluded, as appropriate, effective provisions
for the peaceful settlement of disputes arising from the interpretation or ap-
plication thereof.
10. States should, without prejudice to the right of free choice of means,
bear in mind that direct negotiations are a flexible and effective means of
peaceful settlement of their disputes. When they choose to resort to direct
negotiations, States should negotiate meaningfully, in order to arrive at an
early settlement acceptable to the parties. States should be equally prepared
to seek the settlement of their disputes by the other means mentioned in the
present Declaration.
11. States shall in accordance with international law implement in good
faith all the provisions of agreements concluded by them for the settlement
of their disputes.
12. In order to facilitate the exercise by the peoples concerned of the right
to self-determination as referred to in the Declaration on Principles of Inter-
national Law concerning Friendly Relations and Co-operation among States
in accordance with the Charter of the United Nations, the parties to a dispute
may have the possibility, if they agree to do so and as appropriate, to have re-
course to the relevant procedures mentioned in the present Declaration, for
the peaceful settlement of the dispute.
13. Neither the existence of a dispute nor the failure of a procedure of
peaceful settlement of disputes shall permit the use of force or threat of force
by any of the States parties to the dispute.

PA R T I
II
1. Member States should make full use of the provisions of the Charter of
the United Nations, including the procedures and means provided for therein,
particularly Chapter VI, concerning the peaceful settlement of disputes.
2. Member States shall fulfill in good faith the obligations assumed by
them in accordance with the Charter of the United Nations. They should,
in accordance with the Charter, as appropriate, duly take into account the
recommendations of the Security Council relating to the peaceful settlement
of disputes. They should also, in accordance with the Charter, as appropri-
ate, duly take into account the recommendations adopted by the General
Assembly, subject to Articles 11 and 12 of the Charter, in the field of peaceful
settlement of disputes.
3. Member States reaffirm the important role conferred on the General As-
sembly by the Charter of the United Nations in the field of peaceful settlement
of disputes and stress the need for it to discharge effectively its responsibilities.
Accordingly, they should:
(a) Bear in mind that the General Assembly may discuss any
situation, regardless of origin, which it deems likely to impair
the general welfare or friendly relations among nations and,
subject to Article 12 of the Charter, recommend measures for
its peaceful adjustment;
(b) Consider making use, when they deem it appropriate, of the
possibility of bringing to the attention of the General Assembly
any dispute or any situation which might lead to international
friction or give rise to a dispute;
(c) Consider utilizing, for the peaceful settlement of their disputes,
the subsidiary organs established by the General Assembly in
the performance of its functions under the Charter;
(d) Consider, when they are parties to a dispute brought to the
attention of the General Assembly, making use of consultations
within the framework of the Assembly, with a view to
facilitating an early settlement of their dispute.
4. Member States should strengthen the primary role of the Security Council
so that it may fully and effectively discharge its responsibilities, in accordance
with the Charter of the United Nations, in the area of the settlement of disputes
or of any situation the continuance of which is likely to endanger the mainte-
nance of international peace and security. To this end they should:

(a) Be fully aware of their obligation to refer to the Security Council

such a dispute to which they are parties if they fail to settle it
by the means indicated in Article 33 of the Charter;
(b) Make greater use of the possibility of bringing to the attention
of the Security Council any dispute or any situation which
might lead to international friction or give rise to a dispute;
(c) Encourage the Security Council to make wider use of the
opportunities provided for by the Charter in order to review
disputes or situations the continuance of which is likely to
endanger the maintenance of international peace and security;
(d) Consider making greater use of the fact-finding capacity of the
Security Council in accordance with the Charter;
(e) Encourage the Security Council to make wider use, as a means
to promote peaceful settlement of disputes, of the subsidiary
organs established by it in the performance of its functions
under the Charter;
(f) Bear in mind that the Security Council may, at any stage of a
dispute of the nature referred to in Article 33 of the Charter
or of a situation of like nature, recommend appropriate
procedures or methods of adjustment;
(g) Encourage the Security Council to act without delay, in
accordance with its functions and powers, particularly in cases
where international disputes develop into armed conflicts.
5. States should be fully aware of the role of the International Court of
Justice, which is the principal judicial organ of the United Nations. Their at-
tention is drawn to the facilities offered by the International Court of Justice
for the settlement of legal disputes, especially since the revision of the Rules
of the Court.
States may entrust the solution of their differences to other tribunals by vir-
tue of agreements already in existence or which may be concluded in the future.
States should bear in mind:
(a) That legal disputes should as a general rule be referred by the
parties to the International Court of Justice, in accordance
with the provisions of the Statute of the Court;
(b) That it is desirable that they:

PA R T I
(i) Consider the possibility of inserting in treaties, whenever

appropriate, clauses providing for the submission to the
International Court of Justice of disputes which may arise
from the interpretation or application of such treaties;
(ii) Study the possibility of choosing, in the free exercise of their
sovereignty, to recognize as compulsory the jurisdiction
of the International Court of Justice in accordance with
Article 36 of its Statute;
(iii) Review the possibility of identifying cases in which use
may be made of the International Court of Justice.
The organs of the United Nations and the specialized agencies should study
the advisability of making use of the possibility of requesting advisory opinions
of the International Court of Justice on legal questions arising within the scope
of their activities, provided that they are duly authorized to do so.
Recourse to judicial settlement of legal disputes, particularly referral to
the International Court of Justice, should not be considered an unfriendly act
between States.
6. The Secretary-General should make full use of the provisions of the Char-
ter of the United Nations concerning the responsibilities entrusted to him. The
Secretary-General may bring to the attention of the Security Council any matter
which in his opinion may threaten the maintenance of international peace and
security. He shall perform such other functions as are entrusted to him by the
Security Council or by the General Assembly. Reports in this connection shall
be made whenever requested to the Security Council or the General Assembly.
[The Resolution] Urges all States to observe and promote in good faith
the provisions of the present Declaration in the peaceful settlement of their
international disputes;
Declares that nothing in the present Declaration shall be construed as
prejudicing in any manner the relevant provisions of the Charter or the rights
and duties of States, or the scope of the functions and powers of the United
Nations organs under the Charter, in particular those relating to the peaceful
settlement of disputes;
Declares that nothing in the present Declaration could in any way prejudice
the right to self-determination, freedom and independence, as derived from
the Charter, of peoples forcibly deprived of that right and referred to in the
Declaration on Principles of International Law concerning Friendly Relations
and Co-operation among States in accordance with the Charter of the United

Nations, particularly peoples under colonial and racist regimes or other forms
of alien domination; nor the right of these peoples to struggle to that end and
to seek and receive support, in accordance with the principles of the Charter
and in conformity with the above-mentioned Declaration;
Stresses the need, in accordance with the Charter, to continue efforts to
strengthen the process of the peaceful settlement of disputes through progres-
sive development and codification of international law, as appropriate, and
through enhancing the effectiveness of the United Nations in this field.
International Law Implementation and

Compliance
Vyacheslov V. Gavrilov 109
The fact that states in rule-making processes act as the creators of both
domestic and international legal norms determines meaningful consistency
of rules of conduct allowing them to join in the enforcement systems and
regulate social relations. At that, international and national legal norms do not
form a new system design but remain a part of their own systems of law that
join together in a certain functional interaction.
In the international legal doctrine, three theories have
been widely used – those of transformation, incorporation
and implementation.
The birth and development of the theory of transformation is due to a
dualistic approach to the problem of the relationship between international
and domestic law. Just like dualism, it is based on the notion of independent
existence and separate functioning of these two systems of law.
From the perspective of the adherents of this theory, the essence of the
transformation process, and hence the legal mechanism for harmonizing in-
ternational and national law norms “is in the change of the very vis obligandi
of the international legal norm, in its orientation towards the ‘new’ recipients
- subjects of domestic law, in fact in the change of the content of the norm that
is associated with the introduction of the latter in another, now the domestic
legal order.” As a result, this transformation creates a new national law of a
109
Vyacheslav V. Gavrilov, Notion and Interaction of International and National Legal
Systems, Vladivostok (2005), p. 216. [citations omitted] [Reprinted with permission
of the author].

PA R T I
special kind, which is homogeneous to the original international norm in its

content, but not identical to it, since it has technically become an internal law.
E. T. Usenko, one of the most famous Russian proponents of the concept of
transformation of international legal norms within the framework of domestic
law enforcement, while demonstrating the absolute necessity of this process,
wrote that “the sovereignty of the state in principle excludes the possibility of
action within its territory of the state will of other states, including the agreed
will that is incorporated in the international law norm. In order for a rule, which
is a norm of international law, to acquire legal force within the limits of a na-
tional law, it must acquire the force of a national legal norm. But it can only be
done by a territorial sovereign, through issuing an appropriate national legal act.
The principle of the rule of state power does not mean that, within the
borders of the country in question, there may only exist one legal regula-
tor – the national law. The essence of the problem, therefore, is not that the
international law norm, by its very nature and purpose, is not in a position
to act as a regulator of relations at the domestic level, as the “transformists”
assert, but rather whether the respective state allows it to act as such or not.
Therefore, in our opinion, the international legal acts and practices can act
as a source of norms directly governing the relationship among national legal
entities of various countries or even one country where this is authorized by
the respective state.
Unlike “transformists,” advocates of another popular theory of harmoniza-
tion of international and national law norms - the incorporation theory - be-
lieve that international law norms automatically become part of national law
(legislation) without a need for issuing any domestic legal regulations.
V.A. Kalanda thinks in this case it is a form of transformation, the meaning
of which is an inclusion of international treaty norms in national legislation
“through application of existing material norms of domestic law to give effect
to an international agreement.”
The incorporation doctrine originated in the practice of English courts of
the XVIII-XIX centuries and initially applied only to international customary
norms in the UK’s legal system. One of the most famous representatives of
this theory, English lawyer William Blackstone, characterized its content in
his “Commentaries” as follows: “[t]he right of peoples in all matters within its
jurisdiction shall be accepted by the common law in its entirety and considered
as part of the law of the country.” [Citation omitted] At that, with regard to the
application of international treaty norms, English courts adhered to the theory
of transformation.

One of the first states to embrace the doctrine of incorporation at the leg-
islative level was the United States of America. In Section 2, Art. VI of the Con-
stitution of the United States of 1787, the so-called supreme clause (supremacy
clause) was introduced as follows: “This Constitution and the laws of the United
States, which are issued for its execution, as well as the treaties which have been
or will be signed by the United States’ authorities are the highest laws of the
country and the judges of each state are obliged to execute them even if the
Constitution or the laws in individual states contain contradicting provisions.”
It is easy to notice that, in accordance with this rule, the basic principle of the
theory of incorporation - “international law is part of the country’s law” - was
extended to the international treaty rules.
In addition to the United States, countries to have proclaimed international
law as part of the national law included Germany and Greece. Article 25 of the
Constitution of the Federal Republic of Germany in 1949, provides that “the
universally recognized norms of international law are an integral part of the law
the Federation. They have the advantage over the laws and directly create rights
and duties for the inhabitants of the federal territory.” And, according to Clause
1, Article 28 of the Constitution of Greece of 1975, “accepted norms of interna-
tional law, as well as international agreements from the time of their ratification
by the law and entry into force are an integral part of the domestic Greek law
and take precedence over any provision of law that is contradictory to them.”
Other countries have declared the international legal norms as part of their
domestic legislation. Thus, in accordance with Part 1 of Art. 96 of the Con-
stitution of the Kingdom of Spain in 1978, “international treaties concluded
in accordance with the law of and officially published in Spain are part of its
internal legislation.” Similar provisions can be found in the constitutions of
Kazakhstan, Kyrgyzstan, Ukraine and some other states.
It is easy to see that in the basis of the theory of incorporation there lies a
monistic approach to the problem of the relation of international and national
legal standards, but its essence amounts to declaring international law entirely
and without change in its nature an integral part of domestic law. This is done
on the basis of rules worked out by the jurisprudential practice of the respective
state, or by direct reference to its constitutional norm. The essence of the theory
of incorporation, therefore, can be summarized in the following main points:
1. International law and domestic law represent two systems of law that
are consistent with each other. Therefore, the first may be an integral part of
the second.
2. By virtue of specifying the constitutional norm or practice worked out by
national courts, international treaties and (or) norms of general international

PA R T I
law become part of the national law (legislation) of the country in their entirety,
without the need to issue any additional domestic legislation.
We should not forget these regulatory structures differ substantially from
each other not only in terms of content and sources of legal norms, but also in
the ways they are created and implemented. These legal systems are of different
nature, scope of application, purpose, whereby they are cannot objectively be
or become part of each other.
Quite revealing in this sense is a statement by German jurist D. Rauschning,
who, commenting on the provisions of Art. 25 of the Constitution of Germany,
emphasized that the phrase contained therein, stating that “general norms of
international law are an integral part of the law of the Federation,” can be mis-
leading. “This provision does not mean that international law norms become
national law norms of Germany. They remain to be the norms of international
law. The meaning of this article of the Constitution is in that it requires appli-
cation of such rules within the framework of the legal system of the Federal
Republic of Germany.” Similarly, Professors T. Burgental and G. Maier note:
“When we in the U.S. say, for example, that international law is “the law of the
nation,” we really mean that it represents a part of our legal system.”
As pointed out by R. A. Müllerson, regardless of the dualistic or monistic ap-
proach to the correlation of international law and national law, “the national
law of any state and international law are different systems of law and interna-
tional treaties, regardless of the method of their conclusion or implementation,
are the norms of international law that can operate within the state only with
permission of the national law of the country. The only specificity is that, within
the framework of the incorporation theory, such permission takes the form of
announcing international law not as part of the legal system but rather as part
of domestic law or legislation of the respective state.
The theory of incorporation, following the transformation theory, thus
gives the wrong impression about the actual status of international law norms
within the framework of national legal systems.
Firstly, within the framework of the theory of incorporation, no distinction
is made between international legal norms designed to regulate relations arising
within the state and relations that occur beyond its borders.
Secondly, the theory of incorporation (and, incidentally, that of transforma-
tion, too) does not consider the obvious fact that, even if international legal
norms are aimed at achieving a certain degree of normalization of relations that
involve national law subjects, they are not always suitable for direct regulation of
these relations. This raises the problem of self-executing and nonself-executing

international treaties and provisions therein which has not been given a satisfac-
tory resolution in any of the states that have declared international law as part
of their domestic law. Furthermore, it should be borne in mind that some of
these countries declared as part of their rights only conventional international
legal norms, which, according to Professor J. Bederman, indicates the existence
not only of those countries adhering to the concept of “contractual monism”
but also the states that recognize only the “monism of common law norms.”
And, this fact is not always taken into consideration within the framework of
the theory of incorporation.
Thirdly, when declaring international legal norms as part of a country’s law,
there appear a number of problems of a “technical” nature which have not
received a uniform and comprehensive solution in the doctrine, the law and
the enforcement practice of respective states. These problems, in particular,
raise issues about the legal validity of international treaties conflicting with
the provisions of national legal acts adopted later on, as well as about the
relationship between the norms of international treaties concluded on behalf
of the state by its various organs and the national legal norms of various levels.
Most of these problems and inaccuracies are rather successfully overcome
within the framework of the theory of implementation which has been widely
used in the legal doctrine in recent years.
The theory of implementation, just like the theory of transformation, is
based on the assumption of independence of the systems of international law
and domestic law. In other words, in accordance with the theory of implementa-
tion, the outcome of the harmonization is not that of transformation of inter-
national legal norms into national legal norms, not that of their declaration as
part of domestic law, but granting the ability of the former to act in their own
right in the legal system of the state through approval and support of the latter.
Similar ideas were expressed back in the 60’s of the last century, when the
German Society of International Law put forward a theory of international legal
norms’ implementation. In their view, the state can and should be limited, in
this case, only to the act of effecting execution of the international legal norm.
This act “does not transform one norm to another, it only serves the condition
of domestic operation of the international legal norm, extrapolates its nor-
mativity to the domestic sphere. At this, the nature of the norm itself remains
unchanged, it continues to be a norm of international law.”
The theory of “implementation” advanced here, in its broader sense, implies
“implementation of international legal and domestic norms in compliance
with domestic international law, as well as establishment of conditions for such
implementation at international and domestic levels.”

PA R T I
The fundamental postulates of the theory of implementation can be sum-

marized as follows:
1) International law and domestic law are two different systems of law.
Therefore, international legal norms may serve as regulators of relations in the
sphere of a state’s domestic law only with approval of the relevant national
legal norms.
2) The content of the mechanism of implementation of international legal
norms depends on their form, content and the ultimate goal of international
legal regulation.
Comparing the main provisions of the theories of transformation, incorpo-
ration and implementation, it is easy to see that, in this case, it is not so much
about the dispute over the terms, as some researchers try to present it, but
about a different vision of the content of a legal mechanism for implementing
international legal norms within the framework of domestic legal orders. And,
if you leave other numerous but comparatively less important differences “out
of the equation,” in the heart of the debate among these concepts’ proponents
there lies the question of whether international legal norms are directly ap-
plicable in the area of domestic relations, i.e. without declaring them as part
of domestic law and without transforming international treaties into domestic
laws. In our opinion, the truly correct answer to this question is given by the
theory of implementation, and the answer is in the affirmative.
However, not everybody agrees with that. “We should not support the view
of the direct effect of international legal norms, - writes A.M. Vasiliev, - their
action is mediated through decisions of national public authorities in one form
or another. …The norm is a rule of repeated action. By virtue of this, it has to
adapt to the sovereign national legal system, to get support from the state to
become the system’s part that is consistent with its other parts.” B.L. Zimnenko
also believes that the direct effect of international legal norms should be spo-
ken about only conditionally, “bearing in mind that this action is mediated by
a common referential norm.”

Selected International Tribunals

International Court of Justice (I.C.J.)110
The Court
The International Court of Justice (I.C.J.) is the principal judicial organ of
the United Nations (UN). It was established in June 1945 by the Charter of the
United Nations and began work in April 1946.
The seat of the Court is at the Peace Palace in The Hague (Netherlands). Of
the six principal organs of the United Nations, it is the only one not located in
New York (United States of America).
The Court’s role is to settle, in accordance with international law, legal dis-
putes submitted to it by States and to give advisory opinions on legal questions
referred to it by authorized United Nations organs and specialized agencies.
The Court is composed of 15 judges, who are elected for terms of office of
nine years by the United Nations General Assembly and the Security Council.
It is assisted by a Registry, its administrative organ. Its official languages are
English and French.
Origins and History
The creation of the Court represented the culmination of a long develop-
ment of methods for the pacific settlement of international disputes, the origins
of which can be traced back to classical times.
Article 33 of the United Nations Charter lists the following methods for the
pacific settlement of disputes between States: negotiation, enquiry, mediation,
conciliation, arbitration, judicial settlement, and resort to regional agencies or ar-
rangements; good offices should also be added to this list. Among these methods,
certain involve appealing to third parties. For example, mediation places the par-
ties to a dispute in a position in which they can themselves resolve their dispute
thanks to the intervention of a third party. Arbitration goes further, in the sense
that the dispute is submitted to the decision or award of an impartial third party, so
that a binding settlement can be achieved. The same is true of judicial settlement
(the method applied by the International Court of Justice), except that a court is
subject to stricter rules than an arbitral tribunal, particularly in procedural matters.
Mediation and arbitration preceded judicial settlement in history. The former
was known in ancient India and in the Islamic world, whilst numerous examples
110
See, http://www.I.C.J.-cij.org/court/index.php?p1=1.

PA R T I
of the latter are to be found in ancient Greece, in China, among the Arabian tribes,
in maritime customary law in medieval Europe and in Papal practice.
The origins111
The Permanent Court of International Justice (PCIJ)
Article 14 of the Covenant of the League of Nations gave the Council of the
League responsibility for formulating plans for the establishment of a Permanent
Court of International Justice (PCIJ), such a court to be competent not only to
hear and determine any dispute of an international character submitted to it by
the parties to the dispute, but also to give an advisory opinion upon any dispute
or question referred to it by the Council or by the Assembly. It remained for
the League Council to take the necessary action to give effect to Article 14. In
December 1920, after an exhaustive study by a subcommittee, the Committee
submitted a revised draft to the Assembly, which unanimously adopted it. This
was the Statute of the PCIJ.
The PCIJ was thus a working reality. The great advance it represented in
the history of international legal proceedings can be appreciated by consider-
ing the following:
• unlike arbitral tribunals, the PCIJ was a permanently constituted
body governed by its own Statute and Rules of Procedure, fixed
beforehand and binding on parties having recourse to the Court;
• it had a permanent Registry which, inter alia, served as a channel
of communication with governments and international bodies;
• its proceedings were largely public and provision was made
for the publication in due course of the pleadings, of verbatim
records of the sittings and of all documentary evidence
submitted to it;
Although the Permanent Court of International Justice was brought into
being through, and by, the League of Nations, it was nevertheless not a part of
the League. There was a close association between the two bodies, which found
expression inter alia in the fact that the League Council and Assembly periodi-
cally elected the Members of the Court and that both Council and Assembly
were entitled to seek advisory opinions from the Court, but the latter never
formed an integral part of the League, just as the Statute never formed part of
the Covenant. In particular, a Member State of the League of Nations was not
by this fact alone automatically a party to the Court’s Statute.
111
I.C.J. website: http://www.I.C.J.-cij.org/court/index.php?p1=1&p2=1.

Between 1922 and 1940 the PCIJ dealt with 29 contentious cases between
States and delivered 27 advisory opinions.
The International Court of Justice (I.C.J.)

The outbreak of war in September 1939 inevitably had serious consequences
for the PCIJ, which had already for some years known a period of diminished
activity. After its last public sitting on 4 December 1939, the Permanent Court
of International Justice did not in fact deal with any judicial business and no
further elections of judges were held. In 1940 the Court removed to Geneva, a
single judge remaining at The Hague, together with a few Registry officials of
Dutch nationality. It was inevitable that even under the stress of the war some
thought should be given to the future of the Court, as well as to the creation
of a new international political order.
In 1942 the United States Secretary of State and the Foreign Secretary of
the United Kingdom declared themselves in favour of the establishment or re-
establishment of an international court after the war, and the Inter-American
Juridical Committee recommended the extension of the PCIJ’s jurisdiction.
Early in 1943, the United Kingdom Government took the initiative of inviting
a number of experts to London to constitute an informal Inter-Allied Com-
mittee to examine the matter. This Committee, under the chairmanship of Sir
William Malkin (United Kingdom), held 19 meetings, which were attended by
jurists from 11 countries. In its report, which was published on 10 February
1944, it recommended:
• that the Statute of any new international court should be based
on that of the Permanent Court of International Justice;
• that advisory jurisdiction should be retained in the case of the
new Court;
• that acceptance of the jurisdiction of the new Court should
not be compulsory;
• that the Court should have no jurisdiction to deal with
essentially political matters.
Meanwhile, on 30 October 1943, following a conference between China,
the USSR, the United Kingdom and the United States, a joint declaration was
issued recognizing the necessity “of establishing at the earliest practicable date
a general international organization, based on the principle of the sovereign
equality of all peace-loving States, and open to membership by all such States,
large and small, for the maintenance of international peace and security.”

PA R T I
This declaration led to exchanges between the Four Powers at Dumbarton

Oaks, resulting in the publication on 9 October 1944 of proposals for the estab-
lishment of a general international organization, to include an international court
of justice. The next step was the convening of a meeting in Washington, in April
1945, of a committee of jurists representing 44 States. This Committee, under the
chairmanship of G. H. Hackworth ( United States), was entrusted with the prepara-
tion of a draft Statute for the future international court of justice, for submission to
the San Francisco Conference, which during the months of April to June 1945 was
to draw up the United Nations Charter. The draft Statute prepared by the Com-
mittee was based on the Statute of the PCIJ and was thus not a completely fresh
text. The Committee nevertheless felt constrained to leave a number of questions
open which it felt should be decided by the Conference: should a new court be
created? In what form should the court’s mission as the principal judicial organ
of the United Nations be stated? Should the court’s jurisdiction be compulsory,
and, if so, to what extent? How should the judges be elected? The final decisions
on these points, and on the definitive form of the Statute, were taken at the San
Francisco Conference, in which 50 States participated. The Conference decided
against compulsory jurisdiction and in favour of the creation of an entirely new
court, which would be a principal organ of the United Nations, on the same footing
as the General Assembly, the Security Council, the Economic and Social Council,
the Trusteeship Council and the Secretariat, and with the Statute annexed to and
forming part of the Charter. The chief reasons that led the Conference to decide
to create a new court were the following:
• as the court was to be the principal judicial organ of the United
Nations, it was felt inappropriate for this role to be filled by
the Permanent Court of International Justice, which had up
until then been linked to the League of Nations, then on the
point of dissolution;
• the creation of a new court was more consistent with the
provision in the Charter that all Member States of the United
Nations would ipso facto be parties to the court’s Statute;
• several States that were parties to the Statute of the PCIJ
were not represented at the San Francisco Conference, and,
conversely, several States represented at the Conference were
not parties to the Statute.
There was a feeling in some quarters that the PCIJ formed part of an older
order, in which European States had dominated the political and legal affairs
of the international community, and that the creation of a new court would
make it easier for States outside Europe to play a more influential role. This

has in fact happened as the membership of the United Nations grew from 51
in 1945 to 192 in 2006.
The San Francisco Conference nevertheless showed some concern that all
continuity with the past should not be broken, particularly as the Statute of
the PCIJ had itself been drawn up on the basis of past experience, and it was
felt better not to change something that had seemed to work well. The Charter
therefore plainly stated that the Statute of the International Court of Justice
was based upon that of the PCIJ. At the same time, the necessary steps were
taken for a transfer of the jurisdiction of the PCIJ so far as was possible to the
International Court of Justice. In any event, the decision to create a new court
necessarily involved the dissolution of its predecessor. The PCIJ met for the last
time in October 1945 when it was decided to take all appropriate measures to
ensure the transfer of its archives and effects to the new International Court
of Justice, which, like its predecessor, was to have its seat in the Peace Palace.
…In April 1946, the PCIJ was formally dissolved, and the International Court
of Justice, meeting for the first time, elected as its President Judge José Gus-
tavo Guerrero (El Salvador), the last President of the PCIJ. …The first case was
submitted in May 1947. It concerned incidents in the Corfu Channel and was
brought by the United Kingdom against Albania.
Statute of the International Court of Justice
Chapter II - Competence of the Court, Article 34

1. Only states may be parties in cases before the Court.
2. The Court, subject to and in conformity with its Rules, may request of
public international organizations information relevant to cases before it, and
shall receive such information presented by such organizations on their own
initiative.
3. Whenever the construction of the constituent instrument of a public in-
ternational organization or of an international convention adopted thereunder
is in question in a case before the Court, the Registrar shall so notify the public
international organization concerned and shall communicate to it copies of
all the written proceedings.112
112
http://www.I.C.J.-cij.org/documents/index.php?p1=4&p2=2&p3=0#CHAPTER_II.

PA R T I
Case Concerning Military and Paramilitary Activities in and

against Nicaragua (Nicaragua v United States),1986113
Judicial settlement as alternative to friendly settlement
***
[pp. 142-143] The Court considers appropriate the request of Nicaragua
for the nature and amount of the reparation due to it to be determined in a
subsequent phase of the proceedings. While a certain amount of evidence
has been provided, for example, in the testimony of the Nicaraguan Minister
of Finance, of pecuniary loss sustained, this was based upon contentions as
to the responsibility of the United States which were more far-reaching than
the conclusions at which the Court has been able to arrive. The opportunity
should be afforded Nicaragua to demonstrate and prove exactly what injury
was suffered as a result of each action of the United States which the Court has
found contrary to international law. Nor should it be overlooked that, while
the United States has chosen not to appear or participate in the present phase
of the proceedings, Article 53 of the Statute does not debar it from appearing
to present its arguments on the question of reparation if it so wishes. On the
contrary, the principle of the equality of the Parties requires that it be given that
opportunity. It goes without saying, however, that in the phase of the proceed-
ings devoted to reparation, neither Party may call in question such findings in
the present Judgment as have become res judicata.
There remains the request of Nicaragua (paragraph 15 above) for an award,
at the present stage of the proceedings, of $370,200,000 as the “minimum (and
in that sense provisional) valuation of direct damages.” There is no provision
in the Statute of the Court either specifically empowering the Court to make
an interim award of this kind, or indeed debarring it from doing so. In view of
the final and binding character of the Court’s judgments under Articles 59 and
60 of the Statute, it would however only be appropriate to make an award of
this kind, assuming that the Court possesses the power to do so, in exceptional
circumstances, and where the entitlement of the State making the claim was
already established with certainty and precision. Furthermore, in a case in which
the respondent State is not appearing, so that its views on the matter are not
known to the Court, the Court should refrain from any unnecessary act which
might prove an obstacle to a negotiated settlement. It bears repeating that
“the judicial settlement of international disputes, with a view
to which the Court has been established, is simply an alternative
113
Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States
of America), Merits, Judgment, I.C.J. Reports 1986, p. 14 (p. 142-143 of decision).

to the direct and friendly settlement of such disputes between the

Parties; as consequently it is for the Court to facilitate, so far as is
compatible with its Statute, such direct and friendly settlement ...”
(Free Zones of Upper Savoy and the District of Gex, Order of 19
August 1929, P.C.I.J., Series A, No. 22, p. 13).
Accordingly, the Court does not consider that it can accede at this stage to
the request made in the Fourth Submission of Nicaragua.
Boundary Disputes
Malcolm Shaw, Boundary Treaties114
Boundary treaties, whereby either additional territory is acquired or lost or
uncertain boundaries are clarified by agreement between the states concerned,
constitute a root of the title in themselves. They constitute a special kind of
treaty in that they establish an objective territorial regime valid erga omnes.
Such a regime will not only create rights binding also upon third states, but
will exist outside of the particular boundary treaty and thus will continue even
if the treaty in question itself ceases to apply.…
Accordingly, many boundary disputes in fact revolve around the question
of treaty interpretation. It is accepted that a treaty should be interpreted in the
light of Articles 31 and 32 of the Vienna Convention on the Law of Treaties,
1969, ‘in good faith, in accordance with the ordinary meaning to be given to
its terms in their context and in the light of its object and purpose’....
More generally, the difficulty in seeking to interpret both general concepts
and geographical locations used in early treaties in the light of modern sci-
entific knowledge has posed difficulties. In the Botswana/Namibia case, the
Court, faced with the problem of identifying the ‘main channel’ of the River
Chobe in the light of an 1890 treaty, emphasized that ‘ the present – day state
of scientific knowledge’ could be used in order to illustrate terms if that treaty.
In the Eritrea/Ethiopia case, the Boundary Commission referred to the prin-
ciple of contemporaneity, by which it meant that treaty should be interpreted
by reference to the circumstances prevailing when the treaty was concluded.
In particular, the determination of geographical name (whether of a place or
of a river) depended upon the contemporary understanding of the location
to which that name related at the time of the treaty. However, in seeking to
114
Quote from Malcolm N. Shaw, International Law, p. 417, 5th ed. (Cambridge University
Press, 2003).

PA R T I
understand what that was reference to subsequent practice and to the objects
of the treaty was often required. In interpreting a boundary treaty, in particular
in seeking resolve ambiguities, the subsequent practice of the parties will be
relevant. Even where such subsequent practice cannot in the circumstance
constitute an authoritative interpretation of the treaty, it may be deemed to
‘be useful’ in the process of specifying the frontier in question. However, where
the boundary line as specified in the pertinent instrument is clear, it cannot
be changed by a court in the process of interpreting delimitation provisions.
Frontier Dispute, (Burkina Faso v. Republic of Mali)115
***
[pp. 563-564] The Parties have argued at length over how the present
dispute is to be classified in terms of a distinction sometimes made by legal
writers between “frontier disputes” or “delimitation disputes,” and “disputes
as to attribution of territory.” According to this distinction, the former refer
to delimitation operations affecting what has been described as “a portion of
land which is not geographically autonomous” whereas the object of the latter
is the attribution of sovereignty over the whole of a geographical entity. Both
Parties seem ultimately to have accepted that the present dispute belongs rather
to the category of delimitation disputes, even though they fail to agree on the
conclusions to be drawn from this. In fact, however, in the great majority of
cases, including this one, the distinction outlined above is not so much a dif-
ference in kind but rather a difference of degree as to the way the operation
in question is carried out. The effect of any delimitation, no matter how small
the disputed area crossed by the line, is an apportionment of the areas of land
lying on either side of the line. In the present case, it may be noted that the
Special Agreement, in Article I, refers not merely to a line to be drawn, but to a
disputed “area,” which it defines as consisting of a “band” of territory encom-
passing the “region” of the Béli. Moreover, the effect of any judicial decision
rendered either in a dispute as to attribution of territory or in a delimitation
dispute, is necessarily to establish a frontier….
[p. 566] The territorial boundaries which have to be respected may also
derive from international frontiers which previously divided a colony of one
State from a colony of another, or indeed a colonial territory from the terri-
tory of an independent State, or one which was under protectorate, but had
retained its international personality. There is no doubt that the obligation to
respect pre-existing international frontiers in the event of a State succession
115
Frontier Dispute (Burkina Faso v. Republic of Mali), Judgment, I.C.J. Reports 1986, p. 554

derives from a general rule of international law, whether or not the rule is ex-
pressed in the formula uti possidetis. Hence the numerous solemn affirmations
of the intangibility of the frontiers existing at the time of the independence
of African States, whether made by senior African statesmen or by organs of
the Organization of African Unity itself are evidently declaratory rather than
constitutive: they recognize and confirm an existing principle; and do not seek
to consecrate a new principle or the extension to Africa of a rule previously
applied only in another continent….
[p. 582] At the present stage of its reasoning the Chamber can confine
itself to the statement of a principle. Whether in frontier delimitations or in
international territorial conflicts, maps merely constitute information which
varies in accuracy from case to case; of themselves, and by virtue solely of their
existence, they cannot constitute a territorial title, that is, a document endowed
by international law with intrinsic legal force for the purpose of establishing
territorial rights. Of course, in some cases maps may acquire such legal force, but
where this is so the legal force does not arise solely from their intrinsic merits:
it is because such maps fall into the category of physical expressions of the will
of the State or States concerned. This is the case, for example, when maps are
annexed to an official text of which they form an integral part. Except in this
clearly defined case, maps are only extrinsic evidence of varying reliability or
unreliability which may be used, along with other evidence of a circumstantial
kind, to establish or reconstitute the real facts….
[pp. 632-633] It should again be pointed out that the Chamber’s task in
this case is to indicate the line of the frontier inherited by both States from
the colonizers on their accession to independence. For the reasons explained
above, this task amounts to ascertaining and defining the lines which formed
the administrative boundaries of the colony of Upper Volta on 31 December
1932. Admittedly, the Parties could have modified the frontier existing on
the critical date by a subsequent agreement. If the competent authorities had
endorsed the agreement of 15 January 1965, it would have been unnecessary
for the purpose of the present case to ascertain whether that agreement was
of a declaratory or modifying character in relation to the 1932 boundaries.
But this did not happen, and the Chamber has received no mandate from the
Parties to substitute its own free choice of an appropriate frontier for theirs.
The Chamber must not lose sight either of the Court’s function, which is to
decide in accordance with international law such disputes as are submitted to
it, nor of the fact that the Chamber was requested by the Parties in their Special
Agreement not to give indications to guide them in determining their common
frontier, but to draw a line, and a precise line.

PA R T I
As it has explained, the Chamber can resort to that equity infra legem, which
both Parties have recognized as being applicable in this case (see paragraph
27 above). In this respect the guiding concept is simply that “Equity as a legal
concept is a direct emanation of the idea of justice” (Continental Shelf (Tuni-
sia/Libyan Arab Jamahiriya), I.C.J. Reports 1982, p. 60, para. 71). The Chamber
would however stress more generally that to resort to the concept of equity in
order to modify an established frontier would be quite unjustified. Especially in
the African context, the obvious deficiencies of many frontiers inherited from
colonization, from the ethnic, geographical or administrative standpoint, can-
not support an assertion that the modification of these frontiers is necessary or
justifiable on the ground of considerations of equity. These frontiers, however
unsatisfactory they may be, possess the authority of the uti possidetis and are
thus fully in conformity with contemporary international law. Apart from the
case of a decision ex aequo et bono reached with the assent of the Parties, “it is
not a matter of finding simply an equitable solution, but an equitable solution
derived from the applicable law” (Fisheries Jurisdiction, I.C.J. Reports 1974,
p. 33, para. 78). It is with a view to achieving a solution of this kind that the
Chamber has to take account, not of the agreement of 15 January 1965, but of
the circumstances in which that agreement was concluded.
Consideration of Arbitral Awards

Maritime Delimitation of Territory (Qatar v. Bahrain),
2001116
***
111. Bahrain maintains that the British decision of 1939 must be considered
primarily as an arbitral award, which is res judicata. It claims that the Court
does not have jurisdiction to review the award of another tribunal, basing its
proposition on
“a virtual jurisprudence constante, not to review, invalidate or even confirm
awards taken by other international tribunals, unless there is specific, express,
additional consent to reopen the award.”
Thus Bahrain refers to the decision of 15 June 1939 by the Permanent Court
of International Justice in the case of the Société Commerciale de Belgique
(P.C.I.J., Series A/B, No. 78, p. 160); and to those rendered by the present Court on
116
v. Bahrain), Merits, Judgment, I.C.J. Reports 2001, p. 40 at pg. 76-77, and 83-85.

18 November 1960 in the case concerning the Arbitral Award made by the King
of Spain on 23 December 1906 (Honduras v. Nicaragua) (I.C.J. Reports 1960,
p. 192), as well as on 12 November 1991 in the case concerning the Arbitral
Award of 31 July 1989 (Guinea-Bissau v. Senegal), (I.C.J. Reports 1991, p. 53).
112. Qatar denies the relevance of the judgments cited by Bahrain. It con-
tends that
“[N]one of them are in the slightest degree relevant to the issue which the
Court has to determine in the present case, namely, whether the procedures
followed by the British Government in 1938 and 1939 amounted to a process
of arbitration which could result in an arbitral award binding upon the parties.”
Qatar also advances in support of its position the 19 October 1981 arbi-
tral award rendered by the Court of Arbitration in the Dubai/Sharjah Border
case; in that award, which in Qatar’s view was rendered under circumstances
comparable to those of the present case, the Court of Arbitration concluded
that boundary delimitation decisions taken by the British Government were
not arbitral awards but rather administrative decisions of a binding character
(International Law Reports, Vol. 91, p. 579; see also pp. 577, 583 and 585).
113. The Court will first consider the question whether the 1939 British
decision must be deemed to constitute an arbitral award. The Court observes in
this respect that the word arbitration, for purposes of public international law,
usually refers to “the settlement of differences between States by judges of their
own choice, and on the basis of respect for law.” This wording was adopted in
Article 15 of the Hague Convention for the Pacific Settlement of International
Disputes, dated 29 July 1899. It was repeated in Article 37 of the Hague Con-
vention dated 18 October 1907, having the same object. It was adopted by the
Permanent Court of International Justice in its Advisory Opinion of 21 Novem-
ber 1925, interpreting Article 3, paragraph 2, of the Treaty of Lausanne (P.C.I.J.,
Series B, No. 12, p. 26). It was reaffirmed in the work of the International Law
Commission, which reserved the case where the parties might have decided that
the requested decision should be taken exæquo et bono (Report by Mr. Georges
Scelle, Special Rapporteur of the Commission, Document A/CN.4/113, of 6 March
1958, Yearbook of the International Law Commission,1958, Vol. II, p. 2). Finally,
more recently, it was adopted by the Court of Arbitration called upon to settle
the border dispute between Dubai and Sharjah in a dispute bearing some simi-
larities to the present case (Dubai/Sharjah Border Arbitration, arbitral award of
19 October 1981, International Law Reports, Vol. 91, pp. 574 and 575).
114. The Court observes that in the present case no agreement existed
between the Parties to submit their case to an arbitral tribunal made up of
judges chosen by them, who would rule either on the basis of the law or ex

PA R T I
æquoet bono. The Parties had only agreed that the issue would be decided by
“His Majesty’s Government,” but left it to the latter to determine how that de-
cision would be arrived at, and by which officials. It follows that the decision
whereby, in 1939, the British Government held that the Hawar Islands belonged
to Bahrain, did not constitute an international arbitral award….
139. The Court will begin by recalling that the 1939 decision is not an
arbitral award (see paragraphs 113-114 above). This does not, however, mean
that it was devoid of all legal effect. Quite to the contrary, the pleadings, and in
particular the Exchange of Letters referred to above (see paragraphs 118 and
119 above), show that Bahrain and Qatar consented to the British Government
settling their dispute over the Hawar Islands. The 1939 decision must therefore
be regarded as a decision that was binding from the outset on both States and
continued to be binding on those same States after 1971, when they ceased to
be British protected States (see paragraph 65 above).
140. The validity of that decision was certainly not subject to the procedural
principles governing the validity of arbitral awards. However as the British Po-
litical Agent undertook on 20 May 1938, and as was repeated in the letter of
the Ruler of Qatar of 27 May 1938 (see paragraphs 119 and 120 above), this
decision was to be rendered “in the light of truth and justice.”
141. In this connection, the Court observes in the first place that the Ruler
of Qatar in that last letter entrusted the question of the Hawar Islands to the
British Government for decision, notwithstanding that seven days before the
British Political Agent had informed him that “by their formal occupation of the
Islands for some time past the Bahrain Government possess a prima facie claim
to them” and that it was therefore for the Ruler of Qatar to submit a “formal
claim ... supported by a full and complete statement of the evidence” on which
he relied (see paragraph 119 above). This procedure was followed and the
competent British officials found that “[t]he Shaikh of Qatar ha[d] produced no
evidence whatsoever” to counter the effectivités claimed by Bahrain, in particular
its occupation of the islands since 1937 (see paragraph 128 above). Under these
circumstances, while it is true that the competent British officials proceeded on
the premise that Bahrain possessed prima facie title to the islands and that the
burden of proving the opposite lay on the Ruler of Qatar, Qatar cannot maintain
that it was contrary to justice to proceed on the basis of this premise when Qatar
had been informed before agreeing to the procedure that this would occur and
had consented to the proceedings being conducted on that basis.
142. The proceedings leading to the 1939 British decision summarized above
(see paragraphs 118 to 133 above) further show that Qatar and Bahrain both had
the opportunity to present their arguments in relation to the Hawar Islands and

the evidence supporting them. Qatar presented its claim in its letters of 10 and
27 May 1938. Bahrain’s opposing claims were presented on 22 December 1938,
with an annex containing the declarations of several witnesses. Qatar commented
on this statement of Bahrain in its letter of 30 March 1939, to which testimonial
evidence to support its arguments was also annexed. Thus the two Rulers were
able to present their arguments and each of them was afforded an amount of
time which the Court considers was sufficient for this purpose; Qatar’s contention
that it was subjected to unequal treatment therefore cannot be upheld.
143. Finally, the Court notes that, while the reasoning supporting the 1939
decision was not communicated to the Rulers of Bahrain and Qatar, this lack
of reasons has no influence on the validity of the decision taken, because no
obligation to state reasons had been imposed on the British Government when
it was entrusted with the settlement of the matter.
144. Moreover, in the present case the reaction of the Ruler of Qatar was to
inform the British Political Resident that he was “deeply astonished” by the decision,
but he did not claim that it was invalid for lack of reasons. Qatar stated that it had
provided enough evidence to support its position, and limited itself to requesting
the British Government to re-examine its decision. Therefore, Qatar’s contention
that the 1939 British decision is invalid for lack of reasons cannot be upheld.
145. Finally, the fact that the Sheikh of Qatar had protested on several oc-
casions against the content of the British decision of 1939 after he had been
informed of it is not such as to render the decision inopposable to him, contrary
to what Qatar maintains.
146. The Court accordingly concludes that the decision taken by the British
Government on 11 July 1939 is binding on the Parties.
Inherent Right to Challenge Arbitral Award

Arbitral Award (Guinea Bissau v. Senegal), 1989117
***
42. Guinea-Bissau argues, secondly, that any arbitral award must, in accor-
dance with general international law, be a reasoned one. Moreover, according to
Article 9, paragraph 3, of the Arbitration Agreement, the Parties had specifically
agreed that “the Award shall state in full the reasons on which it is based.” Yet,
117
Arbitral Award of 31 July 1989 (Guinea-Bissau v. Senegal), Judgment, I.C.J. Reports
1991, p. 53, p 69, and p. 72, majority opinion, and p. 92 Judge Lachs dissent.

PA R T I
according to Guinea-Bissau, the Tribunal in this case did not give any reasoning
in support of its refusal to reply to the second question put by the Parties or, at
the very least, gave “wholly insufficient” reasoning, which did not even make
it possible to “determine the line of argument followed” and did not “reply on
any point to the questions raised and discussed during the arbitral proceedings.”
On this ground also, it is claimed that the Award is null and void.
43. In paragraph 87 of the Award, referred to above, the Tribunal “bearing
in mind the ... conclusions” that it had reached, together with “the wording of
Article 2 of the Arbitration Agreement,” took the view that it was not called
upon to reply to the second question put to it. This reasoning is brief, and could
doubtless have been developed further. But the references in paragraph 87 to
the Tribunal’s conclusions and to the wording of Article 2 of the Arbitration
Agreement make it possible to determine, without difficulty, the reasons why
the Tribunal decided not to answer the second question. By referring to the
wording of Article 2 of the Arbitration Agreement, the Tribunal was taking note
that, according to that Article, it was asked, first, whether the 1960 Agreement
had “the force of law in the relations” between Guinea-Bissau and Senegal, and
then, “in the event of a negative answer to the first question, what is the course
of the line delimiting the maritime territories” of the two countries. By referring
to the conclusions that it had already reached, the Tribunal was noting that it
had, in paragraphs 80 et seq. of the Award, found that the 1960 Agreement, in
respect of which it had already determined the scope of its substantive validity,
was “valid and can be opposed to Senegal and to Guinea-Bissau.” Having given
an affirmative answer to the first question, and basing itself on the actual text
of the Arbitration Agreement, the Tribunal found as a consequence that it did
not have to reply to the second question. That statement of reasoning, while
succinct, is clear and precise. The second contention of Guinea-Bissau must
also be dismissed….
47. By its argument set out above, Guinea-Bissau is in fact criticizing the in-
terpretation in the Award of the provisions of the Arbitration Agreement which
determine the Tribunal’s jurisdiction, and proposing another interpretation.
However, the Court does not have to enquire whether or not the Arbitration
Agreement could, with regard to the Tribunal’s competence, be interpreted in
a number of ways, and if so to consider which would have been preferable.
By proceeding in that way the Court would be treating the request as an ap-
peal and not as a recours en nullité. The Court could not act in that way in
the present case. It has simply to ascertain whether by rendering the disputed
Award the Tribunal acted in manifest breach of the competence conferred on
it by the Arbitration Agreement, either by deciding in excess of, or by failing
to exercise, its jurisdiction.

Obligations of Negotiation
***
98. Given the eminently difficult issues that arise in applying the law on
the use of force and above al1 the law applicable in armed conflict to nuclear
weapons, the Court considers that it now needs to examine one further aspect
of the question before it, seen in a broader context. In the long run, international
law, and with it the stability of the international order which it is intended to
govern, are bound to suffer from the continuing difference of views with regard
to the legal status of weapons as deadly as nuclear weapons. It is consequently
important to put an end to this state of affairs: the long-promised complete
nuclear disarmament appears to be the most appropriate means of achieving
that result.
99. In these circumstances, the Court appreciates the full importance of
the recognition by Article VI of the Treaty on the Non-Proliferation of Nuclear
Weapons of an obligation to negotiate in good faith a nuclear disarmament. This
provision is worded as follows: “Each of the Parties to the Treaty undertakes
to pursue negotiations in good faith on effective measures relating to cessa-
tion of the nuclear arms race at an early date and to nuclear disarmament, and
on a treaty on general and complete disarmament under strict and effective
international control.”
The legal import of that obligation goes beyond that of a mere obligation
of conduct ; the obligation involved here is an obligation to achieve a precise
result- nuclear disarmament in al1 its aspects - by adopting a particular course
of conduct, namely, the pursuit of negotiations on the matter in good faith.
100. This twofold obligation to pursue and to conclude negotiations for-
mally concerns the 182 States parties to the Treaty on the Non-Proliferation
of Nuclear Weapons, or, in other words, the vast majority of the international
community. Virtually the whole of this community appears moreover to have
been involved when resolutions of the United Nations General Assembly con-
cerning nuclear disarmament have repeatedly been unanimously adopted.
Indeed, any realistic search for general and complete disarmament, especially
nuclear disarmament, necessitates the CO-operation of al1 States.
118
Legality of the Threat or Use of Nuclear Weapons in Armed Conflict, Advisory Opin-
ion, I. C. J. Reports 1996, at pp. 363-65, paragraphs 98-103.

PA R T I
101. Even the very first General Assembly resolution, unanimously adopted
on 24 January 1946 at the London session, set up a commission whose terms
of reference included making specific proposals for, among other things, “the
elimination from national armaments of atomic weapons and of al1 other
major weapons adaptable to mass destruction.” In a large number of subse-
quent resolutions, the General Assembly has reaffirmed the need for nuclear
disarmament. Thus, in resolution 808 A (IX) of 4 November 1954, which was
likewise unanimously adopted, it concluded “that a further effort should be
made to reach agreement on comprehensive and CO-ordinated proposals to
be embodied in a draft international disarmament convention providing for: . . .
(b) The total prohibition of the use and manufacture of nuclear weapons
and weapons of mass destruction of every type, together with the conversion
of existing stocks of nuclear weapons for peaceful purposes.”
The same conviction has been expressed outside the United Nations con-
text in various instruments.
102. The obligation expressed in Article VI of the Treaty on the Non-
Proliferation of Nuclear Weapons includes its fulfilment in accordance with
the basic principle of good faith. This basic principle is set forth in Article 2,
paragraph 2, of the Charter. It was reflected in the Declaration on Friendly
Relations between States (resolution 2625 (XXV) of 24 October 1970) and in
the Final Act of the Helsinki Conference of 1 August 1975. It is also embodied
in Article 26 of the Vienna Convention on the Law of Treaties of 23 May 1969,
according to which “[elvery treaty in force is binding upon the parties to it and
must be performed by them in good faith.”
Nor has the Court omitted to draw attention to it, as follows:
“One of the basic principles governing the creation and perform of legal
obligations, whatever their source, is the principle of good faith. Trust and con-
fidence are inherent in international CO-operation, in particular in an age when
this CO-operation in many fields is becoming increasingly essential.” (Nuclear
Tests (Australia v. France), Judgment, I. C.J. Reports 1974, p. 268, para. 46.)
103. In its resolution 984 (1995) dated 11 April 1995, the Security Coun-
cil took care to reaffirm “the need for al1 States Parties to the Treaty on the
Non-Proliferation of Nuclear Weapons to comply fully with al1 their obliga-
tions” and urged “al1 States, as provided for in Article VI of the Treaty on the
Non-Proliferation of Nuclear Weapons, to pursue negotiations in good faith on
effective measures relating to nuclear disarmament and on a treaty on general
and complete disarmament under strict and effective international control
which remains a universal goal.”

The importance of fulfilling the obligation expressed in Article VI of the

Treaty on the Non-Proliferation of Nuclear Weapons was also reaffirmed in
the final document of the Review and Extension Conference of the parties to
the Treaty on the Non-Proliferation of Nuclear Weapons, held from 17 April
to 12 May 1995.
In the view of the Court, it remains without any doubt an objective of vital
importance to the whole of the international community today.
European Court Of Justice119

Since the establishment of the Court of Justice of the European Union in
1952, its mission has been to ensure that “the law is observed” “in the inter-
pretation and application” of the Treaties.
As part of that mission, the Court of Justice of the European Union:
reviews the legality of the acts of the institutions of the European
Union,
ensures that the Member States comply with obligations under
the Treaties, and
interprets European Union law at the request of the national courts
and tribunals.
The Court thus constitutes the judicial authority of the European Union and,
in cooperation with the courts and tribunals of the Member States, it ensures
the uniform application and interpretation of European Union law.
The Court of Justice of the European Union, which has its seat in Luxem-
bourg, consists of three courts: the Court of Justice, the General Court (created
in 1988) and the Civil Service Tribunal (created in 2004). Since their establish-
ment, approximately 15 000 judgments have been delivered by the three courts.
As each Member State has its own language and specific legal system, the Court
of Justice of the European Union is a multilingual institution. Its language ar-
rangements have no equivalent in any other court in the world, since each of
the official languages of the European Union can be the language of a case. The
Court is required to observe the principle of multilingualism in full, because of
the need to communicate with the parties in the language of the proceedings
and to ensure that its case-law is disseminated throughout the Member States.
119
See, Court of Justice of the European Union, http://curia.europa.eu/jcms/jcms/
Jo2_6999.

PA R T I
The Court of Justice of the European Union120

The Court of Justice interprets EU law to make sure it is applied in the same
way in all EU countries. It also settles legal disputes between EU governments
and EU institutions. Individuals, companies or organisations can also bring cases
before the Court if they feel their rights have been infringed by an EU institution.
Composition
The Court of Justice has one judge per EU country.
The Court is helped by eight ‘advocates-general’ whose job is to present
opinions on the cases brought before the Court. They must do so publicly and
impartially.
Each judge and advocate-general is appointed for a term of six years, which
can be renewed. The governments of EU countries agree on whom they want
to appoint.
To help the Court of Justice cope with the large number of cases brought
before it, and to offer citizens better legal protection, a ‘General Court’ deals
with cases brought forward by private individuals, companies and some organ-
isations, and cases relating to competition law.
The ‘EU Civil Service Tribunal’ rules on disputes between the European
Union and its staff.
Types of cases
The Court gives rulings on the cases brought before it. The five most com-
mon types of cases are:
1. requests for a preliminary ruling – when national courts ask the
Court of Justice to interpret a point of EU law.
2. actions for failure to fulfill an obligation – brought against EU
governments for not applying EU law.
3. actions for annulment – against EU laws thought to violate the
EU treaties or fundamental rights.
4. actions for failure to act – against EU institutions for failing to
make decisions required of them.
5. direct actions – brought by individuals, companies or
organisations against EU decisions or actions.
120
See, EUROPA, European Commission website: http://europa.eu/geninfo/legal_no-
tices_en.htm.

1. Preliminary ruling procedure

The national courts in each EU country are responsible for ensuring that
EU law is properly applied in that country. But there is a risk that courts in dif-
ferent countries might interpret EU law in different ways.
To prevent this happening, there is a ‘preliminary ruling procedure’. If a
national court is in doubt about the interpretation or validity of an EU law, it
may – and sometimes must – ask the Court of Justice for advice. This advice
is called a ‘preliminary ruling’.
2. Proceedings for failure to fulfill an obligation
The Commission can start these proceedings if it believes that a member
country is failing to fulfill its obligations under EU law. These proceedings may
also be started by another EU country.
In either case, the Court investigates the allegations and gives its judgment. If
the country is found to be at fault, it must put things right at once. If the Court
finds that the country has not followed its ruling, it can issue a fine.
3. Actions for annulment
If any EU country, the Council, the Commission or (under certain condi-
tions) Parliament believes that a particular EU law is illegal, it may ask the
Court to annul it.
‘Actions for annulment’ can also be used by private individuals who want
the Court to cancel a particular law because it directly and adversely affects
them as individuals.
If the Court finds the law in question was not correctly adopted or is not
correctly based on the Treaties, it may declare the law null and void.
4. Actions for failure to act
The Treaty requires Parliament, the Council and the Commission to make
certain decisions under certain circumstances. If they fail to do so, member
countries, other Community institutions and (under certain conditions) indi-
viduals or companies can lodge a complaint with the Court so as to have this
failure to act officially recorded.
5. Direct actions
Any person or company who has suffered damage as a result of the action
or inaction of the Community or its staff can bring an action seeking compen-
sation before the General Court.

PA R T I
How cases are heard

A judge and an advocate general are assigned to each case that comes
before the Court.
Cases submitted to the court are processed in two stages: a written stage
and an oral stage.
1. Written stage
First, all the parties involved hand in a written statement to the judge re-
sponsible for the case. The judge then writes a summary of these statements
and the case’s legal background.
2. Oral stage
The second stage is the public hearing. Depending on how complex the
case is, this can take place before a panel of 3, 5 or 13 judges or in front of
the whole Court. At the hearing, lawyers from both sides put their case to the
judges and the advocate general, who can question them.
The advocate-general then gives his or her opinion. After this, the judges
discuss the case together and give their judgment.
Advocates-general are only required to give their opinion on the case if
the Court believes that the particular case raises a new point of law. The Court
does not necessarily follow the advocate-general’s opinion.
The Court’s judgments are majority decisions and are read out at public
hearings. Pictures of hearings are frequently televised (Europe by Satellite).
The procedure for hearings in the General Court is similar, except that no
opinion is given by an advocate-general.
Costa v. Enel, ECJ /European Community Supremacy

(Italian Company) Nationalization of Italian Company121
By Law No 1643 of 6 December 1962 and subsequent decrees the Ital-
ian Republic nationalized the production and distribution of electric energy
and created an organization, the Ente Nazionale Energia Elettrica (or ENEL)
(National Electricity Board) to which the assets of the electricity undertakings
were transferred.
In proceedings about the payment of an invoice for electricity between
Flaminio Costa and ENEL, before the Giudice Conciliatore, Milan, Mr. Costa, as
121
Costa v Enel, European Court of Justice, 20 February 1964, Judgment, Issues of fact
and of law.

a shareholder of Edison Volta, a company affected by the nationalization, and

as an electricity consumer, requested the court to apply Article 177 of the EEC
Treaty so as to obtain an interpretation of Articles 102, 93, 53 and 37 of the said
Treaty, which Articles, he alleged, had been infringed by the Law of 6 December
1962. The Giudice Conciliatore, by order of 16 January 1964 acceding to this
request, decided [to request the European Court of Justice to pronounce on the
applicability of the EEC Treaty and Article 177 to the court’s decision in Italy]
The Italian Government submits that the request of the Giudice Conciliatore
is ‘absolutely inadmissible’, inasmuch as a national court which is obliged to
apply a national law cannot avail itself of Article 177.
By contrast with ordinary international treaties, the EEC Treaty has created
its own legal system which, on the entry into force of the Treaty, became an
integral part of the legal systems of the Member States and which their courts
are bound to apply.
By creating a Community of unlimited duration, having its own institutions,
its own personality, its own legal capacity and capacity of representation on
the international plane and, more particularly, real powers stemming from a
limitation of sovereignty or a transfer of powers from the States to the Com-
munity, the Member States have limited their sovereign rights, albeit within
limited fields, and have thus created a body of law which binds both their
nationals and themselves.
The integration into the laws of each Member State of provisions which
derive from the Community, and more generally the terms and the spirit of the
Treaty, make it impossible for the States, as a corollary, to accord precedence
to a unilateral and subsequent measure over a legal system accepted by them
on a basis of reciprocity. Such a measure cannot therefore be inconsistent with
that legal system. The executive force of Community law cannot vary from one
State to another in deference to subsequent domestic laws, without jeopardiz-
ing the attainment of the objectives of the Treaty set out in Article 5 (2) and
giving rise to the discrimination prohibited by Article 7.
The obligations undertaken under the Treaty establishing the Community
would not be unconditional, but merely contingent, if they could be called in
question by subsequent legislative acts of the signatories. Wherever the Treaty
grants the States the right to act unilaterally, it does this by clear and precise
provisions (for example Articles 15, 93 (3), 223, 224 and 225). Applications, by
Member States for authority to derogate from the Treaty are subject to a special
authorization procedure (for example Articles 8 (4), 17 (4), 25, 26, 73, the third
subparagraph of Article 93 (2), and 226) which would lose their purpose if the
Member States could renounce their obligations by means of an ordinary law.

PA R T I
The precedence of Community law is confirmed by Article 189, whereby

a regulation ‘shall be binding’ and ‘directly applicable in all Member States’.
This provision, which is subject to no reservation, would be quite meaningless
if a State could unilaterally nullify its effects by means of a legislative measure
which could prevail over Community law.
It follows from all these observations that the law stemming from the Treaty,
an independent source of (aw, could not, because of its special and original
nature, be overridden by domestic legal provisions, however framed, without
being deprived of its character as Community law and without the legal basis
of the Community itself being called into question.
The transfer by the States from their domestic legal system to the Commu-
nity legal system of the rights and obligations arising under the Treaty carries
with it a permanent limitation of their sovereign rights, against which a subse-
quent unilateral act incompatible with the concept of the Community cannot
prevail. Consequently Article 177 is to be applied regardless of any domestic
law, whenever questions relating to the interpretation of the Treaty arise.
The questions put to the Giudice Conciliatore regarding Articles 102, 93,
53, and 37 are directed first to enquiring whether these provisions produce
direct effects and create individual rights which national courts must protect
and if so what their meaning is.
Global Trade Disputes

See World Trade Organization Rules, Infra, Part II, Chapter 6
Human Rights Disputes

See International and Regional Tribunals, Infra, Part II,
Chapter 2.

CHAPTER 1 USE OF FORCE
PA R T I I
CHAPTER 1
USE OF FORCE
UN Charter and Prohibition of Use of Force

UN Charter, Article 2
The Organization and its Members, in pursuit of the Purposes stated in
Article 1, shall act in accordance with the following Principles….
4. All Members shall refrain in their international relations from
the threat or use of force against the territorial integrity or
political independence of any state, or in any other manner
inconsistent with the Purposes of the United Nations.
UN Charter and Use of Force

“The UN Charter and the Use of Force,” Sir. Franklin
Berman122
II. The Purpose of a Law on the Use of Force

The starting point is therefore that the law is under challenge from increas-
ing demands for the use of force and for its legal validation. The remark may
seem obvious, but I make it all the same to distance myself from a point of view
that I have detected all too often amongst academic lawyers and legal com-
mentators in my own country: the view namely that the essence of international
law is to prevent force being used at all costs, to set up a sort of impenetrable
barrier to its use. It is a view I frequently encountered as well amongst my
122
Sir. Franklin Berman, The Singapore Yearbook of International Law, 2004. 10 SYBIL
9–17 (2006). [Reprinted with the permission of the author and the Singapore Year
Book of International Law].

PA R T I I
diplomatic counterparts in other European capitals. If that is the characteristic

European view, or were to become it, then it is hardly to be wondered at the
tensions and strains that have crept into the Transatlantic relationship, as much
between the lawyers as between the policy-makers.
It is not a view I share. It is inconsistent with our foundation legal text, the
United Nations Charter; and it would make nonsense of that most successful
of all defence alliances we remember today, the North Atlantic Treaty. If it were
correct, then every time armed force was resorted to one would have to say that
the legal system had failed, that it had broken down. That is not right; it may
be true that resort to force shows that diplomacy has failed, that the political
constraints on the escalation of disputes have broken down, but not the law.
And that is so for at least one simple reason: that one of the prime functions
of the law is to regulate the consequences of illegality. This is just as true of
international law as of any other legal system. So the way I would phrase the
essential purpose of international law is somewhat different. For me, interna-
tional law has four functions in this vital area: to define (and define properly)
the very limited number of situations in which the use of force is permissible;
to regulate and control the use of force even when it is permissible; to deter-
mine when force that has been used was not permissible; and to regulate the
consequences of resort to force, both permissible and impermissible.
It will be seen from this that I am by no means an advocate of a legal system
that would open the door to frequent or regular uses of force. Quite the con-
trary. But no more am I the advocate of a legal system that would shrink from
the challenge of defining (and, as I have already suggested, defining properly)
the permissible uses of force, and drawing the necessary conclusions that fol-
low from that.
The task is anything but an easy one; passions run high, and high political
interests are engaged. Nor is the task straightforward, from a purely technical
point of view. One can hardly pretend for example, looking at the record to
date, that even our premier legal authority, the International Court of Justice,
has made a particularly convincing job of it. Memories are still fresh of the
Court’s surprising dictum, in its Advisory Opinion on the Wall in the Occupied
Palestinian Territory, that, as Israel did not claim that the attacks against it were
imputable to a foreign State, and as the attacks in question originated within
the Occupied Territory, Article 51 of the UN Charter “had no relevance” in the
case.123
123
Legal Consequences of the Construction of a Wall in the Occupied Palestinian Ter-
ritory, (Advisory Opinion of 9 July 2004), [2004] I.C.J. Rep. 136 at para. 103.

This dictum seemed on the face of it to limit the legal recognition of the
right of self-defence to certain kinds of security threat only—a view that looks
no less strange now than it did then. And in its most recent judgment, on
certain aspects of that especially tragic conflict in the Congo124, it is more by
its silences than by clear words that the International Court corrects the un-
fortunate aspects of its earlier decision in the Nicaragua case125. It ought now
to be regarded as not open to doubt—for reasons both of legal principle and
practical effectiveness—that the right of self-defence includes a right to respond
in all cases of the unlawful threat or use of force, without abstract distinctions
as to the source of the threat (or attack)126. This is of course without prejudice
to the question what form of response would be permissible in the particular
circumstances of individual cases.
Perhaps this is therefore a good moment to stand back and reconsider what
it is we want the legal controls on the use of force to do, as part of an interna-
tional system equipped to deal with present-day problems under present-day
conditions. That is certainly the approach taken by the UN Secretary-General’s
High-Level Panel on Threats, Challenges and Change127, and by the Secretary-
General himself in his report “In Larger Freedom”128. What they say deserves
great respect, and I will touch on it later.
III. National Interests and Common Interests
To my mind, the correct way to look at the problem is to map out the entire
area against an analytical distinction of a fundamental kind: the distinction
between the use of force in the protection of purely national interests, and
the use of force in the common interest. The idea is not a new one. It reflects
what is already in the UN Charter: in the Preamble to the Charter, it is stated
that one of the fundamental aims behind the founding of the Organization was
124
Armed Activities on the Territory of the Congo (New Application: 2002) (Demo-
cratic Republic of the Congo v. Rwanda) (2002-2005), online: http://www.I.C.J.-cij.
org/I.C.J.www/idocket/ico/icoframe.htm.
125
Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. US), Merits,
1986 I.C.J. Rep. 14 [other citations omitted].
126
See, in general, Chatham House, Principles of International Law on the Use of Force
by States in Self-Defence, ILP WP 05/01 (2005), online: Chatham House http://www.
chathamhouse.org.uk/pdf/research/il/ILPForce.doc.
127
Report of the UN Secretary-General’s High-Level Panel on Threats, Challenges and
Change, A More Secure World: Our Shared Responsibility, UN Doc. No. A/59/565 (2
December 2004), online: http://www.un.org/secureworld/.
128
Report of the Secretary-General, In Larger Freedom: Towards Development, Security
and Human Rights for All, UN Doc. No. A/59/2005 (21 March 2005), online: http://
www.un.org/largerfreedom.

PA R T I I
“to ensure, by the acceptance of principles and the institution of methods, that
armed force shall not be used, save in the common interest,” and in its coupling
with the later reservation in Article 51 that nothing in the Charter “shall impair
the inherent right of individual or collective self-defence.”
What matters however is not whether the point is new, but the enduring
framework it offers for analysing the question before us, a framework consist-
ing of: a set of principles to be accepted and of methods to be used, to ensure
that force is either used in legitimate self-defence, or in the common interest,
and not for any other purpose.
Why do I lay such stress on this basic proposition? Because the difference
between using force in self-interest, and using force in the common interest is
a fundamental one, from the conceptual point of view: it conditions the objec-
tives for which force may legitimately be used, and the methods to be followed;
and it controls, in an important way, what force may be used….
IV. Self-Defence
Distortions aside, the law of self-defence is by now well understood. It
is controlled by the twin parameters of necessity and proportionality, which
between them contain the capacity to adapt themselves to regulate both the
circumstances in which and the degree to which force can legitimately be
used129. All that is needed, in addition, is to recognise that what necessity and
proportionality measure themselves against is the threat faced by the defend-
ing State. Self-defence is designed to be the last-resort response available to a
State to dispose of a threat against itself, and it arises inherently out of the legal
nature of the State as the basic unit of international law. So self-defence is not,
and never has been, a legal justification for punishment, or for retaliation, or
for menacing deterrence; its deterrent effect lies rather in the political realm,
in the combination of the practical and rhetorical willingness to stand up for
one’s rights, within the limits allowed by law130.
And by the same token what the law allows by way of self-defence is what is
necessary and sufficient to put paid to the unlawful threat. Some have stumbled
over what they see as the paradox in the claim that self-defence following an
actual use of force may justify more force than in the original attack. But there
is no paradox, once the purpose of having a law of self-defence is taken into
129
Deriving from the Webster/Ashburton correspondence over the Caroline Incident
in 1841[other citations omitted].
130
The long-established posture of NATO; see the Nuclear Weapons Advisory Opinion,
infra note 9 at para. 48, for the International Court’s recognition that “deterrence”
is not of itself unlawful.

account. The calculus, of course, works both ways: self-defence may in some
cases find its limits in a response less severe than the original attack.
Nothing in what I have said so far should contain the least cause for surprise.
It is inherent in what lawyers are prone to use as their tablet of stone, Article
2(4) of the United Nations Charter, which proscribes the “threat” of force on
exactly the same footing as the “use” of force. And as the International Court
wisely pointed out in its Advisory Opinion on the Legality of the Threat or Use of
Nuclear Weapons, if an actual use of force would be illegal, then the threat to use
it would be equally illegal131. To which I would add “and vice versa,” from which
it simply has to follow, in my view, that the law of self-defence allows a forcible
response to an unlawful threat—so long as the response meets the requirements
both of necessity and proportionality. If the International Court said anything
different in its Judgment in the US/Nicaragua case, then it was wrong….
V. Use of Force in the Common Interest
Which brings me to the second part: the use of force in the common inter-
est. I have put the matter in those terms, rather than using the labels “humani-
tarian intervention,” “war against terrorism,” or “weapons of mass destruction,”
in order to bring out the common thread between those three very different
cases, namely that what is being thought to be achieved by the employment
of force is the vindication of a common international interest.
The threat, in other words, is not to the particular interests of a given State
or group of States, but to the well-being of international society at large. Note
that the conditioning factor is once again a “threat.” Nor should that surprise us
if we return to the United Nations Charter and remind ourselves that the first,
and also the most wide-ranging, of the trilogy of malfunctions with which the
Security Council is empowered to deal is “threats to the peace.” While “breaches
of the peace” and “acts of aggression” are relatively confined in their opera-
tion, it is in ‘threats to the peace’ that the greatest inbuilt flexibility resides, and
especially so when the issue is prevention not cure.
The important point is, however, that all of these threats imperil common
interests, not those of individual States as such. As the Secretary-General again
pointedly puts it: “As to genocide, ethnic cleansing and other such crimes against
humanity are they not also threats to international peace and security, against
which humanity should be able to look to the Security Council for protection?”
Yes indeed, is my answer—with the sole exception that the Secretary-General uses
‘threats to international peace and security’ where I have used “common interests.”
131
Legality of the Threat or Use of Nuclear Weapons (Advisory Opinion of 8 July 1996),
[1996] I.C.J. Rep. 226 at para. 47.

PA R T I I
Why he does so is obvious enough; he is moving within the textual framework

of the Charter, and specifically the provisions governing the Security Council.
Legality of the Threat or Use of Nuclear Weapons, I.C.J.

Advisory Opinion, 1996132
***
37. The Court will now address the question of the legality or illegality of
recourse to nuclear weapons in the light of the provisions of the Charter relat-
ing to the threat or use of force.
38. The Charter contains several provisions relating to the threat and use
of force. In Article 2, paragraph 4, the threat or use of force against the ter-
ritorial integrity or political independence of another State or in any other
manner inconsistent with the purposes of the United Nations is prohibited.
That paragraph provides:
“All Members shall refrain in their international relations from the threat or
use of force against the territorial integrity or political independence of any State,
or in any other manner inconsistent with the Purposes of the United Nations.”
This prohibition of the use of force is to be considered in the light of other
relevant provisions of the Charter. In Article 51, the Charter recognizes the in-
herent right of individual or collective self-defense if an armed attack occurs.
A further lawful use of force is envisaged in Article 42, whereby the Security
Council may take military enforcement measures in conformity with Chapter
VII of the Charter.
39. These provisions do not refer to specific weapons. They apply to any
use of force, regardless of the weapons employed. The Charter neither expressly
prohibits, nor permits, the use of any specific weapon, including nuclear weap-
ons. A weapon that is already unlawful per se, whether by treaty or custom,
does not become lawful by reason of its being used for a legitimate purpose
under the Charter….
46. Certain States asserted that the use of nuclear weapons in the conduct
of reprisals would be lawful. The Court does not have to examine, in this con-
text, the question of armed reprisals in time of peace, which are considered
to be unlawful. Nor does it have to pronounce on the question of belligerent
reprisals save to observe that in any case any right of recourse to such reprisals
would, like self-defense, be governed inter alia he principle of proportionality.
132
Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, I.C.J. Reports
1996, p. 226.

47. In order to lessen or eliminate the risk of unlawful attack, States some-
times signal that they possess certain weapons to use in self-defense against
any State violating their territorial integrity or political independence. Whether
a signalled intention to use force if certain events occur is or is not a “threat”
within Article 2, paragraph 4, of the Charter depends upon various factors. If
the envisaged use of force is itself unlawful, the stated readiness to use it would
be a threat prohibited under Article 2, paragraph 4. Thus it would be illegal for
a State to threaten force to secure territory from another State, or to cause it to
follow or not follow certain political or economic paths. The notions of “threat”
and “use” of force under Article 2, paragraph 4, of the Charter stand together
in the sense that if the use of force itself in a given case is illegal - for whatever
reason - the threat to use such force will likewise be illegal. In short, if it is to
be lawful, the declared readiness of a State to use force must be a use of force
that is in conformity with the Charter. For the rest, no State - whether or not
it defended the policy of deterrence - suggested to the Court that it would be
lawful to threaten to use force if the use of force contemplated would be illegal.
48. Some States put forward the argument that possession of nuclear weap-
ons is itself an unlawful threat to use force. Possession of nuclear weapons may
indeed justify an inference of preparedness to use them. In order to be effective,
the policy of deterrence, by which those States possessing or under the umbrella
of nuclear weapons seek to discourage military aggression by demonstrating that
it will serve no purpose, necessitates that the intention to use nuclear weapons
be credible. Whether this is a “threat” contrary to Article 2, paragraph 4, depends
upon whether the particular use of force envisaged would be directed against
the territorial integrity or political independence of a State, or against the Pur-
poses of the United Nations or whether, in the event that it were intended as
a means of defense, it would necessarily violate the principles of necessity and
proportionality. In any of these circumstances the use of force, and the threat to
use it, would be unlawful under the law of the Charter.
The Legality of Use of Force: Self Defense

UN Charter, Article 51
Nothing in the present Charter shall impair the inherent right of individual
or collective self-defence if an armed attack occurs against a Member of the
United Nations, until the Security Council has taken measures necessary to
maintain international peace and security. Measures taken by Members in the
exercise of this right of self-defence shall be immediately reported to the Se-

PA R T I I
curity Council and shall not in any way affect the authority and responsibility
of the Security Council under the present Charter to take at any time such ac-
tion as it deems necessary in order to maintain or restore international peace
and security.

***
190. A further confirmation of the validity as customary international law
of the principle of the prohibition of the use of force expressed in Article 2,
paragraph 4, of the Charter of the United Nations may be found in the fact
that it is frequently referred to in statements by State representatives as being
not only a principle of customary international law but also a fundamental or
cardinal principle of such law. The International Law Commission, in the course
of its work on the codification of the law of treaties, expressed the view that
‘the law of the Charter concerning the prohibition of the use of force in itself
constitutes a conspicuous example of a rule in international law having the
character of jus cogens’ (paragraph (1) of the commentary of the Commission
to Article 50 of its draft Articles on the Law of Treaties, ILC Yearbook, 1966-II,
p. 247). Nicaragua in its Memorial on the Merits submitted in the present case
states that the principle prohibiting the use of force embodied in Article 2,
paragraph 4, of the Charter of the United Nations ‘has come to be recognized
as jus cogens’. The United States, in its Counter-Memorial on the questions of
jurisdiction and admissibility, found it material to quote the views of scholars
that this principle is a ‘universal norm’, a ‘universal international law’, a ‘univer-
sally recognized principle of international law’, and a ‘principle of jus cogens’….
195. In the case of individual self-defence, the exercise of this right is subject
to the State concerned having been the victim of an armed attack. Reliance
on collective self-defence of course does not remove the need for this. There
appears now to be general agreement on the nature of the acts which can be
treated as constituting armed attacks. In particular, it may be considered to be
agreed that an armed attack must be understood as including not merely action
by regular armed forces across an international border, but also ‘the sending
by or on behalf of a State of armed bands, groups, irregulars or mercenaries,
which carry out acts of armed force against another State of such gravity as to
amount to’ (inter alia) an actual armed attack conducted by regular forces, ‘or
133

its substantial involvement therein’. This description, contained in Article 3,

paragraph (g), of the Definition of Aggression annexed to General Assembly
resolution 3314 (XXIX), may be taken to reflect customary international law.
The Court sees no reason to deny that, in customary law, the prohibition of
armed attacks may apply to the sending by a State of armed bands to the ter-
ritory of another State, if such an operation, because of its scale and effects,
would have been classified as an armed attack rather than as a mere frontier
incident had it been carried out by regular armed forces. But the Court does
not believe that the concept of ‘armed attack’ includes not only acts by armed
bands where such acts occur on a significant scale but also assistance to rebels
in the form of the provision of weapons or logistical or other support. Such
assistance may be regarded as a threat or use of force, or amount to interven-
tion in the internal or external affairs of other States. It is also clear that it is the
State which is the victim of an armed attack which must form and declare the
view that it has been so attacked. There is no rule in customary international
law permitting another State to exercise the right of collective self-defence on
the basis of its own assessment of the situation. Where collective self-defence is
invoked, it is to be expected that the State for whose benefit this right is used
will have declared itself to be the victim of an armed attack.
196. The question remains whether the lawfulness of the use of collec-
tive self-defence by the third State for the benefit of the attacked State also
depends on a request addressed by that State to the third State. A provision of
the Charter of the Organization of American States is here in point: and while
the Court has no jurisdiction to consider that instrument as applicable to the
dispute, it may examine it to ascertain what light it throws on the content of
customary international law….
199. At all events, the Court finds that in customary international law,
whether of a general kind or that particular to the inter-American legal system,
there is no rule permitting the exercise of collective self-defence in the absence
of a request by the State which regards itself as the victim of an armed attack.
The Court concludes that the requirement of a request by the State which is
the victim of the alleged attack is additional to the requirement that such a
State should have declared itself to have been attacked….
201. To justify certain activities involving the use of force, the United States
has relied solely on the exercise of its right of collective self-defence. However
the Court, having regard particularly to the non-participation of the United
States in the merits phase, considers that it should enquire whether customary
international law, applicable to the present dispute, may contain other rules
which may exclude the unlawfulness of such activities…. [T]he Court must

PA R T I I
enquire whether there is any justification for the activities in question, to be

found not in the right of collective self-defence against an armed attack, but
in the right to take counter-measures in response to conduct of Nicaragua
which is not alleged to constitute an armed attack. It will examine this point in
connection with an analysis of the principle of non-intervention in customary
international law….
229. The Court must thus consider whether, as the Respondent claims, the
acts in question of the United States are justified by the exercise of its right
of collective self-defence against an armed attack. The Court must therefore
establish whether the circumstances required for the exercise of this right of
self-defence are present and, if so, whether the steps taken by the United States
actually correspond to the requirements of international law. For the Court to
conclude that the United States was lawfully exercising its right of collective
self-defence, it must first find that Nicaragua engaged in an armed attack against
El Salvador, Honduras or Costa Rica.
230. As regards El Salvador, the Court has found (paragraph 160 above)
that it is satisfied that between July 1979 and the early months of 1981, an in-
termittent flow of arms was routed via the territory of Nicaragua to the armed
opposition in that country. The Court was not however satisfied that assistance
has reached the Salvadorian armed opposition, on a scale of any significance,
since the early months of 1981, or that the Government of Nicaragua was re-
sponsible for any flow of arms at either period. Even assuming that the supply
of arms to the opposition in El Salvador could be treated as imputable to the
Government of Nicaragua, to justify invocation of the right of collective self-
defence in customary international law, it would have to be equated with an
armed attack by Nicaragua on El Salvador. As stated above, the Court is unable
to consider that, in customary international law, the provision of arms to the
opposition in another State constitutes an armed attack on that State. Even at a
time when the arms flow was at its peak, and again assuming the participation
of the Nicaraguan Government, that would not constitute such armed attack.
231. Turning to Honduras and Costa Rica, the Court has also stated (para-
graph 164 above) that it should find established that certain trans-border
incursions into the territory of those two States, in 1982, 1983 and 1984, were
imputable to the Government of Nicaragua. Very little information is however
available to the Court as to the circumstances of these incursions or their pos-
sible motivations, which renders it difficult to decide whether they may be
treated for legal purposes as amounting, singly or collectively, to an ‘armed
attack’ by Nicaragua on either or both States. The Court notes that during the
Security Council debate in March/April 1984, the representative of Costa Rica

made no accusation of an armed attack, emphasizing merely his country’s

neutrality and support for the Contadora process (S/PV.2529, pp. 13-23); the
representative of Honduras however stated that ‘my country is the object of
aggression made manifest through a number of incidents by Nicaragua against
our territorial integrity and civilian population’ (ibid., p. 37). There are how-
ever other considerations which justify the Court in finding that neither these
incursions, nor the alleged supply of arms to the opposition in El Salvador, may
be relied on as justifying the exercise of the right of collective self-defence.
232. The exercise of the right of collective self-defence presupposes that
an armed attack has occurred; and it is evident that it is the victim State, being
the most directly aware of that fact, which is likely to draw general attention
to its plight. It is also evident that if the victim State wishes another State to
come to its help in the exercise of the right of collective self-defence, it will
normally make an express request to that effect. Thus in the present instance,
the Court is entitled to take account, in judging the asserted justification of the
exercise of collective self-defence by the United States, of the actual conduct
of El Salvador, Honduras and Costa Rica at the relevant time, as indicative of
a belief by the State in question that it was the victim of an armed attack by
Nicaragua, and of the making of a request by the victim State to the United
States for help in the exercise of collective self-defence.
233. The Court has seen no evidence that the conduct of those States was
consistent with such a situation, either at the time when the United States
first embarked on the activities which were allegedly justified by self-defence
or indeed for a long period subsequently. So far as El Salvador is concerned, it
appears to the Court that while El Salvador did in fact officially declare itself
the victim of an armed attack, and did ask for the United States to exercise its
right of collective self-defence, this occurred only on a date much later than
the commencement of the United States activities which were allegedly justi-
fied by this request. The Court notes that on 3 April 1984, the representative
of El Salvador before the United Nations Security Council, while complaining
of the ‘open foreign intervention practised by Nicaragua in our internal affairs’
(S/PV.2528, p. 58), refrained from stating that El Salvador had been subjected
to armed attack, and made no mention of the right of collective self-defence
which it had supposedly asked the United States to exercise. Nor was this
mentioned when El Salvador addressed a letter to the Court in April 1984, in
connection with Nicaragua’s complaint against the United States. It was only
in its Declaration of Intervention filed on 15 August 1984, that El Salvador
referred to requests addressed at various dates to the United States for the lat-
ter to exercise its right of collective self-defence (para. XII), asserting on this
occasion that it had been the victim of aggression from Nicaragua ‘since at

PA R T I I
least 1980’. In that Declaration, El Salvador affirmed that initially it had ‘not
wanted to present any accusation or allegation [against Nicaragua] to any of
the jurisdictions to which we have a right to apply’, since it sought ‘a solution
of understanding and mutual respect’ (para. III).
234. As to Honduras and Costa Rica, they also were prompted by the insti-
tution of proceedings in this case to address communications to the Court; in
neither of these is there mention of armed attack or collective self-defence. As
has already been noted (paragraph 231 above), Honduras in the Security Coun-
cil in 1984 asserted that Nicaragua had engaged in aggression against it, but did
not mention that a request had consequently been made to the United States
for assistance by way of collective self-defence. On the contrary, the representa-
tive of Honduras emphasized that the matter before the Security Council ‘is a
Central American problem, without exception, and it must be solved region-
ally’ (S/PV.2529, p. 38), i.e., through the Contadora process. The representative
of Costa Rica also made no reference to collective self-defence. Nor, it may be
noted, did the representative of the United States assert during that debate that
it had acted in response to requests for assistance in that context.
235. There is also an aspect of the conduct of the United States which the
Court is entitled to take into account as indicative of the view of that State on the
question of the existence of an armed attack. At no time, up to the present, has
the United States Government addressed to the Security Council, in connection
with the matters the subject of the present case, the report which is required by
Article 51 of the United Nations Charter in respect of measures which a State
believes itself bound to take when it exercises the right of individual or collective
self-defence. The Court, whose decision has to be made on the basis of custom-
ary international law, has already observed that in the context of that law, the
reporting obligation enshrined in Article 51 of the Charter of the United Nations
does not exist. It does not therefore treat the absence of a report on the part of
the United States as the breach of an undertaking forming part of the customary
international law applicable to the present dispute. But the Court is justified in
observing that this conduct of the United States hardly conforms with the latter’s
avowed conviction that it was acting in the context of collective self-defence
as consecrated by Article 51 of the Charter. This fact is all the more noteworthy
because, in the Security Council, the United States has it-self taken the view that
failure to observe the requirement to make a report contradicted a State’s claim
to be acting on the basis of collective self-defence (S/PV.2187).
236. Similarly, while no strict legal conclusion may be drawn from the date
of El Salvador’s announcement that it was the victim of an armed attack, and
the date of its official request addressed to the United States concerning the

exercise of collective self-defence, those dates have a significance as evidence

of El Salvador’s view of the situation. The declaration and the request of El
Salvador, made publicly for the first time in August 1984, do not support the
contention that in 1981 there was an armed attack capable of serving as a
legal foundation for United States activities which began in the second half of
that year. The states concerned did not behave as though there were an armed
attack at the time when the activities attributed by the United States to Nicara-
gua, without actually constituting such an attack, were nevertheless the most
accentuated; they did so behave only at a time when these facts fell furthest
short of what would be required for the Court to take the view that an armed
attack existed on the part of Nicaragua against El Salvador….
238. Accordingly, the Court concludes that the plea of collective self-de-
fence against an alleged armed attack on El Salvador, Honduras or Costa Rica,
advanced by the United States to justify its conduct toward Nicaragua, cannot
be upheld; and accordingly that the United States has violated the principle
prohibiting recourse to the threat or use of force by the acts listed in paragraph
227 above, and by its assistance to the contras to the extent that this assistance
‘involve[s] a threat or use of force’ (paragraph 228 above).

***
40. The entitlement to resort to self-defense under Article 51 is subject to
certain constraints. Some of these constraints are inherent in the very concept
of self-defense. Other requirements are specified in Article 51.
41. The submission of the exercise of the right of self-defense to the condi-
tions of necessity and proportionality is a rule of customary international law.
As the Court stated in the case concerning Military and Paramilitary Activities
in and against Nicaragua (Nicaragua v. United States of America): there is a
“specific rule whereby self-defense would warrant only measures which are
proportional to the armed attack and necessary to respond to it, a rule well
established in customary international law” (I.C.J. Reports 1986, p.94, para. 176).
This dual condition applies equally to Article 51 of the Charter, whatever the
means of force employed.
42. The proportionality principle may thus not in itself exclude the use of
nuclear weapons in self-defense in all circumstances. But at the same time, a
134
1996, p. 226.

PA R T I I
use of force that is proportionate under the law of self-defense, must, in order
to be lawful, also meet the requirements of the law applicable in armed con-
flict which comprise in particular the principles and rules of humanitarian law.
43. Certain States have in their written and oral pleadings suggested that in
the case of nuclear weapons, the condition of proportionality must be evaluated
in the light of still further factors. They contend that the very nature of nuclear
weapons, and the high probability of an escalation of nuclear exchanges, mean
that there is an extremely strong risk of devastation. The risk factor is said
to negate the possibility of the condition of proportionality being complied
with. The Court does not find it necessary to embark upon the quantification
of such risks; nor does it need to Enquirer into the question whether tactical
nuclear weapons exist which are sufficiently precise to limit those risks: it suf-
fices for the Court to note that the very nature of all nuclear weapons and the
profound risks associated therewith are further considerations to be borne in
mind by States believing they can exercise a nuclear response in self-defense
in accordance with the requirements of proportionality.
44. Beyond the conditions of necessity and proportionality, Article 51 spe-
cifically requires that measures taken by States in the exercise of the right of
self-defense shall be immediately reported to the Security Council; this article
further provides that these measures shall not in any way affect the authority
and responsibility of the Security Council under the Charter to take at any time
such action as it deems necessary in order to maintain or restore international
peace and security. These requirements of article 51 apply whatever the means
of force used in self-defense….
96. Furthermore, the Court cannot lose sight of the fundamental right of
every State to survival, and thus its right to resort to self-defence, in accordance
with Article 51 of the Charter, when its survival is at stake.
Nor can it ignore the practice referred to as “policy of deterrence,” to which
an appreciable section of the international community adhered for many years.
The Court also notes the reservations which certain nuclear-weapon States have
appended to the undertakings they have given, notably under the Protocols
to the Treaties of Tlatelolco and Rarotonga, and also under the declarations
made by them in connection with the extension of the Treaty on the Non-
Proliferation of Nuclear Weapons, not to resort to such weapons.
97. Accordingly, in view of the present state of international law viewed
as a whole, as examined above by the Court, and of the elements of fact at its
disposal, the Court is led to observe that it cannot reach a definitive conclusion
as to the legality or illegality of the use of nuclear weapons by a State in an ex-
treme circumstance of self-defense, in which its very survival would be at stake.

Ruth Wedgwood, “UN Peace Keeping Operations and the

Use of Force”135
Peacekeeping was born, if you like, in the interstices of the U.N. Charter.
The famous joke is that peacekeeping is authorized under chapter “61/2” of the
Charter – mid way between the Council’s procedures for conciliation and its
procedures for deploying force. (When my students go to the Charter and an-
nounce they can’t find chapter “61/2,” I always tell them it’s in the fine print.)
Peacekeeping was supposed to be limited in function. It was intended as an
interpositional buffer, an armed observation force, designed to discourage
adversaries from violating a ceasefire or peace agreement. But it was a mini-
mal show of force, almost a form of bird watching, boundary observation by
men who happened to wear uniforms. Peacekeepers could keep apart parties
agreeing to a truce and discourage the small provocations of night time forays
and border encounters. Having neutral observers on the border gave a bit of
dignity to the fact of separation. It gave the parties a reason why they were not
obliged to “have at” each other every foggy night….
The classical account of peacekeeping – the view of older U.N. hands such
as Sir Marrack Goulding and Sir Brian Urquhart, and the reason why some
people in the U.N. fervently believed that the organization should not go into
Bosnia – says that at least three conditions must be met for peacekeeping to
work. First, consent of the parties to peacekeepers’ presence, upon entry and
throughout the mission. Second, the minimal use of force, mustering arms only
in self-defense. And third, neutrality between the parties – for peacekeeping
was not an attempt to change the outcome of a war or conflict. (The moral
adequacy of “neutrality” has been contested when the U.N. deploys in circum-
stances where one side is the aggressor or abuses the laws of war.).…
Whether a matter of philosophy or political skittishness, the U.N. and its
members have often proved unwilling to use armed force in circumstances
where a robust deployment might be effective. This is often ascribed to mem-
ber states’ reluctance to jeopardize their forces. Failure to deploy robustly may
also signal an implicit sympathy with one of the sides in the conflict. But it is
engendered as well by an ethos of nonviolence within the United Nations itself
– a lingering doubt about the necessary use of defensive force in the interna-
tional community, perhaps a belief that the thin personality of a multilateral
organization cannot sustain the morally contentious choices that are made
by nation states in defense of their own existence136. So U.N. forces were put
135
Ruth Wedgwood, “United Nations Peacekeeping Operations and the Use of Force,”
5 Washington University Journal of Law & Policy 69 (2001).
136
When military force is not used in an intelligent and morally responsible way, it

PA R T I I
on the ground in Bosnia with the very limited mandate of delivering food and
humanitarian assistance….
The real peacekeeping lesson of the last ten years is that the idea of separat-
ing chapter 61/2 from chapter 7 is not realistic. Peacekeeping is not segregable
from robust peace enforcement. Too many situations quickly turn sour, and
one cannot always predict the course of events in advance. One almost needs
a “Powell-Weinberger” doctrine for the U.N. itself – a willingness to go in with
overwhelming force, in the confidence that the capacity to respond is the best
guarantee of cooperation. It is an illusion that the international personality of
the U.N. will suffice to deter combatants in civil conflicts, and the illusion has
repeatedly led to disaster.
Nurullah Yamali, “The Use of Force For Collective Security

and Peacekeeping at the End of the Twentieth Century”137
When the first peacekeeping operation established, the former UN Sec-
retary- General Dag Hammarskjold described peacekeeping operations as
“Chapter Six and a Half,” falling conceptually between Chapter VI and Chapter
VII of the Charter138. Indeed, the peacekeeping operations cannot be defined
as a peaceful resolution or an enforcement power.
Cox claims that “the constitutional basis of the UN peacekeeping operations
is the “broad mandate” of Article 1 of the Charter139.” Literally, in the Charter
the first purpose of the UN is described as “To maintain international peace and
security, and to that end: to take effective collective measures for the preven-
tion and removal of threats to the peace.”
According to this provision the UN has the authority to take the most effec-
tive measure in the conditions of day-to-day in order to maintain international
peace and security. In the Certain Expenses request for Advisory Opinion the
International Court of Justice adopted the same view related to the issue of
their constitutionality….
sometimes leads the international community to use other forms of coercion, such
as economic sanctions, which can be much harder on a civilian population, as we
have seen in Haiti and Iraq. Attitudes towards the discrete use of military force must
take account of the often greater cost of alternatives.
137
E-journal of Ministry of Justice, Turkey. http://www.justice.gov.tr/e-journal/pdf/
LW7042.pdf [reprinted with permission of the author].
138
Amy E. Eckert, Comment, “United Nations Peacekeeping in Collapsed States,” 5 J.
Int’l L. & Prac. 273, 282- 84 (1996).
139
Katherine E. Cox, “Beyond Self-Defense: United Nations Peacekeeping Operations
and the Use of Force,”(1999) 27 Denv. J. Int’l L. & Pol’y 239.

Besides that, the peacekeeping operations rely on three fundamental prin-

ciples that contribute to their constitutional basis. The first principle is the
solution of the issue about the legal basis for the emplacement and presence
of a peacekeeping force within a state. The emplacement and the continuous
presence of a peacekeeping operation requires the state’s consent, otherwise
it will be a violation of the Article 2 (7) of the Charter, which prevents the UN
to intervene in matters within the domestic jurisdiction of the states [citation
omitted]. A UN peacekeeping force should be “strictly impartial”140….
The last fundamental principle of the peacekeeping operations is to use of
force only in self-defense. The force of use in peacekeeping operations has two
aspects, the first is minimum use of force and the second is the use force for
self-defense only141. A clear definition of “the use of force except in self defense”
have been made in the case of UNEF I, “men engaged in the operation may
never take the initiative in the use of armed force, but are entitled to respond
with force to an attack with arms, including attempts to use of force to make
them withdraw from positions which they occupy under orders from the Com-
mander, acting under the authority of the Assembly and within the scope of its
resolutions.”142 In this definition the key point is not to take the initiative in the
use of armed force. Sloan describes this limitation as the distinction between
peacekeeping and peace enforcement143.
Anticipatory/Preemptive Use of Force

Louis-Philippe Rouillard, “The Caroline Case: Anticipatory
Self-Defense in Contemporary International Law”144
The Affair of the Caroline and the McLeod Case
The Caroline incident concerns a steamboat bearing that name used for revo-
lutionary purposes in the rebellion of Upper Canada, a Province of the Dominion
140
Viseman, H. “Peacekeeping in the International Context” in Rikhye, I.J., and Skjels-
baek, K. (ed.) “The United Nations and Peacekeeping: Results, Limits and Prospects,”
( International Peace Academy, New York, 1990) p.32.
141
Murphy, R., “United Nations Peacekeeping in Lebanon and Somalia, and the Use of
Force” 8 J. Conflict & Security L. 71 (2003).
142
Sloan, J., “The Use of Offensive Force in U.N. Peacekeeping: A Cycle of Boom and
Bust?” Hastings Int’l & Comp. L. Rev. 385 (2007).
143
Ibid.
144
Miskolc Journal of International Law. http://www.uni-miskolc.hu/~wwwdrint/mjil.
htm. Reprinted with permission of the author. [Citations omitted]

PA R T I I
of Great Britain ; nowadays the Province of Ontario, Canada. The rebellion of

1837 was rooted in the political system of cronyism that pervaded colonial
politics in the British colonies of the Canadas, both Lower and Upper. It flared
because of insensitivities of the British authorities towards the complaints of
the inhabitants of the Canada and the confrontationist attitude of the Crown.
While much have been made of the democratic and nationalistic issues of the
Quebeckers, the rebellion had more to do with a non-representative system
and underlying patronage. The rebellion of Lower Canada was over by the end
of the summer and that of Upper Canada was in disarray by December 1837.
At that time, the remnants of the rebels fled to the United States where they
tried to raise support for further continuation of the rebellion in Buffalo (New
York). This presence and threat caused to international peace between Great
Britain and the United States was known to the American authorities. Instruc-
tions were issued to the districts attorneys of Vermont, Michigan and New York
stating the President’s intention to respect its international obligations and
abstaining from any intervention in the domestic affairs of another nation [8].
On December 13, 1837 the rebel MacKenzie issued a proclamation for
rebellion and recruited American help for the invasion of Upper Canada. A
headquarter was set up on Navy island, a small island part of British territory
across the Niagara River where the shores between Canada and the United
States are at a very close point. These movements created enough attention
on the British side of the river as to have the Lieutenant-Governor of Upper
Canada send a message to the Governor of the State of New York to inform
him of the situation. No answer came back. Between the 13th and the 28th
of December, 1837, up to 300 men under the leadership of an appointed an
American ‘general’ named Van Rausselear were armed and joined the head-
quarters of the Canadian rebels on Navy Island. By the night of December
29, 1837, this force was seen growing to 1000 armed men. Reinforcements
were made through constant movements from the American shore to Navy
Island, between three in the afternoon and dusk.
Seeing the use made of the ship, Colonel Allan Napier McNab, the officer
commanding the British forces at Chippewa, judged that the destruction of
the Caroline would prevent further reinforcements to Navy Island and deprive
the rebels of their mean of invasion. He therefore ordered an expedition to
be sent out for this purpose. According to the master of the Caroline, the ship
was docked and moored at Fort Schlosser for the night with ten officers and
crew on board, as well as twenty-three Americans who asked to be permit-
ted to spend the night as they could not found lodging at the tavern nearby.
Around midnight, a force of 70 to 80 from several small boats boarded the
Caroline and commenced warfare with muskets, swords and cutlasses. The

vessel was abandoned by all hands, the only efforts of its crew being to flee.
Thus captured, the vessel was left to the possession of the British forces that
cut her loose, towed her into the current of the river, set her on fire and let
her descend the current towards the Niagara Falls, where she was destroyed.
Twelve persons were initially said to have been killed or disappeared.
As was established after investigations, it is a force of 45 men in 5 boats
under the command of Commander Andrew Drew (Royal Navy), acting upon
orders of Colonel McNab, that boarded, set fire to and let the ship descend
adrift. The place where the Caroline was moored was at Schlosser, a small
landing point in the State of New York less than 5 kilometres upstream from
the Niagara Falls, rather than Fort Schlosser, an old and abandoned American
fort of the War of 1812 between the United States and Great Britain which
was higher upstream from the falls.
Contrary to the opinions expressed at first, it is not 12 persons that died
during that night, but two: Amos Durfee, killed on the docks by a bullet in the
head, and a cabin boy known as “Little Billy,” shot while trying to escape the
Caroline. Two prisoners were made: an American citizen of 19 years old and
a Canadian fugitive. Both were let go: the American with enough money to
pay for the ferry back to the United States and the Canadian after spending
some time in the guard room at Chippewa.
On January 5, 1838, President Van Buren sent a message to Congress to
ask for full power to prevent injuries being inflicted upon neighbouring na-
tions by unlawful acts of American citizens or persons within the territories
of the United States and General Scott was sent to the frontier with letters
to the Governors of New York and Vermont, calling the militias. The rebels
were dispersed, but some continued the struggle within secret societies called
Hunters’ Lodges. This led to another short-lived rebellion in Canada in 1838,
but it was harshly and swiftly dealt with. In Canada, the impact of these rebel-
lions was the Act of the Union of both Canadas into a single province of the
Dominion, attempting to assimilate French-Canadian to diminish the likeli-
hood of another attempt. The impact on the relations of the United States
and the British Crown was one where a true settlement of the North-eastern
boundary had to be reached if war was to be averted. While the facts of the
incident could be made light of were it not for the death of two persons, they
are nonetheless of much importance as the whole doctrine of anticipatory
self-defence rest upon them.
The legal argument concerning the case started with the note sent on
January 5, 1838 by the American Secretary of State Forsyth to the British
Minister at Washington, Fox, expressing surprise and regret for this incident

PA R T I I
and warning that this incident would be made the subject of a demand for
redress. Mr. Fox replied by letter on February 6, 1838 and stated three de-
fences for the actions of the British forces, namely: 1) the piratical nature of
the vessel, 2) the fact that the ordinary laws of the United States were not
being enforced at the time, and were in fact overtly overborne by the rebels
and 3) self-defence and self-preservation. This curt response to the American
government marked an attitude of not taking the matter too seriously by the
British Authorities. This exchange prompted the report of the Law Officers,
but did not move the British Authorities to recognise any wrong-doing. This
being judged unsatisfactory by the American government, the matter was
brought up by the American ambassador in London, Stevenson, to the British
Foreign Secretary, Lord Palmerston, who promised to look into the matter.
The matter was indeed looked upon once more by the Law Officers. But their
conclusion of March 25, 1838 and added to their report of February 21, 1838,
was while the incident was regrettable, they felt that the actions of the British
Authorities were absolutely necessary for the future and not retaliation for
the past. As a result, they believed that the conduct of the British force had
been, under the circumstances, justifiable by the Law of Nations. Arguments
and reminders were made back and forth during the ensuing period, but
none led to a satisfactory settlement of the question.
Meanwhile, the relations between the two nations remained difficult. The
local population at Buffalo seemed inclined toward retaliation and conflict
was quite possible. Also, British nationals in the United States suspected of
having taken part in the events of the Caroline were made to stand Juridical
Examination on charges of participating in the attack. A man named Christie
was arrested those charges on August 23, 1838. The Queen’s Advocate, seized
of the case, counseled the British Minister in Washington, Fox, in a dispatch
dated November 6, 1838, that such an arrest cannot hold due to the fact that
the actions that Mr. Christie is accused of are acts of public persons obeying
the orders of superior authorities. Therefore, Mr. Christie could not be held
accountable for these acts even if he had taken part in them.
Following this, a Canadian deputy sheriff named Alexander McLeod
boasted of his part in the events of the Caroline during a passage through
Lewiston, New York, on November 12, 1840. Acting on his ill-advised words,
the American authorities arrested him immediately on charges of the murder
of Amos Durfee and arson in connection of the burning of the Caroline.
On December 13, 1840, Fox addressed a note to Forsyth taking again the
principles laid in the Christie case and by which public persons could not be
held accountable for acts of governments. Forsyth replied that the arrest of

McLeod was made by the authorities of the State of New York and therefore
infringement by the Federal government in the state’s sphere of jurisdiction
would not be appropriate. It is important to recall that President Van Buren
was a former governor of the State of New York and was vying for re-election
at the time of the exchange between Fox and Forsyth. The argument about
States’ jurisdiction and Federal competences was one of the most sensitive
political issues in the American Union at that precise moment. Martin Van
Buren lost the elections and the new government of William Henry Harrison
took a more pragmatic approach to the problem of relations with Great
Britain from its inaugural ceremony on March 4, 1841. Apt Minister, Fox felt
the change of Administration opportune to demand the release of Alexander
McLeod and sent a demand on March 12, 1841 to the new Secretary of State,
Daniel Webster, who took a more lenient view than his predecessor on the
matter. Indeed, the Harrison administration was of the opinion that while
the Constitution of the United States created very clear fields of jurisdiction,
the Federal Government was the one concerned with foreign relations and
as a result it is most apt to intervene with the State of New York and obtain
the release of a foreign national. Webster replied on March 15, 1841 that the
American government is guided by the opinion that an individual who acts as
part of a public force cannot answer personally for those acts. This principle
applied to criminal lawsuits as well as civil ones.
Nonetheless, a last hurdle had to be crossed before McLeod could be
released: that of judicial process. Since McLeod was accused and confined by
reason of judicial process, he could only be released in this manner, this mean-
ing that he had to be brought to courts so the prosecutor could enter a plea of
nolle prosequi – no prosecution. Webster addressed a letter to Fox on April 24,
1841 explaining that while the laws of Great Britain permitted the prosecu-
tor to enter this measure of nolle prosequi at any time during procedure, the
laws of the State of New York only permitted this during sessions of the court.
This displeased Fox immensely as he pointed out that the whole point
was not that McLeod be found not guilty but that he be not judged at all. Still,
the Supreme Court of New York refused leave to enter a nolle prosequi and
also refused a writ of habeas corpus. The only manner in which the court
could see this done was by trial by jury. The trial of The People v. McLeod
took place and no evidence of McLeod’s participation could be brought to
court. He was acquitted in October 1841.
This long delay of releasing McLeod and the still precarious relations
between the North American neighbours led Great Britain to send a Special
Minister to Washington to negotiate both issues in the person of Alexander

PA R T I I
Baring, 1st Baron of Ashburton. During the course of their negotiations, both
he and Secretary of State Webster exchanged a number of letters that formed
the root of anticipatory self-defence.
The first such recorded instance is in the letter of July 27, 1842 where
Webster expresses the notion that the principle of non-intervention is of a
salutary nature and that simple neutrality is not sufficient for the government
of the United States, and that it has therefore actively sought to prevent injury
to Great Britain in its North American Provinces. Webster position therefore
was that since the United States had respected its obligation under the Law
of Nations, it was for Great Britain to justify its actions by demonstrating a:
“necessity of self-defence, instant, overwhelming, leaving
no choice of means, and no moment for deliberation. It will
be for it to show, also, that the local authorities of Canada,-
even supposing the necessity of the moment authorized them
to enter the territories of the United States at all,-did nothing
unreasonable or excessive; since the act justified by the necessity
of self-defence, must be limited by that necessity, and kept clearly
within it. It must be strewn that admonition or remonstrance
to the persons on board the “Caroline” was impracticable, or
would have been unavailing; it must be strewn that daylight
could not be waited for; that there could be no attempt at
discrimination, between the innocent and the guilty; that it
would not have been enough to seize and detain the vessel; but
that there was a necessity, present and inevitable, for attacking
her, in the darkness of the night, while moored to the shore,
and while unarmed men were asleep on board, killing some,
and wounding others, and then drawing her into the current,
above the cataract, setting her on fire, and, careless to know
whether there might not be in her the innocent with the guilty,
or the living with the dead, committing her to a fate, which fills
the imagination with horror.”
It was clearly the belief of Webster that Ashburton could not demonstrate
this and that the terms were too strict to be interpreted in such a way as to
justify the British actions, therefore preparing the way for reparations to be
given to the United States. In this, he was sorely disappointed with the inge-
nious response of Lord Ashburton in his letter of July 28, 1842. Ashburton
assented to the conditions presented by Webster as general principles of
international law applicable to the case. He fully recognised the inviolability
of the territories of independent nations for the maintenance of peace and

order amongst nations. However, he adds that there are occasional practices,
including that of the United States, where this principle may and must be
suspended.
Ashburton sets such instances as those where, for the shortest possible
time and due to an overruling necessity and within the narrow confines of
such a necessity, self-defence may be invoked. He firstly states that self-defence
is the first law of nature and is recognised by every code that regulates the
condition and the relations of man. Doing so, he recognises fully the gen-
eral principles laid down by Webster and set his argument upon them but
establishes a difference between expeditions across national border and the
case of the Caroline. He presents the example of a situation where a man
standing on grounds where you have no legal rights to chase him presents
himself with a weapon long enough to reach you. He then asks how long
one is supposed to wait when he has asked for succour and asked for relief
and none are forwarding. By doing so, he recognised the efforts made by the
United States to prevent American taking part in the Canadian rebellion, by
underlines the inefficiency of its attempts.
Furthermore, Ashburton includes in his version of the events that the
initial efforts to capture the Caroline was to seize her in British waters at
Navy Island, and not on the American side but that since the orders of the
rebel leaders were disobeyed, the Caroline went, docked and was moored at
Schlosser point. It is only as he passed the point of Navy Island that Com-
mander Drew did not see the ship there but on the American shore and
that pursuant with his mission forged ahead. This statement addressed the
question by which not a moment was left to deliberation, that the expedi-
tion was not planned with the intent of invading American territory from
the outset by those circumstances and that the necessity of preventing the
rebels from further use of the ship as a mean of invasion overwhelmed the
normal respect of national territory.
Having recognised the general principles and explained the particulars of
the overwhelming immediacy of the decision, Ashburton then turns toward
the notion of necessity to answer the claims of Webster that nothing could
justify the attack in the middle of the night against men asleep, killing and
wounding some, then drawing the ship into the current, setting her on fire
and letting her adrift into the current to be destroyed in the falls without
knowing if guilty or innocents were on board.
Ashburton responded that the time of the night was purposely selected
to ensure that the mission would result in the least loss of life possible and
that it is the strength of the current that did not permit the vessel to be car-

PA R T I I
ried off to the Canadian side. For this reason, it became necessary to set her
on fire and drawn into the stream to prevent injury to persons or property
at Schlosser. He finishes the letter by recognizing that Her Majesty’s Govern-
ment should have apologized nonetheless for the matter, but that it does
not make it wrongful in itself. And further continues to support that the
treatment of individuals made personally responsible for acts of government
was as unacceptable.
Webster responded to this note on August 6, 1842. In his letter, he further
reaffirms the criterion laid in his letter of July 27 and while agreeing with
the matters of apologies still recognised the general principles debated but
still did not corroborate the facts of the case. Nonetheless, satisfied with the
apologies, the President stipulated through Webster that this matter would
not be brought forward again.
As a result the affair of the Caroline in 1837 and the subsequent case of
The People vs. McLeod have established principles now firmly entrenched
in ius ad bellum and ius in bello. In the case of the laws of armed conflicts,
McLeod’s case has confirmed the separation between public acts and indi-
vidual responsibility. With regards to the right to use force in international
law, the affair of the Caroline case has once again confirmed the right of
self-defence and, more importantly, has established clear criterion for its
invocation and that of anticipatory self-defence.
“Legality of Use of Force Against Iraq,” Legal Opinion by

Public Interest Lawyers on Behalf of Peacerights145
Introduction and Summary of Advice
1. We are instructed by Peacerights to give an opinion on the legality of
the use of force by the United Kingdom against Iraq. In particular, we are
asked to consider whether:
(1) the right of self-defence would justify the use of force against
Iraq by the United Kingdom;
(2) Iraq’s alleged failure to comply with all or any of the existing
23 UN Security Council resolutions would justify the use of
force by the United Kingdom; and
(3) a further UN Security Council resolution would be required.
145
Rabinder Singh QC and Alison Macdonald, Matrix Chambers, Gray’s Inn London.
WC1R 5LN. 10 September, 2002. [Reprinted with permission of the author].

2. In summary, our opinion is that:

(1) The use of force against Iraq would not be justified under
international law unless:
(a) Iraq mounted a direct attack on the United Kingdom
or one of its allies and that ally requested the United
Kingdom’s assistance; or
(b) an attack by Iraq on the United Kingdom or one of its
allies was imminent and could be averted in no way
other than by the use of force; or
(c) the United Nations Security Council authorised the use
of force in clear terms.
(2) Iraq has not attacked the United Kingdom, and no evidence is
currently available to the public that any attack is imminent.
(3) Our view is that current Security Council resolutions do not
authorise the use of force against Iraq. Such force would
require further authorisation from the Security Council.
(4) At present the United Kingdom is therefore not entitled, in
international law, to use force against Iraq.
Factual Background
3. The factual background can be outlined briefly. The United States is
publicly considering the use of force against Iraq. This use of force would
appear to have the aims of:
(1) destroying such stores of nuclear, chemical, biological and
other weapons of mass destruction as Iraq may have; and
(2) bringing about a change of leadership. The United States
appears to consider such action to be justified on the basis of
the right to carry out a pre-emptive strike in self-defence, the
right to respond in self-defence against an armed attack, (in this
case the attacks on 11 September 2001), and/or on the basis
of current resolutions of the United Nations Security Council.
4. The United Kingdom Government is currently considering whether to
support any such action by itself joining in the use of force against Iraq but,
according to Government statements, no decision has yet been taken. The
Prime Minister, speaking on 3 September 2002, stated that he plans to pub-
lish a dossier in the next few weeks. This would set out the evidence against
Iraq and the arguments in favour of intervention. The Prime Minister relies

PA R T I I
strongly on the fact that Iraq has breached resolutions of the UN Security
Council, which he appears to consider justifies military action.
5. The factual background to these decisions is unclear to the public. Such
information as the United Kingdom has about Iraq’s military capabilities and
Saddam Hussein’s intentions is not available to the public….
The Use of Force in International Law
6. The United Nations Charter provides the framework for the use of force
in international law. Almost all States are parties to this Charter, including
Iraq, the United Kingdom and the United States. The Charter emphasises
that peace is the fundamental aim of the Charter, and is to be preserved if
at all possible. The preamble expresses a determination ‘to save succeeding
generations from the scourge of war’, ‘to practise tolerance and live together
in peace with one another as good neighbours’, ‘to unite our strength to
maintain international peace and security’, and to ensure ‘that armed force
shall not be used, save in the common interest.’
7. Article 1 of the Charter sets out the United Nations’ purposes, the first
of which is: ‘To maintain international peace and security; and to that end: to
take effective collective measures for the prevention and removal of threats
to the peace, and for the suppression of acts of aggression or other breaches
of the peace, and to bring about by peaceful means, and in conformity with
the principles of justice and international law, adjustment or settlement of
international disputes or situations which might lead to a breach of the peace.’
8. The other provisions of the Charter must be interpreted in accordance
with this aim: see the 1969 Vienna Convention on the Law of Treaties, Article
31, which provides that a (Johannesburg, that they consider that the return
of weapons inspectors to Iraq is ‘still possible’.) treaty must be interpreted in
accordance with its objects and purposes, including its preamble.
9. The Charter goes on to set out two fundamental principles:
‘2(3) All Members shall settle their international disputes by
peaceful means in such a manner that international peace
and security, and justice, are not endangered.
2(4) All Members shall refrain in their international relations
from the threat or use of force against the territorial integrity
or political independence of any state, or any other manner
inconsistent with the Purposes of the United nations.’
10. Article 2(4) has been described by the International Court of Justice
(I.C.J.) as a peremptory norm of international law, from which States cannot

derogate (Nicaragua v United States, [1986] I.C.J. Reports 14, at para 190). The
effect of Articles 2(3) and 2(4) is that the use of force can only be justified
as expressly provided under the Charter, and only in situations where it is
consistent with the UN’s purposes.
11. The Charter authorises the use of force in the situations set out in
Chapter VII. Article 42 states that, if peaceful means have not succeeded in
obtaining adherence to Security Council decisions, it ‘may take such action
by air, sea or land forces as may be necessary to maintain or restore inter-
national peace and security.’ In effect, this means that States require a UN
Security Council resolution in order to use force against another State (subject
to Article 51: see below). Force is only justified where there are no peaceful
means available for resolving the dispute. We stress that, in our view, where
Members believe that another State has breached a resolution of the Security
Council, they do not have a unilateral right under Article 42 to use force to
secure adherence to it or to punish that State: what action should be taken
is a matter for the Security Council.
12. Article 51 of the Charter reserves States’ rights to self-defence. This
right is additional to the provisions of Article 42. A State does not require a
Security Council resolution in order to defend itself by force but even the
right of self-defence is subject to action by the Security Council, as is clear
from the terms of Article 51: ‘Nothing in the present Charter shall impair
the inherent right of individual or collective self-defence if an armed attack
occurs against a member of the United Nations, until the Security Council
has taken measures necessary to maintain international peace and security.
Measures taken by Members in the exercise of this right of self-defence shall
be immediately reported to the Security Council and shall not in any way
affect the authority and responsibility of the Security Council under the pres-
ent Charter to take at any time such action as it deems necessary in order to
maintain or restore international peace and security.’
13. As exceptions to the fundamental principle of the prohibition on the
use of force, Articles 42 and 51 must be interpreted narrowly.
14. According to the UN Charter, there are only two situations in which
one State can lawfully use force against another:
(1) In individual or collective self-defence (a right under
customary international law, which is expressly preserved
by Article 51 of the Charter).
(2) Pursuant to a UN Security Council resolution.
15. In this Opinion, we do not review any of the arguments about the

PA R T I I
legality of the use of force by the United States. We consider only the argu-
ments directly relating to the United Kingdom.
16. We take it to be uncontroversial that the United Kingdom has not been
the subject of any direct attack which could even arguably be linked with
Iraq. It is clear that the right of self-defence in response to an armed attack
does not arise. The only possible justification is as an anticipatory form of
self-defence against a future threat. We turn to consider whether such a right
is known to international law. Is there a right of anticipatory self-defence in
international law?
17. Article 51 of the Charter is silent about whether ‘self-defence’ includes
the pre-emptive use of force, in addition to the use of force in response to
an attack. In order to answer the question, other conventional sources of
international law must be used, including state practice and the works of
learned writers on international law….
18. State practice is ambiguous, but tends to suggest that the anticipa-
tory use of force is not generally considered lawful, or only in very pressing
circumstances. There are numerous examples of States claiming to have used
force in anticipatory self-defence, and being condemned by the international
community. Examples of state practice are given by Professor Antonio Cassese,
former President of the International Criminal Tribunal for the Former Yu-
goslavia, in International Law, (Oxford, 2001) at 309-31. One particularly
relevant example is the international reaction to an Israeli bombing attack
on an Iraqi nuclear reactor:
“When the Israeli attack on the Iraqi nuclear reactor was discussed in the
[Security Council], the USA was the only State which (implicitly) indicated that
it shared the Israeli concept of self-defence. In addition, although it voted for
the SC resolution condemning Israel (resolution 487/1991), it pointed out after
the vote that its attitude was only motivated by other considerations, namely
Israel’s failure to exhaust peaceful means for the resolution of the dispute. All
other members of the SC expressed their disagreement with the Israeli view,
by unreservedly voting in favour of operative paragraph 1 of the resolution,
whereby ‘[the SC] strongly condemns the military attack by Israel in clear viola-
tion of the Charter of the UN and the norms of international conduct.’ Egypt
and Mexico expressly refuted the doctrine of anticipatory self-defence. It is
apparent from the statements of these States that they were deeply concerned
that the interpretation they opposed might lead to abuse. In contrast, Britain,
while condemning ‘without equivocation’ the Israeli attack as ‘a grave breach
of international law’, noted that the attack was not an act of self-defence. Nor
[could] it be justified as a forcible measure of self protection.” (p310).

19. Cassese concludes that, ‘[i]f one undertakes a perusal of State practice
in the light of Article 31 of the Vienna Convention on the Law of Treaties,
it becomes apparent that such practice does not evince agreement among
States regarding the interpretation or the application of Article 51 with regard
to anticipatory self-defence.’ (International Law (Oxford, 2001) at p309).
20. Oppenheim states that:
‘while anticipatory action in self-defence is normally unlawful, it is not
necessarily unlawful in all circumstances, the matter depending on the facts
of the situation including in particular the seriousness of the threat and the
degree to which pre-emptive action is really necessary and is the only way of
avoiding that serious threat; the requirements of necessity and proportional-
ity are probably even more pressing in relation to anticipatory self-defence
than they are in other circumstances.’ (R Jennings QC and A Watts QC (eds),
Oppenheim’s International Law: Ninth Edition1991 pp41-42).146
21. Detter states that, ‘it must be emphasised that anticipatory force
falls under the prohibition of force in Article 2(4) of the Charter entailing a
presumption that it is illegal. A mere threat of attack thus does not warrant
military action...’ (The Law of War, Second Edition, (Cambridge, 2000), p86)….
23. In conclusion, we are of the view that States may have the right to defend
themselves by using force to pre-empt an imminent and serious attack. However,
such use of force would have to be in accordance with the general rules and
principles governing self-defence. These are well summarised by Oppenheim:
‘The development of the law, particularly in the light of more recent state
practice, in the 150 years since the Caroline incident suggests that action,
even if it involves the use of armed force and the violation of another state’s
territory, can be justified as self-defence under international law where:
(a) an armed attack is launched, or is immediately threatened,
against a state’s territory or forces (and probably its nationals);
(b) there is an urgent necessity for defensive action against that
attack;
(c) there is no practicable alternative to action in self-defence,
and in particular another state or other authority which has
the legal powers to stop or prevent the infringement does
not, or cannot, use them to that effect;
146
It should be noted that Sir Robert Jennings was the British Judge on the I.C.J. and
was its President.

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(d) the action taken by way of self-defence is limited to what

is necessary to stop or prevent the infringement, i.e. to the
needs of defence…’ (p412, emphasis added)
24. These principles would apply to the anticipatory use of force just as
to any other use of force in self-defence.
Is anticipatory self-defence justified in this case?
25. Although it is not clear that international law recognises the right
to use anticipatory force in self-defence, we have concluded above that, if
there is such a right, it only exists in situations of great emergency, as set out
by Oppenheim.
26. The evidence about the level and nature of threat presented by Iraq
to other countries is not clear. There may well be evidence which is not in
the public domain. The United Kingdom Government has not so far made
clear the extent of the risk posed by Iraq, making it difficult for the public
to engage in informed debate on the issue. The burden of proof is on the
Government to demonstrate the existence of a pressing and direct threat. It
would also need to show that there is no effective alternative to the use of
force. The lack of any effective alternative to force is difficult to demonstrate
while Iraq offers to negotiate with the weapons inspectorate.
27. It is clear from the above discussion of the law of self-defence that the
capacity to attack, combined with an unspecified intention to do so in the
future, is not sufficiently pressing to justify the pre-emptive use of force. The
threat must at least be imminent. However, the degree of proximity required
must also, we consider, be proportionate to the severity of the threat. A threat
to use very serious weapons – nuclear weapons being the obvious example
– could justify an earlier use of defensive force than might be justified in the
case of a less serious threat. However, the existence of the threat, regardless of
how serious that threat may be, must still be supported by credible evidence.
Such evidence has not so far been made available, although some evidence
may be provided when the United Kingdom government publishes its dossier.
“The Consequences for the World Legal Order of The War

on Iraq,” Noel Cox147
Pre-emptive self-defence?
The US-led coalition finally took action in March 2003, acting partly in
reliance on article 51 of the UN Charter. The international legal standard
147
New Zealand Armed Forces Law Review. p.11-17, 2003. [Citations omitted].

for whether a particular use of force is justified in self-defence comes from

an 1837 incident where British subjects destroyed an American ship, the
Caroline, in a US port, because the Caroline had been used in American raids
into Canadian territory. The British claimed the attack was in self-defence.
Through an exchange of diplomatic notes, the dispute was resolved in favour
of the Americans. US Secretary of State Daniel Webster urged the following
definition of self-defence, which the British accepted:
There must be a necessity of self-defence, instant, overwhelming, leav-
ing no choice of means, and no moment for deliberation. [The means of
self-defence must involve] nothing unreasonable or excessive; since the act,
justified by the necessity of self-defence, must be limited by that necessity,
and kept clearly within it.
Clearly the US action against Iraq in 2003 could not satisfy this test, unless
there was evidence that Iraq intended using weapons of mass destruction on
its neighbours or the US itself. If that was the case, the UN arms inspectors
did not uncover clear evidence of it. Nor have subsequent US investigations
disclosed clear evidence of the presence of these weapons in Iraq at the
relevant time.
Until the Caroline case, self-defence was a political justification for what,
from a legal perspective, were ordinary acts of war. The positivist international
law of the 19th century rejected natural law distinctions between just and
unjust wars. Military aggression was unregulated and conquest gave good title
to territory.(43) The Caroline case did nothing to prevent aggression, but it
did draw a legal distinction between aggressive war and military action in
self-defence. As long as the act being defended against was not itself an act
of war, peace would be maintained – a matter of considerable importance to
relatively weak states, as the United States then was – and Iraq was in 2003.
However, the Bush doctrine makes no attempt to satisfy the criteria of
the Caroline case; there is no suggestion of waiting for a ‘necessity of self-
defence’ that is ‘instant, overwhelming, leaving no choice of means, and no
moment of deliberation’. The US President is not ‘reserving a right’ to respond
to imminent threats; he is seeking an extension of the right of self-defence
to include action against potential future dangers. The distinction between
a state of war, and a state of peace, is thereby blurred.
It has been argued that the right of self-defence should not be seen as
having been restricted by the UN Charter:
The history of Article 51 suggests ... that the article should safeguard the
right of self-defence, not restrict it ... furthermore, it is a restriction [no right

PA R T I I
of anticipation] which bears no relation to the realities of a situation which

may arise prior to an actual attack and call for self-defense immediately if it
is to be of any avail at all. No state can be expected to await an initial attack
which, in the present state of armaments, may well destroy the state’s capacity
for further resistance and so jeopardise its very existence.
However, it would seem that there must still be the elements of urgency,
immediacy and the absence of credible alternatives to war. A modern version
of the Caroline approach is described in Oppenheim’s International Law.
The development of the law, particularly in the light of more recent state
practice, in the 150 years since the Caroline incident suggests that action,
even if it involves the use of armed force and the violation of another state’s
territory, can be justified as self-defence under international law where:
an armed attack is launched, or is immediately threatened,
against a state’s territory or forces (and probably its nationals);
there is an urgent necessity for defensive action against that
attack;
there is no practicable alternative to action in self-defence,
and in particular another state or other authority which has the
legal powers to stop or prevent the infringement does not, or
cannot, use them to that effect;
the action taken by way of self-defence is limited to what is
necessary to stop or prevent the infringement, i.e. to the needs
of defence …(emphasis added)
Iraq had not attacked any state, nor is there any evidence whatever that
an attack by Iraq was imminent. Therefore self-defence did not justify the use
of force against Iraq by the United States or any state. Potential capacity to
attack the US, real or imagined, is an insufficient basis for action. Furthermore,
article 51 requires that any exercise of self-defence is subject to the Security
Council taking measures to maintain international peace and security, and
indeed requires that any action in self-defence be reported to the Security
Council.
Even if one puts article 51 aside, self-defence would appear to require,
as a bare minimum, credible evidence of not merely capacity to strike, but
also of an intention to do so, on the part of the government of the state to
be attacked in pre-emptive self-defence.

CHAPTER 2 HUMAN RIGHTS
CHAPTER 2
HUMAN RIGHTS
Introduction
What are Human Rights?
Overview of Office of the High Commissioner for Human

Rights (OHCHR)148
Human rights are rights inherent to all human beings, whatever our na-
tionality, place of residence, sex, national or ethnic origin, colour, religion,
language, or any other status. We are all equally entitled to our human rights
without discrimination. These rights are all interrelated, interdependent and
indivisible.
Universal human rights are often expressed and guaranteed by law, in the
forms of treaties, customary international law, general principles and other
sources of international law. International human rights law lays down obli-
gations of Governments to act in certain ways or to refrain from certain acts,
in order to promote and protect human rights and fundamental freedoms
of individuals or groups.
Universal and inalienable
The principle of universality of human rights is the cornerstone of inter-
national human rights law. This principle, as first emphasized in the Univer-
sal Declaration on Human Rights in 1948, has been reiterated in numerous
international human rights conventions, declarations, and resolutions. The
1993 Vienna World Conference on Human Rights, for example, noted that
it is the duty of States to promote and protect all human rights and funda-
mental freedoms, regardless of their political, economic and cultural systems.
All States have ratified at least one, and 80% of States have ratified four
or more, of the core human rights treaties, reflecting consent of States which
148
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org/en/issues/Pages/WhatareHumanRights.aspx.

PA R T I I
creates legal obligations for them and giving concrete expression to univer-
sality. Some fundamental human rights norms enjoy universal protection by
customary international law across all boundaries and civilizations.
Human rights are inalienable. They should not be taken away, except in
specific situations and according to due process. For example, the right to
liberty may be restricted if a person is found guilty of a crime by a court of law.
Interdependent and indivisible
All human rights are indivisible, whether they are civil and political rights,
such as the right to life, equality before the law and freedom of expression;
economic, social and cultural rights, such as the rights to work, social security
and education , or collective rights, such as the rights to development and
self-determination, are indivisible, interrelated and interdependent. The im-
provement of one right facilitates advancement of the others. Likewise, the
deprivation of one right adversely affects the others.
Equal and non-discriminatory
Non-discrimination is a cross-cutting principle in international human
rights law. The principle is present in all the major human rights treaties and
provides the central theme of some of international human rights conven-
tions such as the International Convention on the Elimination of All Forms
of Racial Discrimination and the Convention on the Elimination of All Forms
of Discrimination against Women.
The principle applies to everyone in relation to all human rights and free-
doms and it prohibits discrimination on the basis of a list of non-exhaustive
categories such as sex, race, colour and so on. The principle of non-discrim-
ination is complemented by the principle of equality, as stated in Article 1 of
the Universal Declaration of Human Rights: “All human beings are born free
and equal in dignity and rights.”
Both Rights and Obligations
Human rights entail both rights and obligations. States assume obliga-
tions and duties under international law to respect, to protect and to fulfill
human rights. The obligation to respect means that States must refrain from
interfering with or curtailing the enjoyment of human rights. The obligation
to protect requires States to protect individuals and groups against human
rights abuses. The obligation to fulfill means that States must take positive
action to facilitate the enjoyment of basic human rights. At the individual
level, while we are entitled our human rights, we should also respect the
human rights of others.

Development of International Human Rights Law149

The international human rights movement was strengthened when the
United Nations General Assembly adopted of the Universal Declaration of
Human Rights (UDHR) on 10 December 1948. Drafted as ‘a common stan-
dard of achievement for all peoples and nations’, the Declaration for the
first time in human history spell out basic civil, political, economic, social
and cultural rights that all human beings should enjoy. It has over time been
widely accepted as the fundamental norms of human rights that everyone
should respect and protect. The UDHR, together with the International Cov-
enant on Civil and Political Rights and its two Optional Protocols, and the
International Covenant on Economic, Social and Cultural Rights, form the
so - called International Bill of Human Rights.
A series of international human rights treaties and other instruments
adopted since 1945 have conferred legal form on inherent human rights
and developed the body of international human rights. Other instruments
have been adopted at the regional level reflecting the particular human rights
concerns of the region and providing for specific mechanisms of protection.
Most States have also adopted constitutions and other laws which formally
protect basic human rights. While international treaties and customary law
form the backbone of international human rights law other instruments, such
as declarations, guidelines and principles adopted at the international level
contribute to its understanding, implementation and development. Respect
for human rights requires the establishment of the rule of law at the national
and international levels.
International human rights law lays down obligations which States are
bound to respect. By becoming parties to international treaties, States assume
obligations and duties under international law to respect, to protect and to
fulfill human rights. The obligation to respect means that States must refrain
from interfering with or curtailing the enjoyment of human rights. The ob-
ligation to protect requires States to protect individuals and groups against
human rights abuses. The obligation to fulfill means that States must take
positive action to facilitate the enjoyment of basic human rights.
Through ratification of international human rights treaties, governments
undertake to put into place domestic measures and legislation compatible
with their treaty obligations and duties. Where domestic legal proceedings fail
to address human rights abuses, mechanisms and procedures for individual
149
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complaints or communications are available at the regional and international

levels to help ensure that international human rights standards are indeed
respected, implemented, and enforced at the local level.
The International Bill of Human Rights

Fact Sheet No.2 (Rev.1)150
All human beings are born free and equal in dignity and rights. They are
endowed with reason and conscience and should act towards one another in
a spirit of brotherhood.
UNIVERSAL DECLARATION OF HUMAN RIGHTS
Adopted by General Assembly resolution 217 A (III) of 10 December 1948.
Background
The International Bill of Human Rights consists of the Universal Declara-
tion of Human Rights, the International Covenant on Economic, Social and
Cultural Rights, and the International Covenant on Civil and Political Rights
and its two Optional Protocols.
Human rights had already found expression in the Covenant of the League
of Nations, which led, inter alia, to the creation of the International Labour
Organisation. At the 1945 San Francisco Conference, held to draft the Charter
of the United Nations, a proposal to embody a “Declaration on the Essential
Rights of Man” was put forward but was not examined because it required
more detailed consideration than was possible at the time. The Charter clearly
speaks of “promoting and encouraging respect for human rights and for
fundamental freedoms for all without distinction as to race, sex, language
or religion” (Art. 1, para. 3). The idea of promulgating an “international bill
of rights” was also considered by many as basically implicit in the Charter.
The Preparatory Commission of the United Nations, which met immedi-
ately after the closing session of the San Francisco Conference, recommended
that the Economic and Social Council should, at its first session, establish a
commission for the promotion of human rights as envisaged in Article 68
of the Charter.
Accordingly, the Council established the Commission on Human Rights
early in 1946.At its first session, in 1946, the General Assembly considered a
draft Declaration on Fundamental Human Rights and Freedoms and transmit-
150
OHCHR available at: http://www.ohchr.org/Documents/Publications/
FactSheet2Rev.1en.pdf.

ted it to the Economic and Social Council “for reference to the Commission
on Human Rights for consideration . . . in its preparation of an international
bill of rights” (resolution 43 (I)). The Commission, at its first session early in
1947, authorized its officers to formulate what it termed “a preliminary draft
International Bill of Human Rights.” Later the work was taken over by a formal
drafting committee, consisting of members of the Commission from eight
States, selected with due regard for geographical distribution.
Towards the Universal Declaration
In the beginning, different views were expressed about the form the
bill of rights should take. The Drafting Committee decided to prepare two
documents: one in the form of a declaration, which would set forth general
principles or standards of human rights; the other in the form of a conven-
tion, which would define specific rights and their limitations. Accordingly,
the Committee transmitted to the Commission on Human Rights draft ar-
ticles of an international declaration and an international convention on
human rights. At its second session, in December 1947, the Commission
decided to apply the term “International Bill of Human Rights” to the series
of documents in preparation and established three working groups: one on
the declaration, one on the convention (which it renamed “covenant”) and
one on implementation. The Commission revised the draft declaration at its
third session, in May/June 1948, taking into consideration comments received
from Governments. It did not have time, however, to consider the covenant
or the question of implementation. The declaration was therefore submitted
through the Economic and Social Council to the General Assembly, meet-
ing in Paris. By its resolution 217 A (III) of 10 December 1948, the General
Assembly adopted the Universal Declaration of Human Rights as the first of
these projected instruments.
Towards the International Covenants
On the same day that it adopted the Universal Declaration, the General
Assembly requested the Commission on Human Rights to prepare, as a matter
of priority, a draft covenant on human rights and draft measures of imple-
mentation. The Commission examined the text of the draft covenant in 1949
and the following year it revised the first 18 articles, on the basis of comments
received from Governments. In 1950, the General Assembly declared that “the
enjoyment of civic and political freedoms and of economic, social and cultural
rights are interconnected and interdependent” (resolution 421 (V), sect. E). The
Assembly thus decided to include in the covenant on human rights economic,
social and cultural rights and an explicit recognition of the equality of men
and women in related rights, as set forth in the Charter. In 1951, the Commis-

PA R T I I
sion drafted 14 articles on economic, social and cultural rights on the basis of
proposals made by Governments and suggestions by specialized agencies. It
also formulated 10 articles on measures for implementation of those rights
under which States parties to the covenant would submit periodic reports.
After a long debate at its sixth session, in 1951/1952, the General Assembly
requested the Commission “to draft two Covenants on Human Rights, . . . one
to contain civil and political rights and the other to contain economic, social
and cultural rights” (resolution 543 (VI), para. 1). The Assembly specified that
the two covenants should contain as many similar provisions as possible. It also
decided to include an article providing that “all peoples shall have the right of
self-determination” (resolution 545 (VI)).The Commission completed prepa-
ration of the two drafts at its ninth and tenth sessions, in 1953 and 1954.The
General Assembly reviewed those texts at its ninth session, in 1954, and decided
to give the drafts the widest possible publicity in order that Governments might
study them thoroughly and that public opinion might express itself freely. It
recommended that its Third Committee start an article-by-article discussion
of the texts at its tenth session, in 1955. Although the article-by-article discus-
sion began as scheduled, it was not until 1966 that the preparation of the two
covenants was completed.
The International Covenant on Economic, Social and Cultural Rights and
the International Covenant on Civil and Political Rights were adopted by the
General Assembly by its resolution 2200 A (XXI) of 16 December 1966. The
first Optional Protocol to the International Covenant on Civil and Political
Rights, adopted by the same resolution, provided international machinery
for dealing with communications from individuals claiming to be victims of
violations of any of the rights set forth in the Covenant.
Worldwide influence of the International Bill of Human Rights
From 1948, when the Universal Declaration of Human Rights was adopted
and proclaimed, until 1976, when the International Covenants on Human
Rights entered into force, the Declaration was the only completed portion of
the International Bill of Human Rights. The Declaration, and at a later stage
the Covenants, exercised a profound influence on the thoughts and actions
of individuals and their Governments in all parts of the world.
The International Conference on Human Rights, which met at Teheran
from 22 April to 13 May 1968 to review the progress made in the 20 years
since the adoption of the Universal Declaration and to formulate a pro-
gramme for the future, solemnly declared in the Proclamation of Teheran:
1. It is imperative that the members of the international community fulfill
their solemn obligations to promote and encourage respect for human rights

and fundamental freedoms for all without distinctions of any kind such as
race, colour, sex, language, religion, political or other opinions;
2. The Universal Declaration of Human Rights states a common under-
standing, of the peoples of the world concerning the inalienable and invio-
lable rights of all members of the human family and constitutes an obligation
for the members of the international community;
3. The International Covenant on Civil and Political Rights, the Interna-
tional Covenant on Economic, Social and Cultural Rights, the Declaration on
the Granting of Independence to Colonial Countries and Peoples, the Inter-
national Convention on the Elimination of All Forms of Racial Discrimination
as well as other conventions and declarations in the field of human rights
adopted under the auspices of the United Nations, the specialized agencies
and the regional intergovernmental organizations, have created new stan-
dards and obligations to which States should conform;…
Thus, for more than 25 years, the Universal Declaration on Human Rights
stood alone as an international “standard of achievement for all peoples and
all nations.” It became known and was accepted as authoritative both in States
which became parties to one or both of the Covenants and in those which
did not ratify or accede to either. Its provisions were cited as the basis and
justification for many important decisions taken by United Nations bodies;
they inspired the preparation of a number of international human rights
instruments, both within and outside the United Nations system; they exer-
cised a significant influence on a number of multilateral and bilateral treaties;
and they had a strong impact as the basis for the preparation of many new
national constitutions and national laws.
Treaty Bodies
Human Rights Treaty Bodies: Monitoring the Core
International Human Rights Treaties151
What are the treaty bodies?
The human rights treaty bodies are committees of independent experts that
monitor implementation of the core international human rights treaties. They
are created in accordance with the provisions of the treaty that they monitor.
151
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english/bodies/treaty/index.htm.

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There are nine human rights treaty bodies and the Subcommittee on
Prevention of Torture (SPT):
The Human Rights Committee (CCPR) monitors implementa-
tion of the International Covenant on Civil and Political Rights
(1966) and its optional protocols;
The Committee on Economic, Social and Cultural Rights (CE-
SCR) monitors implementation of the International Covenant on
Economic, Social and Cultural Rights (1966);
The Committee on the Elimination of Racial Discrimination
(CERD) monitors implementation of the International Conven-
tion on the Elimination of All Forms of Racial Discrimination
(1965);
The Committee on the Elimination of Discrimination Against
Women (CEDAW) monitors implementation of the Convention
on the Elimination of All Forms of Discrimination against Women
(1979) and its optional protocol (1999);
The Committee Against Torture (CAT) monitors implementa-
tion of the Convention against Torture and Other Cruel, Inhuman
or Degrading Treatment (1984);
The Committee on the Rights of the Child (CRC) monitors
implementation of the Convention on the Rights of the Child
(1989) and its optional protocols (2000); and
The Committee on Migrant Workers (CMW) monitors imple-
mentation of the International Convention on the Protection of
the Rights of All Migrant Workers and Members of Their Families
(1990).
The Committee on the Right of Persons with Disabilities
(CRPD) monitors implementation of the International Conven-
tion on the Rights of Persons with Disabilities (2006).
The Committee on Enforced Disappearance (CED) monitors
implementation of the International Convention for the Protec-
tion of All Persons from Enforced Disappearance (2006)
Each treaty body receives secretariat support from the Human Rights
Treaties Branch of OHCHR in Geneva. CEDAW, which was supported until 31
December 2007 by the Division for the Advancement of Women (DAW), meets
once a year in New York at United Nations Headquarters. Similarly, the Human

Rights Committee usually holds its session in March/April in New York. The
other treaty bodies meet in Geneva, either at Palais Wilson or Palais des Nations.
What do the treaty bodies do?
The treaty bodies perform a number of functions in accordance with the
provisions of the treaties that created them. These include:
• Consideration of State parties’ reports
• Consideration of individual complaints or communications
They also publish general comments on the treaties and organize discus-
sions on related themes.
Consideration of State parties’ reports
When a country ratifies one of these treaties, it assumes a legal obligation
to implement the rights recognized in that treaty. But signing up is only the
first step, because recognition of rights on paper is not sufficient to guarantee
that they will be enjoyed in practice. So the country incurs an additional ob-
ligation to submit regular reports to the monitoring committee set up under
that treaty on how the rights are being implemented. This system of human
rights monitoring is common to most of the UN human rights treaties.
To meet their reporting obligation, States must report submit an initial
report usually one year after joining (two years in the case of the CRC) and
then periodically in accordance with the provisions of the treaty (usually
every four or five years). In addition to the government report, the treaty
bodies may receive information on a country’s human rights situation from
other sources, including non-governmental organizations, UN agencies,
other intergovernmental organizations, academic institutions and the press.
In the light of all the information available, the Committee examines the
report together with government representatives. Based on this dialogue,
the Committee publishes its concerns and recommendations, referred to as
“concluding observations.”
Consideration of individual complaints or communications
In addition to the reporting procedure, some of the treaty bodies may
perform additional monitoring functions through three other mechanisms:
the inquiry procedure, the examination of inter-state complaints and the
examination of individual complaints.
Four of the Committees (CCPR, CERD, CAT and CEDAW) can, under
certain conditions, receive petitions from individuals who claim that their
rights under the treaties have been violated.

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General Comments
The Committees also publish their interpretation of the content of hu-
man rights provisions, known as general comments on thematic issues or
methods of work.
Meeting of chairpersons and inter-committee meeting
The treaty bodies coordinate their activities through the annual meeting of
chairpersons of human rights treaty bodies and through the inter-committee
meeting. The treaty bodies are continually seeking ways to enhance their
effectiveness through streamlining and harmonization of working methods
and practices.
Constitution of the Kyrgyz Republic: Human Rights

Provisions152
***
Article 6
1. The Constitution shall have supreme legal force and direct application
in the Kyrgyz Republic.
2. The Constitution shall serve the basis for the adoption of constitutional
laws, laws as well as other regulatory legal acts.
3. International treaties to which the Kyrgyz Republic is a party that
have entered into force under the established legal procedure and also the
universally recognized principles and norms of international law shall be the
constituent part of the legal system of the Kyrgyz Republic.
The provisions of international treaties on human rights shall have direct
action and be of priority in respect of provisions of other international treaties.
[The Kyrgyz Constitution has been redrafted several times. Consider the
Opinion on the following page of the Venice Commission.]
152
Adopted by popular referendum June 10, 2010 and entered into force July 10,
2010.

Opinion on the Draft Constitution of the Kyrgyz

Republic153
***
4. Section II: Fundamental rights
16. The Venice Commission welcomes the provision of Article 6, which
provides that International treaties on human rights have a direct effect. But,
it is not clear whether these treaties have a higher hierarchical status than
Kyrgyz laws. Furthermore, the effect of other treaties on the Kyrgyz legal sys-
tem in cases of conflict remains unclear. It would be advisable to point out
that international treaties ratified by the Kyrgyz Republic have precedence
over Kyrgyz laws. It would also be helpful to accept as a general rule that all
norms have to be interpreted in the light of international human rights trea-
ties ratified by Kyrgyzstan.
17. The section on human rights and freedoms deserves praise for its
far-reaching promises. In relation to the 2007 version, this version is edited
more clearly, since the various rights are set out in different articles instead
of being paragraphs or sub-paragraphs in one in two simple articles. This
part of the Constitution includes a catalogue of guarantees the protection
of human rights, which seems to fully correspond to international standards.
International Human Rights Norms

International Covenant on Civil and Political Rights
(ICCPR)154
***
Principle of Non-Discrimination
Article 2
1. Each State Party to the present Covenant undertakes to respect and
to ensure to all individuals within its territory and subject to its jurisdiction
the rights recognized in the present Covenant, without distinction of any
153
Adopted by the Venice Commission of the Council of Europe at its 83rd Plenary
Session (Venice, 4 June 2010), http://www.venice.coe.intCDL-AD.
154
International Covenant on Civil and Political Rights, General Assembly resolution
2200A (XXI), GAOR (Supp. (No. 16) at 52), U.N. Doc. A/6316 (1966), 999 U.N.T.S.
171, entered into force Mar. 23, 1976.

PA R T I I
kind, such as race, colour, sex, language, religion, political or other opinion,
national or social origin, property, birth or other status.
Article 3
The States Parties to the present Covenant undertake to ensure the equal
right of men and women to the enjoyment of all civil and political rights set
forth in the present Covenant….
Article 26
All persons are equal before the law and are entitled without any dis-
crimination to the equal protection of the law. In this respect, the law shall
prohibit any discrimination and guarantee to all persons equal and effective
protection against discrimination on any ground such as race, colour, sex,
language, religion, political or other opinion, national or social origin, prop-
erty, birth or other status.
Shirin Aumeeruddy-Cziffra, et. al. v. Mauritius, Decision

of the Human Rights Committee, 1981155
1.1. The authors [Shirin Aumeeruddy-Cziffra and 19 other Mauritian
women] … claim that the enactment of the Immigration (Amendment) Act,
1977, and the Deportation (Amendment) Act, 1977, by Mauritius constitutes
discrimination based on sex against Mauritian women, violation of the right to
found a family and home, and removal of the protection of the courts of law,
in breach of articles 2, 3, 4, 17, 23, 25 and 26 of the International Covenant
on Civil and Political Rights. The authors claim to be victims of the alleged
violations. They submit that all domestic remedies have been exhausted….
7.1. The Human Rights Committee bases its view on the following facts,
which are not in dispute:
7.2 Up to 1977, spouses (husbands and wives) of Mauritian citizens had
the right of free access to Mauritius and enjoyed immunity from deportation.
They had the right to be considered de facto as residents of Mauritius. The
coming into force of the Immigration (Amendment) Act, 1977, and of the
Deportation (Amendment) Act, 1977, limited these rights to the wives of
Mauritius citizens only. Foreign husbands must apply to the Minister of the
Interior for a residence permit and in case of refusal of the permit they have
no possibility to seek redress before a court of law.
155
Shirin Aumeeruddy-Cziffra and 19 other Mauritian women v. Mauritius, Communica-
tion No. 35/1978, Human Rights Committee, U.N. Doc. CCPR/C/OP/1 at 67 (1984).

7.3 Seventeen of the co-authors are unmarried. Three of the co-authors

were married to foreign husbands when, owing to the coming into force of
the Immigration (Amendment) Act, 1977, their husbands lost the residence
status in Mauritius which they had enjoyed before. Their further residence
together with their spouses in Mauritius is based under the statute on a lim-
ited, temporary residence permit to be issued in accordance with section 9
of the Immigration (Amendment) Act, 1977. This residence permit is subject
to specified conditions which might at any time be varied or cancelled by a
decision of the Minister of the Interior, against which no remedy is available. In
addition, the Deportation (Amendment) Act, 1977, subjects foreign husbands
to a permanent risk of being deported from Mauritius. [The Committee finds
that only these three of the co-authors have a valid claim of discrimination].
7.4. In the case of Mrs. Aumeeruddy-Cziffra, one of the three married
co-authors, more than three years have elapsed since her husband applied
to the Mauritian authorities for a residence permit, but so far no formal deci-
sion has been taken. If her husband’s application were to receive a negative
decision, she would be obliged to choose between either living with her
husband abroad and giving up her political career, or living separated from
her husband in Mauritius and there continuing to participate in the conduct
of public affairs of that country….
8.1 The Committee has to consider, in the light of these facts, whether
any of the rights set forth in the Covenant on Civil and Political Rights have
been violated with respect to the authors by Mauritius when enacting and
applying the two statutes in question. The Committee has to decide whether
these two statutes, by subjecting only the foreign husband of a Mauritian
woman—but not the foreign wife of a Mauritian man—to the obligation to
apply for a residence permit in order to enjoy the same rights as before the
enactment of the statutes, and by subjecting only the foreign husband to
the possibility of deportation, violate any of the rights set forth under the
Covenant, and whether the authors of the communication may claim to be
victims of such a violation….
9.2 (b) 1 The Committee will next examine that part of the communica-
tion which relates to the effect of the laws of 1977 on the family life of the
three married women.
9.2 (b) 2 The Committee notes that several provisions of the Covenant
are applicable in this respect. For reasons which will appear below, there is
no doubt that they are actually affected by these laws, even in the absence of
any individual measure of implementation (for instance, by way of a denial
of residence, or an order of deportation, concerning one of the husbands).

PA R T I I
Their claim to be “victims” within the meaning of the Optional Protocol has
to be examined.
9.2 (b) 2 (i) 1 First, their relationships to their husbands clearly belong
to the area of “family” as used in article 17 (1) of the Covenant. They are
therefore protected against what that article calls “arbitrary or unlawful in-
terference” in this area.
9.2 (b) 2 (i) 2 The Committee takes the view that the common residence
of husband and wife has to be considered as the normal behaviour of a
family. Hence, and as the State party has admitted, the exclusion of a person
from a country where close members of his family are living can amount to
an interference within the meaning of article 17. In principle, article 17 (1)
applies also when one of the spouses is an alien. Whether the existence and
application of immigration laws affecting the residence of a family member
is compatible with the Covenant depends on whether such interference is
either “arbitrary or unlawful” as stated in article 17 (1), or conflicts in any
other way with the State party’s obligations under the Covenant.
9.2 (b) 2 (i) 3 In the present cases, not only the future possibility of de-
portation, but the existing precarious residence situation of foreign husbands
in Mauritius represents, in the opinion of the Committee, an interference by
the authorities of the State party with the family life of the Mauritian wives
and their husbands. The statutes in question have rendered it uncertain for
the families concerned whether and for how long it will be possible for them
to continue their family life by residing together in Mauritius. Moreover, as
described above (para. 7.4) in one of the cases, even the delay for years, and
the absence of a positive decision granting a residence permit, must be seen
as a considerable inconvenience, among other reasons because the granting
of a work permit, and hence the possibility of the husband to contribute to
supporting the family, depends on the residence permit, and because depor-
tation without judicial review is possible at any time.
9.2 (b) 2 (i) 4 Since, however, this situation results from the legislation
itself, there can be no question of regarding this interference as “unlawful”
within the meaning of article 17 (1) in the present cases. It remains to be
considered whether it is “arbitrary” or conflicts in any other way with the
Covenant.
9.2 (b) 2 (i) 5 The protection owed to individuals in this respect is subject
to the principle of equal treatment of the sexes which follows from several
provisions of the Covenant. It is an obligation of the State parties under article
2 (1) generally to respect and ensure the rights of the Covenant “without
distinction of any kind, such as ... (inter alia) sex,” and more particularly under

article 3 “to ensure the equal right of men and women to the enjoyment” of
all these rights, as well as under article 26 to provide “without any discrimi-
nation” for “the equal protection of the law.”
9.2 (b) 2 (i) 6 The authors who are married to foreign nationals are suf-
fering from the adverse consequences of the statutes discussed above only
because they are women. The precarious residence status of their husbands,
affecting their family life as described, results from the 1977 laws which do
not apply the same measures of control to foreign wives. In this connection
the Committee has noted that under section 16 of the Constitution of Mau-
ritius sex is not one of the grounds on which discrimination is prohibited….
10.1 Accordingly, the Human Rights Committee acting under article 5 (4)
of the Optional Protocol to the International Covenant on Civil and Political
Rights, is of the view that the facts…disclose violations of the Covenant, in
particular of articles 2 (1), 3 and 26 in relation to articles 17 (1) and 23 (1)…,
because the coming into force of the Immigration (Amendment) Act, 1977,
and the Deportation (Amendment) Act, 1977, resulted in discrimination
against [the three married women] on the ground of sex.…
11. The Committee, accordingly, is of the view that the State party should
adjust the provisions of the Immigration (Amendment) Act, 1977 and of the
Deportation (Amendment) Act, 1977 in order to implement its obligations
under the Covenant, and should provide immediate remedies for the victims
of the violations found above.
Human Rights Committee, General Comment 18156
Non-discrimination
(Thirty-seventh session, 1989)
1. Non-discrimination, together with equality before the law and equal
protection of the law without any discrimination, constitute a basic and
general principle relating to the protection of human rights. Thus, article
2, paragraph 1, of the International Covenant on Civil and Political Rights
obligates each State party to respect and ensure to all persons within its ter-
ritory and subject to its jurisdiction the rights recognized in the Covenant
without distinction of any kind, such as race, colour, sex, language, religion,
political or other opinion, national or social origin, property, birth or other
status. Article 26 not only entitles all persons to equality before the law as
156
U.N. Doc. HRI/GEN/1/Rev.6 at 146 (2003).

PA R T I I
well as equal protection of the law but also prohibits any discrimination
under the law and guarantees to all persons equal and effective protection
against discrimination on any ground such as race, colour, sex, language,
religion, political or other opinion, national or social origin, property, birth
or other status.
2. Indeed, the principle of non-discrimination is so basic that article 3
obligates each State party to ensure the equal right of men and women to the
enjoyment of the rights set forth in the Covenant. While article 4, paragraph
1, allows States parties to take measures derogating from certain obligations
under the Covenant in time of public emergency, the same article requires,
inter alia, that those measures should not involve discrimination solely on
the ground of race, colour, sex, language, religion or social origin. Further-
more, article 20, paragraph 2, obligates States parties to prohibit, by law, any
advocacy of national, racial or religious hatred which constitutes incitement
to discrimination.
3. Because of their basic and general character, the principle of non-
discrimination as well as that of equality before the law and equal protection
of the law are sometimes expressly referred to in articles relating to particular
categories of human rights. Article 14, paragraph 1, provides that all persons
shall be equal before the courts and tribunals, and paragraph 3 of the same
article provides that, in the determination of any criminal charge against
him, everyone shall be entitled, in full equality, to the minimum guarantees
enumerated in subparagraphs (a) to (g) of paragraph 3. Similarly, article 25
provides for the equal participation in public life of all citizens, without any
of the distinctions mentioned in article 2.
4. It is for the States parties to determine appropriate measures to imple-
ment the relevant provisions. However, the Committee is to be informed about
the nature of such measures and their conformity with the principles of non-
discrimination and equality before the law and equal protection of the law.
5. The Committee wishes to draw the attention of States parties to the
fact that the Covenant sometimes expressly requires them to take measures
to guarantee the equality of rights of the persons concerned. For example,
article 23, paragraph 4, stipulates that States parties shall take appropriate
steps to ensure equality of rights as well as responsibilities of spouses as to
marriage, during marriage and at its dissolution. Such steps may take the
form of legislative, administrative or other measures, but it is a positive duty
of States parties to make certain that spouses have equal rights as required
by the Covenant. In relation to children, article 24 provides that all children,
without any discrimination as to race, colour, sex, language, religion, national

or social origin, property or birth, have the right to such measures of pro-
tection as are required by their status as minors, on the part of their family,
society and the State.
6. The Committee notes that the Covenant neither defines the term “dis-
crimination” nor indicates what constitutes discrimination….
7. While these conventions deal only with cases of discrimination on
specific grounds, the Committee believes that the term “discrimination” as
used in the Covenant should be understood to imply any distinction, exclu-
sion, restriction or preference which is based on any ground such as race,
colour, sex, language, religion, political or other opinion, national or social
origin, property, birth or other status, and which has the purpose or effect of
nullifying or impairing the recognition, enjoyment or exercise by all persons,
on an equal footing, of all rights and freedoms.
8. The enjoyment of rights and freedoms on an equal footing, however,
does not mean identical treatment in every instance. In this connection, the
provisions of the Covenant are explicit. For example, article 6, paragraph 5,
prohibits the death sentence from being imposed on persons below 18 years
of age. The same paragraph prohibits that sentence from being carried out on
pregnant women. Similarly, article 10, paragraph 3, requires the segregation
of juvenile offenders from adults. Furthermore, article 25 guarantees certain
political rights, differentiating on grounds of citizenship….
10. The Committee also wishes to point out that the principle of equal-
ity sometimes requires States parties to take affirmative action in order to
diminish or eliminate conditions which cause or help to perpetuate dis-
crimination prohibited by the Covenant. For example, in a State where the
general conditions of a certain part of the population prevent or impair their
enjoyment of human rights, the State should take specific action to correct
those conditions. Such action may involve granting for a time to the part of
the population concerned certain preferential treatment in specific matters
as compared with the rest of the population. However, as long as such action
is needed to correct discrimination in fact, it is a case of legitimate differen-
tiation under the Covenant….

PA R T I I
Right to Life
Yekaterina Pavlovna Lantsova v. Russia, Decision of the
Human Rights Committee, 2002157
1. The author of the communication is Yekaterina Pavlovna Lantsova,
mother of Vladimir Albertovich Lantsov, deceased. Mrs. Lantsova claims that
her son, who was born on 27 June 1969, was a victim of violations by Russia
of article 6, paragraph 1, article 7 and article 10, paragraph 1 of the Interna-
tional Covenant on Civil and Political Rights. She is represented by counsel….
The facts as presented by the author
2.1 In August 1994, Mr. Lantsov, during an argument, inflicted injuries on
another person, as a consequence of which both criminal and civil charges
were pressed against him. On 1 March 1995, he made full reparation to the
plaintiff for damages determined in the civil case. Awaiting his criminal trial,
set for 13 April 1995, Mr. Lantsov was initially released. However, on 5 March
1995, after failing to appear for a meeting with the investigator, he was placed
pre-trial detention at Moscow’s pre-trial detention centre, ‘Matrosskaya
Tishina’, where he died on 6 April 1995, at the age of 25.
2.2 Mrs. Lantsova submits that her son was healthy when he first entered
Matrosskaya Tishina, but that he fell ill due to the very poor conditions at the
prison. She complains that her son was given no medical treatment despite
repeated requests. Finally, she complains that the Russian Federation has
failed to bring those responsible to justice.158
2.3 The author submits that the conditions at Moscow’s pre-trial deten-
tion centres are inhuman, in particular because of extreme overcrowding,
poor ventilation, inadequate food and appalling hygiene. She refers to the
1994 report of the Special Rapporteur against torture to the Commission
on Human Rights [UN doc. E/CN.4/1995/34/Add.l], Regarding access to
health care, the report states that overcrowding exacerbates the inability
of the staff to provide food and health care, and notes the high incidence
of disease in the centres. Matrosskaya Tishina is held out for particular
157
Yekaterina Pavlovna Lantsova v. Russia, Communication No. 763/1997, 26 March
2002, Human Rights Committee, U.N. Doc. A/57/40 (26 March 2002). [Citations
omitted].
158
The communication also indicates that notification of Mr. Lantsov’s death was
not given to the family or to the local registry office until 11 April 1995, after Mr.
Lantsov’s lawyer had discovered the fact of his death while at the detention centre
to meet with him.

criticism in the report: ‘The conditions are cruel, inhuman and degrading;
they are torturous’ [para. 71].
2.4 According to Mrs. Lantsova, based on statements from other detainees
in the cell with her son, shortly after he was brought to Matrosskaya Tishina
his physical and mental state began to deteriorate. He began to lose weight
and developed a temperature. He was coughing and gasping for breath. Sev-
eral days before his death he stopped eating and drank only cold water. He
became delirious at some point and eventually lost consciousness.
2.5 It appears that other detainees requested medical assistance for Mr.
Lantsov some time after the first week of his detention, that a medical doctor
attended to him once or twice in the cell and that he was given aspirin for
his temperature. However, between 3 and 6 April, during what was a rapid
and obvious deterioration in his condition, he received no medical attention,
despite repeated requests for assistance by the other detainees. On 6 April,
after the other detainees cried out for assistance, medical personnel arrived
with a stretcher. Mr. Lantsov died later that day in the prison clinic. His death
certificate identifies the cause of death as ‘acute cardiac/circulatory insuf-
ficiency, intoxication, cachexia of unknown etiology’.
2.6 …Mrs. Lantsov has made timely and repeated applications for a criminal
investigation to be opened, but these were consistently denied. She therefore
concludes that she has exhausted domestic remedies.
2.7 The procurator’s decisions refusing to open a criminal investigation
are based on the conclusion that the death in this case resulted from a com-
bination of pneumonia and the stressful conditions of confinement, and
that under these circumstances it would be impossible to find the detention
centre personnel liable….
The complaint
3. Mrs. Lantsova claims that the Russian Federation violated her son’s
fundamental human rights by causing his death as a result of confinement
under conditions unfit for human survival, and that it also failed in its ob-
ligation to provide any meaningful legal protection against such violations.
In her opinion, this constitutes violations of articles 6, paragraph 1, article 7
and article 10, paragraph 1 of the Covenant….
The State party’s observations on the merits of the communication
6.1 In its observations on the merits of the communication, dated 28
December 1998, the State party states that Mr. Lantsov was arrested on 5
March 1995 and that on 7 March 1995 he was moved to a pre-trial detention

PA R T I I
centre and placed in a communal cell. On being admitted to the detention

centre he underwent medical examinations, in accordance with the estab-
lished procedure. At that time he expressed no complaints about his health,
no physical anomaly was noted and a fluoroscopic examination of the chest
showed no pathological condition. On 6 April 1995, at about 9 a.m., Mr.
Lantsov’s fellow detainees informed the guards that he was not feeling well.
After an examination by the duty doctor, Mr. Lantsov was urgently admitted
to the hospital attached to the detention centre, but despite these measures
he died at 9.15 a.m. A commission composed of doctors from the preventive
medicine institutions attached to the Ministry of the Interior and the Moscow
Department of Health carried out an investigation into Mr. Lantsov’s death.
Its conclusions were that the cause of death had been bilateral ulcerative
pneumococcic pneumonia, bilateral pleurisy and focal atelectasis leading
to respiratory-cardiovascular failure. The general inflammation of the lungs
and the pleural cavity, the patient’s failure to seek medical assistance and
conditions in the prison had, in the State party’s opinion, contributed to the
rapid fatal outcome.
6.2 The State party admits that at the time when Mr. Lantsov was detained,
the detention centres [...] held more than twice as many detainees as their
design capacity, with the result that conditions of detention were not con-
sistent with the regulations in force. The commission of inquiry concluded
that there had been no medical error. The diagnosis of the causes of death
had been confirmed in the post-mortem report prepared on 13 May 1995.
6.3 In the absence of an offence, the Office of the Interregional Procura-
tor for Moscow-Preobrajenskaya, the public prosecution department, did not
initiate criminal proceedings. This decision was subsequently confirmed by
the Moscow Procurator’s Office. During the review of the case it was estab-
lished that the family had not been notified of the death promptly and that
the officer concerned had been held accountable.
6.4 The State party admits that, generally speaking, conditions in detention
centres constitute a serious problem for Russia and that there is no prospect
of an immediate solution. A set of measures to reform the prison system has
been established, with a view to improving conditions in the detention centres
and bringing them into line with international standards for the treatment
of prisoners. The State party cites two presidential edicts and a government
decree as examples of recent steps towards the transfer of responsibility for
prison establishments from the Ministry of the Interior to the Ministry of
Justice. An increase in the number of places in detention centres and prisons
was under way, but was being impeded by financial difficulties….

Issues and proceedings before the Committee

8.2 The Committee must determine whether the State party violated
articles 6, paragraph 1, article 7 and 10, paragraph 1 of the Covenant in con-
nection with the death of the author’s son….
9.1 Regarding the conditions of detention, the Committee notes that the
State party concedes that prison conditions were bad and that detention
centre at the time of the events held twice the intended number of inmates.
The Committee also notes the specific information received from the author,
in particular that the prison population was, in fact, five times the allowed
capacity and that the conditions in Matrosskaya Tishina prison were inhuman,
because of poor ventilation, inadequate food and hygiene. The Committee
finds that holding the author’s son in the conditions prevailing at this prison
during that time entailed a violation of his rights under article 10, paragraph
1 of the Covenant.
9.2 Concerning the death of Mr. Lantsov, the Committee notes the author’s
allegations, on the strength of testimony by several fellow detainees, that after
the deterioration of the health of the author’s son, he received medical care
only during the last few minutes of his life, that the prison authorities had
refused such care during the preceding days and that this situation caused
his death. It also takes note of the information provided by the State party,
namely that several inquiries were carried out into the causes of the death, i.e.
acute pneumonia leading to cardiac insufficiency, and that Mr. Lantsov had
not requested medical assistance. The Committee affirms that it is incumbent
on States to ensure the right of life of detainees, and not incumbent on the
latter to request protection. The stated intention of the State party to improve
conditions has no impact in the assessment of this case. The Committee notes
that the State party has not refuted the causal link between the conditions of
the detention of Mr. Lantsov and the fatal deterioration of his state of health.
Further, even if the Committee starts from the assertion of the State party
that neither Mr. Lantsov himself nor his co-detainees had requested medical
help in time, the essential fact remains that the State party by arresting and
detaining individuals takes the responsibility to care for their life. It is up to
the State party by organizing its detention facilities to know about the state
of health of the detainees as far as may be reasonably expected. Lack of finan-
cial means cannot reduce this responsibility. The Committee considers that a
properly functioning medical service within the detention centre could and
should have known about the dangerous change in the state of health of Mr.
Lantsov. It considers that the State party failed to take appropriate measures
to protect Mr. Lantsov’s life during the period he spent in the detention

PA R T I I
centre. Consequently, the Human Rights Committee concludes that, in this

case, there has been a violation of paragraph 1 of article 6 of the Covenant.
9.3 In the light of the above findings of violations of article 6 and article
10 of the Covenant. The Committee does not consider it necessary to pro-
nounce itself on a violation of article 7….
10. The Human Rights Committee, acting under article 5 (4) of the Op-
tional Protocol to the International Covenant on Civil and Political Rights, is
of the view that the State party failed in its obligation to ensure the protec-
tion of Mr. Lantsov, who lost his life as a direct result of the existing prison
conditions. The Committee finds that articles 6, paragraph 1, and article 10,
paragraph 1 of the Covenant were violated.
11. The Committee is of the view that Mrs. Lantsova is entitled, under
article 2, paragraph 3 (a) of the Covenant, to an effective remedy. The State
party should take effective measures: (a) to grant appropriate compensa-
tion (b) to order an official inquiry into the death of Mr. Lantsov; and (c) to
ensure that similar violations do not recur in the future, especially by taking
immediate steps to ensure that conditions of detention are compatible with
the State party’s obligation under articles 6 and 10 of the Covenant.
Human Trafficking
Modern-Day Slavery
Human Trafficking, OSCE Fact Sheet159

According to recent minimum estimates by the International Labour Orga-
nization, 2.5 million people are trafficked worldwide, of which approximately
500,000 are within the OSCE region. Globally, children represent between 40
per cent and 50 per cent of victims.
The essential element of trafficking is the exploitation of people in con-
ditions amounting to slavery. Trafficked persons are held in unfamiliar and
isolated environments where they are forced to work under violence, threat
or subtle means of coercion, often to pay back an insurmountable debt.
These people often do not speak the language, are unaware of their rights,
are deprived of their documents, and depend heavily on their exploiters for
159
Office of the Special Representative and Co-ordinator for Combating Trafficking
in Human Beings, OSCE, public doc. available at: http://www.osce.org/cthb/74755.

food and lodging, as well as for making contact with the outside world. They
are not free to leave, as they have no real and acceptable alternative but to
submit to exploitation.
People are trafficked for:
• Sexual exploitation;
• Labour exploitation, including domestic servitude;
• Other purposes, including forced begging, forced criminality
and the removal of organs.
Trafficking in human beings still remains greatly misunderstood and
is insufficiently addressed in both policy and practice. Although signifi-
cant progress has been made during the past ten years, there is still much
work to be done in the areas of prevention, prosecution and protection
of victims’ rights.
The number of arrests, prosecutions and convictions of traffickers re-
mains low, in stark contrast to the estimated number of victims. Too often,
such victims remain unidentified, and many are deported or even prosecuted
for criminal activities in which they have been involved as a direct result of
having been trafficked. Trafficking in human beings is a gross violation of
human rights, fundamental freedoms and human dignity, and is often a form
of violence against women.
Trafficking in human beings is also largely a business of organized crime,
which has reached a massive scale and generates huge profits. Trafficking
therefore thrives upon and feeds corruption, and undermines the rule of law
and economic stability. It constitutes a real threat to the lives and well-being
of citizens and society at large.
As a consequence, trafficking is nowadays a serious transnational threat
to security in the OSCE region and beyond….
What is the smuggling of migrants?160
Awareness of the constituent elements of the smuggling of migrants and
related conduct is a prerequisite for identifying, investigating and prosecuting
the crime. Article 3 of the Smuggling of Migrants Protocol defines smuggling
of migrants as:
160
UNDOC Basic training manual on investigating and prosecuting the smuggling
of migrants, Module 1: Concepts and categories of the smuggling of migrants and
related conduct (2010).

PA R T I I
“The procurement, in order to obtain, directly or indirectly, a financial

or other material benefit, of the illegal entry of a person into a State Party of
which the person is not a national.”
Article 6 of the Protocol requires the criminalization of this conduct.
In addition, article 6 requires States to criminalize the following conduct:
“Enabling a person who is not a national or a permanent resident to
remain in the State concerned without complying with the necessary require-
ments for legally remaining in the State” by illegal means.
What is not smuggling of migrants?
It is important to underline that the criminalization only covers those
who profit from the smuggling of migrants and related conduct through
financial or other material gain. The interpretative notes for the official re-
cords of the negotiations of the Smuggling of Migrants Protocol highlight
that the criminalization should not cover persons such as family members
or nongovernmental or religious groups that facilitate the illegal entry of
migrants for humanitarian or non-profit reasons.
The Smuggling of Migrants Protocol does not intend to criminalize mi-
gration as such. In this regard, article 5 states that the migrants themselves
must not be held responsible for the crime of smuggling only because of
having been smuggled:
“Migrants shall not become liable to criminal prosecution under this
Protocol for the fact of having been the object of conduct set forth in article
6 of this Protocol.”
This article was included to make it explicit that no one should be penal-
ized with reference to this Protocol for having been smuggled.
It should also be noted that refugees often have to rely on smugglers to
flee persecution, serious human rights violations or conflict. They should not
be criminalized for making use of smugglers or for their illegal entry (article
31 of the 1951 Convention relating to the Status of Refugees1 and article
19 of the Smuggling of Migrants Protocol, United Nations, Treaty Series, vol.
189, No. 2545).

Self-Determination
General Comment 12, Human Rights Committee, Treaty
Body for the International Covenant on Civil and Political
Rights161
The right to self-determination of peoples
1. In accordance with the purposes and principles of the Charter of the
United Nations, article 1 of the International Covenant on Civil and Political
Rights recognizes that all peoples have the right of self-determination. The
right of self-determination is of particular importance because its realiza-
tion is an essential condition for the effective guarantee and observance of
individual human rights and for the promotion and strengthening of those
rights. It is for that reason that States set forth the right of self-determination
in a provision of positive law in both Covenants and placed this provision as
article 1 apart from and before all of the other rights in the two Covenants.
2. Article 1 enshrines an inalienable right of all peoples as described in its
paragraphs 1 and 2. By virtue of that right they freely “determine their politi-
cal status and freely pursue their economic, social and cultural development.”
The article imposes on all States parties corresponding obligations. This right
and the corresponding obligations concerning its implementation are inter-
related with other provisions of the Covenant and rules of international law.
3. Although the reporting obligations of all States parties include article 1,
only some reports give detailed explanations regarding each of its paragraphs.
The Committee has noted that many of them completely ignore article 1, pro-
vide inadequate information in regard to it or confine themselves to a refer-
ence to election laws. The Committee considers it highly desirable that States
parties’ reports should contain information on each paragraph of article 1.
4. With regard to paragraph 1 of article 1, States parties should describe
the constitutional and political processes which in practice allow the exercise
of this right.
5. Paragraph 2 affirms a particular aspect of the economic content of the
right of self-determination, namely the right of peoples, for their own ends,
freely to “dispose of their natural wealth and resources without prejudice to
any obligations arising out of international economic cooperation, based upon
161
Article 1 (Twenty-first session, 1984), Compilation of General Comments and
General Recommendations Adopted by Human Rights Treaty Bodies, U.N. Doc.
HRI/GEN/1/Rev.6 at 134 (2003).

PA R T I I
the principle of mutual benefit, and international law. In no case may a people
be deprived of its own means of subsistence.” This right entails corresponding
duties for all States and the international community. States should indicate any
factors or difficulties which prevent the free disposal of their natural wealth
and resources contrary to the provisions of this paragraph and to what extent
that affects the enjoyment of other rights set forth in the Covenant.
6. Paragraph 3, in the Committee’s opinion, is particularly important in
that it imposes specific obligations on States parties, not only in relation
to their own peoples but vis-à-vis all peoples which have not been able to
exercise or have been deprived of the possibility of exercising their right to
self-determination. …
United Nations General Assembly Resolution 2649 on Self-

Determination 162
The General Assembly
Emphasizing the importance of the universal realization of the right of
peoples to self-determination and of the speedy granting of independence
to colonial countries and peoples for the effective guarantee and observance
of human rights,
Concerned that many peoples are still denied the right to self-determi-
nation and are still subject to colonial and alien domination,
Regretting that the obligations undertaken by States under the Charter
of the United Nations and the decisions adopted by United Nations bodies
have not proved sufficient to attain respect for the right of peoples to self-
determination in all cases,…
1. Affirms the legitimacy of the struggle of peoples under colonial and alien
domination recognized as being entitled to the right of self-determination to
restore to themselves that right by any means at their disposal;
2. Recognizes the right of peoples under colonial and alien domination in
the legitimate exercise of their right to self-determination to seek and receive
all kinds of moral and material assistance, in accordance with the resolutions
of the United Nations and the spirit of the Charter of the United Nations;
3. Calls upon all Governments that deny the right to self-determination
of peoples under colonial and alien domination to recognize and observe
162
General Assembly resolution 2649, of 30 November 1970, GAOR (25th Sess., Supp.
No. 27), UN Doc. A/RES/2649.

that right in accordance with the relevant international instruments and the
principles and spirit of the Charter;
4. Considers that the acquisition and retention of territory in contra-
vention of the right of the people of that territory to self-determination is
inadmissible and a gross violation of the Charter;
5. Condemns those Governments that deny the right to self-determination
of peoples recognized as being entitled to it, especially of the peoples of
southern Africa and Palestine;
6. Requests the Commission on Human Rights to study, at its twenty-sev-
enth session, the implementation of the United Nations resolutions relating
to the right of peoples under colonial and alien domination to self-determi-
nation, and to submit its conclusions and recommendations to the General
Assembly, through the Economic and Social Council, as soon as possible.
1915th plenary meeting,
30 November 1970.
“Self-Determination and Conflict Resolution: From Kosovo

to Sudan,” The Honorable Louise Arbour163
Introduction
…Crisis Group has dealt with a variety of situations in the last several years
where conflict, including armed conflict, was triggered either by the purported
exercise of the right to self-determination, or by efforts to resist it. In many
cases secession claims are rooted in a history of repression, exclusionary vi-
sions of governance, or the denial of rights to minority groups. I mentioned
Kosovo, Sri Lanka and Sudan, but I could just as easily have included Monte-
negro – where we have supported independence; Northern Iraq – we have
defended the unity and territorial integrity of Iraq; or Abkhazia, South Ossetia,
Nagorno-Karabakh, Somaliland, Aceh or Kashmir – where we have avoided
taking explicit positions either for or against secession.
The international legal framework
The thrust of my argument starts from the basis that neither the right
to self-determination nor the principle of territorial integrity can a priori
163
President and CEO of the International Crisis Group, Excerpt of speech to the
Carnegie Council for Ethics in International Affairs, 22 September 2010. The Hon-
orable Ms. Arbour is the former United Nations High Commissioner for Human
Rights and before that served as a Justice on the Supreme Court of Canada.

PA R T I I
trump each other. Only by understanding when – and how – the right to self-
determination applies can we effectively put in place processes which stand
some chance of averting – or rapidly ending – secessionist-based conflicts.
So let’s start with the legal framework. And in that regard, the recent opin-
ion by the International Court of Justice on the legality of Kosovo’s unilateral
declaration of independence provides a useful, but not a dispositive, backdrop.
On 22 July 2010, The I.C.J. rendered its non-binding opinion on the question
posed to it by the General Assembly, which was: ‘Is the unilateral declaration
of independence by the Provisional Institutions of Self-Government of Kosovo
in accordance with international law?’
…It concluded that, in the circumstances, the Kosovo unilateral declara-
tion was not in violation of international law. The court, however, went no
further. It explicitly refrained from ruling on the legality of secession itself.
As such it did not address the efficacy of Kosovo’s unilateral declaration of
independence, or of the level of international recognition that it attracted,
in creating an independent, sovereign Kosovo state.
The I.C.J.’s opinion in the Kosovo case may or may not lead to a wave
of additional recognition for Kosovo’s independence – these will be politi-
cal reactions to the court’s opinion. As the court points out, some unilateral
declarations of independence have in the past been specifically repudiated by
the international community – those of Southern Rhodesia in 1965, Northern
Cyprus in 1983 and of the Republika Srpska in Bosnia in 1992. But in all these
instances, the Security Council made a determination based on the concrete
situation existing at the time those declarations were made. The illegality of
those declarations of independence stemmed not from their unilateral char-
acter but from the fact that they were, or would have been, connected with
the unlawful use of force or other egregious violations of norms of interna-
tional law. The exceptional character of the resolutions regarding Southern
Rhodesia, Northern Cyprus and of the Republika Srpska confirmed, in the
view of the I.C.J., that no general prohibition against unilateral declarations
of independence could be inferred from previous Security Council decisions.
So while secessionists elsewhere would be wise to take limited comfort
from the court’s opinion in the Kosovo case; equally would those authorities
who currently assert the sanctity of their existing borders as an absolute bar
to any secessionist demands. The I.C.J.’s Kosovo judgement leaves unanswered
the important legal question of whether a right to secession can be found in
the right to self-determination and if so, in what circumstances….
On its face, the right of peoples to freely determine their political status does
not address how and when this right is to be exercised. Whether the exercise of

the right to self -determination includes an entitlement to full state sovereignty

therefore requires an examination of the principle of the territorial integrity of
states. That principle is most often advanced to block any secessionist claim.
The I.C.J. in its consideration of the Kosovo case made an important observa-
tion – namely that the scope of the principle of territorial integrity is confined
to the sphere of relations between States. By contrast, however, the right to
self-determination deals with relations between states and “peoples.” It is an
important distinction – and when competing principles clash, they should be
interpreted in a way that maximizes the fullest effect of both. We must therefore
seek to reconcile these apparently competing principles.
International law has developed a framework to render these otherwise
competing principles compatible by asserting that self-determination is a
right that must initially be fulfilled internally. This imposes on sovereign
states serious obligations regarding both democracy – participation, as the
method for a people to freely determine its political status – and protection
of minority rights, to ensure the free pursuit of a people’s economic, social
and cultural development.
But when a state is unable or unwilling to provide for the internal fulfill-
ment of the right to self-determination, that right may become an external
right, and at that point overrides the principle of territorial integrity by pro-
viding to “a people” a right to secede from a parent state....
Frontier Dispute (Burkina Faso v. Mali), 1986164
***
25. However, it may be wondered how the time-hallowed principle has
been able to withstand the new approaches to international law as expressed
in Africa, where the successive attainment of independence and the emer-
gence of new States have been accompanied by a certain questioning of
traditional international law. At first sight this principle conflicts outright with
another one, the right of peoples to self-determination. In fact, however, the
maintenance of the territorial status quo in Africa is often seen as the wisest
course, to preserve what has been achieved by peoples who have struggled
for their independence, and to avoid a disruption which would deprive the
continent of the gains achieved by much sacrifice. The essential requirement
of stability in order to survive, to develop and gradually to consolidate their
independence in all fields, has induced African States judiciously to consent
164
Frontier Dispute (Burkina Faso v. Mali), Judgment, I.C.J. Reports 1986, p. 554, and
Separate Opinion by Judge Luchaire, p. 652.

PA R T I I
to the respecting of colonial frontiers, and to take account of it in the inter-

pretation of the principle of self-determination of peoples.
Separate Opinion of Judge Luchaire
[S.O. Luchaire] …it is the right of peoples to determine their own future
which has received the blessing of international law: a right which is expressly
enshrined in the French constitution of 1958 in regard to what were then
the French overseas territories, including French Sudan (now the Republic
of Mali) and Upper Volta (now Burkina Faso). What the Declaration made
by the General Assembly of the United Nations on 14 December 1960 (1514
(XV)) specifies, in recognizing the right of self-determination possessed by all
peoples, is that they “freely determine their political status”; but the exercise
of that right does not necessarily lead to the independence of a State with the
same frontiers as a former colony. It may lead (see the list of factors annexed
to General Assembly resolution 648 (VII) of 10 December 1952) either to:
• independence within the aforesaid geographical framework or
• integration into the territory of the administering power with
strict equality of rights as between individuals, irrespective of
whether their origins lie in the former colony or the former
metropolitan state, or merger with a neighbouring State on
the same conditions of equality, or
• the voluntary association of the ex-colony with the former
metropolis on terms including unqualified respect for the
former’s personality.
Torture and Fair Trial

International Covenant on Civil and Political Rights165
***
Article 7
No one shall be subjected to torture or to cruel, inhuman or degrading
treatment or punishment. In particular, no one shall be subjected without
his free consent to medical or scientific experimentation.
165
International Covenant on Civil and Political Rights, General Assembly resolution
2200A (XXI), GAOR (Supp. (No. 16) at 52), U.N. Doc. A/6316 (1966), 999 U.N.T.S.
171, entered into force Mar. 23, 1976.

Article 10
1. All persons deprived of liberty shall be treated with humanity and re-
spect for the inherent dignity of the human person.
Otabek Akhadov v. Kyrgyzstan, Decision of the Human

Rights Committee, 2011166
1. The author of the communication is Mr. Otabek Akhadov, a national of
Uzbekistan, born in 1979. He claims to be a victim of violations by Kyrgyzstan
of his rights under article 6, article 7, article 9, article 10, paragraph 1, article
14, paragraph 1, article 2, paragraph 3 together with article 14, paragraph 3
(b), article 14, paragraph 3 (g), and article 15, paragraph 1 of the Interna-
tional Covenant on Civil and Political Rights. The Optional Protocol entered
into force for the State party on 7 January 1995. The author is represented
by counsel….
2.1 On 28 March 2000, Mr. Nigmat Bazakov, president of the Uigur society
“Ittipak,” was shot and killed in the street near his home on Musa Dzhalil Street
in Bishkek. On 29 March 2000, the investigative bodies initiated a criminal
case relating to his murder. On 25 May 2000, an act of terrorism occurred in
Bishkek, which resulted in the death of the Chinese citizen Mr. Abdukadir
Gulam and injuries to several members of a Chinese delegation as well as to
some Kyrgyz citizens. The author was arrested on 6 July 2000, on suspicion
of having committed the above crimes.
2.2 The arrest of the author was not formally recorded until 7 July 2000. In
the period between his apprehension and 21 July 2000, the author was kept
in the Investigation Detention Center (SIZO) of the Department of Internal
Affairs of the city of Bishkek. During that period the author was subjected
to torture and cruel treatment by the criminal investigation officers. He was
tortured at different times of the day, sometimes between 9 and 12 in the
morning, other times in the afternoons or between 17 and 23 hours in the
evenings. The author’s hand were tied and police officers beat him with fists
and kicked him in the sensitive parts of his body (such as his head, his back,
and in the areas of his kidneys, lungs and liver); they also beat him on the
soles of his feet and on the head with weights, pressed his chest against the
table, hit the back of his head with objects filled with water, and burned his
arms with cigarettes. He bled often and still has scars from the beatings. The
166
Otabek Akhadov v. Kyrgyzstan, Communication No. 1503/2006, Human Rights
Committee, U.N. Doc. CCPR/C/101/D/1503/2006, (29 April 2011).

PA R T I I
author was also forced to take psychotropic substances. The author also
provides the names of two high-ranked officials, who, according to him were
aware of the fact that he has been tortured.
2.3 On 7 July 2000, after the papers regarding the author’s arrest were
formalized, the investigators assigned him a lawyer whom he did not choose.
The latter did not take any steps to protect him. On 9 July 2000, unable to
support the beatings and threatened with further ill-treatment, the author
signed a confession admitting the commission of the crimes he was ac-
cused of by the investigators. On 10 July 2000, acquaintances of the author
commissioned another lawyer, Ms Golisheva, to represent the author. On
the same date the lawyer filed a complaint regarding the ill-treatment of
the author and requested a medical examination of the author in order to
establish that he had been tortured. The Senior Investigator based on that
lawyer’s request, issued an order for a medical examination to be conducted,
but the examination did not take place until 10 August 2000. The medical
expert provided an expertise, concluding that the traces on the author’s
body were consistent with the type of injuries he described and the timing
of those injuries. The lawyer did not make any further complaints and did
not submit any motions, because, according to the author, she was afraid
of reprisals….
2.6 Throughout the court proceedings the author denied his guilt. In his
written testimony, submitted to the Bishkek City court on 22 July 2002, he
complained that the confession he made during the investigation was ex-
tracted under torture and proclaimed his innocence. On an unspecified date
in July 2002, the author also complained to the President of the Republic
that he had been subjected to torture. Neither complaint was investigated….
The complaint
3.1 The author claims to be a victim of violations by Kyrgyzstan of his
rights under article 6, article 7, article 9, article 10, paragraph 1, article 14,
paragraph 1, article 2, paragraph 3, together with article 14, paragraph 3
(b), article 14, paragraph 3 (g), and article 15, paragraph 1, of the Covenant.
3.2 The author submits that his rights under article 2, paragraph 3, to-
gether with article 14, paragraph 3 (b) were violated by the State party since
he was not informed of his rights to refuse to testify and not to testify against
himself. He was not represented by a lawyer from the moment of his arrest;
he was not informed of his right to have legal assistance assigned to him
despite the fact that he requested to be provided with such assistance from
the moment of his detention….

State party’s observations on admissibility and merits

…4.2 The State party submits that author’s allegations on the unlawful
methods used by the law enforcement authorities, resulting in a forced confes-
sion and that he has been “deprived the right to appeal against the decision of
the court and, that his right to protection has not been provided, mismatch
the validity.” The State party maintains that the complaint submitted by the
author’s lawyer had been considered on appeal by the Bishkek City Court,
which confirmed the verdict of the first instance court without amendments.
The State party also submits that according to the current legislation a revision
of the guilty verdict upon a request of the convicted person, “not deteriorating
the position of the convicted, is not limited by the time frame.” Therefore the
author has the right to appeal against his verdict in the order of supervision
to the Supreme Court six years from the issuance of the judgment….
Consideration of the merits
…7.3 The Committee recalls that once a complaint about ill-treatment
contrary to article 7 has been filed, a State party must investigate it promptly
and impartially4. Although the decision of the Bishkek City court of 30 July
2002 mentions Mr. Akhadov’s torture allegations, the latter rejects these with
a blanket statement that the evidence in the case confirms the guilt of the
accused. The Committee considers that in the circumstances of the present
case, the State party has failed to demonstrate that its authorities did address
the torture allegations advanced by the author expeditiously and adequately,
in the context of both domestic criminal proceedings and the present com-
munication. Accordingly, due weight must be given to the author’s allegations.
The Committee therefore concludes that the facts before it disclose a viola-
tion of the rights of Mr. Akhadov under articles 7 and 14, paragraph 3 (g), of
the Covenant. In the light of this conclusion, it is not necessary to examine
separately the author’s claim under article 10 of the Covenant….
7.5 The Committee considers that in the present case, the courts, and this
was uncontested by the State party, failed to address properly the victim’s
complaints related to his ill-treatment by the police. The Committee considers
that as a consequence, the criminal procedures in Mr. Akhadov’s case were
vitiated by irregularities, which casts doubts on the fairness of the criminal
trial as a whole. In the absence of any pertinent observations from the State
party in this respect, and without having to examine separately each of the
author’s allegations in this connection, the Committee considers that in the
circumstances of the case, the facts as presented reveal a separate violation
of the author’s rights under article 14, paragraph 1, of the Covenant. In light
of this conclusion, and given that the author has been sentenced to death

PA R T I I
following a trial held in violation of the fair trial guarantees, the Committee
concludes that the author is also a victim of a violation of his rights under
article 6, read in conjunction with article 14, of the Covenant….
8. The Human Rights Committee, acting under article 5, paragraph 4, of the
Optional Protocol to the International Covenant on Civil and Political Rights,
is of the view that the State party has violated article 6, read in conjunction
with article 14; article 7 and article 14, paragraph 3 (g); article 9; and article
14, paragraph 1, of the International Covenant on Civil and Political Rights.
9. Pursuant to article 2, paragraph 3(a), of the Covenant, the Committee
considers that the State party is under an obligation to provide the author
with an effective remedy including: conducting full and thorough investiga-
tion into the allegations of torture and ill-treatment and initiating criminal
proceedings against those responsible for the treatment to which the author
was subjected; considering his retrial in conformity with all guarantees en-
shrined in the Covenant or his release; and providing the author with appro-
priate reparation, including compensation. The State party is also under an
obligation to take steps to prevent similar violations occurring in the future….
Dimitry Gridin v. Russia, Decision of the Human Rights

Committee, 2000167
1. The author of the communication is Mr. Dimitry Leonodovich Gridin, a
Russian student, born on 4 March 1968. He claims to be a victim of a violation
by Russia of articles 14, paragraphs 1, 2, 3(b),(e) and (g). The case also appears
to raise issues under articles 9 and 10 of the Covenant. He is represented by
Mr. A. Manov of the Centre for Assistance to the International Protection.
The facts as submitted by the author
2. The author was arrested on 25 November 1989 on charges of attempted
rape and murder of one Ms. Zykina. Once in detention, he was also charged
with six other assaults. On 3 October 1990, the Chelyabinsk Regional Court
found him guilty of the charges and sentenced him to death. His appeal to
the Supreme Court was rejected on 21 June 1991.…
The complaint
3.1The author alleges that a warrant for his arrest was only issued on 29
November 1989, over three days after he was detained. He further states that
he was denied access to a lawyer, despite his requests, until 6 December 1989.
167
Dimitry L. Gridin v. Russian Federation, Communication No. 770, Human Rights
Committee, U.N. Doc. CCPR/C/69/D/770/1997 (2000).

3.2 He claims that he was interrogated during 48 hours, without being

given any food and without being allowed to sleep. His glasses had also been
taken away from him and he could not see much because of his shortsighted-
ness. During the interrogation, he was beaten. He states that he was told that
his family was letting him down and that the only way to avoid the death
penalty would be to confess. He then confessed to the six charges as well as
to three other charges.
3.3 It is alleged that the author’s lawyer was not informed by the inves-
tigator of scheduled court actions. In particular, in January 1990 the author
was sent for a medical expertise and his lawyer was not informed.
3.4 The author claims that the handling of the evidence violated the Rus-
sian Code of Criminal Procedure…
3.5 The author claims that his right to presumption of innocence was
violated. Between 26 and 30 November 1989 radio stations and newspapers
announced that the author was the feared “lift-boy” murderer, who had
raped several girls and murdered three of them. Also, on 9 December 1989,
the head of the police announced that he was sure that the author was the
murderer, and this was broadcasted on television. Furthermore, the author
alleges that the investigator pronounced the author guilty in public meetings
before the court hearing and called upon the public to send prosecutors. As
a consequence, the author states that at his trial ten social prosecutors were
present whereas he was defended by one social defender who was later
forced to leave the court room. According to the author, the court room
was crowded with people who were screaming that the author should be
sentenced to death. He also states that the social prosecutors and the victims
were threatening the witnesses and the defense and that the judge did not
do anything to stop this. Because of this, there was no proper opportunity
to examine the main witnesses in court….
The State party’s submission and the author’s comments thereon
…4.3 The State party contends that neither the author nor his lawyer ever
raised the issue of police coercion before the courts. It further contends that
the author was represented by a lawyer throughout the preliminary investi-
gation, during which the author provided detailed information in respect of
the crimes. According to the State party the author only retracted from these
statements in court due to pressure placed on him by members of his family.
…6.4 With respect to the allegations of ill-treatment and police coercion
during the investigation period including denying the author the use of read-

PA R T I I
ing glasses, it appears from the material before it that most of these allega-
tions were not raised before the trial court. All the arguments were raised on
appeal but the Supreme Court found them to be unsubstantiated. In these
circumstances, the Committee finds that the author has not substantiated a
claim within the meaning of article 2 of the Optional Protocol.
6.5 With regard to the allegation that his lawyer was not informed of
the dates of the court actions which dealt with medical issues the Commit-
tee notes that this matter was reviewed by the Supreme Court which found
it to be in accordance with law and consequently considers that this claim
remains unsubstantiated for purposes of admissibility….
8.1 With respect to the allegation that the author was arrested without a
warrant and that this was only issued more than three days after the arrest,
in contravention of national legislation which stipulates that a warrant must
be issued within 72 hours of arrest, the Committee notes that this matter has
not been addressed by the State party. In this regard, the Committee consid-
ers that in the circumstances of the present case the author was deprived of
his liberty in violation of a procedure as established by law and consequently
it finds that the facts before it disclose a violation of article 9, paragraph 1.
8.2 With regard to the author’s claim that he was denied a fair trial in
violation of article 14, paragraph 1, in particular because of the failure by
the trial court to control the hostile atmosphere and pressure created by the
public in the court room, which made it impossible for defence counsel to
properly cross-examine the witnesses and present his defence, the Committee
notes that the Supreme Court referred to this issue, but failed to specifically
address it when it heard the author’s appeal. The Committee considers that
the conduct of the trial, as described above, violated the author’s right to a
fair trial within the meaning of article 14, paragraph 1.
8.3 With regard to the allegation of a violation of the presumption of
innocence, including public statements made by high ranking law enforce-
ment officials portraying the author as guilty which were given wide media
coverage, the Committee notes that the Supreme Court referred to the is-
sue, but failed to specifically deal with it when it heard the author’s appeal.
The Committee refers to its General Comment No 13 on article 14, where
it has stated that: “It is, therefore, a duty for all public authorities to refrain
from prejudging the outcome of a trial.” In the present case the Committee
considers that the authorities failed to exercise the restraint that article 14,
paragraph 2, requires of them and that the author’s rights were thus violated….
8.5 With respect to the allegation that the author did not have a
lawyer available to him for the first 5 days after he was arrested…[t]he

Committee finds that denying the author access to legal counsel after
he had requested such access and interrogating him during that time
constitutes a violation of the author’s rights under article 14, paragraph
3 (b). Furthermore, the Committee considers that the fact that the author
was unable to consult with his lawyer in private, allegation which has not
been refuted by the State party, also constitutes a violation of article 14,
paragraph 3 (b) of the Covenant.
Felix Kulov v. Kyrgyzstan, Decision of the Human Rights

Committee, 2010168
1. The author of the communication is Mr. Felix Kulov, a Kyrgyz national
born in 1948, who at the time of submission was serving a prison sentence
in Kyrgyzstan. The author claims to be the victim of violations by Kyrgyzstan
of his rights under articles 2; 7; 9, paragraphs 1, 3 and 4; 14, paragraphs 1, 2,
3 (a)- (e), and 5; 15; 19; and 25 (a), of the International Covenant on Civil
and Political Rights. The Optional Protocol entered into force for Kyrgyzstan
on 7 January 1995….
The complaint
3.2 [Among other articles] Article 9, paragraph 1, is said to have been
violated as the author was arrested on 22 March 2000 while he was under
treatment in hospital, as it was suspected he would obstruct the investigation
or escape. The author affirms that the decision to detain him was unlawful,
as the investigators had absolutely no evidence that he wanted to escape or
to obstruct the inquiries. He affirms that his preliminary detention in 2000
and in 2001-2002 was unreasonable and unnecessary in his case….
…8.2 The Committee notes the author’s claim under article 7 that during
the time of his detention in the buildings of State NSS from 22 March to 7 Au-
gust 2000, and again from 22 January 2001 to April 2003, he was not allowed
any correspondence and communication, and was kept without any contact
with the outside world. The State party did not comment on this allegation.
The Committee recalls its general comment 20 (1992) on the prohibition of
torture or cruel, inhuman or degrading treatment or punishment,… In view of
the above, the Committee finds that the author has been subjected to cruel,
inhuman and degrading treatment, in violation of article 7 of the Covenant.
168
Felix Kulov v. Kyrgyzstan, Communication No. 1369/2005, Human Rights Com-
mittee, U.N. Doc. CCPR/C/99/D/1369/2005 (26 July 2010).

PA R T I I
8.3 The Committee notes the author’s allegations under article 9, para-
graph 1, that the decision to detain him was unlawful, as the investigators had
no evidence that he wanted to escape or to obstruct the inquiries…. remand
in custody must be necessary in all the circumstances, for example, to prevent
flight, interference with evidence or the recurrence of crime. The State party
has not shown that these factors were present in the instant case.169 In the
absence of any further information, the Committee concludes that there has
been a violation of article 9, paragraph 1, of the Covenant.
8.4 As for the author’s claims under articles 9, paragraph 3, read together
with article 2, paragraphs 1 and 2, that the decision to place him in pretrial
detention was made by a prosecutor, i.e. a representative of the executive
branch, under the national legislation, in his absence, and that he was not
brought before a judge or other officer authorized by law to exercise judi-
cial power. The Committee notes that the State party has not provided any
information, showing that the prosecutor had the institutional objectivity
and impartiality necessary to be considered an “officer authorized to exercise
judicial power” within the meaning of article 9, paragraph 3, of the Covenant….
The Committee concludes that the facts as submitted reveal a violation of
the author’s rights under article 9, paragraph 3, of the Covenant.
8.5 The author also claimed violation of article 9, paragraph 4, as he was
allegedly kept in an investigation detention centre since 6 February 2001,
due to the opening of a third case against him. His detention was allegedly
prolonged on several occasions between 2001 and 2003 by the investiga-
tors, and with the prosecutor’s authorization, but in absence of any judicial
control. The author allegedly appealed with the General Prosecutor’s Office,
but all his appeals were rejected. According to him, the appeal to courts was
not necessary because of their ineffectiveness. The State party did not com-
ment on these allegations. In the absence of any further information, the
Committee concludes that there has been a violation of article 9, paragraph
4, of the Covenant….
8.7 The Committee notes the author’s allegations of violation of pre-
sumption of innocence, as the authorities allegedly used national media to
portray him as a criminal; his lawyers were given only limited time to study
the evidence, and “obstacles” were added to examine the additional evidence
presented by the prosecution; he had been judged already two times for mal-
practice in office but a third set of criminal proceedings was still pending at
the time of submission of the present communication, on the same grounds;
169
Communication No. 305/1988, Alphen v Netherlands. Views adopted on 23
July 1990.

his request to be represented by a lawyer from Russia was ignored, though

allowed under the legislation; […] In the absence of any information from the
State party, the Committee considers that due weight must be given to the
author’s allegations and concludes that there has been a violation of article
14, paragraphs 2, 3 (b), (c), (d) and (e), of the Covenant.
8.8 Regarding the claims that the examination of the author’s case under
the supervisory (nadzor) procedure by the Supreme Court took place in his
and in his lawyers’ absence, although with the participation of a prosecutor,
the Committee notes that despite the fact that under the Criminal Proce-
dure Code of the State party, the participation of the accused at the hearing
of the supervisory review procedure is decided by the court itself, the State
party failed to explain the reasons why it did not allow the participation of
the author and his lawyers at the proceedings at the Supreme Court. In the
absence of any other information, the Committee considers that there has
been a violation of article 14, paragraph 5, of the Covenant….
9. The Human Rights Committee, acting under article 5, paragraph 4, of
the Optional Protocol to the International Covenant on Civil and Political
Rights, is of the view that the State party has violated articles 7; 9, paragraphs
1, 3, and 4; and 14, paragraphs 1, 2, 3 (b), (c), (d), (e), and 5, of the Interna-
tional Covenant on Civil and Political Rights.
10. In accordance with article 2, paragraph 3 (a), of the Covenant, the
State party is under an obligation to provide the author with an effective
remedy including the payment of adequate compensation and initiation of
criminal proceedings to establish responsibility for the author’s ill-treatment
under article 7 of the Covenant. The State party is also under an obligation
to prevent similar violations in the future.
Zhakhongir Maksudov, et al. v. Kyrgyzstan, Decision of

the Human Rights Committee, 2008170
***
1.1 The authors of the communications are Zhakhongir Maksudov, Adil
Rakhimov, Yakub Tashbaev and Rasuldzhon Pirmatov, all Uzbek nationals born
in 1975, 1974, 1956 and 1959, respectively. At the time of submission of their
cases, all authors were granted refugee status by the Office of the United Nations
High Commissioner for Refugees (UNHCR) and were detained in a detention
170
Zhakhongir Maksudov and Adil Rakhimov, Yakub Tashbaev and Rasuldzhon Pirmatov
v. Kyrgyzstan, Communication Nos. 1461,1462,1476& 1477/2006, Human Rights
Committee, U.N. Doc. CCPR/C/93/D/1461,1462,1476& 1477/2006 (31 July 2008).

PA R T I I
centre (SIZO) of Osh, Kyrgyzstan, awaiting removal to Uzbekistan on the basis

of an extradition request from the Uzbek General Prosecutor’s Office….
1.2 On 6 March 2006 (for Maksudov/Rakhimov), 8 June 2006 (for Tash-
baev) and 13 June 2006 (for Pirmatov), in accordance with Rule 92 of its
Rules of Procedure, the Human Rights Committee, acting through its Special
Rapporteur for New Communications, requested the State party not to forc-
ibly remove the authors while their communications are under consideration
by the Committee. No reply was received from the State party on the request
for interim measures of protection. On 11 August 2006, counsel informed the
Committee that all authors had been handed over to the Uzbek law enforce-
ment authorities on 9 August 2006 on the basis of the decision issued by the
Kyrgyz General Prosecutor’s Office….
Case of Zhakhongir Maksudov
2.1 At around 5-6 a.m. on 13 May 2005, on his way to work in Andijan,
Uzbekistan, Maksudov learnt that a demonstration was taking place in the
city’s main square. He approached the square at around 7-8 a.m. and observed
other people expressing their grievances related to poverty, government re-
pression and widespread corruption. He did not address the gathering. After
some time, the demonstrators were fired on; soldiers were indiscriminately
shooting into the crowd. In panic and fearing persecution by Uzbek authori-
ties, Maksudov crossed the border into Kyrgyzstan on 14 May 2005.
2.2 [Authors], together with 524 other individuals who fled Andijan on 13
May 2005, was installed in a tent camp set up along the Uzbek-Kyrgyz border
in the Suzak region near Jalalabad (Kyrgyzstan) by UNHCR and administered
by the Department of Migration Services under the Kyrgyz Ministry of Foreign
Affairs (DMS).171
2.3 On 28 May 2005, the Uzbek General Prosecutor’s Office issued an
authorisation for Maksudov’s placement in custody, and his transportation
to the detention facility of the Uzbek Ministry of Internal Affairs in the
Andijan region. On 28 May 2005, he was charged in absentia with terror-
ism (article 155, part 3, of the Uzbek Criminal Code), violent attempt to
overthrow the Uzbek constitutional order (article 159, part 3), sabotage
(article 161), organization of criminal community (article 242, part 2),
mass disturbances (article 244), illegal acquisition of firearms, ammunition,
171
On 22 September 2005, the Department of Migration Services under the Kyrgyz
Ministry of Foreign Affairs was transformed by the Resolution of the Zhogorku
Kenesh (Parliament) into the State Committee on Migration and Employment of
the Kyrgyz Republic.

explosives and explosive devices (article 247, part 3) and premeditated

murder (article 97, part 2)….
2.5 In early June 2005, the Uzbek authorities requested Kyrgyzstan to
extradite 33 individuals, including Maksudov; all were charged with having
committed crimes under various articles of the Uzbek Criminal Code (see
paragraph 2.3). The extradition request was based on the 1993 Minsk Con-
vention on Legal Assistance and Legal Relations in Civil, Family and Criminal
Matters (1993 Minsk Convention) and the 1996 Agreement between Kyr-
gyzstan and Uzbekistan on the provision of mutual legal assistance in civil,
family and criminal matters (1996 Agreement).
2.6 On 9 June 2005, Mr. Maksudov applied for asylum in Kyrgyzstan. On
the same day, he was issued a certificate confirming that his application had
been registered by the DMS.
2.7 On 16 June 2005, Maksudov, together with 16 other individuals, was
taken into custody by Kyrgyz law enforcement officers and placed into the
temporary confinement ward (IVS) of the Jalalabad Regional Department of
Internal Affairs (Kyrgyzstan) on the basis of the decision of the Uzbek General
Prosecutor’s Office of 28 May 2005, where the individuals concerned were
designated as “terrorists.” Maksudov’s arrest warrant was issued by the Andijan
Regional Prosecutor (Uzbekistan) on 29 May 2005. In violation of the Kyrgyz
Criminal Procedure Code (Kyrgyz CPC),172 the legality of his placement into
custody was not examined either by a supervising prosecutor or a court….
2.10 The DMS examined Maksudov’s asylum application from 9 June to 26
July 2005. On 19 July 2005, it established that Maksudov’s asylum request was
well founded, as he could be persecuted in Uzbekistan, as a participant in and
eyewitness of the Andijan events. The DMS recognised that his case fell within
the definition of “refugee,” within the meaning of article 1 A- 2 of the 1951
Convention on the Status of Refugees and article 1 of the Kyrgyz Refugee Law.
The DMS then examined information received from the Jalalabad Regional
Department of Internal Affairs and the Jalalabad Regional Prosecutor’s Office
(Kyrgyzstan) about individuals accused of having committed serious crimes on
Uzbek territory, including Maksudov. Despite being presented with a photograph
where he was shown with three other individuals accompanying the Andijan
City Prosecutor on his way to and from the besieged building of the Andijan
Regional Administration, Maksudov claimed that he did not know the Andijan
City Prosecutor and was unaware of the circumstances of his participation in
172
[FN3] The author refers to Article 104 of the Kyrgyz CPC (correctly: article 110,
read together with article 435 of the same Code).

PA R T I I
the demonstration. He added that he did not notice that armed individuals in
civilian clothes were present during the demonstration, although this fact was
corroborated by numerous witness accounts collected by the international non-
governmental organizations (NGOs).173 These circumstances were interpreted
by DMS as an attempt by Maksudov to hide some facts about the demonstration
and his participation in it. It concluded, therefore, that Maksudov fell under the
exclusion clause of article 1 F-b of the Refugee Convention…. On 26 July 2005,
the DMS issued a decision rejecting Maksudov’s asylum application…..
2.11 On 3 August 2005, the DMS decision was appealed to the Interre-
gional City Court of Bishkek by Maksudov’s counsel….
b) Neither DMS nor the Prosecutor’s Office provided evidence that
Maksudov had personally participated in the attack on the police station or
the siege of the Andijan Regional Administration building.
On 14 October 2005, the DMS appealed the decision of the Interregional
City Court of Bishkek on cassation to the Judicial Chamber for Economic and
Administrative Cases of the Bishkek City Court (Bishkek City Court).
2.13 On 28 October 2005, Maksudov was granted refugee status by UNHCR.
According to a UNHCR note verbale of 28 October 2005 addressed to the Per-
manent Mission of Kyrgyzstan to the United Nations Office at Geneva, the deci-
sion had been made after a thorough review of all circumstances surrounding
Maksudov’s case, including the assessment of the extradition materials and other
elements related to the consideration of the exclusion clauses which UNHCR
found not to be applicable. In the same note, UNHCR informed the Kyrgyz au-
thorities that it was prepared to provide a durable solution for Maksudov’s case
through resettlement to a third country, should he be released from detention.
2.14 On 31 October 2005, Maksudov’s counsel filed objections to the
cassation appeal lodged by the DMS with the Bishkek City Court.
2.15 …[T]he Bishkek City Court of 13 December 2005. Under article 359,
paragraph 1, of the Kyrgyz Civil Procedure Code, the ‘resolution of a review
instance court becomes executory after its adoption, it is final and cannot
be appealed’….
Committee’s considerations:
12.2 …The first issue before the Committee [was] whether the authors’ depri-
vation of liberty [had been] in accordance with the State party’s relevant laws. The
173
[FN5] Reference is made to the Human Rights Watch Publication “Bullets Were
Falling Like Rain,” the Andijan Massacre, May 13, 2005.

authors claimed that contrary to article 110 of the Kyrgyz CPC their placement
in custody was not authorised by the Kyrgyz prosecutor and was done in the
absence of their counsel and therefore violated relevant domestic provisions.
In the absence of a reply from the State party, due weight must be given to the
authors’ allegations, to the extent that they are substantiated, and it must be
assumed that the events occurred as described by the authors. Consequently,
the Committee [found] a violation of article 9, paragraphs 1, of the Covenant.
12.3 Under the above circumstances and in the light of the finding of a
violation of article 9, paragraph 1, the Committee [did] not deem it neces-
sary to separately examine the authors’ claims under article 9, paragraph 3.
12.4 As to whether the authors’ extradition from Kyrgyzstan to Uzbekistan
exposed them to a real risk of torture or other ill-treatment in the receiving
State, in breach of the prohibition of refoulement contained in article 7 of the
Covenant, the Committee observe[d] that the existence of such a real risk must
be decided in the light of the information that was known, or ought to [had]
been known, to the State party’s authorities at the time of the extradition, and
[did] not require proof of actual torture having subsequently occurred although
information as to subsequent events is relevant to the assessment of initial risk.
In determining the risk of such treatment in the present cases, the Committee
must consider all relevant elements. The existence of assurances, their content
and the existence and implementation of enforcement mechanisms are all ele-
ments which are relevant to the overall determination of whether, in fact, a real
risk of proscribed ill-treatment existed. In this regard, the Committee reiterate[d]
that States parties must not expose individuals to the danger of torture or cruel,
inhuman or degrading treatment or punishment upon return to another country
by way of their extradition, expulsion or refoulement.174 This principle should
not be subject to any balancing with considerations of national security or the
type of criminal conduct an individual is accused or suspected of.
12.5 The Committee consider[ed] at the outset that it was known, or should
have been known, to the State party’s authorities at the time of the authors’ extra-
dition that there were widely noted and credible public reports that Uzbekistan
resorted to consistent and widespread use of torture against detainees175 and
that the risk of such treatment was usually high in the case of detainees held for
174
Human Rights Committee, General Comment No. 20: Prohibition of torture and
cruel treatment or punishment (article 7), 10 March 1992 (HRI/GEN/1/Rev.8),
para.9.
175
Report of the Special Rapporteur on the question of torture, Theo van Boven, on the
mission to Uzbekistan (E/CN.4/2003/68/Add.2); and the OHCHR Report on the Mis-
sion to Kyrgyzstan concerning the events in Andijan, Uzbekistan,[citation omitted].

PA R T I I
political and security reasons. In the Committee’s view, these elements in their
combination show[ed] that the authors faced a real risk of torture in Uzbekistan if
extradited. Moreover, the offences for which the authors were sought by Uzbeki-
stan were punishable by death in that country. Given the risk of a conviction and
death sentence being procured by treatment incompatible with article 7, there
was also a similar risk of a violation of article 6, paragraph 2, of the Covenant.
The procurement of assurances from the Uzbek General Prosecutor’s Office,
which, moreover, contained no concrete mechanism for their enforcement,
was insufficient to protect against such risk. The Committee reiterate[d] that at
the very minimum, the assurances procured should contain such a monitoring
mechanism and be safeguarded by arrangements made outside the text of the
assurances themselves which would provide for their effective implementation.176
12.6 The Committee recall[ed]177 that if a State party remove[d] a person
within its jurisdiction to another jurisdiction and there are substantial grounds
for believing that there is a real risk of irreparable harm in the other jurisdic-
tion, such as that contemplated by articles 6 and 7 of the Covenant, the State
party itself may be in violation of the Covenant. Since the State party [had]
not shown that the assurances procured from Uzbekistan were sufficient to
eliminate the risk of torture and of imposition of the death penalty consistent
with the requirements of article 6, paragraph 2, and article 7, the Committee
conclude[d] that the authors’ extradition thus amounted to a violation of
article 6, paragraph 2, and article 7 of the Covenant.
12.7 As to the claim that no effective remedies were available to chal-
lenge the Kyrgyz General Prosecutor’s extradition decision of 8 August 2006,
the Committee note[d] that given the presence of a real risk of torture and
of imposition of the death penalty, article 2 of the Covenant, read together
with article 6, paragraph 2, and article 7, require[d] that an effective remedy
be available for violations of the latter provisions. In this regard, the Com-
mittee note[d] that all of the authors’ proceedings in the State party’s courts
were related to asylum, and not to extradition proceedings. It further note[d]
that Kyrgyz laws [did] not allow for judicial review of the General Prosecu-
tor’s extradition decisions before the extradition takes place and that in the
case of the authors these decisions were implemented the following day. The
176
See, Communication No. 1416/2005, Alzery v. Sweden, Views adopted on 25 Oc-
tober 2006, para.11.5.
177
Communication No.469/1991, Ng v. Canada, Views adopted on 5 November 1993,
para. 6.2; Human Rights Committee, General Comment No. 31: The Nature of the
General Legal Obligation Imposed on States Parties to the Covenant, 29 March
2004 (HRI/GEN/1/Rev.8), para. 12.

Committee recall[ed] that by the nature of refoulement, effective review of

an extradition decision must have an opportunity to take place prior to ex-
tradition, in order to avoid irreparable harm to the individual and rendering
the review otiose and devoid of meaning.178 The absence of any opportunity
for effective, independent review of the decision to extradite in the authors’
cases accordingly amounted to a breach of article 6, paragraph 2, and article
7, read together with article 2, of the Covenant.
Committee’s holding
Rights, [was] of the view that the facts before it disclose[d] a violation by Kyr-
gyzstan of the authors’ rights under article 9, paragraph 1; article 6, paragraph
2, and article 7, read alone and together with article 2, of the Covenant. The
Committee reiterate[d] its conclusion that the State party also breached its
obligations under article 1 of the Optional Protocol.
Remedies
14. In accordance with article 2, paragraph 3(a), of the Covenant, the
State party [was] under an obligation to provide the authors with an effec-
tive remedy, including adequate compensation. The State [was] requested
to put in place effective measures for the monitoring of the situation of the
authors of the communication. The State party [was] urged to provide the
Committee with updated information, on a regular basis, of the authors’ cur-
rent situation. The State party is also under an obligation to prevent similar
violations in the future.
Freedom of Association and Assembly

Ismayilov v. Azerbaijan, Decision of the European Court
of Human Rights, 2008179
Main facts
The applicant alleged that the significant delays in the state registration
of the public association of which he was a founder amounted to a viola-
tion of his right to freedom of association, that the domestic courts were
178
See, Alzery v. Sweden, [citation omitted].
179
Ismayilov v. Azerbaijan, Application no. 4439/04, § 38, European Court of Human
Rights, 17 January 2008.

PA R T I I
not independent and impartial, and that the domestic remedies were not
effective in lawsuits filed by public associations against the Ministry of Justice
of Azerbaijan.
The Law
I. Alleged Violation of Article 11 of the Convention
***
B. Merits
1. The parties’ submissions.
43. The Government argued that there had been no interference with
the applicant’s freedom of association,…
44. Moreover, the Government argued that the lack of the status of a
legal entity did not prevent the association from continuing its activities. In
this connection, they noted that the association had published a book as a
part of its actual activity even without a status of a legal entity.
45. The Government further submitted that the founders “did not com-
ply with the duty of diligence” during the registration process, as the public
association’s constituent documents had not been prepared in accordance
with the requirements of the law. Even if the Ministry had committed proce-
dural errors, they had not amounted to a violation of the applicant’s rights
under Article 11.
46. The applicant argued that the delay in responding to the founders’
registration requests,… had constituted … a violation of, his right to freedom
of association, Article 11….
47. The applicant also noted that, without acquiring the status of a legal
entity through state registration, the association had been unable to function
properly and to engage in its primary activities. As for the book to which the
Government referred, the applicant noted that the book had not been pub-
lished by the Public Association “Humanity and Environment.” He stated that
he was one of the co-authors of the book, and the name of the unregistered
association was mentioned next to his name simply to show his occupation
and activities in the field of non-governmental organisations.
2. The Court’s assessment
48. The Court has found previously that the failure by the Ministry of
Justice to reply, within the statutory time-limits, to requests for state regis-
tration of a public association, amounted to a de facto refusal to register the
association. Lacking the status of a legal entity, the association’s legal capacity

was not identical to that of state-registered non-governmental organisations,

even assuming that it could engage in certain limited activities. The significant
delays in the registration procedure, if attributable to the Ministry of Justice,
amounted to an interference with the exercise of the right of the associa-
tion’s founders to freedom of association (see Ramazanova and Others, cited
above, §§ 54-60, with further references). […]
49. Such interference will not be justified under the terms of Article 11
of the Convention unless it was “prescribed by law,” pursued one or more of
the legitimate aims set out in paragraph 2 of that Article and was “necessary
in a democratic society” for the achievement of that aim or aims (see, for
example, Chassagnou and Others v. France [GC], nos. 25088/94, 28331/95
and 28443/95, § 104, ECHR 1999-III)….
51. The Court observes that Article 9 of the Law on State Registration of
Legal Entities of 6 February 1996 set a ten-day time-limit for the Ministry to
issue a decision on the state registration of a legal entity or refusal to register
it. Where the legal entity’s foundation documents contained rectifiable defi-
ciencies, the Ministry could return the documents to the founders within the
same ten-day time-limit with instructions for their rectification….
52. In the present case, the Ministry delayed its response to each of the
three registration requests by several months. In particular, in the period fall-
ing within the Court’s temporal jurisdiction, the response to the applicant’s
third registration request of 28 August 2002 was delayed by more than three
months, whereas the law clearly required it to be issued within five days.
Therefore, the Ministry violated the procedural time-limits. There was no
basis in the domestic law for such delays (see Ramazanova and Others, cited
above, § 65).
53. The Court also reiterates its finding that the Law on State Registra-
tion of Legal Entities of 6 February 1996 did not afford sufficient protection
against delays in the state registration procedure caused by the Ministry’s
failure to respond to registration requests within the statutory time-limits….
54. Having found that the Ministry of Justice breached the statutory
time-limit for issuing the formal response to the state registration requests
and that the domestic law did not afford sufficient protection against such
delays, the Court concludes that the interference was not “prescribed by law”
within the meaning of Article 11 § 2 of the Convention....
56. There has accordingly been a violation of Article 11 of the Convention.

PA R T I I
Tolekan Isamailova v. Kyrgyzstan, Decision of the Kyrgyz

Constitutional Court, 2 March 2010
“The Constitutional Court on December 14, 2009 received a petition of
the citizen Ismailova T. requesting to recognize Article 3(1) of the Law “On
the right of citizens to peaceful assembly, without weapons, to freely hold
rallies and demonstrations,” Bishkek city Mayor administration Decree on
“The determination of venue for the citizens of public events in Bishkek,”
dated July 24, 2009 N 401, was unconstitutional and contrary to Article 2(3),
Article 12, Article 13(1), Article 14(6), Article 17(1), Article 18, Article 21(3),
Article 25 of the Constitution of the Kyrgyz Republic.
In support of the application the following was provided. Bishkek Mayor’s
Decree “On the determination of venue for the citizens of public events in
Bishkek,” dated July 24, 2009 N 401 identified the place for public events
without notification of local authorities to be in the territory of the Hip-
podrome, which is restricted by Tolstoy, Termechikova, Repin and Alybaeva
Streets of Bishkek city.”…
“In accordance with paragraph 2 of Article 85(4) of the Constitution of
the Kyrgyz Republic, in case if Constitutional Court declares laws or its provi-
sions to be unconstitutional, other normative legal acts based on those laws
are annulled/cancelled. The Decree of the Mayor of Bishkek city, “On the
determination of venue for the citizens of public events in Bishkek,” dated
July 24, 2009 N 401 is based on such norm of the Act, therefore, its action is
subject to cancellation.
In such circumstances, the Constitutional Court of the Kyrgyz Republic
considers that Article 3 of the Law “On the right of citizens to peaceful as-
sembly without arms, freely hold rallies and demonstrations,” is contrary
to the requirements of Articles 18 and 25 of the Constitution of the Kyrgyz
Republic, on inadmissibility of restrictions on freedom and human rights,
except for in accordance with the aims provided in Constitution and the laws,
regarding the fulfillment of citizens’ right, including citizen Ismailova T., to
peacefully and without weapons conduct political meetings, rallies, marches,
demonstrations and pickets….
“The Constitutional Court of the Republic: in the – Presiding judge Sy-
dykova SK, Vice-President Sutalinov AA, judges Abdugaparova AA, Demin SN,
Kurbanova CH.ZH., Mamyrova O.ZH., Musabekov Ch.A. and Esenkanova KE,
Clerk of the court Dubanaeva KS,…
Decided to:

1. Recognize article 3 of the Law “On the right of citizens to assemble

peacefully without arms, freely hold rallies and demonstrations” of July 23,
2002 as unconstitutional and contrary to articles 18 and 25 of the Constitu-
tion of the Kyrgyz Republic and cancel the law.
Cancel the Decree of Mayor of Bishkek city on “Determination of loca-
tions for public events in Bishkek,” dated July 24, 2009 N 401.
To grant the motion to citizen Ismailova Tolekan Asanalievna.
Freedom of Expression and Religion

Raihon Hudoyberganova v. Uzbekistan, Decision of the
Human Rights Committee, 2004180
1. The author of the communication is Raihon Hudoyberganova, an
Uzbek national born in 1978. She claims to be a victim of violations by Uz-
bekistan of her rights under articles 18 and 19 of the International Covenant
on Civil and Political Rights….
2.1 Ms. Hudoyberganova was a student at the Farsi Department at the
Faculty of languages of the Tashkent State Institute for Eastern Languages
since 1995 and in 1996 she joined the newly created Islamic Affairs Depart-
ment of the Institute. She explains that as a practicing Muslim, she dressed
appropriately, in accordance with the tenets of her religion, and in her second
year of studies started to wear a headscarf (“hijab”). According to her, since
September 1997, the Institute administration began to seriously limit the
right to freedom of belief of practicing Muslims. The existing prayer room
was closed and when the students complained to the Institute’s direction,
the administration began to harass them. All students wearing the hijab were
“invited” to leave the courses of the Institute and to study at the Tashkent
Islamic Institute instead.
2.2 The author and the concerned students continued to attend the cours-
es, but the teachers put more and more pressure on them. On 5 November
1997, following a new complaint to the Rector of the Institute alleging the
infringement of their rights, the students’ parents were convoked in Tashkent.
Upon arrival, the author’s father was told that Ms. Hudoyberganova was in
180
Raihon Hudoyberganova v. Uzbekistan, Communication No. 931/2000, Decision of
the Human Rights Committee, UN Doc CCPR/C/82/D/931/2000 (5 November 2004).

PA R T I I
touch with a dangerous religious group which could damage her and that she
wore the hijab in the Institute and refused to leave her courses. The father,
due to her mother serious illness, took his daughter home. She returned to
the Institute on 1 December 1997 and the Deputy Dean on Ideological and
Educational matters called her parents and complained about her attire; al-
legedly, following this she was threatened and there were attempts to prevent
her from attending the lectures.
2.3 On 17 January 1998, she was informed that new regulations of the
Institute have been adopted, under which students had no right to wear
religious dress and she was requested to sign them. She signed them but
wrote that she disagreed with the provisions which prohibited students from
covering their faces. The next day, the Deputy Dean on Ideological and Edu-
cational matters called her to his office during a lecture and showed her the
new regulations again and asked her to take off her headscarf. On 29 January
the Deputy Dean called the author’s parents and convoked them, allegedly
because Ms. Hudoyberganova was excluded from the students’ residence. On
20 February 1998, she was transferred from the Islamic Affairs Department
to the Faculty of languages. She was told that the Islamic Department was
closed, and that it was possible to re-open it only if the students concerned
ceased wearing the hijab.
2.4 On 25 March 1998, the Dean of the Farsi Department informed the
author of an Order by which the Rector had excluded her from the Institute.
The decision was based on the author’s alleged negative attitude towards
the professors and on a violation of the provisions of the regulations of the
Institute. She was told that if she changed her mind about the hijab, the order
would be annulled.
2.5 [The Author filed court challenges]. On 15 July 1998, the author filed
an appeal against the District’s court decision (of 30 June 1998) in the Tash-
kent City Court and on 10 September, the City Court upheld the decision. At
the end of 1998 and in January 1999, she complained to the Parliament, to
the President of the Republic, and to the Supreme Court; the Parliament and
the President’s administration transmitted her letters to the Supreme Court.
On 3 February 1999 and on 23 March 1999, the Supreme Court informed her
that it could find no reasons to challenge the courts’ decisions in her case.
2.6 On 23 February 1999, she complained to the Ombudsman, and on 26
March 1999 received a copy of the reply to the Ombudsman of the Institute’s
Rector, where the Rector reiterated that Ms. Hudoyberganova constantly
violated the Institute’s regulations and behaved inappropriately with her
professors, that her acts showed that she belonged to an extremist organisa-

tion of Wahabits, and that he had no reason to readmit her as student. [She
exhausted all appeals].
State party’s observations
…4.2 The State party explains that according to the Court’s civil case, it
transpired that the author was admitted in the Faculty of Languages in the
Institute in 1995, and in 1996 she continued her studies in the Faculty of
History (Islamic Department). According to paragraph 2 (d) of the Internal
Regulations (regulating the rights and obligations of the Institute’s students),
in the Institute, students are forbidden to wear clothes “attracting undue at-
tention,” and forbidden to circulate with the face covered (with a hijab). This
regulation was discussed at a general meeting of all students on 15 January
1998. The author was presented the text and she made a note that she dis-
agrees with the requirements of paragraph 2 (d). On 26 January 1998, the
Dean of the Faculty of History warned her that she violated the provisions of
paragraph 2 (d), of the Institute’s regulations. The author refused to sign the
warning and a record in this respect was made on 27 January 1998.
4.3 On 10 February 1998, by order of the Dean of the Faculty of History,
the author was reprimanded for infringement of the Internal Regulations. By
order of the Rector of the Institute of 16 March 1998, Ms. Hudayberganova
was excluded from the Institute. The order was grounded on the “rough im-
moral attitude toward a teacher and infringement of the internal regulations
of the Institute, after numerous warnings.” According to the State party, no
cassation appeal was introduced against this decision. Her claim under the
supervisory procedure (nadzornaya zhaloba) gave no result….
Examination of the merits
6.2 The Committee has noted the author’s claim that her right to free-
dom of thought, conscience and religion was violated as she was excluded
from University because she refused to remove the headscarf that she wore
in accordance with her beliefs. The Committee considers that the freedom
to manifest one’s religion encompasses the right to wear clothes or attire in
public which is in conformity with the individual’s faith or religion. Further-
more, it considers that to prevent a person from wearing religious clothing in
public or private may constitute a violation of article 18, paragraph 2, which
prohibits any coercion that would impair the individual’s freedom to have or
adopt a religion. As reflected in the Committee’s General Comment No. 22
(para.5), policies or practices that have the same intention or effect as direct
coercion, such as those restricting access to education, are inconsistent with
article 18, paragraph 2. It recalls, however, that the freedom to manifest one’s
religion or beliefs is not absolute and may be subject to limitations, which are

PA R T I I
prescribed by law and are necessary to protect public safety, order, health, or
morals, or the fundamental rights and freedoms of others (article 18, para-
graph 3, of the Covenant). In the present case, the author’s exclusion took
place on 15 March 1998, and was based on the provisions of the Institute’s
new regulations. The Committee notes that the State party has not invoked
any specific ground for which the restriction imposed on the author would
in its view be necessary in the meaning of article 18, paragraph 3. Instead, the
State party has sought to justify the expulsion of the author from University
because of her refusal to comply with the ban. Neither the author nor the
State party have specified what precise kind of attire the author wore and
which was referred to as “hijab” by both parties. In the particular circum-
stances of the present case, and without either prejudging the right of a State
party to limit expressions of religion and belief in the context of article 18
of the Covenant and duly taking into account the specifics of the context,
or prejudging the right of academic institutions to adopt specific regulations
relating to their own functioning, the Committee is led to conclude, in the
absence of any justification provided by the State party, that there has been
a violation of article 18, paragraph 2.
the Optional Protocol to the Covenant, is of the view that the facts before it
disclose a violation of article 18, paragraph 2, of the Covenant.
Individual opinion (dissenting) by Committee member Mr. Hipolito
Solari-Yrigoyen
My dissenting opinion regarding this communication is based on the
following grounds:
In order to comply with the provisions of article 5, paragraph 1, of the
Optional Protocol, the communication should be studied in the light of all
the information supplied by the parties. In the present case, it is the author
who has provided most of the information, although her statements fail to
underpin her own allegations, and even contradict them.
According to the author (para. 2.4), she was excluded from the Tashkent
State Institute for Eastern Languages by the Rector, after numerous warnings,
on the following grounds:
1. Her negative attitude towards the teaching staff;
2. Her infringement of the regulations of the Institute.
Regarding her negative attitude towards the teachers, the decision of
Mirabad district court revealed that the author had accused one of the teach-

ers of bribery, claiming that he was offering pass marks in examinations in

return for money. According to the State party (para. 4.3), she was excluded
because of her “rough immoral attitude toward a teacher.” The author has
not supplied any information to justify her serious accusation against the
teacher which would nullify the initial ground given for her expulsion. Nor
has she explained any link between this ground for exclusion and the alleged
violation of article 18 of the Covenant.
Regarding the infringement of the regulations of the Institute, which did
not permit the wearing of religious clothing on Institute premises, the author
states that she disagreed with the provisions because they “prohibited stu-
dents from covering their faces” (para. 2.3). The State party points out that
the internal regulations forbid students to wear clothes “attracting undue
attention,” and to circulate with the face covered (para. 4.2). Although the
author and the State party do not specify which type of clothing the author
was wearing, she states that she dressed “in accordance with the tenets of
her religion.” However, the author herself states that she complained to the
Chairman of the Committee of Religious Affairs (Cabinet of Ministers), who
“informed [her] that Islam does not prescribe a specific cult dress” (para. 2.8).
The author has not rebutted this assertion, which she herself passed on.
Regarding the regulations of the university institute, it is necessary to bear
in mind that academic institutions have the right to adopt specific rules to
govern their own premises. It should also be added that these regulations
applied to all students without exception, since the institution involved was
a State institute of education, not a place of worship, and one in which the
freedom to exercise one’s own religion is subject to the need to protect the
fundamental rights and freedoms of others, that is, religious freedom for
all, safeguarded by the guarantee of equality before the law, whatever the
religious convictions or beliefs of each individual student. It is not appropri-
ate to request the State party to provide specific grounds for the restriction
complained of by the author, since the regulations applied impose general
rules on all students, and there is no restriction imposed on her alone or
on the adherents of one religion in particular. Furthermore, the exclusion
of the author, according to her own statements, arose from more complex
causes, and not only the religious clothing she wore or her demand to cover
her face within the Institute.
For the reasons set out and in the light of the information supplied, I
conclude that the author has not substantiated any of her allegations that
she was victim of a violation of article 18 of the Covenant.

PA R T I I
Individual opinion by Committee member Sir Nigel Rodley

I agree with the finding of the Committee and with most of the reason-
ing in paragraph 6.2. I feel obliged, however, to dissociate myself from one
assertion in the final sentence of that paragraph, in which the Committee
describes itself as ‘duly taking into account the specifics of the context’.
The Committee is right in the implication that, in cases involving such
‘clawback’ clauses as those contained in articles 12, 18, 19, 21 and 22, it is
necessary to take into account the context in which the restrictions con-
templated by those clauses are applied. Unfortunately, in this case, the State
party did not explain on what basis it was seeking to justify the restriction
imposed on the author. Accordingly, the Committee was not in a position to
take any context into account. To assert that it has done so, when it did not
have the information on the basis of which it might have done so, enhances
neither the quality nor the authority of its reasoning.
Freedom of Expression and Right to

Information
Nurbek Toktakunov v. Kyrgyzstan, Decision of the Human
Rights Committee, 2011181
***
2.1 On 3 March 2004, the Youth Human Rights Group (YHRG), a public
association for which the author works as a legal consultant, requested the
Central Directorate of Corrections (CDC) of the Ministry of Justice (MoJ) to
provide it with information on the number of individuals sentenced to death
in Kyrgyzstan as of 31 December 2003, as well as on the number of individuals
sentenced to death and currently detained in the penitentiary system…. On
5 April 2004, the CDC refused to provide this information, due to its clas-
sification as ‘confidential’ and ‘top secret’ by the by-laws of the Kyrgyzstan.
2.3 The author argued that the information on individuals sentenced to
death had to do with human rights and fundamental freedoms and that its
disclosure could not have had any negative impact on defence capability,
safety, or economic and political interests of the State. Therefore, it did not
fulfil the criteria in article 5 of the Law ‘On protection of state secrets’ for it
181
Nurbek Toktakunov v. Kyrgyzstan, Communication No. 1470/2006, Decision of the
Human Rights Committee, U.N. Doc. CCPR/C/101/D/1470/2006 (28 March 2011).

to be classified as the state secret. The author further referred to Resolutions

Nos. 2003/67 and 2004/60 of the Commission on Human Rights on the ques-
tion of the death penalty, which call upon all States that maintain the death
penalty to make available to the public information on the imposition of the
death penalty and any scheduled execution.1 He finally referred to article 17.8
of the Copenhagen Document (see, paragraph 2.1 above) and recalled that,
pursuant to article 10.1 of this document, the participating States have agreed
to respect the right of everyone, individually or in association with others, to
seek, receive and impart freely views and information on human rights and
fundamental freedoms. On an unspecified date, the author’s complaint of 26
June 2004 was transmitted by the MoJ to the CDC, for action.
2.4 On 9 September 2004, the CDC reiterated its previous position. On 7
December 2004, the author filed a complaint about a violation of his right to
seek and receive information to the Bishkek Inter-District Court, referring to
article 19, paragraph 2, of the Covenant. In his complaint, the author argued
that he requested the information on behalf of a public association and on
his own behalf, as a Kyrgyz citizen….
2.5 On 17 December 2004, the Bishkek Inter-District Court dismissed the
author’s complaint on the grounds that the subject matter fell outside of its
jurisdiction to adjudicate civil proceedings. On 25 December 2004, the author
filed a privy motion in the Bishkek City Court, challenging the decision of
the Bishkek Inter-District Court….
2.6 On 24 January 2005, the Bishkek City Court upheld the decision of
the Bishkek Inter-District Court, on the grounds that the information on
individuals sentenced to death was made secret by the Ministry of Interior
and access to such information was restricted. Therefore, the actions of the
MoJ in relation to the refusal to provide information could not be appealed
within the framework of administrative and civil proceedings….
2.7 The author’s repeated request of 7 June 2005 for information on the
individuals under the sentence of death was again refused by the MoJ on
27 June 2005. 2.8 The MoJ further explained that, according to the above-
mentioned confidential decree of the Ministry of Interior, any information
on the number of individuals sentenced to capital punishment was classified
as ‘top secret’. According to the Resolution of the Government No. 391 of
20 June 2002, the penitentiary system was transferred from the Ministry of
Interior to the MoJ. Therefore, the decree of the Ministry of Interior was in
force for the MoJ for as long as there was no decree on this matter drafted
and adopted by the MoJ. The MoJ further stated that at that time, the MoJ
was drafting a number of new by-laws concerning the penitentiary system,

PA R T I I
which included a list of data within the system of the CDC of the MoJ that
would be subject to classification as secret. This new list was expected to be
endorsed at a later stage by relevant state bodies. Thus, the MoJ concluded that
the refusal to provide information on the number of individuals sentenced
to death was justified and in compliance with the law in force.
The complaint
…3.2 The author further claims that, by failing to provide him with an
effective judicial remedy for a violation of his right of access to information,
the State party’s authorities have also violated his rights under article 2, read
together with article 14, paragraph 1, of the Covenant.
State party’s observations on the merits
4.1 On 26 July 2006, the State party submits that, according to the infor-
mation provided by the CDC of the MoJ, general data on the mortality rates in
the penitentiary system, as well as data on individuals sentenced to death, has
been declassified and pursuant to the by-laws it can now be used exclusively
‘for service purposes’. This information remains confidential for the press….
Author’s comments on the State party’s observations
…5.2 The author argues that the data on individuals sentenced to death
cannot be considered declassified as long as the general public’s and press’
access to such data is restricted by the by-laws.
Consideration of admissibility
…6.3 The Committee… notes that the reference to the right to ‘seek’ and
‘receive’ ‘information’ as contained in article 19, paragraph 2, of the Covenant,
includes the right of individuals to receive State-held information, with the
exceptions permitted by the restrictions established in the Covenant. It ob-
serves that the information should be provided without the need to prove
direct interest or personal involvement in order to obtain it, except in cases
in which a legitimate restriction is applied….
7.2 The Committee notes that, in its submission on the author’s allega-
tions, the State party has not addressed any of the arguments raised by him
in the communication to the Committee with regard to article 19, paragraph
2, of the Covenant. The State has merely stated that ‘data on individuals sen-
tenced to death had been declassified’ and that ‘pursuant to the by-laws it
could be used exclusively for service purposes’ but remained confidential for

the press. In the absence of any other pertinent information from the State
party, due weight must be given to the author’s allegations, to the extent that
they have been properly substantiated….
Rights, is of the view that the facts before it disclose a violation by the State
party of article 19, paragraph 2….
Individual opinion by Committee member, Mr. Gerald L. Neuman, (con-
curring)
I agree with the Committee that the State party has violated the author’s
rights under Article 19(2) with regard to the requested information….
The traditional right to receive information and ideas from a willing
speaker should not be diluted by subsuming it in the newer right of ac-
cess to information held by government. This modern form of “freedom
of information” raises complexities and concerns that can justify limita-
tions on the satisfaction of the right, based on considerations such as cost
or the impairment of government functions, in circumstances where the
suppression of a similar voluntary communication would not be justified.
In explaining and applying the right of access, it is important to observe
this distinction, and to be careful not to undermine more central aspects
of freedom of expression.
Freedom of Elections
United Nations Universal Declaration on Human Rights
(1948)
***
Article 21.
(1) Everyone has the right to take part in the government of his country,
directly or through freely chosen representatives.
(2) Everyone has the right of equal access to public service in his country.
(3) The will of the people shall be the basis of the authority of govern-
ment; this will shall be expressed in periodic and genuine elections which
shall be by universal and equal suffrage and shall be held by secret vote or
by equivalent free voting procedures.

PA R T I I
Protocol I of the European Convention on Human Rights

(1952)
***
Article 3
The High Contracting Parties undertake to hold free elections at reason-
able intervals by secret ballot, under conditions which will ensure the free
expression of the opinion of the people in the choice of the legislature.
Mathieu-Mohin and Klerfeyt v. Belgium, Decision of the

European Court of Human Rights182
FACTS
The applicants - Ms. Lucienne Mathieu-Mohin and Mr. George Klerfeyt
lived in the communes of the Al-Vilvord administrative district, which was
part of the bilingual Brussels region and the electoral district of Brussels. On
direct elections in the late 70’s they were elected to the House of Representa-
tives (Ms. Mathieu-Mohin) and Senate (Mr. Klerfeyt).
During that period of time, Belgium was divided on a linguistic basis into
several regions, which governed by regional councils, which included mem-
bers of both houses of parliament, elected in their respective districts (in the
bilingual region of Brussels two councils were created). In the administrative
county where the applicants were elected, most of the population was Flem-
ish, and it was governed by Flemish Council. However, the applicants could
not join it, since they took a parliamentary oath in French, thus belong to
Francophone faction and not Flemish faction.
AS TO THE LAW
I. ALLEGED VIOLATION OF ARTICLE 3 OF PROTOCOL No. 1 (P1-3)
TAKEN ALONE
…B. Application of Article 3 of Protocol No. 1 (P1-3) in the instant case
55. The Court has to consider the applicants’ complaints from the point
of view of Article 3 (P1-3) thus interpreted.
56. The Government pointed out that nothing prevented the French-
speaking electors in the district of Halle-Vilvoorde from knowingly voting
for a candidate who was likewise French-speaking but willing to take his
182
Application no. 9267/81, 2 March 1987, available at: http://www.math.uni-augs-
burg.de/stochastik/bazi/ECHR-Mathieu.pdf.

parliamentary oath in Dutch; once elected, such a candidate would sit on

the Flemish Council as of right and represent his constituents.
This argument is not decisive. Admittedly, electors cannot be defined
wholly in terms of their language and culture; political, economic, social, re-
ligious and philosophical considerations also influence their votes. Linguistic
preferences, however, are a major factor affecting the way citizens vote in a
country like Belgium, especially in the case of the residents of a “sensitive”
area, such as the municipalities on the outskirts of Brussels. An elected rep-
resentative who took his parliamentary oath in Dutch would not belong to
the French-language group in the House of Representatives or the Senate;
and these groups, like the Dutch-language groups, play an important role in
those areas in which the Constitution requires special majorities….
57. The 1980 Special Act, however, fits into a general institutional system
of the Belgian State, based on the territoriality principle. The system covers the
administrative and political institutions and the distribution of their powers.
The reform, which is not yet complete, is designed to achieve an equilibrium
between the Kingdom’s various regions and cultural communities by means
of a complex pattern of checks and balances. The aim is to defuse the lan-
guage disputes in the country by establishing more stable and decentralised
organisational structures. This intention, which is legitimate in itself, clearly
emerges from the debates in the democratic national Parliament and is borne
out by the massive majorities achieved in favour - notably - of the Special Act,
including section 29 (see paragraphs 22 and 31 above).
In any consideration of the electoral system in issue, its general context must
not be forgotten. The system does not appear unreasonable if regard is had to
the intentions it reflects and to the respondent State’s margin of appreciation
within the Belgian parliamentary system - a margin that is all the greater as the
system is incomplete and provisional. One of the consequences for the linguis-
tic minorities is that they must vote for candidates willing and able to use the
language of their region. A similar requirement is found in the organisation of
elections in a good many States. Experience shows that such a situation does
not necessarily threaten the interests of the minorities. This is particularly true,
in respect of a system which makes concessions to the territoriality principle,
where the political and legal order provides safeguards against inopportune or
arbitrary changes - by requiring, for example, special majorities….
The French-speaking electors in the district of Halle-Vilvoorde enjoy the
right to vote and the right to stand for election on the same legal footing as
the Dutch-speaking electors. They are in no way deprived of these rights by the
mere fact that they must vote either for candidates who will take the parlia-

PA R T I I
mentary oath in French and will accordingly join the French-language group in
the House of Representatives or the Senate and sit on the French Community
Council, or else for candidates who will take the oath in Dutch and so belong
to the Dutch-language group in the House of Representatives or the Senate
and sit on the Flemish Council. This is not a disproportionate limitation such
as would thwart “the free expression of the opinion of the people in the choice
of the legislature” (see paragraphs 51, 52 and 53 in fine above).
The Court accordingly finds that there has been no breach of Article 3 of
Protocol No. 1 (P1-3) taken alone….
Joint Dissenting Opinion Of Judges Cremona, Bindschedler-Robert, Bern-
hardt, Spielmann and Valticos
To our regret we are unable to share the opinion of the majority of the
Court, since it appears to us that in law the position in which the French-
speaking electorate and the French-speaking elected representatives of the
administrative district of Halle-Vilvoorde are placed is not compatible with
Belgium’s obligations under Article 3 of Protocol No. 1 (P1-3), whether taken
by itself or together with Article 14 (art. 14+P1-3) of the Convention.
The system currently in force in respect of that district (which as an
administrative district comes within the Flemish Region, while for electoral
purposes - with different boundaries - it is part of the electoral district of
Brussels) has the effect in substance, under the Special Act of 8 August 1980
(section 29(1)), that the members of the House of Representatives and the
Senate elected in the district of Halle-Vilvoorde cannot, if they take the
parliamentary oath in French, sit on the Flemish Council (a body which in-
disputably has legislative powers) and are therefore unable to defend their
Region’s interests in a number of important fields (such as regional planning,
environment, housing, economic policy, energy and employment), whereas
elected representatives who take the oath in Dutch are automatically mem-
bers of the Flemish Council. Halle-Vilvoorde has a population of more than
100,000 French-speakers out of a total population of more than 500,000,
the average number of votes required to elect a member of the House of
Representatives varying from 22,000 to 25,000.
The practical consequence is that unless they vote for Dutch-speaking
candidates, the French-speaking voters in this district will not be represented
on the Flemish Council.
In our opinion, such a situation, excluding, as it does in practice, representa-
tion of the French-speaking electorate of Halle-Vilvoorde at regional level, does
not ensure “the free expression of the opinion of the people in the choice of

the legislature” as stipulated in Article 3 of Protocol No. 1 (P1-3), and it creates

a language-based distinction contrary to Article 14 (art. 14) of the Convention.
None of the reasons put forward to justify this incompatibility appears
to us to be convincing.
In the first place, it is true that the French-speakers elected in Halle-Vil-
voorde could belong to the (Flemish) regional Council if they agreed to take
the oath in Dutch. In that eventuality, however, the representatives concerned
would lose their status as French-speakers in Parliament, and this - in addition to
the psychological and moral aspect of the issue - would have important politi-
cal consequences, given the role played by the parliamentary language groups.
The argument based on the fact that under the Belgian Constitution
elected representatives are considered as representatives of the whole nation
is irrelevant in the case of the regional Councils, which are vested under the
Constitution itself with the responsibility of watching over the interests of
the Regions concerned and to which the elected representatives of those
Regions should therefore be entitled to belong.
Displacement, Migration, Internally

Displaced People
Michelle Leighton, “Population Displacement, Relocation,
and Migration”183
***
IV. Internally Displaced Persons
Victims of natural disasters who are generally displaced inside their
country of origin often seek to return to their community when safe, rather
than engage in permanent migration or relocation. That is, people tend to
move temporarily to nearby urban centers to cope with the disaster, seek-
ing employment and aid until they are able to return.184 The World Health
183
Michelle Leighton, “Population displacement, relocation, and migration,” The
Law of Adaptation to Climate Change U.S. and International Aspects, eds., Michael
Gerrard and Katrina Kuh (June 2012, American Bar Association, Washington D.C.),
[reprinted with permission of the author, editors and American Bar Association].
184
Oliver-Smith, A. 2009. Climate change and population displacement: disasters and
diasporas in the twenty first century. In Crate, S. & Nuttall, M. eds., Anthropology
and Climate Change: From Encounters to Actions. Left Coast Press. Walnut Creek.

PA R T I I
Organization reports that seventy-five percent of those displaced by disaster

are women and children.185 International migration statistics reveal that men
and women tend to move equally, sometimes with their households if the
disaster is severe enough.186 While international migration occurs much less
frequently than internal displacement in response to natural disasters, people
may move to countries where social networks have already been established
and/or they have cultural ties.187 If aid is delivered quickly and effectively to
disaster areas, migration may be avoided entirely.
Internal displacement implicates a number of human rights and humani-
tarian principles. International law generally is concerned with state-to-state
relations, with the duties and obligations states owe to each other, but human
rights doctrine comprises additional duties owed by states to individuals and
groups. It prescribes special responsibility to protect vulnerable populations
and minorities, including women, children, and indigenous groups. Displaced
persons have also been the subject of special consideration as human rights
doctrine has evolved.
Governments have a number of obligations related to protecting victims
of disaster….The human rights of internally displaced persons (“IDPs”) due to
disasters, and the corresponding obligations of states, are dynamic. They evolve
as the international community gains more understanding and experience in
addressing the needs of disaster victims. At present, the extent of government
obligation and level of protection afforded victims depend on the context of
the disaster and on whether victims are displaced temporarily, voluntarily move
away from a disaster-affected area, are relocated, or move across borders in
search of new livelihood opportunities. … International law protects those inter-
nally displaced by conflict or disaster under the Guiding Principles on Internal
Displacement (IDP). These Principles, developed by a special representative of
the U.N. Secretary General and supported by the U.N. Commission on Human
Rights, “address the specific needs of internally displaced persons worldwide.188
They identify rights and guarantees relevant to the protection of persons from
forced displacement and to their protection and assistance during displace-
ment, as well as during return or resettlement and reintegration.”189 Specifically,
185
World Health Organization, Family, Health and Research, statistics published by
WHO, see http://www.searo.who.int/en/Section13/Section390_8282.htm.
186
Trends in World Migration, [citation omitted].
187
See, e.g., Skeldon,[citation omitted].
188
Report of the Representative of the Secretary-General on the Human Rights of Inter-
nally Displaced persons, Francis Deng, on Guiding Principles on Internal Displace-
ment, (“Guiding Principles on IDPs”), Feb. 11, 1998, U.N. Doc. E/CN.4/1998/53/Add.2.
189
Id.

they apply to “persons or groups of persons who have been forced or obliged
to flee or to leave their homes or places of habitual residence as a result of or in
order to avoid the effects of armed conflict, situations of generalized violence,
violations of human rights or natural or human-made disasters, and who have
not crossed an internationally recognized state border.”190
The IDP principles codify the state’s human rights obligations towards
those displaced in its territory, including the right to life, dignity and se-
curity of persons displaced. IDPs have the right to move to other parts of
the country or to leave their country, to have their family members remain
together or be reunited if separated. They have the right to an adequate
standard of living, food, water, basic shelter and housing, property restitu-
tion, essential medical services and sanitation and they continue to enjoy
the right to seek employment and participate in economic activities.191
The principles reiterate that governments are prohibited from discrimi-
nating against IDPs in the distribution of aid or other treatment and must
adhere to human rights protections in the resettlement and reintegration
of IDPs.192
Studies suggest that there are gender differences in disaster impacts that
raise issues of discrimination. Women suffer higher mortality rates than men
during and after disasters. Earlier discrimination trends against women or
other minorities tends to be exacerbated, and human trafficking may also
increase in the wake of disasters.193 The principles require governments to
consider these issues in disaster management.
Most governments appear to accept these principles, evidenced by a
number of recent confirmations as to their importance and adoption by the
190
Id.
191
See also, Report of the United Nations High Commissioner for Human Rights on
the relationship between climate change and human rights, at 19, U.N. Doc. A/
HRC/10/61 (15 Jan. 2009).
192
The Human Rights Committee and Committee on Elimination of Racial Discrimina-
tion have also commented on the key issues of concern related to a government’s
discriminatory treatment of those displaced. See, e.g., Concluding Observations of
these bodies relating to treatment of displaced persons after Hurricane Katrina in
relation to the right of return, housing and other assistance by the United States
(para 26, CCPR/C/USA/CO/3/Rev.1, Concluding Observations on United States,
2006) and Convention on Elimination of Racial Discrimination (para 31, CERD/C/
USA/CO/6, Concluding Observations on United States, 2008).
193
Neumayer, E. and Plumper, T., 2007. The gendered nature of natural disasters: the
impact of catastrophic events on the gender gap in life expectancy 1981-2002.
(available at: http://ssrn.com/abstract=874965).

PA R T I I
OSCE…194 Most recently, the IDP principles served as the foundation for the
African Union Convention for the Protection and Assistance of Internally
Displaced Persons in Africa (“Kampala Convention”) concluded in Novem-
ber, 2009. The Kampala Convention recognizes that climate change may
cause internal displacement and provides detailed description of govern-
ment obligations, including reparations for failure to act, and encourages
non-governmental and other assistance in the region for IDPs when a state
affected by disaster is unable to provide full assistance.
Under human rights doctrine, governments may violate their international
treaty and customary law obligations if they fail to prevent disasters or im-
pacts where such harm is foreseeable. International treaty bodies, including
the Human Rights Committee (established to monitor implementation of
the International Covenant on Civil and Political Rights), the Inter-American
Commission and Court of Human Rights, and the European Court of Human
Rights, have reinforced this principle through legal declarations and decisions
that discuss the state’s positive obligation to take precautions against foresee-
able harm.195 In one prominent case, the European Court found a violation
for foreseeable environmental harm. After several storms led to devastating
mudslides in the Central Caucuses region, the local government’s failure to
repair infrastructure, prepare the public, or take other public safety measures
to prevent harm, led to extreme vulnerability of the community during the
next storm. This resulted in more death and injury, as well as property de-
struction that left many in the community without homes. Russia was found
in violation of its treaty obligations before the European Court of Human
Rights because it knew the potential but failed to take measures that could
have reduced the damage to human life and property caused by the natural
disasters.196 As a member of the Council of Europe and party to the European
Convention on Human Rights, Russia is obligated to comply with decisions
of the European Court of Human Rights. The Court found similarly against
Turkey in a case involving foreseeable harm from a methane explosion.197
194
See, e.g., discussion of national adoption and OSCE incorporation in Neussl, P.,
Bridging the national and international response to IDPs, 20 Forced Migration
Review 42 (2004).
195
Report of the United Nations High Commissioner for Human Rights on the rela-
tionship between climate change and human rights, at 24, U.N. Doc. A/HRC/10/61
(15 Jan. 2009).
196
Budayeva and others v. Russia, Applications nos. 153339/02, 21166/02, 20058/02,
European Court of Human Rights judgment of 20 March 2008.
197
Case of Öneryildiz v. Turkey, European Court of Human Rights, (2002), available
at: http://eu.vlex.com/vid/case-of-v-turkey-26840475.

The principle related to environmental harm, founded in government

obligations to protect life from foreseeable disasters, has implications for all of
the 47 members of the Council of Europe party to the European Convention
on Human Rights and may affect adaptation planning. In 2003, the Council
of Europe Parliamentary Assembly drafted Recommendation 1614 calling for
a protocol to the European Convention on Human Rights on obligations to
protect the environment.198 The European Court’s decisions are influential in
global human rights doctrine, other regional and international human rights
bodies are likely to follow this reasoning.
Walter Kalin, the U.N. Secretary General’s Representative on IDPs has
interpreted the European Court cases and other human rights obligation
related to foreseeable environmental harm as follows:
In summary, the individual right to life and the corresponding state obli-
gation to protect life require that, with regard to natural disasters, including
those caused by climate change, the relevant authorities must: enact and
implement laws dealing with all relevant aspects of disaster risk mitigation
and set up the necessary mechanisms and procedures; take the necessary
administrative measures, including supervising potentially dangerous situa-
tions; and inform the population about possible dangers and risks; evaluate
potentially affected populations; conduct criminal investigations and pros-
ecute those responsible for having neglected their duties in case of deaths
caused by disaster; and compensate surviving relatives killed as a consequence
of neglecting those duties.199
198
See Recommendation 1614, Council of Europe Parliamentary Assembly, available
at: http://assembly.coe.int/Main.asp?link=/Documents/WorkingDocs/Doc04/
EDOC10041.htm.
199
Kalin, W. and Haenni Dale, C., “Disaster Risk Mitigation, Why Human Rights Mat-
ter,” Forced Migration Review 31 at 39, 2008.

PA R T I I
International Covenant on Economic,

Social and Cultural Rights (ICESCR)
Paul Hunt, “State Obligations, Indicators, Benchmarks
and the Right to Education”200
Excerpt of Background paper submitted by Paul Hunt, United Nations
Special Rapporteur on Health on State obligations, indicators, benchmarks
and the right to education (University of Waikato, New Zealand)(ICESCR Day
of Discussion, Nov. 30, 1998).
1. Over the last 12 years or so, our understanding of the international
legal obligations arising from the International Covenant on Economic, Social
and Cultural Rights (ICESCR) has deepened. Several factors have contributed
to this progress, not least the work of the United Nations Committee on
Economic, Social and Cultural Rights and the increasing attention devoted
to economic, social and cultural rights by non-governmental organizations
(NGOs) and the academic literature. Among the especially useful NGO and
academic initiatives have been the Limburg Principles on the Implementa-
tion of the International Covenant on Economic, Social and Cultural Rights
(1986), the Bangalore (I.C.J.) Declaration and Plan of Action (1995), and the
Maastricht Guidelines on Violations of Economic, Social and Cultural Rights
(1997).
2. Despite these advances, however, there remains considerable uncer-
tainty about the nature and extent of the legal obligations arising from IC-
ESCR. These doubts persist for a number of reasons, one being the wording
of article 2 (1) which sets out the general legal obligation of States parties
under the Covenant:
“Each State Party to the present Covenant undertakes to take steps, in-
dividually and through international assistance and cooperation, especially
economic and technical, to the maximum of its available resources, with a
view to achieving progressively the full realization of the rights recognized
in the present Covenant by all appropriate means, including particularly the
adoption of legislative measures.”
3. This statement of obligation includes some notoriously elusive phrases
and concepts. Here I draw attention to two which have particular relevance
200
Paul Hunt, State obligations, indicators, benchmarks and the right to education,
Background Paper submitted to the Office of the High Commission of Human Rights
(University of Waikato, New Zealand)(ICESCR Day of Discussion, Nov. 30, 1998).

to indicators and benchmarks: States parties undertake to progressively realize

the enumerated rights to the maximum of their available resources…. 4. Both
phrases - progressive realization and resource availability - have two crucial
implications. Firstly, they imply that some (but not necessarily all) States
parties’ obligations under the Covenant may vary from one State to another.
Second, they imply that, in relation to the same State party, some (but not
necessarily all) obligations under the Covenant may vary over time. These
variable elements of States parties’ obligations under ICESCR contribute to
the sense of uncertainty which remain a feature of international economic,
social and cultural rights….
5. Critically, human rights indicators and benchmarks can help all inter-
ested parties identify and monitor these variable or shifting State obligations.
Before sketching a process by which indicators and benchmarks might be
used in the context of the right to education, I want to make some additional
general observations about the nature and extent of States parties’ legal ob-
ligations under the Covenant.
6. Consideration of the Covenant and the jurisprudence of the Commit-
tee, discloses three interrelated and overlapping dimensions to States parties’
legal obligations. Here, I deal only very briefly with the first two. My focus is
the third dimension which, as we will see, has particular relevance to indica-
tors and benchmarks.
(a) Obligations applying uniformly to all States parties. It must be em-
phasized that some obligations under ICESCR are not subject to notions of
progressive realization and resource availability. These obligations apply uni-
formly around the world to all States parties whatever their stage of economic
development. To take just one example: the principle of non-discrimination.
According to article 2 (2) of the Covenant, States parties must not discriminate
on the basis of sex, race and other prohibited grounds. Thus, if a State party
excludes girls from any State school, it breaches the Covenant. The Covenant
and Committee are clear: in this context, notions of progressive realization
and resource availability are irrelevant. (See General Comment 3.)
(b) A minimum core content for each right. According to the Committee,
it is incumbent upon every State party “to ensure the satisfaction of, at the
very least, minimum essential levels” of each right set out in the Covenant.
Without minimum core obligations, the Covenant “is largely deprived of its
raison d’être. Much work still has to be done to define the minimum core
content of each right. The Committee, for example, has yet to identify the
minimum core content of the right to education. Once defined, however, it
will apply to all States parties whatever their stage of economic development.

PA R T I I
In other words, the minimum core content will not be subject to the notions
of progressive realization and resource availability.
(c) The variable dimension. Given article 2 (1), it is difficult to resist the
conclusion that States parties’ obligations under the Covenant have a variable
or shifting dimension. Because of the progressive realization and resource
availability phrases, the precise content of at least some State obligations is
likely to vary from one State to another - and over time in relation to the
same State.
7. In these circumstances, it is important to establish effective techniques
and processes which are able to identify and monitor this variable dimension
of State obligations. Without such arrangements, article 2 (1) can provide
“recalcitrant States” with the “escape hatch” which Leckie warns us about. In
my view, indicators and benchmarks have a role to play in both identifying
and monitoring the variable component of States parties’ obligations under
the Covenant. The usefulness of indicators and benchmarks is not necessar-
ily confined to this third, variable dimension of States parties’ obligations.
They might also have a role, for example, in the definition of minimum core
content.
8. This also seems to be the position of CESCR which has remarked: “it
may be useful for States to identify specific benchmarks or goals against which
their performance in a given area can be assessed ... global benchmarks are of
limited use, whereas national or other more specific benchmarks can provide
an extremely valuable indication of progress.” (General Comment 1, para.6.)
Housing Rights
The Government of the Republic of South Africa, et al. v.
Grootboom 201
Yacoob, J.
A. Introduction
The people of South Africa are committed to the attainment of social
justice and the improvement of the quality of life for everyone....The Consti-
tution declares the founding values of our society to be “[h]uman dignity, the
achievement of equality and the advancement of human rights and freedoms.”
This case grapples with the realisation of these aspirations for it concerns
201
Constitutional Court of South Africa, Case CCT 11/00, Judgment of 4 October 2000.

the slate’s constitutional obligations in relation to housing: a constitutional

issue of fundamental importance to the development of South Africa’s new
constitutional order.
The issues here remind us of the intolerable conditions under which
many of our people are still living. The respondents are but a fraction of
them. It is also a reminder that unless the plight of these communities is
alleviated, people may be tempted to take the law into their own hands in
order to escape these conditions. The case brings home the harsh reality that
the Constitution’s promise of dignity and equality for all remains for many a
distant dream. People should not be impelled by intolerable living conditions
to resort to land invasions. Self-help of this kind cannot be tolerated, for the
unavailability of land suitable for housing development is a key factor in the
fight against the country’s housing shortage.
The group of people with whom we are concerned in these proceedings
lived in appalling conditions, decided to move out and illegally occupied
someone else’s land. They were evicted and left homeless. The root cause of
their problems is the intolerable conditions under which they were living
while waiting in the queue for their turn to be allocated low-cost housing.
They are the people whose constitutional rights have to be determined in
this case.
Mrs. Irene Grootboom and the other respondents13 were rendered home-
less as a result of their eviction from their informal homes situated on private
land earmarked for formal low-cost housing. They applied to the Cape of
Good Hope High Court (the High Court) for an order requiring government
to provide them with adequate basic shelter or housing until they obtained
permanent accommodation and were granted certain relief. The appellants
were ordered to provide the respondents who were children and their par-
ents with shelter. The judgment provisionally concluded that “tents, portable
latrines and a regular supply of water (albeit transported) would constitute
the bare minimum.” The appellants who represent all spheres of government
responsible for housing challenge the correctness of that order.
The cause of the acute housing shortage lies in apartheid. A central fea-
ture of that policy was a system of influx control that sought to limit African
occupation of urban areas. Influx control was rigorously enforced in the
Western Cape, where government policy favoured the exclusion of African
people in order to accord preference to the coloured community: a policy
adopted in 1954 and referred to as the “coloured labour preference policy.” In
consequence, the provision of family housing for African people in the Cape
Peninsula was frozen in 1962. This freeze was extended to other urban areas

PA R T I I
in the Western Cape in 1968. Despite the harsh application of influx control in
the Western Cape, African people continued to move to the area in search of
jobs. Colonial dispossession and a rigidly enforced racial distribution of land
in the rural areas had dislocated the rural economy and rendered sustainable
and independent African farming increasingly precarious. Given the absence
of formal housing, large numbers of people moved into informal settlements
throughout the Cape peninsula. The cycle of the apartheid era, therefore, was
one of untenable restrictions on the movement of African people into urban
areas, the inexorable tide of the rural poor to the cities, inadequate hous-
ing, resultant overcrowding, mushrooming squatter settlements, constant
harassment by officials and intermittent forced removals. Mrs. Grootboom
and most of the other respondents previously lived in an informal squatter
settlement called Wallacedene…. The conditions under which most of the
residents of Wallacedene lived were lamentable. . . . About half the popula-
tion were children; all lived in shacks. They had no water, sewage or refuse
removal services and only 5% of the shacks had electricity. The area is partly
waterlogged and lies dangerously close to a main thoroughfare.
Many had applied for subsidised low-cost housing from the municipality
and had been on the waiting list for as long as seven years. Despite numerous
enquiries from the municipality no definite answer was given. Clearly it was
going to be a long wait. Faced with the prospect of remaining in intolerable
conditions indefinitely, the respondents began to move out of Wallacedene at
the end of September 1998. They put up their shacks and shelters on vacant
land that was privately owned and had been earmarked for low-cost housing.
They called the land “New Rust.”
They did not have the consent of the owner and on 8 December 1998 he
obtained an ejectment order against them in the magistrates’ court. The order
was served on the occupants but they remained in occupation beyond the
date by which they had been ordered to vacate. Mrs. Grootboom says they had
nowhere else to go: their former sites in Wallacedene had been filled by others...
The validity of the eviction order has never been challenged and must be
accepted as correct. However, no mediation took place and on 18 May 1999,
at the beginning of the cold, windy and rainy Cape winter, the respondents
were forcibly evicted at the municipality’s expense. This was done prematurely
and inhumanely: reminiscent of apartheid-style evictions. The respondents’
homes were bulldozed and burnt and their possessions destroyed. Many of
the residents who were not there could not even salvage their personal be-
longings... The respondents went and sheltered on the Wallacedene sports
field under such temporary structures as they could muster.

[S]ection 26 of the Constitution . . . provides that everyone has the right

of access to adequate housing. Section 26(2) imposes an obligation upon the
slate to take reasonable legislative and other measures to ensure the progres-
sive realisation of this right within its available resources….
The relevant international law and its impact
During argument, considerable weight was attached to the value of In-
ternational law in interpreting section 26 of our Constitution. Section 39
of the Constitution obliges a court to consider international law as a tool to
interpretation of the Bill of Rights…
The relevant international law can be a guide to interpretation but …
where the relevant principle of international law binds South Africa, it may
be directly applicable.
[T]he International Covenant on Economic, Social and Cultural Rights
is of significance in understanding the positive obligations created by the
socio-economic rights in the Constitution….
….The amici relied on the relevant General Comments issued by the com-
mittee concerning the interpretation and application of the Covenant….
It is clear…that the committee considers that every state party is bound to
fulfill a minimum core obligation …Accordingly, a state in which a significant
number of individuals is deprived of basic shelter and housing is regarded as
prima facie in breach of its obligations….
The right delineated in section 26(10 is a right of ‘access to adequate hous-
ing’…It recognizes that housing entails more than bricks and mortar. It requires
available land, appropriate services such as the provision of water and the re-
moval of sewage and the financing for these, including building the house itself….
Subsection (2) speaks to the positive obligation imposed upon the state.
It requires the state to devise a comprehensive and workable plan to meet
its obligations….
This case shows the desperation of hundreds of thousands of people living
in deplorable conditions throughout the country. The Constitution obliges
the state to act positively to ameliorate these conditions. The obligation is to
provide access to housing, health-care, sufficient food and water, and social
security to those unable to support themselves and their dependents. Those
in need have a corresponding right to demand that this be done….
There is…no dispute that the municipality funded the eviction of the re-
spondents…The respondents were evicted a day early and to make matters

PA R T I I
worse, their possessions and building materials were not merely removed,
but destroyed and burnt….
In light of these conclusions…[t]he [court] order requires the state to
act to meet the obligation imposed upon it…This includes the obligation to
devise, fund, implement, and supervise measures to provide relief to those
in desparate need.
Labor Rights
Elida Nogoibaeva, “The Application of International
Labor Law in the Legal System of the Kyrgyz Republic”202
International law doctrine recognizes three basic theories of interrelation
between international law and the national legislation.203 The first, known
as the dualistic (pluralistic) theory according to which the international law
and the national legislation, are two separate legal systems which exist inde-
pendently from each other. This theory has been supported by works of such
scientists, as Dionisio Antsilotti and N. Тripel.204 Today in the world it is very
difficult to find examples of application dualistic or monistic approaches in
the pure state irrespective of what legal system to take as an example.
Another approach concerning a parity of international law and the na-
tional legislation is known as monistic theory. This doctrine understands both
international, and the internal law as a component of the same legal order.
One of the leaders of monistic doctrine is Hans Kelsen who looks at the state
as on the founder of international law, within the limits of fundamental laws
and the privileges received by the state as the subject of international law.
Examples of monistic theory are Holland or Switzerland as they consider the
national legislation and international law as equal parts of one system. The
international norms become a part of the Swiss legal system from the mo-
ment of their occurrence or the introduction into validity.205
202
Nogoibaeva E.K., Dean of IBL Department, AUCA [reprinted with permission of
the author].
203
P. Malanchuk, Современное Введение в Международное Право. Дуалистическая
и Монистическая теории, 7-ая дополненное издание(T. J. International Ltd,
Padstow, Cornwall, 1997), стр.63.
204
G. Gadja, Позитивизм и Дуализм у Дионисио Анцелотти, изд.3, Европейский
Журнал Международного Права(1992), стр. 134.
205
M. Shaw, Международное Право, 4-ое издание. A Grotius Publication Cambridge
University Press, Cambridge 1997, стр.100.

But very often it is difficult to define, what approach is required to be ap-

plied in this or that country. Therefore, as a rule, the majority of the countries,
such as the USA, apply both approaches. In this connection, some scientists
include the USA in the list of the countries applying monistic approach, and
others in the list of the dualistic countries.206
Analyzing the domestic legislation, it is possible to draw a conclusion
that the Kyrgyz Republic formally applies a monistic approach to a parity of
international law and the national legislation as it considers the international
contracts, main principles of international law and its norm as a component
of its legal system.207 Article 6 of Constitution КР of 2010 says that:
“1. The constitution has the highest validity and direct action
in the Kyrgyz Republic.
2. On the basis of the Constitution the constitutional laws,
laws and other standard legal certificates are passed.
3. Entered the order established by the law in force the
international contracts which participant is the Kyrgyz Republic,
and also the conventional principles and norms of international
law are a component of legal system of the Kyrgyz Republic.
Norms of the international contracts under human
rights have direct action and a priority over norms of other
international contracts.”
In spite of the fact that the Kyrgyz Republic officially applies a monistic
approach to international law208, there are still problems with direct applica-
tion of these positions.
Let’s address the positions regulating parity in the field of the labor law,
namely the Labor Code of the Kyrgyz Republic (it enacted by the Law of КR
from August, 4th, 2004 N 107):
Article 3. The labor legislation and other standard legal certificates con-
taining norms of the labor law. Norms of international law
206
Взаимодействие между международным и национальным правом, совместное
мнение Федерального Офиса Правосудия и Директората по Международному
и Национальному Relation between international and domestic law, Joint opinion
of the Federal Office of Justice and the Directorate for International Law of 26
April 1989 in “Verwaltungspraxis der Bundesbehцrden,” http://www.eda.admin.
ch/sub_dipl/e/home/thema/intlaw/relat.html.
207
Art. 6, Constitution of the Kyrgyz Republic, June 27, 2010.
208
Law KR N 241 № 34 “О нормативно-правовых актах” от 20 июля 2009 года.

PA R T I I
Interstate contracts and other norms of international law ratified by the

Kyrgyz Republic are a compound and directly operating part of the legisla-
tion of the Kyrgyz Republic.
If the international contracts ratified by the Kyrgyz Republic, establish
rules more favorable for the worker, than provided by laws and other standard
legal certificates of the Kyrgyz Republic, agreements, collective agreements
rules of the international contracts are applied.
In case of the contradiction between the present Code and other laws
containing norms, worsening position of workers, norms of the present Code
are applied209.
It would be desirable to pay special attention on that circumstance that
in the previous Labor Code of the Kyrgyz Republic from October, 4th, 1997
N 70210 we see that the given parity was more concretized:
Article 3. Laws and other legal certificates on labor.
2. Interstate contracts and other norms of international law ratified by the
Kyrgyz Republic are compounds and directly operating part of the legislation
of the Kyrgyz Republic.
3. If interstate contracts of the Kyrgyz Republic and pacts the United Na-
tions Organization (United Nations) about human rights and conventions of
the International Organization of Labor (IOL), ratified by the Kyrgyz Republic,
are established norms and the rules improving position of workers in com-
parison with the present Labor code and other laws on work of the Kyrgyz
Republic norms and rules of corresponding interstate contracts (United Na-
tions pacts about human rights and conventions the ILO) are applied.
First, the Labor Code (as previous, and present), unlike the Constitution
says that norms of the international labor law become an operating part of
the legislation of the Kyrgyz Republic, instead of a part of legal system.
Secondly, the Labor Code of 1997 refers on priority of not an abstract
international law or the contract, and speaks particularly about special con-
tracts in the field of human rights and even more narrows them, naming
conventions the ILO (International Labor Organization), accepted within the
limits of the given specialized establishment of the United Nations.
In spite of the fact that the Kyrgyz Republic recognizes the international
contracts as a component of the legal system and obliges their direct applica-
209
See, В редакции Закона КР от 30 марта 2009 года N 103.
210
Note, this law is no longer in force. Утратил силу с 4 августа 2004 г.

tion; practice, however, follows the dualistic approach according to which

norms of the international labor law should be included and reflected in the
national legislation for their more effective application.
In what quality will the international rules of law operate in the
national legal system and how will the coordination with norms of
the internal right be provided?
Now (for December, 31st, 2009) the Kyrgyz Republic is a participant in
53 conventions accepted in the framework of the ILO.
Norms of the ILO Conventions in the legal system of the Kyrgyz Republic
have direct action. In the case of ratification and official publication of the
convention the ILO requires the Kyrgyz Republic to incorporate the law. After
a certain time (which is expedient for fixing in the law), the international
labor norms of conventions can be applied, if they are concrete enough, are
addressed and are capable to legal regulation, i.e. concern to so-called “self
realizable norms.” In their application it is necessary to use all possible mea-
sures for incorporation of norms of the international contract and conven-
tions of the ILO in the labor legislation of the Kyrgyz Republic.
The ILO declaration “About basic principles and the rights in sphere of a
labor” joins as a component of the legal system of the Kyrgyz Republic (system
of branch of the labor law) 1998, and does not need ratification, but keeps
the characteristic of a source of the international labor law.
In the КR all seven ILO conventions covered by the Declaration of the
ILO (1998) are ratified and accordingly their many norms are already incor-
porated in LC КR, in some laws, etc.
Norms of the Charter of the ILO, including the Philadelphia Declaration
(the appendix to the Charter), regarding aims and objectives of the Interna-
tional Labor Organization are general norms recognized by member states
of the ILO, including the Kyrgyz Republic. Only those norms which are es-
tablished fundamental (basic) principles in the area of the work sphere, are
included in the legal system of the Kyrgyz Republic. The mechanism of their
application is defined by the state and should be directed on performance of
norms of the Constitution (p. 3 items 6), Law of КR “About the international
contracts.”
The International Organization of Labor differs from other international
specialized organizations of the United Nations by the tripartite structure
based on so-called “a principle of tripartism” according to which member
state of the ILO is presented by two delegates from the state (government)
and on one delegate from businessmen and workers (workers). Each of

PA R T I I
them has the right to make the decision and independently to vote, and all
delegates possess equal rights.
The ILO convention is a multilateral international contract which after
ratification and corresponding official publication joins in the legal system of
the Kyrgyz Republic, but does not lose the qualities of the international labor
norms. The convention, as well as the recommendation of the ILO acts as the
form of international legal regulation of labor, and the ILO is developed and
is accepted at the International Conference of Labor in an order established
by the Charter of the ILO211. At ratification of the convention, the state incurs
the obligation on its performance, and should accept the corresponding act
or incorporate conventional labor norms in the operating labor legislation,
LC of КR.
Right to Health
International Covenant on Civil and Political Rights,
Articles 11 and 12
Article 11
1. The States Parties to the present Covenant recognize the right of ev-
eryone to an adequate standard of living for himself and his family, including
adequate food, clothing and housing, and to the continuous improvement of
living conditions. The States Parties will take appropriate steps to ensure the
realization of this right, recognizing to this effect the essential importance of
international co-operation based on free consent.
2. The States Parties to the present Covenant, recognizing the fundamental
right of everyone to be free from hunger, shall take, individually and through
international co-operation, the measures, including specific programmes,
which are needed:
(a) To improve methods of production, conservation and
distribution of food by making full use of technical and
scientific knowledge, by disseminating knowledge of the
principles of nutrition and by developing or reforming
agrarian systems in such a way as to achieve the most
efficient development and utilization of natural resources;
211
“What is international labour law for?” Brian Langille. International Labour Orga-
nization (International Institute for Labour Studies) 2005. С. 15.

(b) Taking into account the problems of both food-importing

and food-exporting countries, to ensure an equitable
distribution of world food supplies in relation to need.
Article 12
1. The States Parties to the present Covenant recognize the right of ev-
eryone to the enjoyment of the highest attainable standard of physical and
mental health.
2. The steps to be taken by the States Parties to the present Covenant
to achieve the full realization of this right shall include those necessary for:
(a) The provision for the reduction of the stillbirth-rate and
of infant mortality and for the healthy development of the
child;
(b) The improvement of all aspects of environmental and
industrial hygiene;
(c) The prevention, treatment and control of epidemic, endemic,
occupational and other diseases;
(d) The creation of conditions which would assure to all medical
service and medical attention in the event of sickness.
ICESCR General Comment 14
Substantive issues arising in the implementation of the

International Covenant on Economic, Social and Cultural Rights
The right to the highest attainable standard of health

(Article 12 of the International Covenant on Economic, Social and Cul-
tural Rights)
1. Health is a fundamental human right indispensable for the exercise
of other human rights. Every human being is entitled to the enjoyment of
the highest attainable standard of health conducive to living a life in dignity.
The realization of the right to health may be pursued through numerous,
complementary approaches, such as the formulation of health policies, or the
implementation of health programmes developed by the World Health Orga-
nization (WHO), or the adoption of specific legal instruments. Moreover, the
right to health includes certain components which are legally enforceable….

PA R T I I
3. The right to health is closely related to and dependent upon the realization
of other human rights, as contained in the International Bill of Rights, including
the rights to food, housing, work, education, human dignity, life, non-discrimina-
tion, equality, the prohibition against torture, privacy, access to information, and
the freedoms of association, assembly and movement. These and other rights
and freedoms address integral components of the right to health….
5. The Committee is aware that, for millions of people throughout the
world, the full enjoyment of the right to health still remains a distant goal.
Moreover, in many cases, especially for those living in poverty, this goal is
becoming increasingly remote. The Committee recognizes the formidable
structural and other obstacles resulting from international and other factors
beyond the control of States that impede the full realization of article 12 in
many States parties….
I. NORMATIVE CONTENT OF ARTICLE 12
…9. The notion of “the highest attainable standard of health” in article
12.1 takes into account both the individual’s biological and socio-economic
preconditions and a State’s available resources. There are a number of aspects
which cannot be addressed solely within the relationship between States and
individuals; in particular, good health cannot be ensured by a State, nor can
States provide protection against every possible cause of human ill health.
Thus, genetic factors, individual susceptibility to ill health and the adoption
of unhealthy or risky lifestyles may play an important role with respect to an
individual’s health. Consequently, the right to health must be understood as a
right to the enjoyment of a variety of facilities, goods, services and conditions
necessary for the realization of the highest attainable standard of health….
11. The Committee interprets the right to health, as defined in article 12.1,
as an inclusive right extending not only to timely and appropriate health
care but also to the underlying determinants of health, such as access to safe
and potable water and adequate sanitation, an adequate supply of safe food,
nutrition and housing, healthy occupational and environmental conditions,
and access to health-related education and information, including on sexual
and reproductive health. A further important aspect is the participation of the
population in all health-related decision-making at the community, national
and international levels….
II. STATES PARTIES’ OBLIGATIONS
General legal obligations
30. While the Covenant provides for progressive realization and acknowl-
edges the constraints due to the limits of available resources, it also imposes

on States parties various obligations which are of immediate effect. States

parties have immediate obligations in relation to the right to health, such
as the guarantee that the right will be exercised without discrimination of
any kind (art. 2.2) and the obligation to take steps (art. 2.1) towards the full
realization of article 12. Such steps must be deliberate, concrete and targeted
towards the full realization of the right to health….
Core obligations
43. In General Comment No. 3, the Committee confirms that States parties
have a core obligation to ensure the satisfaction of, at the very least, minimum es-
sential levels of each of the rights enunciated in the Covenant, including essential
primary health care. Read in conjunction with more contemporary instruments,
such as the Programme of Action of the International Conference on Population
and Development, (28) the Alma-Ata Declaration provides compelling guidance
on the core obligations arising from article 12. Accordingly, in the Committee’s
view, these core obligations include at least the following obligations:
(a) To ensure the right of access to health facilities, goods
and services on a non-discriminatory basis, especially for
vulnerable or marginalized groups;
(b) To ensure access to the minimum essential food which is
nutritionally adequate and safe, to ensure freedom from
hunger to everyone;
(c) To ensure access to basic shelter, housing and sanitation, and
an adequate supply of safe and potable water;
(d) To provide essential drugs, as from time to time defined under
the WHO Action Programme on Essential Drugs;
(e) To ensure equitable distribution of all health facilities, goods
and services;
(f) To adopt and implement a national public health strategy
and plan of action, on the basis of epidemiological evidence,
addressing the health concerns of the whole population; the
strategy and plan of action shall be devised, and periodically
reviewed, on the basis of a participatory and transparent
process; they shall include methods, such as right to health
indicators and benchmarks, by which progress can be
closely monitored; the process by which the strategy and
plan of action are devised, as well as their content, shall give
particular attention to all vulnerable or marginalized groups.

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ICESCR General Comment 15, The Right to Water 212
***
The legal bases of the right to water
2. The human right to water entitles everyone to sufficient, safe, accept-
able, physically accessible and affordable water for personal and domestic
uses. An adequate amount of safe water is necessary to prevent death from
dehydration, to reduce the risk of water-related disease and to provide for
consumption, cooking, personal and domestic hygienic requirements.
UN Office of the High Commissioner for Human Rights,

Fact Sheet No. 35, The Right to Water213
About 2.5 billion people still do not have access to safe sanitation. This
has a profound negative impact on numerous human rights. For instance,
without sanitation facilities, one does not enjoy the right to adequate housing.
The health impact of the lack of sanitation is well documented. It accounts
for as many as a quarter of all under-five deaths and is a serious threat to the
right to health. Poor sanitation also has a severe effect on water quality and
jeopardizes the enjoyment of this right, too.
While sanitation is not yet recognized as a self-standing right, an increas-
ing number of international, regional and national declarations and national
legislations seem to be moving in this direction. The Independent Expert on
the issue of human rights obligations related to access to safe drinking water
and sanitation has expressed her support for the recognition of sanitation as
a distinct right (see A/HRC/12/24).
HIV/AIDS and specific water needs214

Living with HIV/AIDS requires washing frequently and paying close at-
tention to personal hygiene…. Wounds and lesions need cleaning, and clothes
and bedding must be washed often. Fever, accompanied by sweating, is
common and so many may drink more water…. Clean, well-aired houses are
important if tuberculosis—the most common opportunistic infection— is to
212
Arts. 11 and 12 of the International Covenant on Economic, Social and Cultural
Rights.
213
OHCHR Fact Sheet available at: http://www.unhcr.org/refworld/docid/4ca45fed2.
html.
214
WaterAid Ethiopia and Progynist, “Making the links: Mapping the relationship be-
tween water, hygiene and sanitation and HIV/AIDS—a joint think piece” (2004).
Available from www.wateraid.org.

be avoided. All these things require extra water, yet this is something that is
not always readily available.
Right to Food
United Nations Food and Agriculture Organization, Fact
Sheet No. 34
***
The right to food in international law
The right to food is a human right recognized by international human
rights law. The Universal Declaration of Human Rights recognizes, in the
context of an adequate standard of living, that: “Everyone has the right to a
standard of living adequate for the health and well-being of himself and of
his family, including food, ...” (art. 25).
The International Covenant on Economic, Social and Cultural Rights,
which is part of the International Bill of Human Rights, recognizes the right
to adequate food as an essential part of the right to an adequate standard
of living (art. 11 (1)). It also explicitly recognizes “the fundamental right of
everyone to be free from hunger” (art. 11 (2))….
The right to food is also recognized in other international conventions
protecting specific groups, such as the Convention on the Elimination of All
Forms of Discrimination against Women (1979),10 the Convention on the
Rights of the Child (1989)11 and the Convention on the Rights of Persons
with Disabilities (2006).12 The right to food is also recognized in some region-
al instruments, such as the Additional Protocol to the American Convention
on Human Rights in the Area of Economic, Social and Cultural Rights, known
as the Protocol of San Salvador (1988),13 the African Charter on the Rights
and Welfare of the Child (1990)14 and the Protocol to the African Charter
on Human and Peoples’ Rights on the Rights of Women in Africa (2003).
The right to food is also recognized implicitly through other rights. The
African Commission on Human and Peoples’ Rights has interpreted the right
to food as being implicitly protected under the African Charter on Human
and Peoples’ Rights (1981) through the right to life, the right to health, and
the right to economic, social and cultural development.

PA R T I I
Group Rights
Ethnic Minorities
International Covenant on Civil and Political Rights

Articles 2 and 27
Article 2
1. Each State Party to the present Covenant undertakes to respect and
to ensure to all individuals within its territory and subject to its jurisdiction
the rights recognized in the present Covenant, without distinction of any
kind, such as race, colour, sex, language, religion, political or other opinion,
national or social origin, property, birth or other status.
Article 27
In those States in which ethnic, religious or linguistic minorities exist,
persons belonging to such minorities shall not be denied the right, in com-
munity with the other members of their group, to enjoy their own culture, to
profess and practise their own religion, or to use their own language.
UN Office of the High Commissioner for Human Rights,

Fact Sheet No. 18, Minority Rights
Provisions for the Promotion and Protection of the Rights of Persons
Belonging to Minorities
Prohibition of discrimination
Discrimination which affects minorities in a negative manner - politically,
socially, culturally or economically - persists and is a major source of tension
in many parts of the world. Discrimination has been interpreted to “imply
any distinction, exclusion, restriction or preference which is based on any
ground such as race, colour, ..., language, religion, ..., national or social origin,
..., birth or other status, and which has the purpose or effect of nullifying or
impairing the recognition, enjoyment or exercise by all persons, on an equal
footing, of all rights and freedoms.” The prevention of discrimination has
been defined as the “... prevention of any action which denies to individuals
or groups of people equality of treatment which they may wish.”
Discrimination has been prohibited in a number of international instru-
ments that deal with most, if not all, situations in which minority groups and
their individual members may be denied equality of treatment. Discrimination
is prohibited on the grounds of, inter alia, race, language, religion, national

or social origin, and birth or other status. Important safeguards from which
individual members of minorities stand to benefit include recognition as a
person before the law, equality before the courts, equality before the law, and
equal protection of the law, in addition to the important rights of freedom
of religion, expression and association.
Non-discrimination provisions are contained in the United Nations
Charter of 1945 (arts. 1 and 55), the Universal Declaration of Human Rights
of 1948 (art. 2) and the International Covenants on Civil and Political Rights
and on Economic, Social and Cultural Rights of 1966 (art. 2). Such provisions
also appear in a number of specialized international instruments, includ-
ing: ILO Convention concerning Discrimination in Respect of Employment
and Occupation No. 111 of 1958 (art. 1); International Convention on the
Elimination of All Forms of Racial Discrimination of 1965 (art. 1); UNESCO
Convention against Discrimination in Education of 1960 (art. 1); UNESCO
Declaration on Race and Racial Prejudice of 1978 (arts. 1, 2 and 3); Declara-
tion on the Elimination of All Forms of Intolerance and of Discrimination
based on Religion or Belief of 1981 (art. 2); and the Convention on the Rights
of the Child of 1989 (art. 2).
Non-discrimination clauses are also included in all of the basic regional
human rights documents, such as the European Convention for the Protec-
tion of Human Rights and Fundamental Freedoms, the European Social
Charter and the Framework Convention on National Minorities (Council of
Europe), the Document of the Copenhagen Meeting of the Conference on
the Human Dimension of the OSCE (Organization for Security and Coopera-
tion in Europe); the American Convention on Human Rights (Organization
of American States); and the African Charter on Human and Peoples’ Rights
(Organization of African Unity).
Special rights for minorities
What are special rights?
Special rights are not privileges but they are granted to make it possible
for minorities to preserve their identity, characteristics and traditions. Spe-
cial rights are just as important in achieving equality of treatment as non-
discrimination. Only when minorities are able to use their own languages,
benefit from services they have themselves organized, as well as take part in
the political and economic life of States can they begin to achieve the status
which majorities take for granted. Differences in the treatment of such groups,
or individuals belonging to them, is justified if it is exercised to promote ef-
fective equality and the welfare of the community as a whole. (4) This form
of affirmative action may have to be sustained over a prolonged period in

PA R T I I
order to enable minority groups to benefit from society on an equal footing

with the majority.
Article 27 of the International Covenant on Civil and Political
Rights
The most widely-accepted legally-binding provision on minorities is
article 27 of the International Covenant on Civil and Political Rights, which
states:
“In those States in which ethnic, religious or linguistic minorities exist,
persons belonging to such minorities shall not be denied the right in com-
munity with the other members of their group, to enjoy their own culture,
to profess and practise their own religion, or to use their own language.”
Article 27 of the Covenant grants persons belonging to minorities the
right to national, ethnic, religious or linguistic identity, or a combination
thereof, and to preserve the characteristics which they wish to maintain and
develop. Although article 27 refers to the rights of minorities in those States
in which they exist, its applicability is not subject to official recognition of
a minority by a State.
Article 27 does not call for special measures to be adopted by States, but
States that have ratified the Covenant are obliged to ensure that all individuals
under their jurisdiction enjoy their rights; this may require specific action to
correct inequalities to which minorities are subjected.(5)
Alekseyev v. Russian, Decision of the European Court of

Human Rights, 2010215
Main facts
The applicant, Nikolay Alekseyev, was one of the organizers of several
marches in 2006, 2007 and 2008, sought to draw public attention to discrimi-
nation against the gay and lesbian minority in Russia, to promote respect for
human rights and freedoms and to call for tolerance.
Organizers several times sent notices to the mayor of Moscow of the
intended march. The organisers undertook to cooperate with the law-
enforcement authorities in ensuring safety and respect for public order by
the participants and to comply with regulations on restriction of noise levels
when using loudspeakers and sound equipment. None of the events were set.
Government decisions to refuse permission to hold the march were justified
215
Application 4916/07, 21 October 2010.

on grounds of public order, for the prevention of riots and the protection of
health, morals and the rights and freedoms of others.
Along with official decisions, mass media repeatedly quoted the words
of the mayor and his employees that no gay parade would be allowed in
Moscow under any circumstances, “as long as he was the city mayor.” Ad-
ditionally, the mayor called for an “active mass-media campaign and social
commercials with the use of petitions brought by individuals and religious
organizations” against the marches.
Having received the refusals, the organizers tried to picket the same date
and time as the march. However, the picket was refused permission on the
same grounds as those given for the refusal to hold the march. Alekseyev
unsuccessfully challenged these decisions before a court.
Relying on Articles 11, 13 and 14 of ECHR, the applicant alleged a violation
of his right to peaceful assembly on account of the repeated ban on public
events. He also complained that he had not had an effective remedy against
the alleged violation of his freedom of assembly and that the Moscow authori-
ties’ treatment of his applications to hold the events had been discriminatory.
Decision
The court found a violation of article 11 of ECHR. It stated that this
norm protects the right to hold peaceful demonstration that may annoy or
cause offence to persons opposed to the ideas or claims that it is seeking to
promote. The court also emphasized that the participants must be able to
hold the demonstration without having to fear that they will be subjected to
physical violence by their opponents. However, the mere existence of a risk
is insufficient for banning the event.
Moscow authorities systematically during three years inadequately as-
sessed the risks of security for the participants and public order. Though
counter-protesters indeed could go on the street against the marches, the
authorities of Moscow city could have made arrangements to ensure that both
events proceeded peacefully and lawfully, allowing both sides to achieve the
goal of expressing their views without clashing with each other.
The Court also noted that security risks played a secondary role in the
authorities’ decision to impose the ban, they were in any event secondary to
considerations of public morals. The Court further reiterates that it would
be incompatible with the underlying values of the Convention if the exer-
cise of Convention rights by a minority group were made conditional on its
being accepted by the majority. The purpose of the marches and picketing,
as declared in the notices of the events, was to promote respect for human

PA R T I I
rights and freedoms and to call for tolerance towards sexual minorities. The
marches were not aimed to exhibit nudity, engage in sexually provocative
behaviour or criticise public morals or religious views. There is no ambigu-
ity about the other member States’ recognition of the right of individuals to
openly identify themselves as gay, lesbian or any other sexual minority, and to
promote their rights and freedoms, in particular by exercising their freedom
of peaceful assembly.
Consequently, that the ban on the events for marches on gays’ rights and
pickets was not necessary in a democratic society and is a violation of Article
11 of the Convention….
Concerning Article 14 of the Convention, it has been established that the
main reason for the ban imposed on the events organised by the applicant
was the authorities’ disapproval of demonstrations which they considered to
promote homosexuality. The Government did not provide any justification
showing that the impugned distinction was compatible with the standards
of the Convention, the Court also considers it established that the applicant
suffered discrimination on the grounds of his sexual orientation. Therefore,
there has been a violation of Article 14….
108. The Court reiterates that sexual orientation is a concept covered by
Article 14 (see, among other cases, Kozak v. Poland, no. 13102/02, 2 March
2010). Furthermore, when the distinction in question operates in this intimate
and vulnerable sphere of an individual’s private life, particularly weighty rea-
sons need to be advanced before the Court to justify the measure complained
of. Where a difference of treatment is based on sex or sexual orientation the
margin of appreciation afforded to the State is narrow, and in such situations
the principle of proportionality does not merely require the measure chosen
to be suitable in general for realising the aim sought; it must also be shown
that it was necessary in the circumstances. Indeed, if the reasons advanced for
a difference in treatment were based solely on the applicant’s sexual orienta-
tion, this would amount to discrimination under the Convention (ibid, § 92).
109. It has been established above that the main reason for the ban im-
posed on the events organised by the applicant was the authorities’ disap-
proval of demonstrations which they considered to promote homosexuality
(see paragraphs 77-78 and 82 above). In particular, the Court cannot disregard
the strong personal opinions publicly expressed by the mayor of Moscow
and the undeniable link between these statements and the ban. In the light
of these findings the Court also considers it established that the applicant
suffered discrimination on the grounds of his sexual orientation and that
of other participants in the proposed events. It further considers that the

Government did not provide any justification showing that the impugned
distinction was compatible with the standards of the Convention.
110. Accordingly, the Court considers that in the present case there has
been a violation of Article 14 in conjunction with Article 11 of the Convention.
Rights of Children
The Convention on the Rights of the Child216
The Convention on the Rights of the Child is a universally agreed set of
standards and obligations which place children center-stage in the quest for
a just, respectful and peaceful society.
It spells out the basic human rights for all children, everywhere, all the
time: the right to survival; to develop to the fullest; to protection from harmful
influences, abuse and exploitation; and to participate fully in family, cultural
and social life. The Convention protects these rights by setting standards in
health care, education as well as legal, civil and social services. These standards
are benchmarks against which progress can be assessed and States that ratify
the Convention are obliged to keep the best interests of the child in mind in
their actions and policies.
The Convention rests on four foundation principles:
1. non-discrimination (article 2);
2. best interests of the child (article 3);
3. the child’s right to life, survival and development (article 6);
4. and respect for the views of the child (article 12).
Every child – regardless of where they are born, the race or ethnic group
they belong to, whether they are a boy or girl, rich or poor – must have a full
opportunity to become a productive member of society and must have the
right to speak up and be heard.
The Convention defines a child as a boy or girl under the age of 18 and
considers a child as both an individual as well as a member of a family and a
community. A child is a human being with the full range of rights.
216
Excerpt from UNICEF, http://www.unicef.org/specialsession/rights/index.html.

PA R T I I
Committee on the Rights of the Child, Concluding

Observations on Kyrgyzstan217
COMMITTEE ON THE RIGHTS OF THE CHILD
Forty-fourth session
CONSIDERATION OF REPORTS SUBMITTED BY STATES
PARTIES UNDER ARTICLE 12 (1) OF THE OPTIONAL PROTOCOL
TO THE CONVENTION ON THE RIGHTS OF THE CHILD ON
THE SALE OF CHILDREN, CHILD PROSTITUTION AND CHILD
PORNOGRAPHY
Concluding observations: KYRGYZSTAN
1. The Committee considered the initial report of Kyrgyzstan (CRC/C/
OPSC/KGZ/1) at its 1221st meeting (see CRC/C/SR.1221), held on 29 Janu-
ary 2007, and adopted at its 1228th meeting, held on 2 February 2007, the
following concluding observations….
B. Positive aspects
[…]
National Plan of Action and Coordination
5. The Committee welcomes the establishment of the “New Generation”
programme on trafficking in and commercial and sexual exploitation of
children. However, the Committee is concerned at the absence of a specific
plan of action in the area of Sale of Children, Child Prostitution and Child
Pornography. Furthermore, the Committee is concerned that existing finan-
cial resources provided to the “New Generation” programme is insufficient
and that the coordination and cooperation between the different bodies is
not fully effective.
6. The Committee recommends that the State party strengthen its efforts,
in consultation and cooperation with its relevant stakeholders, to improve its
“New Generation” programme, by paying particular attention to implementa-
tion of all provisions of the Optional Protocol and taking into account the
Declaration and Agenda for Action and the Global Commitment adopted at
the First and Second World Congresses against Commercial Sexual Exploi-
tation of Children (Stockholm 1996; Yokohama 2001). Furthermore, the
Committee recommends that the State party provide the “New Generation”
programme with an increased budget allocation and clearly define the com-
217
2 February 2007, CRC/C/OPSC/KGZ/CO/1.

petencies of the different bodies which are involved in the implementation

of this programme in order to improve its cooperation and coordination.
Dissemination and training
7. The Committee appreciates the numerous training and dissemination
activities, provided by the State party…with international organisations and
NGOs… However, the Committee remains concerned that efforts to raise
awareness among relevant professional categories and the public at large on
the Protocol and to provide adequate training for judges, prosecutors and
social workers who are working with and for children are scattered, frag-
mented and… insufficient and that they do not cover all areas of the Protocol.
8. The Committee recommends that the State party allocates adequate and
earmarked resources for the development of training materials and courses
for all relevant professionals including police officers, public prosecutors,
judges, medical staff and other professionals involved in the implementation
of the Optional Protocol….
Data collection
9. The Committee regrets the lack of statistical data on issues covered
by the Protocol as well as the lack of research on the prevalence of national
and cross-border trafficking, Sale of Children, Child Prostitution and Child
Pornography.
10. The Committee recommends that the State party ensure that data
disaggregated, inter alia, by age and sex are systematically collected and
analysed….
12. The Committee recommends the State party to continue and strength-
en its budget allocation in order to cover all areas of the Protocol.
Existing criminal or penal laws and regulations
13. The Committee welcomes that the Optional Protocol takes prece-
dence over national legislation, that a provision on trafficking, including of
children, is contained in the Criminal Code, and the recently adopted Code
of the Kyrgyz Republic on Children. However, the Committee is concerned
that the prohibition of the Sale of Children, Child Prostitution and Child
Pornography has not been explicitly included in the national Criminal Code
and/or the Code of the Kyrgyz Republic on Children in conformity with article
2 and article 3 of the Protocol.
14. The Committee urges the State party to implement the Protocol by
taking immediate measures to amend the provisions with a view to fully

PA R T I I
including all purposes and forms of the Sale of Children, Child Pornography
and Child...[T]he Committee recommends that the State party undertake a
legal study…to identify inconsistencies and gaps between the national legal
system and the Protocol and to seek assistance from UNICEF and other rel-
evant international organisations….
17. The Committee welcomes recent attempts to conduct investigations
and prosecutions for incidents involving the Sale of Children and Child
Prostitution. However, the Committee remains concerned that in a number
of cases investigations and prosecutions have not been initiated.
18. The Committee recommends that the State party increase the num-
ber of investigations and prosecutions for incidents involving the Sale of
Children and Child Prostitution and especially for Pornography and make
the data available.
19. The Committee is concerned that the provisions of article 8 of the
Optional Protocol have not been adequately integrated into the relevant
laws of the State party, in particular that the status of the victim is not well
defined in the Criminal Code and the Code of the Kyrgyz Republic on Children
and that legislation fails to provide clear sanctions for physical and psycho-
logical pressure during interrogations. It is further concerned that measures
undertaken, for the physical and psychological recovery of child victims of
sale, child prostitution and child pornography are exclusively carried out by
non-governmental organizations and…no funds are specifically allocated by
the State party for the support of child victims.
20. The Committee recommends that the State party:
a) …protect child victims and witnesses at all stages of the criminal justice
process, by taking into account the UN Guidelines on Justice in Matters involv-
ing Child Victims and Witnesses of Crime (ECOSOC Resolution No. 2005/20);
b) collaborate with non-governmental organizations and IOM to ensure
that adequate services are available for child victims…;
c) ensure that all child victims of the offences described in the Protocol
have access to adequate procedures to seek, without discrimination, com-
pensation for damages from those legally responsible,…; and
d) allocate adequate founds to programmes and measures necessary for
the rehabilitation of child victims.
21. The Committee is deeply concerned about the information that child
victims of crimes…are often stigmatized and socially marginalized and may
be held responsible, tried and placed in detention.

22. The Committee recommends that the State party ensure that child
victims of exploitation and abuse are neither criminalized nor penalized….
23. The Committee recommends that the State party establish…a 24-hour,
toll-free helpline number to assist child victims…[I]t recommends…the State
party ensure…children are aware of and can access the helpline, and facilitate
the collaboration of the helpline with child-focused NGOs, the police, health
and social workers.
25. The Committee remains concerned about allegations of complicity
by State officials in trafficking and that corruption impedes the effectiveness
of prevention measures.
27. The Committee is especially concerned about the difficult situation
of certain groups of children, such as street children and working children,
who are particularly vulnerable to all forms of exploitation.
28. The Committee recommends that the State party pay particular atten-
tion to the situation of vulnerable groups of children who are at particular risk
of being exploited and abused. In this respect it recommends that the State
party allocate adequate human and financial resources for the implementa-
tion of programmes for the protection of the rights of vulnerable children,
with special attention to their education and health care. More attention
should also be devoted to raising awareness among these children of their
rights.
Rights of Women
Overview of Convention on the Elimination of All Forms of
Discrimination against Women218
The Convention on the Elimination of All Forms of Discrimination against
Women, adopted in 1979 by the UN General Assembly, is often described as
an international bill of rights for women. Consisting of a preamble and 30
articles, it defines what constitutes discrimination against women and sets
up an agenda for national action to end such discrimination.
The Convention defines discrimination against women as “...any distinc-
tion, exclusion or restriction made on the basis of sex which has the effect
or purpose of impairing or nullifying the recognition, enjoyment or exercise
218
U.N. Division for the Advancement of Women: http://www.un.org/womenwatch/
daw/cedaw/.

PA R T I I
by women, irrespective of their marital status, on a basis of equality of men

and women, of human rights and fundamental freedoms in the political,
economic, social, cultural, civil or any other field.”
By accepting the Convention, States commit themselves to undertake a
series of measures to end discrimination against women in all forms, including:
• to incorporate the principle of equality of men and women in
their legal system, abolish all discriminatory laws and adopt
appropriate ones prohibiting discrimination against women;
• to establish tribunals and other public institutions to ensure
the effective protection of women against discrimination;
and
• to ensure elimination of all acts of discrimination against
women by persons, organizations or enterprises.
The Convention is the only human rights treaty which affirms the repro-
ductive rights of women and targets culture and tradition as influential forces
shaping gender roles and family relations. It affirms women’s rights to acquire,
change or retain their nationality and the nationality of their children. States
parties also agree to take appropriate measures against all forms of traffic in
women and exploitation of women.
Countries that have ratified or acceded to the Convention are legally
bound to put its provisions into practice. They are also committed to submit
national reports, at least every four years, on measures they have taken to
comply with their treaty obligations.
The United Nations Committee on the Elimination of Discrimination
against Women (CEDAW), is an expert body established in 1982, is composed
of 23 experts on women’s issues from around the world.
The Committee’s mandate is very specific: it watches over the progress
for women made in those countries that are the States parties to the 1979
Convention on the Elimination of All Forms of Discrimination against Women.
A country becomes a State party by ratifying or acceding to the Convention
and thereby accepting a legal obligation to counteract discrimination against
women. The Committee monitors the implementation of national measures
to fulfill this obligation.
At each of its sessions, the Committee reviews national reports submitted
by the States parties within one year of ratification or accession, and there-
after every four years.

A.S. v. Hungary, Decision of the Committee on Elimination

of Discrimination Against Women, 2006219
1.1 The author of the communication dated 12 February 2004, is Ms. A. S., a
Hungarian Roma woman, born on 5 September 1973. She claims to have been
subjected to coerced sterilization by medical staff at a Hungarian hospital….
2.4 The author states that the sterilization has had a profound impact
on her life for which she and her partner have been treated medically for
depression. She would never have agreed to the sterilization as she has strict
Catholic religious beliefs that prohibit contraception of any kind, including
sterilization. Furthermore, she and her partner live in accordance with tradi-
tional Roma customs — where having children is said to be a central element
of the value system of Roma families….
On 22 November 2002, the Fehérgyarmat Town Court rejected the au-
thor’s claim, despite a finding of some negligence on the part of the doctors,
who had failed to comply with certain legal provisions, namely, the failure to
inform the author’s partner of the operation and its possible consequences
as well as to obtain the birth certificates of the author’s live children. The
Court reasoned that the medical conditions for sterilization prevailed in the
author’s case and that she had been informed about her sterilization and
given all relevant information in a way in which she could understand it….
3.1 The author claims that Hungary has violated articles 10 (h), 12 and
16, paragraph 1 (e) of the Convention.
3.2 She emphasizes that sterilization is never a life-saving intervention
that needs to be performed on an emergency basis without the patient’s
full and informed consent. It is an operation that is generally intended to
be irreversible and surgery to reverse sterilization is complex and has a low
success rate. The author states that international and regional human rights
organizations have repeatedly stressed that the practice of forced sterilization
constitutes a serious violation of numerous human rights and she refers to
general comment 28 of the Human Rights Committee on equality of rights
between men and women by way of example. She also states that coercion
presents itself in various forms — from physical force to pressure from and/
or negligence on the part of medical personnel….
11.2 With respect to the claim that the State party violated article 10
(h) of the Convention by failing to provide information and advice on fam-
219
A.S. v Hungary, Communication No. 4/2004,Decision of the Committee on Elimi-
nation of Discrimination Against Women, (14 August 2006).

PA R T I I
ily planning, the Committee recalls its general recommendation No. 21 on

equality in marriage and family relations, which recognizes in the context
of “coercive practices which have serious consequences for women, such as
forced … sterilization” that informed decision-making about safe and reliable
contraceptive measures depends upon a woman having “information about
contraceptive measures and their use, and guaranteed access to sex education
and family planning services”….
…The Committee considers in the present case that the State party has not
ensured that the author gave her fully informed consent to be sterilized and
that consequently the rights of the author under article 12 were violated….
11.5 Acting under article 7, paragraph 3 of the Optional Protocol to the
Convention on the Elimination of All Forms of Discrimination against Women,
the Committee on the Elimination of Discrimination against Women is of the
view that the facts before it reveal a violation of articles 10 (h), 12 and 16,
paragraph 1 (e) of the Convention and makes the following recommenda-
tions to the State party:
I. Concerning the author of the communication: provide appropriate
compensation to Ms. A. S. commensurate with the gravity of the violations
of her rights.
II. General:
• Take further measures to ensure that the relevant provisions of the
Convention and the pertinent paragraphs of the Committee’s general recom-
mendations Nos. 19, 21 and 24 in relation to women’s reproductive health
and rights are known and adhered to by all relevant personnel in public and
private health centres, including hospitals and clinics.
• Review domestic legislation on the principle of informed consent in
cases of sterilization and ensure its conformity with international human
rights and medical standards, including the Convention of the Council of
Europe on Human Rights and Biomedicine (“the Oviedo Convention”) and
World Health Organization guidelines. In that connection, consider amend-
ing the provision in the Public Health Act whereby a physician is allowed “to
deliver the sterilization without the information procedure generally specified
when it seems to be appropriate in given circumstances.”
Monitor public and private health centres, including hospitals and clinics,
which perform sterilization procedures so as to ensure that fully informed
consent is being given by the patient before any sterilization procedure is
carried out, with appropriate sanctions in place in the event of a breach.

Overview of International and Regional

Systems of Enforcement
David Weissbrodt, Fionnuala Ni Aolain, “Development of
Human Rights Law Within the U.N. Structure: Charter Base
Human Rights Bodies”220
Human rights are implemented by various bodies under the authority of
the United Nations Charter, and by expert committees created by special-
ized human rights treaties. These two kinds of U.N. human rights institutions
–Charter-based bodies and expert treaty-based committees -are illustrated
by the chart in the frontispiece of this book. Most of the Charter-based bod-
ies are comprised of government representatives and will be discussed first.
Under the authority of the U.N. Charter, human rights activities are prin-
cipally undertaken by the Security Council, General Assembly, Economic
and Social Council, Human Rights Council, Human Rights Council Advisory
Committee, the Commission on the Status of Women, and the Commission
on Crime Prevention and Criminal Justice.
The Security Council is the organ of the U.N. on which the Charter confers
primary responsibility for the maintenance of international peace and security.
The Council is composed of fifteen members, including five permanent mem-
bers (China, France, Russia, the United Kingdom, and the United States) and ten
nonpermanent members elected for two-year terms by the General Assembly.
Under Chapter VII of the Charter, the Security Council makes recommendations
or decides what measures should be taken to maintain or restore international
peace and security. Council measures may include humanitarian aid, economic
sanctions, and military intervention. With the end of the Cold War, the Security
Council’s role has become more visible as the permanent members have more
frequently agreed on action. There continues to be much debate over the com-
position of the Security Council and whether its membership constitutes a fair
reflection of the current demographic and power alignment of states. Proposals
for reform have emerged, but to date there is no political consensus to move
them forward. (See the organogram at the frontispiece to this volume.)
The Security Council’s new activism becomes apparent by contrasting
the number of actions taken during and after the Cold War. During the Cold
220
David Weissbrodt, Fionnuala Ni Aolain, Joan Fitzpatrick, & Frank Newman, Interna-
tional Human Rights: Law, Policy and Practice,(LexisNexis, 4th ed., 2009) [excerpt
reprinted with permission of the authors.].

PA R T I I
War, the Security Council considered on five occasions whether human

rights violations qualified as threats to the peace so as to justify measures
under Chapter VII. Furthermore, during the forty-two year period from 1948
to 1987, the Security Council established only 13 peacekeeping operations.
There were almost three times as many during the ten-year period between
1988 and 1998, when the Security Council sent 36 peacekeeping missions.
In addition, based principally upon Security Council decisions since 1989,
on-site U.N. activities with a significant human rights dimension have taken
place in more than twenty countries, including Angola, Bosnia-Herzegovina,
Burundi, Cambodia, Congo, East Timor, EI Salvador, Guatemala, Haiti, Iraq,
Kosovo, Mozambique, Namibia, Nicaragua, Rwanda, Sierra Leone, Somalia,
South Africa, Sudan, Western Sahara, and the former Yugoslavia. The role
of the Security Council as international legislator has been augmented by
its actions following the events of September 11, 2001, as evidenced by the
anti-terrorism mandate given to states under U.N. Security Council resolu-
tion 1373.…
In 1993, the Security Council further contributed to the development of
human rights law when it authorized an international tribunal to prosecute
persons responsible for serious violations of international humanitarian law
committed in the former Yugoslavia. See Security Council resolution 827 of
25 May 1993. The tribunal has publicly indicted 161 individuals.221 On March
10, 1998, the Chief Prosecutor stated that the tribunal’s jurisdiction covers
violations of international law that occurred in Kosovo, for example, during
the events of 1999 which led to the NATO bombing of Serbia and Kosovo.
In addition, following widespread killings in Rwanda during April 1994, the
Security Council established a second tribunal using the same basic approach
as in the former Yugoslavia. This tribunal has focused on bringing perpetrators
of the Rwandan genocide to justice. The Yugoslav Tribunal is located in The
Hague, Netherlands, and the Rwanda Tribunal was established in Tanzania.
Based upon the precedents of the Nuremberg and Tokyo Tribunals, the many
trials in Germany held pursuant to Control Council Law No. 10 after World
War II, and the establishment of ad hoc war crimes tribunals for the former
Yugoslavia and Rwanda, a permanent International Criminal Court (ICC) was
authorized by a Statute of July 17, 1998, which came into force July 1,2002
when it was ratified by 60 nations. As of January 2009, 108 governments have
ratified the Statute of the International Criminal Court.222 The Statute would
221
http://www.un.orglicty/glance-e/index.htm.
222
See Rome Statute of the International Criminal Court, available at http://untreaty.
un.org/ NGLISWbible/englishinternetbible/partVchapterXVIII/treatylO.asp.

permit the prosecution of war crimes, genocide, other crimes against human-
ity, and eventually aggression once a provision is adopted defining the term.
The ICC has complementary jurisdiction over individuals whom governments
have failed to prosecute in their national courts or when governments lack
the capacity to prosecute nationally. The International Criminal Court sits in
the Hague, Netherlands, with 18 judges who are elected for nine year terms
(one third every three years) by the States parties.
The International Court of Justice (I.C.J.), having replaced the Permanent
Court of International Justice,223 is the judicial organ of the United Nations.
The court sits at the Peace Palace in The Hague, Netherlands, with 15 judges
who are elected to nine year terms (one-third every three years) by the Gen-
eral Assembly and the Security Council. The Charter of the United Nations
provides for both contentious (adversary) and advisory jurisdiction. Adver-
sarial jurisdiction extends only to matters that States parties have referred to
it and in instances where treaties and conventions provide for adjudication by
the I.C.J.. Article 38(1) of the I.C.J. Statute specifies the sources of law which
the court is to apply in rendering its decisions: international conventions,
international custom, and general principles of law. Decisions of the I.C.J.
are only binding between the immediate parties and only in respect to that
particular case. In other words, stare decisis does not apply. The decisions,
however, are widely relied upon as statements of international law.
During the period after World War I the Permanent Court of International
Justice (PCIJ) rendered several advisory opinions under the Minority Treaties
developed pursuant to the Treaty of Versailles that were relevant to human
rights.224 For example, in the 1923 the Court concluded in an advisory opin-
ion that the government of Poland had in a Minorities Treaty undertaken “to
assure full and complete protection of life and liberty to all inhabitants of
Poland without distinction of birth, nationality, language, race or religion.”225
223
The Permanent Court of International Justice (PCIJ) was authorized in the
Covenant of the League of Nations. It held its inaugural sitting in 1922 and was
dissolved in 1946. The PCIJ was the first permanent international tribunal with
general jurisdiction; its jurisprudence made possible the clarification of a number of
aspects of international law, and contributed to the development of international
law. Between 1922 and 1940 the PCIJ dealt with 29 contentious cases between
states, and delivered 27 advisory opinions.
224
Stephen M. Schwebel, Human Rights in the World Court, 24 Vanderbilt J. Int’l 945,
948 (1991).
225
Advisory Opinion No. 6, Gennan Settlers in Poland, 1923 P.C.U. (ser. B.) No.6, at 20
(Sept. 10); see also Advisory Opinion No. 44, Treatment of Polish Nationals and
Other Persons of Police Origin or Speech in the Danzig Territory, 1932 P.C.U. (ser.

PA R T I I
The Court determined that the eviction of German settlers from Poland would
violate the government’s obligations under the Minorities Treaty -particularly
the property rights of the German minority in Poland. In two advisory opin-
ions relating to the City of Danzig, the PCIJ applied the principle of Nullum
crimen sin lege (no crime without law) to find a violation of fundamental
rights a decree that a person may be punished in “accordance with the fun-
damental idea of a law and in accordance with sound popular feeling.”226
Similarly, in another advisory opinion the Court held in Jurisdiction of the
Courts of Danzig227 that individuals -in this case, Danzig railway officials -have
the capacity to assert their rights under international law, that is against the
Polish Railways Administration under the relevant treaty.
Soon after its establishment, the International Court of Justice rendered
its first advisory opinion with regard to a human rights issue in holding that
a reservation to the Convention on Genocide could not be sustained unless
it was consistent with the object and purpose of the treaty. The Court noted
“the [human rights) principles underlying the Convention are principles
which are recognized by civilized nations as binding on States, even without
any conventional obligation.”228 In an advisory opinion of 1970, the I.C.J.
found that South Africa’s continued presence in Namibia was a violation of
international law because the government of South Africa had “pledged itself
to observe and respect, in a territory having an international status, human
rights and fundamental freedoms for all without distinction as to race. To
establish instead, and to enforce, distinctions ... based on grounds of race ...
which constitute a denial of fundamental human rights is a flagrant violation
of the purposes and principles of the Charter ....”229 The International Court of
Justice in its 1980 judgment in the Case Concerning United States Diplomatic
and Consular Staff in Tehran said that “[w]rongfully to deprive human beings
of their freedom and to subject them to physical constraint in conditions of
hardship is in itself manifestly incompatible with the principles of the Charter
NB) No. 44, at 28 (Feb. 4); Advisory Opinion No. 64, Minority Schools in Albania,
1935 P.C.U. (ser. NB) No. 64, at 17 (Apr. 6).
226
Advisory Opinion No. 65, Consistency of Certain Danzig Legislative Decrees with
the Constitution of the Free City, 1935 P.C.I.J. (ser. NB) No. 65, at 45 (Dec. 4).
227
Advisory Opinion No. 15, Jurisdiction of the Courts of Danzig, 1928 P.C.I.J. (ser. B)
No. 15, at 4 (Mar. 3).
228
Advisory Opinion on Reservations to the Convention on the Prevention and Pun-
ishment of the Crime of Genocide, 1951 I.C.J. 15 (May 28).
229
Legal Consequences for States of the Continued Presence of South Africa in Namibia
(South West Africa) Notwithstanding Security Council resolution 276 (1970),1971
I.C.J. 15 (June 21).

of the United Nations, as well as with the fundamental principles enunciated

in the Universal Declaration of Human Rights.”230 In 1986 the I.C.J. found the
United States responsible for violating customary international law by fail-
ing to give notice of its mining of Nicaraguan ports.231 In the same case the
Court found U.S. publication and dissemination of a manual on “Psychological
Operations in Guerilla Warfare,” which advised the contras to “neutralize”
certain judges, police officers, and State Security officials, to be “contrary to
the publication of the prohibition in Article 3 of the Geneva Conventions,
with respect to ... executions without . . . judicial guarantees....
In 1998, the International Court of Justice unanimously indicated pro-
visional measures by the United States so as to ensure that a Paraguayan
prisoner Angel Francisco Breard would not be “executed pending the final
decision in regard to the claim that Breard had not been notified of his right
to contact his consular representatives promptly after he was arrested for
murder in these proceedings.232 The United States government and the Su-
preme Court ignored that request and Breard was executed. Again in 1999,
the I.C.J. decided to accept Germany’s application for provisional measures to
request the United States to “take all measures at its disposal” to ensure that
two German nationals are not executed in Arizona, while the Court consid-
ers the implications of the failure of Arizona authorities to comply with the
consular notification requirements of the Vienna Convention on Consular Re-
lations.233 The I.C.J. has reinforced the privileges and Rights Education and the
U.N. Decade Against Racism, and adopting the Declaration on the Right and
Responsibility of Individuals, Groups and Organs of Society to Promote and
Protect Universally Recognized Human Rights and Fundamental Freedoms
(Human Rights Defenders). In 1993, the General Assembly voted to create
the post of United Nations High Commissioner for Human Rights. The Office
of the High Commissioner for Human Rights, operating under the authority
of the Secretary-General, has principal responsibility for U.N. human rights
230
Case Concerning United States Diplomatic and Consular Staff in Tehran, 1980 I.C.J
. 3, 42 (May 24). Case Concerning United States Diplomatic and Consular Staff in
Tehran, 1980 I.C.J. 3, 42 (May 24).
231
Case Concerning Military and Paramilitary Activities in and Against Nicaragua
(Nicaragua v. United States of America), 1986 I.C.J. 14, 129-30 (June 27).
232
Vienna Convention on Consular Relations (Paraguay v. United States of America),
1998 I.C.J. 248 (Provisional Measures, Order of9 Apr.) and 1998 I.C.J. 266 (Apr. 9);
1998 I.C.J. 426 (Nov. 10); 1998 J.C.J. 272 (June 8). The case was discontinued by
the I.C.J. at Paraguay’s request on 10 Nov. 1998.
233
LaGrand Case (Germany v. United States of America), 1999 I.C.J. 9 (Provisional
Measures, Order).

PA R T I I
activities, including: overseeing most U.N. human rights bodies, promoting

universal ratification and implementation of international standards, and
maintaining U.N. human rights field operations. Additionally, the General
Assembly has focused on issues such as racism, religious intolerance, the
rights of the child, and the right to self-determination. Further, the General
Assembly has examined human rights situations in Afghanistan, Bosnia and
Herzegovina, Cambodia, Cuba, Haiti, Iraq, Islamic Republic of Iran, Kosovo,
Myanmar, Nigeria, Rwanda, and Sudan.
Despite a longstanding tension between Charter Article 2(7) prohibition
against invading states’ domestic jurisdiction and human rights protections in
Charter Articles 1, 55, and 56, the General Assembly has increasingly drawn
attention to the protection of human rights in specific countries. The tension
was broken in the mid-1970s when the General Assembly and the Commis-
sion on Human Rights developed a consensus that a Working Group must
be established to investigate human rights violations in Chile.5O Following
that period, almost all governments have accepted the propositions that
human rights constitute a matter of international concern, and that U.N. in-
vestigations and hortatory resolutions do not, in any case, invade a country’s
domestic jurisdiction. Domestic jurisdiction arguments under Article 2(7) are
occasionally raised by specific governments accused of violations, but are not
met with widespread approval. In fact, offending governments often under-
mine their arguments by supporting condemnatory resolutions with regard
to other offending countries. Since the mid-1970s the General Assembly and
other U.N. organs have more regularly expressed concern and taken other
actions with regard to situations in particular countries or regions, including
Afghanistan, Cambodia, Cuba, EI Salvador, Estonia and Latvia, Haiti, Iraq, the
Islamic Republic of Iran, Kosovo, Myanmar (Burma), Rwanda, Somalia, the
Sudan, and the former Yugoslavia.
The Economic and Social Council (ECOSOC) is an intergovernmental
body, which operates under the authority of the General Assembly. It consists
of 54 members, elected for three-year terms by the General Assembly. The
Council usually meets for a six-week session each year; its meetings alternate
between Geneva and New York. ECOSOC receives and ordinarily approves
recommendations from the Commission on Crime Prevention and Criminal
Justice and the Commission on the Status of Women. The Council is also
responsible for monitoring compliance with the Covenant on Economic,
Social and Cultural Rights through the Committee on Economic, Social and
Cultural Rights. Further, it has issued such human rights standards as the
Standard Minimum Rules for the Treatment of Prisoners and the Principles
on the Effective Prevention of Extra Legal, Arbitrary and Summary Executions.

The United Nations Human Rights Council was established by General

Assembly resolution 60/251 in March 2006, and replaced the Commission on
Human Rights. The resolution was adopted by a vote of 170 in favor and four
against. The United States abstained. The Commission had been composed of
53 member states elected by the Economic and Social Council for three-year
terms and met annually in Geneva for six weeks each spring. The Human
Rights Council held its first meeting in Geneva in June 2006. The new body
was promoted on the basis that it would meet more regularly and that its
membership would be elected on the basis of their human rights performance,
their human rights record would be subject to peer review, and they could be
removed from the Council by a two thirds vote of the General Assembly. The
new Council is comprised of 47 members elected by the General Assembly.
The Council has continued, with somewhat diminished enthusiasm, to pur-
sue the three principal approaches to serious and widespread violations of
human rights: the establishment of country rapporteurs and working groups
initially authorized by ECOSOC resolution 1235 and now authorized by Hu-
man Rights Council resolution 5/1, consideration of complaints relating to
country situations under the confidential procedure initially authorized by
ECOSOC resolution 1503, and review through thematic procedures relating
to forced disappearances, summary or arbitrary executions, torture, religious
intolerance, mercenaries, arbitrary detention, internally displaced persons,
violence against women, etc. The Council has also established a universal
periodic review mechanism whereby the human rights performance of 48
nations is reviewed each year, such that all U.N. members will be scrutinized
every four years.234
The Sub-Commission on the Promotion and Protection Human Right.,;
(from 1946-1999 known as the Sub-Commission on the Prevention of Dis-
crimination and Protection of Minorities) was unusual because it was com-
posed of 26 persons elected by the Commission, for four-year terms, in their
individual capacities rather than as governmental representatives. The Sub-
Commission was the source of many human rights standards and procedures
that were considered and adopted by higher U.N. bodies. With the assistance
of the U.N. Office of the High Commissioner for Human Rights, members of
the Sub-Commission also prepared path breaking studies on human rights
problems. In addition, representatives of NGOs actively participated in the
Sub-Commission’s sessions. In 2008 the Human Rights Council replaced the
Sub-Commission by electing an 18-member Advisory Committee to “provide
234
See Menno T. Kamminga, Interstate Accountability for Violations of Rights of Man
9 & 99 (1990).

PA R T I I
expertise to the Council in the manner and form requested by the Council,
focusing mainly on studies and research-based advice.”235
The Commission on the Status of Women (CSW) was established by the
Economic and Social Council (ECOSOC) in 1946. When the Commission
was first established, it was created as a sub-commission of the Commission
on Human Rights. It only took one year, however, to realize the importance
of this topic and thus to establish the full commission. The Commission on
the Status of Women (CSW) is currently composed of representatives from
45 United Nations member states, elected by ECOSOC for four-year terms. Its
functions are to prepare recommendations and reports to the ECOSOC on
promoting women’s rights and equality in political, economic, civil, social, and
educational fields. The CSW may also make recommendations to the ECOSOC
on problems in the field of women’s rights that require immediate attention.
The CSW has a procedure for receiving confidential communications on hu-
man rights violations, but that procedure has not been well-publicized, is not
often invoked, and has not been particularly efficacious. The CSW’s objec-
tives are to implement the principle that men and women shall have equal
rights, to develop proposals that give effect to its recommendations, and to
adopt its own resolutions and decisions. The Commission is located in New
York. The Inter-American Commission of Women and the Commission on
the Status of Arab Women submit reports to each session of the Commission
on the Status of Women.
The U.N.’s crime prevention and criminal justice program was, until
1992, administered by the Committee on Crime Prevention and Control, a
subsidiary organ of ECOSOC. The Committee, composed of twenty-seven
experts, planned the quinquennial Congresses on the Prevention of Crime
and the Treatment of Offenders, submitted proposals, and implemented the
Congresses’ recommendations. The Committee’s primary roles were to foster
the exchange of information concerning criminal justice and to generate
standards against which state performance may be judged. The Committee
was very successful in drafting important human rights standards such as
the Basic Principles on the Use of Force and Firearms by Law Enforcement
Officials, Basic Principles on the Role of Lawyers, and Guidelines on the Role
of Prosecutors.
In 1992 ECOSOC, pursuant to a request by the General Assembly, dis-
banded the Committee and replaced it with the Commission on Grime
Prevention and Criminal Just-ice. The Commission is composed of 40 gov-
235
Human Rights Council, HRC 5/2007 (2007).

ernment representatives rather than the independent experts that served

on the Committee. The Commission’s functions are similar to those of the
Committee, with the additional responsibility of mobilizing U.N. member
states’ support for the crime prevention and criminal justice program. The
Commission, as a governmental rather than an expert body, has been less
productive in norm setting.
The Peace building Commission was established in December 2005.
The Commission’s Organizational Committee consists of 31 government
members elected to two-year terms. Seven members are from the Security
Council and seven from the Economic and Social Council, selected in a man-
ner determined by the respective Councils. Five members are chosen from
among the top ten assessed financial contributors to the U.N. that were not
previously selected. Five members are chosen from among the governments
that contributed the most military and police personnel for U.N. activities
that were not previously selected. The final seven members are selected by
the General Assembly, giving due consideration to those countries that have
experienced post-conflict recovery. When the Organizational Committee
addresses a specific conflict situation, it may add members from the coun-
tries involved, surrounding nations, nations contributing to any ongoing
peacekeeping effort, any regional institutions involved, and the senior U.N.
official in the field. The Commission is to propose an integrated strategy for
rebuilding and maintaining peace. The Commission is also expected to aid
in procuring financial resources and promoting coordination among various
organizations inside and outside the U.N.
Other U.N. organs that work to protect human rights include the Interna-
tional Labour Organization (ILO), the oldest intergovernmental organization,
which has promulgated 199 recommendations and 188 conventions through
January 2009, including several treaties relating to human rights (e.g., on free-
dom of association, forced labor, indigenous rights, and sex discrimination).
The ILO’s Committee on Freedom of Association adjudicates complaints by
trade unions that their rights have been infringed, and its Committee of Ex-
perts reviews periodic state reports under the ILO standard-setting treaties.
The ILO also contributes to the deliberations of the international human rights
treaty bodies, such as the Human Rights Committee. The U.N. Educational,
Scientific and Cultural Organization (UNESCO) has promulgated a few trea-
ties related to human rights (e.g., as to discrimination in education). UNESCO
has also established a Committee on Conventions and Recommendations,
which examines allegations of human rights violations against artists, authors,
scientists, and teachers. The U.N. High Commissioner for Refugees (UNHCR)
protects refugees and asylum seekers and pursues durable solutions for

PA R T I I
them, including repatriation, resettlement, and local settlement. The UNHCR

has also become a major provider of humanitarian assistance to displaced
persons, including refugees, persons forced to cross national frontiers by
armed conflict, and internally displaced persons. The Food and Agriculture
Organization (FAO), the United Nations Children’s Fund (UNICEF), and the
World Health Organization (WHO) also have programs and policies relating
to human rights within their respective fields of activity. Even international
financial institutions such as the International Monetary Fund and the World
Bank make decisions with substantial human rights consequences; the World
Bank has developed policies on some of its activities which may have human
rights consequences, e.g., involuntary resettlement and indigenous people. The
human rights implications of trade regulation by bodies such as the World
Trade Organization have been the subject of heated debate.
c. Development of human rights law through treaty based human rights
committees
The monitoring bodies established under specific human rights treaties
are playing an increasingly significant role. These expert bodies include the
Human Rights Committee, which considers states’ reports under the Inter-
national Covenant on Civil and Political Rights and adjudicates individual
cases under the First Optional Protocol to the Civil and Political Covenant.
The Human Rights Committee also issues General Comments, which are the
considered views of the Committee Members on the nature and substance
of state obligations in respect to particular articles of the Covenant. These
Comments are very important in setting out general understandings of the
nature and content of state obligations under the Covenant. The other treaty
bodies similarly oversee the implementation of multilateral conventions in
their respective domains: the Committee on the Elimination of All Forms of
Racial Discrimination; the Committee on the Elimination of Discrimination
against Women; the Committee against Torture; the Committee on the Rights
of the Child, the Committee on Economic, Social and Cultural Rights, and
the Committee on the Protection of the Rights of All Migrant Workers and
Members of Their Families. Some of these bodies have, or are developing
individual complaint mechanisms (see, e.g., the CEDAW Committee, and the
Economic, Social and Cultural Rights Committee)
6. Regional Organizations and Law-Making
During the period in which U.N. mechanisms for implementing human
rights were being created, regional human rights structures were also being
developed in Europe and the Americas. European states, in particular, fresh
from the horrors of the Second World War, gave particular priority to the

creation of human rights enforcement mechanisms that would meaningfully

protect ordinary individuals in times of war and peace. The African human
rights system was slower to consolidate but it is now moving to a status and
enforcement capacity similar to its regional counterparts. The rights protected
by these structures are similar to those of the International Bill of Human
Rights, but each of the structures has developed unique approaches to seek-
ing assurance that the rights are put into practice.
The Organization for Security and Cooperation in Europe, which arose
from the 1975 Helsinki Accords and follow-up efforts, now has 56 members,
from the U.S. and Canada in the West to Russia and Kazakhstan in the East.
It has created the office of High Commissioner for Minorities and has begun
to employ a staff in Prague and Warsaw to encourage democracy and deal
with ethnic strife and other serious human rights problems in Central Europe.
Relatively little has been done, however, to establish a regional human rights
system in Asia. .
a. European System
The European system is the most developed of the regional human rights
structures. In 1950 the Council of Europe promulgated the European Conven-
tion for the Protection of Human Rights and Fundamental Freedoms, which
entered into force in 1953. Following the entry into force of Protocol No.
11 on November 1, 1998, and a transitional period for pending cases, the
European Convention is implemented by a single permanent body, the Euro-
pean Court of Human Rights. (Formerly, two part-time bodies, the European
Commission of Human Rights and the European Court of Human Rights,
had enforcement roles). Review of the effectiveness of the Court’s structure
remains ongoing, and further structural reform is likely. States parties to the
Convention may refer alleged violations by other States parties to the Court,
though the primary enforcement mechanism is activated through the appli-
cations brought by individuals. The Council of Europe has promulgated 14
protocols to expand the protections offered under the European Conven-
tion, by adding or redefining rights or by restructuring the implementation
system.236 The European system has compiled impressive jurisprudence and
has achieved a high degree of compliance with its decisions. Importantly the
European Convention has been incorporated into the legal systems of all
ratifying states in some form, thereby augmenting the enforcement capacity
of the treaty.
236
Protocol No. 14 has not come into force, and remains inoperative pending Russian
ratification.

PA R T I I
In addition to the European Convention, there are several other European

human rights treaties, including the European Social Charter, the Additional
Protocol to the European Social Charter, and the European Convention for
the Prevention of Torture and Inhuman or Degrading Treatment or Punish-
ment. There also are several relevant European institutions with a human
rights role, including the European Committee for the Prevention of Torture.
Another parallel institution with growing treaty and institutional compe-
tencies in human rights protections is the European Union. Historically, the
European Union articulated its commitments to human rights and funda-
mental freedoms most strongly though social rights protections, and through
the jurisprudence of the European Court of Justice based in Brussels. The
European Union’s Charter on Fundamental Rights is a document containing
human rights provisions “solemnly proclaimed” in December 2000 by the
European Parliament, the Council of the European Union, and the European
Commission. The Charter does not have the status of binding law but clearly
draws together all the human rights norms contained in the treaties of the
European Union. The proposed European Constitution contains a version
of the Charter. The Constitution proposes that the European Union should
accede to the European Convention on Human Rights, thereby enabling
the European Court of Justice to render decisions based on the Convention.
The Council of Europe has a broader membership than the European Union
(EU) (47 states as compared to 27, including many from Central and Eastern
Europe).
b. Inter-American System
The Inter-American system for protecting human rights has two principal
legal sources: the American Declaration of the Rights and Duties of Man, an
instrument adopted by the Organization of American States (OAS) along
with its Charter in 1948, and the American Convention on Human Rights,
adopted by the OAS in 1969, which came into force in 1978. The OAS cre-
ated the Inter-American Commission on Human Rights in 1959, but until
1970 the Commission’s mandate to function came only from OAS General
Assembly resolutions of uncertain legal force. In 1970, revisions in the OAS
Charter transformed the Inter-American Commission into one of the principal
organs of the OAS. The Inter-American Commission and the Inter-American
Court of Human Rights are the bodies charged with the implementation of
the American Convention.
The Commission’s main functions are to promote respect for and to
defend human rights. In fulfilling its functions, the Inter-American Commis-
sion on Human Rights has done impressive fact-finding work in a number

of grave country situations. It has issued many individual decisions, but has
had difficulty in achieving compliance.
The Commission initiates country studies if it receives a large number of
complaints charging a particular government with serious and widespread
human rights violations. The Commission prepared its first country reports on
Cuba, Haiti, and the Dominican Republic in the 1960s. Although the govern-
ments of Cuba and Haiti refused to admit the Commission into their countries,
the Dominican Republic allowed the Commission to visit and thus became
the subject of the Commission’s first on-site investigation. Since then, the
Commission has conducted on-site investigations in a number of other OAS
countries, including Argentina, Bolivia, Chile, Colombia, El Salvador, Guate-
mala, Haiti, Honduras, Nicaragua, Panama, Paraguay, Suriname, and Uruguay.
The Commission can also receive individual petitions alleging human rights
violations by OAS member states, whether or not the state in question has ratified
the American Convention. The Commission determines admissibility, engages in
fact-finding, attempts to arrange friendly settlements and, if necessary, decides
whether a violation of the American Convention or the American Declaration has
been committed. The Commission may also refer cases involving State parties to
the American Convention to the Inter-American Court of Human Rights. A State
party to the Convention must specifically recognize the Court’s competence to
hear contentious cases in order to be subject to the Court’s jurisdiction. The Court
also exercises a broadly defined advisory jurisdiction, and has issued significant
advisory opinions concerning the meaning of the American Convention and
other human rights instruments. In addition to the OAS Charter, the American
Declaration, and the American Convention, the OAS has promulgated several
other treaties and protocols relating to economic, social and cultural rights; the
death penalty; disappearances; torture; and violence against women. For more
on the Inter-American system, see chapter 11, Infra.
c. African Union
The African Union (AU) is the successor organization to the Organization
for African Unity (OAU). The OAU was originally formed to rid the African
continent of the last vestiges of colonialism, but it also took steps to promote
human rights. The Charter of the OAU, adopted in 1963, reaffirms adherence
to the principles of the U.N. ChaIier and the Universal Declaration of Human
Rights. In 1981 the OAU adopted its principal human rights treaty, the African
Charter on Human and Peoples’ Rights. The African Charter entered into force
in 1986 and has been ratified by all 53 current members of the AU. In 2002
the AU was formed. Among other goals the AU aims “to encourage internal
cooperation, taking due account of the Charter of the United Nations and the

PA R T I I
Universal Declaration of Human rights [and) to promote and protect human

and peoples’ rights in accordance with the African Charter on Human and
People’s Rights and other relevant human rights instruments.”237
The African Commission on Human and Peoples’ Rights has eleven
members who serve in their individual capacity. Under Article 45 of the AU
Charter the Commission’s mandate includes taking measures to promote hu-
man rights such as researching specific situations, on-site missions, organizing
seminars and conferences, giving recommendations to states, setting out hu-
man rights principles, and cooperating with other international organizations.
It monitors states’ compliance through review of reports that are required
every two years. It can also receive communications from states, individuals,
and NGOs. Unfortunately, the process of state reporting has not been effec-
tive in part because states have been very tardy in submitting reports to the
Commission after ratifying the Charter.
The Protocol to the African Charter for the establishment of the African
Court on Human and Peoples’ Rights came into force on January 25, 2004. The
Protocol calls for a Court of eleven judges who are nationals of member states
of the AU. The African Court has adopted its rules of procedure and is expected
to hear cases brought by AU member states and African intergovernmental
organizations, and receive requests from nongovernmental organizations. In-
dividuals can bring a case only with the agreement of the relevant government
or through the African Commission for Human and Peoples’ Rights.
Regional Systems: Europe

Leyla Sahin v. Turkey, Decision of the European Court of
*Note the difference in the Court’s decision and analysis from that of the
Human Rights Committee in Raihon Hudoyberganova v. Uzbekistan provided
earlier in this chapter.
I. THE CIRCUMSTANCES OF THE CASE
The applicant was born in 1973 and has lived in Vienna since 1999, when
she left Istanbul to pursue her medical studies at the Faculty of Medicine at
237
See The Objectives of the African Union, available at http://www.african-union.org/.
238
Leyla Sahin v. Turkey, Application no. 44774/98, Decision of the European Court
of Human Rights (10 November 2005).

Vienna University. She comes from a traditional family of practising Muslims

and considers it her religious duty to wear the Islamic headscarf.
A. Circular of 23 February 1998
On 26 August 1997 the applicant, who was then in her fifth year at the
Faculty of Medicine at the University of Bursa, enrolled at the Cerrahpaşa
Faculty of Medicine at the University of Istanbul. She says that she wore the
Islamic headscarf during the four years she spent studying medicine at the
University of Bursa and continued to do so until February 1998.
On 23 February 1998 the Vice-Chancellor of Istanbul University issued a
circular regulating students’ admission to the university campus. The relevant
part of the circular provides:
“By virtue of the Constitution, the law and regulations, and
in accordance with the case-law of the Supreme Administrative
Court and the European Commission of Human Rights and the
resolutions adopted by the university administrative boards,
students whose ‘heads are covered’ (wearing the Islamic
headscarf) and students (including overseas students) with
beards must not be admitted to lectures, courses or tutorials.
Consequently, the name and number of any student with a
beard or wearing the Islamic headscarf must not be added
to the lists of registered students. However, if students whose
names and numbers are not on the lists insist on attending
tutorials and entering lecture theatres, they must be advised of
the position and, should they refuse to leave, their names and
numbers must be noted and they must be informed that they
are not entitled to attend lectures. If they refuse to leave the
lecture theatre, the teacher shall record what has happened
in a report explaining why it has not been possible to give
the lecture and shall bring the matter to the attention of the
university authorities as a matter of urgency so that disciplinary
measures can be taken.”
On 12 March 1998, in accordance with the aforementioned circular,
the applicant was denied access by invigilators to a written examination on
oncology because she was wearing the Islamic headscarf. On 20 March 1998
the secretarial offices of the chair of orthopaedic traumatology refused to
allow her to enroll because she was wearing a headscarf. On 16 April 1998
she was refused admission to a neurology lecture and on 10 June 1998 to a
written examination on public health, again for the same reason….

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6. Judgement
(a) The relevant principles
In democratic societies, in which several religions coexist within one and
the same population, it may be necessary to place restrictions on freedom
to manifest one’s religion or belief in order to reconcile the interests of the
various groups and ensure that everyone’s beliefs are respected (Kokkinakis,
cited above, p. 18, § 33).
A margin of appreciation is particularly appropriate when it comes to
the regulation by the Contracting States of the wearing of religious symbols
in teaching institutions, since rules on the subject vary from one country
to another depending on national traditions (see paragraphs 53-57 above)
and there is no uniform European conception of the requirements of “the
protection of the rights of others” and of “public order” (Wingrove, cited
above, § 58; and Casado Coca, cited above, § 55). It should be noted in this
connection that the very nature of education makes regulatory powers
necessary (see, mutatis mutandis, Kjeldsen, Busk Madsen and Pedersen v.
Denmark judgment of 7 December 1976, Series A no. 23, p. 26, § 53, X v. the
United Kingdom, no. 8160/78, Commission decision of 12 March 1981, DR
22, p. 27; and 40 mothers v. Sweden, no. 6853/74, Commission decision of
9 March 1977, DR 9, p. 27).
(b) Application of the foregoing principles to the present case
In order to assess the “necessity” of the interference caused by the circular
of 23 February 1998 imposing restrictions as to place and manner on the
rights of students such as Ms Şahin to wear the Islamic headscarf on university
premises, the Court must put the circular in its legal and social context and
examine it in the light of the circumstances of the case. Regard being had to
the principles applicable in the instant case, the Court’s task is confined to
determining whether the reasons given for the interference were relevant
and sufficient and the measures taken at the national level proportionate to
the aims pursued.
It must first be observed that the interference was based, in particular, on
two principles – secularism and equality – which reinforce and complement
each other (see paragraphs 34 and 36 above).
In its judgment of 7 March 1989, the Constitutional Court stated that
secularism in Turkey was, among other things, the guarantor of democratic
values, the principle that freedom of religion is inviolable – to the extent
that it stems from individual conscience – and the principle that citizens are
equal before the law (see paragraph 36 above). Secularism also protected the

individual from external pressure. It added that restrictions could be placed

on freedom to manifest one’s religion in order to defend those values and
principles.
This notion of secularism appears to the Court to be consistent with
the values underpinning the Convention and it accepts that upholding that
principle may be regarded as necessary for the protection of the democratic
system in Turkey.
In addition, like the Constitutional Court (see paragraph 36 above), the
Court considers that, when examining the question of the Islamic headscarf
in the Turkish context, there must be borne in mind the impact which wear-
ing such a symbol, which is presented or perceived as a compulsory religious
duty, may have on those who choose not to wear it. As has already been
noted (see Karaduman, decision cited above; and Refah Partisi and Others,
cited above, § 95), the issues at stake include the protection of the “rights and
freedoms of others” and the “maintenance of public order” in a country in
which the majority of the population, while professing a strong attachment
to the rights of women and a secular way of life, adhere to the Islamic faith.
Imposing limitations on freedom in this sphere may, therefore, be regarded
as meeting a pressing social need by seeking to achieve those two legitimate
aims, especially since, as the Turkish courts stated (see paragraphs 32 and 34
above), this religious symbol has taken on political significance in Turkey in
recent years.
The Court does not lose sight of the fact that there are extremist politi-
cal movements in Turkey which seek to impose on society as a whole their
religious symbols and conception of a society founded on religious precepts
(see paragraphs 32 and 33 above). It has previously said that each Contracting
State may, in accordance with the Convention provisions, take a stance against
such political movements, based on its historical experience (Refah Partisi and
Others, cited above, § 124). The regulations concerned have to be viewed in
that context and constitute a measure intended to achieve the legitimate aims
referred to above and thereby to preserve pluralism in the university.
111. The applicant has been critical of the manner in which the university
authorities applied the measures (see paragraphs 86-88 above). However, the
Court notes that it is undisputed that in Turkish universities, to the extent that
they do not overstep the limits imposed by the organisational requirements of
State education, practising Muslim students are free to perform the religious
duties that are habitually part of Muslim observance. In addition, the resolu-
tion which was adopted by Istanbul University on 9 July 1998 (see paragraph
45 above) treated all forms of dress symbolising or manifesting a religion

PA R T I I
or faith on an equal footing in barring them from the university premises….

ALLEGED VIOLATION OF ARTICLES 8 AND 10, ARTICLE 14 TAKEN TO-
GETHER WITH ARTICLE 9, AND ARTICLE 2 OF PROTOCOL NO. 1
116. The applicant alleged that the ban on wearing the Islamic headscarf
in higher-education institutions had infringed her right under Article 2 of
Protocol No. 1 to the Convention.
She also said that it obliged students to choose between religion and
education and discriminated between believers and non-believers. That, in
her view, constituted an unjustified interference with her rights guaranteed
by Article 14 of the Convention, taken together with Article 9.
Lastly, she complained of a violation of Articles 8 and 10 of the Conven-
tion.
117. The Court finds that no separate question arises under the other
provisions relied on by the applicant, as the relevant circumstances are the
same as those it examined in relation to Article 9, in respect of which the
Court has found no violation.
FOR THESE REASONS, THE COURT UNANIMOUSLY
1. Dismisses the Government’s preliminary objection;
2. Holds that there has been no violation of Article 9 of the
Convention
3. Holds that no separate question arises under Articles 8 and
10, Article 14 taken together with Article 9 of the Convention,
and Article 2 of Protocol No. 1.
Regional Systems: Inter-American

International Human Rights: Problems of Law, Policy, and
Practice239
I. Human Rights in Argentina
The phenomenon of forced or involuntary “disappearance” is not new,
but it became the subject of widespread attention in the 1970s and 1980s,
particularly in Latin America. Disappearance poses particular hardship for the
239
Richard B. Lillich, Hurst Hannum, S. James Anaya, Dinah L. Shelton, [excerpt re-
printed with permission from the authors and Aspen Publishers].

relatives and friends of the missing person; they live in a state of uncertainty
for years and sometimes decades, not knowing the fate or whereabouts of
their loved one. Disappearance also poses problems for human rights inter-
governmental and non-governmental human rights bodies, because it is
designed to conceal and destroy all evidence that would connect the perpetra-
tors to the victims. This chapter examines the practice of the Inter-American
Human Rights system in addressing human rights violations, by focusing on
the problem of disappearances in Argentina.240
A long phase of political and social instability began in Argentina in 1930.
It gave rise to institutional crises, the establishment of irregular or de facto
governments, an internal state of war, state of siege and martial law, attempts
at totalitarian or joint rule, changes in the organization of state powers, enact-
ment of repressive legislation and especially in the last ten years, an abrupt
increase in terrorist violence by the extreme left and the extreme right, as a
means of armed conflict. All of this has been detrimental to the rule of law.
In the last fifty years only two governments have completed their consti-
tutional mandate: that of General Agustin P. Justo, 1932 to 1938, and that of
General Juan Domingo Peron, 1946-1952. Military takeovers have prevented
the completion of the other legal mandates during that same period and
since 1952 [until 1980], no government has completed its constitutional
term of office.
Such conditions have had a direct effect on the constitutional legal order
and have made it difficult to realize the representative and republican form
of government provided for in Article 1 of the Constitution.
The political organization of the Argentine State... has been substantially
altered by the military takeover of March 24, 1976, the date on which the
Armed Forces, “in view of the current state of the country,” proceeded to “take
over the reins of Government of the Republic” in accordance with a public
proclamation. To achieve this, they resolved to adopt measures concerning
the organization and operation of the state authorities. In the Act for the
National Reorganization Process the following measures were included: a) to
establish a military junta with the General Commanders of the Armed Forces,
“which shall assume the political power of the Republic,” b) to declare the
terms of office of the President and of the Governors and Vice Governors
of the provinces to be null and void, c) to dissolve the National Congress,
240
Inter-American Commission on Human Rights, Report on the Situation of Human
Rights in Argentina, OAS Doc. OEA/Ser.L/V/II.49, doc. 19, corr. 1, April 11, 1980,
pp. 14-15,18-19, 21, 53-56.

PA R T I I
the provincial legislature, the House of Representatives of the city of Buenos

Aires and the Municipal Councils of the provinces or similar bodies, d) to
remove the members of the Supreme Court, the Attorney General and the
other members of the higher provincial courts, and e) to appoint the citizen
who shall serve as President....
With the military takeover of 1976, the constitutional system was altered
by the new Government, by provisions which affect the full observance and
exercise of human rights, despite the fact that in the Act issued on March
24 of that year, in which the purpose and basic objectives for the National
Reorganization Process were set forth, a prime objective was “the validity of
Christian moral values, national tradition and the dignity of the Argentine”
and “a full enforcement of the juridical and social system.”
When the change of government occurred in March 1976, the country
was in a state of siege, pursuant to Article 23 of the Constitution, which made
possible implementation of severe national security measures in order to
eradicate subversion....
By virtue of the Institutional Act of June 18, 1976, the Military Junta
assumed “the power and responsibility to consider the actions of those in-
dividuals who have injured the national interest,” but on grounds as generic
as “failure to observe basic moral principles in the exercise of public, politi-
cal or union offices or activities that involve the public interest.” Based on
that Act, a number of special laws have been enacted, which, because of the
discretionary nature of the powers granted, have led to the use of arbitrary
measures, which have been the cause of intimidation and uncertainty
During [1976-1979], the IACHR... received a large number of claims affect-
ing a considerable number of persons in Argentina. These claims allege that
said persons have been apprehended either in their homes, their jobs, or on
the public thoroughfares, by armed men, who are occasionally in uniform,
in operations and under conditions that indicate, due to the characteristics
in which they are carried out, that they are conducted by agents of the State.
After these actions have occurred, the persons apprehended disappear, and
nothing is ever known of their whereabouts....
The Commission has in its files, lists with names, dates, and other data,
as well as several studies that have been carried out regarding this problem.
Without giving, for the time being, exact figures on the number of these dis-
appeared persons, the information obtained makes it clear that there exists
a situation of extreme irregularity requiring special discussion and analysis....
In ... denunciations or claims received by the IACHR it has been reported

that the armed groups that carry out the operations in the homes apprehend
the victim and occasionally his spouse and children, carry out a search of
the home, looting the belongings of the residents, and as a general rule, take
away all members of the family after placing hoods over their heads and eyes.
The persons affected by these operations, included in the lists at the IA-
CHR, are mostly men and women between 20 and 30 years of age, although
older persons and minors have also been known to disappear. Some of the
children, kidnapped with their parents, have been released and delivered to
relatives or have been abandoned in the streets. Other children, however,
continue to be listed among the disappeared.
According to the Commission’s information the phenomenon of the dis-
appeared affects professionals, students, union workers, employees in various
areas of business, journalists, religious leaders, military recruits and business
men; in other words, most elements of Argentine society.
II. Evolution of the Human Rights System in the Americas
The Inter-American system as it exists today began with the transforma-
tion of the Pan American Union, which dates back to the nineteenth century,
into the Organization of American States (OAS). Article 3 of the OAS Charter
proclaims the “fundamental rights of the individual” as one of the Organi-
zation’s basic principles (Documentary Supplement, page xxx).* Concern
with human rights not only inspired the Organization of American States to
refer to human rights in its Charter but led it to adopt the Inter-American
Declaration on the Rights and Duties of Man in May 1948, half a year before
the United Nations completed the Universal Declaration of Human Rights.
The Commission may prepare country reports and conduct on-site visits
to individual countries, examining the human rights situation in the particular
country and making recommendations to the government. Country reports
have been prepared on the Commission’s own initiative and at the request
of the country concerned. The Commission also may appoint special rap-
porteurs to prepare studies on hemisphere-wide problems.
Like the European system, the Inter-American system has expanded
its protections over time through the adoption of additional human rights
norms. …
The Commission has been given competence over matters relating to
the fulfillment of obligations undertaken by states parties to all human rights
conventions adopted in the regional framework, with the exception of the
Convention on Persons with Disabilities, which creates a separate supervisory
committee.

PA R T I I
The early history and basic structure of the inter-American system is sum-
marized in the following extract.
Cecelia Medina, “The Inter-American Commission on Human Rights and
the Inter-American Court of Human Rights: Reflections on a Joint Venture”
12 Hum. Rts. Q. 439-447 (1990)
The Inter-American Commission on Human Rights was... originally con-
ceived as a study group concerned with abstract investigations in the field
of human rights. However, the creators of the Commission did not foresee
the appeal this organ would have for the individual victims of human rights
violations. As soon as it was known that the Commission had been created,
individuals began to send complaints about human rights problems in their
countries. Prompted by these complaints, the Commission started its ac-
tivities with the conviction that in order to promote human rights it had to
protect them.
A significant part of the Commission’s work was addressing the problem
of countries with gross, systematic violations of human rights, characterized
by an absence or a lack of effective national mechanisms for the protection
of human rights and a lack of cooperation on the part of the governments
concerned. The main objective of the Commission was not to investigate
isolated violations but to document the existence of these gross, systematic
violations and to exercise pressure to improve the general condition of hu-
man rights in the country concerned. For this purpose, and by means of its
regulatory powers, the Commission created a procedure to “take cognizance”
of individual complaints and use them as a source of information about gross,
systematic violations of human rights in the territories of the OAS member
states.
The Commission’s competence to handle individual communications
was formalized in 1965, after the OAS reviewed and was satisfied with the
Commission’s work. The OAS passed Resolution XXII, which allowed the
Commission to “examine” isolated human rights violations, with a particular
focus on certain rights. This procedure, however, provided many obstacles for
the Commission. Complaints could be handled only if domestic remedies had
been exhausted, a requirement that prevented swift reactions to violations.

Indigenous Peoples Rights

United Nations Declaration on the Rights of Indigenous
Peoples
Resolution adopted by the General Assembly (U.N. Doc. A/61/L.67 and
Add.1)
Taking note of the recommendation of the Human Rights Council con-
tained in its resolution 1/2 of 29 June 2006,241 by which the Council adopted
the text of the United Nations Declaration on the Rights of Indigenous
Peoples,
Recalling its resolution 61/178 of 20 December 2006, by which it decided
to defer consideration of and action on the Declaration to allow time for
further consultations thereon, and also decided to conclude its consideration
before the end of the sixty-first session of the General Assembly,
Adopts the United Nations Declaration on the Rights of Indigenous
Peoples as contained in the annex to the present resolution.
107th plenary meeting
13 September 2007
Environmental Rights
Laurie R. Tanner, “Kawas vs. Honduras – Protecting
Environmental Defenders,” 2011242
Environmental activists find themselves in a special situation of double
vulnerability. This is due to the fact that the majority of the cases they defend
confront not only State interests but also the interests of powerful economic
groups in connivance with, and much more powerful than, the State, with their
own armed forces and an enormous degree of impunity.
241
See Official Records of the General Assembly, Sixty-first Session, Supplement No.
53 (A/61/53), part one, chap. II, sect. A.
242
Laurie R. Tanner, “Kawas vs. Honduras – Protecting Environmental Defenders,” 3
Journal of Human Rights Practice 309 (Issue 3) (2011)[reprinted with permission
of the author].

PA R T I I
CEDHA – Center for Human Rights & Environment

INTRODUCTION: BACKGROUND, HISTORY & FACTS
This article examines the reasoning and implications of the Inter-
American Court of Human Rights’ judgment in the milestone case of Kawas-
Fernández v. Honduras. In April 2009, in its first-ever ruling on environmental
defenders, the Court found a positive obligation on the part of member States
in the hemisphere to protect environmentalists who are in serious jeopardy
from human rights violations….
This is a pioneering case considering the context of historical violence
that natural resources defenders have to face in Honduras and throughout
the Region, and this paper examines the holding from the perspective of its
application to future protection of these activists around the world. The
groundbreaking Center for Human Rights & Environment (CEDHA) 2002-03
Report, The Human Cost of Defending the Planet, described the unfortunate
reality that exists in the world today:
To be an environmentalist is a dangerous undertaking; environmental ac-
tivists in the Americas and around the world are being systematically beaten,
threatened, detained, raped, tortured and murdered as part of a deliberate
attempt to silence and intimidate both the defenders and those they represent.
The facts of the Kawas case illustrate this horrific reality.
Forty-seven-year-old environmental advocate Blanca Jeannette Kawas
Fernández was shot to death in her home on the night of February 6, 1995,
in connection to her opposition of the exploitation of the Punta Sal Penin-
sula forestlands and illegal logging in a National Park area, which she helped
to designate and now bears her name. She was a founder of PROLANSATE,
a Honduran conservation foundation that sought to safeguard the human
right to a healthy environment by improving the quality of life of the people
(including approximately 1,500 Garífuna Indians) living in the watersheds
of the Tela Bay area on the Caribbean coast.
In its introduction to the case, the Court refers to the application filed
by the Inter-American Commission on Human Rights (IACHR), and points
out that as President of PROLANSATE, Kawas “had denounced, among other
matters, the attempts by private individuals and entities to illegally appropri-
ate Punta Sal, as well as the contamination of the lakes and the depredation
of the forests of the region.”
Jeannette was the first person assassinated in Honduras for defending
natural resources and the environment. Without doubt, her activities and

the advances she achieved for preserving diverse areas, along with plant
and animal species … was a major obstacle for commercial developers who
wanted to exploit the area, despite it having been declared a National Park
through Kawas’s efforts….
In its ruling, the Court found the Honduran government legally respon-
sible for Kawas’s assassination. The Court held that the Honduran govern-
ment, which had colluded with those commercial interests operating in
the area, failed to properly investigate her murder and prosecute her killers.
This cover-up resulted in a continuation of the State culture of impunity in
violations of the human rights of environmental defenders, and this is the
situation currently found throughout the hemisphere….
RIGHT TO LIFE & DUE PROCESS VIOLATIONS
…Despite Honduras’s denial, the Court found that, although the Kawas
assassination was under orders from private interests, her killing was fa-
cilitated by the intervention of government agents; at least one agent of the
state participated in the events that ended Kawas’s life; and, these acts were
motivated by her “vision regarding environmental protection.”…
The Court also established Honduras’s responsibility for failing to guar-
antee access to justice (Articles 8.1 and 25) to the next-of-kin, as well as for
violating their right to humane treatment (Article 5.1) , noting that Kawas’s
murder remained unpunished, with the legal proceedings still in preliminary
stages, even as Judgment was passed April 2009. In light of the Convention,
the judges opined that fourteen years largely exceeds any reasonable term,
and that all impediments encountered were the Honduran judicial authori-
ties’ complete responsibility.
VIOLATION OF ARTICLE 16: RIGHT TO FREEDOM OF ASSOCIATION
…[T]hose who are protected by the Convention not only have the right
and freedom to associate freely with other persons, without the interference
of the public authorities limiting or obstructing the exercise of the respective
right, which thus represents a right of each individual; but they also enjoy the
right and freedom to seek the common achievement of a licit goal, without
pressure or interference that could alter or change their purpose.
The Court emphasized the importance of protecting human rights ad-
vocates for the role they play in defending and promoting the rights in a
democratic society , pointing out that the States have the duty to provide the
necessary means for human rights defenders to conduct their activities freely;
to protect them when they are subject to threats in order to ward off any
attempt on their life or safety; to refrain from placing restrictions that would

PA R T I I
hinder the performance of their work, and to conduct serious and effective
investigations of any violations against them, thus preventing impunity….
In arriving at the strategic conclusion that environmental defenders
should be considered human rights defenders, the tribunal expounded on
the concept that human rights defense is “not limited to civil and political
rights, but necessarily involves economic, social and cultural rights monitor-
ing, reporting and education …”
Additionally, the Court commented, with extensive footnotes, on the “un-
deniable link between the protection of the environment and the enjoyment
of other human rights” and the multi-faceted issue of “the right to healthy
environment,” citing to case law both of this Court and the European Court
of Human Rights, as well as OAS Resolutions, the Convention’s Protocol of
San Salvador Article 11, and domestic national constitutions in the region.…
REPARATIONS: GUARANTEES OF NON-REPETITION & DUTY TO PROTECT
The noteworthy recognition by the Inter-American Court that environ-
mental activists are human rights defenders, and that those advocates who
are shown to be “at-risk” require protection by States, is manifested in the
Judgment’s “Reparations” Chapter, as well as in the “Preservation of the En-
vironment” section of the Separate Opinion by Judge García-Ramírez that
accompanies the Judgment.
In this remedies chapter, the Court ordered the State to:
• pay the victim’s relatives compensation for material and
nonmaterial damages and expenses;
• provide the fees to cover long-term psychological support
for the next-of-kin;
• finally conclude its investigation of the crime and have the
case settled in a reasonable period; and
• conduct various public acts of international recognition to
honor Jeannette Kawas….
Kawas reached its decisive and critical holding regarding protection of “at-
risk” environmental defenders in that same paragraph, when it declared that:
... the State has a duty to adopt [and] fulfill [all] measures guaranteeing the
free performance of environmental advocacy activities; the instant protection
of environmental activists facing danger or threats as a result of their work;
and the instant, responsible and effective investigation of any acts endanger-
ing the life or integrity of environmentalists on account of their work.

Consequently, Paragraph 214 concludes:

... as a way to contribute to avoiding the recurrence of facts such as those
of the instant case, the Court finds it appropriate to order the State to carry
out a national campaign to create awareness and sensitivity regarding the
importance of environmentalists’ work in Honduras and their contribution
to the protection of human rights, targeting security officials, agents of the
justice system and the general population.
Regional Systems: Africa

Burkinabe African Commission Case243
The Complainant claims that Burkina Faso has violated Articles 3, 4,
5, 6, 7, 8, 9(2), 10, 11, 12 and 13(2) of the African Charter on Human and
Peoples’ Rights.
37. Article 3 of the Charter, stipulates that:
(1) Every individual shall be equal before the law.
(2) Every individual shall be entitled to equal protection of the law.
38. In order to redress the effects of the suspensions, dismissals and retire-
ments of magistrates which took place on 10th June 1987, the Burkinabé
State introduced an amnesty, aimed at rehabilitating workers abusively re-
moved under the so-called “Conseil National de la Révolution” regime, which
ruled over Burkina Faso from 1983 to 1987. As part of the said measure, many
workers were restored to their posts, while many others, according to infor-
mation available to the Commission, remained unaffected by the measure.
The Complainant, Mr. Halidou Ouédraogo and Mr. Compaoré Christophe,
both magistrates, fall in the latter category. They both demanded to be com-
pensated in kind. The request made by Mr. Compaore has not been met to
date. The Supreme Court, before which the case was filed over fifteen years
ago has passed no verdict on it. The Commission further notes that no rea-
son with a basis in law was given to justify this delay in considering the case.
Nor does the Respondent State give any legal reasons to justify the retention
of the punishment meted out to these two magistrates. The Commission
considers therefore that this is a violation of Articles 18 and 19 of the Fun-
damental Principles on the Independence of the Judiciary, adopted by the
243
Mouvement Burkinabé des Droits de l’Homme et des Peuples v. Burkina Faso,
African Commission on Human and Peoples’ Rights, Comm. No. 204/97 (2001).

PA R T I I
seventh United Nations Congress on Crime Prevention and the Treatment

of Offenders, held from 26th August to 6th September 1985, and confirmed
by the General Assembly in its Resolutions 40/32 of 29 November 1985 and
40/146 of 13th December 1985….
40. It is abundantly clear, as the Commission has already noted that the
Respondent State has shown reasons as to why the rehabilitation measure was
applied in a selective manner. The Commission also wonders at the reasons
behind the Supreme Court’s failure to proceed with the case. Fifteen years
without any action being taken on the case, or any decision being made either
on the fate of the concerned persons or on the relief sought, constitutes a
denial of justice and a violation of the equality of all citizens before the law.
It is also a violation of Article 7(1)(d) of the African Charter, which proclaims
the right to be tried within a reasonable time by an impartial court or tribunal.
41. Article 4 of the Charter states that:
“Human beings are inviolable. Every human being shall be entitled to
respect for his life and the integrity of his person. No one may be arbitrarily
deprived of this right.”
42. The communication contains the names of various people who were
victims of assassinations, forced disappearances, attacks or attempted attacks
against their physical integrity, and acts of intimidation. The Respondent
State did not deny these facts…. The Commission would also like to reiterate a
fundamental principle proclaimed in Article 1 of the Charter that not only do
the States Parties recognise the rights, duties and freedoms enshrined in the
Charter, they also commit themselves to respect them and to take measures
to give effect to them. In other words, if a State Party fails to ensure respect
of the rights contained in the African Charter, this constitutes a violation of
the Charter. Even if the State or its agents were not the perpetrators of the
violation.
43. … The communication also mentions the deaths of citizens who were
shot or tortured to death, as well as the deaths of two young students who
had gone onto the streets with their colleagues to express certain demands
and to support those of the secondary school and higher institution teachers.
The Commission deplores the abusive use of means of State violence against
demonstrators even when the demonstrations are not authorised by the
competent administrative authorities. It believes that the public authorities
possess adequate means to disperse crowds, and that those responsible for
public order must make an effort in these types of operations to cause only
the barest minimum of damage and violation of physical integrity, to respect
and preserve human life.

44. …The disappearances of persons suspected or accused of plotting

against the instituted authorities, including Mr. Guillaume Sessouma and
a medical student, Dabo Boukary, arrested in May 1990 by the presidential
guard and who have not been seen since then constitute a violation of the
above-cited texts and principles. In this last case, the Commission notes the
submission of a complaint on 16th October 2000.
For these reasons:
The Commission finds the Republic of Burkina Faso in violation of Articles
3, 4, 5, 6, 7(1)(d) and 12(2) of the African Charter.
Recommends that the Republic of Burkina Faso draws all the legal con-
sequences of this decision, in particular by:
• Identifying and taking to court those responsible for the
human rights violations cited above;
• Accelerating the judicial process of the cases pending before
the courts;
• Compensating the victims of the human rights violations
stated in the complaint.


PA R T I I
CHAPTER 3
INTERNATIONAL HUMANITARIAN LAW
Sources of International
Humanitarian Law
The First Geneva Convention244
Convention (I) for the Amelioration of the Condition of the Wounded
and Sick in Armed Forces in the Field, Geneva, 12 August 1949
Chapter I. General Provisions
ARTICLE 1
The High Contracting Parties undertake to respect and to ensure respect
for the present Convention in all circumstances.
ARTICLE 2
In addition to the provisions which shall be implemented in peacetime,
the present Convention shall apply to all cases of declared war or of any other
armed conflict which may arise between two or more of the High Contracting
Parties, even if the state of war is not recognized by one of them.
The Convention shall also apply to all cases of partial or total occupation
of the territory of a High Contracting Party, even if the said occupation meets
with no armed resistance. Although one of the Powers in conflict may not
be a party to the present Convention, the Powers who are parties thereto
shall remain bound by it in their mutual relations. They shall furthermore be
bound by the Convention in relation to the said Power, if the latter accepts
and applies the provisions thereof.
ARTICLE 3
In the case of armed conflict not of an international character occurring in
the territory of one of the High Contracting Parties, each Party to the conflict
244
Convention (I) for the Amelioration of the Condition of the Wounded and Sick
in Armed Forces in the Field. Geneva, 12 August 1949; available at www.icrc.org.

CHAPTER 3 INTERNATIONAL HUMANITARIAN LAW
shall be bound to apply, as a minimum, the following provisions:

(1) Persons taking no active part in the hostilities, including members of
armed forces who have laid down their arms and those placed hors de combat
by sickness, wounds, detention, or any other cause, shall in all circumstances
be treated humanely, without any adverse distinction founded on race, color,
religion or faith, sex, birth or wealth, or any other similar criteria.
To this end, the following acts are and shall remain prohibited at any time
and in any place whatsoever with respect to the above-mentioned persons:
(a) violence to life and person, in particular murder of all kinds, mutila-
tion, cruel treatment and torture;
(b) taking of hostages;
(c) outrages upon personal dignity, in particular humiliating and degrad-
ing treatment;
(d) the passing of sentences and the carrying out of executions without
previous judgment pronounced by a regularly constituted court, affording
all the judicial guarantees which are recognized as indispensable by civilized
peoples.
(2) The wounded and sick shall be collected and cared for.
An impartial humanitarian body, such as the International Committee of
the Red Cross, may offer its services to the Parties to the conflict.
The Parties to the conflict should further Endeavour to bring into force,
by means of special agreements, all or part of the other provisions of the
present Convention.
The application of the preceding provisions shall not affect the legal
status of the Parties to the conflict.
ARTICLE 4
Neutral Powers shall apply by analogy the provisions of the present Con-
vention to the wounded and sick, and to members of the medical personnel
and to chaplains of the armed forces of the Parties to the conflict, received
or interned in their territory, as well as to dead persons found.
ARTICLE 5
For the protected persons who have fallen into the hands of the enemy,
the present Convention shall apply until their final repatriation.

PA R T I I
ARTICLE 6
In addition to the agreements expressly provided for in Articles 10, 15,
23, 28, 31, 36, 37 and 52, the High Contracting Parties may conclude other
special agreements for all matters concerning which they may deem it suit-
able to make separate provision.
No special agreement shall adversely affect the situation of the wounded
and sick, of members of the medical personnel or of chaplains, as defined by
the present Convention, nor restrict the rights which it confers upon them.
Wounded and sick, as well as medical personnel and chaplains, shall
continue to have the benefit of such agreements as long as the Convention
is applicable to them, except where express provisions to the contrary are
contained in the aforesaid or in subsequent agreements, or where more fa-
vorable measures have been taken with regard to them by one or other of
the Parties to the conflict.
List of Customary Rules of International

Humanitarian Law245
THE PRINCIPLE OF DISTINCTION
Distinction between Civilians and Combatants
Rule 1. The parties to the conflict must at all times distinguish between
civilians and combatants. Attacks may only be directed against combatants.
Attacks must not be directed against civilians. [IAC/NIAC]
Rule 2. Acts or threats of violence the primary purpose of which is to
spread terror among the civilian population are prohibited.
Rule 3. All members of the armed forces of a party to the conflict are
combatants, except medical and religious personnel.
Rule 4. The armed forces of a party to the conflict consist of all organized
armed forces, groups and units which are under a command responsible to
that party for the conduct of its subordinates.
Rule 5. Civilians are persons who are not members of the armed forces.
The civilian population comprises all persons who are civilians.
245
Source: “Annex to Study on customary international humanitarian law: A contri-
bution to the understanding and respect for the rule of law in armed conflict,”
by Jean-Marie Henckaerts, IRRC, Volume 87, No. 857, March 2005, pp. 198-212;
available on www.icrc.org.

Rule 6. Civilians are protected against attack, unless and for such time as
they take a direct part in hostilities.
Distinction between Civilian Objects and Military Objectives
Rule 7. The parties to the conflict must at all times distinguish between
civilian objects and military objectives. Attacks may only be directed against
military objectives. Attacks must not be directed against civilian objects.
Rule 8. In so far as objects are concerned, military objectives are limited
to those objects which by their nature, location, purpose or use make an ef-
fective contribution to military action and whose partial or total destruction,
capture or neutralization, in the circumstances ruling at the time, offers a
definite military advantage.
Rule 9. Civilian objects are all objects that are not military objectives.
Rule 10. Civilian objects are protected against attack, unless and for such
time as they are military objectives.
Indiscriminate Attacks
Rule 11. Indiscriminate attacks are prohibited.
Rule 12. Indiscriminate attacks are those:
(a) which are not directed at a specific military objective;
(b) which employ a method or means of combat which cannot be di-
rected at a specific military objective; or
(c) which employ a method or means of combat the effects of which
cannot be limited as required by international humanitarian law;
and consequently, in each such case, are of a nature to strike military
objectives and civilians or civilian objects without distinction.
Rule 13. Attacks by bombardment by any method or means which treats as
a single military objective a number of clearly separated and distinct military
objectives located in a city, town, village or other area containing a similar
concentration of civilians or civilian objects are prohibited.
Proportionality in Attack
Rule 14. Launching an attack which may be expected to cause incidental
loss of civilian life, injury to civilians, damage to civilian objects, or a com-
bination thereof, which would be excessive in relation to the concrete and
direct military advantage anticipated, is prohibited.

PA R T I I
Precautions in Attack
Rule 15. In the conduct of military operations, constant care must be
taken to spare the civilian population, civilians and civilian objects. All feasible
precautions must be taken to avoid, and in any event to minimize, incidental
loss of civilian life, injury to civilians and damage to civilian objects.
Rule 16. Each party to the conflict must do everything feasible to verify
that targets are military objectives.
Rule 17. Each party to the conflict must take all feasible precautions in
the choice of means and methods of warfare with a view to avoiding, and
in any event to minimizing, incidental loss of civilian life, injury to civilians
and damage to civilian objects.
Rule 18. Each party to the conflict must do everything feasible to assess
whether the attack may be expected to cause incidental loss of civilian life,
injury to civilians, damage to civilian objects, or a combination thereof, which
would be excessive in relation to the concrete and direct military advantage
anticipated.
Rule 19. Each party to the conflict must do everything feasible to cancel
or suspend an attack if it becomes apparent that the target is not a military
objective or that the attack may be expected to cause incidental loss of civilian
life, injury to civilians, damage to civilian objects, or a combination thereof,
which would be excessive in relation to the concrete and direct military
advantage anticipated.
Rule 20. Each party to the conflict must give effective advance warning
of attacks which may affect the civilian population, unless circumstances do
not permit.
Rule 21. When a choice is possible between several military objectives
for obtaining a similar military advantage, the objective to be selected must
be that the attack on which may be expected to cause the least danger to
civilian lives and to civilian objects.
SPECIFICALLY PROTECTED PERSONS AND OBJECTS
Medical and Religious Personnel and Objects
Rule 25. Medical personnel exclusively assigned to medical duties must
be respected and protected in all circumstances. They lose their protection if
they commit, outside their humanitarian function, acts harmful to the enemy.
Rule 29. Medical transports assigned exclusively to medical transportation
must be respected and protected in all circumstances. They lose their protec-

tion if they are being used, outside their humanitarian function, to commit
acts harmful to the enemy.
Rule 30. Attacks directed against medical and religious personnel and
objects displaying the distinctive emblems of the Geneva Conventions in
conformity with international law are prohibited.
Humanitarian Relief Personnel and Objects
Rule 31. Humanitarian relief personnel must be respected and protected.
Rule 32. Objects used for humanitarian relief operations must be respected
and protected.
Personnel and Objects Involved in a Peacekeeping Mission
Rule 33. Directing an attack against personnel and objects involved in a
peacekeeping mission in accordance with the Charter of the United Nations,
as long as they are entitled to the protection given to civilians and civilian
objects under international humanitarian law, is prohibited.
Journalists
Rule 34. Civilian journalists engaged in professional missions in areas of
armed conflict must be respected and protected as long as they are not tak-
ing a direct part in hostilities.
Protected Zones
Rule 35. Directing an attack against a zone established to shelter the
wounded, the sick and civilians from the effects of hostilities is prohibited.
Rule 36. Directing an attack against a demilitarized zone agreed upon
between the parties to the conflict is prohibited.
Rule 37. Directing an attack against a non-defended locality is prohibited.
[IAC/NIAC]
Cultural Property
Rule 38. Each party to the conflict must respect cultural property:
A. Special care must be taken in military operations to avoid damage to
buildings dedicated to religion, art, science, education or charitable purposes
and historic monuments unless they are military objectives.
B. Property of great importance to the cultural heritage of every people
must not be the object of attack unless imperatively required by military
necessity.

PA R T I I
The Natural Environment

Rule 43. The general principles on the conduct of hostilities apply to the
natural environment:
A. No part of the natural environment may be attacked, unless it is a
military objective.
B. Destruction of any part of the natural environment is prohibited, unless
required by imperative military necessity.
C. Launching an attack against a military objective which may be expected
to cause incidental damage to the environment which would be excessive
in relation to the concrete and direct military advantage anticipated is pro-
hibited.
Rule 44. Methods and means of warfare must be employed with due
regard to the protection and preservation of the natural environment. In
the conduct of military operations, all feasible precautions must be taken to
avoid, and in any event to minimize, incidental damage to the environment.
Lack of scientific certainty as to the effects on the environment of certain
military operations does not absolve a party to the conflict from taking such
precautions.
Rule 45. The use of methods or means of warfare that are intended, or
may be expected, to cause widespread, long-term and severe damage to the
natural environment is prohibited. Destruction of the natural environment
may not be used as a weapon.
SPECIFIC METHODS OF WARFARE
Denial of Quarter
Rule 46. Ordering that no quarter will be given, threatening an adversary
therewith or conducting hostilities on this basis is prohibited.
Rule 47. Attacking persons who are recognized as hors de combat is
prohibited. A person hors de combat is:
(a) anyone who is in the power of an adverse party;
(b) anyone who is defenseless because of unconsciousness, shipwreck,
wounds or sickness; or
(c) anyone who clearly expresses an intention to surrender; provided he
or she abstains from any hostile act and does not attempt to escape.

Destruction and Seizure of Property

Rule 49. The parties to the conflict may seize military equipment belong-
ing to an adverse party as war booty. [IAC]
Rule 50. The destruction or seizure of the property of an adversary is
prohibited, unless required by imperative military necessity.
Rule 51. In occupied territory:
(a) movable public property that can be used for military operations may
be confiscated;
(b) immovable public property must be administered according to the
rule of usufruct; and
(c) private property must be respected and may not be confiscated; ex-
cept where destruction or seizure of such property is required by imperative
military necessity.
Rule 52. Pillage is prohibited.
Starvation and Access to Humanitarian Relief
Rule 53. The use of starvation of the civilian population as a method of
warfare is prohibited.
Rule 54. Attacking, destroying, removing or rendering useless objects
indispensable to the survival of the civilian population is prohibited.
Rule 55. The parties to the conflict must allow and facilitate rapid and
unimpeded passage of humanitarian relief for civilians in need, which is im-
partial in character and conducted without any adverse distinction, subject
to their right of control.
Rule 56. The parties to the conflict must ensure the freedom of movement
of authorised humanitarian relief personnel essential to the exercise of their
functions. Only in case of imperative military necessity may their movements
be temporarily restricted.
WEAPONS
General Principles on the Use of Weapons
Rule 70. The use of means and methods of warfare which are of a nature
to cause superfluous injury or unnecessary suffering is prohibited.
Rule 71. The use of weapons which are by nature indiscriminate is pro-
hibited.

PA R T I I
Poison
Rule 72. The use of poison or poisoned weapons is prohibited.
Biological Weapons
Rule 73. The use of biological weapons is prohibited.
Chemical Weapons
Rule 74. The use of chemical weapons is prohibited.
Expanding Bullets
Rule 77. The use of bullets which expand or flatten easily in the human
body is prohibited. [IAC/NIAC]
Exploding Bullets
Rule 78. The anti-personnel use of bullets which explode within the hu-
man body is prohibited. [IAC/NIAC]
Weapons Primarily Injuring by Non-detectable Fragments
Rule 79. The use of weapons the primary effect of which is to injure by
fragments which are not detectable by X-rays in the human body is prohib-
ited. [IAC/NIAC]
Booby-traps
Rule 80. The use of booby-traps which are in any way attached to or as-
sociated with objects or persons entitled to special protection under inter-
national humanitarian law or with objects that are likely to attract civilians
is prohibited.
Landmines
Rule 81. When landmines are used, particular care must be taken to mi-
nimise their indiscriminate effects.
Rule 82. A party to the conflict using landmines must record their place-
ment, as far as possible.
Rule 83. At the end of active hostilities, a party to the conflict which has
used landmines must remove or otherwise render them harmless to civilians,
or facilitate their removal.
Incendiary Weapons
Rule 84. If incendiary weapons are used, particular care must be taken to
avoid, and in any event to minimize, incidental loss of civilian life, injury to
civilians and damage to civilian objects.

Rule 85. The anti-personnel use of incendiary weapons is prohibited,

unless it is not feasible to use a less harmful weapon to render a person hors
de combat.
Blinding Laser Weapons
Rule 86. The use of laser weapons that are specifically designed, as their
sole combat function or as one of their combat functions, to cause permanent
blindness to unenhanced vision is prohibited.
TREATMENT OF CIVILIANS AND PERSONS HORS DE COMBAT
Fundamental Guarantees
Rule 87. Civilians and persons hors de combat must be treated humanely.
Rule 88. Adverse distinction in the application of international humani-
tarian law based on race, color, sex, language, religion or belief, political or
other opinion, national or social origin, wealth, birth or other status or on
any other similar criteria is prohibited.
Rule 89. Murder is prohibited.
Rule 90. Torture, cruel or inhuman treatment and outrages upon personal
dignity, in particular humiliating and degrading treatment, are prohibited.
Rule 91. Corporal punishment is prohibited.
Rule 92. Mutilation, medical or scientific experiments or any other medi-
cal procedure not indicated by the state of health of the person concerned
and not consistent with generally accepted medical standards are prohibited.
Rule 93. Rape and other forms of sexual violence are prohibited.
Rule 94. Slavery and the slave trade in all their forms are prohibited.
Rule 95. Uncompensated or abusive forced labor is prohibited.
Rule 96. The taking of hostages is prohibited.
Rule 97. The use of human shields is prohibited.
Rule 98. Enforced disappearance is prohibited.
Rule 99. Arbitrary deprivation of liberty is prohibited
Rule 100. No one may be convicted or sentenced, except pursuant to a
fair trial affording all essential judicial guarantees.
Rule 101. No one may be accused or convicted of a criminal offence on
account of any act or omission which did not constitute a criminal offence
under national or international law at the time it was committed; nor may a

PA R T I I
heavier penalty be imposed than that which was applicable at the time the
criminal offence was committed.
Rule 102. No one may be convicted of an offence except on the basis of
individual criminal responsibility.
Rule 103. Collective punishments are prohibited.
Rule 104. The convictions and religious practices of civilians and persons
hors de combat must be respected.
Rule 105. Family life must be respected as far as possible.
Combatants and Prisoner-of-War Status
Rule 106. Combatants must distinguish themselves from the civilian
population while they are engaged in an attack or in a military operation
preparatory to an attack. If they fail to do so, they do not have the right to
prisoner-of-war status.
Rule 107. Combatants who are captured while engaged in espionage do
not have the right to prisoner-of-war status. They may not be convicted or
sentenced without previous trial.
Rule 108. Mercenaries, as defined in Additional Protocol I, do not have
the right to combatant or prisoner-of-war status. They may not be convicted
or sentenced without previous trial.
The Wounded, Sick and Shipwrecked
Rule 109. Whenever circumstances permit, and particularly after an en-
gagement, each party to the conflict must, without delay, take all possible
measures to search for, collect and evacuate the wounded, sick and ship-
wrecked without adverse distinction.
The Dead
Rule 112. Whenever circumstances permit, and particularly after an en-
gagement, each party to the conflict must, without delay, take all possible mea-
sures to search for, collect and evacuate the dead without adverse distinction.
Missing Persons
Rule 117. Each party to the conflict must take all feasible measures to
account for persons reported missing as a result of armed conflict and must
provide their family members with any information it has on their fate.
Persons Deprived of their Liberty
Rule 118. Persons deprived of their liberty must be provided with adequate
food, water, clothing, shelter and medical attention.

Displacement and Displaced Persons

Rule 129.
A. Parties to an international armed conflict may not deport or forcibly
transfer the civilian population of an occupied territory, in whole or in part,
unless the security of the civilians involved or imperative military reasons so
demand.
B. Parties to a non-international armed conflict may not order the dis-
placement of the civilian population, in whole or in part, for reasons related
to the conflict, unless the security of the civilians involved or imperative
military reasons so demand.
Other Persons Afforded Specific Protection
Rule 134. The specific protection, health and assistance needs of women
affected by armed conflict must be respected.
Rule 135. Children affected by armed conflict are entitled to special re-
spect and protection.
Rule 136. Children must not be recruited into armed forces or armed
groups.
Rule 137. Children must not be allowed to take part in hostilities.
Rule 138. The elderly, disabled and infirm affected by armed conflict are
entitled to special respect and protection.
IMPLEMENTATION
Compliance with International Humanitarian Law
Rule 139. Each party to the conflict must respect and ensure respect for
international humanitarian law by its armed forces and other persons or
groups acting in fact on its instructions, or under its direction or control.
Rule 140. The obligation to respect and ensure respect for international
humanitarian law does not depend on reciprocity.
Rule 141. Each State must make legal advisers available, when necessary,
to advise military commanders at the appropriate level on the application
of international humanitarian law.
Rule 142. States and parties to the conflict must provide instruction in
international humanitarian law to their armed forces.
Rule 143. States must encourage the teaching of international humanitar-
ian law to the civilian population.

PA R T I I

“THE COURT… gives the following Advisory Opinion:
***
37. The Court will now address the question of the legality or illegality
of recourse to nuclear weapons in the light of the provisions of the Charter
relating to the threat or use of force.
38. The Charter contains several provisions relating to the threat and
use of force….
39. …A weapon that is already unlawful per se, whether by treaty or custom,
does not become lawful by reason of its being used for a legitimate purpose
under the Charter.
40. The entitlement to resort to self-defense under Article 51 is subject to
certain constraints. Some of these constraints are inherent in the very concept
of self-defense. Other requirements are specified in Article 51.
41. The submission of the exercise of the right of self-defense to the con-
ditions of necessity and proportionality is a rule of customary international
law. As the Court stated in the case concerning Military and Paramilitary
Activities in and against Nicaragua (Nicaragua v. United States of America)
(I.C.J. Reports 1986, p. 94, para.176):
“there is a specific rule whereby self-defense would warrant only measures
which are proportional to the armed attack and necessary to respond to it,
a rule well established in customary international law”….
42. The proportionality principle may thus not in itself exclude the use of
nuclear weapons in self-defense in all circumstances. But at the same time, a
use of force that is proportionate under the law of self-defense, must, in order
to be lawful, also meet the requirements of the law applicable in armed con-
flict which comprise in particular the principles and rules of humanitarian law.
43. Certain States… contend that the very nature of nuclear weapons, and
the high probability of an escalation of nuclear exchanges, mean that there
is an extremely strong risk of devastation. The risk factor is said to negate
the possibility of the condition of proportionality being complied with. The
Court does not find it necessary to embark upon the quantification of such
risks; nor does it need to enquire into the question whether tactical nuclear
246
1996, p. 226

weapons exist which are sufficiently precise to limit those risks: it suffices
for the Court to note that the very nature of all nuclear weapons and the
profound risks associated therewith are further considerations to be borne in
mind by States believing they can exercise a nuclear response in self-defense
in accordance with the requirements of proportionality….
51. Having dealt with the Charter provisions relating to the threat or use
of force, the Court will now turn to the law applicable in situations of armed
conflict. It will first address the question whether there are specific rules in
international law regulating the legality or illegality of recourse to nuclear
weapons per se; it will then examine the question put to it in the light of
the law applicable in armed conflict proper, i.e. the principles and rules of
humanitarian law applicable in armed conflict, and the law of neutrality.
Prohibition of the use of such weapons, but they do not constitute such
a prohibition by themselves. As to the treaties of Tlatelolco and Rarotonga
and their Protocols, and also the declarations made in connection with the
indefinite extension of the Treaty on the Non-Proliferation of Nuclear Weap-
ons, it emerges from these instruments that:
(a) a number of States have undertaken not to use nuclear weapons in
specific zones (Latin America; the South Pacific) or against certain other
States (nonnuclear- weapon States which are parties to the Treaty on the
Non-Proliferation of Nuclear Weapons);
(b) nevertheless, even within this framework, the nuclear-weapon States
have reserved the right to use nuclear weapons in certain circumstances; and
(c) these reservations met with no objection from the parties to the Tla-
telolco or Rarotonga Treaties or from the Security Council.
…63. These two treaties, the security assurances given in 1995 by the
nuclear-weapon States and the fact that the Security Council took note of
them with satisfaction, testify to a growing awareness of the need to liberate
the community of States and the international public from the dangers result-
ing from the existence of nuclear weapons. The Court moreover notes the
signing, even more recently, on December 15, 1995, at Bangkok, of a Treaty
on the Southeast Asia Nuclear- Weapon-Free Zone, and on April 11, 1996, at
Cairo, of a treaty on the creation of a nuclear-weapons-free zone in Africa. It
does not, however, view these elements as amounting to a comprehensive
and universal conventional prohibition on the use, or the threat of use, of
those weapons as such.
64. The Court will now turn to an examination of customary interna-
tional law to determine whether a prohibition of the threat or use of nuclear

PA R T I I
weapons as such flows from that source of law. As the Court has stated, the
substance of that law must be “looked for primarily in the actual practice
and opinio juris of States” (Continental Shelf (Libyan Arab Jamahiriya/Malta),
Judgment, I.C.J. Reports 1985, p. 29, para.27).
65. States which hold the view that the use of nuclear weapons is illegal
have endeavored to demonstrate the existence of a customary rule prohibit-
ing this use. They refer to a consistent practice of non-utilization of nuclear
weapons by States since 1945 and they would see in that practice the ex-
pression of an opinio juris on the part of those who possess such weapons.
66. Some other States, which assert the legality of the threat and use of
nuclear weapons in certain circumstances, invoked the doctrine and practice
of deterrence in support of their argument. They recall that they have always,
in concert with certain other States, reserved the right to use those weapons
in the exercise of the right to self-defense against an armed attack threatening
their vital security interests. In their view, if nuclear weapons have not been used
since 1945, it is not on account of an existing or nascent custom but merely
because circumstances that might justify their use have fortunately not arisen.
67. …[T]he Members of the international community are profoundly
divided on the matter of whether non-recourse to nuclear weapons over
the past fifty years constitutes the expression of an opinio juris. Under these
circumstances the Court does not consider itself able to find that there is
such an opinio juris.
68. According to certain States, the important series of General Assembly
resolutions, beginning with resolution 1653 (XVI) of November 24, 1961,
that deal with nuclear weapons and that affirm, with consistent regularity, the
illegality of nuclear weapons, signify the existence of a rule of international
customary law which prohibits recourse to those weapons….
70. The Court notes that General Assembly resolutions, even if they are not
binding, may sometimes have normative value. They can, in certain circum-
stances, provide evidence important for establishing the existence of a rule or
the emergence of an opinio juris. To establish whether this is true of a given
General Assembly resolution, it is necessary to look at its content and the con-
ditions of its adoption; it is also necessary to see whether an opinio juris exists
as to its normative character. Or a series of resolutions may show the gradual
evolution of the opinio juris required for the establishment of a new rule.
71. Examined in their totality,… several of the resolutions under consid-
eration in the present case have been adopted with substantial numbers of
negative votes and abstentions; … they… fall short of establishing the existence

of an opinio juris on the illegality of the use of such weapons….

73. Having said this, the Court points out that the adoption each year by
the General Assembly, by a large majority, of resolutions recalling the content
of resolution 1653 (XVI), and requesting the member States to conclude a
convention prohibiting the use of nuclear weapons in any circumstance,
reveals the desire of a very large section of the international community to
take, by a specific and express prohibition of the use of nuclear weapons, a
significant step forward along the road to complete nuclear disarmament. The
emergence, as lex lata, of a customary rule specifically prohibiting the use of
nuclear weapons as such is hampered by the continuing tensions between
the nascent opinio juris on the one hand, and the still strong adherence to
the practice of deterrence on the other.
74. The Court not having found a conventional rule of general scope, nor a
customary rule specifically proscribing the threat or use of nuclear weapons per
se, it will now deal with the question whether recourse to nuclear weapons must
be considered as illegal in the light of the principles and rules of international
humanitarian law applicable in armed conflict and of the law of neutrality.
75. A large number of customary rules have been developed by the practice
of States and are an integral part of the international law relevant to the ques-
tion posed. The “laws and customs of war” – as they were traditionally called
– were the subject for the Protection of War Victims; the Hague Convention
(IV) Respecting the Laws and Customs of War on Land and the Regulations
annexed thereto of October 18, 1907; the Convention on the Prevention and
Punishment of the Crime of Genocide of December 9, 1948; and the Charter
of the International Military Tribunal of August 8, 1945….
82. The extensive codification of humanitarian law and the extent of the
accession to the resultant treaties, as well as the fact that the denunciation
clauses that existed in the codification instruments have never been used,
have provided the international community with a corpus of treaty rules the
great majority of which had already become customary and which reflected
the most universally recognized humanitarian principles. These rules indicate
the normal conduct and behavior expected of States….
84. Nor is there any need for the Court to elaborate on the question of the
applicability of Additional Protocol I of 1977 to nuclear weapons. It need only
observe that while, at the Diplomatic Conference of 1974-1977, there was
no substantive debate on the nuclear issue and no specific solution concern-
ing this question was put forward, Additional Protocol I in no way replaced
the general customary rules applicable to all means and methods of combat
including nuclear weapons. In particular, the Court recalls that all States are

PA R T I I
bound by those rules in Additional Protocol I which, when adopted, were

merely the expression of the pre-existing customary law, such as the Martens
Clause, reaffirmed in the first article of Additional Protocol I.
The fact that certain types of weapons were not specifically dealt with by the
1974 -1977 Conference does not permit the drawing of any legal conclusions
relating to the substantive issues which the use of such weapons would raise….
86. …[N]uclear weapons were invented after most of the principles and
rules of humanitarian law applicable in armed conflict had already come into
existence; the Conferences of 1949 and 1974-1977 left these weapons aside,
and there is a qualitative as well as quantitative difference between nuclear
weapons and all conventional arms. However, it cannot be concluded from
this that the established principles and rules of humanitarian law applicable
in armed conflict did not apply to nuclear weapons. Such a conclusion would
be incompatible with the intrinsically humanitarian character of the legal
principles in question which permeates the entire law of armed conflict and
applies to all forms of warfare and to all kinds of weapons, those of the past,
those of the present and those of the future….
None of the statements made before the Court in any way advocated a
freedom to use nuclear weapons without regard to humanitarian constraints.
Quite the reverse; it has been explicitly stated, “Restrictions set by the rules
applicable to armed conflicts in respect of means and methods of warfare defi-
nitely also extend to nuclear weapons” (Russian Federation, CR 95/29, p. 52);
“So far as the customary law of war is concerned, the United Kingdom
has always accepted that the use of nuclear weapons is subject to the general
principles of the jus in bello” (United Kingdom, CR 95/34, p. 45)….
Prosecutor v. Dusko Tadić, International Criminal

Tribunal for Yugoslavia247
Appeals Chamber, Jurisdiction
Decision on the Defence Motion For Interlocutory Appeal on Jurisdiction
I. INTRODUCTION
A. The Judgement Under Appeal
1. The Appeals Chamber… is seized of an appeal lodged by Appellant the
Defence against a judgement rendered by the Trial Chamber II on 10 August
247
International Criminal Tribunal for Yugoslavia, The Prosecutor v. Dusko Tadić,
IT-94-1-AR72, Appeals Chamber, Decision, 2 October 1995. [Citations omitted].

1995. By that judgement, Appellant’s motion challenging the jurisdiction of

the International Tribunal was denied.
2. Before the Trial Chamber, Appellant had launched a three-pronged
attack:
a. illegal foundation of the International Tribunal;
b. wrongful primacy of the International Tribunal over
national courts;
c. lack of jurisdiction ratione materiae.
The judgment under appeal denied the relief sought by Appellant; in its
essential provisions, it reads as follows:
“THE TRIAL CHAMBER … HEREBY DISMISSES the motion insofar as it
relates to primacy jurisdiction and subject-matter jurisdiction under Articles
2, 3 and 5 and otherwise decides it to be incompetent insofar as it challenges
the establishment of the International Tribunal
HEREBY DENIES the relief sought by the Defense in its Motion on the
Jurisdiction of the Tribunal.”….
II. UNLAWFUL ESTABLISHMENT OF THE INTERNATIONAL TRIBUNAL…
A. Meaning of Jurisdiction….
11. A narrow concept of jurisdiction may, perhaps, be warranted in a
national context but not in international law….
98. The emergence of international rules governing internal strife has
occurred at two different levels: at the level of customary law and at that of
treaty law. Two bodies of rules have thus crystallized, which are by no means
conflicting or inconsistent, but instead mutually support and supplement each
other. Indeed, the interplay between these two sets of rules is such that some
treaty rules have gradually become part of customary law. This holds true for
common Article 3 of the 1949 Geneva Conventions, as was authoritatively
held by the International Court of Justice (Nicaragua Case, at para.218), but
also applies to Article 19 of the Hague Convention for the Protection of
Cultural Property in the Event of Armed Conflict of 14 May 1954, and, as we
shall show below (para.117), to the core of Additional Protocol II of 1977.
99. Before pointing to some principles and rules of customary law that
have emerged in the international community for the purpose of regulating
civil strife, a word of caution on the law-making process in the law of armed
conflict is necessary. When attempting to ascertain State practice with a view
to establishing the existence of a customary rule or a general principle, it is

PA R T I I
difficult, if not impossible, to pinpoint the actual behavior of the troops in

the field for the purpose of establishing whether they in fact comply with,
or disregard, certain standards of behavior. This examination is rendered
extremely difficult by the fact that not only is access to the theatre of military
operations normally refused to independent observers (often even to the
ICRC) but information on the actual conduct of hostilities is withheld by the
parties to the conflict; what is worse, often recourse is had to misinformation
with a view to misleading the enemy as well as public opinion and foreign
Governments. In appraising the formation of customary rules or general prin-
ciples one should therefore be aware that, on account of the inherent nature
of this subject-matter, reliance must primarily be placed on such elements as
official pronouncements of States, military manuals and judicial decisions.
b. Principal Rules
100. The first rules that evolved in this area were aimed at protecting the
civilian population from the hostilities. As early as the Spanish Civil War (1936-
39), State practice revealed a tendency to disregard the distinction between
international and internal wars and to apply certain general principles of hu-
manitarian law, at least to those internal conflicts that constituted large-scale
civil wars. [...] Significantly, both the republican Government and third States
refused to recognize the insurgents as belligerents. They nonetheless insisted
that certain rules concerning international armed conflict applied. Among
rules deemed applicable were the prohibition of the intentional bombing
of civilians, the rule forbidding attacks on non-military objectives, and the
rule regarding required precautions when attacking military objectives. Thus,
for example, on 23 March 1938, Prime Minister Chamberlain explained the
British protest against the bombing of Barcelona as follows…
Jus Ad Bellum and Jus In Bello

Fundamental Distinction Between Jus Ad Bellum (On The
Legality Of The Use Of Force) And Jus In Bello (On The
Humanitarian Rules To Be Respected In Warfare)
International Humanitarian Law (IHL) developed at a time when the use
of force was a lawful form of international relations, when States were not
prohibited from waging war, when they had the right to make war (i.e., when
they had jus ad bellum). It did not appear illogical for international law to
oblige them to respect certain rules of behavior in war (jus in bello) if they
resorted to hostilities. Today, the use of force between States is prohibited by a

peremptory rule of international law [Expressed in Art. 2(4) of the UN Charter]

(jus ad bellum has changed into jus contra bellum). Exceptions are admitted in
the case of individual and collective self-defense, [Recognized in Art. 51 of the
UN Charter] based upon Security Council resolutions [As foreseen in Chapter
VII of the UN Charter] and, arguably, the right of peoples to self-determination
[The legitimacy of the use of force to enforce the right of people to self-deter-
mination (recognized in Art. 1 of both UN Human Rights] (national liberation
wars). Logically, at least one side of an international armed conflict is therefore
violating international law by the sole fact of using force, however respectful it
is of IHL. By the same token, all municipal laws anywhere in the world prohibit
the use of force against (governmental) law enforcement agencies.
Although armed conflicts are prohibited, they happen, and it is today rec-
ognized that international law has to address this reality of international life
not only by combating the phenomenon, but also by regulating it to ensure
a minimum of humanity in this inhumane and illegal situation. For practical,
policy and humanitarian reasons, however, IHL has to be the same for both
belligerents: the one resorting lawfully to force and the one resorting unlaw-
fully to force. From a practical point of view, respect for IHL could otherwise
not be obtained, as, at least between the belligerents, which party is resorting
to force in conformity with jus ad bellum and which is violating jus contra
bellum is always a matter of controversy. In addition, from the humanitarian
Covenants) was recognized for the first time in Resolution 2105 (XX) of the
UN General Assembly (20 December 1965).
The victims of the conflict on both sides need and deserve the same
protection, and they are not necessarily responsible for the violation of jus
ad bellum committed by “their” party. IHL must therefore be respected in-
dependently of any argument of, and be completely distinguished from, jus
ad bellum. Any past, present and future theory of just war only concerns jus
ad bellum and cannot justify (but is in fact frequently used to imply) that
those fighting a just war have more rights or fewer obligations under IHL
than those fighting an unjust war.
The two Latin terms were coined only in the last century, but Emmanuel
Kant already distinguished the two ideas. Earlier, when the doctrine of just
war prevailed, Grotius’ temperamenta belli (restraints to the waging of war)
only addressed those fighting a just war. Later, when war became a simple
fact of international relations, there was no need to distinguish between jus
ad bellum and jus in bello. It is only with the prohibition of the use of force
that the separation between the two became essential. It has since been rec-
ognized in the preamble to Protocol I:

PA R T I I
“The High Contracting Parties, Proclaiming their earnest wish to see peace
prevail among peoples,
Recalling that every State has the duty, in conformity with the Charter of
the United Nations, to refrain in its international relations from the threat or
use of force against the sovereignty, territorial integrity or political indepen-
dence of any State, or in any other manner inconsistent with the purposes
of the United Nations,
Believing it necessary nevertheless to reaffirm and develop the provi-
sions protecting the victims of armed conflicts and to supplement measures
intended to reinforce their application,
Expressing their conviction that nothing in this Protocol or in the Geneva
Conventions of 12 August 1949 can be construed as legitimizing or autho-
rizing any act of aggression or any other use of force inconsistent with the
Charter of the United Nations,
Reaffirming further that the provisions of the Geneva Conventions of 12
August 1949 and of this Protocol must be fully applied in all circumstances
to all persons who are protected by those instruments, without any adverse
distinction based on the nature or origin of the armed conflict or on the
causes espoused by or attributed to the Parties to the conflict.
This complete separation between jus ad bellum and jus in bello implies
that IHL applies whenever there is de facto an armed conflict, no matter
how that conflict is qualified under jus ad bellum, and that no jus ad bel-
lum arguments may be used to interpret it; it also implies, however, that the
rules of IHL are not to be drafted so as to render jus ad bellum impossible to
implement, e.g., render efficient self-defense impossible.
Some consider that the growing institutionalization of international rela-
tions through the United Nations, concentrating the legal monopoly of the
use of force in its hands or a hegemonic international order, will return IHL
to a state of temperamenta belli addressing those who fight for international
legality. This would fundamentally modify the philosophy of existing IHL.

International Law Commission, Articles on State

Responsibility
International Law Commission Report, A/56/10, August 2001248
CHAPTER IV: STATE RESPONSIBILITY…
Responsibility of States for Internationally Wrongful Acts
PART ONE
THE INTERNATIONALLY WRONGFUL ACT OF A STATE
CHAPTER I
GENERAL PRINCIPLES
Article I
Responsibility of a State for its internationally wrongful acts
Every internationally wrongful act of a State entails the international
responsibility of that State.
Article 2
Elements of an internationally wrongful act of a State
There is an internationally wrongful act of a State when conduct consist-
ing of an action or omission:
(a) The act would, but for the coercion, be an internationally wrongful
act of the coerced State; and
(b) The coercing State does so with knowledge of the circumstances of
the act.
Article 19
***
Effect of this chapter
This chapter is without prejudice to the international responsibility, un-
der other provisions of these articles, of the State which commits the act in
question, or of any other State.
248
ILC Draft Articles on State Responsibility, United Nations, International Law
Commission, Report on the work of its fifty-third session (23 April-1 June
and 2 July-10 August 2001), General Assembly, Official Records, Fifty-fifth Session,
Supplement No. 10 (A/56/10), available at http://www.un.org/law/ilc/. The UN
General Assembly took note of the Draft Articles in Resolution A/RES/56/83 of 12
December 2001.

PA R T I I
CHAPTER V
CIRCUMSTANCES PRECLUDING WRONGFULNESS
Article 20
Consent
Valid consent by a State to the commission of a given act by another State
precludes the wrongfulness of that act in relation to the former State to the
extent that the act remains within the limits of that consent.
Article 21
Self-defense
The wrongfulness of an act of a State is precluded if the act constitutes a
lawful measure of self-defense taken in conformity with the Charter of the
United Nations.
Commentary
…2) Self-defense may justify non-performance of certain obligations other
than that under Article 2, paragraph (4), of the Charter, provided that such
non-performance is related to the breach of that provision. Traditional inter-
national law dealt with these problems by instituting a separate legal regime
of war, defining the scope of belligerent rights and suspending most treaties
in force between the belligerents on the outbreak of war. In the Charter pe-
riod, declarations of war are exceptional and military actions proclaimed as
self-defence by one or both parties occur between States formally at “peace”
with each other. The Vienna Convention on the Law of Treaties leaves such
issues to one side by providing in article 73 that the Convention does not
prejudice “any question that may arise in regard to a treaty… from the outbreak
of hostilities between States.”
3) This is not to say that self-defense precludes the wrongfulness of
conduct in all cases or with respect to all obligations. Examples relate to
international humanitarian law and human rights obligations. The Geneva
Conventions of 1949 and Protocol I of 1977 apply equally to all the parties
in an international armed conflict, and the same is true of customary inter-
national humanitarian law. Human rights treaties contain derogation provi-
sions for times of public emergency, including actions taken in self-defense.
As to obligations under international humanitarian law and in relation to
non-derogable human rights provisions, self-defense does not preclude the
wrongfulness of conduct….

Article 25
Necessity
1. Necessity may not be invoked by a State as a ground for precluding the
wrongfulness of an act not in conformity with an international obligation of
that State unless the act:
(a) Is the only way for the State to safeguard an essential interest against
a grave and imminent peril; and
(b) Does not seriously impair an essential interest of the State or States
towards which the obligation exists, or of the international community as
a whole.
2. In any case, necessity may not be invoked by a State as a ground for
precluding wrongfulness if:
(a) The international obligation in question excludes the possibility of
invoking necessity; or
(b) The State has contributed to the situation of necessity.
Commentary
…19) …Subparagraph (2) (a) concerns cases where the international
obligation in question explicitly or implicitly excludes reliance on neces-
sity. Thus certain humanitarian conventions applicable to armed conflict
expressly exclude reliance on military necessity. Others while not explicitly
excluding necessity are intended to apply in abnormal situations of peril for
the responsible State and plainly engage its essential interests. In such a case
the non-availability of the plea of necessity emerges clearly from the object
and the purpose of the rule….
21) As embodied in article 25, the plea of necessity is not intended to
cover conduct which is in principle regulated by the primary obligations.
This has a particular importance in relation to the rules relating to the use of
force in international relations and to the question of “military necessity,”… [a]
doctrine… which is, in the first place, the underlying criterion for a series of
substantive rules of the law of war and neutrality, as well as being included in
terms in a number of treaty provisions in the field of international humanitar-
ian law. [footnote 435: See e.g. art. 23 (g) of the Hague Regulations Respecting
the Laws and Customs of War on Land (annexed to Convention II of 1899 and
Convention IV of 1907), which prohibits the destruction of enemy property
“unless such destruction or seizure be imperatively demanded by the neces-
sities of war”…. Similarly, art. 54 (5) of the Protocol Additional to the Geneva

PA R T I I
Conventions of 12 August 1949, and Relating to the Protection of Victims

of International Armed Conflicts (Protocol I), appears to permit attacks on
objects indispensable to the survival of the civilian population if “imperative
military necessity” so requires.] In both respects, while considerations akin
to those underlying article 25 may have a role, they are taken into account in
the context of the formulation and interpretation of the primary obligations.
Inter-American Commission on Human Rights, Tablada249

CDH/3398
***
IV. ANALYSIS
146. In order to facilitate the analysis of key events and issues raised in
this case, this report will examine those events and issues under the follow-
ing three headings:
the attack on and the recovery of the military base; the events that fol-
lowed the surrender of the attackers and the arrest of their alleged accom-
plices; and the trial of those same persons for the crime of rebellion in the
Abella case.
A. THE ATTACK AND RECAPTURE OF THE MILITARY BASE
147. In their complaint, petitioners invoke various rules of International
Humanitarian Law, i.e. the law of armed conflict, in support of their allega-
tions that state agents used excessive force and illegal means in their efforts
to recapture the Tablada military base. For its part, the Argentine State, while
rejecting the applicability of interstate armed conflict rules to the events in
question, nonetheless have in their submissions to the Commission charac-
terized the decision to retake the Tablada base by force as a military opera-
tion. The State also has cited the use of arms by the attackers to justify their
prosecution for the crime of rebellion as defined in Law 23.077. Both the
Argentine State and petitioners are in agreement that on the 23 and 24 of
January 1989 an armed confrontation took place at the Tablada base between
attackers and Argentine armed forces for approximately 30 hours.
148. The Commission believes that before it can properly evaluate the
merits of petitioners claims concerning the recapture of the Tablada base
249
Inter-American Commission on Human Rights, Report No. 55/97, Case No. 11.137:
Argentina, OEA/ Ser/L/V/II.98, Doc. 38, December 6 rev., 1997, citations partially
omitted. Available at http://www.cidh.org

by the Argentine military, it must first determine whether the armed con-
frontation at the base was merely an example of an internal disturbance or
tensions or whether it constituted a non-international or internal armed
conflict within the meaning of Article 3 common to the four 1949 Geneva
conventions (Common Article 3). Because the legal rules governing an in-
ternal armed conflict vary significantly from those governing situations of
internal disturbances or tensions, a proper characterization of the events at
the Tablada military base on January 23 and 24, 1989 is necessary to deter-
mine the sources of applicable law. This, in turn, requires the Commission
to examine the characteristics that differentiate such suspension under
these humanitarian law instruments, the Commission should conclude that
these derogation measures are in violation of the State Parties obligations
under both the American Convention and the humanitarian law treaties
concerned….
V. PETITIONERS’ CLAIMS
172. Petitioners do not dispute the fact that some MTP members planned,
initiated and participated in the attack on the military base. They contend,
however, that the reason or motive for the attack – to stop a rumored military
coup against the Alfonsin government – was legally justified by Article 21 of
the National Constitution which obliged citizens to take up arms in defense
of the Constitution. Consequently, they assert that their prosecutions for the
crime of rebellion was violative of the American Convention. In addition,
petitioners argue that because their cause was just and lawful, the State, by
virtue of its excessive and unlawful use of force in retaking the military base,
must bear full legal and moral responsibility for all the loss of life and material
damage occasioned by its actions.
173. The Commission believes that petitioners’ arguments reflect certain
fundamental misconceptions concerning the nature of international hu-
manitarian law. It should be understood that neither application of Common
Article 3, nor of any other humanitarian law rules relevant to the hostilities
at the Tablada base, can be interpreted as recognizing the legitimacy of the
reasons or the cause for which the members of the MTP took up arms. Most
importantly, application of the law is not conditioned by the causes of the
conflict. This basic tenant of humanitarian law is enshrined in the preamble
of Additional Protocol I which states in pertinent part:
Reaffirming further that the provisions of the Geneva Conventions of
August 12, 1949 … must be fully applied in all circumstances ... without any
adverse distinction based on the nature or origin off [sic] the armed conflict
or on the causes espoused by or attributed to the Parties of the Conflict.

PA R T I I
174. Unlike human rights law which generally restrains only the abusive
practices of state agents, Common Article 3’s mandatory provisions expressly
bind and apply equally to both parties to internal conflicts, i.e., government
and dissident forces. Moreover, the obligation to apply Common Article 3
is absolute for both parties and independent of the obligation of the other.
[Footnote 27 reads: A breach of Article 3 by one party, such as an illegal
method of combat, could not be invoked by the other party as a ground for its
non-compliance with the Article’s obligatory provisions. See generally, Vienna
Convention on the Law of Treaties, Art. 60.] Therefore, both the MTP attack-
ers and the Argentine armed forces had the same duties under humanitarian
law, and neither party could be held responsible for the acts of the other.
Combatants and Prisoners of War

The First Protocol Additional to the Geneva Conventions
(Protocol I)250
8 June 1977
Section II. Combatants and Prisoners of War
ARTICLE 43. Armed forces
1. The armed forces of a Party to a conflict consist of all organized armed
forces, groups and units which are under a command responsible to that
Party for the conduct or its subordinates, even if that Party is represented
by a government or an authority not recognized by an adverse Party. Such
armed forces shall be subject to an internal disciplinary system which, inter
alia, shall enforce compliance with the rules of international law applicable
in armed conflict.
2. Members of the armed forces of a Party to a conflict (other than medi-
cal personnel and chaplains covered by Article 33 of the Third Convention)
are combatants, that is to say, they have the right to participate directly in
hostilities.
3. Whenever a Party to a conflict incorporates a paramilitary or armed
law enforcement agency into its armed forces it shall so notify the other
Parties to the conflict.
250
Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating
to the Protection of Victims of International Armed Conflicts (Protocol I), 1125
U.N.T.S. 3, entered into force Dec. 7, 1978.

ARTICLE 44. Combatants and prisoners of war

1. Any combatant, as defined in Article 43, who falls into the power of an
adverse Party shall be a prisoner of war.
2. While all combatants are obliged to comply with the rules of interna-
tional law applicable in armed conflict, violations of these rules shall not de-
prive a combatant of his right to be a combatant or, if he falls into the power
of an adverse Party, of his right to be a prisoner of war, except as provided
in paragraphs 3 and 4.
3. In order to promote the protection of the civilian population from the
effects of hostilities, combatants are obliged to distinguish themselves from
the civilian population while they are engaged in an attack or in a military
operation preparatory to an attack. Recognizing, however, that there are
situations in armed conflicts where, owing to the nature of the hostilities an
armed combatant cannot so distinguish himself, he shall retain his status as
a combatant, provided that, in such situations, he carries his arms openly:
(a) during each military engagement, and
(b) during such time as he is visible to the adversary while he is
engaged in a military deployment preceding the launching
of an attack in which he is to participate.
Acts which comply with the requirements of this paragraph shall not be
considered as perfidious within the meaning of Article 37, paragraph 1 (c).
4. A combatant who falls into the power of an adverse Party while fail-
ing to meet the requirements set forth in the second sentence of paragraph
3 shall forfeit his right to be a prisoner of war, but he shall, nevertheless, be
given protections equivalent in all respects to those accorded to prisoners
of war by the Third Convention and by this Protocol.
The Third Geneva Convention, 1949251

Convention (III) relative to the Treatment of Prisoners of War, Geneva,
12 August 1949
ARTICLE 4
A. Prisoners of war, in the sense of the present Convention, are persons
belonging to one of the following categories, who have fallen into the power
of the enemy:
251
Third Geneva Convention, Convention (III) relative to the Treatment of Prisoners
of War, 75 U.N.T.S. 135, entered into force Oct. 21, 1950.

PA R T I I
(1) Members of the armed forces of a Party to the conflict, as well as

members of militias or volunteer corps forming part of such armed forces.
(2) Members of other militias and members of other volunteer corps,
including those of organized resistance movements, belonging to a Party to
the conflict and operating in or outside their own territory, even if this ter-
ritory is occupied, provided that such militias or volunteer corps, including
such organized resistance movements, fulfill the following conditions:
(a) that of being commanded by a person responsible for his subordinates;
(b) that of having a fixed distinctive sign recognizable at a distance;
(c) that of carrying arms openly;
(d) that of conducting their operations in accordance with the laws and
customs of war.
(3) Members of regular armed forces who profess allegiance to a govern-
ment or an authority not recognized by the Detaining Power.
(4) Persons who accompany the armed forces without actually being
members thereof, such as civilian members of military aircraft crews, war
correspondents, supply contractors, members of labor units or of services
responsible for the welfare of the armed forces, provided that they have
received authorization, from the armed forces which they accompany, who
shall provide them for that purpose with an identity card similar to the an-
nexed model.
(5) Members of crews, including masters, pilots and apprentices, of the
merchant marine and the crews of civil aircraft of the Parties to the conflict,
who do not benefit by more favourable treatment under any other provisions
(6) Inhabitants of a non-occupied territory, who on the approach of the
enemy spontaneously take up arms to resist the invading forces, without
having had time to form themselves into regular armed units, provided they
carry arms openly and respect the laws and customs of war.
B. The following shall likewise be treated as prisoners of war under the
present Convention:
(1) Persons belonging, or having belonged, to the armed forces of the
occupied country, if the occupying Power considers it necessary by reason of
such allegiance to intern them, even though it has originally liberated them
while hostilities were going on outside the territory it occupies, in particular
where such persons have made an unsuccessful attempt to rejoin the armed

forces to which they belong and which are engaged in combat, or where they
fail to comply with a summons made to them with a view to internment.
(2) The persons belonging to one of the categories enumerated in the
present Article, who have been received by neutral or non-belligerent Pow-
ers on their territory and whom these Powers are required to intern under
international law, without prejudice to any more favourable treatment which
these Powers may choose to give and with the exception of Articles 8, 10,
15, 30, fifth paragraph, 58-67, 92, 126 and, where diplomatic relations ex-
ist between the Parties to the conflict and the neutral or non-belligerent
Power concerned, those Articles concerning the Protecting Power. Where
such diplomatic relations exist, the Parties to a conflict on whom these per-
sons depend shall be allowed to perform towards them the functions of a
Protecting Power as provided in the present Convention, without prejudice
to the functions which these Parties normally exercise in conformity with
diplomatic and consular usage and treaties.
C. This Article shall in no way affect the status of medical personnel and
chaplains as provided for in Article 33 of the present Convention.
ARTICLE 5
The present Convention shall apply to the persons referred to in Article
4 from the time they fall into the power of the enemy and until their final
release and repatriation. Should any doubt arise as to whether persons, having
committed a belligerent act and having fallen into the hands of the enemy,
belong to any of the categories enumerated in Article 4, such persons shall
enjoy the protection of the present Convention until such time as their status
has been determined by a competent tribunal.
Convention on the Safety of UN Personnel252

[Source: Convention on the Safety of United Nations and Associated
Personnel, UN Doc. Annex to Resolution 49/59, New York, 9 December,
1994; available at untreaty.un.org]
Article 7: Duty to ensure the safety and security of United Nations and
associated personnel
1. United Nations and associated personnel, their equipment and premises
shall not be made the object of attack or of any action that prevents them
from discharging their mandate.
252
Convention on the Safety of United Nations and Associated Personnel, G.A. res.
49/59, 49 U.N. GAOR Supp. (No. 49) at 299, U.N. Doc. A/49/49 (1994).

PA R T I I
2. States Parties shall take all appropriate measures to ensure the safety
and security of United Nations and associated personnel. In particular, States
Parties shall take all appropriate steps to protect United Nations and associ-
ated personnel who are deployed in their territory from the crimes set out
in article 9.
3. States Parties shall cooperate with the United Nations and other States
Parties, as appropriate, in the implementation of this Convention, particularly
in any case where the host State is unable itself to take the required measures.
Article 8: Duty to release or return United Nations and associated person-
nel captured or detained
Except as otherwise provided in an applicable status-of-forces agreement,
if United Nations or associated personnel are captured or detained in the
course of the performance of their duties and their identification has been
established, they shall not be subjected to interrogation and they shall be
promptly released and returned to United Nations or other appropriate au-
thorities. Pending their release such personnel shall be treated in accordance
with universally recognized standards of human rights and the principles and
spirit of the Geneva Conventions of 1949.
Article 9: Crimes against United Nations and associated personnel
1. The intentional commission of:
(a) A murder, kidnapping or other attack upon the person or liberty of
any United Nations or associated personnel;
(b) A violent attack upon the official premises, the private accommo-
dation or the means of transportation of any United Nations or associated
personnel likely to endanger his or her person or liberty;
(c) A threat to commit any such attack with the objective of compelling
a physical or juridical person to do or to refrain from doing any act;
(d) An attempt to commit any such attack; and
(e) An act constituting participation as an accomplice in any such attack,
or in an attempt to commit such attack, or in organizing or ordering others
to commit such attack, shall be made by each State Party a crime under its
national law.
2. Each State Party shall make the crimes set out in paragraph 1 punish-
able by appropriate penalties which shall take into account their grave nature.

Article 10: Establishment of jurisdiction

1. Each State Party shall take such measures as may be necessary to estab-
lish its jurisdiction over the crimes set out in article 9 in the following cases:….
Article 19: Dissemination
The States Parties undertake to disseminate this Convention as widely as
possible and, in particular, to include the study thereof, as well as relevant
provisions of international humanitarian law, in their programmes of military
instruction.
Article 20: Savings clauses
Nothing in this Convention shall affect:
(a) The applicability of international humanitarian law and universally
recognized standards of human rights as contained in international instru-
ments in relation to the protection of United Nations operations and United
Nations and associated personnel or the responsibility of such personnel to
respect such law and standards;
Optional Protocol to the Convention on the Safety of

United Nations and Associated Personnel253
Article 1: Relationship
This Protocol supplements the Convention on the Safety of United Na-
tions and Associated Personnel, done at New York on 9 December 1994
(hereinafter referred to as “the Convention”), and as between the Parties to
this Protocol, the Convention and the Protocol shall be read and interpreted
together as a single instrument.
Article 2: Application of the Convention to United Nations operations
1. The Parties to this Protocol shall, in addition to those operations as
defined in article 1 (c) of the Convention, apply the Convention in respect
of all other United Nations operations established by a competent organ of
the United Nations in accordance with the Charter of the United Nations and
conducted under United Nations authority and control for the purposes of:
(a) Delivering humanitarian, political or development assistance in peace
building, or
(b) Delivering emergency humanitarian assistance.
253
Optional Protocol to the Convention on the Safety of United Nations and Associ-
ated Personnel, New York, 8 December 2005; available at untreaty.un.org.

PA R T I I
2. Paragraph I does not apply to any permanent United Nations office,

such as headquarters of the Organization or its specialized agencies estab-
lished under an agreement with the United Nations.
3. A host State may make a declaration to the Secretary-General of the
United Nations that it shall not apply the provisions of this Protocol with
respect to an operation under article II(1)(b) which is conducted for the
sole purpose of responding to a natural disaster. Such a declaration shall be
made prior to the deployment of the operation.
Article 3: Duty of a State Party with respect to Article 8 of the Convention
The duty of a State Party to this Protocol with respect to the application
of article 8 of the Convention to United Nations operations defined in article
II of this Protocol shall be without prejudice to its right to take action in the
exercise of its national jurisdiction over any United Nations or associated
personnel who violates the laws and regulations of that State, provided that
such action is not in violation of any other international law obligation of
the State Party.
Detention of Unlawful Combatants

Iyad v. State of Israel, Decision of the Supreme Court of Israel, 2008254
The Supreme Court of Israel sitting as the Court of Criminal Appeals
JUDGMENT
President D. Beinisch:
We have before us appeals against the decisions of the Tel-Aviv-Jaffa Dis-
trict Court …, in which the detention of the appellants under the Internment
of Unlawful Combatants Law … (hereafter: ‘the Internment of Unlawful Com-
batants Law’ or ‘the law’) was upheld as lawful. Beyond the specific cases of
the appellants, the appeals raise fundamental questions concerning the inter-
pretation of the provisions of the Internment of Unlawful Combatants Law,…
and to what extent the law is consistent with international humanitarian law.
The main facts and sequence of events
1. The first appellant is an inhabitant of the Gaza Strip, born in 1973, who
was placed under administrative detention on 1 January 2002 pursuant to
the Administrative Detentions…Order…. The detention of the first appellant
254
Iyad v. State of Israel, Supreme Court of Israel, 1 CrimA 6659/06, 11 June
2008, available at http://elyon1.court.gov.il/files_eng/06/590/066/n04/06066590.
n04.pdf.

was extended from time to time by the military commander and upheld on
judicial review by the Gaza Military Court. The second appellant is also an
inhabitant of Gaza, born in 1972, and he was placed under administrative
detention on 24 January 2003 pursuant to the aforesaid order. The detention
of the second appellant was also extended from to time and reviewed by
the Gaza Military Court. On 12 September 2005 a statement was published
by the Southern District Commander with regard to the end of military rule
in the territory of the Gaza Strip. On the same day, in view of the change in
circumstances and also the change in the relevant legal position, internment
orders were issued against the appellants;
1. The appellant in this case was initially referred to as Anonymous, but
his name was subsequently released. [Note of the authors]
2. On 22 September 2005 a judicial review proceeding began in the Tel-
Aviv-Jaffa District Court […] in the appellants’ case. On 25 January 2006 the
District Court held that there had been no impropriety in the procedure of
issuing internment orders against the appellants and that all the conditions
prescribed in the Internment of Unlawful Combatants Law were satisfied,
including the fact that their release would harm state security. The appellants
appealed this decision to the Supreme Court, and on 14 March 2006 their
appeal was denied […]. In the judgment it was held that from material that
was presented to the court it could be seen that the appellants were clearly
associated with the Hezbollah organization and that they participated in
combat activities against the citizens of Israel before they were detained. The
court emphasized in this context the individual threat presented by the two
appellants and the risk that they would return to their activities if they were
released, as could be seen from the material presented to the court.
The Internment of Unlawful Combatants Law – the background to its
legislation and its main purpose
6. The Internment of Unlawful Combatants Law gives the state authorities
power to detain ‘unlawful combatants’ as defined in section 2 of the law, i.e.,
persons who participate in hostilities or are members of forces that carry out
hostilities against the State of Israel and who do not satisfy the conditions
that grant a prisoner of war status under international humanitarian law. As
we shall explain below, the law allows the internment of foreign persons who
belong to a terrorist organization or who participate in hostilities against the
security of the state, and it was intended to prevent these persons returning
to the cycle of hostilities against Israel….

PA R T I I
Interpreting the provisions of the law

7. [W]e should first consider the interpretation of the main arrangements
prescribed in the Internment of Unlawful Combatants Law….
9. With regard to the presumption of conformity to international hu-
manitarian law, as we have said, section 1 of the law expressly declares that
its purpose is to regulate the internment of unlawful combatants ‘… in a man-
ner that is consistent with the commitments of the State of Israel under the
provisions of international humanitarian law.’ The premise in this context is
that an international armed conflict prevails between the State of Israel and
the terrorist organizations that operate outside Israel […] [See also Case No
136, Israel, The Targeted Killings Case, paras18-21].
The international law that governs an international armed conflict is
enshrined mainly in the Hague Convention (IV) Respecting the Laws and
Customs of War on Land (1907) (hereafter: ‘the Hague Convention’) and the
regulations appended to it, whose provisions have the status of customary
international law […]; the Geneva Convention (IV) relative to the Protec-
tion of Civilian Persons in Time of War, 1949 (hereafter: ‘the Fourth Geneva
Convention’), whose customary provisions constitute a part of the law of
the State of Israel and some of which have been considered in the past by
this court […]; and the Protocol Additional to the Geneva Convention of 12
August 1949 Relating to the Protection of Victims of International Armed
Conflicts (Protocol I), 1977 (hereafter: ‘the First Protocol’), to which Israel
is not a party, but whose customary provisions also constitute a part of the
law of the State of Israel …. In addition, where there is a lacuna in the laws
of armed conflict set out above, it is possible to fill it by resorting to interna-
tional human rights law ….
…[I]t should be noted that when we approach the task of interpreting
provisions of the statute in a manner consistent with the accepted norms of
international law, we cannot ignore the fact that the provisions of interna-
tional law that exist today have not been adapted to changing realities and
the phenomenon of terrorism that is changing the form and characteristics
of armed conflicts and those who participate in them…. In view of this, we
should do our best in order to interpret the existing laws in a manner that is
consistent with new realities and the principles of international humanitar-
ian law.
10. In view of all of the aforesaid, let us now turn to the interpretation
of the statutory definition of ‘unlawful combatant’ and the interpretation of
the conditions required for proving the existence of a ground for detention
under the law….

The definition of ‘unlawful combatant’ and its scope of application

11. Section 2 of the law defines ‘unlawful combatant’ as follows:
‘Definitions 2. In this law – ‘Unlawful combatant’ – a person who took
part in hostilities against the State of Israel, whether directly or indirectly, or
who is a member of a force carrying out hostilities against the State of Israel,
who does not satisfy the conditions granting a prisoner of war status under
international humanitarian law, as set out in article 4 of the Third Geneva
Convention of 12 August 1949 relative to the Treatment of Prisoners of War;…’
This statutory definition of ‘unlawful combatant’ relates to those persons
who take part in hostilities against the State of Israel or who are members of a
force that carries out such hostilities, and who are not prisoners of war under
international humanitarian law. In this regard two points should be made:
first, from the language of the aforesaid section 2 it can clearly be seen that
it is not essential for someone to take part in hostilities against the State of
Israel; his being a member of a ‘force carrying out hostilities’ – i.e., a terrorist
organization – may include that person within the definition of ‘unlawful
combatant.’ We will discuss the significance of these two alternatives in the
definition of ‘unlawful combatant’ later (paragraph 21 below).
Second, as we said above, the purpose clause in the law refers expressly to
the provisions of international humanitarian law. The definition of ‘unlawful
combatant’ in the aforesaid section 2 also refers to international humanitarian
law when it provides that the law applies to someone who does not enjoy a
prisoner of war status under the Third Geneva Convention. As a rule, the rules of
international humanitarian law were not intended to apply to the relationship
between the state and its citizens (see, for example, the provisions of article 4
of the Fourth Geneva Convention, according to which a ‘protected civilian’ is
someone who is not a citizen of the state that is holding him in circumstances
of an international armed conflict). The express reference by the legislature to
international humanitarian law, together with the requirement stipulated in the
wording of the law that there is no prisoner of war status, show that the law
was intended to apply only to foreign parties who belong to a terror organiza-
tion that operates against the security of the state. We are not unaware that in
the draft law of 14 June 2000 there was a provision that stated expressly that
the law would not apply to Israeli inhabitants (and also to inhabitants of the
territories), except in certain circumstances that were set out there in […]. This
provision of statute was omitted from the final wording of the law. Notwith-
standing, in view of the express reference made by the law to international
humanitarian law and the laws concerning prisoners of war as stated above,
we are drawn to the conclusion that according to the wording and purpose

PA R T I I
of the law it was not intended to apply to local parties (citizens and residents
of Israel) who endanger state security. For these there are other legal measures
that are intended for a security purpose, which we shall address later.
It is therefore possible to summarize the matter by saying that an ‘unlaw-
ful combatant’ under section 2 of the law is a foreign party who belongs to a
terrorist organization that operates against the security of the State of Israel.
This definition may include residents of a foreign country that maintains a
state of hostilities against the State of Israel, who belong to a terrorist organi-
zation that operates against the security of the state and who satisfy the other
conditions of the statutory definition of ‘unlawful combatant.’ This definition
may also include inhabitants of the Gaza Strip which today is no longer held
under belligerent occupation. In this regard it should be noted that since the
end of Israeli military rule in the Gaza Strip in September 2005, the State of
Israel has no permanent physical presence in the Gaza Strip, and it also has
no real possibility of carrying out the duties required of an occupying power
under international law, including the main duty of maintaining public order
and security. Any attempt to impose the authority of the State of Israel on the
Gaza Strip is likely to involve complex and prolonged military operations. In
such circumstances, where the State of Israel has no real ability to control what
happens in the Gaza Strip in an effective manner, the Gaza Strip should not
be regarded as a territory that is subject to a belligerent occupation from the
viewpoint of international law, even though because of the unique situation
that prevails there, the State of Israel has certain duties to the inhabitants of
the Gaza Strip […] [See Case No. 137, Israel, Power Cuts in Gaza]. In our case, in
view of the fact that the Gaza Strip is no longer under the effective control of
the State of Israel, we are drawn to the conclusion that the inhabitants of the
Gaza Strip constitute foreign parties who may be subject to the Internment
of Unlawful Combatants Law in view of the nature and purpose of this law.
With regard to the inhabitants of the territory (Judaea and Samaria) that
is under the effective control of the State of Israel, […] I tend to the opinion
that in so far as this is required for security reasons, the administrative de-
tention of these inhabitants should be carried out pursuant to the security
legislation that applies in the territories and not by virtue of the Internment
of Unlawful Combatants Law. […]
Conformity of the definition of ‘unlawful combatant’ to a category recog-
nized by international law
12. The appellants argued before us that the definition of ‘unlawful com-
batant’ in section 2 of the law is contrary to the provisions of international
humanitarian law, since international law does not recognize the existence

of an independent and separate category of ‘unlawful combatants.’ In their

view there are only two categories in international law, ‘combatants’ and
‘civilians,’ who are subject to the provisions and protections enshrined in the
Third and Fourth Geneva Conventions respectively. In their view international
law does not have an intermediate category that includes persons who are
not protected by either of these conventions.
With regard to the appellants’ aforesaid arguments we should point out
that the question of the conformity of the term ‘unlawful combatant’ to the
categories recognized by international law has already been addressed in our
case law in Public Committee against Torture in Israel v. Government of Israel,
in which it was held that the term ‘unlawful combatants’ does not constitute
a separate category but is a sub-category of ‘civilians’ recognized by interna-
tional law [See Case No 136, Israel, The Targeted Killings Case]. This conclu-
sion is based on the approach of customary international law, according to
which the category of ‘civilians’ includes everyone who is not a ‘combatant.’
We are therefore dealing with a negative definition. […] In this context, two
additional points should be made: first, the finding that ‘unlawful combatants’
belong to the category of ‘civilians’ in international law is consistent with the
official interpretation of the Geneva Conventions, according to which in an
armed conflict or a state of occupation, every person who finds himself in the
hands of the opposing party is entitled to a certain status under international
humanitarian law – a prisoner of war status which is governed by the Third
Geneva Convention or a protected civilian status which is governed by the
Fourth Geneva Convention….
Second, it should be emphasized that prima facie the statutory defini-
tion of ‘unlawful combatant’ under section 2 of the law applies to a broader
group of people than the group of ‘unlawful combatants’ discussed in Public
Committee against Torture in Israel v. Government of Israel, in view of the dif-
ference in the measures under discussion: the judgment in Public Committee
against Torture in Israel v. Government of Israel considered the legality of the
measure of a military operation intended to cause the death of an ‘unlawful
combatant.’ According to international law, it is permitted to attack an ‘unlaw-
ful combatant’ only during the period of time when he is taking a direct part
in the hostilities. By contrast, the Internment of Unlawful Combatants Law
addresses the measure of internment. For the purposes of detention under the
law, it is not necessary that the ‘unlawful combatant’ will take a direct part in
the hostilities, nor is it essential that his detention will take place during the
period of time when he is taking part in hostilities; all that is required is that
the conditions of the definition of ‘unlawful combatant’ in section 2 of the
law are proved. This statutory definition does not conflict with the provisions

PA R T I I
of international humanitarian law since, as we shall clarify clear below [sic],

the Fourth Geneva Convention also permits the detention of a protected
‘civilian’ who endangers the security of the detaining state. Thus we see that
our reference to the judgment in Public Committee against Torture in Israel v.
Government of Israel was not intended to indicate that an identical issue was
considered in that case. Its purpose was to support the finding that the term
‘unlawful combatants’ in the law under discussion does not create a separate
category of treatment from the viewpoint of international humanitarian law,
but constitutes a sub-group of the category of ‘civilians.’
13. Further to our finding that ‘unlawful combatants’ are members of the
category of ‘civilians’ from the viewpoint of international law, it should be
noted that this court has held in the past that international humanitarian law
does not grant ‘unlawful combatants’ the same degree of protection to which
innocent civilians are entitled, and that in this respect there is a difference
from the viewpoint of the rules of international law between ‘civilians’ who
are not ‘unlawful combatants’ and ‘civilians’ who are ‘unlawful combatants.’
…. As we shall explain below, in the present context the significance of this is
that someone who is an ‘unlawful combatant’ is subject to the Fourth Geneva
Convention, but according to the provisions of the aforesaid convention it
is possible to apply various restrictions to them and inter alia to detain them
when they represent a threat to the security of the state.
14. In summary, in view of the purpose clause of the Internment of Unlaw-
ful Combatants Law, according to which the law was intended to regulate the
status of ‘unlawful combatants’ in a manner that is consistent with the rules
of international humanitarian law, and in view of the finding of this court in
Public Committee against Torture in Israel v. Government of Israel that ‘unlaw-
ful combatants’ constitute a subcategory of ‘civilians’ under international law,
it is possible to determine that, contrary to the appellants’ claim, the law does
not create a new reference group from the viewpoint of international law.
United States, Military Commissions

The Military Commissions were first established by President George W.
Bush in 2001. Following the U.S. Supreme Court’s judgment in Hamdan v.
Rumsfeld,255 in which the Court ruled that the military commissions did not
comply with common Article 3 of the Geneva Conventions requirements,
the Congress passed the Military Commission Act of 2006, with the view to
re-establishing the commissions.
255
Hamdan v Rumsfeld, United States Supreme Court, 548 U.S. 577 (2006).

I. Military Commission Act of 2006256
***
SEC. 2. CONSTRUCTION OF PRESIDENTIAL AUTHORITY TO ESTABLISH
MILITARY COMMISSIONS.
The authority to establish military commissions under chapter 47A of
title 10, United States Code, as added by section 3(a), may not be construed
to alter or limit the authority of the President under the Constitution of the
United States and laws of the United States to establish military commissions
for areas declared to be under martial law or in occupied territories should
circumstances so require….
‘‘§ 948a. Definitions
‘‘In this chapter:
‘‘(1) UNLAWFUL ENEMY COMBATANT.—
(A) The term ‘unlawful enemy combatant’ means—
‘‘(i) a person who has engaged in hostilities or who has purposefully and
materially supported hostilities against the United States or its co-belligerents
who is not a lawful enemy combatant (including a person who is part of the
Taliban, al Qaeda, or associated forces); or
‘‘(ii) a person who, before, on, or after the date of the enactment of the
Military Commissions Act of 2006, has been determined to be an unlaw-
ful enemy combatant by a Combatant Status Review Tribunal or another
competent tribunal established under the authority of the President or the
Secretary of Defense.
‘‘(B) CO-BELLIGERENT.—In this paragraph, the term ‘cobelligerent’, with
respect to the United States, means any State or armed force joining and
directly engaged with the United States in hostilities or directly supporting
hostilities against a common enemy.
‘‘(2) LAWFUL ENEMY COMBATANT.—The term ‘lawful enemy combatant’
means a person who is—
‘‘(A) a member of the regular forces of a State party engaged in hostilities
against the United States;
256
United States Department of Defense, “Military Commission Act of 2006,” Pub. L.
No. 109-366, 120 Stat. 2600 (2006).

PA R T I I
‘‘(B) a member of a militia, volunteer corps, or organized resistance

movement belonging to a State party engaged in such hostilities, which are
under responsible command, wear a fixed distinctive sign recognizable at a
distance, carry their arms openly, and abide by the law of war; or
‘‘(C) a member of a regular armed force who professes allegiance to a gov-
ernment engaged in such hostilities, but not recognized by the United States.
‘‘(3) ALIEN.—The term ‘alien’ means a person who is not a citizen of the
United States….
‘‘§ 948b. Military commissions generally
‘‘(a) PURPOSE.—This chapter establishes procedures governing the use
of military commissions to try alien unlawful enemy combatants engaged in
hostilities against the United States for violations of the law of war and other
offenses triable by military commission.
‘‘(b) AUTHORITY FOR MILITARY COMMISSIONS UNDER THIS CHAP-
TER.—The President is authorized to establish military commissions under this
chapter for offenses triable by military commission as provided in this chapter….
‘‘(f) STATUS OF COMMISSIONS UNDER COMMON ARTICLE 3.— A
military commission established under this chapter is a regularly constituted
court, affording all the necessary ‘judicial guarantees which are recognized
as indispensable by civilized peoples’ for purposes of common Article 3 of
the Geneva Conventions.
‘‘(g) GENEVA CONVENTIONS NOT ESTABLISHING SOURCE OF
RIGHTS.—No alien unlawful enemy combatant subject to trial by military
commission under this chapter may invoke the Geneva Conventions as a
source of rights.

Montreux Document on pertinent international legal

obligations and good practices for States related to
operations of private military and security companies
during armed conflict257
Montreux, 17 September 2008
INFORMAL SUMMARY OF THE MONTREUX DOCUMENT BY SWITZER-
LAND
1. Private military and security companies (PMSCs) are nowadays often
relied on in areas of armed conflict – by individuals, companies, and gov-
ernments. They are contracted for a range of services, from the operation
of weapon systems to the protection of diplomatic personnel. Recent years
have seen an increase in the use of PMSCs, and with it the demand for a
clarification of pertinent legal obligations under international humanitarian
law and human rights law.
2. The Montreux Document seeks to meet this demand. The result of a
joint initiative by Switzerland and the International Committee of the Red
Cross (ICRC) launched in 2006, it recalls existing obligations of States, PMSCs
and their personnel under international law whenever PMSCs – for whatever
reason – are present during armed conflict. In a second part, it contains a set
of over 70 good practices designed to assist States in complying with these
obligations. Neither parts are legally binding, nor are they intended to legiti-
mize the use of PMSCs in any particular circumstance. They were developed by
governmental experts from seventeen States [Footnote: Afghanistan, Angola,
Australia, Austria, Canada, China, France, Germany, Iraq, Poland, Sierra Leone,
South Africa, Sweden, Switzerland, the United Kingdom of Great Britain and
Northern Ireland, Ukraine, and the United States of America] with a particular
interest in the issue of PMSCs or international humanitarian law. Representa-
tives of civil society and of the PMSC industry were also consulted.
3. Part I differentiates between contracting States, territorial States and
home States. For each category of States, Part I recalls pertinent international
legal obligations according to international humanitarian law and human
rights law. The question of attribution of private conduct to the State under
with customary international law is also addressed. In addition, Part I devotes
sections to the pertinent international legal obligations of “all other States,”
257
United Nations, “Montreux Document on pertinent international legal obliga-
tions and good practices for States related to operations of private military
and security companies during armed conflict,” U.N. Doc. A/63/467–S/2008/636,
6 October 2008; available at www.un.org.

PA R T I I
to the duties of PMSCs and their personnel, as well as to questions of superior

responsibility.
4. Like Part I, Part II also differentiates between contracting States, ter-
ritorial States and home States. The good practices draw largely from existing
practices of States not only directly with regard to PMSCs but also, for instance,
from existing regulations for arms and armed services. They range from in-
troducing transparent licensing regimes to ensuring better supervision and
accountability – so that only PMSCs which are likely to respect international
humanitarian law and human rights law, through appropriate training, inter-
nal procedures and supervision, can provide services during armed conflict.
5. In the preface of the Montreux Document, the participating States invite
other States and international organisations to communicate their support for
the document to the Federal Department of Foreign Affairs of Switzerland.
PREFACE
This document is the product of an initiative launched cooperatively by
the Government of Switzerland and the International Committee of the Red
Cross. It was developed with the participation of governmental experts from
Afghanistan, Angola, Australia, Austria, Canada, China, France, Germany, Iraq,
Poland, Sierra Leone, South Africa, Sweden, Switzerland, the United Kingdom
of Great Britain and Northern Ireland, Ukraine, and the United States of
America in meetings convened in January and November 2006, November
2007, and April and September 2008. Representatives of civil society and
of the private military and security industry were consulted. The following
understandings guided the development of this document:
1. That certain well-established rules of international law apply to States
in their relations with private military and security companies (PMSCs) and
their operation during armed conflict, in particular under international hu-
manitarian law and human rights law;
2. That this document recalls existing legal obligations of States and PMSCs
and their personnel (Part One), and provides States with good practices to
promote compliance with international humanitarian law and human rights
law during armed conflict (Part Two);
3. That this document is not a legally binding instrument and does not
affect existing obligations of States under customary international law or
under international agreements to which they are parties, in particular their
obligations under the Charter of the United Nations (especially its articles
2(4) and 51);

4. That this document should therefore not be interpreted as limiting, prej-

udicing or enhancing in any manner existing obligations under international
law, or as creating or developing new obligations under international law;
5. That existing obligations and good practices may also be instructive
for post conflict situations and for other, comparable situations; however,
that international humanitarian law is applicable only during armed conflict;
6. That cooperation, information sharing and assistance between States,
commensurate with each State’s capacities, is desirable in order to achieve
full respect for international humanitarian law and human rights law; as is
cooperative implementation with the private military and security industry
and other relevant actors;
7. That this document should not be construed as endorsing the use of
PMSCs in any particular circumstance but seeks to recall legal obligations
and to recommend good practices if the decision has been made to contract
PMSCs;
8. That while this document is addressed to States, the good practices may
be of value for other entities such as international organizations, NGOs and
companies that contract PMSCs, as well as for PMSCs themselves;
9. That for the purposes of this document:
a) “PMSCs” are private business entities that provide military and/or secu-
rity services, irrespective of how they describe themselves. Military and security
services include, in particular, armed guarding and protection of persons
and objects, such as convoys, buildings and other places; maintenance and
operation of weapons systems; prisoner detention; and advice to or training
of local forces and security personnel.
b) “Personnel of a PMSC” are persons employed by, through direct hire
or under a contract with, a PMSC, including its employees and managers.
c) “Contracting States” are States that directly contract for the services
of PMSCs, including, as appropriate, where such a PMSC subcontracts with
another PMSC.
d) “Territorial States” are States on whose territory PMSCs operate.
e) “Home States” are States of nationality of a PMSC, i.e. where a
PMSC is registered or incorporated; if the State where the PMSC is incor-
porated is not the one where it has its principal place of management,
then the State where the PMSC has its principal place of management
is the “Home State.”

PA R T I I
The participating States commend this document to the attention of other

States, international organizations, NGOs, the private military and security
industry and other relevant actors, which are invited to adopt those good
practices that they consider appropriate for their operations. The participat-
ing States invite other States and international organizations to communicate
their support for this document to the Federal Department of Foreign Affairs
of Switzerland. The participating States also declare their readiness to review
and, if necessary, to revise this document in order to take into account new
developments.
Protection for Wounded, Sick and Ship-

wrecked
The Second Geneva Convention, 1949258
Convention (II) for the Amelioration of the Condition of Wounded, Sick
and Shipwrecked Members of Armed Forces, Geneva, 12 August 1949AR-
TICLE 11
In cases where they deem it advisable in the interest of protected persons,
particularly in cases of disagreement between the Parties to the conflict as to
the application or interpretation of the provisions of the present Convention,
the Protecting Powers shall lend their good offices with a view to settling
the disagreement.
For this purpose, each of the Protecting Powers may, either at the invita-
tion of one Party or on its own initiative, propose to the Parties to the conflict
a meeting of their representatives, in particular of the authorities responsible
for the wounded, sick and shipwrecked, medical personnel and chaplains,
possibly on neutral territory suitably chosen. The Parties to the conflict shall
be bound to give effect to the proposals made to them for this purpose.
The Protecting Powers may, if necessary, propose for approval by the Parties
to the conflict, a person belonging to a neutral Power or delegated by the
International Committee of the Red Cross, who shall be invited to take part
in such a meeting.
258
Second Geneva Convention, Convention (II) for the Amelioration of the Condition
of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea75 U.N.T.S.
85, entered into force Oct. 21, 1950.

***
Chapter II. Wounded, Sick and Shipwrecked
ARTICLE 12
Members of the armed forces and other persons mentioned in the fol-
lowing Article, who are at sea and who are wounded, sick or shipwrecked,
shall be respected and protected in all circumstances, it being understood
that the term “shipwreck” means shipwreck from any cause and includes
forced landings at sea by or from aircraft.
Such persons shall be treated humanely and cared for by the Parties to
the conflict in whose power they may be, without any adverse distinction
founded on sex, race, nationality, religion, political opinions, or any other
similar criteria. Any attempts upon their lives, or violence to their persons,
shall be strictly prohibited; in particular, they shall not be murdered or ex-
terminated, subjected to torture or to biological experiments; they shall not
willfully be left without medical assistance and care, nor shall conditions
exposing them to contagion or infection be created.
Only urgent medical reasons will authorize priority in the order of treat-
ment to be administered.
Women shall be treated with all consideration due to their sex.
ARTICLE 13
The present Convention shall apply to the wounded, sick and ship-
wrecked at sea belonging to the following categories:
(1) Members of the armed forces of a Party to the conflict, as well as
members of militias or volunteer corps forming part of such armed forces.
(2) Members of other militias and members of other volunteer corps,
including those of organized resistance movements, belonging to a Party to
the conflict and operating in or outside their own territory, even if this ter-
ritory is occupied, provided that such militias or volunteer corps, including
such organized resistance movements, fulfill the following conditions:
(a) that of being commanded by a person responsible for his subordinates;
(b) that of having a fixed distinctive sign recognizable at a distance;
(c) that of carrying arms openly;
(d) that of conducting their operations in accordance with the laws and
customs of war.

PA R T I I
(3) Members of regular armed forces who profess allegiance to a Govern-

ment or an authority not recognized by the Detaining Power.
(4) Persons who accompany the armed forces without actually being
members thereof, such as civilian members of military aircraft crews, war
correspondents, supply contractors, members of labor units or of services
responsible for the welfare of the armed forces, provided that they have re-
ceived authorization from the armed forces which they accompany.
(5) Members of crews, including masters, pilots and apprentices, of the
merchant marine and the crews of civil aircraft of the Parties to the conflict,
who do not benefit by more favourable treatment under any other provisions
(6) Inhabitants of a non-occupied territory who, on the approach of the
enemy, spontaneously take up arms to resist the invading forces, without
having had time to form themselves into regular armed units, provided they
carry arms openly and respect the laws and customs of war.
British Military Court at Hamburg, the Peleus Trial259

Trial of Kapitanleutnant Heinz Eck and four others for the killing of mem-
bers of the crew of the Greek steamship Peleus, sunk on the high seas, in the
British Military Court for the trial of war criminals held at the war crimes
court, Hamburg, 17th-20th, October 1945.
***
2. THE CHARGE
The prisoners were: Kapitanleutnant Heinz Eck, Leutnant zur See August
Hoffmann, Marine Stabsarzt Walter Weisspfennig, Kapitanleutnant (Ing) Hans
Richard Lenz, Gefreiter Schwender.
They were charged jointly with:
“Committing a war crime in that you in the Atlantic Ocean on the
night of 13/14th March, 1944, when Captain and members of the crew
of Unterseeboat 852 which had sunk the steamship “Peleus” in violation
of the laws and usages of war were concerned in the killing of members
of the crew of the said steamship, Allied nationals, by firing and throwing
grenades at them.”…
259
The United Nations War Crimes Commission, Law Reports of Trials of War Crimi-
nals, vol. I, 1947, pp. 1-21.

3. THE OPENING OF THE CASE BY THE PROSECUTOR

The “Peleus” was a Greek ship chartered by the British Ministry of War
Transport. The crew consisted of a variety of nationalities; on board there
were 18 Greeks, 8 British seamen, one seaman from Aden, two Egyptians,
three Chinese, a Russian, a Chilean and a Pole.
On the 13th March, 1944, the ship was sunk in the middle of the Atlantic
Ocean by the German submarine No. 852, commanded by the first accused,
Heinz Eck. Apparently the majority of the members of the crew of the “Peleus”
got into the water and reached two rafts and wreckage that was floating
about. The submarine surfaced, and called over one of the members of the
crew who was interrogated as to the name of the ship, where she was bound
and other information.
The submarine then proceeded to open fire with a machine-gun or
machine-guns on the survivors in the water and on the rafts, and also threw
hand grenades on the survivors, with the result that all of the crew in the
water were killed or died of their wounds, except for three, namely the Greek
first officer, a Greek seaman and a British seaman. These men remained in
the water for over 25 days, and were then picked up by a Portuguese steam-
ship and taken into port….
4. EVIDENCE FOR THE PROSECUTION
…The fifth accused, Kapitän-Leutnant Engineer Lenz, appears to have
behaved in the following way: (a) When he heard that the captain had de-
cided to eliminate all traces of the sinking, he approached the captain and
informed him that he was not in agreement with this order. Eck replied that
he was nevertheless determined to eliminate all traces of the sinking. Lenz
then went below to note the survivors’ statements in writing and did not
take part in the shooting and throwing of grenades. (b) Later on, Lenz went
on the bridge and noticed the accused Schwender with a machine gun in his
hand. He saw that Schwender was about to fire his machine gun at the target
and thereupon he, Lenz, took the machine gun from Schwender’s hand and
fired it himself in the general direction of the target indicated. He did this
because he considered that Schwender, long known to him as one of the
most unsatisfactory ratings in the boat, was unworthy to be entrusted with
the execution of such an order.
5. OUTLINE OF THE DEFENSE
…The Defense claimed that the elimination of the traces of the “Peleus”
was operationally necessary in order to save the U-boat.

PA R T I I
The other accused relied mainly on the pleas of superior orders….

With regard to the plea of superior orders, Professor Wegner said that he
stuck “to the good old English principles” laid down by the “Caroline case,”
according to which, he submitted, it was a well-established rule of International
Law that the individual forming part of a public force and acting under author-
ity of his own Government is not to be held answerable as a private trespasser
or malefactor, that what such an individual does is a public act, performed by
such a person in His Majesty’s service acting in obedience to superior orders,
and that the responsibility, if any, rests with His Majesty’s Government….
6. EVIDENCE BY THE ACCUSED HEINZ ECK, COMMANDER OF THE
SUBMARINE
The accused, Heinz Eck,… thought that the rafts were a danger to him,
first because they would show aeroplanes the exact spot of the sinking, and
secondly because rafts at that time of the war, as was well-known, could be
provided with modern signaling communication. When he opened fire there
were no human beings to be seen on the rafts. He also ordered the throwing
of hand grenades after he had realized that mere machine gun fire would not
sink the rafts. He thought that the survivors had jumped out of the rafts….
It was clear to him, he went on, that all possibility of saving the survivors’
lives had gone. He could not take the survivors on board the U-boat because it
was against his orders. He was under the impression that the mood on board
was rather depressed. He himself was in the same mood; consequently he
said to the crew that with a heavy heart he had finally made the decision to
destroy the remainder of the sunken ship. Eck referred to an alleged incident
involving the German ship “Hartenstein” of which he had been told by two
officers. After this boat had saved the lives of many survivors, it was located by
an aeroplane. The boat showed the Red Cross sign and one of the survivors,
a flying officer, had, with a signal lamp, given some signals to the aeroplane
not to attack the boat because of the survivors being on board, including
women. The plane left, and after a time it returned and attacked the boat,
which was forced to unload the survivors again, in order to dive, and it sur-
vived only after sustaining some damage. This case, about which he had been
told before the beginning of his voyage, showed him that on the enemy side
military reasons came before human reasons, that is to say before the saving
of the lives of survivors. For that reason, he thought his measures justified….
Eck’s description of the “Hartenstein” incident was, in the main, confirmed
by an English witness, a solicitor serving as a temporary civil servant at the
Admiralty. He confirmed that, as a result of the incident, the German U-boat
Command issued instructions as follows:

“No attempt of any kind should be made at rescuing members of ships

sunk, and this includes picking up persons in the water and putting them in
lifeboats, righting capsized lifeboats and handing over food and water. Rescue
runs counter to the rudimentary demands of warfare for the destruction of
enemy ships and crews. Orders for bringing Captains and Chief Engineers still
apply. Rescue the shipwrecked only if their statements will be of importance
for your boat. Be harsh, having in mind that the enemy takes no regard of
women and children in his bombing attacks of German cities.”…
8. EXAMINATION OF THE FOUR OTHER ACCUSED
…The accused Weisspfennig also referred to the order but admitted that
in the German navy there were regulations about the conduct of medical
officers which forbade them to use weapons for offensive purposes. Weis-
spfennig disregarded this regulation because he had received an order from
the Commandant. He did not know whether his regulations provided that he
could refuse to obey an order which was against the Geneva Convention. He
knew what the Geneva Convention was and realized that one of the reasons
why he was given protection as a doctor was because he was a noncombatant.
He realized that there were survivors. He did not regard the use of the
machine gun in his particular case as an offensive action….
12. SUMMING UP BY THE JUDGE ADVOCATE
The Judge Advocate stated at the very outset that the court should be in
no way embarrassed by the alleged complications of International Law which,
it had been suggested, surrounded such a case as this. It was a fundamental
usage of war that the killing of unarmed enemies was forbidden as a result
of the experience of civilized nations through many centuries. To fire so as
to kill helpless survivors of a torpedoed ship was a grave breach of the law of
nations. The right to punish persons who broke such rules of war had clearly
been recognised for many years….
Regarding the defense of operational necessity, the Judge Advocate stated:
“The question whether or not any belligerent is entitled to kill an unarmed
person for the purpose of saving his own life has been the subject of much
discussion. It may be that circumstances can arise – it is not necessary to
imagine them – in which such a killing might be justified. But the court had
to consider this case on the facts which had emerged from the evidence of
Eck. He cruised about the site of this sinking for five hours, he refrained from
using his speed to get away as quickly as he could, he preferred to go round
shooting, as he says, at wreckage by means of machine guns.” The Judge Advo-
cate asked the court whether it thought or did not think that the shooting of

PA R T I I
a machine gun on substantial pieces of wreckage and rafts would be an effective

way of destroying every trace of the sinking. He asked whether it was not clearly
obvious that in any event, a patch of oil would have been left which would have
been an indication to any aircraft that a ship had recently been sunk. He went
on to say: “Do you or do you not think that a submarine commander who was
really and primarily concerned with saving his crew and his boat would have
done as Captain Schnee, who was called for the defense, said he would have
done, namely have removed himself and his boat at the highest possible speed
at the earliest possible moment for the greatest possible distance?”
Eck did not reply on the defense of superior orders. He stood before the
court taking upon himself the sole responsibility of the command which he
issued. With regard to the defense of superior orders, the Judge Advocate said:
“The duty to obey is limited to the observance of orders which are lawful.
There can be no duty to obey that which is not a lawful order. The fact that
a rule of warfare has been violated in pursuance of an order of a belligerent
government or of an individual belligerent commander does not deprive the
act in question of its character as a war crime, neither does it confer upon the
perpetrator immunity from punishment by the injured belligerent.”
The Judge Advocate added: “It is quite obvious that no sailor and no
soldier can carry with him a library on international law or have immedi-
ate access to a professor in that subject who can tell him whether or not a
particular command is a lawful one. If this were a case which involved the
careful consideration of questions of international law as to whether or not
the command to fire at helpless survivors struggling in the water was lawful,
you might well think it would not be fair to hold any of the subordinate ac-
cused in this case responsible for what they are alleged to have done; but is
it not fairly obvious to you that if in fact the carrying out of Eck’s command
involved the killing of these helpless survivors, it was not a lawful command,
and that it must have been obvious to the most rudimentary intelligence that
it was not lawful command, and that those who did that shooting are not to
be excused for doing it upon the ground of superior orders?”…
13. THE VERDICT
The five accused were found guilty of the charge.
14. THE SENTENCE
After Counsel for the Defense had pleaded in mitigation on behalf of the
accused and some of them had also called witnesses, the following findings
and sentences of the court were pronounced on 20th October, 1945, subject
to confirmation:

Eck, Hoffmann, Weisspfennig were sentenced to suffer death by shooting.

Lenz was sentenced to imprisonment for life, Schwender was sentenced to
suffer imprisonment for 15 years.
The sentences were confirmed by the Commander-in-Chief, British Army
of the Rhine, on 12th November, 1945, and the sentences of death imposed
on Kapitanleutnant Heinz Eck, Marine Oberstabsarzt Walter Weisspfennig,
and Leutnant zur See August Hoffmann, were put into execution at Hamburg
on 30th November, 1945.
ICRC Report on Yemen, 1967260

The ICRC’s medical activity in North Yemen. Giving medical assistance
to the wounded and sick in the part of the Yemen under Royalist control was
the ICRC’s main action in that area during 1967….
This mission’s work was, however, rendered extremely difficult by several
incidents. First of all there was that of Ketaf in the Jauf in January, when about
120 persons, many of them women and children, were killed as a result of
an air raid on the village on January 5, 1967.
As a result of this attack, the ICRC made the following appeal on January
31 to the belligerents:
“The International Committee of the Red Cross in Geneva
is extremely concerned about the air-raids against the civilian
population and the alleged use of poisonous gas recently in the
Yemen and the neighboring regions.
In view of the suffering thereby caused, the ICRC earnestly
appeals to all authorities involved in this conflict for respect in
all circumstances of the universally recognized humanitarian
rules of international morality and law.
The ICRC depends on the understanding and support of all the
powers involved in order to enable its doctors and delegates in the
Yemen to continue under the best conditions possible to carry out
their work of impartial assistance to the victims of this conflict.
The ICRC takes the opportunity to affirm that, in the interest
of the persons in need of its assistance, it has adopted as a
general rule to give no publicity to the observations made by its
260
International Committee of the Red Cross (ICRC) Annual Report 1967, ICRC, pp.
15-17.

PA R T I I
delegates in the exercise of their functions. Nevertheless, these

observations are used to back up the appropriate negotiations
which it unfailingly undertakes whenever necessary.“
A further raid on May 12 having caused 75 deaths, an ICRC medical mis-
sion went to give its aid there, after having itself been attacked from the air.
On June 2 a report, drawn up by the doctors of the ICRC, was sent to the
governments parties to the conflict giving their observations and engaging
them in no circumstances to resort to methods of fighting prohibited by the
Geneva Protocol of 1925.
Since then, no further incident of this kind has been reported to the
ICRC. At the end of June, one of the ICRC delegates was the victim of a seri-
ous accident. Mr. Laurent Vust who was accompanying a consignment of
medicines in the aircraft on the Najran-Gizan line was seriously hurt after
a crash landing. He was the only survivor and suffering from bad burns. Mr.
Vust was still undergoing treatment at the end of December 1967.
Another accident befell this mission. On August 26 an ICRC convoy was
ambushed by Bedouins in the Jauf desert. A young doctor, Dr. Frédéric de Bros
was hit by a bullet in the left arm causing an open fracture and resulted in par-
tial paralysis in that limb. In the autumn, as a result of agreements concluded in
Khartoum, the ICRC had, in principle, arranged to terminate its medical action
by the end of the year. However, in December fighting again broke out around
Sanaa. Consequently, the medical action had to be continued in the rear of the
Royalist positions. After a journey of 600 kilometres on tracks between Najran
and Jihanah with all the difficulties involved, an ICRC medical team was installed
in the town of Jihanah which worked at night and took cover in case during the
day. In Jihanah where it expected to find only a small number of wounded, the
ICRC team discovered some thirty wounded abandoned and in indescribable
conditions of distress of whom about twenty were seriously wounded, most of
them women and children, and savagely mutilated. In such conditions, it can be
understood that the task of the ICRC doctors was one of the utmost difficulty, if
one adds the fact that medical teams protected by the red cross emblem were
twice bombed and attacked during the course of 1967. The courage of their
members deserves high praise for risking their lives for others.
Finally, in view of the renewal of the fighting, a second appeal made by
the ICRC in the last days of 1967 to the two parties in conflict for them to
respect the fundamental humanitarian principles contained in the Geneva
Conventions.

Afghanistan, Separate Hospital Treatment for Men and

Women
[ After the events related in this case, the policy referred to was no longer
applied by the Taliban Afghan authorities]261
A. Women barred from Kabul hospitals, Perrin, J.-P., “Les hôpitaux de
Kaboul interdits aux femmes,” 1997262 Women Barred from Kabul Hospitals….
Taliban prohibiting treatment for sick women and turning them out of
the hospitals….
First, the women of Kabul were forbidden to work. Next they were forbid-
den to study or train for a profession. Then it was decreed that they could go
out in public only if accompanied by a husband, father or brother. But nobody
in Kabul, previously a very Westernized city, would have imagined that the
Taliban, who took control of the Afghan capital just over a year ago, would
go so far as to prevent women from receiving medical attention. However,
this was what the latest directive issued by the “students of Islamic theology”
on 6 September ordered in very clear terms. It is now strictly forbidden for
any of the town’s public hospitals to treat women except in emergencies – a
rather theoretical and flimsy proviso. And the few female staff remaining in
these hospitals are not allowed to give any treatment at all. From now on,
until the (hypothetical) opening of a hospital reserved for women, there is
only one establishment to treat all the female inhabitants of Kabul. But, ac-
cording to the Western doctors who have visited it, “the Central Polyclinic”
has no running water, no electricity above the second floor, no laboratory,
no functioning operating theatre and only one microscope. What is worse, it
has a mere 45 beds available for the entire female population of a city which
has almost one and a half million inhabitants and, moreover, is devastated
by the war and plagued by shortages of all kinds.
Since the decree was issued, not only are sick women being refused
treatment but those already in hospital are being turned out – and this is
in a town with a large number of medical facilities. In a recently published
document, Médecins sans frontiers (MSF) reported that 12 female patients,
some of them with bullet wounds, had been turned out of one of the major
hospitals, Wazir Akbar Khan, on October 19, and only two of them were
later found at the Polyclinic. That same day saw the dismissal of the last 15
261
See ICRC News: Afghanistan: Women gradually being re-admitted to Kabul
Hospitals, 97/47, November 26, 1997.
262
Perrin, J.-P., “Les hôpitaux de Kaboul interdits aux femmes,” in Libération,
October 23, 1997, original in French, unofficial translation.

PA R T I I
female employees of the Karte Se hospital, which may soon cease to function
because male workers are not willing to take charge of the laundry. Worse
still, the decision whereby hospitals could treat women in emergencies, taken
under Western NGO pressure by the Minister of Health, Mullawi Abbas, has
been widely condemned. Already the emergency departments of two of the
four large Kabul hospitals are refusing to admit women. At the beginning of
October a woman in a deep coma was turned away and sent home. In Septem-
ber, another woman suffering from a highly contagious form of tuberculosis
was also sent home before she had completed her course of treatment, thus
exposing her entire family to the risk of infection. And recently a doctor at
one of the large hospitals disclosed that he had not dared to treat a woman
suffering from 80% burns because he would have had to remove her clothing.
The NGOs present in Kabul are even more “sickened” by the violence with
which the ministerial directives are applied. On September 27, the Ministry
decided to close down all private clinics with in-patient facilities, and just
two days later members of the Taliban entered one of these clinics and vio-
lently ejected two women who were in the process of giving birth. “What
we are seeing is the total destruction of a health system which until now, in
contrast to the education system, has remained relatively unscathed. People
should be aware that today women are dying at home in Kabul because the
Taliban will not allow them access to treatment. First of all, these women are
afraid to go out. And then, when they do pluck up the courage to leave their
homes, it is often too late and their condition is irremediable. The same ap-
plies to their children,” declared Pierre Salignon, the coordinator of the MSF
mission in Kabul….
What the military/religious order of the Taliban is endeavouring to estab-
lish is a system of health care conforming to the ideal Islamic society which
they are advocating, a system in which men and women are kept strictly
apart, the women often living a completely cloistered life. The most incred-
ible aspect of the situation is that this policy of apartheid is being financed,
initiated even, by the World Health Organization. MSF notes in its report
that the notorious directive depriving Kabul’s female inhabitants of medical
treatment coincided with the beginning of work on the renovation of the
Rabia Balkhi hospital, which is destined to become the only “women’s hos-
pital” in the capital and might open in a year’s time. The main donor for this
construction project turns out to be WHO, which has made a contribution
of $64,000 for the first six months.

Security Council Resolution 1193 (1998)263

The Security Council,
Having considered the situation in Afghanistan,
Recalling its previous resolution 1076 (1996) of October 22, 1996 and
the statements of the President of the Security Council on the situation in
Afghanistan,
Recalling also resolution 52/211 of the General Assembly,
Expressing its grave concern at the continued Afghan conflict which has
recently sharply escalated due to the Taliban forces’ offensive in the north-
ern parts of the country, causing a serious and growing threat to regional
and international peace and security, as well as extensive human suffering,
further destruction, refugee flows and other forcible displacement of large
numbers of people, [...]
9. Urges all Afghan factions and, in particular the Taliban, to facilitate
the work of the international humanitarian organizations and to ensure
unimpeded access and adequate conditions for the delivery of aid by such
organizations to all in need of it;
10. Appeals to all States, organizations and programmes of the United
Nations system, specialized agencies and other international organizations
to resume the provision of humanitarian assistance to all in need of it in
Afghanistan as soon as the situation on the ground permits; [...]
12. Reaffirms that all parties to the conflict are bound to comply with
their obligations under international humanitarian law and in particular the
Geneva Conventions of August 12, 1949, and that persons who commit or
order the commission of grave breaches of the Conventions are individually
responsible in respect of such breaches;…
14. Urges the Afghan factions to put an end to the discrimination against
girls and women and to other violations of human rights as well as violations
of international humanitarian law and to adhere to the internationally ac-
cepted norms and standards in this sphere….
263
United Nations Security Council resolution 1193, U.N.Doc. S/Res/1193 (August 28,
1998).

PA R T I I
Protection of Civilians
The Fourth Geneva Convention 1949264
Convention (IV) relative to the Protection of Civilian Persons in Time
of War. Geneva, 12 August 1949
ARTICLE 12
In cases where they deem it advisable in the interest of protected persons,
particularly in cases of disagreement between the Parties to the conflict as to
the application or interpretation of the provisions of the present Convention,
the Protecting Powers shall lend their good offices with a view to settling
the disagreement.
For this purpose, each of the Protecting Powers may, either at the invita-
tion of one Party or on its own initiative, propose to the Parties to the conflict
a meeting of their representatives, and in particular of the authorities respon-
sible for protected persons, possibly on neutral territory suitably chosen. The
Parties to the conflict shall be bound to give effect to the proposals made to
them for this purpose. The Protecting Powers may, if necessary, propose for
approval by the Parties to the conflict a person belonging to a neutral Power,
or delegated by the International Committee of the Red Cross, who shall be
invited to take part in such a meeting.
PART II. GENERAL PROTECTION OF POPULATIONS AGAINST CERTAIN
CONSEQUENCES OF WAR
ARTICLE 13
The provisions of Part II cover the whole of the populations of the coun-
tries in conflict, without any adverse distinction based, in particular, on race,
nationality, religion or political opinion, and are intended to alleviate the
sufferings caused by war.
ARTICLE 14
In time of peace, the High Contracting Parties and, after the outbreak of
hostilities, the Parties thereto, may establish in their own territory and, if the
need arises, in occupied areas, hospital and safety zones and localities so orga-
nized as to protect from the effects of war, wounded, sick and aged persons,
children under fifteen, expectant mothers and mothers of children under seven.
264
The Fourth Geneva Convention relative to the Protection of Civilian Persons in
Time of War, 75 U.N.T.S. 287, entered into force Oct. 21, 1950.

Upon the outbreak and during the course of hostilities, the Parties con-
cerned may conclude agreements on mutual recognition of the zones and
localities they have created. They may for this purpose implement the provi-
sions of the Draft Agreement annexed to the present Convention, with such
amendments as they may consider necessary.
The Protecting Powers and the International Committee of the Red Cross
are invited to lend their good offices in order to facilitate the institution and
recognition of these hospital and safety zones and localities.
ARTICLE 15
Any Party to the conflict may, either direct or through a neutral State or
some humanitarian organization, propose to the adverse Party to establish,
in the regions where fighting is taking place, neutralized zones intended to
shelter from the effects of war the following persons, without distinction:
(a) wounded and sick combatants or non-combatants;
(b) civilian persons who take no part in hostilities, and who, while they
reside in the zones, perform no work of a military character.
When the Parties concerned have agreed upon the geographical position,
administration, food supply and supervision of the proposed neutralized zone,
a written agreement shall be concluded and signed by the representatives
of the Parties to the conflict. The agreement shall fix the beginning and the
duration of the neutralization of the zone.
ARTICLE 16
The wounded and sick, as well as the infirm, and expectant mothers, shall
be the object of particular protection and respect.
As far as military considerations allow, each Party to the conflict shall
facilitate the steps taken to search for the killed and wounded, to assist the
shipwrecked and other persons exposed to grave danger, and to protect them
against pillage and ill-treatment.
ARTICLE 17
The Parties to the conflict shall endeavour to conclude local agreements
for the removal from besieged or encircled areas, of wounded, sick, infirm,
and aged persons, children and maternity cases, and for the passage of min-
isters of all religions, medical personnel and medical equipment on their
way to such areas.

PA R T I I
ARTICLE 18
Civilian hospitals organized to give care to the wounded and sick, the
infirm and maternity cases, may in no circumstances be the object of attack
but shall at all times be respected and protected by the Parties to the conflict.
States which are Parties to a conflict shall provide all civilian hospitals
with certificates showing that they are civilian hospitals and that the build-
ings which they occupy are not used for any purpose which would deprive
these hospitals of protection in accordance with Article 19.
Civilian hospitals shall be marked by means of the emblem provided for
in Article 38 of the Geneva Convention for the Amelioration of the Condition
of the Wounded and Sick in Armed Forces in the Field of 12 August 1949, but
only if so authorized by the State. The Parties to the conflict shall, in so far as
military considerations permit, take the necessary steps to make the distinc-
tive emblems indicating civilian hospitals clearly visible to the enemy land,
air and naval forces in order to obviate the possibility of any hostile action.
In view of the dangers to which hospitals may be exposed by being close
to military objectives, it is recommended that such hospitals be situated as
far as possible from such objectives.
ARTICLE 19
The protection to which civilian hospitals are entitled shall not cease un-
less they are used to commit, outside their humanitarian duties, acts harmful
to the enemy. Protection may, however, cease only after due warning has been
given, naming, in all appropriate cases, a reasonable time limit and after such
warning has remained unheeded. The fact that sick or wounded members of
the armed forces are nursed in these hospitals, or the presence of small arms
and ammunition taken from such combatants and not yet been handed to
the proper service, shall not be considered to be acts harmful to the enemy.
ARTICLE 20
Persons regularly and solely engaged in the operation and administra-
tion of civilian hospitals, including the personnel engaged in the search for,
removal and transporting of and caring for wounded and sick civilians, the
infirm and maternity cases shall be respected and protected.
In occupied territory and in zones of military operations, the above
personnel shall be recognizable by means of an identity card certifying their
status, bearing the photograph of the holder and embossed with the stamp
of the responsible authority, and also by means of a stamped, water-resistant
armlet which they shall wear on the left arm while carrying out their duties.

This armlet shall be issued by the State and shall bear the emblem provided for
in Article 38 of the Geneva Convention for the Amelioration of the Condition
of the Wounded and Sick in Armed Forces in the Field of 12 August 1949.
Other personnel who are engaged in the operation and administration
of civilian hospitals shall be entitled to respect and protection and to wear
the armlet, as provided in and under the conditions prescribed in this Article,
while they are employed on such duties. The identity card shall state the duties
on which they are employed. The management of each hospital shall at all
times hold at the disposal of the competent national or occupying authorities
an up-to-date list of such personnel.
ARTICLE 21
Convoys of vehicles or hospital trains on land or specially provided ves-
sels on sea, conveying wounded and sick civilians, the infirm and maternity
cases, shall be respected and protected in the same manner as the hospitals
provided for in Article 18, and shall be marked, with the consent of the State,
by the display of the distinctive emblem provided for in Article 38 of the
Geneva Convention for the Amelioration of the Condition of the Wounded
and Sick in Armed Forces in the Field of 12 August 1949.
ARTICLE 22
Aircraft exclusively employed for the removal of wounded and sick civil-
ians, the infirm and maternity cases or for the transport of medical personnel
and equipment, shall not be attacked, but shall be respected while flying at
heights, times and on routes specifically agreed upon between all the Parties
to the conflict concerned. They may be marked with the distinctive emblem
provided for in Article 38 of the Geneva Convention for the Amelioration
of the Condition of the Wounded and Sick in Armed Forces in the Field of
12 August 1949. Unless agreed otherwise, flights over enemy or enemy oc-
cupied territory are prohibited. Such aircraft shall obey every summons to
land. In the event of a landing thus imposed, the aircraft with its occupants
may continue its flight after examination, if any.
ARTICLE 23
Each High Contracting Party shall allow the free passage of all consign-
ments of medical and hospital stores and objects necessary for religious
worship intended only for civilians of another High Contracting Party, even
if the latter is its adversary. It shall likewise permit the free passage of all con-
signments of essential foodstuffs, clothing and tonics intended for children
under fifteen, expectant mothers and maternity cases.

PA R T I I
The obligation of a High Contracting Party to allow the free passage of the
consignments indicated in the preceding paragraph is subject to the condi-
tion that this Party is satisfied that there are no serious reasons for fearing:
(a) that the consignments may be diverted from their destination,
(b) that the control may not be effective, or
(c) that a definite advantage may accrue to the military efforts or economy
of the enemy through the substitution of the above-mentioned consignments
for goods which would otherwise be provided or produced by the enemy or
through the release of such material, services or facilities as would otherwise
be required for the production of such goods.
The Power which allows the passage of the consignments indicated in
the first paragraph of this Article may make such permission conditional on
the distribution to the persons benefited thereby being made under the local
supervision of the Protecting Powers. Such consignments shall be forwarded
as rapidly as possible, and the Power which permits their free passage shall
have the right to prescribe the technical arrangements under which such
passage is allowed.
ARTICLE 24
The Parties to the conflict shall take the necessary measures to ensure
that children under fifteen, who are orphaned or are separated from their
families as a result of the war, are not left to their own resources, and that their
maintenance, the exercise of their religion and their education are facilitated
in all circumstances. Their education shall, as far as possible, be entrusted to
persons of a similar cultural tradition.
The Parties to the conflict shall facilitate the reception of such children
in a neutral country for the duration of the conflict with the consent of the
Protecting Power, if any, and under due safeguards for the observance of the
principles stated in the first paragraph.
They shall, furthermore, endeavour to arrange for all children under twelve
to be identified by the wearing of identity discs, or by some other means.
ARTICLE 25
All persons in the territory of a Party to the conflict, or in a territory occu-
pied by it, shall be enabled to give news of a strictly personal nature to mem-
bers of their families, wherever they may be, and to receive news from them.
This correspondence shall be forwarded speedily and without undue delay.
If, as a result of circumstances, it becomes difficult or impossible to ex-

change family correspondence by the ordinary post, the Parties to the conflict
concerned shall apply to a neutral intermediary, such as the Central Agency
provided for in Article 140, and shall decide in consultation with it how to
ensure the fulfillment of their obligations under the best possible conditions,
in particular with the cooperation of the National Red Cross (Red Crescent,
Red Lion and Sun) Societies.
If the Parties to the conflict deem it necessary to restrict family correspon-
dence, such restrictions shall be confined to the compulsory use of standard
forms containing twenty-five freely chosen words, and to the limitation of
the number of these forms despatched to one each month.
ARTICLE 26
Each Party to the conflict shall facilitate enquiries made by members of
families dispersed owing to the war, with the object of renewing contact with
one another and of meeting, if possible. It shall encourage, in particular, the
work of organizations engaged on this task provided they are acceptable to
it and conform to its security regulations.
PART III. STATUS AND TREATMENT OF PROTECTED PERSONS
Section I. Provisions common to the territories of the parties to the con-
flict and to occupied territories
ARTICLE 27
Protected persons are entitled, in all circumstances, to respect for their
persons, their honour, their family rights, their religious convictions and
practices, and their manners and customs. They shall at all times be humanely
treated, and shall be protected especially against all acts of violence or threats
thereof and against insults and public curiosity.
Women shall be especially protected against any attack on their honour, in
particular against rape, enforced prostitution, or any form of indecent assault.
Without prejudice to the provisions relating to their state of health, age
and sex, all protected persons shall be treated with the same consideration
by the Party to the Convention.

PA R T I I
The First Protocol Additional to the Geneva Conventions,

1977265
Protocol relating to the Protection of Victims of International Armed
Conflicts
PART I. GENERAL PROVISIONS
ARTICLE 1. General principles and scope of application
1. The High Contracting Parties undertake to respect and to ensure respect
for this Protocol in all circumstances.
2. In cases not covered by this Protocol or by other international agree-
ments, civilians and combatants remain under the protection and authority
of the principles of international law derived from established custom, from
the principles of humanity and from dictates of public conscience.
4. The Parties to the conflict shall protect relief consignments and facili-
tate their rapid distribution.
5. The Parties to the conflict and each High Contracting Party concerned
shall encourage and facilitate effective international co-ordination of the
relief actions referred to in paragraph 1….
ARTICLE 71. Personnel participating in relief actions
1. Where necessary, relief personnel may form part of the assistance pro-
vided in any relief action, in particular for the transportation and distribution
of relief consignments; the participation of such personnel shall be subject to
the approval of the Party in whose territory they will carry out their duties.
2. Such personnel shall be respected and protected.
3. Each Party in receipt of relief consignments shall, to the fullest extent
practicable, assist the relief personnel referred to in paragraph 1 in carrying out
their relief mission. Only in case of imperative military necessity may the activi-
ties of the relief personnel be limited or their movements temporarily restricted.
4. Under no circumstances may relief personnel exceed the terms of
their mission under this Protocol. In particular they shall take account of the
security requirements of the Party in whose territory they are carrying out
their duties. The mission of any of the personnel who do not respect these
conditions may be terminated.
265

Section III. Treatment of Persons in the Power of a Party to the Conflict

Chapter I. Field of application and protection of persons and objects
ARTICLE 72. Field of application
The provisions of this Section are additional to the rules concerning hu-
manitarian protection of civilians and civilian objects in the power of a Party
to the conflict contained in the Fourth Convention, particularly Parts I and III
thereof, as well as to other applicable rules of international law relating to the
protection of fundamental human rights during international armed conflict.
ARTICLE 73. Refugees and stateless persons
Persons who, before the beginning of hostilities, were considered as
stateless persons or refugees under the relevant international instruments
accepted by the Parties concerned or under the national legislation of the
State of refuge or State of residence shall be protected persons within the
meaning of Parts I and III of the Fourth Convention, in all circumstances and
without any adverse distinction.
ARTICLE 74. Reunion of dispersed families
The High Contracting Parties and the Parties to the conflict shall facilitate
in every possible way the reunion of families dispersed as a result of armed
conflicts and shall encourage in particular the work of the humanitarian
organizations engaged in this task in accordance with the provisions of the
Conventions and of this Protocol and in conformity with their respective
security regulations.
ARTICLE 75. Fundamental guarantees
1. In so far as they are affected by a situation referred to in Article 1 of this
Protocol, persons who are in the power of a Party to the conflict and who do
not benefit from more favourable treatment under the Conventions or under
this Protocol shall be treated humanely in all circumstances and shall enjoy,
as a minimum, the protection provided by this Article without any adverse
distinction based upon race, colour, sex, language, religion or belief, politi-
cal or other opinion, national or social origin, wealth, birth or other status,
or on any other similar criteria. Each Party shall respect the person, honour,
convictions and religious practices of all such persons.
2. The following acts are and shall remain prohibited at any time and in
any place whatsoever, whether committed by civilian or by military agents:
(a) violence to the life, health, or physical or mental well-being of per-
sons, in particular:

PA R T I I
(i) murder;
(ii) torture of all kinds, whether physical or mental;
(iii) corporal punishment; and
(iv) mutilation;
(b) outrages upon personal dignity, in particular humiliating and degrad-
ing treatment, enforced prostitution and any form of indecent assault;
(c) the taking of hostages;
(d) collective punishments; and
(e) threats to commit any of the foregoing acts.
3. Any person arrested, detained or interned for actions related to the
armed conflict shall be informed promptly, in a language he understands, of
the reasons why these measures have been taken. Except in cases of arrest or
detention for penal offences, such persons shall be released with the mini-
mum delay possible and in any event as soon as the circumstances justifying
the arrest, detention or internment have ceased to exist.
4. No sentence may be passed and no penalty may be executed on a
person found guilty of a penal offence related to the armed conflict except
pursuant to a conviction pronounced by an impartial and regularly consti-
tuted court respecting the generally recognized principles of regular judicial
procedure, which include the following:
(a) the procedure shall provide for an accused to be informed without
delay of the particulars of the offence alleged against him and shall afford the
accused before and during his trial all necessary rights and means of defence;
(b) no one shall be convicted of an offence except on the basis of indi-
vidual penal responsibility;
(c) no one shall be accused or convicted of a criminal offence on account
or any act or omission which did not constitute a criminal offence under the
national or international law to which he was subject at the time when it
was committed; nor shall a heavier penalty be imposed than that which was
applicable at the time when the criminal offence was committed; if, after the
commission of the offence, provision is made by law for the imposition of a
lighter penalty, the offender shall benefit thereby;
(d) anyone charged with an offence is presumed innocent until proved
guilty according to law;

(e) anyone charged with an offence shall have the right to be tried in
his presence;
(f) no one shall be compelled to testify against himself or to confess guilt;
(g) anyone charged with an offence shall have the right to examine, or
have examined, the witnesses against him and to obtain the attendance and
examination of witnesses on his behalf under the same conditions as wit-
nesses against him;
(h) no one shall be prosecuted or punished by the same Party for an
offence in respect of which a final judgement acquitting or convicting that
person has been previously pronounced under the same law and judicial
procedure;
(i) anyone prosecuted for an offence shall have the right to have the
judgement pronounced publicly; and
(j) a convicted person shall be advised on conviction or his judicial and
other remedies and of the time-limits within which they may be exercised.
5. Women whose liberty has been restricted for reasons related to the
armed conflict shall be held in quarters separated from men’s quarters. They
shall be under the immediate supervision of women. Nevertheless, in cases
where families are detained or interned, they shall, whenever possible, be
held in the same place and accommodated as family units.
6. Persons who are arrested, detained or interned for reasons related to
the armed conflict shall enjoy the protection provided by this Article until
their final release, repatriation or re-establishment, even after the end of the
armed conflict.
7. In order to avoid any doubt concerning the prosecution and trial of
persons accused of war crimes or crimes against humanity, the following
principles shall apply:
(a) persons who are accused of such crimes should be submitted for the
purpose of prosecution and trial in accordance with the applicable rules of
international law; and
(b) any such persons who do not benefit from more favourable treat-
ment under the Conventions or this Protocol shall be accorded the treatment
provided by this Article, whether or not the crimes of which they are accused
constitute grave breaches of the Conventions or of this Protocol.

PA R T I I
8. No provision of this Article may be construed as limiting or infringing

any other more favourable provision granting greater protection, under any
applicable rules of international law, to persons covered by paragraph 1
Chapter II. Measures in favour of women and children
ARTICLE 76. Protection of women
1. Women shall be the object of special respect and shall be protected in
particular against rape, forced prostitution and any other form of indecent
assault.
2. Pregnant women and mothers having dependent infants who are ar-
rested, detained or interned for reasons related to the armed conflict, shall
have their cases considered with the utmost priority.
3. To the maximum extent feasible, the Parties to the conflict shall en-
deavour to avoid the pronouncement of the death penalty on pregnant
women or mothers having dependent infants, for an offence related to the
armed conflict. The death penalty for such offences shall not be executed
on such women.
ARTICLE 77. Protection of children
1. Children shall be the object of special respect and shall be protected
against any form of indecent assault. The Parties to the conflict shall provide
them with the care and aid they require, whether because of their age or for
any other reason.
2. The Parties to the conflict shall take all feasible measures in order that
children who have not attained the age of fifteen years do not take a direct
part in hostilities and, in particular, they shall refrain from recruiting them into
their armed forces. In recruiting among those persons who have attained the
age of fifteen years but who have not attained the age of eighteen years the
Parties to the conflict shall endeavour to give priority to those who are oldest.
3. If, in exceptional cases, despite the provisions of paragraph 2, children
who have not attained the age of fifteen years take a direct part in hostilities
and fall into the power of an adverse Party, they shall continue to benefit
from the special protection accorded by this Article, whether or not they
are prisoners of war.
4. If arrested, detained or interned for reasons related to the armed con-
flict, children shall be held in quarters separate from the quarters of adults,
except where families are accommodated as family units as provided in
Article 75, paragraph 5.

5 . The death penalty for an offence related to the armed conflict shall
not be executed on persons who had not attained the age of eighteen years
at the time the offence was committed.
ARTICLE 78. Evacuation of children
1. No Party to the conflict shall arrange for the evacuation of children,
other than its own nationals, to a foreign country except for a temporary
evacuation where compelling reasons of the health or medical treatment of
the children or, except in occupied territory, their safety, so require. Where
the parents or legal guardians can be found, their written consent to such
evacuation is required. If these persons cannot be found, the written con-
sent to such evacuation of the persons who by law or custom are primarily
responsible for the care of the children is required. Any such evacuation
shall be supervised by the Protecting Power in agreement with the Parties
concerned, namely, the Party arranging for the evacuation, the Party receiving
the children and any Parties whose nationals are being evacuated. In each
case, all Parties to the conflict shall take all feasible precautions to avoid
endangering the evacuation….
Chapter III. Journalists
ARTICLE 79. Measures or protection for journalists
1. Journalists engaged in dangerous professional missions in areas of
armed conflict shall be considered as civilians within the meaning of Article
50, paragraph 1.
2. They shall be protected as such under the Conventions and this Pro-
tocol, provided that they take no action adversely affecting their status as
civilians, and without prejudice to the right of war correspondents accred-
ited to the armed forces to the status provided for in Article 4 (A) (4) of the
Third Convention.
3. They may obtain an identity card similar to the model in Annex II of
this Protocol. This card, which shall be issued by the government of the State
of which the Journalist is a national or in whose territory he resides or in
which the news medium employing him is located, shall attest to his status
as a journalist.

PA R T I I
UN Secretary-General’s Reports on the

Protection of Civilians in Armed Conflict
Report of the Secretary-General to the Security Council on
the Protection of Civilians in Armed Conflict266
I. Towards a culture of protection….
2. ….Recruitment and use of child soldiers, the proliferation of small arms,
the indiscriminate use of landmines, large-scale forced displacement and
ethnic cleansing, the targeting of women and children, the denial of even
the most basic human rights, and widespread impunity for atrocities are still
all too familiar features of war. The growing number of threats to the lives
of local and international staff members of international organizations and
other aid groups has added one more shameful characteristic to the reality
of today’s conflicts.
3. The context is therefore clear: as internal armed conflicts proliferate,
civilians have become the principal victims. It is now conventional to say
that, in recent decades, the proportion of war victims who are civilians has
leaped dramatically, to an estimated 75 per cent, and in some cases even
more. I say “conventional” because the truth is that no one really knows. Re-
lief agencies rightly devote their resources to helping the living rather than
counting the dead. Whereas armies count their losses, there is no agency
mandated to keep a tally of civilians killed. The victims of today’s atrocious
conflicts are not merely anonymous, but literally countless. To some extent,
this can be explained by changes in the nature of conflict. The decline of
inter-State warfare waged by regular armies has been matched by a rise in
intra-State warfare waged by irregular forces. Furthermore, and particularly
in conflicts with an element of ethnic or religious hatred, the affected civil-
ians tend not to be the incidental victims of these new irregular forces; they
are their principal object.
4. In September 2000, all the States Members of the Organization pledged,
in the United Nations Millennium Declaration (General Assembly resolu-
tion 55/2), to expand and strengthen the protection of civilians in complex
emergencies, in conformity with international humanitarian law. Yet just as
Member States have too often failed to address the calamitous impact of
modern warfare on civilians, so, too, has the United Nations often been un-
able to respond adequately to their need for protection and assistance. My
266
United Nations, U.N. Doc S/2001/331, 30 March 2001, available at www.un.org.

hope now is to move beyond an analysis of our past failures and to identify
ways in which the international system can be strengthened to help meet the
growing needs of civilians in war…. In the of recommendations already agreed
upon, it should be possible to ensure that future efforts will be more effec-
tive in bringing genuine relief and protection to civilians in armed conflict….
B. 2009 Report of the Secretary-General to the Security Council on the
Protection of Civilians in Armed Conflict
Report of the secretary-general on the protection of

civilians in armed conflict267
***
III. The five core challenges
26. Ultimately, the enduring need to strengthen the protection of civil-
ians stems from the fundamental, and equally enduring, failure of parties to
conflict to comply fully with their legal obligations to protect civilians. It is
a failure that demands reinvigorated commitment and determined action so
as to meet the following core challenges: enhancing compliance with inter-
national law; enhancing compliance by non-State armed groups; enhancing
protection through more effective and better resourced United Nations
peacekeeping and other relevant missions; enhancing humanitarian access;
and enhancing accountability for violations.
A. Enhancing compliance
27. A defining feature of most, if not all, contemporary conflicts is the
failure of the parties to respect and ensure respect for their legal obligations
to protect civilians and spare them from the effects of hostilities….
28. Constant care must be taken to spare the civilian population from the
effects of hostilities. This requires, inter alia, strict compliance by parties to
conflict with international humanitarian law and, in particular, the principles
of distinction and proportionality, and the requirement to take all feasible
precautions in attack and defence. Under no circumstances do violations of
these rules by one party to a conflict justify violations by others….
33. I would remind all parties to conflict of their obligations scrupulously
to respect and ensure respect for the relevant rules. I would also urge them
to consider practical steps that could be taken to spare civilians from the ef-
fects of hostilities, a process that may in some situations benefit from more
267
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PA R T I I
discussion with local populations and their leaders, civilian authorities, civil
society or humanitarian actors….
37. The Security Council also has a critical role in promoting systematic
compliance with the law. In particular, the Council should:
(a) Use all available opportunities to condemn violations, without excep-
tion, and remind parties of, and demand compliance with, their obligations;
(b) Publicly threaten and, if necessary, apply targeted measures against
the leadership of parties that consistently defy the demands of the Security
Council and routinely violate their obligations to respect civilians;
(c) Systematically request reports on violations and consider mandating
commissions of inquiry to examine situations where concerns exist regarding
serious violations of international humanitarian law and human rights law,
including with a view to identifying those responsible and prosecuting them at
the national level, or referring the situation to the International Criminal Court.
B. Enhancing compliance by non-State armed groups
[See also Part I, Chapter 12, The Law of Non-International Armed Con-
flicts, VIII. Who Is Bound by the Law of Non-International Armed Conflicts?]
38. Together with the increased prevalence of non-international armed
conflicts, pitting States against non-State armed groups, or two or more such
groups against each other, a common feature of contemporary conflicts is
the proliferation and fragmentation of such groups. They encompass a range
of identities, motivations and varying degrees of willingness to observe inter-
national humanitarian law and human rights standards.
39. Armed groups are bound by international humanitarian law and must
refrain from committing acts that would impair the enjoyment of human
rights. For some groups, attacks and the commission of other violations
against civilians are deliberate strategies, intended to maximize casualties and
destabilize societies. Others may be less inclined to attack civilians deliberately,
but their actions still have an adverse impact on the safety and security of
civilians. We need urgently to develop a comprehensive approach towards
improving compliance by all these groups with the law, encompassing actions
that range from engagement to enforcement.
40. As stated in common article 3 of the Geneva Conventions and in Ad-
ditional Protocol II thereto, the application of international humanitarian law
does not affect the legal status of non-State parties to a conflict. In order to spare
civilians the effects of hostilities, obtain access to those in need and ensure that
aid workers can operate safely, humanitarian actors must have consistent and

sustained dialogue with all parties to conflict, State and non-State. Moreover,
while engagement with non-State armed groups will not always result in im-
proved protection, the absence of systematic engagement will almost certainly
mean more, not fewer, civilian casualties in current conflicts.
41. The extensive experience of ICRC in working with armed groups, as
well as that of United Nations actors and various non-governmental orga-
nizations, has demonstrated the possible benefits of dialogue on protection.
Engagement can take the form of dissemination and training on international
humanitarian law and human rights law standards. The incentives for armed
groups to comply with the law should be emphasized, including increased
likelihood of reciprocal respect for the law by opposing parties.
42. Bearing in mind that armed groups have legal obligations, engagement
may be based around the conclusion of codes of conduct, unilateral declara-
tions and special agreements, as envisaged under international humanitarian
law, through which groups expressly commit themselves to comply with their
obligations or undertake commitments that go above and beyond what are
required by the law. Such instruments have been concluded in a number of
contexts, including in Colombia, Liberia, Nepal, the Philippines, Sierra Leone,
Sri Lanka, the Sudan and the former Yugoslavia. Their conclusion can send a
clear signal to the groups’ members and lead to the establishment of appro-
priate internal disciplinary measures. They also provide an important basis
for follow-up interventions. It is, however, critically important that such tools
and the commitments and principles therein are incorporated into instruc-
tions and communicated to the groups’ members.
43. Other initiatives include those of my Special Representative on Children
and Armed Conflict with respect to ending the recruitment and use of children
by armed groups. Another specific and successful example is the Geneva Call
Deed of Commitment, which seeks to end the use of anti-personnel mines by
armed groups [See Case No. 202, Geneva Call, Puntland State of Somalia adher-
ing to a total ban on anti-personnel mines]. To date, 38 groups have signed the
Deed and have, for the most part, refrained from using anti-personnel mines,
cooperated in mine action in areas under their control and destroyed stockpiles.
44. Member States can themselves promote compliance by armed
groups. Members of such groups have little legal incentive to comply with
international humanitarian law if they are likely to face domestic criminal
prosecution for their mere participation in a non-international armed con-
flict, regardless of whether they respect the law or not. Granting amnesty for
merely participating in hostilities, though not in respect of any war crimes
and serious violations of human rights law which may have been commit-

PA R T I I
ted, as envisaged in Additional Protocol II to the Geneva Conventions, may

in some circumstances help provide the necessary incentive.
45. At the absolute minimum, it is critical that Member States support,
or at least do not impede, efforts by humanitarian organizations to engage
armed groups in order to seek improved protection for civilians – even those
groups that are proscribed in some national legislation. Engagement through
training or the conclusion of special agreements can provide entry points for
dialogue on more specific concerns, such as humanitarian access, protection
of humanitarian workers and sexual violence. Of particular relevance to the
Security Council, such dialogue can also in some instances contribute to
confidence-building between parties which can lead, in time, to the cessation
of hostilities and the restoration of peace and security.
46. There will be times when engagement proves futile. However, it
should not be dismissed out of hand. Armed groups are not monoliths. They
have entry points, such as through the local population, and members who
may be more predisposed to engagement. However, when such efforts fail,
alternatives must be considered, including the application of the measures
outlined in paragraph 37 above, namely systematic condemnation of viola-
tions committed by armed groups and demands for compliance together
with the application of targeted measures.
47. As a first step towards developing a more comprehensive approach
to armed groups, it may be useful to convene an Arria formula meeting to
discuss the experience of United Nations and non-governmental actors in
working with armed groups and to identify additional measures that the
Security Council and Member States could take to improve compliance.
C. Protection of civilians and United Nations peacekeeping and other
relevant missions….
52. …[T]he “protection of civilians” mandate in peacekeeping missions
remains largely undefined as both a military task and as a mission-wide task.
Each mission interprets its protection mandate as best it can in its specific
context. Some missions, such as the African Union-United Nations Hybrid
Operation in Darfur (UNAMID) and MONUC, have developed force direc-
tives or mission-wide guidance to this end. Of course, heads of missions and
force commanders must have latitude to interpret the mandate in light of
their specific circumstances. However, this should take place within a broader
policy framework that includes clear direction as to possible courses of ac-
tion, including in situations where the armed forces of the host State are
themselves perpetrating violations against civilians, as well as indicative tasks
and the necessary capabilities for their implementation.

53. Protection of civilians is not a military task alone. All components of

a mission, including police, humanitarian affairs, human rights, child protec-
tion, mine action, gender, political and civil affairs, public information, rule
of law and security sector reform, can and must contribute to discharging
the mission’s protection mandate. To this end, more missions are beginning
to develop inclusive mission specific protection strategies and plans of ac-
tion, in consultation with Special Representatives of the Secretary-General,
Force Commanders, humanitarian country teams, the host Government and
communities. This is a welcome development and all missions should be en-
couraged to develop such inclusive strategies, establishing priorities, actions
and clear roles and responsibilities….
Prosecutor v. Kunarac, Kovac and Vukovic, ICTY, 2002268

IN THE APPEALS CHAMBER…
Judgement of 12 June 2002
PROSECUTOR v. DRAGOLJUB KUNARAC, RADOMIR KOVAC AND ZORAN
VUKOVIC
The Appeals Chamber of the International Tribunal for the Prosecution of
Persons Responsible for Serious Violations of International Humanitarian Law
Committed in the Territory of the Former Yugoslavia since 1991 is seised of appeals
against the Trial Judgement rendered by Trial Chamber II on 22 February 2001 in
the case of Prosecutor v Dragoljub Kunarac, Radomir Kovac and Zoran Vukovic.
Having considered the written and oral submissions of the parties, the
Appeals Chamber
HEREBY RENDERS ITS JUDGEMENT…
INTRODUCTION…
C. FINDINGS OF THE APPEALS CHAMBER
1. Convictions
32. The Appeals Chamber finds that it is unable to discern any error in
the Trial Chamber’s assessment of the evidence or its findings in relation to
any of the grounds of appeal set out…. Therefore, the Appeals Chamber dis-
misses the appeals of each of the Appellants on their convictions, as well as
all common grounds of appeal….
268
International Criminal Tribunal for Yugoslavia, The Prosecutor v. Dragoljub Ku-
narac, Radomir Kovac and Zoran Vukovic, IT-96-23 and IT-96-23/1, Appeals
Chamber, Decision 12 June 2002, citations omitted.

PA R T I I
123. …Slavery may exist even without torture. Slaves may be well fed, well
clothed, and comfortably housed, but they are still slaves if without lawful
process they are deprived of their freedom by forceful restraint. We might
eliminate all proof of ill-treatment, overlook the starvation, beatings, and
other barbarous acts, but the admitted fact of slavery – compulsory uncom-
pensated labour – would still remain. There is no such thing as benevolent
slavery. Involuntary servitude, even if tempered by humane treatment, is still
slavery. The passage speaks of slavery; it applies equally to enslavement.
124. For the foregoing reasons, the Appeals Chamber is of the opinion
that the Trial Chamber’s definition of the crime of enslavement is not too
broad and reflects customary international law at the time when the alleged
crimes were committed. The Appellants’ contentions are therefore rejected;
the appeal relating to the definition of the crime of enslavement fails.
D. DEFINITION OF THE CRIME OF RAPE…
2. Discussion
127. After an extensive review of the Tribunal’s jurisprudence and domes-
tic laws from multiple jurisdictions, the Trial Chamber concluded:
the actus reus of the crime of rape in international law is constituted by:
the sexual penetration, however slight: (a) of the vagina or anus of the victim
by the penis of the perpetrator or any other object used by the perpetrator;
or (b) the mouth of the victim by the penis of the perpetrator; where such
sexual penetration occurs without the consent of the victim. Consent for
this purpose must be consent given voluntarily, as a result of the victim’s free
will, assessed in the context of the surrounding circumstances. The men’s rea
is the intention to effect this sexual penetration, and the knowledge that it
occurs without the consent of the victim.
128. The Appeals Chamber concurs with the Trial Chamber’s definition
of rape. Nonetheless, the Appeals Chamber believes that it is worth empha-
sising two points. First, it rejects the Appellants’ “resistance” requirement, an
addition for which they have offered no basis in customary international law.
The Appellants’ bald assertion that nothing short of continuous resistance
provides adequate notice to the perpetrator that his attentions are unwanted
is wrong on the law and absurd on the facts.
129. Secondly, with regard to the role of force in the definition of rape,
the Appeals Chamber notes that the Trial Chamber appeared to depart from
the Tribunal’s prior definitions of rape. [footnote 158: See, e.g., Furundzija
Trial Judgement, para. 185 [available on http://www.icty.org] Prior attention
has focused on force as the defining characteristic of rape. Under this line of

reasoning, force or threat of force either nullifies the possibility of resistance

through physical violence or renders the context so coercive that consent is
impossible.] However, in explaining its focus on the absence of consent as
the conditio sine qua non of rape, the Trial Chamber did not disavow the
Tribunal’s earlier jurisprudence, but instead sought to explain the relationship
between force and consent. Force or threat of force provides clear evidence
of non-consent, but force is not an element per se of rape. In particular, the
Trial Chamber wished to explain that there are “factors [other than force]
which would render an act of sexual penetration non-consensual or non-
voluntary on the part of the victim.
A narrow focus on force or threat of force could permit perpetrators to
evade liability for sexual activity to which the other party had not consented
by taking advantage of coercive circumstances without relying on physical
force.
130. The Appeals Chamber notes, for example, that in some domestic
jurisdictions, neither the use of a weapon nor the physical overpowering of
a victim is necessary to demonstrate force. A threat to retaliate “in the future
against the victim or any other person” is a sufficient indicium of force so
long as “there is a reasonable possibility that the perpetrator will execute
the threat.” . [...] While it is true that a focus on one aspect gives a different
shading to the offence, it is worth observing that the circumstances giving
rise to the instant appeal and that prevail in most cases charged as either war
crimes or crimes against humanity will be almost universally coercive. That
is to say, true consent will not be possible.
131. Under the chapter entitled “Crimes Against Sexual Self-Determina-
tion,” German substantive law contains a section penalising sexual acts with
prisoners and persons in custody of public authority. The absence of consent
is not an element of the crime. Increasingly, the state and national laws of the
United States – designed for circumstances far removed from war contexts
– support this line of reasoning….
132. For the most part, the Appellants in this case were convicted of
raping women held in de facto military headquarters, detention centres and
apartments maintained as soldiers’ residences. As the most egregious aspect
of the conditions, the victims were considered the legitimate sexual prey of
their captors. Typically, the women were raped by more than one perpetrator
and with a regularity that is nearly inconceivable. (Those who initially sought
help or resisted were treated to an extra level of brutality). Such detentions
amount to circumstances that were so coercive as to negate any possibility
of consent.

PA R T I I
133. In conclusion, the Appeals Chamber agrees with the Trial Chamber’s
determination that the coercive circumstances present in this case made con-
sent to the instant sexual acts by the Appellants impossible. The Appellants’
grounds of appeal relating to the definition of the crime of rape therefore fail….
VII. CUMULATIVE CONVICTIONS…
B. The Instant Convictions…
2. Intra-Article Convictions under Article 5 of the Statute
(a) Rape and Torture
179. The Appeals Chamber will now consider the Appellants’ arguments
regarding intra-Article convictions. The Appellants contend that the Trial
Chamber erred by entering convictions for both torture under Article 5(f)
and rape under Article 5(g) of the Statute on the theory that neither the law
nor the facts can reasonably be interpreted to establish distinct crimes. The
Trial Chamber found that the crimes of rape and torture each contain one
materially distinct element not contained in the other, making convictions
under both crimes permissible. As its earlier discussion of the offences of rape
and torture make clear, the Appeals Chamber agrees. The issue of cumulative
convictions hinges on the definitions of distinct offences under the Statute
which are amplified in the jurisprudence of the Tribunal. That torture and
rape each contain a materially distinct element not contained by the other
disposes of this ground of appeal.
That is, that an element of the crime of rape is penetration, whereas an
element for the crime of torture is a prohibited purpose, neither element
being found in the other crime….
181. In the Celebici Trial Judgement, the Trial Chamber considered the is-
sue of torture through rape. The Appeals Chamber overturned the Appellant’s
convictions under Article 3 of the Statute as improperly cumulative in relation
to Article 2 of the Statute, but the Trial Chamber’s extensive analysis of torture
and rape remains persuasive. Grounding its analysis in a thorough survey of
the jurisprudence of international bodies, the Trial Chamber concluded that
rape may constitute torture. Both the Inter-American Commission on Human
Rights and the European Court of Human Rights have found that torture may
be committed through rape. And the United Nations Special Rapporteur on
Torture listed forms of sexual assault as methods of torture.
182. For rape to be categorised as torture, both the elements of rape and
the elements of torture must be present. Summarising the international case-
law, the Trial Chamber in the Celebici case concluded that “rape involves the

infliction of suffering at a requisite level of severity to place it in the category

of torture.” [footnote 247: Celebici Trial Judgement, para. 489] By way of il-
lustration, the Trial Chamber discussed the facts of two central cases, Fernando
and Raquel Mejca v Peru from the Inter-American Commission and Aydin v
Turkey from the European Commission for Human Rights. [footnote 248:
Fernando and Raquel Mejia v Peru, Case No. 10,970, Judgement of 1 March
1996…, Inter-American Yearbook on Human Rights, 1996, p. 1120 [available
in Annual Report 1995, http://www.cidh.org.] and Aydin v Turkey, Opinion
of the European Commission of Human Rights, 7 March 1996, reprinted in
European Court of Human Rights, ECHR 1997-VI, p. 1937, paras 186 and 189].
183. …[T]he Trial Chamber in the Celebici case observed that “one must
not only look at the physical consequences, but also at the psychological and
social consequences of the rape”….
185. In the circumstances of this case, the Appeals Chamber finds the
Appellants’ claim entirely unpersuasive. The physical pain, fear, anguish,
uncertainty and humiliation to which the Appellants repeatedly subjected
their victims elevate their acts to those of torture. These were not isolated
instances. Rather, the deliberate and coordinated commission of rapes was
carried out with breathtaking impunity over a long period of time. Nor did
the age of the victims provide any protection from such acts. (Indeed, the
Trial Chamber considered the youth of several of the victims as aggravating
factors.) Whether rousted from their unquiet rest to endure the grim nightly
ritual of selection or passed around in a vicious parody of processing at
headquarters, the victims endured repeated rapes, implicating not only the
offence of rape but also that of torture under Article 5 of the Statute. In the
egregious circumstances of this case, the Appeals Chamber finds that all the
elements of rape and torture are met. The Appeals Chamber rejects, therefore,
the appeal on this point.
(b) Rape and Enslavement
186. Equally meritless is the Appellants’ contention that Kunarac’s and
Kovac’s convictions for enslavement under Article 5(c) and rape under Article
5(g) of the Statute are impermissibly cumulative. That the Appellants also
forced their captives to endure rape as an especially odious form of their
domestic servitude does not merge the two convictions. As the Appeals Cham-
ber has previously explained in its discussion of enslavement, it finds that
enslavement, even if based on sexual exploitation, is a distinct offence from
that of rape. The Appeals Chamber, therefore, rejects this ground of appeal.

PA R T I I
3. Article 3 of the Statute…

(b) Intra-Article Convictions under Article 3 of the Statute…
194. Article 3 of the Statute, as the Appeals Chamber has previously
observed, also prohibits other serious violations of customary international
law. The Appeals Chamber in the Tadic Jurisdiction Decision outlined four
requirements to trigger Article 3 of the Statute [See Case No. 211, ICTY, The
Prosecutor v. Tadic [Part A., para. 94]]:
(i) the violation must constitute an infringement of a rule of interna-
tional humanitarian law; (ii) the rule must be customary in nature...; (iii) the
violation must be ‘serious’, that is to say, it must constitute a breach of a rule
protecting important values ..; (iv) the violation of the rule must entail, under
customary or conventional law, the individual criminal responsibility of the
person breaching the rule. [...]
[R]ape is a “serious” war crime under customary international law entail-
ing “individual criminal responsibility,” [...].
Means and Methods of Warfare

The First Protocol Additional to the Geneva Conventions,
1977269
PART III. METHODS AND MEANS OF WARFARE
COMBATANT AND PRISONERS-OF-WAR STATUS
Section I. Methods and Means of Warfare
ARTICLE 35. Basic rules
1. In any armed conflict, the right of the Parties to the conflict to choose
methods or means of warfare is not unlimited.
2. It is prohibited to employ weapons, projectiles and material and meth-
ods of warfare of a nature to cause superfluous injury or unnecessary suffering.
3. It is prohibited to employ methods or means of warfare which are
intended, or may be expected, to cause widespread, long-term and severe
damage to the natural environment.
269

ARTICLE 36. New weapons

In the study, development, acquisition or adoption of a new weapon,
means or method of warfare, a High Contracting Party is under an obligation
to determine whether its employment would, in some or all circumstances,
be prohibited by this Protocol or by any other rule of international law ap-
plicable to the High Contracting Party.
The Geneva Chemical Weapons Protocol, 1925270

The undersigned Plenipotentiaries, in the name of their respective Gov-
ernments:
Whereas the use in war of asphyxiating, poisonous or other gases, and of
all analogous liquids materials or devices, has been justly condemned by the
general opinion of the civilized world; and
Whereas the prohibition of such use has been declared in Treaties to
which the majority of Powers of the world are Parties; and
To the end that this prohibition shall be universally accepted as a part of
International Law, binding alike the conscience and the practice of nations;
Declare:
That the High Contracting Parties, so far as they are not already Parties
to Treaties prohibiting such use, accept this prohibition, agree to extend this
prohibition to the use of bacteriological methods of warfare and agree to
be bound as between themselves according to the terms of this declaration.
The High Contracting Parties will exert every effort to induce other States
to accede to the present Protocol. Such accession will be notified to the
Government of the French Republic, and by the latter to all Signatory and
Acceding Powers, and will take effect on the date of the notification by the
Government of the French Republic.
The present Protocol of which the French and English texts are both
authentic, shall be ratified as soon as possible. It shall bear today’s date.
The ratifications of the present Protocol shall be addressed to the Govern-
ment of the French Republic, which will at once notify the deposit of such
ratification to each of the
270
Protocol for the Prohibition of the Use of Asphyxiating, Poisonous or Other Gases,
and of Bacteriological Methods of Warfare, Geneva, 94 L.N.T.S. 65, entered into
force Feb. 8, 1928.

PA R T I I
Signatory and Acceding Powers.

The instruments of ratification and accession to the present Protocol will
remain deposited in the archives of the Government of the French Republic.
The present Protocol will come into force for each Signatory Power as
from the date of deposit of its ratification, and, from that moment, each
Power will be bound as regards other Powers which have already deposited
their ratifications.
In witness whereof the Plenipotentiaries have signed the present Protocol
done at Geneva in a single copy, the seventeenth day of June, 1925.
John H. McNeill “The International Court of Justice,

Advisory Opinion in the Nuclear Weapons Cases - A first
appraisal”271
Background:
There were two requests for advisory opinions from the International
Court of Justice — the first from the World Health Organization (WHO), and
the second from the United Nations General Assembly.
WHO asked: “In view of the health and environmental effects, would the
use of nuclear weapons by a state in war or other armed conflict be a breach
of its obligations under international law, including the WHO Constitution?”
The Court held by eleven votes to three (Judges Shahabuddeen, Weeramantry
and Koroma dissenting), that it was not able to give the advisory opinion
requested by WHO. The Court’s opinion was consistent with the position
argued by the United States and other countries and, in our view, is correct.
As the WHO opinion primarily concerned jurisdictional issues, we will focus
on the advice given in response to the request of the General Assembly.
The UN General Assembly asked: “Is the threat or use of nuclear weap-
ons in any circumstance permitted under international law?” Over the sole
objection of Judge Oda, the Court decided to hear the case. There were six
specific findings in the Court’s Advisory Opinion. The ultimate advice of the
Court, approved by seven of fourteen judges, with President Bedjaoui (Algeria)
casting the deciding vote, was:
271
John H. McNeill , The International Court of Justice, Advisory Opinion in the
Nuclear Weapons Cases - A first appraisal, No. 316 International Review of the Red
Cross (Feb. 28, 1997), available at: http://www.icrc.org/eng/resources/documents/
misc/57jnft.htm. Reprinted with permission of ICRC Bishkek, contributing editor.

“... that the threat or use of nuclear weapons would generally be contrary
to the rules of international law applicable in armed conflict…. However, in
view of the current state of international law, and of the elements of fact at
its disposal, the Court cannot conclude definitively whether the threat or use
of nuclear weapons would be lawful or unlawful in an extreme circumstance
of self-defense, in which the very survival of a State would be at stake”….
Law of permission or prohibition?
The final clause of Paragraph 2E of the Court’s findings states: “... the Court
cannot conclude definitively whether the threat or use of nuclear weapons
would be lawful or unlawful in an extreme circumstance of self-defense, in
which the very survival of a State would be at stake “.The UN General Assembly
asked the Court to advise on whether” ... the threat or use of nuclear weapons
in any circumstance [is] permitted under international law.” Phrased in this
way, the question incorrectly assumed that international law addressing the
use of weapons is permissive rather than prohibitory. The Court affirmed
that “State practice shows that the illegality of the use of certain weapons as
such does not result from an absence of authorization but, on the contrary,
is formulated in terms of prohibition.” The Court thus correctly recast the
General Assembly’s question and proceeded to evaluate whether the threat
or use of nuclear weapons is prohibited.
Application of international humanitarian law
The Court, having found no conventional or customary international
law proscribing the threat or use of nuclear weapons per se, moved to a
consideration of whether “recourse to nuclear weapons must be considered
as illegal in the light of the principles and rules of international humanitarian
law applicable in armed conflict and of the law of neutrality”
It is beyond reasonable dispute that international humanitarian law ap-
plies to nuclear weapons in the same way as it applies to conventional weap-
ons. Analysis of international humanitarian law begins with the fundamental
principle that the “right of belligerents to adopt means of injuring the enemy
is not unlimited “. There are two cardinal” rules. First, the principle of distinc-
tion holds that States must not make civilians the object of attack and must
not use weapons that are incapable of distinguishing between civilian and
military targets. Second, it is prohibited to use weapons that cause unnecessary
suffering, that is, weapons that cause “harm greater than that unavoidable to
achieve legitimate military objectives.”
The Court found that the Martens clause is part of customary international
law. The Martens clause first found expression in Hague Convention II with

PA R T I I
Respect to the Laws and Customs of War on Land of 1899. The Court quoted
from Article 1, paragraph 2, of Additional Protocol I of 1977 as a modern
formulation of the Martens clause:
“In cases not covered by this Protocol or by other international agree-
ments, civilians and combatants remain under the protection and authority
of the principles of international law derived from established custom, from
the principles of humanity and from the dictates of public conscience.”
Parenthetically, the Court perceived no need to rule on the applicability of
Additional Protocol I of 1977 to nuclear weapons, because that Protocol in no
way replaced the general customary rules applicable to all means and meth-
ods of combat, including nuclear weapons. In particular, the Court recalled
that all States are bound by those rules in Additional Protocol I which, when
adopted, were merely the expression of the pre-existing customary law [34].
The Court briefly considered the principle of neutrality, which had been raised
by several States. It declined to elaborate on the specific content of the principle
of neutrality, which has been debated since the adoption of the UN Charter, stat-
ing merely that the rules of neutrality apply to “all international armed conflict,
whatever type of weapons might be used” [35]. We think this is correct.
The Court proceeded to determine whether the threat or use of nuclear
weapons is inherently incompatible with international humanitarian law or
the law of neutrality. The proponents of the illegality of nuclear weapons
argued, in essence, that the destructive force of nuclear weapons is so great
that any use of them whatsoever would necessarily violate the principles of
distinction and prevention of unnecessary suffering. The States that assert
the legality of the threat or use of nuclear weapons in certain circumstances
argued that the Court had insufficient evidence to conclude that any and every
use of nuclear weapons would violate the principles of distinction and pre-
venting unnecessary suffering. The Court concluded, we think correctly, that
“it does not have sufficient elements to enable it to conclude with certainty
that the use of nuclear weapons would necessarily be at variance with the
principles and rules of law applicable in armed conflict in any circumstance.”
The first two of the Court’s six findings were:
“(2) A. Unanimously,
There is in neither customary nor conventional international law any
specific authorization of the threat or use of nuclear weapons;
(2) B. By eleven votes to three [against, Judges Shahabuddeen, Weera-
mantry and Koroma],

There is in neither customary nor conventional international law any

comprehensive and universal prohibition of the threat or use of nuclear
weapons as such.”
The third of the Court’s six findings was:
“(2) C. Unanimously,
A threat or use of force by means of nuclear weapons that is contrary to
Article 2, paragraph 4, of the United Nations Charter and that fails to meet
all the requirements of Article 51, is unlawful” [citations omitted ] .
We agree that the limitations on the use of force found in the Charter
“apply whatever the means of force used in self-defense “[22].
The fourth of the Court’s six findings was:
“(2) D. Unanimously,
A threat or use of nuclear weapons should also be compatible with the
requirements of the international law applicable in armed conflict, particu-
larly those of the principles and rules of international humanitarian law, as
well as with specific obligations under treaties and other undertakings which
expressly deal with nuclear weapons” [citations omitted] .
The fifth of the Court’s six findings — its ultimate advice — was
“(2) E. By seven votes to seven… [Against, Vice-President Schwebel; Judges
Oda, Guillaume, Shahabuddeen, Weeramantry, Koroma and Higgins] ,
It follows from the above-mentioned requirements that the threat or use
of nuclear weapons would generally be contrary to the rules of international
law applicable in armed conflict, and in particular the principles and rules
of humanitarian law;
However, in view of the current state of international law, and of the ele-
ments of fact at its disposal, the Court cannot conclude definitively whether
the threat or use of nuclear weapons would be lawful or unlawful in an
extreme circumstance of self-defense, in which the very survival of a State
would be at stake.”
Finally, the Court addressed Article VI of the Treaty on the Non-Pro-
liferation of Nuclear Weapons, which provides:” Each of the Parties to the
Treaty undertakes to pursue negotiations in good faith on effective measures
relating to cessation of the nuclear arms race at an early date and to nuclear
disarmament, and on a treaty on general and complete disarmament under
strict and effective international control.”

PA R T I I
The Court’s sixth and final finding was:

“(2) F. Unanimously,
There exists an obligation to pursue in good faith and bring to a conclu-
sion negotiations leading to nuclear disarmament in all its aspects under strict
and effective international control.”
What the Court declined to decide
The Court declined to pronounce on two important issues: (1) the use
of nuclear weapons in belligerent reprisal; and (2) the policy of deterrence.
Regarding the use of nuclear weapons in belligerent reprisal, the Court de-
clined to comment on the issue except to observe that such use would be
governed by the principle of proportionality, a qualification that is consistent
with international law. Regarding the policy of deterrence, the Court found
that, in the face of an international community profoundly divided on the
issue, there is no controlling opinion juris. Nevertheless, the Court recognized
that the policy of deterrence has a played a fundamental role in international
security affairs.
Implementation of International
Humanitarian Law
Legal Consequences of the Construction of a Wall in the
Occupied Palestinian Territory272
History of the proceedings (paras. 1-12)
The Court first recalls that on 10 December 2003 the Secretary-General of
the United Nations officially communicated to the Court the decision taken
by the General Assembly to submit the question set forth in its resolution ES-
10/14, adopted on 8 December 2003 at its Tenth Emergency Special Session,
for an advisory opinion. The question is the following:
“What are the legal consequences arising from the construction of the
wall being built by Israel, the occupying Power, in the Occupied Palestinian
Territory, including in and around East Jerusalem, as described in the report
of the Secretary-General, considering the rules and principles of international
272
Legal Consequences of the Construction of a Wall in the Occupied Palestinian
Territory of 9 July 2004, International Court of Justice Summary, I.C.J. Summaries
2004/2 (2004).

law, including the Fourth Geneva Convention of 1949, and relevant Security
Council and General Assembly resolutions?”
Jurisdiction
The Court concludes that it has jurisdiction to give an opinion on the
question put to it by the General Assembly and that there is no compelling
reason for it to use its discretionary power not to give that opinion.
International humanitarian law
As regards international humanitarian law, the Court first recalls that Is-
rael is not a party to the Fourth Hague Convention of 1907, to which Hague
Regulations are annexed. It considers, however, that the provisions of the
Hague Regulations have become part of customary law, as is in fact recognized
by all the participants in the proceedings before the Court. The Court also
observes that, pursuant to Article 154 of the Fourth Geneva Convention, that
Convention is supplementary to Sections II and III of the Hague Regulations.
Section III of those Regulations, which concerns “Military authority over the
territory of the hostile State,” is particularly pertinent in the present case.
Secondly, with regard to the Fourth Geneva Convention, the Court takes
note that differing views have been expressed by the participants in these
proceedings. Israel, contrary to the great majority of the participants, disputes
the applicability de jure of the Convention to the Occupied Palestinian Ter-
ritory. The Court recalls that the Fourth Geneva Convention was ratified by
Israel on 6 July 1951 and that Israel is a party to that Convention; that Jor-
dan has also been a party thereto since 29 May 1951; and that neither of the
two States has made any reservation that would be pertinent to the present
proceedings. The Court observes that the Israeli authorities have indicated
on a number of occasions that in fact they generally apply the humanitarian
provisions of the Fourth Geneva Convention within the occupied territories.
However, according to Israel’s position, that Convention is not applicable de
jure within those territories because, under Article 2, paragraph 2, it applies
only in the case of occupation of territories falling under the sovereignty of a
High Contracting Party involved in an armed conflict. Israel explains that the
territories occupied by Israel subsequent to the 1967 conflict had not previ-
ously fallen under Jordanian sovereignty. The Court notes that, according to
the first paragraph of Article 2 of the Fourth Geneva Convention, when two
conditions are fulfilled, namely that there exists an armed conflict (whether
or not a state of war has been recognized), and that the conflict has arisen
between two contracting parties, then the Convention applies, in particular,
in any territory occupied in the course of the conflict by one of the contract-
ing parties. The object of the second paragraph of Article 2, which refers to

PA R T I I
“occupation of the territory of a High Contracting Party,” is not to restrict the

scope of application of the Convention, as defined by the first paragraph, by
excluding therefrom territories not falling under the sovereignty of one of
the contracting parties, but simply to making it clear that, even if occupa-
tion effected during the conflict met no armed resistance, the Convention
is still applicable.
This interpretation reflects the intention of the drafters of the Fourth
Geneva Convention to protect civilians who find themselves, in whatever
way, in the hands of the occupying Power, regardless of the status of the oc-
cupied territories, and is confirmed by the Convention’s travaux préparatoires.
The States parties to the Fourth Geneva Convention, at their Conference on
15 July 1999, approved that interpretation, which has also been adopted by
the ICRC, the General Assembly and the Security Council. The Court finally
makes mention of a judgment of the
Supreme Court of Israel dated 30 May 2004, to a similar effect.
In view of the foregoing, the Court considers that the Fourth Geneva
Convention is applicable in the Palestinian territories which before the 1967
conflict lay to the east of the Green Line and which, during that conflict, were
occupied by Israel, there being no need for any enquiry into the precise prior
status of those territories.
Impact on right of Palestinian people to self-determination (paras 115-122)
It notes in this regard the contentions of Palestine and other participants
that the construction of the wall is “an attempt to annex the territory contrary
to international law” and “a violation of the legal principle prohibiting the
acquisition of territory by the use of force” and that “the de facto annexation
of land interferes with the territorial sovereignty and consequently with the
right of the Palestinians to self-determination.” It notes also that Israel, for
its part, has argued that the wall’s sole purpose is to enable it effectively to
combat terrorist attacks launched from the West Bank, and that Israel has
repeatedly stated that the Barrier is a temporary measure.
The Court recalls that both the General Assembly and the Security Council
have referred, with regard to Palestine, to the customary rule of “the inadmis-
sibility of the acquisition of territory by war.” As regards the principle of the
right of peoples to self-determination, the Court observes that the existence
of a “Palestinian people” is no longer in issue, and has been recognized by
Israel, along with that people’s “legitimate rights.” The Court considers that
those rights include the right to self-determination, as the General Assembly
has moreover recognized on a number of occasions.

Whilst taking note of the assurance given by Israel that the construc-
tion of the wall does not amount to annexation and that the wall is of a
temporary nature, the Court nevertheless considers that the construction
of the wall and its associated régime create a “fait accompli” on the ground
that could well become permanent, in which case, and notwithstanding the
formal characterization of the wall by Israel, it would be tantamount to de
facto annexation.
Self-defense and state of necessity (paras. 138-141)
The Court recalls that Annex I to the report of the Secretary-General states,
however, that, according to Israel: “the construction of the Barrier is consis-
tent with Article 51 of the Charter of the United Nations, its inherent right to
self-defense and Security Council resolutions 1368 (2001) and 1373 (2001).”
The Court considers further whether Israel could rely on a state of ne-
cessity which would preclude the wrongfulness of the construction of the
wall. In this regard, citing its decision in the case concerning the Gabčíkovo-
Nagymaros Project (Hungary/Slovakia), it observes that the state of necessity
is a ground recognized by customary international law that “can only be in-
voked under certain strictly defined conditions which must be cumulatively
satisfied” (I.C.J. Reports 1997, p. 40, para. 51), one of those conditions being
that the act at issue be the only way for the State to guard an essential inter-
est against a grave and imminent peril. In the light of the material before it,
the Court is not convinced that the construction of the wall along the route
chosen was the only means to safeguard the interests of Israel against the peril
which it has invoked as justification for that construction. While Israel has
the right, and indeed the duty to respond to the numerous and deadly acts
of violence directed against its civilian population, in order to protect the life
of its citizens, the measures taken are bound to remain in conformity with
applicable international law. Israel cannot rely on a right of self-defense or on
a state of necessity in order to preclude the wrongfulness of the construction
of the wall. The Court accordingly finds that the construction of the wall, and
its associated régime, are contrary to international law.
Conclusion
The Court considers that its conclusion that the construction of the wall
by Israel in the Occupied Palestinian Territory is contrary to international
law must be placed in a more general context. Since 1947, the year when
General Assembly resolution 181 (II) was adopted and the Mandate for Pal-
estine was terminated, there has been a succession of armed conflicts, acts
of indiscriminate violence and repressive measures on the former mandated
territory. The Court would emphasize that both Israel and Palestine are under

PA R T I I
an obligation scrupulously to observe the rules of international humanitarian

law, one of the paramount purposes of which is to protect civilian life. Illegal
actions and unilateral decisions have been taken on all sides, whereas, in
the Court’s view, this tragic situation can be brought to an end only through
implementation in good faith of all relevant Security Council resolutions, in
particular resolutions 242 (1967) and 338 (1973). The “Roadmap” approved
by Security Council resolution 1515 (2003) represents the most recent of
efforts to initiate negotiations to this end. The Court considers that it has
a duty to draw the attention of the General Assembly, to which the present
Opinion is addressed, to the need for these efforts to be encouraged with
a view to achieving as soon as possible, on the basis of international law, a
negotiated solution to the outstanding problems and the establishment of
a Palestinian State, existing side by side with Israel and its other neighbors,
with peace and security for all in the region.
Implementation of International
Humanitarian Law in the Kyrgyz Republic
ICRC, Advisory Services on International Humanitarian
Law273
The three main priorities of the ICRC’s Advisory Service are to encourage
ratification of IHL treaties, to promote national implementation of the obli-
gations arising from these treaties and to collect and facilitate the exchange
of information on national implementation measures.
Why promote international humanitarian law?
Currently, dozens of conflicts are raging throughout the world. Each day
brings news of yet another atrocity perpetrated in the name of war: massacres,
tortures, summary executions, rape, deportation of civilians, children taking
a direct part in hostilities... the list is endless.
Some may argue that these are just some of war’s necessary evils. They are
not. They are illegal. They are outright violations of a universally recognized
body of law known as international humanitarian law (IHL).
As part of its humanitarian mission to protect the lives and dignity of vic-
tims of armed conflict, the International Committee of the Red Cross (ICRC)
273
ICRC, Advisory Services on International Humanitarian Law, available at:
www.icrc.org.

strives to promote respect for the rules of IHL. Universal ratification of IHL
instruments and effective implementation of the obligations they contain are
promoted to ensure maximum protection for the victims of armed conflict.
How can IHL be implemented by States?
Adherence to IHL treaties is just the first step. The following measures
must be taken before States can comply with their obligations arising from
the Geneva Conventions of 1949, their Additional Protocols of 1977, the 1954
Convention for the Protection of Cultural Property and its two Protocols,
other treaties relating to the prohibition and use of certain weapons, as well
as the Rome Statute of the International Criminal Court:
– translation of IHL treaties into national languages
– adoption of criminal legislation punishing war crimes and
other violations of IHL
– adoption of measures to prevent and punish misuse of the
red cross and red crescent emblems and other signals and
emblems recognized by the treaties
– definition and guarantee of the status of protected persons
– protection of fundamental and procedural guarantees in the
event of armed Conflict
– establishment and/or regulation of National Societies,
organization of civil defense and National Information
Bureaux
– dissemination of IHL
– appointment of legal advisers for armed forces
– identification and marking of protected people, places and
property
– observance of IHL in the location of military sites, and in the
development and adoption of weapons and military tactics
How can the ICRC help?
The ICRC set up its Advisory Service in 1996 to step up its support to
States committed to implementing IHL.
Aims:
– encourage all States to ratify IHL treaties
– encourage States to fulfill their obligations under these
treaties at the national level

PA R T I I
Structure:
– a unit attached to the ICRC’s Legal Division in Geneva, i.e. one
supervisor plus three legal advisers, one specialized in civil
law, one in common law and one in the Advisory Service’s
database
– a team of legal experts based in each continent
What can the Advisory Service offer?
The Advisory Service works closely with governments, taking into ac-
count their specific needs and their respective political and legal systems. It
also works with the following:
– National Red Cross and Red Crescent Societies
– academic institutions
– international and regional organizations
Specifically, the Advisory Service:
– Organizes meetings of experts
– A r r a n g e s n a t i o n a l a n d r e g i o n a l s e m i n a r s o n t h e
implementation of IHL and meetings of experts on selected
topics; takes part in international forums
– Offers legal and technical assistance in incorporating IHL
into national law
– Translates IHL treaties; carries out studies on the compatibility
of national law with the obligations arising from these
treaties; provides legal advice
– Encourages States to set up national IHL committees and
assists them in their work
– Supports the work of advisory bodies to governments with
respect to implementing, developing and disseminating IHL
– Promotes the exchange of information
– Manages a collection of texts on legislation, case law, national
studies and manual for the armed forces; a database on the
implementation of IHL accessible on the ICRC’s website
(www.icrc.org) and on the ICRC’s CD-ROM on IHL
– Publishes specialist documents

– Produces factsheets on the main IHL treaties and topics

relating to implementation; kits for ratifying treaties;
guidelines on implementation measures; regular reports on
national implementation worldwide; reports on seminars
and meetings of experts.
Law of the Kyrgyz Republic “On Use and Protection of the

Red Cross/Red Crescent Emblems”
(as of the eighth of September 2000, hereafter in referred to as the Law)
The Red Crescent emblem is used by:
1. Medical services of Armed forces of the Kyrgyz Republic and the reli-
gious personnel (during armed conflicts and in a peace time).
Article 3 of the Law:
2. Hospitals and civil medical institutions (during an armed conflict with
permission of the Ministry of Health of the Kyrgyz Republic).
3. The National Red Crescent society the Kyrgyz Republic (during an
armed conflict with permission of the Ministry of Health of the Kyrgyz Re-
public or the Ministry of Defense of the Kyrgyz Republic; in peace time as a
distinction sign, without any permissions)
Legal Protection of the Emblems.
In the Kyrgyz Republic it shall be prohibited to: To use the emblem by
persons and institutions having the right to use it (employees of national
societies, ICRC, sanitary healthcare units) for the purposes mismatching the
principles of the Red Cross and Red Crescent Movement (for supporting
political actions and use during off-duty time).
Emblem imitation, i.e. use of the signs, which can be identified with em-
blems of Red Cross or Red Crescent (for example, because of matching in
color or a configuration) and erroneously accept as the Red Cross emblems.
The Code of the Kyrgyz Republic on Administrative Responsibility
…Article 431-1: Illegal use of The Red Cross/Red Crescent emblems shall
result in imposing of an administrative penalty on the citizens - from five to
ten; on officials - from ten to fifty, on legal entities - from one hundred to
five hundred minimum monthly wages with deprivation of a license (per-

PA R T I I
mission) to be engaged in an appropriate kind of activity for the period of

up to one year.
Article 431-2: Illegal use of the white cross on a red background shall result
in imposing of the administrative penalty on citizens - from five to ten, on of-
ficials - from ten to fifty, on legal entities - from one hundred to five hundred
minimum monthly wages with deprivation of a license (permission) to be
engaged in an appropriate kind of activity for the period of up to one year.
4. Perfidious use of the emblem
Use of the Red Cross or Red Crescent (Red Crystal) emblems during a war-
time for protection of armed persons (combatants) or military equipment and
other facilities (for example, transportation of armed persons in ambulance
cars or helicopters with an emblem on a board or installation of a flag with
a red cross or a red crescent on a warehouse with arms) shall be a war crime.
A person who deliberately committed or gave the order to commit actions
leading to death or creating heavy harm to health of an enemy, perfidiously
using the Red Cross / Red Crescent emblem Red, or a distinction signal, and
thus committed a war crime, shall be subject to responsibility and punish-
ment according to the legislation of the Kyrgyz Republic.
Perfidious use means applying to good will of an enemy with the intention
to mislead it and to force it to believe that it had the right to receive or was
supposed to provide protection according to provisions of the international
humanitarian law.
1. The National Red Crescent society of the Kyrgyz Republic and other
components of the Red Cross / Red Crescent Movement can use the emblems
for carrying out of different actions related to fund raising in conformity with
its Basic principles. Other entities, organizations or persons can be involved
in such actions under specific conditions.
Under permission of the Red Crescent Society of the Kyrgyz Republic the
Red Crescent emblem can be used during peace time for specified medical ve-
hicles and in locations of assistance points intended exclusively for rendering
of free medical assistance to wounded and sick people (Article 6 of the Law)
2. In compliance with paragraph 4.2. of the order of the Ministry of Health
of the Kyrgyz Republic as of November the 8th 2007 N393 “On approval of
specific requirements to pharmaceutical institutions for implementation of
pharmaceutical activity and activity related to sale of medical and healthcare
products in the Kyrgyz Republic”:

…. on a facade of pharmaceutical institutions’ building (drugstores, oulets,

chemist’s warehouses) the signboard having: a green cross, green letters on a
white background: “Daarikana” – “Drugstore” shall be installed.
3. The National Red Crescent society of the Kyrgyz Republic (NRCS of the
Kyrgyz Republic) shall use the Red Crescent emblem with open ends to the
left on a white background, as well as the title “Red Crescent.”
Article 3 of the Charter of the National Red
Crescent society of the Kyrgyz Republic.
1. Illegal use of the emblems in a peace time
can lead to distortion of their actual meaning and
loss of their value.
After beginning of military actions to fight
against abusing its usage can be too late; victims of
armed conflicts will appear left to mercy of their
fates; rendering of humanitarian assistance to them will become a hardly
resolvable problem.
Each of us can promote preservation and increase of the emblem’s value
as a protective mark.
All of us bear personal responsibility for providing protection stipulated
by the emblems, which will perhaps rescue lives tomorrow!’

PA R T I I
Regulations of the Permanent Interdepartmental

Commission Under the Ministry of Justice of the
Kyrgyz Republic on Implementation of International
Humanitarian Law274
I. Principal provisions
The Regulations of the permanent Interdepartmental Commission under
the Ministry of Justice of the Kyrgyz Republic on implementation of inter-
national humanitarian law (hereinafter – the Regulations) defines the orga-
nization of work, conduct of meetings and making decisions by permanent
Interdepartmental Commission under the Ministry of Justice of the Kyrgyz
Republic on implementation of international humanitarian law (hereinafter
– the Commission).
II. Organization of work of the Commission
2.1. The Commission carries out its activities in accordance with the Ac-
tion Plan for implementation of international humanitarian law, developed
on the basis of analysis of the legislation, approved by the Commission.
2.2. The Commission shall meet as necessary, but not less than once per
quarter. Meeting of the Commission has a quorum if the meeting attended by
at least two-thirds of the Commission members. Decisions shall be made by
majority vote of those present, but only in the presence of interested members
of the Commission on the subject. In their absence, this issue on the agenda
of the Commission shall be postponed to the next meeting.
2.3. The draft agenda of the meeting of the Commission shall be formed
by the Secretariat of the Commission seven days before the meeting and
submitted to the Chairperson of the Commission with the related materials.
The draft agenda of the meeting and appropriate materials approved by
the Chairperson of the Commission shall be sent to members of the Com-
mission no later than 5 working days before the date of the meeting. Agenda
of the meeting of the Commission shall be approved directly at the meeting
by majority vote of those present to the Commission. Changes in the agenda
may be amended at the suggestion of members of the Commission.
274
Dated August 20, 2010.

C hapter 4 C riminal R esponsibility
CHAPTER 4
CRIMINAL RESPONSIBILITY
Tribunals and the ICC

Yusuf Aksar, “From The Ad Hoc Tribunals to a Permanent
International Criminal Court,”2004275
In contrast to the Nuremberg and Tokyo Tribunals, the International
Criminal Tribunal for Yugoslavia (ICTY) and the International Criminal Tri-
bunal for Rwanda (ICTR) were established neither by the victors as a ‘victor’s
court of justice’ nor by the parties involved in the conflict, but rather by the
UN Security Council on behalf of the entire international community in order
to protect international peace and security. For this reason, the establishment
of these Tribunals was innovative in character and some questions have arisen
in relation to their creation by the UN Security Council.
As can be predicted, in the first case of the ICTY (Tadic Case), the defence
challenged the legality of the establishment of the International Tribunal, on
the grounds of jurisdiction of the Tribunal, as mentioned in detail above the
Trial Chamber refused the jurisdictional challenge of the defence by deciding
that ‘the validity of the creation of the International Tribunal is not truly a mat-
ter of jurisdiction but rather of the lawfulness of its creation, involving scrutiny
of the powers of the Security Council and of the manner of their exercise276.
However, the fact that the Appeals Chamber did not accept the decision of the
Trial Chamber with respect to the creation of the tribunal can be regarded as
a separate concept from the jurisdiction of the Tribunal, and it took ‘a more
interventionist approach’ and ‘interpreted in an unprecedentedly broad man-
ner the principle of competence de la competence.277 Under this principle,
the examination of the establishment of the Tribunal is a part of jurisdiction
275
Yusuf Aksar, Implementing International Humanitarian Law, The Ad Hoc Tribunals to
a Permanent International Criminal Court. pp. 3-4, 6-7 (Routledge, New York, 2004).
276
Trial Chamber, Tadic Case, Jurisdiction Decision, para.4; and also see paras. 5, 8, 40,
and the explanation made on p.25 under the heading of ‘In the Trial chamber’ above.
277
Fox, pp. 435-6; see also Id. for the explanation made under ‘In the Appeals Cham-
ber’, p. 34.

PA R T I I
(‘incidental’ or ‘inherent’ jurisdiction) and every international tribunal or court

does have a right to examine its creation as part of its jurisdiction.
From the point of view of international law, the decision held by the Ap-
peals Chamber under the principle of competence de la competence should
be regarded as reviewing the legality of the Security Council Resolution and
the establishment of the Tribunal. This principle merely allows the Tribunal to
examine and determine its own jurisdiction and it cannot be extended to the
examination of the competence and appropriateness of the Security Council
Resolution establishing the Tribunal278. As rightly held by the Trial Chamber
and supported by the Prosecutor’s Response to the Defence Motions and Judge
Li, in his separate opinion in the Appeals Chamber, the International Tribunal
does not have any power to review its creation by the Security Council and
its power as indicated in Article 1 of its Statute limited to ‘prosecute persons
responsible for serious violations of international humanitarian law commit-
ted in the territory of the former Yugoslavia since 1991 in accordance with the
provisions of the Statute’, and also Articles 2-5 of the Statute of the Tribunal
regulating the subject-matter jurisdiction of the Tribunal together with Article
1 cannot be interpreted as giving the Tribunal competence to review the acts
of the Security Council in respect to the establishment of the Tribunal279….
In conclusion, the establishment of the International tribunals must be
regarded as a contemporary example of the application of international
humanitarian law for enforcing individual responsibility when the violations
of international humanitarian and international human rights law have oc-
curred280. Additionally, it should also be noted that the establishment of the
ICTY and the ICTR has played a central role in the establishment of an in-
ternational criminal court which should be considered as one of the major
achievements of the international community before the new millennium. In
this sense, the approach taken by the international community, just before the
end of the twentieth century, should be perceived in the light that violations
of fundamental human rights will not be tolerated in the new millennium....
There is no doubt that the established ICC will be guided by the practice
of the ad hoc tribunals on a large scale. The impact of the Statutes of ad hoc
tribunals on the ICC Statute clearly demonstrates this fact and it gives place
to similar provisions regulating the principle of complementarity between
national courts and the ICC which is different from ad hoc tribunals in terms
of giving primacy to national courts as well as the principle of non bis in idem.
278
Separate Opinion of Judge Li, para. 2.
279
[citations omitted].
280
[citations omitted].

One of the other obstacles to creating an international criminal court is

the question of the scope of the Court’s subject-matter jurisdiction and per-
sonal jurisdiction. The practice of the international community with regard
to the subject-matter jurisdiction of the ICTY and the ICTR have played the
major role in preparing the ICC Statute. In fact, the ICC Statute should be
seen mainly as a combination of Articles 2-5 of the ICTY and Articles 2-4
the ICTR Statutes on the ground that the crime of genocide, war crimes and
crimes against humanity constitute the subject-matter jurisdiction of the ad
hoc tribunals as well as the jurisdiction of the ICC. The only exception is the
inclusion of the crime of aggression in the ICC Statute. The view taken by
the international community at this point reflects the best way to provide
universal acceptance of the ICC which paved the way for early ratification of
the Statute and brought the ICC into operation. With regard to the personal
jurisdiction of the ICC, the same view as that of the ICTY and the ICTR was
deployed by the international community and according to this, the ICC
has jurisdiction only over natural persons, not over legal entities and States.
In respect to the issue of procedural laws to be applied by an international
criminal court, the procedural law being applied by the ad hoc tribunals
should be seen as mainly reflecting the principles of international human
rights law and as in compliance with the human rights instruments such as
the ICCPR, ECHR and ACHR that all provide a fair trial for the accused per-
sons. The impact of the ICTY and the ICTR Statutes on the ICC Statute and
its Rules of Procedure and Evidence can be again examined in this regard.
Principal of Universal Jurisdiction

Arrest Warrant (Democratic Republic of the Congo v.
Belgium), 2002281
***
56. The Court will now address Belgium’s argument that immunities accorded
to incumbent Ministers for Foreign Affairs can in no case protect them where
they are suspected of having committed war crimes or crimes against humanity.
In support of this position, Belgium refers in its Counter-Memorial to various legal
instruments creating international criminal tribunals, to examples from national
legislation, and to the jurisprudence of national and international courts….
281
Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium),

PA R T I I
58. The Court has carefully examined State practice, including national
legislation and those few decisions of national higher courts, such as the
House of Lords or the French Court of Cassation. It has been unable to deduce
from this practice that there exists under customary international law any
form of exception to the rule according immunity from criminal jurisdiction
and inviolability to incumbent Ministers for Foreign Affairs, where they are
suspected of having committed war crimes or crimes against humanity.
The Court has also examined the rules concerning the immunity or
criminal responsibility of persons having an official capacity contained in
the legal instruments creating international criminal tribunals, and which are
specifically applicable to the latter (see Charter of the International Military
Tribunal of Nuremberg, Art. 7; Charter of the International Military Tribunal
of Tokyo, Art. 6; Statute of the International Criminal Tribunal for the former
Yugoslavia, Art. 7, para. 2; Statute of the International Criminal Tribunal for
Rwanda, Art. 6, para. 2; Statute of the International Criminal Court, Art. 27). It
finds that these rules likewise do not enable it to conclude that any such an
exception exists in customary international law in regard to national courts.
Finally, none of the decisions of the Nuremberg and Tokyo international
military tribunals, or of the International Criminal Tribunal for the former
Yugoslavia, cited by Belgium deal with the question of the immunities of
incumbent Ministers for Foreign Affairs before national courts where they
are accused of having committed war crimes or crimes against humanity. The
Court accordingly notes that those decisions are in no way at variance with
the findings it has reached above.
In view of the foregoing, the Court accordingly cannot accept Belgium’s
argument in this regard.
59. It should further be noted that the rules governing the jurisdiction
of national courts must be carefully distinguished from those governing
jurisdictional immunities: jurisdiction does not imply absence of immunity,
while absence of immunity does not imply jurisdiction. Thus, although vari-
ous international conventions on the prevention and punishment of certain
serious crimes impose on States obligations of prosecution or extradition,
thereby requiring them to extend their criminal jurisdiction, such extension
of jurisdiction in no way affects immunities under customary international
law, including those of Ministers for Foreign Affairs. These remain opposable
before the courts of a foreign State, even where those courts exercise such a
jurisdiction under these conventions.
60. The Court emphasizes, however, that the immunity from jurisdiction en-
joyed by incumbent Ministers for Foreign Affairs does not mean that they enjoy

impunity in respect of any crimes they might have committed, irrespective of

their gravity. Immunity from criminal jurisdiction and individual criminal respon-
sibility are quite separate concepts. While jurisdictional immunity is procedural
in nature, criminal responsibility is a question of substantive law. Jurisdictional
immunity may well bar prosecution for a certain period or for certain offences; it
cannot exonerate the person to whom it applies from all criminal responsibility.
61. Accordingly, the immunities enjoyed under international law by an
incumbent or former Minister for Foreign Affairs do not represent a bar to
criminal prosecution in certain circumstances.
First, such persons enjoy no criminal immunity under international law
in their own countries, and may thus be tried by those countries’ courts in
accordance with the relevant rules of domestic law.
Secondly, they will cease to enjoy immunity from foreign jurisdiction if the
State which they represent or have represented decides to waive that immunity.
Thirdly, after a person ceases to hold the office of Minister for Foreign
Affairs, he or she will no longer enjoy all of the immunities accorded by
international law in other States. Provided that it has jurisdiction under in-
ternational law, a court of one State may try a former Minister for Foreign
Affairs of another State in respect of acts committed prior or subsequent to
his or her period of office, as well as in respect of acts committed during that
period of office in a private capacity.
Fourthly, an incumbent or former Minister for Foreign Affairs may be
subject to criminal proceedings before certain international criminal courts,
where they have jurisdiction. Examples include the International Criminal
Tribunal for the former Yugoslavia, and the International Criminal Tribunal
for Rwanda, established pursuant to Security Council resolutions under Chap-
ter VII of the United Nations Charter, and the future International Criminal
Court created by the 1998 Rome Convention. The latter’s Statute expressly
provides, in Article 27, paragraph 2, that “[i]mmunities or special procedural
rules which may attach to the official capacity of a person, whether under
national or international law, shall not bar the Court from exercising its ju-
risdiction over such a person.”
Declaration of Judge Ranjeva
[p. 58 Decl. Ranjeva] I sum, the issue of universal jurisdiction in absentia
arises from the problem created by the possibility of extraterritorial criminal
jurisdiction in the absence of any connection between the State claiming
such jurisdiction and the territory in which the alleged offences took place
– of any effective authority of that State over the suspected offenders. This

PA R T I I
problem stems from the nature of an instrument of criminal process: it is

not a mere abstraction; it is enforceable, and, as such, requires a minimum
material basis under international law. It follows that an explicit prohibition
on the exercise, as construed by Belgium, of universal jurisdiction does not
represent a sufficient basis.
Separate Opinion of Judge Higgins, Koijmans, and Buergenthal
[pp. 80-81 J.S.O. Higgins, Kooijmans, Buergenthal] If, as we believe to
be the case, a State may choose to exercise a universal criminal jurisdiction
in absentia, it must also ensure that certain safeguards are in place. They are
absolutely essential to prevent abuse and to ensure that the rejection of im-
punity does not jeopardize stable relations between States.
No exercise of criminal jurisdiction may occur which fails to respect the
inviolability or infringes the immunities of the person concerned. We return
below to certain aspects of this facet, but will say at this juncture that com-
mencing an investigation on the basis of which an arrest warrant may later
be issued does not of itself violate those principles. The function served by
the international law of immunities does not require that States fail to keep
themselves informed.
A State contemplating bringing criminal charges based on universal
jurisdiction must first offer to the national State of the prospective accused
person the opportunity itself to act upon the charges concerned. The Court
makes reference to these elements in the context of this case at paragraph
16 of its Judgment.
Further, such charges may only be laid by a prosecutor or juge d’instruction
who acts in full independence, without links to or control by the government
of that State. Moreover, the desired equilibrium between the battle against
impunity and the promotion of good inter-State relations will only be main-
tained if there are some special circumstances that do require the exercise
of an international criminal jurisdiction and if this has been brought to the
attention of the prosecutor or juge d’instruction. For example, persons re-
lated to the victims of the case will have requested the commencement of
legal proceedings.

James Crawford, “Human Rights and State

Responsibility”282
(a) Direct responsibility of armed opposition groups
The rules set out in the Articles on State Responsibility relate to the
responsibility of States. They are without prejudice to the general law of
responsibility. Moving beyond the question of attribution of the acts of an
insurrectionist movement to a State, it may be asked whether such a move-
ment might incur responsibility on its own under international law—for
example, for acts in violation of the law of human rights.
Protocol I to the 1949 Geneva Conventions extends the protections of
common Article 2 of the Conventions, inter alia, to “armed conflicts in which
peoples are fighting against colonial domination and alien occupation and
against racist regimes in the exercise of their right of self-determination, as en-
shrined in the Charter of the United Nations and the Declaration on Principles
of International Law concerning Friendly Relations and Co-operation among
States in accordance with the Charter of the United Nations.” Subscription
to Protocol I is incomplete, and, even on its terms, it is not explicit as to the
responsibility of armed opposition groups involved in internal armed conflict.
It may be that, because the Protocol extends to such groups the substantive
rights earlier reserved to situations of inter-State warfare, the Protocol also
establishes their responsibility on a footing similar to State responsibility.
Zegveld makes the point that much of the law concerning internal
armed opposition relates to the rights of victims—i.e., to violations of the
human rights and humanitarian interests of civilians caught up in an internal
conflict; and that this focus of the law involves a neglect of the question of
attribution of responsibility – i.e., of the question against whom to oppose
the victims’ rights.283
Though international bodies have hesitated to attribute human rights
violations to armed opposition groups, there have been instances in which
human rights violations have been identified in internal armed conflicts.
For example, the Inter-American Commission, in its Second Report on the
Situation of Human Rights in Colombia (1993), stated that the activities of
armed groups “are detrimental to the exercise of the most important human
rights.”284 The special rapporteurs and working group chairpersons of the UN
282
12th Raymond & Beverly Sackler Distinguished Lecture Series (October 25, 2006).
283
Liesbeth Zegveld, The Accountability of Armed Opposition Groups in International
Law, Cambridge, Cambridge University Press, 2002, p 3.
284
Inter-American Commission Second Report on the Situation of Human Rights in

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Commission on Human Rights once noted “the adverse effects [the actions
of armed groups] might have on the enjoyment of human rights.”285 The UN
Secretary-General in his 1999 report on Fundamental Standards of Humanity,
noted that “some argue that non-State actors should also be held accountable
under international human rights law, especially in situations where the State
structures no longer exist or where States are unable or unwilling to mete out
punishment for crimes committed by non-State actors.”286 This is however
rather equivocal, the practice of the international human rights bodies by
no means establishing decisively the international responsibility of armed
opposition groups engaged in hostilities against the State. Indeed, in various
instances in which governments alleged violations of human rights by armed
opposition groups, the Commission on Human Rights resisted characterizing
acts of armed groups as violations of human rights.287
(b) Direct responsibility of private sector entities for complicity with
the State
United States federal law presents the possibility of private litigants es-
tablishing the direct responsibility of private sector entities for complicity
with the State in violations of human rights. This position, which is unusual
in national legislation generally, owes to the Alien Tort Claims Act, which
provides that “[t]he [federal] district courts shall have original jurisdiction of
any civil action by an alien for a tort only, committed in violation of the law
of nations or a treaty of the United States.”288 After a long period of obscu-
rity, the Act was applied to establish jurisdiction over a claim by Paraguayan
nationals against a Paraguayan official for alleged acts of torture, Filartiga v
Pena-Irala289 triggering a modern discussion over the meaning of the 18th
century expression “violations of the law of nations.”290 Lower courts oscillated
Colombia, OEA/Ser.L/V/II.84, p 213 (1993).

285
UN Commission on Human Rights, E/CN/4/1997/3, para 44: Report of the Meet-
ing of Special Rapporteurs/Representatives Experts and Chairpersons of Working
Groups of the Special Procedures of the Commission on Human Rights and the
Advisory Services Programme, 30 September 1996. Quoted in Zegveld, 38-9.
286
Report of the Secretary-General on Fundamental Standards of Humanity, Commis-
sion on Human Rights, E/CN.4/1999/92 (para 13), 18 December 1998.Quoted in
Zegveld, 47.
287
Zegveld 46 and n 132.
288
Judiciary Act of 1789, ch 20 2 9(b), 1 Stat 73, 77 (1789), codified at 28 USC s 1350.
289
630 F.2d 876 (2nd Cir 1980).
290
Some of the issues were identified immediately after Filartiga: see, e.g., Daniel Do-
kos, “Enforcement of International Human Rights in Federal Courts After Filartiga
v Pena-Irala,” (1981) 67 Virginia Law Review 1379.

between a restrictive view, that the expression “law of nations” referred to

international law as it existed in 1789291, and an expansive one, that the Act
establishes a cause of action under any international law rule now in force.
The Supreme Court adopted the expansive view in Sosa v Alvarez-Machain.292
Two post-Sosa decisions in federal courts address the attribution of serious
violations of human rights rules to private sector entities. Sarei v Rio Tinto
Plc., decided 7 August 2006 by a three-judge panel of the Court of Appeals for
the Ninth Circuit, arose out of activities of a British mining company on the
island of Bougainville in Papua New Guinea.293 Presbyterian Church of Sudan
v Talisman Energy Inc., decided 12 September 2006 by the District Court for
the Southern District of New York, arose out of activities of a Canadian min-
ing company in the Sudan.294 In both, federal jurisdiction was asserted on the
basis of the Alien Tort Claims Act. The cases present questions concerning
the responsibility (“liability”) of private sector actors under international law
for acts of their own; and concerning the complicity of private sector actors
in acts done by the State on the territory of which they operate.
The plaintiffs’ case in Rio Tinto had been dismissed by the District Court
on grounds that it presented non-justiciable political questions, or was barred
under act of state doctrine and the doctrine of international comity. The
Court of Appeals set out the facts as alleged by the plaintiffs:
“[T]he defendant Rio Tinto, an international mining company,
with the assistance of the PNG Government, committed various
egregious violations of jus cogens norms and customary
international law including racial discrimination, environmental
devastation, war crimes and crimes against humanity, with severe
repercussions for many citizens of PNG.”295
Black labourers in Rio Tinto’s copper and gold mining operations were
alleged to have lived in “slave-like” conditions. Their mental and physical
health was damaged, as was the surrounding environment, by the waste prod-
ucts of the mining operations. A civil war erupted between the Bougainvil-
leans and the PNG, the former seeking to secede from the latter. This lasted
ten years and involved serious violations of human rights and humanitarian
291
See Tel-Oren v Libyan Arab Republic, 726 F.2d 724, 823 (D.C. Cir. 1984, Bork J
concurring).
292
542 U.S. 692 (2004).
293
456 F.3d 1069 (9th Cir. 2006; Fisher CJ; Bybee CJ dissenting).
294
453 F.Supp.2d 633, 12 September 2006 (Cote J).
295
456 F.3d 1069, 1074.

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law.296 The lower court, though dismissing on the grounds noted, held that
“if proven, the allegations supported liability against Rio Tinto for certain
acts committed by the PNG government” and that the plaintiffs had stated
“cognizable ATCA claims for racial discrimination, crimes against humanity
and violations of the laws of war.”297
Command Responsibility
Prosecutor v. Juvénal Kajelijeli298
***
740. From the evidence presented in the present section and these find-
ings regarding the Accused’s active involvement in the killings that occurred
in Mukingo, Nkuli and Kigombe communes in April 1994, it follows that the
Accused knew that Interahamwe from Mukingo and Nkuli communes—who
were under his effective control at that time—were participating in those
killings. The Chamber finds that the Accused failed to take any measures
to prevent or stop those acts. In making this finding, the Chamber found
further corroboration in the testimony of Prosecution Witness GBH, who
stated that he pleaded with the Accused to stop the killings but the Accused
refused, saying that “it was necessary to continue, look for those or hunt
for those who had survived”299. Thus, even though the Prosecution failed to
provide any evidence establishing that the Accused indeed had authority to
issue circulation passes (laissez-passer) between the 1 January 1994 and 26
June 1994 or that he refused to do so, the Chamber finds that the Accused
failed to prevent or stop the killings of early to mid-April 1994 in Mukingo,
Nkuli and Kigombe communes….
770. Article 6(3) of the ICTR Statute addresses the criminal responsibil-
ity of a superior by virtue of his or her knowledge of the acts and omissions
of subordinates and for failure to prevent, discipline, or punish the criminal
acts of his or her subordinates in the preparation and execution of the crimes
charged. The principle of superior responsibility, which derives from the prin-
ciple of individual criminal responsibility as applied in the Nuremberg and
296
ibid, 1075.
297
Sarei v Rio Tinto PLC, 221 F. Supp.2d 1116 (C.D. Cal. 2002), 1148-9, 1139-63.
298
International Criminal Tribunal for Rwanda, Judgment of 1 December 2003 Case
No. ICTR-98-44A-T.
299
T. 17 July 2001, pp. 59-61 (GBH).

Tokyo trials, was subsequently codified in Article 86 of the Additional Proto-

col I to the Geneva Conventions in 1977. Article 6(3) of the Statute, which
is applicable to genocide, crimes against humanity, and serious violations of
Article 3 Common to the Geneva Conventions and Additional Protocol II,
provides as follows: The fact that any of the acts referred to in Articles 2 to
4 of the present Statute was committed by a subordinate does not relieve
his or her superior of criminal responsibility if he or she knew or had reason
to know that the subordinate was about to commit such acts or had done
so and the superior failed to take the necessary and reasonable measures to
prevent such acts or to punish the perpetrators thereof300.
771. The jurisprudence of both the ICTR and the ICTY has recognised
that a civilian or a military superior, with or without official status, may be
held criminally responsible for offences committed by subordinates who
are under his or her effective control301. The chain of command between a
superior and subordinates may be either direct or indirect302.
772. The following three concurrent conditions must be satisfied before a
superior may be held criminally responsible for the acts of his or her subordinates:
(i) There existed a superior-subordinate relationship between the person
against whom the charge is directed and the perpetrators of the offence;
(ii) The superior knew or had reason to know that the criminal act was
about to be or had been committed303;
(iii) The superior failed to exercise effective control to prevent the crimi-
nal act or to punish the perpetrators thereof304.
775. To hold a superior responsible for the criminal conduct of subordi-
nates, the Chamber must be satisfied that the superior possessed the requisite
mens rea, namely that he or she knew or had reason to know of such conduct.
300
International Criminal Tribunal for Rwanda ICTR Statute, Article 6(3).
301
Semanza, Judgment (TC), para. 400; Bagilishema, Judgment (AC), paras. 50 and 51;
Kayishema and Ruzindana, Judgment (TC), para. 294; Musema, Judgment (TC),
para. 148; Celebici, Judgment (AC), paras. 192-196.
302
Semanza Judgment (TC), para. 400.
303
For example, crimes within the jurisdiction of the Tribunal.
304
Celebici, Judgment (AC), paras. 189-198, 225-226, 238-239, 256 and 263; Celebici,
Judgment (TC), para. 346; Blaskic, Judgment (TC), para. 294; Aleksovski, Judgment
(TC), para. 69; Kordic, Judgment (TC), para. 401; Kunarac and Kovac, Judgment
(TC), para. 395; Kayishema and Ruzindana, Judgment (TC), paras. 217-231; Bagil-
ishema, Judgment (AC), paras. 26-62 ; Bagilishema, Judgment (TC), paras. 38-50;
Semanza, Judgment (TC), para. 400; Niyitegeka, Judgment (TC), para. 477.

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776. A superior in a chain of hierarchical command with authority over

a given geographical area will not be held strictly liable for subordinates’
crimes305. While an individual’s hierarchical position may be a significant
indicium that he or she knew or had reason to know about subordinates’
criminal acts, knowledge will not be presumed from status alone306.
777. A superior is under a duty to act where he or she knew or had reason
to know that subordinates had committed or were about to commit offences
covered by Articles 2, 3, and 4 of the Statute307.
Genocide
Application of the Convention for the Prevention and
Punishment of the Crime of Genocide (Bosnia and
Herzegovina v. Serbia and Montenegro)308
***
186. The Court notes that genocide as defined in Article II of the Con-
vention comprises “acts” and an “intent.” It is well established that the acts -
(a) Killing members of the group;
(b) Causing serious bodily or mental harm to members of the group;
(c) Deliberately inflicting on the group conditions of life calculated to
bring about its physical destruction in whole or in part;
(d) Imposing measures intended to prevent births within the group; [and]
(e) Forcibly transferring children of the group to another group”
- themselves include mental elements. “Killing” must be intentional, as
must “causing serious bodily or mental harm.” Mental elements are made
explicit in paragraphs (c) and (d) of Article II by the words “deliberately” and
“intended,” quite apart from the implications of the words “inflicting” and
305
Semanza, Judgement (TC), para. 404; Bagilishema, Judgment (TC), paras. 44-45;
Akayesu, Judgment (TC), para. 489.
306
Semanza, (TC), para. 404; Bagilishema, Judgment (TC), para. 45.
307
Semanza, Judgement (TC), para. 405 ; Bagilishema, Judgment (TC), para.46; Celebici,
Judgment (TC), paras. 384-386.
308
Application of the Convention on the Prevention and Punishment of the Crime
of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment, I.C.J.
Reports 2007, p. 43.

“imposing”; and forcible transfer too requires deliberate intentional acts. The
acts, in the words of the ILC, are by their very nature conscious, intentional or
volitional acts (Commentary on Article 17 of the 1996 Draft Code of Crimes
against the Peace and Security of Mankind, ILC Report 1996, Yearbook of the
International Law Commission, 1996, Vol. II, Part Two, p. 44, para. 5).
187. In addition to those mental elements, Article II requires a further
mental element. It requires the establishment of the “intent to destroy, in
whole or in part,… [the protected] group, as such.” It is not enough to estab-
lish, for instance in terms of paragraph (a), that deliberate unlawful killings
of members of the group have occurred. The additional intent must also be
established, and is defined very precisely. It is often referred to as a special
or specific intent or dolus specialis; in the present Judgment it will usually
be referred to as the “specific intent (dolus specialis).” It is not enough that
the members of the group are targeted because they belong to that group,
that is because the perpetrator has a discriminatory intent. Something more
is required. The acts listed in Article II must be done with intent to destroy
the group as such in whole or in part. The words “as such” emphasize that
intent to destroy the protected group.
188. The specificity of the intent and its particular requirements are
highlighted when genocide is placed in the context of other related criminal
acts, notably crimes against humanity and persecution, as the Trial Chamber
of the International Criminal Tribunal for the former Yugoslavia (hereinafter
“ICTY” or “the Tribunal”) did in the Kupreškić et al case:
“the mens rea requirement for persecution is higher than
for ordinary crimes against humanity, although lower than for
genocide. In this context the Trial Chamber wishes to stress that
persecution as a crime against humanity is an offence belonging
to the same genus as genocide. Both persecution and genocide
are crimes perpetrated against persons that belong to a particular
group and who are targeted because of such belonging. In
both categories what matters is the intent to discriminate: to
attack persons on account of their ethnic, racial, or religious
characteristics (as well as, in the case of persecution, on account
of their political affiliation). While in the case of persecution
the discriminatory intent can take multifarious inhumane forms
and manifest itself in a plurality of actions including murder,
in the case of genocide that intent must be accompanied by
the intention to destroy, in whole or in part, the group to
which the victims of the genocide belong. Thus, it can be said

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that, from the viewpoint of mens rea, genocide is an extreme

and most inhuman form of persecution. To put it differently,
when persecution escalates to the extreme form of willful and
deliberate acts designed to destroy a group or part of a group,
it can be held that such persecution amounts to genocide.” (IT-
95-16-T, Judgment, 14 January 2000, para. 636.)…
190. … As the ICTY has observed, while “there are obvious similarities
between a genocidal policy and the policy commonly known as ‘ethnic
cleansing’” (Krstić, IT-98-33-T, Trial Chamber Judgment, 2 August 2001, para.
562), yet “[a] clear distinction must be drawn between physical destruction
and mere dissolution of a group. The expulsion of a group or part of a group
does not in itself suffice for genocide.” (Stakić, IT-97-24-T, Trial Chamber
Judgment, 31 July 2003, para. 519.) In other words, whether a particular op-
eration described as “ethnic cleansing” amounts to genocide depends on the
presence or absence of acts listed in Article II of the Genocide Convention,
and of the intent to destroy the group as such. In fact, in the context of the
Convention, the term “ethnic cleansing” has no legal significance of its own.
That said, it is clear that acts of “ethnic cleansing” may occur in parallel to acts
prohibited by Article II of the Convention, and may be significant as indica-
tive of the presence of a specific intent (dolus specialis) inspiring those acts.
Jorgic v. Germany, Decision of the European Court of

***
3. The applicant, invoking Article 5 § 1 (a) and Article 6 § 1 of the Con-
vention, alleged that the German courts had not had jurisdiction to convict
him of genocide. He further argued that, due, in particular, to the domestic
courts’ refusal to call any witness for the defence who would have had to be
summoned abroad he had not had a fair trial within the meaning of Article 6
§§ 1 and 3 (d) of the Convention. Moreover, he complained that his conviction
for genocide was in breach of Article 7 § 1 of the Convention in particular
because the national courts’ wide interpretation of that crime had no basis
in German or public international law….
8. On 16 December 1995 the applicant was arrested when entering Ger-
many and placed in pre-trial detention on the ground that he was strongly
suspected of having committed acts of genocide….
309
Jorgic v. Germany, Application no. 74613/01, European Court of Human Rights,
12 July 2007.

18. Furthermore, the court found that the applicant had acted with intent
to commit genocide within the meaning of Article 220a of the Criminal Code.
Referring to the views expressed by several legal writers, it stated that the
“destruction of a group” within the meaning of Article 220a of the Criminal
Code meant destruction of the group as a social unit in its distinctiveness and
particularity and its feeling of belonging together (“Zerstörung der Gruppe
als sozialer Einheit in ihrer Besonderheit und Eigenart und ihrem Zusam-
mengehörigkeitsgefühl”); a biological-physical destruction was not necessary.
It concluded that the applicant had therefore acted with intent to destroy
the group of Muslims in the North of Bosnia, or at least in the Doboj region….
35. Article 220a of the Criminal Code was inserted into the German Crimi-
nal Code by the Act of 9 August 1954 on Germany’s accession to the Genocide
Convention and entered into force in 1955. Articles 6 no. 1 and 220a of the
Criminal Code ceased to be effective on 30 June 2002 when the Code on
Crimes against International Law (Völkerstrafgesetzbuch) entered into force.
Pursuant to Article 1 of the new Code, it applies to criminal offences against
international law such as genocide (see Article 6 of the new Code) even when
the offence was committed abroad and bears no relation to Germany….
99. The Government conceded that in its judgment of 2 August 2001 in
the case of Prosecutor v. Krstic, the Trial Chamber of the ICTY, as upheld on
appeal, had expressly rejected the Federal Constitutional Court’s interpreta-
tion of the notion of “intent to destroy” in its judgment in the present case.
Relying on the principle of nullum crimen sine lege, the ICTY had argued for
the first time that the offence of genocide under public international law was
restricted to acts aimed at the physical or biological destruction of a group.
However, this narrower interpretation of the scope of the crime of genocide
by the ICTY in 2001 – which, in the view, was not convincing – did not call
into question the fact that it had been foreseeable for the applicant, when he
committed his offences in 1992, that these would be qualified as genocide. In
any event, the German courts had not qualified ethnic cleansing in general
as genocide, but had found that the applicant, in the circumstances of the
case, was guilty of genocide as he had intended to destroy a group as a social
unit and not merely to expel it….
105. The Court notes that the domestic courts construed the “intent to
destroy a group as such” systematically in the context of Article 220a § 1 of the
Criminal Code as a whole, having regard notably to alternatives no. 4 (imposi-
tion of measures which are intended to prevent births within the group) and
no. 5 (forcible transfer of children of the group into another group) of that
provision, which did not necessitate a physical destruction of living members of

PA R T I I
the group in question. The Court finds that the domestic courts’ interpretation
of “intent to destroy a group” as not necessitating a physical destruction of the
group, which has also been adopted by a number of scholars (see paragraphs 36
and 47 above), is therefore covered by the wording, read in its context, of the
crime of genocide in the Criminal Code and does not appear unreasonable….
113. In view of the foregoing, the Court concludes that, while many au-
thorities had favoured a narrow interpretation of the crime of genocide, there
had already been several authorities at the material time which had construed
the offence of genocide in the same wider way as the German courts. In
these circumstances, the Court finds that the applicant, if need be with the
assistance of a lawyer, could reasonably have foreseen that he risked being
charged with and convicted of genocide for the acts he had committed in
1992. In this context the Court also has regard to the fact that the applicant
was found guilty of acts of a considerable severity and duration: the killing
of several people and the detention and ill-treatment of a large number of
people over a period of several months as the leader of a paramilitary group
in pursuit of the policy of ethnic cleansing….
***
803. As with other crimes, the crime of genocide requires a finding of both
mens rea and actus reus. The mens rea for genocide comprises of the specific
intent or dolus specialis described in the general clause of Article 2(2) of the
Statute – i.e. the commission of a genocidal act ‘with intent to destroy, in whole
or in part, a national, ethnical, racial or religious group’. And the actus reus consists
of any of the five acts listed under Article 2(2) of the Statute, as shown above311.
Proof of specific intent
804. In determining the specific intent of the crime of genocide it is instructive
to consider the following pronouncement of Trial Chamber I in the Akayesu Case:
“[i]ntent is a mental factor which is difficult, even impossible,
to determine. This is the reason why, in the absence of a confession
from the accused, his intent can be inferred from a certain number
of presumptions of fact. The Chamber considers that it is possible
to deduce the genocidal intent inherent in a particular act charged
310
International Criminal Tribunal for Rwanda. Judgment of: 1 December 2003. Case
No. ICTR-98-44A-T.
311
See above: Part IV, Section D.

from the general context of the perpetration of other culpable

acts systematically directed against the same group, whether
these acts were committed by the same offender or by others.
Other factors, such as the scale of atrocities committed, their
general nature, in a region or a country, or furthermore, the fact
of deliberately and systematically targeting victims on account of
membership of a particular group, while excluding the members
of other groups can enable the Chamber to infer the genocidal
intent of a particular act.”312…
806. In Kayishema and Ruzindana313, Trial Chamber II also agreed that it
may be difficult to find explicit manifestations of intent by perpetrators. In
those circumstances, the Chamber held, the perpetrator’s actions, including
circumstantial evidence, may provide sufficient evidence of intent314. Accord-
ing to the Chamber, some of the indicia of intent may be “[e]vidence such as
the physical targeting of the group or of their property; the use of derogatory
language toward members of the targeted group; the weapons employed and
the extent of bodily injury; the methodical way of planning, the systematic
manner of killing.”315 In the ICTY Jelisic Judgment, the Commission of Experts
Report was quoted to this effect: “[i]f essentially the total leadership of a group
is targeted, it could also amount to genocide. Such leadership includes politi-
cal and administrative leaders, religious leaders, academics and intellectuals,
business leaders and others – the totality per se may be a strong indication
of genocide regardless of the actual numbers killed.”316
To destroy
808. An Accused may be liable under Article 2 if he ‘intends to destroy a […]
group.’ The Trial Chambers of the Tribunal and particularly that in Semanza
made reference to the Report of the International Law Commission which states
that destruction within the meaning of Article 2 is “[t]he material destruction of
a group either by physical and biological means and not the destruction of the
national, linguistic, religious, cultural or other identity of a particular group.”317
312
313
Kayishema and Ruzindana, Judgment (TC), para. 93.
314
The Chamber drew conclusions from a legal text, which cited the Final Report of
Commission of Experts to the effect that the specific intent may be inferred from
sufficient facts such as the number of group members affected: see Kayishema and
Ruzindana, Judgment (TC), para. 93.
315
Kayishema and Ruzindana, Judgment (TC), para. 93.
316
Jelisic, Judgment (TC), 14 December 1999, para. 82.
317
See “ILC Report 1996; Draft Code of Crimes Against the Peace and Security of

PA R T I I
In whole or in part
809. Under Article 2, an accused may be liable if he ‘intends to destroy
in whole or in part a … group.’ As has been explained in judgments of this
Tribunal, in order to establish an intent to destroy ‘in whole or in part’, it is
not necessary to show that the perpetrator intended to achieve the complete
annihilation of a group from every corner of the globe. Nevertheless, the per-
petrator must have intended to destroy more than an imperceptible number
of the targeted group318. In effect, the Semanza Trial Chamber was correct in
observing that while the Prosecution must establish, beyond reasonable doubt,
the intent of the perpetrator to destroy the target group in whole or in part,
there is no numeric threshold of victims necessary to establish genocide.319…
Protected groups
811. It is required to show under Article 2 that the Accused, in committing
genocide intended to destroy ‘a national, ethnical, racial or religious’ group. Trial
Chambers of this Tribunal have noted that the said concept enjoys no generally
or internationally accepted definition, rather each concept must be assessed in
the light of a particular political, social, historical and cultural context320. Ac-
cordingly, “[f]or purposes of applying the Genocide Convention, membership of
a group is, in essence, a subjective rather than an objective concept [where] the
victim is perceived by the perpetrator of genocide as belonging to a group slated
for destruction.”321 A determination of the categorized groups should be made
on a case-by-case basis, by reference to both objective and subjective criteria.322
The acteus reus
812. The acteus reus for the crime of genocide is provided for under Ar-
ticle 2(2) of the Statute. As the issues arising in the present case are so limited,
the Chamber shall only review the meaning of the requirements: (a) “killing
members of the group”; and (b) “causing serious bodily or mental harm to
members of the group.”
Mankind,” p. 90; Semanza, Judgment (TC), 15 May 2003, para. 315; Kayishema and
Ruzindana, Judgment (TC), para. 95.
318
See “ILC Report 1996; Draft Code of Crimes Against the Peace and Security of
Mankind,” p. 90; Bagilishema, Judgment (TC), para. 64; Kayishema and Ruzindana,
Judgment (TC), para. 96; Akayesu, Judgment (TC), para. 496 - 499; Semanza, Judg-
ment (TC), para. 316.
319
Semanza, Judgment (TC), para. 316.
320
Bagilishema, Judgment (TC), para. 65; Musema, Judgment (TC), para. 161.
321
Rutaganda, Judgment (TC), para. 56; Musema, Judgment (TC), para. 161; Semanza,
Judgment (TC), para. 317.
322

843. The Chamber finds beyond a reasonable doubt that the Accused is
criminally responsible for the acts of genocide (killing of members of the
Tutsi ethnic group) committed by his subordinates in Mukingo and Nkuli
Communes and at the Ruhengeri Court of Appeal in Kigombe Commune,
pursuant to Article 6(3) of the Statute.
Prosecutor v. Radislav Krstic323
***
6. Article 4 of the Tribunal’s Statute, like the Genocide Convention,324 covers
certain acts done with “intent to destroy, in whole or in part, a national, ethni-
cal, racial or religious group, as such.” The Indictment in this case alleged, with
respect to the count of genocide, that Radislav Krstiс “intend[ed] to destroy a
part of the Bosnian Muslim people as a national, ethnical, or religious group.”325
The targeted group identified in the Indictment, and accepted by the Trial
Chamber, was that of the Bosnian Muslims.326 The Trial Chamber determined
that the Bosnian Muslims were a specific, distinct national group, and there-
fore covered by Article 4.327 This conclusion is not challenged in this appeal.328
7. As is evident from the Indictment, Krstiс was not alleged to have in-
tended to destroy the entire national group of Bosnian Muslims, but only a
part of that group. The first question presented in this appeal is whether, in
finding that Radislav Krstiс had genocidal intent, the Trial Chamber defined
the relevant part of the Bosnian Muslim group in a way which comports with
the requirements of Article 4 and of the Genocide Convention.
8. It is well established that where a conviction for genocide relies on the
intent to destroy a protected group “in part,” the part must be a substantial
part of that group. The aim of the Genocide Convention is to prevent the
intentional destruction of entire human groups, and the part targeted must
be significant enough to have an impact on the group as a whole. Although
the Appeals Chamber has not yet addressed this issue, two Trial Chambers
of this Tribunal have examined it. In Jelisiс, the first case to confront the
323
International Tribunal for the Prosecution of Persons Responsible for Serious
Violations of International Humanitarian Law Committed in the Territory of the
Former Yugoslavia Since 1991. Case No: IT-98-33-A. Date: 19 April 2004.
324
Article II of the Genocide Convention.
325
Indictment, para. 21.
326
See Trial Judgement, para. 558 (“the indictment in this case defined the targeted
group as the Bosnian Muslims”).
327
Ibid., paras. 559 - 560.
328
See Defence Appeal Brief, paras. 28, 38.

PA R T I I
question, the Trial Chamber noted that, “[g]iven the goal of the [Genocide]
Convention to deal with mass crimes, it is widely acknowledged that the in-
tention to destroy must target at least a substantial part of the group.”329 The
same conclusion was reached by the Sikirica Trial Chamber: “This part of the
definition calls for evidence of an intention to destroy a substantial number
relative to the total population of the group.”330 As these Trial Chambers
explained, the substantiality requirement both captures genocide’s defining
character as a crime of massive proportions and reflects the Convention’s
concern with the impact the destruction of the targeted part will have on
the overall survival of the group.331…
15. In this case, having identified the protected group as the national
group of Bosnian Muslims, the Trial Chamber concluded that the part the
VRS Main Staff and Radislav Krstiс targeted was the Bosnian Muslims of Sre-
brenica, or the Bosnian Muslims of Eastern Bosnia. This conclusion comports
with the guidelines outlined above….
24. The Defence also argues that the Trial Chamber erred in describing
the conduct with which Radislav Krstiс is charged as genocide. The Trial
Chamber, the Defence submits, impermissibly broadened the definition of
genocide by concluding that an effort to displace a community from its tra-
ditional residence is sufficient to show that the alleged perpetrator intended
to destroy a protected group.332
25. The Genocide Convention, and customary international law in gen-
eral, prohibit only the physical or biological destruction of a human group.
The Trial Chamber expressly acknowledged this limitation, and eschewed
any broader definition. The Chamber stated: “[C]ustomary international law
limits the definition of genocide to those acts seeking the physical or biologi-
cal destruction of all or part of the group. [A]n enterprise attacking only the
329
Jelisiс Trial Judgement, para. 82 (citing Report of the International Law Commis-
sion on the Work of its Forty-Eighth Session, 6 May – 26 July 1996, G.A.O.R., 51st
session, Supp. No. 10 (A/51/10) (1996), p. 89; Nehemiah Robinson, The Genocide
Convention: A Commentary (1960) (1st ed. 1949), p. 63; Genocide Convention,
Report of the Committee on Foreign Relations, U.S. Senate, 18 July 1981), p. 22).
The Jelisiс Trial Judgement was reversed in part by the Appeals Chamber on other
grounds. See Jelisiс Appeal Judgement, para. 72. The Trial Chamber’s definition
of what constitutes an appropriate part of the group protected by the Genocide
Convention was not challenged.
330
Sikirica Judgement on Defence Motions to Acquit, para. 65.
331
Jelisiс Trial Judgement, para. 82; Sikirica Judgement on Defence Motions to Acquit,
para. 77.
332
Defence Appeal Brief, para. 43.

cultural or sociological characteristics of a human group in order to annihilate

these elements which give to that group its own identity distinct from the
rest of the community would not fall under the definition of genocide.”333
26. …The Trial Chamber found that, in executing the captured Bosnian
Muslim men, the VRS did not differentiate between men of military status and
civilians.334 Though civilians undoubtedly are capable of bearing arms, they
do not constitute the same kind of military threat as professional soldiers.
The Trial Chamber was therefore justified in drawing the inference that, by
killing the civilian prisoners, the VRS did not intend only to eliminate them
as a military danger. The Trial Chamber also found that some of the victims
were severely handicapped and, for that reason, unlikely to have been com-
batants.335 This evidence further supports the Trial Chamber’s conclusion that
the extermination of these men was not driven solely by a military rationale.
27. Moreover, as the Trial Chamber emphasized, the term “men of military
age” was itself a misnomer, for the group killed by the VRS included boys
and elderly men normally considered to be outside that range.336 Although
the younger and older men could still be capable of bearing arms, the Trial
Chamber was entitled to conclude that they did not present a serious military
threat, and to draw a further inference that the VRS decision to kill them did
not stem solely from the intent to eliminate them as a threat. The killing of
the military aged men was, assuredly, a physical destruction, and given the
scope of the killings the Trial Chamber could legitimately draw the inference
that their extermination was motivated by a genocidal intent.
333
Trial Judgement, para. 580. See also ibid., para. 576 (discussing the conclusion of
the International Law Commission, quoted in note 39, supra).
334
Ibid., paras. 547, 594.
335
Ibid., para. 75 & n. 155.
336
Ibid., n. 3.

PA R T I I
Crimes Against Humanity

***
864. The Accused is charged with the acts of Murder, Extermination, Rape,
and Other inhumane acts as Crimes against Humanity338. The commission of
any of these acts by the Accused will only amount to a Crime against Human-
ity, if the Chamber finds that it was committed as part of a widespread or
systematic attack on a civilian population on any of the following discrimi-
natory grounds: nationality, political persuasion, ethnicity, race or religion.
865. In relation to each count which charges the Accused with a Crime
against Humanity, the Prosecution is required to prove the elements indicated
above.
866. An act may form part of the widespread or systematic attack without
necessarily sharing all the same features, such as the time and place of com-
mission of the other acts constituting the attack. In determining whether an
act forms part of a widespread or systematic attack, the Chamber will consider
its characteristics, aims, nature, and consequence.
The General Elements
The Attack
867. The Chamber adopts the accepted definition of “attack” within this
Tribunal, where it is generally defined as “an unlawful act, event, or series of
events of the kind listed in Article 3(a) through (i) of the Statute.”339 This defi-
nition has remained constant throughout the jurisprudence of the Tribunal340.
868. Moreover, an attack committed on specific discriminatory grounds
need not necessarily require the use of armed force, it could also involve other
forms of inhumane mistreatment of the civilian population341.
337
International Criminal Tribunal for Rwanda. Judgment of: 1 December 2003. Case
No. ICTR-98-44A-T.
338
The Count 7 on Persecutions on political, racial and religious grounds as a Crime
Against Humanity was withdrawn by the Prosecution in its Closing brief (Corri-
gendum), 19 June 2003, paras. 138 and 139.
339
340
Musema, Judgment (TC), para. 205; Rutaganda, Judgment (TC), para. 70; Akayesu,
341
Semanza, Judgment (TC), para. 327 ; Musema, Judgment (TC), para.205; Rutaganda,
Judgment (TC), para. 70; Akayesu, Judgment (TC), para. 581.

The Attack Must be Widespread or Systematic

869. The French and the English language versions of the Statute, equally
authentic, do not say the same thing. The French language version has the
conjunctive “widespread and systematic”342 whilst the English language ver-
sion has the disjunctive “widespread or systematic.” The practice of the ICTR
and ICTY Tribunals has been to accept the English language version,343 in line
with customary international law344.
870. Trial Chamber III in Semanza held that: “The Chamber does not see
any reason to depart from the uniform practice of the two Tribunals.”345 This
Chamber also adopts this practice, and will use the English language version,
where the applicable standard is “widespread or systematic.”
Widespread
871. The term “Widespread,” as an element of the attack within the
meaning of Article 3 of the Statute, has been given slightly different meanings
within the various Trial Chamber Judgments of the Tribunal. However, all
can be said to refer to the scale of the attack, and sometimes the multiplic-
ity of victims346. The Chamber, following broadly the definition given in the
342
The relevant provision of the French text in Article 3 of the Statute reads “ générali-
sée et systématique ”.
343
Semanza, Judgment (TC), para. 328; Ntakirutimana and Ntakirutimana, Judgment
(TC), para. 804; Bagilishema, Judgment (TC), para. 77; Musema, Judgment (TC),
paras. 202-203; Rutaganda, Judgment (TC), para. 68; Kayishema and Ruzindana,
Judgment (TC), para. 123; Akayesu, Judgment (TC), para. 579. The same position
has been taken in the ICTY, however it must be emphasized that article 5 of ICTY
Statute does not contain the requirement that the crimes must be committed as
part of a widespread or systematic attack, which has been constructed in ICTY
jurisprudence in line with customary international law. Tadic, Judgment (TC),
paras. 646-648. See also Kunarac, Judgment (AC), para. 93; Tadic, Judgment (AC),
para. 248; Krnojelac, Judgment (TC), para. 55; Krstic, Judgment (TC), para. 480;
Kordic and Cerkez, Judgment (TC), para. 178; Blaskic, Judgment (TC), para. 202;
Kupreskic, Judgment (TC), para. 544; Jelisic, Judgment (TC), para. 53.
344
For a review of the International practice on this issue see: Tadic, Judgment (TC),
paras. 646-648.
345
346
Semanza, Judgment (TC), para. 329; Niyitegeka, Judgment (TC), para 439; Nta-
kirutimana and Ntakirutimana, Judgment (TC), para. 804; Bagilishema, Judgment
(TC), para. 33; Musema, Judgment (TC), para. 204, Rutaganda, Judgment (TC), para.
69; Kayishema and Ruzindana, Judgment (TC), para. 123; Akayesu, Judgment (TC),
para. 580.

PA R T I I
Niyitegeka347 and Ntakirutimana348 Judgments, adopts the test of “large scale,

involving many victims.”
Systematic
872. There has been some debate in the jurisprudence of this Tribunal
about whether or not the term systematic necessarily contains a notion of a
policy or a plan349. The Chamber finds that it does not, and adopts the same
position as Trial Chamber III in Semanza, where it endorsed the jurisprudence
of the Appeals Chamber of the ICTY in Kunarac, that whilst “the existence
of a policy or plan may be evidentially relevant, in that it may be useful in
establishing that the attack was directed against a civilian population and
that it was widespread and systematic, […] the existence of such a plan is not
a separate legal element of the crime”350. The Chamber finds that “System-
atic,” as an element of the attack within Article 3 of the Statute, describes the
organized nature of the attack. Demonstration of a pattern of conduct will
also carry evidential value in the Chamber’s final analysis.
The Attack Must be Directed Against any Civilian Population
873. Akayesu defined the civilian population as:
…people who are not taking any active part in the hostilities, including
members of the armed forces who laid down their arms and those persons
hors de combat by sickness, wounds, detention or any other cause. Where
there are certain individuals within the civilian population who do not come
within the definition of civilians, this does not deprive the population of its
civilian character351.
874. This definition has been consistently followed in the jurisprudence
of the Tribunal352. Bagilishema added:
It also follows that, as argued in Blaskic, “the specific situation of the vic-
tim at the moment the crimes were committed, rather than his status, must
be taken into account in determining his standing as a civilian”353.
347
Niyitegeka, Judgment (TC), para 439.
348
Ntakirutimana and Ntakiutimana, Judgment (TC), para. 804.
349
Semanza, Judgment, (TC), para. 329; Bagilishema, Judgment (TC), para. 77; Kay-
ishema and Ruzindana, Judgment (TC), para. 123-124.
350
Semanza, Judgment (TC), para. 329; referring to Kunarac, Judgment (AC), para. 98.
351
352
Rutaganda, Judgment (TC), para. 72; Musema, Judgment (TC), para. 207; Semanza,
353
Bagilishema, Judgment (TC), para. 79, referring to Blaskic, Judgment (TC), para.
214.

875. It was also noted in Bagilishema that the term “population” does
not require that the crimes against humanity be directed against the entire
population of a geographic territory or area354. Semanza further clarified that:
The victim(s) of the enumerated act need not necessarily share geographic
or other defining features with the civilian population that forms the primary
target of the underlying attack, but such characteristics may be used to dem-
onstrate that the enumerated act forms part of the attack.355…
The Attack Must be Committed on Discriminatory Grounds
877. Article 3 of the Statute provides that the attack against the civilian
population be committed on “national, political, ethnical, racial or religious
grounds.” This provision is jurisdictional in nature, limiting the jurisdiction of
the Tribunal to a narrower category of Crimes, and not intended to alter the
definition of Crimes Against Humanity in International Law. The distinction is
a fine one. The Appeals Chamber in the Akayesu Appeals clarified the position:
In the opinion of the Appeals Chamber, except in the case of persecution,
a discriminatory intent is not required by international humanitarian law as
a legal ingredient for all crimes against humanity. To that extent, the Appeals
Chamber endorses the general conclusion and review contained in Tadic, as
discussed above. However, though such is not a requirement for the crime per
se, all crimes against humanity, may, in actuality, be committed in the context
of a discriminatory attack against a civilian population. As held in Tadic: “[i]
t is true that in most cases, crimes against humanity are waged against civil-
ian populations which have been specifically targeted for national, political,
ethnic, racial or religious reasons.” It is within this context, and in light of the
nature of the events in Rwanda (where a civilian population was actually the
target of a discriminatory attack), that the Security Council decided to limit
the jurisdiction of the Tribunal over crimes against humanity solely to cases
where they were committed on discriminatory grounds. This is to say that
the Security Council intended thereby that the Tribunal should not prosecute
perpetrators of other possible crimes against humanity.
The Mental Element for Crimes Against Humanity
880. The clearest statement of the Mental Element of Crimes Against
Humanity so far is to be found in the Semanza Judgment:
354
Bagilishema, Judgment (TC), para. 80, following Tadic, Judgment (TC), para. 644.
355

PA R T I I
The accused must have acted with knowledge of the broader context
of the attack and knowledge that his act formed part of the attack on the
civilian population356.
881. The Chamber fully endorses this position.
Prosecutor v. Radislav Krstic357
***
216. The Prosecution challenges the Trial Chamber’s non-entry, as im-
permissibly cumulative, of Radislav Krstiс’s convictions for extermination
and persecution of the Bosnian Muslims of Srebrenica between 13 and 19
July 1995, and for murder and inhumane acts as crimes against humanity
committed against the Bosnian Muslim civilians in Potoсari between 10 and
13 July 1995. The Trial Chamber disallowed convictions for extermination
and persecution as impermissibly cumulative with Krstiс’s conviction for
genocide. It also concluded that the offences of murder and inhumane acts
as crimes against humanity are subsumed within the offence of persecution
where murder and inhumane acts form the underlying acts of the persecu-
tion conviction.
217. The Defence urges a dismissal of the Prosecution’s appeal because
the Prosecution does not seek an increase of the sentence in the event its
appeal is successful358. As the Appeals Chamber emphasised, however, the
import of cumulative convictions is not limited to their impact on the sen-
tence. Cumulative convictions impose additional stigma on the accused and
may imperil his eligibility for early release359. On the other hand, multiple
convictions, where permissible, serve to describe the full culpability of the
accused and to provide a complete picture of his criminal conduct360. The
Prosecution’s appeal is therefore admissible notwithstanding the fact that it
does not challenge the sentence….
356
Semanza, Judgment (TC), para. 332; Ntakirutimana and Ntakirutimana, Judgment
(TC), para. 803; Bagilishema, Judgment (TC), para. 94; Musema, Judgment (TC),
para. 206; Kayishema and Ruzindana, Judgment (TC), para.134.
357
Former Yugoslavia since 1991. Case No: IT-98-33-A. 19 April 2004.
358
Defence Response, para. 7.
359
See Kunarac et al. Appeal Judgement, para. 169; Muciс et al. Judgement on Sentence
Appeal, para. 25.
360
Kunarac et al. Appeal Judgement, para. 169.

219. The first vacated conviction that the Prosecution seeks to reinstate
is the conviction for extermination under Article 5 based on the killing of
the Bosnian Muslim men of Srebrenica361. The Trial Chamber held that this
conviction was impermissibly cumulative with Radislav Krstiс’s conviction
for genocide under Article 4, which was based on the same facts362. The Pros-
ecution argues that this decision rests on an erroneous premise, namely that
Article 5’s requirement for the enumerated crimes to be part of a widespread
or systematic attack against a civilian population is subsumed within the
statutory elements of genocide363.
220. This issue was confronted by the ICTR Appeals Chamber in Musema.
There, the Appeals Chamber arrived at a conclusion contrary to the one
reached by the Trial Chamber in this case. Echoing the Prosecution’s argu-
ment here, the ICTR Appeals Chamber permitted convictions for genocide
and extermination based on the same conduct because “[g]enocide requires
proof of an intent to destroy, in whole or in part, a national, ethnical, racial
or religious group, [which] is not required by extermination,” while “[e]
xtermination as a crime against humanity requires proof that the crime was
committed as a part of a widespread or systematic attack against a civilian
population, which proof is not required in the case of genocide.”364
221. The Trial Chamber in this case concluded that the requirement of
a widespread and systematic attack against a civilian population was sub-
sumed within the genocide requirement that there be an intent to destroy, in
whole or in part, a national, ethnical, racial or religious group.365 In the Trial
Chamber’s opinion, in order to satisfy this intent requirement, a perpetrator
of genocide must commit the prohibited acts “in the context of a manifest
pattern of similar conduct,” or those acts must “themselves constitute a con-
duct that could in itself effect the destruction of the group, in whole or part,
as such.”366 Because this requirement excluded “random or isolated acts,” the
Trial Chamber concluded that it duplicated the requirement of Article 5 that
a crime against humanity, such as extermination, form a part of a widespread
or systematic attack against a civilian population367….
361
Prosecution Appeal Brief, paras. 1.6, 3.38.
362
Trial Judgement, paras. 682, 685 - 686.
363
Prosecution Appeal Brief, para. 3.34.
364
Musema Appeal Judgement, para. 366. At the Appeal hearing, the Defence conceded
that, under the reasoning of Musema, convictions for extermination and genocide
are not impermissibly cumulative. See AT, p. 281.
365
Trial Judgement, para. 682.
366
Ibid.
367
Ibid.

PA R T I I
223. The offence of extermination as a crime against humanity requires

proof that the proscribed act formed a part of a widespread or systematic
attack on the civilian population, and that the perpetrator knew of this re-
lationship368. These two requirements are not present in the legal elements
of genocide. While a perpetrator’s knowing participation in an organized
or extensive attack on civilians may support a finding of genocidal intent,
it remains only the evidentiary basis from which the fact-finder may draw
this inference. The offence of genocide, as defined in the Statute and in
international customary law, does not require proof that the perpetrator of
genocide participated in a widespread and systematic attack against civilian
population369….
225. The Trial Chamber also concluded that the definitions of intent for
extermination and genocide “both require that the killings be part of an ex-
tensive plan to kill a substantial part of a civilian population.”370 The Appeals
Chamber has explained, however, that “the existence of a plan or policy is
not a legal ingredient of the crime” of genocide.371 While the existence of
such a plan may help to establish that the accused possessed the requisite
genocidal intent, it remains only evidence supporting the inference of intent,
and does not become a legal ingredient of the offence372. Similarly, the Ap-
peals Chamber has rejected the argument that the legal elements of crimes
against humanity (which include extermination) require a proof of the ex-
istence of a plan or policy to commit these crimes373. The presence of such
a plan or policy may be important evidence that the attack against a civilian
population was widespread or systematic, but it is not a legal element of a
crime against humanity. As neither extermination nor genocide requires the
proof of a plan or policy to carry out the underlying act, this factor cannot
support the Trial Chamber’s conclusion that the offence of extermination is
subsumed in genocide.
368
Tadiс Appeal Judgement, para. 248; see also Kunarac et al. Appeal Judgement, paras.
85, 96, 102.
369
See, e.g., 1 The Rome Statute of the International Criminal Court: A Commentary
(Antonio Cassese, Paola Gaeta, John R.W.D. Jones, eds, 2002), at p. 340 (under
customary international law, “it is only for crimes against humanity [and not for
genocide] that knowledge of the widespread or systematic practice is required”).
370
Trial Judgement, para. 685.
371
Jelisiс Appeal Judgement, para. 48.
372
See ibid.
373
Kunarac et al. Appeal Judgement, para. 98

Prosecutor v. Tadic374
***
271. The Trial Chamber correctly recognised that crimes which are unre-
lated to widespread or systematic attacks on a civilian population should not
be prosecuted as crimes against humanity. Crimes against humanity are crimes
of a special nature to which a greater degree of moral turpitude attaches than
to an ordinary crime. Thus to convict an accused of crimes against human-
ity, it must be proved that the crimes were related to the attack on a civilian
population (occurring during an armed conflict) and that the accused knew
that his crimes were so related….
285. As rightly submitted by the Prosecution, the interpretation of Article
5 in the light of its object and purpose bears out the above propositions. The
aim of those drafting the Statute was to make all crimes against humanity
punishable, including those which, while fulfilling all the conditions required
by the notion of such crimes, may not have been perpetrated on political,
racial or religious grounds as specified in paragraph (h) of Article 5. In light
of the humanitarian goals of the framers of the Statute, one fails to see why
they should have seriously restricted the class of offences coming within the
purview of “crimes against humanity,” thus leaving outside this class all the
possible instances of serious and widespread or systematic crimes against ci-
vilians on account only of their lacking a discriminatory intent. For example,
a discriminatory intent requirement would prevent the penalization of ran-
dom and indiscriminate violence intended to spread terror among a civilian
population as a crime against humanity. A fortiori, the object and purpose of
Article 5 would be thwarted were it to be suggested that the discriminatory
grounds required are limited to the five grounds put forth by the Secretary-
General in his Report and taken up (with the addition, in one case, of the
further ground of gender) in the statements made in the Security Council
by three of its members.347 Such an interpretation of Article 5 would create
significant lacunae by failing to protect victim groups not covered by the listed
discriminatory grounds. The experience of Nazi Germany demonstrated that
crimes against humanity may be committed on discriminatory grounds other
than those enumerated in Article 5 (h), such as physical or mental disability,
age or infirmity, or sexual preference. Similarly, the extermination of “class
enemies” in the Soviet Union during the 1930s (admittedly, as in the case of
Nazi conduct before the Second World War, an occurrence that took place
374
Former Yugoslavia since 1991, Case No. IT-94-1-A. Date: 15 July 1999.

PA R T I I
in times of peace, not in times of armed conflict) and the deportation of the
urban educated of Cambodia under the Khmer Rouge between 1975-1979,
provide other instances which would not fall under the ambit of crimes
against humanity based on the strict enumeration of discriminatory grounds
suggested by the Secretary-General in his Report….
292. This warrants the conclusion that customary international law, as
it results from the gradual development of international instruments and
national case-law into general rules, does not presuppose a discriminatory
or persecutory intent for all crimes against humanity….
305. The Prosecution was correct in submitting that the Trial Chamber
erred in finding that all crimes against humanity require a discriminatory
intent. Such an intent is an indispensable legal ingredient of the offence only
with regard to those crimes for which this is expressly required, that is, for
Article 5 (h), concerning various types of persecution.
War Crimes
Trial of General Tomoyuki Yamashita375
The crimes alleged to have been permitted by the accused in violation of
the laws of war may be grouped into three categories:
(1) Starvation, execution or massacre without trial and
maladministration generally of civilian internees and prisoners
of war;
(2) Torture, rape, murder and mass execution of very large
numbers of residents of the Philippines, including women
and children and members of religious orders, by starvation,
beheading, bayoneting, clubbing, hanging, burning alive, and
destruction by explosives;
(3) Burning and demolition without adequate military
necessity of large numbers of homes, places of business, places
of religious worship, hospitals, public buildings, and educational
institutions. In point of time, the offences extended throughout
the period the accused was in command of Japanese troops in
the Philippines. In point of area, the crimes extended throughout
375
US Military Commission, Case No. 21. Manila. (8th October – 7th December, 1945),
and U.S. Supreme Court of the (Judgments delivered on 4th February, 1946) at 8, 14.

the Philippine Archipelago, although by far the most of the

incredible acts occurred on Luzon.
This accused is an officer of long years of experience, broad in its scope,
who has had extensive command and staff duty in the Imperial Japanese Army
in peace as well as war in Asia, Malaya, Europe, and the Japanese Home Islands.
Clearly, assignment to command military troops is accompanied by broad
authority and heavy responsibility. This has been true in all armies throughout
recorded history. It is absurd, however, to consider a commander a murderer
or rapist because one of his soldiers commits a murder or a rape. Neverthe-
less, where murder and rape and vicious, revengeful actions are widespread
offences, and there is no effective attempt by a commander to discover and
control the criminal acts, such a commander may be held responsible, even
criminally liable, for the lawless acts of his troops, depending upon their
nature and the circumstances surrounding them. Should a commander issue
orders which lead directly to lawless acts, the criminal responsibility is definite
and has always been so understood. The Rules of Land Warfare, Field Manual
27-10, United States Army, are clear on these points. It is for the purpose of
maintaining discipline and control, among other reasons, that military com-
manders are given broad powers of administering military justice. The tactical
situation, the character, training and capacity of staff officers and subordinate
commanders as well as the traits of character, and training of his troops are
other important factors in such cases. These matters have been the principal
considerations of the Commission during its deliberations.”
The Commission concludes : (1) That a series of atrocities and other high
crimes have been committed by members of the Japanese armed forces under
your command against people of the United States, their allies and dependen-
cies throughout the Philippine Islands; that they were not sporadic in nature
but in many cases were methodically supervised by Japanese officers and non-
commissioned officers; (2) That during the period in question you failed to
provide effective control of your troops as was required by the circumstances.
The German High Command Trial376

Count I - Crimes against Peace
1. All of the defendants, with divers other persons, including the co-
participants listed in Appendix A, during a period of years preceding 8th
May, 1945, committed Crimes against Peace as defined in Article II of Control
376
Trial of Wilhelm Von Leeb and thirteen others. US Military Tribunal, Case NO. 72,
Nuremberg, 30th December, 1947 – 28th October, 1948.

PA R T I I
Council Law No. 10, in that they participated in the initiation of invasions of
other countries and wars of aggression in violation of international laws and
treaties, including but not limited to the planning, preparation, initiation, and
waging of wars of aggression, and wars in violation of international treaties,
agreements and assurances.
2. The defendants held high military positions in Germany and committed
Crimes against Peace in that they were principals in, accessories to, ordered,
abetted, took a consenting part in, were connected with plans and enterprises
involving, and were members of organizations and groups connected with,
the commission of Crimes against Peace….
Count II-War Crimes and Crimes against Humanity: Crimes against Enemy
Belligerents and Prisoners of War
45. Between September, 1939, and May, 1945, all of the defendants herein,
with divers other persons including the co-participants listed in Appendix A,
committed War Crimes and Crimes against Humanity, as defined in Article II
of Control Council Law No. 10, in that they participated in the commission
of atrocities and offences against prisoners of war and members of armed
forces of nations then at war with the Third Reich or under the belligerent
control of or military occupation by Germany, including but not limited to
murder, ill-treatment, denial of status and rights, refusal of quarter, employ-
ment under inhumane conditions and at prohibited labour of prisoners of
war and members of military forces, and other inhumane acts and violations
of the laws and customs of war. The defendants committed War Crimes
and Crimes against Humanity in that they were principals in, accessories to,
ordered, abetted, took a consenting part in, were connected with plans and
enterprises involving, and were members of organizations and groups con-
nected with, the commission of War Crimes and Crimes against Humanity.
46. Unlawful orders initiated, drafted, distributed and executed by the de-
fendants directed that certain enemy troops be refused quarter and be denied
the status and rights of prisoners of war, and that certain captured members
of the military forces of nations at war with Germany be summarily executed.
Such orders further directed that certain members of enemy armed forces be
designated and treated by troops of the German armed forces, subordinate
to the defendants, either as ‘ partisans, communists, bandits, terrorists ‘ or by
other terms denying them the status and rights of prisoners of war. Prison-
ers of war were compelled to work in war operations and in work having a
direct relation to war operations, including the manufacture, transport and
loading of arms and munitions, and the building of fortifications. This work
was ordered within the combat zone as well as in rear areas. Pursuant to a

‘total war’ theory and as part of a programme to exploit all non-German

peoples, prisoners of war were denied rights to which they were entitled
under conventions and the laws and customs of war. Soldiers were branded,
denied adequate food, shelter, clothing and care, subjected to all types of
cruelties and unlawful reprisals, tortured and murdered. Special screening
and extermination units, such as Einsatz Groups of the Security Police and
Sicherheitsdienst (commonly known as the ‘SD’), operating with the support
and under the jurisdiction of the Wehrmacht, selected and killed prisoners of
war for religious, political and racial reasons. Many recaptured prisoners were
ordered executed. The crimes described in paragraphs 45 and 46 included,
but were not limited to, those set forth hereafter in this Count….
Count III-War Crimes and Crimes against Humanity: Crimes against Civil-
ians
59. Between September, 1939, and May, 1945, all of the defendants herein,
with divers other persons including the co-participants listed in Appendix
A, committed War Crimes and Crimes against Humanity as defined in Article
II of Control Council Law No. 10, in that they participated in atrocities and
offences, including murder, extermination, ill-treatment, torture, conscrip-
tion to forced labour, deportation to slave labour or for other purposes,
imprisonment without cause, killing of hostages, persecutions on political,
racial and religious grounds, plunder of public and private property, wanton
destruction of cities, towns and villages, devastation not justified by military
necessity, and other inhumane and criminal acts against German nationals
and members of the civilian populations of countries and territories under
the belligerent occupation of, or otherwise controlled by Germany. The de-
fendants committed War Crimes and Crimes against Humanity, in that they
were principals in, accessories to, ordered, abetted, took a consenting part
in, were connected with plans and enterprises involving, and were members
of organizations and groups which were connected with, the commission of
War Crimes and Crimes against Humanity.

PA R T I I
CHAPTER 5
INTERNATIONAL ENVIRONMENTAL LAW
Historical Overview 377
Although the Charter of the United Nations does not specifically mention
the environment or sustainable development, the Preamble to the Charter
states that the United Nations is determined “to promote social progress and
better standards of life in larger freedom,” while Chapter 1 declares that one
of the basic purposes of the United Nations is “to achieve international co-
operation in solving international problems of an economic, social, cultural
or humanitarian character, and in promoting and encouraging respect for
human rights and for fundamental freedoms for all without distinction as to
race, sex, language or religion.”
The United Nations first considered environmental issues at the 45th ses-
sion of the Economic and Social Council (ECOSOC), when in resolution 1346
(XLV) of 30 July 1968 it recommended that the General Assembly consider con-
vening a United Nations conference on “problems of the human environment.”
At its 23rd session the General Assembly adopted resolution 2398 (XXIII)
of 3 December 1968 convening a United Nations Conference on the Hu-
man Environment noting the “continuing and accelerating impairment of
the quality of the human environment” and its “consequent effects on the
condition of man, his physical, mental and social well-being, his dignity and
his enjoyment of basic human rights, in developing as well as developed
countries,” thus relating the Charter to emerging environmental issues. The
resolution also recognized that “the relationship between man and his envi-
ronment is undergoing profound changes in the wake of modern scientific
and technological developments.”
The United Nations Conference on the Human Environment took place
in Stockholm from 5 to 16 June 1972 and led to the establishment of the
377
U.N. Commission on Sustainable Development, http://www.uncsd2012.org/rio20/
index.php?menu=17.

CHAPTER 5 INTERNATIONAL ENVIRONMENTAL LAW
United Nations Environment Programme (UNEP, the lead programme within

the UN working on environmental issues.
In 1983 the General Assembly by resolution 38/161 of 19 December 1983
welcomed the establishment of a special commission to report on “environ-
ment and the global problematique to the year 2000 and beyond.” In 1987
the World Commission on Environment and Development (WCED) submitted
its report (also known as the “Brundtland report”) to the General Assembly.
The report, based on a four-year study, developed the theme of sustainable
development, the type of development that “meets the needs of the present
generation without compromising the ability of future generations to meet
their own needs.”
Pursuant to the report of the World Commission, the General Assembly
adopted resolution 44/228 of 20 December 1988, convening the United Na-
tions Conference on Environment and Development (also known as the “Rio
Conference” or the “Earth Summit”) to “elaborate strategies and measures to
halt and reverse the effects of environmental degradation.” The resolution
listed nine areas “of major concern in maintaining the quality of the Earth’s
environment and especially in achieving environmentally sound and sustain-
able development in all countries.”
The United Nations Conference on Environment and Development
(UNCED), which took place in Rio de Janeiro from 3 to 14 June 1992, led
to the establishment of the Commission on Sustainable Development. At
the Conference three major agreements were adopted: Agenda 21 a global
plan of action to promote sustainable development; the Rio Declaration on
Environment and Development, a series of principles defining the rights
and responsibilities of States and the Statement of Forest Principles, a set of
principles to underpin the sustainable management of forests worldwide.
In addition, two legally binding instruments were opened for signature: the
United Nations Framework Convention on Climate Change and the Con-
vention on Biological Diversity. The Earth Summit called for several major
initiatives in other key areas of sustainable development, such as, a global
conference on Small Island Developing States; negotiations began for a Con-
vention to Combat Desertification and for an agreement on highly migratory
and straddling fish stocks.…
During its 55th session the General Assembly adopted resolution 55/199
of 20 December 2000, convening the World Summit on Sustainable Devel-
opment (WSSD) (also known as “Rio + 10”), a ten-year review of progress
achieved since 1992 in the implementation of Agenda 21. The World Summit
was held in Johannesburg from 26 August to 4 September 2002 and its report

PA R T I I
(A/Conf.199/20 + Corr.1) includes a Political Declaration, in which Member

States assumed “a collective responsibility to advance and strengthen the
interdependent and mutually reinforcing pillars of sustainable development,
economic development, social development and environmental protection at
the local, national, regional and global levels” and a Plan of Implementation,
in which Member States committed themselves “to undertaking concrete ac-
tions and measures at all levels and to enhancing international cooperation.”
(See, U.N. Library, http://www.un.org/Depts/dhl/resguide/specenv.htm#intro).
The United Nations Conference on Sustainable Development (UNCSD)
is being organized in pursuance of General Assembly Resolution 64/236 (A/
RES/64/236). The Conference will take place in Brazil on 4-6 June 2012
to mark the 20th anniversary of the 1992 United Nations Conference on
Environment and Development (UNCED), in Rio de Janeiro, and the 10th
anniversary of the 2002 World Summit on Sustainable Development (WSSD)
in Johannesburg. It is envisaged as a Conference at the highest possible level,
including Heads of State and Government or other representatives. The
Conference will result in a focused political document. The objective of the
Conference is to secure renewed political commitment for sustainable devel-
opment, assess the progress to date and the remaining gaps in the implemen-
tation of the outcomes of the major summits on sustainable development,
and address new and emerging challenges. The Conference will focus on
two themes: (a) a green economy in the context of sustainable development
and poverty eradication; and (b) the institutional framework for sustainable
development. (See, UN Commission on Sustainable Development, RIO+20
site at: http://www.uncsd2012.org/rio20/index.html).
Principles of International Environment and Sustainable

Development Law378
International Environmental Law
International environmental law is distinct from, but related to sustain-
able development law. The goal of international environmental law, broadly
stated, is protection of the environment. Many multilateral environmental
agreements (MEAs) have two objectives. They focus both on conservation
and protection of the environment, and also on a second (less studied) ob-
378
Marie-Claire Cordonier Segger and Ashfaq Khalfan, Sustainable Development
Law: Principles, Practices, and Prospects, pp. 78-84 and 99-106 (Oxford: Oxford
University Press, 2004), reprinted with permission from the authors and Oxford
University Press.

jective related to “sustainable use” or “sustained economic growth”379. This

section will focus on the first “environmental preservation, conservation and
protection” objectives of these treaties, as well as the principles and regimes
that surround them. Together, these form the existing body of international
law for the protection of the environment.380
The framework of international environmental law is based on several
key principles, implemented through MEAs and national regulatory instru-
ments, and coordinated through a system of international environmental
governance (IEG). This section briefly mentions certain key judgments and
principles, identifies certain “clusters” of significant international treaties in
this field, surveys relevant national environmental management techniques,
and summarizes recent efforts to strengthen and enhance international en-
vironmental institutions.
Environmental law is a relatively new field. However, certain precepts
date from over a century ago. One of the first recorded international legal
processes relating to the conservation of the environment was the Pacific
Fur Seal Arbitration of 1893, when a dispute arose between the United States
and the United Kingdom regarding the right of the United Kingdom to
hunt migratory fur seals on the high seas, just outside the three-mile limit
379
As discussed above, sustainable development law focuses on integration of envi-
ronmental, social and economic norms for development that can last. According
to both the 1992 Rio Declaration, and the 1987 Brundtland Report, sustainable
development centres on human beings and their communities, seeking to satisfy
the needs of present generations, without compromising the ability of future gen-
erations to meet their own needs. Sustainable development law involves poverty
eradication, social cohesion, sustained use of natural and other resources, and
equitable sharing of benefits. It is about empowering human beings and their
communities to improve their quality of life, though in order to be sustainable,
this must be done in a way that respects environmental limits. Environmental law,
in contrast, focuses on preservation, conservation and protection of the environ-
ment. It involves the needs of all species and natural systems, which it values for
their intrinsic worth. Both are valuable and essential areas of international law with
significant overlaps and intersections, but they should not be artificially conflated.
See M. C Cordonier Segger, “Significant Developments in Sustainable Development
Law and Governance: A Proposal” (2004) United Nations Natural Resources Forum
283. See also M.-C Cordonier Segger and CG. Weeramantry, eds., Sustainable Justice
(Leiden: Martima Nijhoff, 2004).
380
For further resources, see D. Hunter, J. Sommer and S. Vaughan, Concepts and
Principles of International Law (Nairobi: UNEP, 1998). See also N. de Sadeleer,
Environmental Principals – From Political Slogans to Legal Rules (Oxford: Oxford
University Press, 2002).

PA R T I I
of US territorial waters.381 The USA argued that it held rights of property

and protection in the seals, and consequently the right to take conservation
measures extraterritorially as trustees “for the benefit of mankind.” The US
position was overwhelmingly rejected by the arbitral tribunal in favour of UK
arguments on freedom of fishing on the high seas.382 However, the tribunal
also “adopted regulations for the protection and preservation of fur seals,”
effectively establishing a 60-mik radius safe haven for the seals.383 In another
leading case, the 1938 Trail Smelter Arbitration between the United States
and Canada, sulphur dioxide fumes from a smelter in British Columbia were
found to be damaging agricultural and timberland in the State of Washington.
The tribunal resolved the dispute by setting a strict limit on the permissible
output of sulphur dioxide from the smelter, and held that under the principles
of international law, as well as rill’ law of the United States, no State has the
right to use or permit the use of its territory in such a manner as to cause
injury in or to the territory of another or the properties of persons therein,
when the case is of serious consequence and the injury is established by clear
and convincing evidence.384 Such cases illustrate the central tenets of inter-
national environmental law: trans-boundary preservation and protection of
the environment.385
Principles of International Environmental Law
The principles of international environmental law have gained increasing
recognition over the past decades; while some are still considered influential
“soft law,” others are increasingly emerging as “norms of customary interna-
tional environmental law.” Principles of environmental law have also been
“codified” in key MEAs, which as treaties, are binding upon their state Parties
in international law.
A widely accepted principle of international environmental law is that
States are required to ensure that activities within their jurisdiction or control
do not damage the environment of other States or areas beyond national
jurisdiction.386 The duty not to allow damage is often written to require States
381
1 Moore’s Int’l Arb. Awards 755.
382
See A. Cassese, International Law (Oxford: Oxford University Press, 2001) 376.
383
Ibid.
384
Trail Smelter Arbitration (United States v Canada), 3 R. Int’l Arb. Awards 1911
(1938), reprinted in 33 AJIL 182 (1939), 3 R. Int’l Arb. Awards 19938 (1941), re-
printed in 35 AJIL 684 (1941) (further note omitted).
385
See further X. Hanqin, Transboundary Damage in International Law (Cambridge:
Cambridge University Press, 2003).
386
As provided in Principle 21 of the Stockholm Declaration on the Human Envi-

to take all “practicable” steps to avoid or prevent harm.387 The reliance on a

standard of “practicable” steps suggests that the duty to prevent harm may not
be absolute, but requires at least that States diligently and in good faith make
all reasonable efforts to avoid such environmental damage. This principle has
been accepted in many treaties, and as an international customary norm by the
International Court of Justice and other tribunals.388 It is related to respect for
the jurisdiction of other states that is embodied in the concept of sovereignty.389
A second, related principle involves the duty to prevent pollution, which
can be considered a specific articulation of the general duty to avoid en-
vironmental damage. Avoiding or reducing pollution is almost always less
expensive than attempting to restore a contaminated area, especially since it
can be impossible to remedy certain types of environmental damage.390 The
International Court of Justice has recognized this principle, specifically as it
relates to environmental protection….391
ronment, UN Doc. Ale. 48/14 (1972), 11 ILM 1461 (1972) (and, more recently,
Principle 2 of the Rio Declaration, supra note 5), “States have, in accordance with
the Charter of the United Nations and the principles of international law,... the
responsibility to ensure that activities within their jurisdiction or control do not
cause damage to the environment of other States or of areas beyond the limits of
national jurisdiction. For further analysis and critical commentary, see M. Bow-
man and A. Boyle, Environmental Damage in International and Comparative Law
-Problems of Definition and Valuation (Oxford: Oxford University Press, 2002).
387
See, e.g., the 1991 Convention on Environmental Impact Assessment in a Trans-
boundary Content (25 Feb. 1991) 30 ILM 800, 803 at Art. 21(1), or the 1989 Basel
Convention on the Control of Transboundary Movements of Hazardous Wastes and
Their Disposal (Basel Convention) (opened for signature 22 March 1989, entered
into force 5 May 1992) (1989) 28 ILM 649 at Art. 2(8).
388
Advisory Opinion on the Legality of the Use by a State of Nuclear Weapons in Armed
Conflict, Advisory Opinion, [1996] I.C.J. Rep. 226. See also the United Nations Con-
vention on the Law of the Sea, 10 December 1982, UN Doc. AlCONF.62/122; 21
ILM 1245 (entered into force 16 November 1994) at Pan XII and the IUCN, Draft
International Covenant on Environment and Development (Gland, Switzerland:
IUCN, 1995) at Article 11. See also the 1985 ASEAN Agreement on the Conserva-
tion of Nature and Natural Resources (9 July 1985, Kuala Lumpur) at Art. 20.
389
See F. Perrez, “The Relationship Between Permanent Sovereignty and the Obligation
Not to Cause Transboundary Environmental Damage” (1996) 26 Environmental
Law 1187. See also F. Perrez, Cooperative Sovereignty: From Independence to
Interdependence in International Environ• mental Law (London: Kluwer Law
International, 2000).
390
N. de Sadeleer, Environmental Principles -From Political Slogans to Legal Rules
(Oxford: Oxford University Press, 2002).
391
Case Concerning Gabcikovo-Nagymaros [Project (Hungary v Slovakia), para. 140,

PA R T I I
A third principle is that of “common heritage” of humankind. Areas be-

yond the limits of national jurisdiction -the high seas, the sea-bed, Antarctica,
outer space, and possibly the outer atmosphere (such as the ozone layer) are
part of the, environment and frequently referred to as the “global commons.”
Several important preservation-focused treaties have been negotiated in or-
der to recognise, preserve and manage an area beyond sovereign control of
any State, as “common heritage”392 of humanity. The principle implies that
States will avoid appropriating such heritage, that it will be internationally
managed and its benefits will he shared by humanity, and that it will be used
only for peaceful purposes.393
A fourth principle of international environmental law is a general obliga-
tion on States to cooperate in identifying, investigating and avoiding trans-
boundary environmental harms. The duty to cooperate is a general principle
of international law as recognized in Article 1.3 of the Charter of the United
Nations, and the 1970 United Nations Declaration on Principles of Interna-
tional Law.394 When used in environmental law, this general obligation can
lead to specific duties relating, for example, to the exchange of information,
the need to notify and consult with potentially affected States, and the re-
quirement to coordinate international scientific research. It may also, in cer-
tain circumstances, incur an obligation to conduct an environmental impact
assessment if a project seems likely to result in transboundary effects.395 It is
I.C.J. Reports 7 (1997)] (note omitted).

392
This principle is recognized in the UNESCO 1972 Convention Concerning the
Protection of World Cultural and Natural Heritage 11 ILM 1358 at the Preamble,
and also in the Treaty on Principles Governing the Activities of States in the
Exploration and Use of Outer Space, Including the Moon and Other Celestial
Bodies (27 Jan. 1967) 610 UNTS 205 (1967); and in the Agreement Concerning
the Activities of States On the Moon and Other Celestial Bodies (5 Dec. 1979), at
Art. l. It was also recognized in the 1982 United Nations Convention on the Law
of the Sea, 10 December 1982, UN Doc. NCONE62J122; 21 ILM 1245 (entered
into force 16 November 1994) at Arrick, 136, 137 and 140, on the deep-sea bed,
though it was later removed to convince the USA to join the Convention. It was
also recognised in the 1959 Antarctic Treaty (1 December 1959) 402 UNT~ 71,
and its 1991 Protocol on Environmental Protect/on XI ATSCMl2 (21 June 1991).
393
D, Hunter, J, Salzman & D. Zaelke, International Environmental Law and Policy
(New York: Foundation Press 2003).
394
United Nations Declaration of Principles on International Law Concerning Friendly
Relations and Cooperation Among States in Accordance with the Charter of the
United Nations (24 Oct. 1970) 9 ILM 1292.
395
See UNEP, Goals and Principles of Environmental Impact Assessment (Nairobi:
UNEP, 1987). See also IBRD, International Bank for Reconstruction and Develop-

at the core of many international treaties on environmental matters, and it

has been recognized by the International Court of Justice in leading cases.396
A fifth principle, precaution, can apply both in general environmental law,
and also in the law relating to specific sustainable development law issues such
as health, sustainable use of biodiversity and natural resources. This is a key
principle of international environmental law, as it is central to the prevention
of environmental damage.397 The precautionary principle underlies a number
of international legal instruments. It also applies in a variety of contexts from
protecting endangered species to preventing pollution. The precautionary
principle evolved from the growing recognition that scientific certainty of-
ten comes too late to design effective legal and policy responses to potential
environmental threats. In essence, it switches the burden of proof necessary
for triggering policy responses. The far-reaching implications of the precau-
tionary principle for sustainable development are considered more fully in
Part III, The Principles, which also discusses its status in international law.
The “polluter pays principle” is also widely recognized. This principle
implies that the polluter should bear the expenses of carrying out pollution
prevention measures or paying for damage caused by pollution.398 Instituting
ment Operational Policy 4.01 (Washington: IBRD, 1999) at 15-16, which requires
public consultations and disclosure of any adverse effects, as a pre-condition to
the granting of international loans for development projects.
396
This principle is found with related concepts, in Principle 27 and Principle 19 of
the 1992 Rio Declaration. It is embodied in the Convention on the Protection of
the Environment Between Demark, Finland, Norway and Sweden (19 Feb 1974)
13 ILM 591, and recognized by the Inter• national Court of Justice in both the
Lac Lanoux Arbitration (France v. Spain) [1957] 24 ILR 101 & the Gabcikovo-
Nagymaros Case, supra note 3.
397
As set forth in the Rio Declaration, supra note 5 at Principle 15, the precautionary
principle states that: “Where there are threats of serious or irreversible damage, lack
of full scientific certainty shall not be used as a reason for postponing cost effec-
tive measures to prevent environmental degradation.” See A. Trouwborst, Evolu-
tion and Status of the Precautionary Principle in Inter• national Law (The Hague:
Kluwer Law International, 2002). And see T. O’Riordan, A. Jordan & J. Cameron,
eds., Reinterpreting the Precautionary Principle (London: Cameron May, 2001).
398
Originally recommended by the OF.CD Council in May 1972, the polluter pays prin-
ciple has been increasingly accepted as an international environmental principle.
It has been explicitly adopted in several bilateral and multilateral resolutions and
declarations, including Principle 16 of the Rio Declaration, supra note 5, which
provides: “National authorities should endeavour to promote the internalisation
of environmental costs and the use of economic instruments, taking into account
the approach that the polluter should, in principle, bear the cost of pollution, with

PA R T I I
the polluter pays principle ensures that the prices of goods reflect the costs
of producing that good, including costs associated with pollution, resource
degradation, and environmental harm. Environmental costs are reflected (or
“internalized”) in the price of every good. The result is that goods that pollute
less will cost less, and consumers may switch to less polluting substitutes. This
will result in a more efficient use of resources and less pollution.
It is doubtful that these principles have all been accepted as international
customary law, and neither is this brief survey intended to be viewed as an
exhaustive list. For example, the principle of common but differentiated re-
sponsibility, which will be discussed below, has been proposed as a principle
of international environmental law,399 as have principles related to subsidiarity,
access to environmental information, public participation in environmental
decision-making, and a duty to assess environmental impacts.400 Some au-
thors perceive sustainable development itself as a principle of international
environmental law,401 though this is not the approach adopted in this book.
The issue of whether there is a broad principle of State responsibility and
liability for environmental harm remains contested. A distinction continues
to emerge in international environmental law between international “re-
sponsibility” and international “liability”: the former arises from unlawful
acts, the latter can arise from the consequences of otherwise lawful acts
(although it is still used at times with reference to unlawful acts).402 There
is a concern that imposing liability for acts not prohibited by international
law irrespective of fault or the lawfulness of the activity will emphasize the
due regard to the public interest and without distorting international trade and
investment.”
399
See, e.g., P. Sands, Principles of International Environmental Law 2nd ed (Cambridge:
Cambridge University Press, 2003 at 285.
400
D. Hunter, J., Salzman & D. Zaelke, International Environmental Law and Policy
(New York: Foundation Press 2003) at 379-438.
401
See, P. Sands, Principles of International Environmental Law 2nd ed (Cambridge:
Cambridge University Press, 2003) at 252. But see V. Lowe, “Sustainable Develop-
ment and Unsustainable Arguments” in International Law and Sustainable Devel-
opment: Past Achievements and Future Challenges, A. Boyle and D. Freestone, eds.
(Oxford: Oxford University Press, 1999) at 19-37. [Other citations omitted].
402
Under the rubric of State responsibility, the recent Articles on State Responsibility,
adopted by the International Law Commission, establish that the obligation to
make reparations is premised on “injury” or “damage,” but there is no requirement
that an international dispute be premised on the fact of harm, This is particularly
evident in the analysis of damage in], Crawford, The International Law Com-
mission’s Articles on State Responsibility -Introduction, Texts & Commentaries
(Cambridge: Cambridge University Press, 2002) 29-31.

harm, rather than the conduct. Traditional principles of State responsibility

can merge with the concept of State liability, particularly in instances such
as ultra-hazardous activities where States must meet such a strict standard of
care that for all practical purposes they will be “responsible” for any activity
leading to harm.403 In any case, liability for pollution-related injuries is also
addressed, albeit generally, in many treaties….
New Delhi Declaration of Principles of International Law

Relating to Sustainable Development
The Duty of States to Ensure Sustainable Use of Natural Resources
It is a well-established principle that, in accordance with international
law, all States have the sovereign right to manage their own natural resources
pursuant to their own environmental and developmental policies, and the
responsibility to ensure that activities within their jurisdiction or control do
not cause significant damage to the environment of other States or of areas
beyond the limits of national jurisdiction.
States are under a duty to manage natural resources, including natural resources
solely within their own territory or jurisdiction, in a rational, sustainable and safe
way so as to contribute to the development of their peoples, with particular regard
for the rights of indigenous peoples, and to the conservation and sustainable use
of natural resources and the protection of the environment, including ecosystems.
States must take into account the needs of future generations in determining the
rate of use of natural resources. All relevant actors (including States, industrial con-
cerns and other components of civil society) are under a duty to avoid wasteful
use of natural resources and promote waste minimization policies.
The protection, preservation and enhancement of the natural environ-
403
The new Articles are highly relevant to cases of environmental harm attributable
to a State, In particular where the obligations breached are peremptory norms of
international law (such as the prohibition on “massive pollution” of the atmosphere
and seas) or obligations owed to the international community as a whole (such as an
obligation aimed at protection of the marine environment, the obligation to refrain
from massive pollution of the sea and atmosphere, or even a general obligation of
States to ensure that activities within their jurisdiction and control respect the envi-
ronment of other States (and of areas beyond national control), recognized by the
I.C.J. in the Nuclear Weapons case and reiterated in the Gabcikovo-Nagymaros case),
See L Brownlie, Principles of Public. International Law (New York: Oxford University
Press, 1998) 288 [hereinafter Brownlie; (Gabcikovo-Nagymaros decision, para, 53;
Advisory Opinion on the Legality of the Use by a State of Nuclear Weapons in Armed
Conflict.

PA R T I I
ment, particularly the proper management of climate system, biological diver-

sity and fauna and flora of the Earth, are the common concern of humankind.
The resources of outer space and celestial bodies and of the sea-bed, ocean
floor and subsoil thereof beyond the limits of national jurisdiction are the
common heritage of humankind.
The principle of equity and the eradication of poverty
The principle of equity is central to the attainment of sustainable develop-
ment. It refers to both inter-generational equity (the rights of future genera-
tions to enjoy a fair level of the common patrimony) and intra-generational
equity (the rights of all peoples within the current generation of fair access
to the current generation’s entitlement to the Earth’s natural resources).
The present generation has a right to use and enjoy the resources of the
Earth but is under an obligation to take into account the long-term impact
of its activities and to sustain the resource base and the global environment
for the benefit of future generations of humankind. “Benefit” in this context
is to be understood in its broadest meaning as including, inter alia, economic,
environmental, social and intrinsic benefit.
The right to development must be implemented so as to meet devel-
opmental and environmental needs of present and future generations in a
sustainable and equitable manner. This includes the duty to cooperate for
the eradication of poverty in accordance with Chapter IX on International
Economic and Social Co-operation of the Charter of the United Nations and
the Rio Declaration on Environment and Development as well as the duty to
cooperate for global sustainable development and the attainment of equity
in the development opportunities of developed and developing countries.
Whilst it is the primary responsibility of the State to aim for conditions of
equity within its own population and to ensure, as a minimum, the eradication
of poverty, all States which are in a position to do so have a further responsi-
bility, as recognised by the Charter of the United Nations and the Millennium
Declaration of the United Nations, to assist States in achieving this objective.
The principle of common but differentiated responsibilities
States and other relevant actors have common but differentiated re-
sponsibilities. All States are under a duty to cooperate in the achievement
of global sustainable development and the protection of the environment.
International organizations, corporations (including in particular transna-
tional corporations), non-governmental organizations and civil society should
cooperate in and contribute to this global partnership. Industrial concerns
have also responsibilities pursuant to the polluter pays principle.

Differentiation of responsibilities, whilst principally based on the contri-

bution that a State has made to the emergence of environmental problems,
must also take into account the economic and developmental situation of
the State, in accordance with paragraph 3.3.
The special needs and interests of developing countries and of countries
with economies in transition, with particular regard to least developed coun-
tries and those affected adversely by environmental, social and developmental
considerations, should be recognized.
Developed countries bear a special burden of responsibility in reducing
and eliminating unsustainable patterns of production and consumption and
in contributing to capacity building in developing countries, inter alia by
providing financial assistance and access to environmentally sound technol-
ogy. In particular, developed countries should play a leading role and assume
primary responsibility in matters of relevance to sustainable development.
The principle of the precautionary approach to human health, natural
resources and ecosystems
A precautionary approach is central to sustainable development in that it
commits States, international organizations and the civil society, particularly
the scientific and business communities, to avoid human activity which may
cause significant harm to human health, natural resources or ecosystems,
including in the face of scientific uncertainty.
Sustainable development requires that a precautionary approach with
regard to human health, environmental protection and sustainable utilization
of natural resources should include accountability for harm caused (including,
where appropriate, State responsibility), planning based on clear criteria and
well-defined goals, consideration of all possible means in an environmental
impact assessment to achieve an objective (including, in certain instances,
not proceeding with an envisaged activity) and, in respect of activities which
may cause serious long-term or irreversible harm, establishing an appropri-
ate burden of proof on the person or persons carrying out (or intending to
carry out) the activity.
Decision-making processes should endorse a precautionary approach
to risk management and in particular should proceed to the adoption of
appropriate precautionary measures even when the absence of risk seems
scientifically assured.
Precautionary measures should be based on up-to-date and independent
scientific judgment and be transparent. They should not result in economic
protectionism. Transparent structures should be established which involve all

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interested parties, including nonstate actors, in the consultation process. Ap-

propriate review by a judicial body or administrative action should be available.
The principle of public participation and access to information and justice
Public participation is essential to sustainable development and good
governance in that it is a condition of responsive, transparent and account-
able governments as well a condition for the active engagement of equally
responsive, transparent and accountable civil society organizations, including
industrial concerns and trade unions. The vital role of women in sustainable
development should be recognized.
Public participation in the context of sustainable development
requires effective protection of the human right to hold and express
opinions and to seek, receive and impart ideas. It also requires a right
of access to appropriate, comprehensible and timely information held
by governments and commerce on economic and social policies regard-
ing the sustainable use of natural resources and the protection of the
environment, without imposing undue financial burdens upon the ap-
plicants and with due consideration for privacy and adequate protection
of business confidentiality.
The empowerment of peoples in the context of sustainable development
requires access to effective judicial or administrative procedures in the State
where the measure has been taken to challenge such measure and to claim
compensation. States should ensure that where transboundary harm has
been, or is likely to be, caused, individuals and peoples affected have non-
discriminatory access to the same judicial and administrative procedures as
would individuals and peoples of the State from which the harm ,is caused
if such harm occurred in that State.
The principle of good governance
The principle of good governance is essential to the progressive develop-
ment and codification of international law relating to sustainable develop-
ment. It commits States and international organizations:
(a) to adopt democratic and transparent decision-making
procedures and financial accountability;
(b) to take effective measures to combat official or other
corruption;
(c) to respect due process in their procedures and to observe
the rule of law and human rights; and

(d) to implement a public procurement approach according to

the WTO Code on Public Procurement.
Civil society and non-governmental organizations have a right to good
governance by States and international organizations. Non-state actors should
be subject to internal democratic governance and to effective accountability.
Good governance requires full respect for the principles of the 1992 Rio
Declaration on Environment and Development as well as the full participa-
tion of women in all levels of decision-making. Good governance also calls
for corporate social responsibility and socially responsible investments as
conditions for the existence of a global market aimed at a fair distribution
of wealth among and within communities.
The principle of integration and interrelationship, in particular in relation
to human rights and social, economic and environmental objectives
The principle of integration reflects the interdependence of social, eco-
nomic, financial, environmental and human rights aspects of principles and
rules of international law relating to sustainable development as well as of
the needs of current and future generations of humankind.
All levels of governance -global, regional, national, sub-national and local
-and all sectors of society should implement the integration principle, which
is essential to the achievement of sustainable development.
States should strive to resolve apparent conflicts between competing eco-
nomic, financial, social and environmental considerations, whether through
existing institutions or through the establishment of appropriate new ones.
In their interpretation and application, the above principles are inter-
related and each of them should be construed in the context of the other
principles of this Declaration. Nothing in this Declaration shall be construed
as prejudicing in any manner the provisions of the Charter of the United Na-
tions and [he rights of peoples under that Charter.
After the World Summit for Sustainable Development, greater attention
is being paid to these international principles as they can offer substantive
guidance when it seems difficult to integrate environmental, economic and
social development objectives and regimes. This section will examine these
principles in greater detail, from the perspective that they form part of an
emerging body of law that can deliver on the objective of sustainable devel-
opment, with sources in environmental, human rights, and economic law.
The principle of integration and interrelationship will be considered
first, as it provides a conceptual framework for “integrated thinking” in

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international law relating to sustainable development, which can guide

consideration of the other principles. The integration of environmental,
economic and social law in international regimes is part of an incremental,
nuanced process. It is not a matter of joining three areas of law into one.
There is no one chronological linear progression toward integration, nor is
there necessarily a single “pull” toward greater integration as such, except
in certain specific situations. Rather, there are particular patterns to this
weaving of social, environmental and economic bodies of law, patterns
that are also greatly influenced by different conditions, requirements and
policy choices of each specific context.
The Principle of Integration and Interrelationship in Relation to Social,
Economic, and Environmental Objectives
The concept of sustainable development integrates economic, environ-
mental and social (including human rights) priorities. As a point of departure,
international sustainable development law addresses the area of intersection
between three fields of international economic, environmental and social law.
As such not all aspects of international environmental law are international
sustainable development law. For example, as noted by Alan Boyle and David
Freestone, animal rights, the conservation of “charismatic megafauna,” and
trans-boundary environmental disputes do not necessarily deal with issues
of sustainable development.404 The same may be true for various aspects of
international trade, tax, financial or investment law in the economic field,
or certain specific laws for the international protection of human rights,
social development or humanitarian assistance in the social field. As not all
international law in these three areas is (or even needs to be) integrated,
the term “sustainable development law” refers to a specific, narrower set of
legal instruments and provisions where environment, social and economic
considerations are integrated to varying degrees in different circumstances.
And by extension, the principle of integration is fundamental to sustainable
development law.
The need for integration was strongly reinforced and highlighted in the
2002 World Summit on Sustainable Development (WSSD). Indeed, in the
2002 Johannesburg Declaration on Sustainable Development, states assumed
“a collective responsibility to advance and strengthen the interdependent
and mutually reinforcing pillars of sustainable development -economic
development, social development and environmental protection ....” In the
Johannesburg Plan of Implementation (JPOI), this recognition also appears
404
A. Boyle and D. Freestone, “Past Achievements and Future Challenges” in Lang
(citation omitted).

in numerous instances, for example at paragraph 2, stating the objectives of

the JPOI, governments accord that it “will promote the integration of the
three components of sustainable development -economic development,
social development and environmental protection -as interdependent and
mutually reinforcing pillars.”405
Is a “collective responsibility” to “promote the integration of the three
components of sustainable development” also a legal norm, though? What
would be the formulation of such a rule? Is there a formulation of “funda-
mentally norm-creating character,” and if so, is there enough practice, and
opinio juris, to allow it to be described as an emerging customary norm?
There may be a useful normative formulation of this principle. In the nega-
tive, it would be based on a three-fold obligation relating specifically to the
need to take all three aspects into account in development decision-making.
As such, the norm would hold that States must “ensure that social and eco-
nomic development decisions do not disregard environmental considerations,
and not undertake environmental protection without taking into account
relevant social and economic implications.” While the exact formulation and
application of this norm would vary according to the circumstances of its
use, its general purpose would be to ensure the necessary integration between
social, economic and environmental policies and laws, responding to the
“collective responsibility” assumed by States in the Johannesburg Declaration.
From this obligation would flow several increasingly accepted procedures,
practices and instruments of sustainable development law. For example, the
use of sustainability or “integrated” impact assessments, described in more
detail in Part III, can ensure that economic development decisions (includ-
ing decisions about policies, plans, programmes or projects) consider, and
do not ignore, their potential social and environmental impacts. From this
principle, too, would stem the reverse sustainable development obligations
for environmental protection not to be carried out without consideration of
relevant social and economic aspects. For example, decision-making bodies
for conservation projects, such as large parks, should ensure that their plans
provide for, or even have the prior informed consent of, local peoples and
other socially vulnerable groups who could be affected by the new park
405
See Johannesburg Declaration on Sustainable Development, in Report of the World
Summit on Sustainable Development, Johannesburg, South Africa, 26 Aug.-4 Sept.
2002, NCONF.199/20 (New York: United Nations, 2002). See also Johannesburg
Plan of Implementation, Report of the World Summit on Sustainable Development,
Johannesburg, South Africa, 4 Sept. 2002, UN Doc. A/CONF.199 http://www.un.org/
esa/sustdev/documents/WSSD_POI_PD/English/POIToc.htm.

PA R T I I
boundaries and restrictions. A project that did not do so would be violating

the second part of this principle, the obligation not to consider environmental
protection in isolation from its social and economic implications. The cre-
ation of “inter-locking mechanisms,” such as environmental or social units
in international development organizations, or the World Bank Inspection
Panel, to monitor and investigate the social and environmental implications
of their economic development projects, would be likewise encouraged, sup-
ported and even potentially required by this norm.
Emergence of the principle
The need for the integration of social and economic development and
environmental policy permeates soft law, including the 1972 Stockholm Dec-
laration, the 1992 Rio Declaration and Agenda 21, and, as mentioned above,
the 2002 Johannesburg Declaration and Plan of Implementation.
Principle 4 of the 1992 Rio Declaration States that “in order to achieve
sustainable development, environmental protection shall constitute an
integral part of the development process and cannot be considered in iso-
lation from it”406 As a consensus statement negotiated and signed by over
160 countries, this indicates that States agree that social and economic
development should integrate environmental protection.407 The Principle 4
argument that environmental protection cannot be considered in isolation
advocates integrated consideration of these fields at the international level,
in policy and in law. This view is supported by the language of Chapter 39
of Agenda 21, where States commit to focus on the “further development
of international law on sustainable development, giving special attention to
the delicate balance between environmental and developmental concerns”;
and recognize an important “need to clarify and strengthen the relationship
between existing international instruments or agreements in the field of
environment and relevant social and economic agreements or instruments,
taking into account the special needs of the developing countries.”408 After
the Rio de Janeiro Earth Summit, integration of laws and policies in these
areas was directly addressed in many global treaties, using different textual
formulations depending on the context and purpose of the instruments. It
is a keystone provision in two of the 1992 Rio Conventions (the UN Frame-
406
Rio Declaration, supra note 1, Principle 4. See also the Stockholm Declaration on
the Human Environment, UN Doc. Ale. 48114 (1972), 11 ILM 1461 (1972) Principle
13 [hereinafter Stockholm Declaration].
407
European Commission, The Law of Sustainable Development (Brussels: EC, 2001).
408
Agenda 21, Report of the UNCED, I (1992) UN Doc. Af/CONF.151126I Rev. l, (1992),
31 ILM 874, para. 39.1 [hereinafter Agenda 21], ch. 39.1, Objectives (a) and (b).

work Convention on Climate Change and the UN Convention on Biological

Diversity).409 Most of the post-Rio environmental conventions contain specific
substantive provisions which aim to address relevant social and economic
considerations related to their purpose and object. Some even do it to the
extent that they move away from being simply environmental conventions
at all, and can be considered sustainable development conventions instead,
whose integrated social, economic and environmental purpose focuses on
the development of a resource or address a development challenge, in a
sustainable way. Examples of such treaties might include the 1994 United
Nations Convention to Combat Desertification in Countries Experiencing
Serious Drought and/or Desertification, Particularly in Africa, and the 1997
United Nations Convention on the Non-Navigational Uses of International
Watercourses. [Citations omitted].
International scholarship in various fields notes a trend toward integra-
tion, at the international level. This refers to integration in the sense that
economies and societies are becoming more integrated, on the international
level (also sometimes called the “globalization” phenomenon). For example,
according to Alexandre Kiss:
“[e]vidence of global integration abounds: regional
trading units; regional political and economic organizations
... international regimes covering issues ranging from banking
and trade to human rights, environmental protection, and
arms control; and the spread of financial markets. The
information revolution, the rapid technological advances, global
environmental problems, liberalized trade, and other economic
and other interdependencies compel greater interdependency
and greater integration.”410
Such a trend is clearly emerging. However, there is a second meaning to in-
tegration, one that seems closer to what is intended in the 1992 Rio Declaration,
which looks to integration between economic and social law and policy, and
environmental law and policy. This type of integration is not simply a trend or
a “coming together,” on the international level, but rather, a need to undertake
409
See the Climate Change Convention, supra note 2, Art. 3(4), with Kyoto Protocol
to the United Nations Framework Convention on Climate Change, 10 Dec. 1997,
37 ILM 22 (1998), Art. 4(1) (f) [hereinafter Kyoto Protocol; and the Biodiversity
Convention [citation omitted].
410
A. Kiss, “The Implications of Global Change for the International Legal System” in
E. Brown, Weiss, ed., Environmental Change and International law (Tokyo: United
Nations University Press, 1992) 319, 345.

PA R T I I
development in a way that fully takes into account, and combines, its social, eco-
nomic and environmental aspects. It is a challenging requirement for research,
planning, law-making and judicial decision-making. Indeed, as noted by one
commentator, “if there is no longer much doubt about whether integrative ap-
proaches to research are needed in support of a sustainability transition, how to
achieve such integration in rigorous and useful programs remains problematic.”411
Selected Treaty Bodies

Principal Environmental Bodies412
Intergovernmental Panel on Climate Change (IPCC). United Nations
negotiations on climate change are supported by the work of the Intergov-
ernmental Panel on Climate Change (IPCC), a worldwide network of 2,500
leading scientists and experts who review scientific research on the issue. The
full text of reports is available on the Panel website.
Governing Council of the United Nations Environment Programme
(UNEP). The Governing Council, the policy-making organ of UNEP, was
established by General Assembly resolution 2997 (XXVII) of 15 December
1972. The Council meets annually and reports to the General Assembly (GA).
Commission on Sustainable Development. The General Assembly, in its reso-
lution 47/191 of 22 December 1992, requested the Economic and Social Council
to establish, as a functional commission of the Council, a high-level Commission
on Sustainable Development to ensure effective follow-up to the Conference on
Environment and Development (UNCED). Therefore, while General Assembly
resolution 47/191 contains its mandate, the Commission was established by
Economic and Social Council decision 1993/207 of 12 February 1993. The
Commission meets annually and reports to the Economic and Social Council.
United Nations Forum on Forests. The United Nations Forum on Forests
was established by ECOSOC resolution 2000/35 of 18 Oct. 2000 to “strength-
en political commitment to the management, conservation and sustainable
development of all types of forests.” The Forum meets annually and reports
to the Economic and Social Council.
411
W.C. Clark “A Transition towards Sustainability” (200] Symposium: Environment
2000 –New Issues for a New Century, Sustainable Science for a Sustainable Envi-
ronment (2001) 27 Ecology L.Q. 1021.
412
See, United Nations Organizations, at http://www.un.org/depts/dhl/resguide/
specenv.htm#environmental.

Inter-governmental Forum on Forests (IFF). The Inter-governmental

Forum on Forests (IFF) was established by ECOSOC resolution 1997/65 of
25 July 1997. The Forum met annually from 1997 to 2000 and reported to
the Economic and Social Council.
Ad hoc Inter-governmental Panel on Forests. The Ad hoc Inter-govern-
mental Panel on Forests was established by ECOSOC decision 1995/226 of
1 June 1995. The Forum met at irregular intervals between 1995 and 1997
and reported to the Economic and Social Council.
Selected Treaty Bodies413

Conference of the Parties to the United Nations Framework Convention
on Climate Change (UNFCCC). The Conference of the Parties, the “supreme
body,” was established pursuant to Article 7 of the United Nations Framework
Convention on Climate Change. The Conference meets annually. States Par-
ties to the Convention are required by Article 12 to report on the steps they
are taking to implement the Convention.
Conference of the Parties serving as the meeting of the Parties to the
Kyoto Protocol. The Conference of the Parties serving as the meeting of
the Parties was established pursuant to Article 13 of the Kyoto Protocol to
review the implementation of the Protocol. The meeting of the Parties takes
place annually.
Meeting of the Parties to the Montreal Protocol. The Meeting of the Parties
was established pursuant to Article 11 of the Montreal Protocol to review the
implementation of the Protocol. The current status of the Protocol is posted
on the UNEP website. The Meeting takes place annually.
Conference of the Parties to the Basel Convention on the Control of
Transboundary Movements of Hazardous Wastes and Their Disposal. The
Conference of the Parties was established pursuant to Article 15 of the Basel
Convention on the Control of Transboundary Movements of Hazardous
Wastes and Their Disposal to review the implementation of the Convention.
The Conference of the Parties to the Convention on Biological Diversity.
The Conference of the Parties was established pursuant to Article 23 of the
Convention on Biological Diversity to review the implementation of the
Convention. The current status of the Convention is posted on the Conven-
tion website. The Conference meets annually.
413
See, United Nations Organizations, at http://www.un.org/depts/dhl/resguide/
specenv.htm#treaty.

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The Conference of the Parties to the Convention to Combat Desertifica-

tion. The Convention to Combat Desertification in Countries Experiencing
Serious Drought and/or Desertification, Particularly in Africa was adopted
in Paris on 17 June 1994 and opened for signature there on 14-15 October
1994. It entered into force on 26 December 1996, 90 days after the fiftieth
ratification was received. 193 countries were Parties as at August 2009. The
Conference of the Parties (COP), which is the Convention’s supreme gov-
erning body, held its first session in October 1997 in Rome, Italy. The ninth
session of the conference of the Parties was held in Buenos Aires, Argentina
from 21 September to 2 October 2009.
Water Resources
Pulp Mills on the River Uruguay (Uruguay v. Argentina),
2010414
[On 4 May 2006 Argentina filed a suit against Uruguay in respect of a

dispute concerning the breach, allegedly committed by Uruguay of obliga-
tion under the Statute of the River Uruguay, a treaty signed and ratified by
Argentina and Uruguay. The breach arose out of the authorization, construc-
tion and future commissioning of two pulp mills on the River Uruguay, with
reference in particular to the effects of such activities on the quality of the
waters of the River Uruguay and on the areas affected by the river.]
***
1. The obligation to contribute to the optimum and rational utilization of
the river (Article 1)
170. According to Argentina, Uruguay has breached its obligation to
contribute to the “optimum and rational utilization of the river” by failing
to co-ordinate with Argentina on measures necessary to avoid ecological
change, and by failing to take the measures necessary to prevent pollution.
Argentina also maintains that, in interpreting the 1975 Statute (in particular
Articles 27, 35, and 36 thereof) according to the principle of equitable and
reasonable use, account must be taken of all pre-existing legitimate uses of
the river, including in particular its use for recreational and tourist purposes.
414
Pulp Mills on the River Uruguay (Argentina v. Uruguay), Judgment, I.C.J. Reports
2010, p. 14.

171. For Uruguay, the object and purpose of the 1975 Statute is to establish
a structure for co-operation between the Parties through CARU in pursuit of
the shared goal of equitable and sustainable use of the water and biological
resources of the river. Uruguay contends that it has in no way breached the
principle of equitable and reasonable use of the river and that this principle
provides no basis for favouring pre-existing uses of the river, such as tourism
or fishing, over other, new uses….
175. The Court considers that the attainment of optimum and rational
utilization requires a balance between the Parties’ rights and needs to use
the river for economic and commercial activities on the one hand, and the
obligation to protect it from any damage to the environment that may be
caused by such activities, on the other. The need for this balance is reflected
in various provisions of the 1975 Statute establishing rights and obligations
for the Parties, such as Articles 27, 36, and 41. The Court will therefore assess
the conduct of Uruguay in authorizing the construction and operation of the
Orion (Botnia) mill in the light of those provisions of the 1975 Statute, and
the rights and obligations prescribed therein….
177. Regarding Article 27, it is the view of the Court that its formulation
reflects not only the need to reconcile the varied interests of riparian States
in a transboundary context and in particular in the use of a shared natural
resource, but also the need to strike a balance between the use of the waters
and the protection of the river consistent with the objective of sustainable
development. The Court has already dealt with the obligations arising from
Articles 7 to 12 of the 1975 Statute which have to be observed, according to
Article 27, by any Party wishing to exercise its right to use the waters of the
river for any of the purposes mentioned therein insofar as such use may be
liable to affect the régime of the river or the quality of its waters. The Court
wishes to add that such utilization could not be considered to be equitable
and reasonable if the interests of the other riparian State in the shared re-
source and the environmental protection of the latter were not taken into
account. Consequently, it is the opinion of the Court that Article 27 embod-
ies this interconnectedness between equitable and reasonable utilization
of a shared resource and the balance between economic development and
environmental protection that is the essence of sustainable development….
3. The obligation to co-ordinate measures to avoid changes in the ecologi-
cal balance (Article 36)
181. Argentina contends that Uruguay has breached Article 36 of the 1975
Statute, which places the Parties under an obligation to co-ordinate through
CARU the necessary measures to avoid changing the ecological balance of

PA R T I I
the river. Argentina asserts that the discharges from the Orion (Botnia) mill
altered the ecological balance of the river, and cites as examples the 4 Febru-
ary 2009 algal bloom, which, according to it, provides graphic evidence of
a change in the ecological balance, as well as the discharge of toxins, which
gave rise, in its view, to the malformed rotifers whose pictures were shown
to the Court….
183. It is recalled that Article 36 provides that “[t]he parties shall co-ordi-
nate, through the Commission, the necessary measures to avoid any change
in the ecological balance and to control pests and other harmful factors in
the river and the areas affected by it”….
185. In the view of the Court, the purpose of Article 36 of the 1975
Statute is to prevent any transboundary pollution liable to change the eco-
logical balance of the river by coordinating, through CARU, the adoption
of the necessary measures. It thus imposes an obligation on both States to
take positive steps to avoid changes in the ecological balance. These steps
consist not only in the adoption of a regulatory framework, as has been done
by the Parties through CARU, but also in the observance as well as enforce-
ment by both Parties of the measures adopted. As the Court emphasized in
the Gabcikovo-Nagymaros case:
“in the field of environmental protection, vigilance and prevention are
required on account of the often irreversible character of damage to the envi-
ronment and of the limitations inherent in the very mechanism of reparation
of this type of damage” (Gabcikovo-Nagymaros Project (Hungary/Slovakia),
Judgment, I.C.J. Reports 1997, p. 78, para. 140)….
188. This vigilance and prevention is all the more important in the
preservation of the ecological balance, since the negative impact of human
activities on the waters of the river may affect other components of the
ecosystem of the watercourse such as its flora, fauna, and soil. The obliga-
tion to co-ordinate, through the Commission, the adoption of the necessary
measures, as well as their enforcement and observance, assumes, in this con-
text, a central role in the overall system of protection of the River Uruguay
established by the 1975 Statute. It is therefore of crucial importance that the
Parties respect this obligation.
189. In light of the above, the Court is of the view that Argentina has
not convincingly demonstrated that Uruguay has refused to engage in such
co-ordination as envisaged by Article 36, in breach of that provision….

4. The obligation to prevent pollution and preserve the aquatic environ-

ment (Article 41)
191. Argentina claims that by allowing the discharge of additional nutri-
ents into a river that is eutrophic and suffers from reverse flow and stagnation,
Uruguay violated the obligation to prevent pollution, as it failed to prescribe
appropriate measures in relation to the Orion (Botnia) mill, and failed to meet
applicable international environmental agreements, including the Biodiversity
Convention and the Ramsar Convention. It maintains that the 1975 Statute
prohibits any pollution which is prejudicial to the protection and preserva-
tion of the aquatic environment or which alters the ecological balance of
the river. Argentina further argues that the obligation to prevent pollution
of the river is an obligation of result and extends not only to protecting the
aquatic environment proper, but also to any reasonable and legitimate use
of the river, including tourism and other recreational uses.
192. Uruguay contends that the obligation laid down in Article 41 (a) of
the 1975 Statute to “prevent … pollution” does not involve a prohibition on
all discharges into the river. It is only those that exceed the standards jointly
agreed by the Parties within CARU in accordance with their international ob-
ligations, and that therefore have harmful effects, which can be characterized
as “pollution” under Article 40 of the 1975 Statute. Uruguay also maintains
that Article 41 creates an obligation of conduct, and not of result, but that
it actually matters little since Uruguay has complied with its duty to prevent
pollution by requiring the plant to meet best available technology (“BAT”)
standards.
193. Before turning to the analysis of Article 41, the Court recalls that:
“The existence of the general obligation of States to ensure that activities
within their jurisdiction and control respect the environment of other States
or of areas beyond national control is now part of the corpus of international
law relating to the environment.” (Legality of the Threat or Use of Nuclear
Weapons, Advisory Opinion, I.C.J. Reports 1996 (I), pp. 241-242, para. 29.)
194. The Court moreover had occasion to stress, in the Gabcikovo-
Nagymaros Project case, that “the Parties together should look afresh at the
effects on the environment of the operation of the Gabcikovo power plant”
(Gabcikovo-Nagymaros Project (Hungary/Slovakia), Judgment, I.C.J. Reports
1997, p. 78, para. 140). The Court is mindful of these statements in taking
up now the examination of Article 41 of the 1975 Statute.
195. In view of the central role of this provision in the dispute between the
Parties in the present case and their profound differences as to its interpretation

PA R T I I
and application, the Court will make a few remarks of a general character on
the normative content of Article 41 before addressing the specific arguments
of the Parties. First, in the view of the Court, Article 41 makes a clear distinc-
tion between regulatory functions entrusted to CARU under the 1975 Statute,
which are dealt with in Article 56 of the Statute, and the obligation it imposes
on the Parties to adopt rules and measures individually to “protect and preserve
the aquatic environment and, in particular, to prevent its pollution.” Thus, the
obligation assumed by the Parties under Article 41, which is distinct from those
under Articles 36 and 56 of the 1975 Statute, is to adopt appropriate rules and
measures within the framework of their respective domestic legal systems to
protect and preserve the aquatic environment and to prevent pollution. This
conclusion is supported by the wording of paragraphs (b) and (c) of Article 41,
which refer to the need not to reduce the technical requirements and severity
of the penalties already in force in the respective legislation of the Parties as
well as the need to inform each other of the rules to be promulgated so as to
establish equivalent rules in their legal systems….
197. Thirdly, the obligation to “preserve the aquatic environment, and in
particular to prevent pollution by prescribing appropriate rules and measures”
is an obligation to act with due diligence in respect of all activities which
take place under the jurisdiction and control of each party. It is an obliga-
tion which entails not only the adoption of appropriate rules and measures,
but also a certain level of vigilance in their enforcement and the exercise of
administrative control applicable to public and private operators, such as the
monitoring of activities undertaken by such operators, to safeguard the rights
of the other party. The responsibility of a party to the 1975 Statute would
therefore be engaged if it was shown that it had failed to act diligently and
thus take all appropriate measures to enforce its relevant regulations on a
public or private operator under its jurisdiction. The obligation of due dili-
gence under Article 41 (a) in the adoption and enforcement of appropriate
rules and measures is further reinforced by the requirement that such rules and
measures must be “in accordance with applicable international agreements”
and “in keeping, where relevant, with the guidelines and recommendations
of international technical bodies.” This requirement has the advantage of
ensuring that the rules and measures adopted by the parties both have to
conform to applicable international agreements and to take account of in-
ternationally agreed technical standards….
(a) Environmental Impact Assessment
203. The Court will now turn to the relationship between the need for an en-
vironmental impact assessment, where the planned activity is liable to cause harm

to a shared resource and transboundary harm, and the obligations of the Parties
under Article 41 (a) and (b) of the 1975 Statute. The Parties agree on the necessity
of conducting an environmental impact assessment. The Parties disagree, however,
with regard to the scope and content of the environmental impact assessment that
Uruguay should have carried out with respect to the Orion (Botnia) mill project.
204. It is the opinion of the Court that in order for the Parties properly
to comply with their obligations under Article 41 (a) and (b) of the 1975
Statute, they must, for the purposes of protecting and preserving the aquatic
environment with respect to activities which may be liable to cause trans-
boundary harm, carry out an environmental impact assessment. As the Court
has observed in the case concerning the Dispute Regarding Navigational
and Related Rights, “there are situations in which the parties’ intent upon
conclusion of the treaty was, or may be presumed to have been, to give the
terms used - or some of them - a meaning or content capable of evolving, not
one fixed once and for all, so as to make allowance for, among other things,
developments in international law” (Dispute Regarding Navigational and
Related Rights (Costa Rica v. Nicaragua), Judgment of 13 July 2009, para. 64).
In this sense, the obligation to protect and preserve, under Article 41 (a) of
the Statute, has to be interpreted in accordance with a practice, which in
recent years has gained so much acceptance among States that it may now
be considered a requirement under general international law to undertake
an environmental impact assessment where there is a risk that the proposed
industrial activity may have a significant adverse impact in a transboundary
context, in particular, on a shared resource. Moreover, due diligence, and the
duty of vigilance and prevention which it implies, would not be considered
to have been exercised, if a party planning works liable to affect the régime
of the river or the quality of its waters did not undertake an environmental
impact assessment on the potential effects of such works.
205. The Court observes that neither the 1975 Statute nor general inter-
national law specify the scope and content of an environmental impact as-
sessment. Consequently, it is the view of the Court that it is for each State to
determine in its domestic legislation or in the authorization process for the
project, the specific content of the environmental impact assessment required
in each case, having regard to the nature and magnitude of the proposed de-
velopment and its likely adverse impact on the environment as well as to the
need to exercise due diligence in conducting such an assessment. The Court
also considers that an environmental impact assessment must be conducted
prior to the implementation of a project. Moreover, once operations have
started and, where necessary, throughout the life of the project, continuous
monitoring of its effects on the environment shall be undertaken.

PA R T I I
United Nations Law of the Sea “UNCLOS”415

Third United Nations Conference on the Law of the Sea416
On 1 November 1967, Malta’s Ambassador to the United Nations, Arvid
Pardo, asked the nations of the world to look around them and open their
eyes to a looming conflict that could devastate the oceans, the lifeline of
man’s very survival. In a speech to the United Nations General Assembly, he
spoke of the super-Power rivalry that was spreading to the oceans, of the
pollution that was poisoning the seas, of the conflicting legal claims and
their implications for a stable order and of the rich potential that lay on
the seabed. Pardo ended with a call for “an effective international regime
over the seabed and the ocean floor beyond a clearly defined national
jurisdiction.” “It is the only alternative by which we can hope to avoid the
escalating tension that will be inevitable if the present situation is allowed
to continue,” he said.
Pardo’s urging came at a time when many recognized the need for
updating the freedom-of-the-seas doctrine to take into account the
technological changes that had altered man’s relationship to the oceans.
It set in motion a process that spanned 15 years and saw the creation of
the United Nations Seabed Committee, the signing of a treaty banning
nuclear weapons on the seabed, the adoption of the declaration by the
General Assembly that all resources of the seabed beyond the limits of
national jurisdiction are the common heritage of mankind and the con-
vening of the Stockholm Conference on the Human Environment.… These
were some of the factors that led to the convening of the Third United
Nations Conference on the Law of the Sea, to write a comprehensive
treaty for the oceans.
The Conference was convened in New York in 1973. It ended nine years
later with the adoption in 1982 of a constitution for the seas - the United
Nations Convention on the Law of the Sea. During those nine years, shuttling
back and forth between New York and Geneva, representatives of more than
160 sovereign States sat down and discussed the issues, bargained and traded
national rights and obligations in the course of the marathon negotiations
that produced the Convention.
415
United Nations Convention on the Law of the Sea (UNCLOS), Dec. 10, 1982, 1833,
U.N.T.S. 397, entered into force Nov. 16, 1994.
416
U.N. Division of Ocean Affairs and Law of the Sea, Historical Perspective, UNCLOS,
at: http://www.un.org/depts/los/convention_agreements/convention_histori-
cal_perspective.htm#Historical%20Perspective.

The Convention
Navigational rights, territorial sea limits, economic jurisdiction, legal status
of resources on the seabed beyond the limits of national jurisdiction, passage
of ships through narrow straits, conservation and management of living
marine resources, protection of the marine environment, a marine research
regime and, a more unique feature, a binding procedure for settlement of
disputes between States - these are among the important features of the treaty.
In short, the Convention is an unprecedented attempt by the international
community to regulate all aspects of the resources of the sea and uses of the
ocean, and thus bring a stable order to mankind’s very source of life.
“Possibly the most significant legal instrument of this century” is how the
United Nations Secretary-General described the treaty after its signing. The
Convention was adopted as a “Package deal,” to be accepted as a whole in all
its parts without reservation on any aspect. The signature of the Convention
by Governments carries the undertaking not to take any action that might
defeat its objects and purposes. Ratification of, or accession to, the Convention
expresses the consent of a State to be bound by its provisions. The Conven-
tion came into force on 16 November 1994, one year after Guyana became
the 60th State to adhere to it….
The definition of the territorial sea has brought relief from conflicting
claims. Navigation through the territorial sea and narrow straits is now based
on legal principles. Coastal States are already reaping the benefits of provi-
sions giving them extensive economic rights over a 200-mile wide zone along
their shores. The right of landlocked countries of access to and from the sea
is now stipulated unequivocally.
Kyrgyz Transboundary Water Commission with Neighbor

States417
In the world history, the Aral Sea basin is among the most ancient centers
of civilization.
Amudarya and Syrdarya — two main rivers in the basin. [These] water re-
sources which are allocated to arid lands irrigation and the Aral Sea with their
tributaries Vakhsh, Pyandj, Surkhandarya, Kafirnigan, Zerafshan, Naryn, Chirchik,
Karadarya and others form a large water system, [that is part] of the Aral Sea basin.
417
Interstate Commission for Water Coordination of Central Asia http://www.icwc-
aral.uz/.

PA R T I I
Five independent states of CIS — the Republic of Kazakhstan, the Kyr-

gyz Republic, the Republic of Tajikistan, Turkmenistan and the Republic of
Uzbekistan — and part of Afghanistan are entirely and partly situated on the
territory of the basin.
After collapse of the Soviet Union, to prevent arising of conflicts and
serious complications in water resources management and to put water al-
location, limitation and account in order, the Ministers of five Central Asian
independent states…[after]… negotiations, meetings and discussions adopted
at the conference in Tashkent on October 10-12, 1991 the Statement, …based
on historical community of Central Asian peoples, [on] their equal rights and
responsibility for ensuring rational water resources use in the region, and…
they recognized that only joint actions in coordination and management can
help to effectively solve the region’s water problems in a context of increas-
ing ecological and social tension.
On February 18, 1992 five Ministers of Water Resources of Central Asian
states (N. Kipshakbayev, M. Zulpuyev, A. Nurov, А. Ilamanov, R. Giniyatullin)
signed in Almaty an “Agreement on cooperation in joint management, use
and protection of interstate sources of water resources.” Actually, this agree-
ment founded a united body Interstate Coordination Water Commission
(ICWC). This Agreement was confirmed by the Decision of the Presidents,
Kzyl-Orda, March 26, 1993 and their “Agreement on joint actions on resolving
the problems related to the Aral Sea and its coastal zone on environmental
sanitation and social-economic development in the Aral Sea region,” and
later by Agreement of the region’s five countries of April 9, 1999 “On status
of IFAS and its organizations.”
The Interstate Commission for Water Coordination (ICWC) is a collective
body of Central Asian States acting on the basis of equity, equality and con-
sensus. According to the Decision by the Heads of State of March 23, 1993,

ICWC was included in the International Fund for saving the Aral Sea (IFAS)
and has the status of an international organization.
Hazardous Waste and Toxics

Overview of Basel Convention on Control of
Transboundary Movement of Waste418
Awakening environmental awareness and corresponding tightening of
environmental regulations in the industrialized world in the 1970s and 1980s
had led to increasing public resistance to the disposal of hazardous wastes
– in accordance with what became known as the NIMBY (Not In My Back
Yard) syndrome – and to an escalation of disposal costs. This in turn led some
operators to seek cheap disposal options for hazardous wastes in Eastern Eu-
rope and the developing world, where environmental awareness was much
less developed and regulations and enforcement mechanisms were lacking.
It was against this background that the Basel Convention was negotiated in
the late 1980s, and its thrust at the time of its adoption was to combat the
“toxic trade,” as it was termed. The Convention entered into force in 1992.
Objective
The overarching objective of the Basel Convention is to protect human
health and the environment against the adverse effects of hazardous wastes.
Its scope of application covers a wide range of wastes defined as “hazardous
wastes” based on their origin and/or composition and their characteristics,
as well as two types of wastes defined as “other wastes” - household waste
and incinerator ash.
Aims and provisions
The provisions of the Convention center around the following principal
aims:
• the reduction of hazardous waste generation and the
promotion of environmentally sound management of
hazardous wastes, wherever the place of disposal;
418
The Basel Convention on the Control of Transboundary Movements of Hazard-
ous Wastes and their Disposal, adopted 22 March 1989, 28 ILM 652, entered into
force May 5, 1992. Summary provided at: http://www.basel.int/TheConvention/
Overview/tabid/1271/Default.aspx.

PA R T I I
• the restriction of transboundary movements of hazardous

wastes except where it is perceived to be in accordance with
the principles of environmentally sound management; and
• a regulatory system applying to cases where transboundary
movements are permissible.
The first aim is addressed [by]…requiring States to observe the fundamental
principles of environmentally sound waste management (article 4). A number
of prohibitions are designed to attain the second aim: hazardous wastes may
not be exported to Antarctica, to a State not party to the Basel Convention, or
to a party having banned the import of hazardous wastes (article 4). Parties
may, however, enter into bilateral or multilateral agreements on hazardous
waste management with other parties or with non-parties, provided that such
agreements are “no less environmentally sound” than the Basel Convention
(article 11). In all cases where transboundary movement is not, in principle,
prohibited, it may take place only if it represents an environmentally sound
solution, if the principles of environmentally sound management and non-
discrimination are observed and if it is carried out in accordance with the
Convention’s regulatory system.
The regulatory system is…[b]ased on the concept of prior informed con-
sent, it requires that, before an export may take place, the authorities of the
State of export notify the authorities of the prospective States of import and
transit, providing them with detailed information on the intended move-
ment. The movement may only proceed if and when all States concerned
have given their written consent (articles 6 and 7). The Basel Convention
also provides for cooperation between parties, ranging from exchange of
information on issues relevant to the implementation of the Convention
to technical assistance, particularly to developing countries (articles 10 and
13). The Secretariat is required to facilitate and support this cooperation….
In the event of a transboundary movement of hazardous wastes having
been carried out illegally, i.e. in contravention of the provisions of articles
6 and 7, or cannot be completed as foreseen, the Convention attributes
responsibility to one or more of the States involved, and imposes the duty
to ensure safe disposal, either by re-import into the State of generation or
otherwise (articles 8 and 9).

U.N. Special Rapporteur on Toxics Report on Kyrgyzstan419

Summary
At the invitation of the Government, the Special Rapporteur conducted
a country visit to Kyrgyzstan from 30 September to 9 October 2009. The
purpose of the mission was to examine existing problems related to the
movement and dumping of toxic and dangerous products and wastes and
their adverse effects on human rights. In particular, the visit focused on three
areas: uranium tailings; obsolete or banned pesticides; and mercury waste.
During the mission, the Special Rapporteur met with a wide range of Govern-
ment representatives and non-State actors, and visited dump sites or storage
facilities for hazardous chemicals or wastes in Orlovka, Kara-Balta and Kant.
The Special Rapporteur welcomes the progress made by the country in
addressing the serious transboundary threats that uranium tailings pose to the
health and the environment of Central Asian countries, as well as in attracting
international support for a long-term solution to this problem. He also notes
with satisfaction the efforts undertaken by the Government of Kyrgyzstan to
promote and protect the human rights of individuals and communities living
in the vicinity of tailings sites and storage facilities for obsolete chemicals.
These measures include the elaboration of a national plan to protect human
health and the environment from the adverse effects of persistent organic
pollutants (POPs) and the implementation, with the support of the interna-
tional community, of urgent recovery measures for high-priority tailings sites.
Despite the progress made, the Special Rapporteur identifies a number of
key challenges in the areas of radioactive waste and chemicals management.
He formulates several recommendations on measures to eliminate, or reduce
to a minimum, the adverse effects that radioactive waste and hazardous
substances, including pesticides, pose to the health and the environment of
affected individuals and communities.
These recommendations include:
(a) Relocation of the most dangerous uranium tailings and POP
pesticides to more secure locations;
(b) Rehabilitation of abandoned mines, uranium tailings
and waste storage facilities to prevent environmental
contamination and unauthorized access;
419
U.N. Human Rights Council, Fifteenth session, June 24, 2010. Report on Mission
to Kyrgyzstan by the Special Rapporteur OkechukwuIbeanu (30 September to 9
October 2009).

PA R T I I
(c) Comprehensive assessment of the harmful impact of

radioactive and hazardous substances on the health of
individuals and communities living close to tailings sites and
storage facilities for hazardous chemicals;
(d) Improvement of the existing regulatory framework on
radioactive waste and chemicals management in order
to ensure its consistency with international norms and
standards;
(e) Clarification of the roles and functions of the different
ministries and State agencies with responsibilities in the
areas of radioactive waste and chemicals management,
and creation of appropriate mechanisms to ensure better
coordination and cooperation among these institutions;
(f) Organization of public information campaigns and awareness-
raising initiatives on the risks that radioactive and hazardous
waste storage facilities pose to local populations and the
environment and on safety measures to reduce these risks.
Cote d’Ivoire: The Toxic Dumping Case Against

Trafigura420
On 19 August 2006 the ship Probo Koala unloaded a waste shipment
at Abidjan, Cote d’Ivoire (Ivory Coast). This waste was disposed of at open
air sites around Abidjan. The ship was chartered by the London office of
Trafigura, a Dutch international petroleum trader. The Probo Koala had
attempted to discharge this waste at the port of Amsterdam, but the port
service would not accept the waste without an additional handling charge
because of the waste’s alleged toxicity. The ship left the port of Amsterdam
without discharging its waste. After the waste from the ship was discharged in
Abidjan, people living near the discharge sites began to suffer from a range of
illnesses (nausea, diarrhea, vomiting, breathlessness, headaches, skin damage,
and swollen stomachs). Sixteen people have died, allegedly from exposure
to this waste, and more than 100,000 have sought medical attention.
Trafigura sent two of its executives to Abidjan in August 2006 to investi-
gate what happened. These executives and a representative from a Trafigura
420
Reprinted with permission from Business and Human Rights Resource Center,
London, http://www.business-humanrights.org/Categories/Lawlawsuits/Lawsuits-
regulatoryaction/ LawsuitsSelectedcases/TrafiguralawsuitsreCtedIvoire, visited May
4, 2012.

subsidiary, Puma Energy, were arrested by Ivorian authorities and imprisoned.

On 12 February 2007 the Government of Cote d’Ivoire signed a settlement
agreement with Trafigura in which the company agreed to pay $198 million
to the Ivorian government for a compensation fund, the construction of a
waste treatment plant and to assist in the recovery operations. However,
the company stressed this payment was not “damages” and that it did not
admit liability. Cote d’Ivoire agreed to drop any prosecutions or claims, now
or in the future, against Trafigura. After this settlement agreement was made,
the Trafigura executives and the Puma Energy representative were released
from prison.
In November 2006, the High Court of Justice in London agreed to hear a
group action by about 30,000 claimants from Cote d’Ivoire against Trafigura
over the alleged dumping of toxic waste from the Probo Koala. Applicants
allege that the waste had high levels of caustic soda, as well as a sulphur
compound and hydrogen sulphide making it hazardous waste as defined
by the Basel Convention on the Control of Transboundary Movements of
Hazardous Wastes. Trafigura denies the waste was toxic and claims the waste
was standard waste from onboard operations of ships (“slops” as defined by
the International Convention for the Prevention of Pollution From Ships).
Trafigura is alleged to have shipped the untreated chemical waste to Cote
d’Ivoire with knowledge that there were no facilities to treat this waste.
Trafigura has denied responsibility, stating that they had entrusted the waste
to an Ivorian disposal company, Tommy, which was established a few weeks
before the ship’s arrival. Trafigura claims it had no grounds for suspecting that
Tommy would improperly dispose of the waste. Trafigura denies the number
of applicants/victims and avers that only 69 people suffered significant injury.
On 23 March 2009, the court granted the plaintiffs a temporary injunction
barring Trafigura from contacting any of the claimants in the case. This in-
junction came after counsel for the claimants presented evidence that the
company had been contacting individual claimants urging them to change
their sworn statements. In September 2009, the parties to the UK lawsuit
reached a settlement agreement in which Trafigura agreed to pay each of
the 30,000 claimants a certain amount, approximately $1500. In October
2009 an individual, Claude Gohourou, came forward claiming to represent
the victims through his organization - National Coordination of Toxic Waste
Victims of Cote d’Ivoire. Mr. Gohourou succeeded in freezing the bank ac-
count in which the settlement funds were being held. The claimants’ lawyers
dispute the authenticity of this organization and Mr. Gohourou’s authority
to distribute the funds to the claimants. On 22 January 2010, the Court of
Appeals in Abidjan ruled in favour of Mr. Gohourou and his organization and

PA R T I I
ordered the settlement funds be transferred to him. In mid-February 2010

the parties reached an agreement about the distribution of the settlement
funds, and the compensation was distributed to the victims in March 2010.
In February 2008, Dutch prosecutors served notice that they intend to file
criminal charges against Trafigura, among others, for its alleged part in the
disposal of waste in Côte d’Ivoire. In June 2008 an Amsterdam court began
hearing evidence in this case. The Dutch trial started in June 2010. The
Dutch prosecutors accused Trafigura of illegally exporting hazardous waste
to Côte d’Ivoire. The allegations against the company are that it breached
Dutch export and environmental laws as well as forging official documents.
Trafigura rejected these charges. In July 2010 the Dutch court ruled that the
company had concealed the dangerous nature of the waste aboard the Probo
Koala and fined the company €1 million. The Dutch court also convicted a
Trafigura employee and the Ukrainian captain of the Probo Koala for their
roles in the matter. In April 2011, an appeal court in The Hague ruled that
the public prosecution department is not required to prosecute Trafigure for
the dumping of the waste in Côte d’Ivoire. Greenpeace had taken action to
try to compel the public prosecutor to prosecute the company for more than
just the export of hazardous waste.
In July 2008, three French victims of the Probo Koala incident filed a
complaint against Trafigura before an examining magistrate in Paris alleging
corruption, involuntary homicide and physical harm leading to death.
Wildlife and Biodiversity

Conservation of Wildlife and Protection of Biodiversity421
‘Biodiversity’ can be used as a synonym for living nature, with an emphasis
on its complexity, at genetic, species and ecosystem levels. This complexity
is vital in the maintenance of healthy ecosystem functioning, and it is im-
portant to recognise this when developing policies to protect the natural
environment.
The genetic diversity inherent in most species provides the raw mate-
rial to respond rapidly to changed circumstances. Change is, of course, the
normal state of affairs in the living world. What makes our present situation
unique is the rapidity and scale of the change. Our fragmentation and destruc-
421
U.N. Environnent Programme, http://www.unep-wcmc.org/about-biodiversity_133.
html.

tion of habitats constitutes a massive uncontrolled experiment in ecology

and genetics. Knowledge of population structures, i.e. the distribution and
amount of genetic variation, of a wide range of organisms is necessary, as
is a much deeper understanding of the biological significance of different
sorts of variation.
Although much debate on biodiversity focuses on ‘species’,… this is not a
standard unit. The way species are defined differs between groups and be-
tween taxonomists. However, despite these ambiguities, measures of species
richness and distribution are important tools in assessing the state of the en-
vironment and the direction and speed of change. The number of described
species is now around 1.7 million. The estimated total number of species in
existence ranges in order of magnitude from around 10 million to 100 million.
Threats to Biodiversity422
These include:
• The unsustainable harvesting of natural resources, including
plants, animals and marine species.
• The loss, degradation or fragmentation of ecosystems
through land conversion for agriculture, forest clearing etc.
• Invasive non-native or ‘alien’ species being introduced to
ecosystems to which they are not adapted i.e. where they
have no, or not enough, predators, to maintain an ecological
balance.
• Pollution
• Climate change
The first two have taken place throughout human history, although not on
the current scale. The introduction of invasive species is certainly facilitated,
if not caused, by the level of international transport and traffic of goods of
our trade system. The latter two are definitely products of an industrial age.
The U.N. Convention on Biological Diversity423

The Earth’s biological resources are vital to humanity’s economic and
social development. As a result, there is a growing recognition that biological
diversity is a global asset of tremendous value to present and future genera-
422
Id. at http://www.unep-wcmc.org/threats-to-biodiversity_52.html.
423
Overview by CBD Secretariat, http://www.cbd.int/history/.

PA R T I I
tions. At the same time, the threat to species and ecosystems has never been
so great as it is today. Species extinction caused by human activities continues
at an alarming rate.
In response, the United Nations Environment Programme (UNEP)
convened the Ad Hoc Working Group of Experts on Biological Diversity in
November 1988 to explore the need for an. international convention on
biological diversity. Soon after, in May 1989, it established the Ad Hoc Work-
ing Group of Technical and Legal Experts to prepare an international legal
instrument for the conservation and sustainable use of biological diversity.
The experts were to take into account “the need to share costs and benefits
between developed and developing countries” as well as “ways and means
to support innovation by local people.”
By February 1991, the Ad Hoc Working Group had become known as
the Intergovernmental Negotiating Committee. Its work culminated on 22
May 1992 with the Nairobi Conference for the Adoption of the Agreed Text
of the Convention on Biological Diversity.
The Convention was opened for signature on 5 June 1992 at the United
Nations Conference on Environment and Development (the Rio “Earth Sum-
mit”). It remained open for signature until 4 June 1993, by which time it had
received 168 signatures. The Convention entered into force on 29 December
1993, which was 90 days after the 30th ratification. The first session of the
Conference of the Parties was scheduled for 28 November – 9 December
1994 in the Bahamas.
The Convention on Biological Diversity was inspired by the world com-
munity’s growing commitment to sustainable development. It represents a
dramatic step forward in the conservation of biological diversity, the sustain-
able use of its components, and the fair and equitable sharing of benefits
arising from the use of genetic resources.
Consider Selected Convention Articles:
Article 6.General Measures for Conservation and Sustainable Use
Each Contracting Party shall, in accordance with its particular conditions
and capabilities:
(a) Develop national strategies, plans or programmes for the conservation
and sustainable use of biological diversity or adapt for this purpose existing
strategies, plans or programmes which shall reflect, inter alia, the measures
set out in this Convention relevant to the Contracting Party concerned; and
(b) Integrate, as far as possible and as appropriate, the conservation and

sustainable use of biological diversity into relevant sectoral or cross-sectoral

plans, programmes and policies.
Article 7. Identification and Monitoring
Each Contracting Party shall, as far as possible and as appropriate, in
particular for the purposes of Articles 8 to 10:
(a) Identify components of biological diversity important for its conser-
vation and sustainable use having regard to the indicative list of categories
set down in Annex I;
(b) Monitor, through sampling and other techniques, the components
of biological diversity identified pursuant to subparagraph (a) above, paying
particular attention to those requiring urgent conservation measures and
those which offer the greatest potential for sustainable use;
(c) Identify processes and categories of activities which have or are likely
to have significant adverse impacts on the conservation and sustainable use
of biological diversity, and monitor their effects through sampling and other
techniques; and…
Article 14. Impact Assessment and Minimizing Adverse Impacts
1. Each Contracting Party, as far as possible and as appropriate, shall:
(a) Introduce appropriate procedures requiring environmental impact
assessment of its proposed projects that are likely to have significant ad-
verse effects on biological diversity with a view to avoiding or minimizing
such effects and, where appropriate, allow for public participation in such
procedures;
(b) Introduce appropriate arrangements to ensure that the environmental
consequences of its programmes and policies that are likely to have signifi-
cant adverse impacts on biological diversity are duly taken into account; …
Article 15. Access to Genetic Resources
1. Recognizing the sovereign rights of States over their natural resources,
the authority to determine access to genetic resources rests with the national
governments and is subject to national legislation.
2. Each Contracting Party shall endeavour to create conditions to fa-
cilitate access to genetic resources for environmentally sound uses by other
Contracting Parties and not to impose restrictions that run counter to the
objectives of this Convention.

PA R T I I
3. For the purpose of this Convention, the genetic resources being pro-
vided by a Contracting Party, as referred to in this Article and
Articles 16 and 19, are only those that are provided by Contracting Par-
ties that are countries of origin of such resources or by the Parties that have
acquired the genetic resources in accordance with this Convention.
4. Access, where granted, shall be on mutually agreed terms and subject
to the provisions of this Article.
5. Access to genetic resources shall be subject to prior informed consent
of the Contracting Party providing such resources, unless otherwise deter-
mined by that Party.
6. Each Contracting Party shall endeavour to develop and carry out scien-
tific research based on genetic resources provided by other Contracting Parties
with the full participation of, and where possible in, such Contracting Parties.
7. Each Contracting Party shall take legislative, administrative or policy
measures, as appropriate, and in accordance with Articles 16 and 19 and,
where necessary, through the financial mechanism established by Articles
20 and 21 with the aim of sharing in a fair and equitable way the results of
research and development and the benefits arising from the commercial and
other utilization of genetic resources with the Contracting Party providing
such resources. Such sharing shall be upon mutually agreed terms….
Article 21. Financial Mechanism
1. There shall be a mechanism for the provision of financial resources
to developing country Parties for purposes of this Convention on a grant or
concessional basis the essential elements of which are described in this Article.
The mechanism shall function under the authority and guidance of, and be ac-
countable to, the Conference of the Parties for purposes of this Convention. …
For purposes of this Convention, the Conference of the Parties shall determine
the policy, strategy, programme priorities and eligibility criteria relating to the
access to and utilization of such resources. The contributions shall be such as
to take into account the need for predictability, adequacy and timely flow of
funds referred to in Article 20 in accordance with the amount of resources
needed to be decided periodically by the Conference of the Parties and the
importance of burden-sharing among the contributing Parties included in
the list referred to in Article 20, paragraph 2. Voluntary contributions may
also be made by the developed country Parties and by other countries and
sources. The mechanism shall operate within a democratic and transparent
system of governance….

Protection of the Meridian Frog, Decision of the European

Court of Justice, 2007424
Facts: The Conservation Association HARITZALDE turned to International
Court of Environmental Arbitration and Conciliation to issue a consultative
opinion with regard to protection of Meridian Frog (Hyla Meridionalis) and
its habitats. The Meridian Frog is considered the only amphibian endangered
of extinction of the Basque Country according to the Basque Catalogue of En-
dangered Wild Fauna and Flora. Reproduction of Hyla Meriodionalis is effective
only in the Gurelesa dam, where 85% of adults are concentrated. The lands of the
Gurelesa dam were sold to a company for the construction of industrial pavilion.
Several regulations of some international conventions are fully applicable
to the given case. It is necessary to underline, that these regulations are aimed
predominately on preventive measures. The sense of these regulations is to
protect directly endangered species and their habitats which are necessary for
their life and reproduction, any forms of possible danger, in present time or
in the future. Presumption of the applicability of regulations contained in in-
ternational conventions is of course the fact that Spain is a Contracting Party.
For example, consider the Convention on the Conservation of European
Wildlife and Natural Habitats (Bern, 19 September 1979). The aims of this
Convention are to conserve wild flora and fauna and their natural habitats.
Particular emphasis is given to endangered and vulnerable species (Article 1,
par.2). Article 2 binds the Contracting Parties to take measures to maintain
the population of wild flora and fauna.
Fully applicable for the protection of Hyla Meridionalis is Article 3, par. 1:
“Each Contracting Party shall take steps to promote national policies for the
conservation of wild flora, wild fauna and natural habitats, with particular
attention to endangered and vulnerable species, especially endemic ones, and
endangered habitats, in accordance with the provisions of this Convention.”
As derives from the background of this case, Hyla Meridionalis is an en-
dangered species, vulnerable species, endemic species and its natural habitat
is now seriously endangered.
Chapter II of the Convention deals with the protection of habitats. For the
case of Hyla Meridionalis are provisions of this chapter of highest importance,
424
International Court of Environmental Arbitration and Conciliation, Opinion, Dec.
2000. The International Court of Environmental Arbitration and Conciliation was
established in Mexico D.F. (Distrito Federal) in November 1994, by 28 lawyers from
22 different countries. Their opinions are recommendatory.

PA R T I I
because the whole problem of the case consists at this moment predomi-
nately in assuring full protection of the natural habitat of Hyla Meridionalis
as presumption of future development of the protected species.
Endangered natural habitats are protected by provisions of Article 4, par.
1: “Each Contracting Party shall take appropriate and necessary legislative
and administrative measures to ensure the conservation of the habitats of
wild flora and fauna, especially those specified in the Appendices I and the
conservation of endangered habitats.”
Appendix II of the Convention contains the list of strictly protected
fauna species. Only three species of frogs are included into this list –Hyla
Meridionalis among them (besides Hyla Arborea and Hyla Sarda). That means
that Hyla Meridionalis and its habitats is considered as an object of highest
protection in all the actions which could influence the development and
existence of that species.
Another obligation is clearly formulated in Article 4, par. 2, which states:
“The Contracting Parties in their planning and development policies shall
have regard to the conservation requirements of the areas protected under
preceding paragraph, so as to avoid or minimise as far as possible any dete-
rioration of such areas.”
In case of Hyla Meridionalis living in the dam Gurelesa, whether its
habitat should be completely destroyed by the construction of business area
does not come into consideration eventual minimalisation of damage. The
only possibility in this case is to avoid “deterioration” (in this case complete
destruction), to conserve present natural habits of this species.
Chapter III of the Convention contains regulations aimed at the protec-
tion of the species. Each Contracting Party has undertaken the obligation
(Article 6) to take appropriate and necessary legislative and administrative
measures to ensure the special protection of the wild fauna species specified
in Appendix II.
For the cases of protection of Hyla Meridionalis, as a strictly protected
species, the following provisions of this Article can be applied:
-para. b -the deliberate damage to or destruction of breeding or resting
sites is in particular prohibited,
-para. c -the deliberate disturbance of wild fauna, particularly during the
period of breeding, rearing and hibernation, insofar as disturbance would
be significant in relation to the objectives of this Convention, is in particular
prohibited.

The intended construction of a business area over the present natural

habitat of Hyla Meridionalis could not be considered otherwise than an
intended violation of Bern Convention from two points of view: violation
of provisions aimed at protection of habitats and violation of provisions
aimed at protection of species. By virtue these considerations the petition
of Conservationist Association HATITZALDE can be considered as justified
for the following reasons:
A) the object of the petition, species of Hyla Meridionalis (as well as its
natural habitat) is a strictly protected fauna species (Convention on the Con-
servation of European Wildlife and Natural Habitats). The planned destruction
of Hyla Meridionalis in the Basque Country; and
B) the intended construction of a business park over existing natural
habitat of Hyla Meridionalis would mean the violation of more legal provisions
aimed at the protection of this strictly protected species and which are fully
applicable on given case ( Order 167/1996, Basque Catalogue of Endangered
Species of Wild Fauna and Flora; Act 16/1994, on Nature Conservation of
the Basque Country; Convention on the Conservation of European Wildlife
and Natural Habitats; and Convention on Biological Diversity.
Conservationist association HARITZALDE may request that the competent
Authorities change the land use plan of the area of Berio and Gurelesa and
declare this area as a protected area, natural habitat of Hyla Meridionalis.
Conservationist association HARITZALDE may prepare, in due co-op-
eration with competent Authorities, status of mentioned protected area, in
which appropriate and necessary legislative and administrative measures to
ensure the conservation of habitat of Hyla Meridionalis and conditions of
undisturbed the development of that species shall be regulated.

PA R T I I
Climate Change
UN Framework Convention on Climate Change and Kyoto
Protocol425
Over a decade ago, most countries joined an international treaty – the
United Nations Framework Convention on Climate Change(UNFCCC) -- to
begin to consider what can be done to reduce global warming and to cope
with whatever temperature increases are inevitable. More recently, a number
of nations approved an addition to the treaty: the Kyoto Protocol which has
more powerful (and legally binding) measures. The UNFCC Secretariat sup-
ports all institutions involved in the climate change process, particularly the
COP, the subsidiary bodies and their Bureau.
The Kyoto Protocol is an international agreement linked to the United
Nations Framework Convention on Climate Change. The major feature of the
Kyoto Protocol is that it sets binding targets for 37 industrialized countries
and the European community for reducing greenhouse gas (GHG) emissions
.These amount to an average of five per cent against 1990 levels over the
five-year period 2008-2012.
The major distinction between the Protocol and the Convention is that
while the Convention encouraged industrialised countries to stabilize GHG
emissions, the Protocol commits them to do so.
Recognizing that developed countries are principally responsible for the
current high levels of GHG emissions in the atmosphere as a result of more
than 150 years of industrial activity, the Protocol places a heavier burden
on developed nations under the principle of “common but differentiated
responsibilities.”
The Kyoto Protocol Mechanisms

Under the Treaty, countries must meet their targets primarily through
national measures. However, the Kyoto Protocol offers them an additional
means of meeting their targets by way of three market-based mechanisms.
425
Background from the United Nations Framework Convention on Climate Change
Secretariat, at http://unfccc.int/essential_background/items/6031.php. The Kyoto
Protocol was adopted in Kyoto, Japan, on 11 December 1997 and entered into force
on 16 February 2005. The detailed rules for the implementation of the Protocol were
adopted at COP 7 in Marrakesh in 2001, and are called the “Marrakesh Accords.”

The Kyoto mechanisms are:

• Emissions trading – known as “the carbon market”.
• Clean development mechanism (CDM).
• Joint implementation (JI).
The mechanisms help stimulate green investment and help Parties meet
their emission targets in a cost-effective way.
Monitoring emission targets
Under the Protocol, countries’ actual emissions have to be monitored and
precise records have to be kept of the trades carried out.
Registry systems track and record transactions by Parties under the mecha-
nisms. The UN Climate Change Secretariat, based in Bonn, Germany, keeps an
international transaction log to verify that transactions are consistent with
the rules of the Protocol.
Reporting is done by Parties by way of submitting annual emission inven-
tories and national reports under the Protocol at regular intervals.
A compliance system ensures that Parties are meeting their commitments
and helps them to meet their commitments if they have problems doing so.
Adaptation
The Kyoto Protocol, like the Convention, is also designed to assist coun-
tries in adapting to the adverse effects of climate change. It facilitates the
development and deployment of techniques that can help increase resilience
to the impacts of climate change.
The Adaptation Fund was established to finance adaptation projects and
programmes in developing countries that are Parties to the Kyoto Protocol. The
Fund is financed mainly with a share of proceeds from CDM project activities.
The Road Ahead
The Kyoto Protocol is generally seen as an important first step towards
a truly global emission reduction regime that will stabilize GHG emissions,
and provides the essential architecture for any future international agreement
on climate change.
By the end of the first commitment period of the Kyoto Protocol in 2012,
a new international framework needs to have been negotiated and ratified
that can deliver the stringent emission reductions the Intergovernmental
Panel on Climate Change has clearly indicated are needed.

PA R T I I
Republic of Estonia v. European Commission426
***
3. The United Nations Framework Convention on Climate Change (‘the
Framework Convention’) was adopted in New York on 9 May 1992, with the
ultimate objective of stabilising greenhouse gas concentrations in the atmo-
sphere at a level that would prevent dangerous anthropogenic interference
with the climate system. On 11 December 1997 the parties to the Framework
Convention adopted, pursuant to the convention, the Kyoto Protocol to
the United Nations Framework Convention on Climate Change (‘the Kyoto
Protocol’), which entered into force on 16 February 2005.
4. The objective of the Kyoto Protocol is to reduce overall emissions of
six greenhouse gases, including carbon dioxide (CO2), by at least 5% below
1990 levels in the period 2008 to 2012. The parties included in Annex I to the
Framework Convention have committed themselves to ensuring that their
greenhouse gas emissions do not exceed the percentages assigned them by
the Kyoto Protocol; the parties can fulfil their obligations jointly. The overall
commitment entered into by the European Community and its Member
States under the Kyoto Protocol relates to a total reduction of greenhouse
gas emissions by 8% compared with their 1990 levels during the period of
commitment mentioned above.
Community law
5. The Council of the European Union approved on behalf of the Com-
munity, first, the Framework Convention, by Decision 94/69/EC of 15 De-
cember 1993 concerning the conclusion of the United Nations Framework
Convention on Climate Change (OJ 1994 L 33, p. 11), and, second, the Kyoto
Protocol, by Decision 2002/358/EC of 25 April 2002 concerning the approval,
on behalf of the European Community, of the Kyoto Protocol to the United
Nations Framework Convention on Climate Change and the joint fulfilment
of commitments thereunder (OJ 2002 L 130, p. 1). In accordance with the first
paragraph of Article 2 of the latter decision, the Community and its Member
States are to fulfil their overall commitment under the Kyoto Protocol jointly….
7. On the basis of Article 175(1) EC, the Commission presented on 23 Octo-
ber 2001 a proposal for a directive of the European Parliament and of the Council
426
Societe Arcelor Atlantique et Lorraine and others v. Premier Ministre, Ministre de
l’Economie, des Finances et del’Industrie, Ministre de l’Ecologie et du Developpement
Durable, Case C-127/07, Official Journal of the European Union, 26/5/2007, C117/8.
Decision in favor of applicant and Estonia, and against European Commission on
appeal. See, Case C 505/09 P, European Commission v. Republic of Estonia (2009).

establishing a scheme for greenhouse gas emission allowance trading within the
Community and amending Council Directive 96/61/EC (COM (2001) 581 final;
‘the Commission Proposal’), which led to the adoption of Directive 2003/87.
8. As stated in recital 5 in its preamble, that directive aims to make an ef-
fective contribution to fulfilling the commitments of the Community and its
Member States under the Kyoto Protocol to reduce anthropogenic greenhouse
gas emissions, in accordance with Decision 2002/358, through an efficient
European market in greenhouse gas emission allowances (‘allowances’), with
the least possible diminution of economic development and employment….
National law
19. Directive 2003/87 was transposed into French law by Regulation No
2004 330 establishing a scheme for greenhouse gas emission allowance trad-
ing of 15 April 2004, which introduced inter alia Articles L.229 5 to L.229 19 of
the Code of the Environment. The detailed rules for the application of those
articles were laid down by Decree No 2004 832 of 19 August 2004. The annex
to Decree No 2004 832 simply reproduced Annex I to Directive 2003/87.
20. The applicants in the main proceedings are undertakings in the steel
sector. They requested the competent French authorities to repeal Article 1 of
Decree No 2004 832 in so far as it made the decree applicable to installations
in the steel sector. As their requests remained unanswered, they brought an
action before the Conseil d’Etat for judicial review of the implied decisions
rejecting those requests, asking for those authorities to be ordered to effect
the repeal in question. In support of their application, they relied on breach
of several constitutional principles, such as the right to property, the freedom
to carry on a business, and the principle of equal treatment.
21. The Conseil d’Etat rejected the pleas in law put forward by the ap-
plicants in the main proceedings, with the exception of the plea of breach
of the constitutional principle of equal treatment as a result of the different
treatment of comparable situations. On that point, it observed in its order
for reference that the plastics and aluminium industries emitted greenhouse
gases identical to those whose emission Directive 2003/87 aimed to restrict,
and that those industries produced materials which could be substituted in
part for those produced by the steel industry, with which they were there-
fore in competition. It considered that, even if the decision not immediately
to include the plastics and aluminium industries in the allowance trading
scheme had been taken because of their relative share of total emissions of
greenhouse gases and the need to ensure that comprehensive legislation was
implemented gradually, the issue of whether the different treatment of the
industries concerned was objectively justified raised a real problem.

PA R T I I
22. In the light of those considerations, the Conseil d’Etat decided to

stay the proceedings and refer the following question to the Court for a
preliminary ruling:
‘[Is Directive 2003/87 valid] in the light of the principle of equal treat-
ment, in so far as it makes the … allowance trading scheme applicable to
installations in the steel sector without including in its scope the aluminium
and plastics industries[?]’
23. The general principle of equal treatment, as a general principle of
Community law, requires that comparable situations must not be treated
differently and different situations must not be treated in the same way
unless such treatment is objectively justified (see, inter alia, Case 106/83
Sermide [1984] ECR 4209, paragraph 28; Joined Cases C 133/93, C 300/93
and C 362/93 Crispoltoni and Others [1994] ECR I 4863, paragraphs 50 and
51; and Case C 313/04 Franz Egenberger [2006] ECR I 6331, paragraph 33).
24. Since it takes the view that the steel, plastics and aluminium sectors
are in a comparable situation, the national court wishes to know whether,
by excluding the plastics and aluminium sectors from the scope of Directive
2003/87, the Community legislature breached that principle with respect to
the steel sector. The reference for a preliminary ruling therefore relates solely
to the question whether the Community legislature breached that principle
by applying unjustifiable different treatment to comparable situations….
28. Under Article 1 of Directive 2003/87, the aim of the directive is to
establish a Community scheme for allowance trading. According to points
4.2 and 4.3 of the Green Paper, the Community’s intention was to introduce,
by the directive, such a system at the level of companies, thus referring to
economic activities.
29. According to recital 5 in the preamble to Directive 2003/87, its objec-
tive is to establish that scheme in order to contribute to fulfilling the commit-
ments of the Community and its Member States under the Kyoto Protocol,
which aims to reduce greenhouse gas emissions in the atmosphere to a level
that prevents dangerous anthropogenic interference with the climate system,
with the ultimate objective of protection of the environment.
30. Community policy on the environment, to which the legislative act
at issue in the main proceedings relates, and one of whose principal objec-
tives is the protection of the environment, aims, in accordance with Article
174(2) EC, at a high level of protection and is based in particular on the
precautionary principle, the principle that preventive action should be taken,
and the polluter-pays principle (see Case C 157/96 National Farmers’ Union

and Others [1998] ECR I 2211, paragraph 64, and Joined Cases C 14/06 and
C 295/06 Parliament and Denmark v Commission [2008] ECR I 0000, para-
graph 75 and the case-law cited).
31. While the ultimate objective of the allowance trading scheme is the
protection of the environment by means of a reduction of greenhouse gas
emissions, the scheme does not of itself reduce those emissions but encour-
ages and promotes the pursuit of the lowest cost of achieving a given amount
of emissions reductions, as appears inter alia from point 3 of the Green Paper
and point 2 of the statement of reasons in the Commission Proposal. The
benefit for the environment depends on the stringency of the total quantity
of allowances allocated, which represents the overall limit on emissions al-
lowed by the scheme.
32. It also appears that the economic logic of the allowance trading
scheme consists in ensuring that the reductions of greenhouse gas emissions
required to achieve a predetermined environmental outcome take place at
the lowest cost. By allowing the allowances that have been allocated to be
sold, the scheme is intended to encourage a participant in the scheme to emit
quantities of greenhouse gases that are less than the allowances originally
allocated him, in order to sell the surplus to another participant who has
emitted more than his allowance.
33. So, for the allowance trading scheme to function properly, there must
be a supply and demand for allowances on the part of the participants in the
scheme, which also means that the potential for reduction of emissions at-
tributable to the activities covered by the scheme may vary, even considerably.
Moreover, according to the Green Paper, the wider the scope of the system,
the greater will be the variation in the costs of compliance of individual un-
dertakings, and the greater the potential for lowering costs overall.
34. It follows that, in relation to the subject-matter of Directive 2003/87,
the objectives of that directive referred to in paragraph 29 above, and the
principles on which Community policy on the environment is based, the dif-
ferent sources of greenhouse gas emissions relating to economic activities are
in principle in a comparable situation, since all emissions of greenhouse gases
are liable to contribute to dangerous interference with the climate system
and all sectors of the economy which emit such gases can contribute to the
functioning of the allowance trading scheme.
35. Furthermore, it should be pointed out, first, that recital 25 in the
preamble to Directive 2003/87 states that policies and measures should be
implemented across all sectors of the economy of the Union in order to gener-
ate substantial emissions reductions and, second, that Article 30 of Directive

PA R T I I
2003/87 provides that a review is to be carried out with a view to including

other sectors in the scope of the directive.
36. It follows that, as regards the comparability of the sectors in ques-
tion from the point of view of Directive 2003/87, the possible existence of
competition between those sectors cannot constitute a decisive criterion, as
the Advocate General observes in point 43 of his Opinion.
37. Nor, contrary to the arguments of the institutions which have sub-
mitted observations to the Court, is the quantity of CO2 emitted by each
sector essential for assessing their comparability, in view in particular of the
objectives of Directive 2003/87 and the functioning of the allowance trading
scheme, as described in paragraphs 31 to 33 above.
38. The steel, chemical and non-ferrous metal sectors are therefore, for
the purposes of examining the validity of Directive 2003/87 from the point
of view of the principle of equal treatment, in a comparable position while
being treated differently….
60. In the present case, it is common ground, first, that the allowance
trading scheme introduced by Directive 2003/87 is a novel and complex
scheme whose implementation and functioning could have been disturbed
by the involvement of too great a number of participants, and, second, that
the original definition of the scope of the directive was dictated by the ob-
jective of attaining the critical mass of participants necessary for the scheme
to be set up….
63. However, as the Advocate General notes inter alia in point 48 of his
Opinion, the Community legislature’s discretion as regards a step-by-step
approach could not, in the light of the principle of equal treatment, dispense
it from having recourse, for determining the sectors it thought suitable for
inclusion in the scope of Directive 2003/87 from the outset, to objective
criteria based on the technical and scientific information available at the
time of adoption of the directive.
64. As regards, first, the chemical sector, it may be seen from the history of
Directive 2003/87 that that sector has an especially large number of installa-
tions, of the order of 34 000, not only in terms of the emissions they produce
but also in relation to the number of installations currently included in the
scope of the directive, which is of the order of 10 000.
65. The inclusion of that sector in the scope of Directive 2003/87 would
therefore have made the management of the allowance trading scheme more
difficult and increased the administrative burden, so that the possibility that
the functioning of the scheme would have been disturbed at the time of its

implementation as a result of that inclusion cannot be excluded. Moreover,

the Community legislature was able to take the view that the advantages of
excluding the whole sector at the start of the implementation of the allow-
ance trading scheme outweighed the advantages of including it for attaining
the objective of Directive 2003/87. It follows that the Community legislature
has shown to the requisite legal standard that it made use of objective criteria
to exclude the entire chemical sector from the scope of Directive 2003/87 in
the first stage of implementation of the allowance trading scheme.
66. The argument of the applicants in the main proceedings that the
inclusion in the scope of Directive 2003/87 of undertakings in that sector
emitting a quantity of CO2 above a certain threshold would not have caused
administrative problems cannot call into question the above assessment.
67. The statistics they refer to concern data on ‘facilities’, as is apparent
from Article 1 of Commission Decision 2000/479/EC of 17 July 2000 on the
implementation of a European pollutant emission register (EPER) according
to Article 15 of Council Directive 96/61/EC concerning integrated pollu-
tion prevention and control (IPPC) (OJ 2000 L 192, p. 36). A facility within
the meaning of that decision does not constitute an installation within the
meaning of Directive 2003/87, since, according to the definitions in Annex
A4 to that decision, such a facility is an ‘[i]ndustrial complex with one or more
installations on the same site, where one operator carries out one or more
Annex I activities’. The data relied on by the applicants in the main proceed-
ings thus refer only to facilities, the number of installations not being stated.
68. Consequently, the data produced by the applicants in the main
proceedings in support of their abovementioned argument do not enable
the Court to verify the assertion that a small number of installations in the
chemical sector were responsible for a large part of the total CO2 emissions
of the sector, so that the Community legislature should have included it in
part in the scope of Directive 2003/87.
69. In the light of the foregoing and having regard to the step-by-step
approach on which Directive 2003/87 is based, in the first stage of implemen-
tation of the allowance trading scheme, the difference in treatment between
the chemical sector and the steel sector may be regarded as justified.
70. As regards, second, the non-ferrous metal sector, it appears from the
scientific report mentioned in paragraph 52 above, which, according to the
observations of the Parliament, the Council and the Commission, the Com-
munity legislature made use of in drafting and adopting Directive 2003/87,
that direct emissions from that sector amounted to 16.2 million tonnes of
CO2 in 1990, while the steel sector emitted 174.8 million tonnes of CO2.

PA R T I I
71. In view of its intention of defining the scope of Directive 2003/87

in such a way as not to upset the administrative feasibility of the allowance
trading scheme in its initial stage by involving too many participants, the Com-
munity legislature was not required to have recourse solely to the method of
introducing, for each sector of the economy that emitted CO2, a threshold
for emissions in order to attain its objective. Thus, in circumstances such as
those in which Directive 2003/87 was adopted, it could when introducing
the scheme legitimately delimit its scope by means of a sectoral approach
without exceeding the bounds of its discretion.
72. The difference in the levels of direct emissions between the two sectors
concerned is so substantial that the different treatment of those sectors may,
in the first stage of implementation of the allowance trading scheme and in
view of the step-by-step approach on which Directive 2003/87 is based, be
regarded as justified without there having been any need for the Community
legislature to take into consideration the indirect emissions attributable to
the various sectors.
73. Accordingly, the Community legislature did not infringe the prin-
ciple of equal treatment by treating comparable situations differently when
it excluded the chemical and non-ferrous metal sectors from the scope of
Directive 2003/87.
74. In the light of all the above considerations, the answer to the national
court’s question must be that consideration of Directive 2003/87 from the
point of view of the principle of equal treatment has disclosed nothing to
affect its validity in so far as it makes the greenhouse gas emission allowance
trading scheme applicable to the steel sector without including the chemical
and non-ferrous metal sectors in its scope.
Human Rights and the Environment

Dubetska and Others v. Ukraine, Decision of the European
Court of Human Rights, 2011427
[The applicants, eleven Ukrainian nationals lodged a suit against Ukraine
for failure to protect their home, private and family life from excessive pollu-
tion generated by two state owned industrial coal mining and coal processing
facilities.]
427
Dubetska and Others v. Ukraine, Application no. 30499/03, European Court of
Human Rights, 10 February 2011.

***
105. The Court refers to its well-established case-law that neither Article
8 nor any other provision of the Convention guarantees the right to preserva-
tion of the natural environment as such (see Kyrtatos v. Greece, no. 41666/98,
§ 52, ECHR 2003-VI). Likewise, no issue will arise if the detriment complained
of is negligible in comparison to the environmental hazards inherent in life
in every modern city. However, an arguable claim under Article 8 may arise
where an environmental hazard attains a level of severity resulting in signifi-
cant impairment of the applicant’s ability to enjoy his home, private or family
life. The assessment of that minimum level is relative and depends on all the
circumstances of the case, such as the intensity and duration of the nuisance
and its physical or mental effects on the individual’s health or quality of life
(see, among other authorities, Fadeyeva, cited above, §§ 68-69).
106. While there is no doubt that industrial pollution may negatively af-
fect public health in general and worsen the quality of an individual’s life, it is
often impossible to quantify its effects in each individual case. As regards health
impairment for instance, it is hard to distinguish the effect of environmental
hazards from the influence of other relevant factors, such as age, profession or
personal lifestyle. “Quality of life” in its turn is a subjective characteristic which
hardly lends itself to a precise definition (see Ledyayeva and Others v. Russia,
nos. 53157/99, 53247/99, 53695/00 and 56850/00, § 90, 26 October 2006)….
108. In addition, in order to determine whether or not the State could be
held responsible under Article 8 of the Convention, the Court must examine
whether a situation was a result of a sudden and unexpected turn of events
or, on the contrary, was long-standing and well known to the State authori-
ties (see Fadeyeva, cited above, §§ 90-91); whether the State was or should
have been aware that the hazard or the nuisance was affecting the applicant’s
private life (see Lopez Ostra v. Spain, 9 December 1994, §§ 52-53, Series A no.
303-C) and to what extent the applicant contributed to creating this situation
for himself and was in a position to remedy it without a prohibitive outlay
(see Ledyayeva, cited above, § 97).
109. The Court reiterates that the present case concerns an allegation
of adverse effects on the applicants’ Article 8 rights on account of industrial
pollution emanating from two State-owned facilities – the Vizeyska coal
mine and the Chervonogradska coal-processing factory (in particular, its
waste heap, which is 60 metres high).
110. The applicants’ submissions relate firstly to deterioration of their
health on account of water, air and soil pollution by toxic substances in excess

PA R T I I
of permissible concentrations. In addition, these submissions likewise concern

the worsening of the quality of life in view of the damage to the houses by soil
subsidence and persistent difficulties in accessing non-contaminated water,
which have adversely affected the applicants’ daily routine and interactions
between family members.
111. In assessing to what extent the applicants’ health was affected by
the pollution complained about, the Court agrees with the Government that
there is no evidence making it possible to establish quantifiable harm in the
present case. It considers, however, that living in the area marked by pollu-
tion in clear excess of applicable safety standards exposed the applicants to
an elevated risk to health.
112. As regards the quality of the applicants’ life, the Court notes the ap-
plicants’ photographs of water and their accounts of their daily routine and
communications (see paragraphs 24-30 above), which appear to be palpably
affected by environmental considerations.
113. It notes that, as suggested by the Government, there may be differ-
ent natural factors affecting the quality of water and causing soil subsidence
in the applicants’ case (see, for instance, paragraph 21 above). Moreover,
at the present time the issue of accessing fresh water appears to have been
resolved by the recent opening of a centralised aqueduct. At the same time,
the case file contains sufficient evidence that the operation of the mine and
the factory (in particular their spoil heaps) have contributed to the above
problems for a number of years, at least to a certain extent….
115. While agreeing with the Government that the statutory definitions
do not necessarily reflect the actual levels of pollution to which the applicants
were exposed, the Court notes that the applicants in the present case have
presented a substantial amount of data in evidence that the actual excess of
polluting substances within these distances from the facilities at issue has been
recorded on a number of occasions (see paragraphs 17-18 and 22-23 above).
116. In deciding on whether the damage (or risk of damage) suffered by
the applicants in the present case was such as to attract guarantees of Article
8, the Court also has regard to the fact that at various times the authorities
considered resettling the applicants. The need to resettle the Dubetska-Nayda
family was ultimately confirmed in a final judgment given by the Chervono-
grad Court on 26 December 2005….
118. Consequently, it appears that for a period exceeding twelve years
since the entry of the Convention into force in respect of Ukraine, the ap-
plicants were living permanently in an area which, according to both the

legislative framework and empirical studies, was unsafe for residential use
on account of air and water pollution and soil subsidence resulting from the
operation of two State-owned industrial facilities.
119. In these circumstances the Court considers that the environmental
nuisance complained about attained the level of severity necessary to bring
the complaint within the ambit of Article 8 of the Convention….
123. In the Court’s opinion the combination of all these factors shows a
strong enough link between the pollutant emissions and the State to raise an
issue of the State’s responsibility under Article 8 of the Convention….
155. The Court appreciates that tackling environmental concerns associ-
ated with the operation of two major industrial polluters, which had appar-
ently been malfunctioning from the start and piling up waste for over fifty
years, was a complex task which required time and considerable resources,
the more so in the context of these facilities’ low profitability and nationwide
economic difficulties, to which the Government have referred. At the same
time, the Court notes that these industrial facilities were located in a rural
area and the applicants belonged to a very small group of people (appar-
ently not more than two dozen families) who lived nearby and were most
seriously affected by pollution. In these circumstances the Government has
failed to adduce sufficient explanation for their failure to either resettle the
applicants or find some other kind of effective solution for their individual
burden for more than twelve years.
156. There has therefore been a breach of Article 8 of the Convention
in the present case.
Budayeva v. Russia, Decision of the European Court of

***
1. Background facts
13. The town of Tyrnauz is situated in the mountain district adjacent
to Mount Elbrus, in the central Caucasus. Its population is about 25,000 in-
habitants. The general urban plan of the town was developed in the 1950s
as part of a large-scale industrial construction project. Two tributaries of the
428
Budayeva v. Russia, Application nos. 15339/02, 21166/02, 20058/02, 11673/02
and 15343/02, European Court of Human Rights, 20 March 2008.

PA R T I I
Baksan River passing through Tyrnauz, the Gerhozhansu and the Kamyksu,
are known to be prone to causing mudslides.
14. The first documentary evidence of a mudslide in the Gerhozhansu
River dates back to 1937. Subsequently mudslides were registered almost every
year; occasionally they hit the town, causing damage. The heaviest mudslides
registered prior to 2000 occurred on 1 August 1960, on 11 August 1977 and
on 20 August 1999. According to the Government, the series of mudslides of
18-25 July 2000 were the strongest and most destructive of all.
15. The inhabitants and authorities of Tyrnauz are generally aware of
the hazard, and are accustomed to the mudslides which usually occur in the
summer and early autumn….
2. The condition of the dam in the summer of 2000
18. On 20 August 1999 a mud and debris flow hit the dam, seriously
damaging it.
19. On 30 August 1999 the director of the Mountain Institute, a state
agency whose mandate included monitoring weather hazards in high-altitude
areas, called for an independent survey of the damage caused to the dam by
the mudslide. He made recommendations to the Minister responsible for
Disaster Relief of the KBR concerning the composition of a State Commis-
sion for the survey.
20. On the same day he also sent a letter to the President of the KBR, call-
ing for emergency clean-up and restoration work to the dam and for an early
warning system to be set up to raise the alarm in the event of a mudslide....
21. On 17 January 2000 the acting director of the Mountain Institute sent
a letter to the Prime Minister of the KBR, warning about the increased risk of
mudslides in the coming season. He stated that the dam was seriously dam-
aged,... the only way to avoid casualties and mitigate the damage was to establish
observation posts to warn civilians in the event of a mudslide, for which he
requested a mandate and financial support (see the full text in Section C below).
22. On 7 March 2000 the Head of the Elbrus District Administration sent
a letter to the Prime Minister of the KBR in which he referred to the imminent
large-scale mudslide and requested financial aid to carry out certain emer-
gency work on the dam. In his request he invoked possible “record losses”
and casualties (see the full text in Section C below).
23. On 7 July 2000 the assistant director and the head of research of the
Mountain Institute attended a session at the Ministry for Disaster Relief of the
KBR. At the meeting they reiterated the warning about the risk of mudslides....

24. On 10 July 2000 the assistant director of the Mountain Institute re-
ported to the agency director that he had warned the Ministry for Disaster
Relief of the KBR of the forthcoming mudslide and requested the setting up
of twenty-four hour observation posts.
25. It would appear that none of the above measures were ever imple-
mented.
3. The mudslide of 18-25 July 2000
26. At about 11 p.m. on 18 July 2000 a flow of mud and debris hit the
town of Tyrnauz and flooded some of the residential quarters.
27. According to the Government, this first wave caused no casualties.
However, the applicants alleged ...to have witnessed the death of her neigh-
bour Ms. B, born in 1934, who was trapped in the debris and drowned in the
mud before anybody could help her. She also alleged that she had witnessed
a Zhiguli vehicle with four men in it being carried away by the mudslide.
28. According to the Government, following the mudslide of 18 July
2000 the authorities ordered the emergency evacuation of the residents of
Tyrnauz. The police and local officials went round people’s homes to notify
them of the mudslide and to help evacuate the elderly and disabled. In ad-
dition, police vehicles equipped with loudspeakers drove round the town,
calling on residents to evacuate because of the mud hazard.
29. ...The applicants agreed that the alarm was indeed raised through
loudspeakers once the mudslide had struck, but no advance warning was
given. They claimed that they had been unaware of the order to evacuate and
doubted that any had been issued. They also alleged that there had been no
rescue forces or other organised on-the-spot assistance at the scene of the
disaster, which became a cauldron of chaos and mass panic.
30. In the morning of 19 July 2000 the mud level lowered and the resi-
dents returned to their homes. The Government alleged that they did so in
breach of the evacuation order, while the applicants claimed that they were
not aware that the mudslide alert was still active, pointing out that there were
no barriers or warnings to prevent people from returning to their homes.
They did not spot any police or emergency officers near their homes, but
could see that their neighbours were all at home and children were playing
outside. Water, gas and electricity supplies had been reconnected after being
cut off during the night.
31. At 1 p.m. on the same day a second, more powerful, mudslide hit
the dam and destroyed it. Mud and debris instantly descended on the town,

PA R T I I
sweeping the wreckage of the dam before them. At 17 Otarova Street the
mudslide destroyed part of a nine-story block of flats, with four officially
reported casualties.....
32. The town was hit by a succession of mudslides until 25 July 2000.
33. Eight people were officially reported dead. According to the appli-
cants, a further 19 persons allegedly went missing.
34. According to the Government, on 3 August 2000 the Prosecutor’s
Office of the Elbrus District decided not to launch a criminal investigation
into the accident….
B. The Court’s assessment (citations omitted)
1. General principles applicable in the present case
(a) Applicability of Article 2 of the Convention and general principles
relating to the substantive aspect of that Article
128. The Court reiterates that Article 2 does not solely concern deaths
resulting from the use of force by agents of the State but also,... lays down a
positive obligation on States to take appropriate steps to safeguard the lives
of those within their jurisdiction...
129. This positive obligation entails above all a primary duty on the State
to put in place a legislative and administrative framework designed to provide
effective deterrence against threats to the right to life...
130. This obligation must be construed as applying in the context of any
activity, whether public or not, in which the right to life may be at stake (see
Öneryıldız v. Turkey [GC],... In particular, it applies to the sphere of industrial
risks, or “dangerous activities,” such as the operation of waste collection sites
in the case of Öneryıldız.
131. The obligation on the part of the State to safeguard the lives of
those within its jurisdiction has been interpreted so as to include ...a positive
obligation to take regulatory measures and to adequately inform the public
about any life-threatening emergency, and to ensure that any occasion of the
deaths caused thereby would be followed by a judicial enquiry.
132. ... in the particular context of dangerous activities the Court has
found that special emphasis must be placed on regulations geared to the
special features of the activity in question, particularly with regard to the
level of the potential risk to human lives. They must govern the licensing,
setting up, operation, security and supervision of the activity and must make
it compulsory for all those concerned to take practical measures to ensure

the effective protection of citizens whose lives might be endangered by the

inherent risks. Among these preventive measures, particular emphasis should
be placed on the public’s right to information, as established in the case-law
of the Convention institutions....
138. The obligations deriving from Article 2 do not end there. Where lives
have been lost in circumstances potentially engaging the responsibility of the
State, that provision entails a duty for the State to ensure, by all means at its
disposal, an adequate response – judicial or otherwise – so that the legislative
and administrative framework set up to protect the right to life is properly
implemented and any breaches of that right are repressed and punished….
142. ...the judicial system required by Article 2 must make provision for
an independent and impartial official investigation procedure that satisfies
certain minimum standards as to effectiveness and is capable of ensuring
that criminal penalties are applied to the extent that this is justified by the
findings of the investigation...
158. In the light of the above findings...the Court concludes that there
was no justification for the authorities’ omissions in implementation of the
land-planning and emergency relief policies in the hazardous area of Tyrnauz
regarding the foreseeable exposure of residents, including all applicants, to
mortal risk. Moreover, it finds that there was a causal link between the seri-
ous administrative flaws that impeded their implementation and the death
of Vladimir Budayev and the injuries sustained by the first and the second
applicants and the members of their family.
159. The authorities have thus failed to discharge the positive obligation
to establish a legislative and administrative framework designed to provide
effective deterrence against threats to the right to life as required by Article
2 of the Convention.
160. Accordingly, there has been a violation of Article 2 of the Conven-
tion in its substantive aspect.

PA R T I I
Corporate Responsibility for

Environmental Harm
U.N. Guiding Principles on Business and Human Rights429
The United Nations Human Rights Council endorsed the “Guiding Prin-
ciples on Business and Human Rights: Implementing the United Nations
‘Protect, Respect and Remedy’ Framework” on June 16, 2011. These principles
were proposed by the U.N. Special Representative John Ruggie and adopted
by the Human Rights Council in the following resolution.
17/4 Human rights and transnational corporations and other business
enterprises
The Human Rights Council,
***
Recognizing that proper regulation, including through national legisla-
tion, of transnational corporations and other business enterprises and their
responsible operation can contribute to the promotion, protection and fulfil-
ment of and respect for human rights and assist in channeling the benefits
of business towards contributing to the enjoyment of human rights and
fundamental freedoms,
Concerned that weak national legislation and implementation cannot
effectively mitigate the negative impact of globalization on vulnerable econo-
mies, fully realize the benefits of globalization or derive maximally the benefits
of activities of transnational corporations and other business enterprises, and
that further efforts to bridge governance gaps at the national, regional and
international levels are necessary,…
1. Welcomes the work and contributions of the Special Representative of
the Secretary-General on human rights and transnational corporations and
other business enterprises, and endorses the Guiding Principles on Business
and Human Rights: Implementing the United Nations “Protect, Respect and
Remedy” Framework, as annexed to the report of the Special Representative;…
3. Commends the Special Representative for developing and raising
awareness about the Framework based on three overarching principles of
the duty of the State to protect against human rights abuses by, or involving,
429
Human Rights Council resolution 17/4, July 6, 2011, on Human Rights and Trans-
national Business Enterprises, U.N. Doc. A/HRC/RES/17/4 (2011).

transnational corporations and other business enterprises, the corporate re-

sponsibility to respect all human rights, and the need for access to effective
remedies, including through appropriate judicial or non-judicial mechanisms;
4. Recognizes the role of the Guiding Principles for the implementation
of the Framework, on which further progress can be made, as well as guid-
ance that will contribute to enhancing standards and practices with regard
to business and human rights, and thereby contribute to a socially sustainable
globalization, without foreclosing any other long-term development, includ-
ing further enhancement of standards;…
6. Decides to establish a Working Group on the issue of human rights and
transnational corporations and other business enterprises, consisting of five
independent experts, of balanced geographical representation, for a period
of three years, to be appointed by the Human Rights Council at its eighteenth
session, and requests the Working Group:
(a) To promote the effective and comprehensive dissemination and
implementation of the Guiding Principles;
(b) To identify, exchange and promote good practices and lessons learned
on the implementation of the Guiding Principles and to assess and make rec-
ommendations there on and, in that context, to seek and receive information
from all relevant sources, including Governments, transnational corporations
and other business enterprises, national human rights institutions, civil society
and rights-holders;
(c) To provide support for efforts to promote capacity-building and the
use of the Guiding Principles, as well as, upon request, to provide advice and
recommendations regarding the development of domestic legislation and
policies relating to business and human rights;
(d) To conduct country visits and to respond promptly to invitations
from States;
(e) To continue to explore options and make recommendations at the
national, regional and international levels for enhancing access to effective
remedies available to those whose human rights are affected by corporate
activities, including those in conflict areas;
(f) To integrate a gender perspective throughout the work of the man-
date and to give special attention to persons living in vulnerable situations,
in particular children;…
(h) To develop a regular dialogue and discuss possible areas of co-
operation with Governments and all relevant actors, including relevant

PA R T I I
United Nations bodies, specialized agencies, funds and programmes, in

particular the Office of the United Nations High Commissioner for Hu-
man Rights, the Global Compact, the International Labour Organization,
the World Bank and its International Finance Corporation, the United
Nations Development Programme and the International Organization for
Migration, as well as transnational corporations and other business enter-
prises, national human rights institutions, representatives of indigenous
peoples, civil society organizations and other regional and subregional
international organizations;
(i) To guide the work of the Forum on Business and Human Rights es-
tablished pursuant to paragraph 12 below;
(j) To report annually to the Human Rights Council and the General As-
sembly;
7. Encourages all Governments, relevant United Nations agencies, funds
and programmes, treaty bodies, civil society actors, including non-govern-
mental organizations, as well as the private sector to cooperate fully with
the Working Group in the fulfilment of its mandate by, inter alia, responding
favourably to visit requests by the Working Group;
8. Invites international and regional organizations to seek the views of
the Working Group when formulating or developing relevant policies and
instruments;
9. Requests the Secretary-General and the United Nations High Commis-
sioner for Human Rights to provide all the assistance necessary to the Working
Group for the effective fulfilment of its mandate;
10. Welcomes the important role of national human rights institutions
established in accordance with the Paris Principles in relation to business and
human rights, and encourages national human rights institutions to develop
further their capacity to fulfil that role effectively, including with the support
of the Office of the High Commissioner and in addressing all relevant actors;
11. Requests the Secretary-General to prepare a report on how the United
Nations system as a whole…can contribute to the advancement of the busi-
ness and human rights agenda and the dissemination and implementation
of the Guiding Principles,…
12. Decides to establish a Forum on Business and Human Rights under
the guidance of the Working Group to discuss trends and challenges in the
implementation of the Guiding Principles and promote dialogue and coop-
eration on issues linked to business and human rights, including challenges

faced in particular sectors, operational environments or in relation to specific

rights or groups, as well as identifying good practices;
13. Also decides that the Forum shall be open to the participation of
States, United Nations mechanisms, bodies and specialized agencies, funds
and programmes, intergovernmental organizations, regional organizations
and mechanisms in the field of human rights, national human rights institu-
tions and other relevant bodies, transnational corporations and other business
enterprises, business associations, labour unions, academics and experts in the
field of business and human rights, representatives of indigenous peoples and
non-governmental organizations in consultative status with the Economic and
Social Council; the Forum shall also be open to other non-governmental orga-
nizations whose aims and purposes are in conformity with the spirit, purposes
and principles of the Charter of the United Nations, including affected individu-
als and groups, based on arrangements, including Economic and Social Council
resolution 1996/31 of 25 July 1996, and practices observed by the Commission
on Human Rights, through an open and transparent accreditation procedure
in accordance with the Rules of Procedure of the Human Rights Council;…
16. Invites the Working Group to include in its report reflections on the
proceedings of the Forum and recommendations for future thematic subjects
for consideration by the Human Rights Council;…
18. Decides to continue consideration of this question in conformity with
the annual programme of work of the Human Rights Council.
33rd meeting
16 June 2011[Adopted without a vote]
Guiding Principles on Business and Human Rights:

Implementing the United Nations “Protect, Respect and
Remedy” Framework430
These Guiding Principles are grounded in recognition of:
(a) States’ existing obligations to respect, protect and fulfil human rights
and fundamental freedoms;
(b) The role of business enterprises as specialized organs of society per-
forming specialized functions, required to comply with all applicable laws
and to respect human rights;
430
Report of the Special Representative of the Secretary-General on the issue of hu-
man rights and transnational corporations and other business enterprises, John
Ruggie, March 21, 2011, Human Rights Council, U.N. Doc. HRC/17/31 (2011).

PA R T I I
(c) The need for rights and obligations to be matched to appropriate and
effective remedies when breached.
These Guiding Principles apply to all States and to all business enterprises,
both transnational and others, regardless of their size, sector, location, own-
ership and structure….
I. The State duty to protect human rights
A. Foundational principles
1. States must protect against human rights abuse within their territory
and/or jurisdiction by third parties, including business enterprises. This re-
quires taking appropriate steps to prevent, investigate, punish and redress
such abuse through effective policies, legislation, regulations and adjudica-
tion….
***
II. The Corporate Responsibility to Respect Human Rights
B. Operational principles
Human rights due diligence
18. In order to gauge human rights risks, business enterprises should
identify and assess any actual or potential adverse human rights impacts with
which they may be involved either through their own activities or as a result
of their business relationships. This process should:
(a) Draw on internal and/or independent external human rights expertise;
(b) Involve meaningful consultation with potentially affected groups
and other relevant stakeholders, as appropriate to the size of the business
enterprise and the nature and context of the operation.
Commentary
The initial step in conducting human rights due diligence is to identify
and assess the nature of the actual and potential adverse human rights im-
pacts with which a business enterprise may be involved. The purpose is to
understand the specific impacts on specific people, given a specific context of
operations. Typically this includes assessing the human rights context prior to
a proposed business activity, where possible; identifying who may be affected;
cataloguing the relevant human rights standards and issues; and projecting
how the proposed activity and associated business relationships could have
adverse human rights impacts on those identified. In this process, business
enterprises should pay special attention to any particular human rights im-

pacts on individuals from groups or populations that may be at heightened

risk of vulnerability or marginalization, and bear in mind the different risks
that may be faced by women and men. While processes for assessing hu-
man rights impacts can be incorporated within other processes such as risk
assessments or environmental and social impact assessments, they should
include all internationally recognized human rights as a reference point,
since enterprises may potentially impact virtually any of these rights. Because
human rights situations are dynamic, assessments of human rights impacts
should be undertaken at regular intervals: prior to a new activity or relation-
ship; prior to major decisions or changes in the operation (e.g. market entry,
product launch, policy change, or wider changes to the business); in response
to or anticipation of changes in the operating environment (e.g. rising social
tensions); and periodically throughout the life of an activity or relationship.
International Network for Economic, Social & Cultural

Rights (ESCR-Net) and Human Rights Watch – joint
statement to UN Human Rights Council, 4 Jun 2010431
We would like to address the report of the Special Representative of the
Secretary-General (SRSG) on human rights and transnational corporations
and other business enterprises...
... [We] agree with the view expressed by the SRSG in his report that one of
the major gaps is the failure to enforce existing laws and that “for ‘at-risk’ and
vulnerable groups, there may be inadequate legal protection in the first place.”
We also welcome the confirmation in the report that “the corporate re-
sponsibility to respect human rights exists independently of States’ duties or
capacity [and] constitutes a universally applicable human rights responsibil-
ity for all companies, in all situations.” Nevertheless, the SRSG’s work to date
has largely attributed the business responsibility to respect human rights to
general social norms and market expectations.... That view is open to debate
and in any case the law is highly dynamic....
[The] Council’s twin tasks in relation to business and human rights [are]:
defending the rights of those affected by corporate abuses around the world
and articulating global standards to that end. We would sincerely welcome
both elements having a central place in the next mandate.
431
Reprinted courtesy of Business and Human Rights Resource Center http://www.
business-humanrights.org/SpecialRepPortal/Home/ReportstoUNHumanRight-
sCouncil/2010/Comments.

PA R T I I
Annette Hughes, Rachel Nicolson and Catie Shavin, Allens

Arthur Robinson Law Firm - 4 May 2010432
The latest report...details the progress he has made in operationalizing this
framework, and in doing so, provides further guidance to corporations on the
steps that can be taken to meet their responsibility to respect human rights.
As reported, the Special Representative’s efforts over the past 12 months
have included working to map corporate law and securities regulation rel-
evant to human rights in more than 40 jurisdictions..., considering the due
diligence contents of the corporate responsibility to respect human rights,
and further developing and testing the framework’s principles on company-
based grievance mechanisms.
The report outlines its findings on each pillar of the [“Protect, Respect,
Remedy”] framework made by the Special Representative’s work to date.

432
Reprinted courtesy of Business and Human Rights Resource Center http://www.
business-humanrights.org/SpecialRepPortal/Home/ReportstoUNHumanRight-
sCouncil/2010/Comments.

CHAPTER 6 INTERNATIONAL TRADE LAW
CHAPTER 6
INTERNATIONAL TRADE LAW
History and Basic Principles of WTO433

The World Trade Organization (WTO) is an international organization
designed to govern and regulate trade between different participating states.
There are more than 150 states members of the WTO, representing over 95%
of world trade. The main purpose of WTO is to liberalize international trade
through lowering or eliminating various trade barriers such as customs du-
ties, quotas, import bans and other non-tariff barriers to trade. Among other
functions, WTO also serves as a forum for trade negotiations and settlement
of trade disputes.
Basic principles of WTO:
1. Most Favored Nations Principle (MFN) is one of the most fundamental
principles of WTO that prohibits discrimination between trading partners.
MFN obliges the states to extend immediately and unconditionally any ad-
vantage, favor, privilege or immunity granted to a product of one contracting
party to the like product of any other contracting party.
2. National Treatment Principle is similar to MFN principle. It requires
WTO member states to accord equal treatment to domestic and imported like
products. It ensures that member states do not afford protection to domestic
production through internal taxes, charges, regulations and requirements.
3. Principle of transparency and predictability is another cornerstone of
WTO legal system. Once negotiated, WTO member states are not allowed
to arbitrarily raise their tariff commitments beyond the negotiated rate. This
principle ensures the stability and predictability in multilateral trading system.
Brief overview of history of WTO:
The idea to establish an open and non-discriminatory international trad-
ing system emerged after World War II. Countries at that time had sought to
create three economic institutions to eliminate economic causes of war: The
International Monetary Fund, the World Bank and International Trade Orga-
433
http://www.wto.org/.

PA R T I I
nization (ITO). However, due to the fact that US Congress did not approve
the ITO charter, the International Trade Organization was never established.
In April 1947 at the UN conference in Geneva General Agreement on Trade
and Tariffs (GATT 1947) was negotiated between 23 states and package of
tariff reductions were adopted. In the absence of international trade orga-
nization countries adopted agreement on provisional application of GATT
until the formal international organization would be created. GATT 1947
became the organization and agreement for establishing and enforcing the
international trade rules. In 1995 the agreement on trade in goods became
the World Trade Organization.
Since establishment of GATT 1947 series multilateral trade negotiations
known as “trade rounds” took place to achieve further tariff reduction and
adoption of additional trade agreements. The first rounds mainly concen-
trated on tariff reduction. Then, the Kennedy Round brought about a GATT
Anti-Dumping and a section on development. The Tokyo Round was the ma-
jor attempt to tackle non-tariff barriers to trade. The last round, the Uruguay
Round led to the establishment of WTO and new set of agreements.
Tariff Binding and GATT Article II

Argentina – Measures Affecting Imports of Footwear,
Textiles, Apparel and Other Items, 1997434
***
2.1 The great majority of Argentina’s import tariffs are fixed in ad valorem
terms. Regarding textiles, clothing and footwear, Argentina maintained a regime
of minimum specific import duties as from 1993. Argentina’s had a bound rate
of duty of 35 per cent ad valorem with respect to textiles, apparel and footwear
imported into Argentina. In parallel, Argentina continued to apply a system of
minimum specific import duties in the footwear, textile and apparel sectors.
The system operated as follows: for each relevant HS tariff line of textiles, ap-
parels and footwear, Argentina calculated an average import price. Once it
had determined the average import price for a particular category, Argentina
multiplied that price by the bound rate of 35 per cent, resulting in a specific
minimum duty for all products in that category. Upon the importation of cov-
434
Argentina-Measures Affecting Imports of Footwear, Textiles, Apparel and Other
Items, World Trade Organization Panel Report, WT/DS56/R (25 Nov 1997) (cita-
tions omitted).

ered textiles, apparel or footwear, depending on the customs value of the goods
concerned, Argentina applied either the specific minimum duty applicable to
those items or the ad valorem rate, whichever was higher….
6.3 This dispute raises, therefore, various legal issues which we have iden-
tified and grouped as follows:
B. Article II of GATT. Does the imposition of minimum specific duties by
Argentina, which has bound the tariffs at issue at an ad valorem rate, constitute
a violation of Article II? Does Argentina’s tariff system have the potential to
violate Article II and is this potential sufficient to constitute an infringement
thereof? Has Argentina imposed duties in excess of its bound rate of 35 per
cent ad valorem? How should we treat the issues raised by the parties with
regard to proof and evidence submitted to the Panel?
6.22 Article II(1)(a) of GATT reads as follows:
“1. (a) Each Member shall accord to the commerce of the other Members
treatment no less favourable than that provided for in the appropriate Part
of the appropriate Schedule annexed to this Agreement.” The issue for the
Panel is, therefore, to decide what are the obligations covered by the “treat-
ment no less favourable than that provided for in the appropriate… Schedule.”
6.23 The United States claims that the type of duties applied by a WTO
Member - even below any bound rate - must conform to that specified in
the Schedule of such Member. Since Argentina has bound its tariffs at 35 per
cent ad valorem in its Schedule of Concessions (hereafter called “Schedule”),
the United States argues that Argentina may only impose ad valorem du-
ties. Argentina responds that as long as the duties it imposes are below the
equivalent of 35 per cent ad valorem, it can use any type of duties. Therefore,
we have to decide whether the imposition of minimum specific duties by
Argentina, which has bound the tariffs at issue at an ad valorem rate, consti-
tutes a violation of Article II.
6.24 The wording of Article II does not seem to address explicitly whether
WTO Members have an obligation to use a particular type of duty. However,
the wording of Article II must be interpreted in the light of past GATT practice,
as mentioned in Article XVI:1 of the WTO Agreement and paragraph 1(b)(iv)
of Annex 1A incorporating the GATT 1994 into the WTO Agreement, and in-
dicated by the Appellate Body in Japan - Taxes on Alcoholic Beverages. Issues
similar to those presented in this case have arisen on a number of occasions….
6.30 The Bananas II panel report clearly recognizes the past GATT practice
and can be read as concluding that the imposition of specific duties when only
ad valorem duties are bound is sufficient to establish a violation of Article II.

PA R T I I
6.31 We note that the past GATT practice is clear: a situation whereby
a contracting party applies one type of duties while its Schedule refers to
bindings of another type of duties constitutes a violation of Article II of
GATT, without any obligation for the complaining party to submit further
evidence that such variance leads to an effective breach of bindings. The
fact that Argentina claims that it is simply following its past practice of using
specific duties would not seem to be relevant, since it made ad valorem tariff
concessions on the products in question and thus created an obligation for
itself to impose such type of duties. As a guarantee for predictability and to
ensure the full respect of the negotiations under Article II, GATT practice has
generally required that once a M ember has indicated the type(s) of duties in
specifying its bound rate, it must apply such type(s) of duties. Accordingly,
faced with such a variance in the type duties applied by Argentina from that
reflected in its Schedule, we consider that we do not have to examine the
effects of that variance on possible future imports. Indeed, such a variance
undermines the stability and predictability of Members’ Schedules.
6.32 We, therefore, find that Argentina, in using a system of specific
minimum tariffs although it has bound its tariffs at ad valorem rates only, is
violating the provisions of Article II of GATT and that the United States does
not have to provide further evidence that the resultant duties exceed the
bound tariff rate. Such a variance between Argentina’s Schedule and its ap-
plied tariffs constitutes a less favourable treatment to the commerce of the
other Members than that provided for in Argentina’ s Schedule, contrary to
the provisions of Article II of GATT….
(b) Minimum specific duties necessarily lead to breaches of Argentina’s
bindings
6.41 The United States submits that the way the minimum specific duties
were initially determined by Argentina, i.e. on a “representative international
price” based essentially on the US market price, will always lead to breaches
of the bound tariff rate of 35 per cent for those exports which are priced
sufficiently below such average price. The United States submits the example
of soccer shoes which are subject to a specific minimum duty of US$3.50 and
an applied ad valorem duty of 20 per cent. For shoes imported at a value of
US$5.00, the minimum specific duty assessed of US$3.50 represents a duty of
70 per cent ad valorem. Indeed, all shoes imported at a value below US$10.00
would be subject to an ad valorem duty above 35 per cent. In other words,
every time a good is imported at a price below the “representative interna-
tional price,” the specific duty - which is set on the basis of what Argentina
thought the “price should be” and, as argued by Argentina, to counteract the

problem of underpriced imports - would be superior to the normally appli-

cable ad valorem duty, and possibly above the bound rate of 35 per cent ad
valorem. For the United States, the purpose of such minimum specific duty
scheme is to impose duties in excess of the 35 per cent ad valorem collected
on the effective import price because, allegedly, goods are often imported
into Argentina at prices below the representative international price so that
the bound rate of 35 per cent was not sufficient. The United States further
argues that for at least 32 HS headings, the specific duty was set at a rate even
greater than 35 per cent of the so-called “representative international price”
and referred the Panel to its chart showing on the basis of calculations made
by Argentina, the above mentioned instances of violations. Later the United
States submitted an additional list of 104 categories of HS lines which dem-
onstrated that the ad valorem equivalents of the specific duties, even when
applied on US export prices, were above 35 per cent.
6.42 Argentina’s response is three-fold. First, it argues that the minimum
specific duty was always set so as to be below 35 per cent ad valorem of the
representative international price of any such item. Thus, if imports were
priced at the representative international price, there would be no problems.
Second, for Argentina, the US allegations are too general, hypothetical and
theoretical and, therefore, not relevant and that the Panel should not con-
sider such “hypothetical” situations without evidence of specific transactions
where breaches occurred, since otherwise the dispute settlement system
would be abused with frivolous claims. For Argentina, a potential violation
would constitute an infringement only if trade was affected and refers the
Panel to the Tobacco case where, according to Argentina, the panel refused
to sanction mere possibility of violations.
6.43 We understand that the specific duties were set based on representa-
tive international prices. In these circumstances, when the specific duties are
set so as to be equivalent to a 35 per cent ad valorem rate, it is certain that
every time a good is imported at a transaction value below the representa-
tive international price, the specific duty level will be more than 35 per cent
ad valorem of the transaction value. In the case of specific duties set so as to
be equivalent to a tariff rate of less than 35 per cent, if a good is imported at
a transaction value sufficiently below the representative international price
used to set the duty, the bound rate of 35 per cent ad valorem will also be
exceeded. For example, if the representative international price of a product
is US$100.00 and the specific duty is set at US$20.00 to reflect an ad valorem
equivalent of 20 per cent, if the product is imported at a price below US$57.00,
the effective ad valorem rate will always exceed 35 per cent. Thus, in many
cases, it seems clear that the specific duties at issue will necessarily result in

PA R T I I
a duty in excess of the 35 per cent bound rate when the customs value of
a product is below the representative international price for such product.
6.44 We note that customs duties are normally to be imposed on the
transaction value of imported goods as defined in the Agreement on the
Implementation of Article VII of GATT 1994 (“Customs Valuation Agree-
ment”). The transaction value is defined as “the price actually paid or payable
for the goods when sold for export to the country of importation.” Obviously,
if the customs value declared by the importer does not represent the price
actually paid, the Argentine authorities may take action to counteract a false
declaration through, f or example, revisions of the customs value declared in
specific cases and even criminal prosecutions. However, neither the Customs
Valuation Agreement nor any other provision of the WTO Agreement allows
the breach of tariff bindings made under Article II of GATT on the grounds of
a general suspicion that declared customs values are sometimes understated.
We note, therefore, that mechanisms to counteract alleged underpricing
practices are not justifications for Article II violation.
6.45 In respect of the Argentine argument that the US claim should not
be considered because it addresses only a potential violation - in support
of which it refers to the Tobacco panel report - we note that the Argentine
measures, the specific duties, are mandatory measures. Argentina admits
that its customs officials are obligated to collect the specific duties on all
imports. GATT/WTO case law is clear in that a mandatory measure can be
brought before a panel, even if such an adopted measure is not yet in effect,
and independently of the absence of trade effect of such measure for the
complaining party: “[T]he very existence of mandatory legislation provid-
ing for an internal tax, without it being applied to a particular imported
product, should be regarded as falling within the scope of Article III:2, first
sentence.” We are also of the view that the Tobacco panel report merely
confirms this principle.
6.46 Moreover, in Bananas III192, the Appellate Body confirmed that the
principles developed in Superfund193 were still much applicable to WTO
disputes and that any measure which changes the competitive relationship
of Members nullifies any such Members’ benefits under the WTO Agreement.
“Article III:2, first sentence, cannot be interpreted to protect expectations
on export volumes; it protects expectations on the competitive relationship
between imported and domestic products. A change in the competitive
relationship contrary to that provision must consequently be regarded ipso
facto as a nullification or impairment of benefits accruing under the General
Agreement.” We consider that this principle is also appropriate when dealing

with the application of the obligations contained in Article II of GATT which

requires a “treatment no less favourable than that” provided in a Member’s
Schedule. In the present dispute we consider that the competitive relationship
of the parties was changed unilaterally by Argentina because its mandatory
measure clearly has the potential to violate its bindings, thus undermining
the security and the predictability of the WTO system.
6.47 We find, therefore, that the United States has established a presump-
tion that the very nature of the minimum specific duty system maintained
by Argentina violates the provisions of Article II of GA TT and that, as shown
above, this presumption has not been rebutted by Argentina.
National Treatment and GATT Article III

Japan – Taxes on Alcoholic Beverages, 1996435
Japan and the United States appeal from certain issues of law and legal
interpretations in the Panel Report, Japan - Taxes on Alcoholic Beverages (the
“Panel Report”). That Panel was established to consider complaints by the
European Communities, Canada and the United States against Japan relating
to the Japanese Liquor Tax Law.
The Panel Report was circulated to the Members of the World Trade Orga-
nization (the “WTO”) on 11 July 1996. It contains the following conclusions:
(i) Shochu and vodka are like products and Japan, by taxing the latter in
excess of the former, is in violation of its obligation under Article III: 2, first
sentence, of the General Agreement on Tariffs and Trade 1994.
(ii) Shochu, whisky, brandy, rum, gin, genever, and liqueurs are “directly
competitive or substitutable products” and Japan, by not taxing them simi-
larly, is in violation of its obligation under Article III: 2, second sentence, of
the General Agreement on Tariffs and Trade 1994.3
F. Interpretation of Article III
The WTO Agreement is a treaty – the international equivalent of a con-
tract. It is self-evident that in an exercise of their sovereignty, and in pursuit of
their own respective national interests, the Members of the WTO have made
a bargain. In exchange for the benefits they expect to derive as Members of
435
Japan-Taxes on Alcoholic Beverages, World Trade Organization Appellate Body
Report, WT/DS8/AB/R; WT/DS10/AB/R; WT/DS11/AB/R (4 Oct 1996) (citations
omitted).

PA R T I I
the WTO, they have agreed to exercise their sovereignty according to the
commitments they have made in the WTO Agreement.
One of those commitments is Article III of the GATT 1994, which is
entitled “National Treatment on Internal Taxation and Regulation.” For the
purpose of this appeal, the relevant parts of Article III read as follows:
Article III: National Treatment on Internal Taxation and Regulation
1. The contracting parties recognize that internal taxes and other internal
charges, and laws, regulations and requirements affecting the internal sale,
offering for sale, purchase, transportation, distribution or use of products,
and internal quantitative regulations requiring the mixture, processing or
use of products in specified amounts or proportions, should not be applied
to imported or domestic products so as to afford protection to domestic
production.
2. The products of the territory of any contracting party imported into
the territory of any other contracting party shall not be subject, directly or
indirectly, to internal taxes or other internal charges of any kind in excess of
those applied, directly or indirectly, to like domestic products. Moreover, no
contracting party shall otherwise apply internal taxes or other internal charges
to imported or domestic products in a manner contrary to the principles set
forth in paragraph 1.
A tax conforming to the requirements of the first sentence of paragraph
2 would be considered to be inconsistent with the provisions of the second
sentence only in cases where competition was involved between, on the one
hand, the taxed product and, on the other hand, a directly competitive or
substitutable product which was not similarly taxed.
The broad and fundamental purpose of Article III is to avoid protectionism
in the application of internal tax and regulatory measures. More specifically,
the purpose of Article III “is to ensure that internal measures ‘not be applied
to imported or domestic products so as to afford protection to domestic
production’“. Toward this end, Article III obliges Members of the WTO to
provide equality of competitive conditions for imported products in relation
to domestic products. “[T]he intention of the drafters of the Agreement was
clearly to treat the imported products in the same way as the like domestic
products once they had been cleared through customs. Otherwise indirect
protection could be given.” Moreover, it is irrelevant that “the trade effects”
of the tax differential between imported and domestic products, as reflected
in the volumes of imports, are insignificant or even non-existent; Article III
protects expectations not of any particular trade volume but rather of the

equal competitive relationship between imported and domestic products.

Members of the WTO are free to pursue their own domestic goals through
internal taxation or regulation so long as they do not do so in a way that
violates Article III or any of the other commitments they have made in the
WTO Agreement.
The broad purpose of Article III of avoiding protectionism must be re-
membered when considering the relationship between Article III and other
provisions of the WTO Agreement. Although the protection of negotiated
tariff concessions is certainly one purpose of Article III the statement in
Paragraph 6.13 of the Panel Report that “one of the main purposes of Article
III is to guarantee that WTO Members will not undermine through internal
measures their commitments under Article II” should not be overemphasized.
The sheltering scope of Article III is not limited to products that are the subject
of tariff concessions under Article II. The Article III national treatment obliga-
tion is a general prohibition on the use of internal taxes and other internal
regulatory measures so as to afford protection to domestic production. This
obligation clearly extends also to products not bound under Article II. This
is confirmed by the negotiating history of Article III.
G. Article III:1
The terms of Article III must be given their ordinary meaning – in their
context and in the light of the overall object and purpose of the WTO
Agreement. Thus, the words actually used in the Article provide the basis
for an interpretation that must give meaning and effect to all its terms. The
proper interpretation of the Article is, first of all, a textual interpretation.
Consequently, the Panel is correct in seeing a distinction between Article
III:1, which “contains general principles,” and Article III:2, which “provides
for specific obligations regarding internal taxes and internal charges.” Ar-
ticle III:1 articulates a general principle that internal measures should not
be applied so as to afford protection to domestic production. This general
principle informs the rest of Article III. The purpose of Article III:1 is to
establish this general principle as a guide to understanding and interpret-
ing the specific obligations contained in Article III:2 and in the other para-
graphs of Article III, while respecting, and not diminishing in any way, the
meaning of the words actually used in the texts of those other paragraphs.
In short, Article III:1 constitutes part of the context of Article III:2, in the
same way that it constitutes part of the context of each of the other para-
graphs in Article III. Any other reading of Article III would have the effect
of rendering the words of Article III:1 meaningless, thereby violating the
fundamental principle of effectiveness in treaty interpretation. Consistent

PA R T I I
with this principle of effectiveness, and with the textual differences in the
two sentences, we believe that Article III:1 informs the first sentence and
the second sentence of Article III:2 in different ways.
H. Article III:2
1. First Sentence
Article III:1 informs Article III:2, first sentence, by establishing that if im-
ported products are taxed in excess of like domestic products, then that tax
measure is inconsistent with Article III. Article III:2, first sentence does not
refer specifically to Article III:1. There is no specific invocation in this first
sentence of the general principle in Article III:1 that admonishes Members
of the WTO not to apply measures “so as to afford protection.” This omis-
sion must have some meaning. We believe the meaning is simply that the
presence of a protective application need not be established separately from
the specific requirements that are included in the first sentence in order to
show that a tax measure is inconsistent with the general principle set out in
the first sentence. However, this does not mean that the general principle
of Article III:1 does not apply to this sentence. To the contrary, we believe
the first sentence of Article III:2 is, in effect, an application of this general
principle. The ordinary meaning of the words of Article III:2, first sentence
leads inevitably to this conclusion. Read in their context and in the light of
the overall object and purpose of the WTO Agreement, the words of the
first sentence require an examination of the conformity of an internal tax
measure with Article III by determining, first, whether the taxed imported
and domestic products are “like” and, second, whether the taxes applied to
the imported products are “in excess of” those applied to the like domestic
products. If the imported and domestic products are “like products,” and if
the taxes applied to the imported products are “in excess of” those applied
to the like domestic products, then the measure is inconsistent with Article
III:2, first sentence.
This approach to an examination of Article III:2, first sentence, is con-
sistent with past practice under the GATT 1947.42 Moreover, it is consistent
with the object and purpose of Article III:2, which the panel in the prede-
cessor to this case dealing with an earlier version of the Liquor Tax Law, Ja-
pan - Customs Duties, Taxes and Labeling Practices on Imported Wines and
Alcoholic Beverages (“1987 Japan - Alcohol”), rightly stated as “promoting
non-discriminatory competition among imported and like domestic products
[which] could not be achieved if Article III:2 were construed in a manner al-
lowing discriminatory and protective internal taxation of imported products
in excess of like domestic products.”

(a) “Like Products”

Because the second sentence of Article III:2 provides for a separate and
distinctive consideration of the protective aspect of a measure in examining
its application to a broader category of products that are not “like products”
as contemplated by the first sentence, we agree with the Panel that the first
sentence of Article III:2 must be construed narrowly so as not to condemn
measures that its strict terms are not meant to condemn. Consequently, we
agree with the Panel also that the definition of “like products” in Article III:2,
first sentence, should be construed narrowly.
How narrowly is a matter that should be determined separately for each
tax measure in each case. We agree with the practice under the GATT 1947 of
determining whether imported and domestic products are “like” on a case-
by-case basis. The Report of the Working Party on Border Tax Adjustments,
adopted by the CONTRACTING PARTIES in 1970, set out the basic approach
for interpreting “like or similar products” generally in the various provisions
of the GATT 1947:
...the interpretation of the term should be examined on a case-by-case
basis. This would allow a fair assessment in each case of the different elements
that constitute a “similar” product. Some criteria were suggested for deter-
mining, on a case-by-case basis, whether a product is “similar”: the product’s
end-uses in a given market; consumers’ tastes and habits, which change from
country to country; the product’s properties, nature and quality.
The concept of “likeness” is a relative one that evokes the image of an ac-
cordion. The accordion of “likeness” stretches and squeezes in different places
as different provisions of the WTO Agreement are applied. The width of the
accordion in any one of those places must be determined by the particular
provision in which the term “like” is encountered as well as by the context
and the circumstances that prevail in any given case to which that provision
may apply. We believe that, in Article III:2, first sentence of the GATT 1994,
the accordion of “likeness” is meant to be narrowly squeezed.
The Panel determined in this case that shochu and vodka are “like
products” for the purposes of Article III:2, first sentence. We note that the
determination of whether vodka is a “like product” to shochu under Article
III:2, first sentence, or a “directly competitive or substitutable product” to
shochu under Article III:2, second sentence, does not materially affect the
outcome of this case.
A uniform tariff classification of products can be relevant in determining
what are “like products.” If sufficiently detailed, tariff classification can be a

PA R T I I
helpful sign of product similarity. With these modifications to the legal rea-
soning in the Panel Report, we affirm the legal conclusions and the findings
of the Panel with respect to “like products” in all other respects.
(b) “In Excess Of”
The only remaining issue under Article III:2, first sentence, is whether the
taxes on imported products are “in excess of” those on like domestic products.
If so, then the Member that has imposed the tax is not in compliance with
Article III. Even the smallest amount of “excess” is too much. “The prohibi-
tion of discriminatory taxes in Article III:2, first sentence, is not conditional
on a ‘trade effects test’ nor is it qualified by a de minimis standard.” We agree
with the Panel’s legal reasoning and with its conclusions on this aspect of the
interpretation and application of Article III:2, first sentence.
2. Second Sentence
Article III:1 informs Article III:2, second sentence, through specific refer-
ence. Article III:2, second sentence, contains a general prohibition against
“internal taxes or other internal charges” applied to “imported or domestic
products in a manner contrary to the principles set forth in paragraph 1.” As
mentioned before, Article III:1 states that internal taxes and other internal
charges “should not be applied to imported or domestic products so as to
afford protection to domestic production.” Again, Ad Article III:2 states as
follows:
A tax conforming to the requirements of the first sentence of paragraph
2 would be considered to be inconsistent with the provisions of the second
sentence only in cases where competition was involved between, on the one
hand, the taxed product and, on the other hand, a directly competitive or
substitutable product which was not similarly taxed.
Article III:2, second sentence, and the accompanying Ad Article have
equivalent legal status in that both are treaty language which was negotiated
and agreed at the same time. The Ad Article does not replace or modify the
language contained in Article III:2, second sentence, but, in fact, clarifies its
meaning. Accordingly, the language of the second sentence and the Ad Article
must be read together in order to give them their proper meaning.
Unlike that of Article III:2, first sentence, the language of Article III:2,
second sentence, specifically invokes Article III:1. The significance of this dis-
tinction lies in the fact that whereas Article III:1 acts implicitly in addressing
the two issues that must be considered in applying the first sentence, it acts
explicitly as an entirely separate issue that must be addressed along with two
other issues that are raised in applying the second sentence. Giving full mean-

ing to the text and to its context, three separate issues must be addressed to
determine whether an internal tax measure is inconsistent with Article III:2,
second sentence. These three issues are whether:
(1) the imported products and the domestic products are “directly com-
petitive or substitutable products” which are in competition with each other;
(2) the directly competitive or substitutable imported and domestic
products are “not similarly taxed”; and
(3) the dissimilar taxation of the directly competitive or substitutable
imported domestic products is “applied ... so as to afford protection to do-
mestic production.”
Again, these are three separate issues. Each must be established separately
by the complainant for a panel to find that a tax measure imposed by a Mem-
ber of the WTO is inconsistent with Article III:2, second sentence.
(a) “Directly Competitive or Substitutable Products”
If imported and domestic products are not “like products” for the narrow
purposes of Article III:2, first sentence, then they are not subject to the stric-
tures of that sentence and there is no inconsistency with the requirements
of that sentence. However, depending on their nature, and depending on
the competitive conditions in the relevant market, those same products may
well be among the broader category of “directly competitive or substitutable
products” that fall within the domain of Article III:2, second sentence. How
much broader that category of “directly competitive or substitutable prod-
ucts” may be in any given case is a matter for the panel to determine based
on all the relevant facts in that case. As with “like products” under the first
sentence, the determination of the appropriate range of “directly competi-
tive or substitutable products” under the second sentence must be made on
a case-by-case basis.
In this case, the Panel emphasized the need to look not only at such mat-
ters as physical characteristics, common end-uses, and tariff classifications,
but also at the “market place.” This seems appropriate. The GATT 1994 is a
commercial agreement, and the WTO is concerned, after all, with markets. It
does not seem inappropriate to look at competition in the relevant markets
as one among a number of means of identifying the broader category of
products that might be described as “directly competitive or substitutable.”
Nor does it seem inappropriate to examine elasticity of substitution as
one means of examining those relevant markets. The Panel did not say that
cross-price elasticity of demand is “the decisive criterion” for determining

PA R T I I
whether products are “directly competitive or substitutable.” The Panel stated

the following:
In the Panel’s view, the decisive criterion in order to determine whether
two products are directly competitive or substitutable is whether they have
common end-uses, inter alia, as shown by elasticity of substitution. We agree.
And, we find the Panel’s legal analysis of whether the products are “directly
competitive or substitutable products” in paragraphs 6.28-6.32 of the Panel
Report to be correct.
We note that the Panel’s conclusions on “like products” and on “directly
competitive or substitutable products” contained in paragraphs 7.1(i) and
(ii), respectively, of the Panel Report fail to address the full range of alcoholic
beverages included in the Panel’s Terms of Reference. More specifically, the
Panel’s conclusions in paragraph 7.1(ii) on “directly competitive or substi-
tutable products” relate only to “shochu, whisky, brandy, rum, gin, genever,
and liqueurs,” which is narrower than the range of products referred to the
Dispute Settlement Body by one of the complainants, the United States, which
included in its request for the establishment of a panel “all other distilled
spirits and liqueurs falling within HS heading 2208.”
(b)”Not Similarly Taxed”
To give due meaning to the distinctions in the wording of Article III:2,
first sentence, and Article III:2, second sentence, the phrase “not similarly
taxed” in the Ad Article to the second sentence must not be construed so as
to mean the same thing as the phrase “in excess of” in the first sentence. On
its face, the phrase “in excess of” in the first sentence means any amount of
tax on imported products “in excess of” the tax on domestic “like products.”
The phrase “not similarly taxed” in the Ad Article to the second sentence
must therefore mean something else. It requires a different standard, just as
“directly competitive or substitutable products” requires a different standard
as compared to “like products” for these same interpretive purposes.
Reinforcing this conclusion is the need to give due meaning to the distinc-
tion between “like products” in the first sentence and “directly competitive
or substitutable products” in the Ad Article to the second sentence. If “in
excess of” in the first sentence and “not similarly taxed” in the Ad Article to
the second sentence were construed to mean one and the same thing, then
“like products” in the first sentence and “directly competitive or substitutable
products” in the Ad Article to the second sentence would also mean one and
the same thing. This would eviscerate the distinctive meaning that must be
respected in the words of the text.

To interpret “in excess of” and “not similarly taxed” identically would
deny any distinction between the first and second sentences of Article III:2.
Thus, in any given case, there may be some amount of taxation on imported
products that may well be “in excess of” the tax on domestic “like products”
but may not be so much as to compel a conclusion that “directly competitive
or substitutable” imported and domestic products are “not similarly taxed”
for the purposes of the Ad Article to Article III:2, second sentence. In other
words, there may be an amount of excess taxation that may well be more
of a burden on imported products than on domestic “directly competitive
or substitutable products” but may nevertheless not be enough to justify a
conclusion that such products are “not similarly taxed” for the purposes of
Article III:2, second sentence. We agree with the Panel that this amount of
differential taxation must be more than de minimis to be deemed “not simi-
larly taxed” in any given case. And, like the Panel, we believe that whether
any particular differential amount of taxation is de minimis or is not de
minimis must, here too, be determined on a case-by-case basis. Thus, to be
“not similarly taxed,” the tax burden on imported products must be heavier
than on “directly competitive or substitutable” domestic products, and that
burden must be more than de minimis in any given case.
In this case, the Panel applied the correct legal reasoning in determin-
ing whether “directly competitive or substitutable” imported and domestic
products were “not similarly taxed.” However, the Panel erred in blurring the
distinction between that issue and the entirely separate issue of whether the
tax measure in question was applied “so as to afford protection.” Again, these
are separate issues that must be addressed individually. If “directly competitive
or substitutable products” are not “not similarly taxed,” then there is neither
need nor justification under Article III:2, second sentence, for inquiring further
as to whether the tax has been applied “so as to afford protection.” But if such
products are “not similarly taxed,” a further inquiry must necessarily be made.
(c) “So As To Afford Protection”
This third inquiry under Article III:2, second sentence, must determine
whether “directly competitive or substitutable products” are “not similarly
taxed” in a way that affords protection. This is not an issue of intent. It is
not necessary for a panel to sort through the many reasons legislators and
regulators often have for what they do and weigh the relative significance
of those reasons to establish legislative or regulatory intent. If the measure
is applied to imported or domestic products so as to afford protection to
domestic production, then it does not matter that there may not have been
any desire to engage in protectionism in the minds of the legislators or the

PA R T I I
regulators who imposed the measure. It is irrelevant that protectionism was

not an intended objective if the particular tax measure in question is never-
theless, to echo Article III:1, “applied to imported or domestic products so
as to afford protection to domestic production.” This is an issue of how the
measure in question is applied.
As in that case, we believe that an examination in any case of whether
dissimilar taxation has been applied so as to afford protection requires a
comprehensive and objective analysis of the structure and application of
the measure in question on domestic as compared to imported products. We
believe it is possible to examine objectively the underlying criteria used in a
particular tax measure, its structure, and its overall application to ascertain
whether it is applied in a way that affords protection to domestic products.
Although it is true that the aim of a measure may not be easily ascertained,
nevertheless its protective application can most often be discerned from the
design, the architecture, and the revealing structure of a measure. The very
magnitude of the dissimilar taxation in a particular case may be evidence of
such a protective application, as the Panel rightly concluded in this case. Most
often, there will be other factors to be considered as well. In conducting this
inquiry, panels should give full consideration to all the relevant facts and all
the relevant circumstances in any given case.
Most Favored Nations Treatment and

GATT
Indonesia – Certain Measures Affecting the Automobile
Industry, 1998436
This dispute concerns a series of measures maintained by Indonesia with
respect to motor vehicles and parts and components thereof. Completely
Built-Up motor vehicles (“CBUs”) imported into Indonesia are subject to
luxury tax, as well as to import duties. The dispute arises from Indonesian
National Car Programme which provides for import duty relief and exemp-
tion or reduction of luxury tax depending on the local content of motor
vehicle. The European Community, Japan and US alleged that the exemption
from customs duties and luxury taxes on imports of “national vehicles” and
436
Indonesia-Certain Measures Affecting The Automobile Industry, World Trade Or-
ganization Panel Report, WT/DS54/R; WT/DS55/R; WT/DS59/R; WT/DS64/R (2
July 1998) (citations omitted).

components thereof, and related measures were in violation of Indonesia’s

obligations under Articles I and III of GATT 1994.
2. Criteria for an Article I of GATT violation
14.137. Article I of GATT requires that any privileges granted to imports
of any country be accorded immediately and unconditionally to the like
products originating in or destined for the territories of all other Members.
“1. With respect to customs duties and charges of any kind imposed on
or in connection with importation or exportation or imposed on the inter-
national transfer of payments for imports or exports, and with respect to
the method of levying such duties and charges, and with respect to all rules
and formalities in connection with importation and exportation, and with
respect to all matters referred to in paragraphs 2 and 4 of Article III, any
advantage, favour, privilege or immunity granted by any contracting party
to any product originating in or destined for any other country shall be ac-
corded immediately and unconditionally to the like product originating in
or destined for the territories of all other contracting parties.”
14.138. The Appellate Body, in Bananas III, confirmed that to establish
a violation of Article I, there must be an advantage, of the type covered by
Article I and which is not accorded unconditionally to all “like products” of
all WTO Members. Following this analysis, we shall first examine whether
the tax and customs duty benefits are advantages of the types covered by
Article I. Second, we shall decide whether the advantages are offered (i) to
all like products and (ii) unconditionally.
(a) Are the tax and customs duty benefits of the February and June 1996
car programmes advantages of the types covered by Article I?
14.139. The customs duty benefits of the various Indonesian car pro-
grammes are explicitly covered by the wording of Article I. As to the tax
benefits of these programmes, we note that Article I:1 refers explicitly to
“all matters referred to in paragraphs 2 and 4 of Article III.” We have already
decided that the tax discrimination aspects of the National Car programme
were matters covered by Article III:2 of GATT. Therefore, the customs duty
and tax advantages of the February and June 1996 car programmes are of
the type covered by Article I of GATT.
(b) Are these advantages offered “unconditionally” to all “like products”?
(i) “like products”
14.140. The European Communities, following the same logic it used for
the like product definition in its Article III claims, submit that National Cars

PA R T I I
and their parts and components imported from Korea are to be considered
“like” any motor vehicle and parts and components imported from other
Members. The European Communities argue that imported parts and com-
ponents and motor vehicles are all like the relevant domestic products since
the definition of “National Cars” and their parts and components is not
based on any factor which may affect per se the physical characteristics of
those cars and parts and components, or their end uses. The United States
argues that cars imported in Indonesia are like the Kia Sephia from Korea.
Japan argues that parts and components and cars imported from Japan, or
any other country, and those imported from Korea constitute “like products.”
14.141. We have found in our discussion of like products under Article III:2 that
certain imported motor vehicles are like the National Car. The same considerations
justify a finding that such imported vehicles can be considered like National Cars
imported from Korea for the purpose of Article I. We also consider that parts
and components imported from the complainants are like imports from Korea.
Indonesia concedes that some parts and components are exactly the same for all
cars. As to the parts and components which arguably are specific to the National
Car, Indonesia does not contest that they can be produced by the complainants’
companies. This fact confirms that the parts and components imported for use
in the National Car are not unique. As before, we note in addition that the criteria
for benefitting from reduced customs duties and taxes are not based on any factor
which may affect per se the physical characteristics of those cars and parts and
components, or their end uses. In this regard, we note that past panels interpreting
Article I have found that a legislation itself may violate that provision if it could
lead in principle to less favourable treatment of the same products.
14.142. We find, therefore, that for the purpose of the MFN obligation
of Article I of GATT, National Cars and the parts and components thereof
imported into Indonesia from Korea are to be considered “like” other similar
motor vehicles and parts and components imported from other Members.
(ii) “unconditional advantages”
14.143. We now examine whether the advantages accorded to National
Cars and parts and components thereof from Korea are unconditionally ac-
corded to the products of other Members, as required by Article I. The GATT
case law is clear to the effect that any such advantage (here tax and customs
duty benefits) cannot be made conditional on any criteria that is not related
to the imported product itself.
14.144. For instance, in the Panel Report on Belgian Family Allowances,
the panel condemned a measure which discriminated against imports de-
pending on the type of family allowances that was in place:

“3. According to the provisions of paragraph 1 of Article I of the General

Agreement, any advantage, favour, privilege or immunity granted by Belgium
to any product originating in the territory of any country with respect to all
matters referred to in paragraph 2 of Article III shall be granted immediately
and unconditionally to the like product originating in the territories of all
contracting parties. Belgium has granted exemption from the levy under
consideration to products purchased by public bodies when they originate
in Luxembourg and the Netherlands, as well as in France, Italy, Sweden and
the United Kingdom. If the General Agreement were definitively in force in
accordance with Article XXVI, it is clear that that exemption would have to be
granted unconditionally to all other contracting parties (including Denmark
and Norway). The consistency or otherwise of the system of family allowances
in force in the territory of a given contracting party with the requirements of
the Belgian law would be irrelevant in this respect, and the Belgian legislation
would have to be amended insofar as it introduced a discrimination between
countries having a given system of family allowances and those which had a
different system or no system at all, and made the granting of the exemption
dependent on certain conditions.” (emphasis added)
14.145. Indeed, it appears that the design and structure of the June 1996
car programme is such as to allow situations where another Member’s like
product to a National Car imported by PT PTN from Korea will be subject to
much higher duties and sales taxes than those imposed on such National Cars.
For example, customs duties as high as 200% can be imposed on finished mo-
tor vehicles while an imported National Car benefits from a 0% customs duty.
No taxes are imposed on a National Car while an imported like motor vehicle
from another Member would be subject to a 35% sales tax. The distinction
as to whether one product is subject to 0 % duty and the other one is subject
to 200% duty or whether one product is subject to 0% sales tax and the other
one is subject to a 35% sales tax, depends on whether or not PT TPN had
made a “deal” with that exporting company to produce that National Car,
and is covered by the authorization of June 1996 with specifications that cor-
respond to those of the Kia car produced only in Korea. In the GATT/WTO,
the right of Members cannot be made dependent upon, conditional on or
even affected by, any private contractual obligations in place. The existence
of these conditions is inconsistent with the provisions of Article I:1 which
provides that tax and customs duty benefits accorded to products of one
Member (here on Korean products) be accorded to imported like products
from other Members “immediately and unconditionally.”
14.146. We note also that under the February 1996 car programme the
granting of customs duty benefits to parts and components is conditional to

PA R T I I
their being used in the assembly in Indonesia of a National Car. The grant-
ing of tax benefits is conditional and limited to the only Pioneer company
producing National Cars. And there is also a third condition for these ben-
efits: the meeting of certain local content targets. Indeed under all these car
programmes, customs duty and tax benefits are conditional on achieving a
certain local content value for the finished car. The existence of these condi-
tions is inconsistent with the provisions of Article I:1 which provides that tax
and customs duty advantages accorded to products of one Member (here on
Korean products) be accorded to imported like products from other Members
“immediately and unconditionally.”
14.147. For the reasons discussed above, we consider that the June 1996
car programme which introduced discrimination between imports in the
allocation of tax and customs duty benefits based on various conditions
and other criteria not related to the imports themselves and the February
1996 car programme which also introduce discrimination between imports
in the allocation of customs duty benefits based on various conditions and
other criteria not related to the imports themselves, are inconsistent with the
provisions of Article I of GATT.
Environmental Protection and Trade

United States – Restrictions on Imports of Tuna437
***
2.2. In the eastern tropical Pacific Ocean schools of tuna often swim be-
low herds of dolphin that are visible swimming at or near the surface. Tuna
fishermen in the eastern tropical Pacific therefore commonly use dolphins
to locate schools of tuna, and encircle them intentionally with purse seine
nets on the expectation that tuna will be found below the dolphins. Since the
1960’s, the practice of intentionally setting purse seine nets on dolphins to
catch tuna has resulted in the incidental killing and injury of many dolphins….
2.5. The US Marine Mammal Protection Act of 19723 prohibits the “tak-
ing,” including the harassing, hunting, capturing or killing, of any marine
mammal, whether directly, or incidentally in connection with the harvesting
of fish. The Act further prohibits the import into the United States of any
marine mammal or marine mammal product, and any fish or fish product
437
United States – Restrictions on Imports of Tuna, GATT Panel Report, DS29/R (16
June 1994) (citations omitted).

harvested through the incidental taking of marine mammals. The stated

purpose of the Act is to conserve marine mammals which may be in danger
of extinction or depletion….
2.9. The Act prohibits the import of any commercial fish or fish products
harvested by a method that results in the incidental kill or incidental serious
injury of marine mammals in excess of United States standards….
2.12. The Act provides that any nation (“intermediary nation”) that ex-
ports yellowfin tuna or yellowfin tuna products to the United States, and
that imports yellowfin tuna or yellowfin tuna products that are subject to a
direct prohibition on import into the United States, must certify and provide
reasonable proof that it has not imported products subject to the direct pro-
hibition within the preceding six months….
C. Article XX(g)
5.11. The Panel noted the United States argument that both the primary
and intermediary nation embargoes, even if inconsistent with Articles III or
XI, were justified by Article XX(g) as measures relating to the conservation
of dolphins, an exhaustible natural resource. The United States argued that
there was no requirement in Article XX(g) for the resources to be within the
territorial jurisdiction of the country taking the measure. The United States
further argued that the measures were taken in conjunction with restrictions
on domestic production and consumption.
Finally, it argued that the measures met the requirement of the pre-
amble to Article XX. The EEC and the Netherlands disagreed, stating that
the resource to be conserved had to be within the territorial jurisdiction
of the country taking the measure. The EEC and the Netherlands were
further of the view that the United States measures were not related to
the conservation of an exhaustible natural resource under Article XX (g),
and were not taken in conjunction with domestic restrictions on produc-
tion or consumption.
5.12. The Panel proceeded first to examine the text of Article XX(g),
which, together with its preamble, states:
“Subject to the requirement that such measures are not applied in a
manner which would constitute a means of arbitrary or unjustifiable dis-
crimination between countries where the same conditions prevail, or a
disguised restriction on international trade, nothing in this Agreement shall
be construed to prevent the adoption or enforcement by any contracting
party of measures:

PA R T I I
(g) relating to the conservation of exhaustible natural resources if such

measures are made effective in conjunction with restrictions on domestic
production or consumption;”
The Panel observed that the text of Article XX(g) suggested a three-step
analysis:
-- First, it had to be determined whether the policy in respect of which
these provisions were invoked fell within the range of policies to conserve
exhaustible natural resources.
-- Second, it had to be determined whether the measure for which the ex-
ception was being invoked - that is the particular trade measure inconsistent
with the obligations under the General Agreement - was “related to” the con-
servation of exhaustible natural resources, and whether it was made effective
“in conjunction” with restrictions on domestic production or consumption.
-- Third, it had to be determined whether the measure was applied in
conformity with the requirement set out in the preamble to Article XX,
namely that the measure not be applied in a manner which would consti-
tute a means of arbitrary or unjustifiable discrimination between countries
where the same conditions prevail or in a manner which would constitute a
disguised restriction on international trade.
Conservation of an exhaustible natural resource
5.13. Concerning the first of the above three questions, the Panel noted
that the United States maintained that dolphins were an exhaustible natural
resource. The EEC disagreed. The Panel, noting that dolphin stocks could
potentially be exhausted, and that the basis of a policy to conserve them
did not depend on whether at present their stocks were depleted, accepted
that a policy to conserve dolphins was a policy to conserve an exhaustible
natural resource.
5.14. The Panel noted that the EEC and the Netherlands argued that the
exhaustible natural resource to be conserved under Article XX (g) could
not be located outside the territorial jurisdiction of the country taking the
measure. It based this view on an examination of the Article XX (g) in its
context, and in light of the object and purpose of the General Agreement.
The United States disagreed, pointing out that there was no textual or other
basis for reading such a requirement into Article XX (g).
5.15. The Panel observed, first, that the text of Article XX (g) does not
spell out any limitation on the location of the exhaustible natural resources
to be conserved. It noted that the conditions set out in the text of Article

XX (g) and the preamble qualify only the trade measure requiring justifi-
cation (“related to”) or the manner in which the trade measure is applied
(“in conjunction with,” “arbitrary or unjustifiable discrimination,” “disguised
restriction on international trade”). The nature and precise scope of the
policy area named in the Article, the conservation of exhaustible natural
resources, is not spelled out or specifically conditioned by the text of the
Article, in particular with respect to the location of the exhaustible natural
resource to be conserved. The Panel noted that two previous panels have
considered Article XX (g) to be applicable to policies related to migratory
species of fish, and had made no distinction between fish caught within or
outside the territorial jurisdiction of the contracting party that had invoked
this provision.
5.16. The Panel then observed that measures providing different treat-
ment to products of different origins could in principle be taken under other
paragraphs of Article XX and other Articles of the General Agreement with
respect to things located, or actions occurring, outside the territorial jurisdic-
tion of the party taking the measure. An example was the provision in Article
XX (e) relating to products of prison labour. It could not therefore be said
that the General Agreement proscribed in an absolute manner measures that
related to things or actions outside the territorial jurisdiction of the party
taking the measure.
5.17. The Panel further observed that, under general international law,
states are not in principle barred from regulating the conduct of their nation-
als with respect to persons, animals, plants and natural resources outside of
their territory. Nor are states barred, in principle, from regulating the conduct
of vessels having their nationality, or any persons on these vessels, with re-
spect to persons, animals, plants and natural resources outside their territory.
A state may in particular regulate the conduct of its fishermen, or of vessels
having its nationality or any fishermen on these vessels, with respect to fish
located in the high seas.
5.18. The Panel noted that the parties based many of their arguments on
the location of the exhaustible natural resource in Article XX (g) on envi-
ronmental and trade treaties other than the General Agreement. However,
it was first of all necessary to determine the extent to which these treaties
were relevant to the interpretation of the text of the General Agreement. The
Panel recalled that it is generally accepted that the Vienna Convention on the
Law of Treaties expresses the basic rules of treaty interpretation (see Annex
B attached), and that the parties to the dispute shared this view. It therefore
proceeded to examine the treaties in this light.

PA R T I I
5.19. The Panel recalled that the Vienna Convention provides for a general
rule of interpretation (Article 31) and a supplementary means of interpreta-
tion (Article 32). The Panel first examined whether, under the general rule
of interpretation of the Vienna Convention, the treaties referred to might be
taken into account for the purposes of interpreting the General Agreement.
The general rule provides that “any subsequent agreement between the parties
regarding the interpretation of the treaty or the application of its provisions”
is one of the elements relevant to the interpretation of a treaty. However
the Panel observed that the agreements cited by the parties to the dispute
were bilateral or plurilateral agreements that were not concluded among
the contracting parties to the General Agreement, and that they did not ap-
ply to the interpretation of the General Agreement or the application of its
provisions. Indeed, many of the treaties referred to could not have done so,
since they were concluded prior to the negotiation of the General Agreement.
The Panel also observed that under the general rule of interpretation in the
Vienna Convention account should be taken of “any subsequent practice in
the application of the treaty which established the agreement of the parties
regarding its interpretation.” However, the Panel noted that practice under
the bilateral and plurilateral treaties cited could not be taken as practice under
the General Agreement, and therefore could not affect the interpretation of
it. The Panel therefore found that under the general rule contained in Article
31 of the Vienna Convention, these treaties were not relevant as a primary
means of interpretation of the text of the General Agreement.
5.20. The Panel then examined whether the treaties referred to might be
relevant as a supplementary means of interpretation of the General Agreement
under the Vienna Convention. The Panel noted that the supplementary means
permitted by Article 32 of the Vienna Convention include “the preparatory
work of the treaty and the circumstances of its conclusion.” However, the
terms of this provision make clear that its applicability is limited. Preparatory
work and other supplementary means of interpretation may only be used “to
confirm” an interpretation reached under the general rule of interpretation,
or when application of the general rule “leaves the meaning ambiguous or
obscure,” or “leads to a result which is manifestly absurd or unreasonable.”
Even if interpretation according to the general rule had led to this result, the
Panel considered that those cited treaties that were concluded prior to the
conclusion of the General Agreement were of little assistance in interpreting
the text of Article XX (g), since it appeared to the Panel on the basis of the
material presented to it that no direct references were made to these treaties
in the text of the General Agreement, the Havana Charter, or in the prepara-
tory work to these instruments. The Panel also found that the statements and

drafting changes made during the negotiation of the Havana Charter and
the General Agreement cited by the parties did not provide clear support for
any particular contention of the parties on the question of the location of
the exhaustible natural resource in Article XX(g). In view of the above, the
Panel could see no valid reason supporting the conclusion that the provi-
sions of Article XX (g) apply only to policies related to the conservation of
exhaustible natural resources located within the territory of the contracting
party invoking the provision. The Panel consequently found that the policy
to conserve dolphins in the eastern tropical Pacific Ocean, which the United
States pursued within its jurisdiction over its nationals and vessels, fell within
the range of policies covered by Article XX (g).
“Related to” the conservation of an exhaustible natural resource; made
effective “in conjunction” with restrictions on domestic production or con-
sumption
5.21. The Panel then examined the second of the above three questions,
namely whether the primary and intermediary nation embargoes imposed
by the United States on yellowfin tuna could be considered to be “related to”
the conservation of an exhaustible natural resource within the meaning of
Article XX (g), and whether they were made effective “in conjunction with”
restrictions on domestic production or consumption. The United States
argued that its measures met both requirements. The EEC disagreed, stating
the measures had to be “primarily aimed” at the conservation of the exhaust-
ible natural resource, and at rendering effective the restrictions on domestic
production or consumption.
5.22. The Panel proceeded first to examine the relationship established
by Article XX (g) between the trade measure and the policy of conserving
an exhaustible natural resource, and between the trade measure and the re-
strictions on domestic production or consumption. It noted that a previous
panel had stated that the scope of the terms relating to” and “in conjunction
with” had to be interpreted in a way that ensured that the scope of provisions
under Article XX (g) corresponded to the purposes for which it was included
in the General Agreement. That panel had stated that widen the scope for
measures serving trade policy purposes but merely to ensure that the com-
mitments under the General Agreement do not hinder the pursuit of policies
aimed at the conservation of exhaustive natural resources.” The previous
panel had concluded that the term “relating to” should be taken to mean
“primarily aimed” at the conservation of natural resources, and that the term
“in conjunction with” should be taken to mean “primarily aimed” at render-
ing effective the restrictions on domestic production or consumption. The

PA R T I I
Panel agreed with the reasoning of the previous panel, on the understanding
that the words “primarily aimed at” referred not only to the purpose of the
measure, but also to its effect on the conservation of the natural resource.
5.23. The Panel then proceeded to examine whether the embargoes
imposed by the United States could be considered to be primarily aimed at
the conservation of an exhaustible natural resource, and primarily aimed at
rendering effective restrictions on domestic production or consumption. In
particular, the Panel examined the relationship of the United States mea-
sures with the expressed goal of dolphin conservation. The Panel noted that
measures taken under the intermediary nation embargo prohibited imports
from a country of any tuna, whether or not the particular tuna was harvested
in a manner that harmed or could harm dolphins, and whether or not the
country had tuna harvesting practices and policies that harmed or could harm
dolphins, as long as it was from a country that imported tuna from countries
maintaining tuna harvesting practices and policies not comparable to those
of the United States. The Panel then observed that the prohibition on imports
of tuna into the United States taken under the intermediary nation embargo
could not, by itself, further the United States conservation objectives. The
intermediary nation embargo could achieve its intended effect only if it were
followed by changes in policies or practices, not in the country exporting
tuna to the United States, but in third countries from which the exporting
country imported tuna.
5.24. The Panel noted also that measures taken under the primary na-
tion embargo prohibited imports from a country of any tuna, whether or
not the particular tuna was harvested in a way that harmed or could harm
dolphins, as long as the country’s tuna harvesting practices and policies were
not comparable to those of the United States. The Panel observed that, as in
the case of the intermediary nation embargo, the prohibition on imports of
tuna into the United States taken under the primary nation embargo could
not possibly, by itself, further the United States conservation objectives. The
primary nation embargo could achieve its desired effect only if it were fol-
lowed by changes in policies and practices in the exporting countries. In view
of the foregoing, the Panel observed that both the primary and intermediary
nation embargoes on tuna implemented by the United States were taken so
as to force other countries to change their policies with respect to persons
and things within their own jurisdiction, since the embargoes required such
changes in order to have any effect on the conservation of dolphins.
5.25. The Panel then examined whether, under Article XX (g), measures
primarily aimed at the conservation of exhaustible natural resources, or pri-

marily aimed at rendering effective domestic restrictions on their production

or consumption, could include measures taken so as to force other countries
to change their policies with respect to persons or things within their own
jurisdictions, and requiring such changes in order to be effective. The Panel
noted that the text of Article XX does not provide a clear answer to this
question. It therefore proceeded to examine the text of Article XX (g) in the
light of the object and purpose of the General Agreement.
5.26. The Panel observed that Article XX provides for an exception to ob-
ligations under the General Agreement. The long-standing practice of panels
has accordingly been to interpret this provision narrowly, in a manner that
preserves the basic objectives and principles of the General Agreement. If
Article XX were interpreted to permit contracting parties to deviate from the
obligations of the General Agreement by taking trade measures to implement
policies, including conservation policies, within their own jurisdiction, the
basic objectives of the General Agreement would be maintained. If however
Article XX were interpreted to permit contracting parties to take trade mea-
sures so as to force other contracting parties to change their policies within
their jurisdiction, including their conservation policies, the balance of rights
and obligations among contracting parties, in particular the right of access
to markets, would be seriously impaired. Under such an interpretation the
General Agreement could no longer serve as a multilateral framework for
trade among contracting parties.
5.27. The Panel concluded that measures taken so as to force other coun-
tries to change their policies, and that were effective only if such changes
occurred, could not be primarily aimed either at the conservation of an
exhaustible natural resource, or at rendering effective restrictions on do-
mestic production or consumption, in the meaning of Article XX (g). Since
an essential condition of Article XX (g) had not been met, the Panel did not
consider it necessary to examine whether the United States measures had also
met the other requirements of Article XX. The Panel accordingly found that
the import prohibitions on tuna and tuna products maintained by the United
States inconsistently with Article XI: 1 were not justified by Article XX (g).

PA R T I I
United States – Standards for Reformulated and

Conventional Gasoline438
I. The United States appeals from certain conclusions on issues of law
and certain legal interpretations contained in the Panel Report, United States
- Standards for Reformulated and Conventional Gasoline, WT/DS2/R, 29 Janu-
ary 1996 (the “Panel Report”). The dispute arises from the US Clean Air Act
which is aimed to control and reduce air pollution in the United States. The
Act sets standards for gasoline quality intended to reduce air pollution, includ-
ing ozone, caused by motor vehicle emissions. The Gasoline Rule applies to
refiners, blenders and importers of gasoline. Venezuela and Brazil complained
that US Gasoline Regulation discriminated against foreign gasoline importers
by setting different baseline establishment rules to comply with the standard….
IV. The Introductory Provisions of Article XX of the General Agreement:
Applying the Chapeau of the General Exceptions
Having concluded, in the preceding section, that the baseline establish-
ment rules of the Gasoline Rule fall within the terms of Article XX(g), we
come to the question of whether those rules also meet the requirements of
the chapeau of Article XX. In order that the justifying protection of Article
XX may be extended to it, the measure at issue must not only come under
one or another of the particular exceptions - paragraphs (a) to (j) - listed
under Article XX; it must also satisfy the requirements imposed by the open-
ing clauses of Article XX. The analysis is, in other words, two-tiered: first,
provisional justification by reason of characterization of the measure under
XX(g); second, further appraisal of the same measure under the introductory
clauses of Article XX.439
The chapeau by its express terms addresses, not so much the questioned
measure or its specific contents as such, but rather the manner in which
that measure is applied. It is, accordingly, important to underscore that the
purpose and object of the introductory clauses of Article XX is generally the
prevention of “abuse of the exceptions of [what was later to become] Article
[XX].” This insight drawn from the drafting history of Article XX is a valuable
one. The chapeau is animated by the principle that while the exceptions of
Article XX may be invoked as a matter of legal right, they should not be so
applied as to frustrate or defeat the legal obligations of the holder of the right
under the substantive rules of the General Agreement. If those exceptions
438
United States-Standards for Reformulated and Conventional Gasoline, World Trade
Organization Appellate Body Report, WT/DS2/AB/R ( 29 April 1996).
439
Id. at 22.

are not to be abused or misused, in other words, the measures falling within
the particular exceptions must be applied reasonably, with due regard both
to the legal duties of the party claiming the exception and the legal rights of
the other parties concerned. The burden of demonstrating that a measure
provisionally justified as being within one of the exceptions set out in the
individual paragraphs of Article XX does not, in its application, constitute
abuse of such exception under the chapeau, rests on the party invoking the
exception. That is, of necessity, a heavier task than that involved in showing
that an exception, such as Article XX(g), encompasses the measure at issue.
The enterprise of applying Article XX would clearly be an unprofitable
one if it involved no more than applying the standard used in finding that the
baseline establishment rules were inconsistent with Article III:4. That would
also be true if the finding were one of inconsistency with some other substan-
tive rule of the General Agreement. The provisions of the chapeau cannot
logically refer to the same standard(s) by which a violation of a substantive
rule has been determined to have occurred. To proceed down that path would
be both to empty the chapeau of its contents and to deprive the exceptions
in paragraphs (a) to (j) of meaning. Such recourse would also confuse the
question of whether inconsistency with a substantive rule existed, with the
further and separate question arising under the chapeau of Article XX as to
whether that inconsistency was nevertheless justified. One of the corollar-
ies of the “general rule of interpretation” in the Vienna Convention is that
interpretation must give meaning and effect to all the terms of a treaty. An
interpreter is not free to adopt a reading that would result in reducing whole
clauses or paragraphs of a treaty to redundancy or inutility.440
The chapeau, it will be seen, prohibits such application of a measure at
issue (otherwise falling within the scope of Article XX(g)) as would constitute
(a) “arbitrary discrimination” (between countries where the same condi-
tions prevail);
(b) “unjustifiable discrimination” (with the same qualifier); or
(c) “disguised restriction” on international trade.
The text of the chapeau is not without ambiguity, including one relating to
the field of application of the standards it contains: the arbitrary or unjustifi-
able discrimination standards and the disguised restriction on international
trade standard. It may be asked whether these standards do not have dif-
ferent fields of application. Such a question was put to the United States in
440
Id. at 23.

PA R T I I
the course of the oral hearing. It was asked whether the words incorporated
into the first two standards “between countries where the same conditions
prevail” refer to conditions in importing and exporting countries, or only to
conditions in exporting countries. The reply of the United States was to the
effect that it interpreted that phrase as referring to both the exporting coun-
tries and importing countries and as between exporting countries. It also said
that the language spoke for itself, but there was no reference to third parties;
while some thought that this was only between exporting countries inter se,
there is no support in the text for that view. No such question was put to the
United States concerning the field of application of the third standard – dis-
guised restriction on international trade. But the United States put forward
arguments designed to show that in the case under appeal, it had met all
the standards set forth in the chapeau. In doing so, it clearly proceeded on
the assumption that, whatever else they might relate to in another case, they
were relevant to a case of national treatment where the Panel had found a
violation of Article III:4. At no point in the appeal was that assumption chal-
lenged by Venezuela or Brazil. Venezuela argued that the United States had
failed to meet all the standards contained in the chapeau. So did Norway
and the European Communities as third participants. In short, the field of
application of these standards was not at issue.
The assumption on which all the participants proceeded is buttressed
by the fact that the chapeau says that “nothing in this Agreement shall be
construed to prevent the adoption or enforcement by any contracting party
of measures ...” The exceptions listed in Article XX thus relate to all of the
obligations under the General Agreement: the national treatment obligation
and the most-favoured-nation obligation, of course, but others as well. Effect
is more easily given to the words “nothing in this Agreement,” and Article XX
as a whole including its chapeau more easily integrated into the remainder
of the General Agreement, if the chapeau is taken to mean that the standards
it sets forth are applicable to all of the situations in which an allegation of a
violation of a substantive obligation has been made and one of the exceptions
contained in Article XX has in turn been claimed. Against this background, we
see no need to decide the matter of the field of application of the standards
set forth in the chapeau nor to make a ruling at variance with the common
understanding of the participants.441
P. 25 “Arbitrary discrimination,” “unjustifiable discrimination” and “dis-
guised restriction” on international trade may, accordingly, be read side-by-
side; they impart meaning to one another. It is clear to us that “disguised
441
Id. at 24.

restriction” includes disguised discrimination in international trade. It is

equally clear that concealed or unannounced restriction or discrimination in
international trade does not exhaust the meaning of “disguised restriction.”
We consider that “disguised restriction,” whatever else it covers, may prop-
erly be read as embracing restrictions amounting to arbitrary or unjustifiable
discrimination in international trade taken under the guise of a measure for-
mally within the terms of an exception listed in Article XX. Put in a somewhat
different manner, the kinds of considerations pertinent in deciding whether
the application of a particular measure amounts to “arbitrary or unjustifiable
discrimination,” may also be taken into account in determining the presence
of a “disguised restriction” on international trade. The fundamental theme is
to be found in the purpose and object of avoiding abuse or illegitimate use
of the exceptions to substantive rules available in Article XX.
There was more than one alternative course of action available to the
United States in promulgating regulations implementing the CAA. These
included the imposition of statutory baselines without differentiation as
between domestic and imported gasoline. This approach, if properly imple-
mented, could have avoided any discrimination at all. Among the other op-
tions open to the United States was to make available individual baselines
to foreign refiners as well as domestic refiners. The United States has put
forward a series of reasons why either of these courses was not, in its view,
realistically open to it and why, instead, it had to devise and apply the baseline
establishment rules contained in the Gasoline Rule.
In explaining why individual baselines for foreign refiners had not been put
in place, the United States laid heavy stress upon the difficulties which the EPA
would have had to face. These difficulties related to anticipated administrative
problems that individual baselines for foreign refiners would have generated.
Thus, according to the United States, imported gasoline was relegated to
the more exacting statutory baseline requirement because of these difficulties
of verification and enforcement. The United States stated that verification
and enforcement of the Gasoline Rule’s requirements for imported gasoline
are “much easier when the statutory baseline is used” and that there would
be a “dramatic difference” in the burden of administering requirements for
imported gasoline if individual baselines were allowed. While the anticipated
difficulties concerning verification and subsequent enforcement are doubtless
real to some degree, the Panel viewed them as insufficient to justify the denial
to foreign refiners of individual baselines permitted to domestic refiners.442
442
Id. at 26.

PA R T I I
In the view of the Panel, the United States had reasonably available to it
data for, and measures of, verification and assessment which were consistent
or less inconsistent with Article III:4. For instance, although foreign data may
be formally less subject to complete control by US authorities, this did not
amount to establishing that foreign data could not in any circumstances be
sufficiently reliable to serve U.S. purposes. This, however, was the practical
effect of the application of the Gasoline Rule. In the Panel’s view, the United
States had not demonstrated that data available from foreign refiners was
inherently less susceptible to established techniques of checking, verification,
assessment and enforcement than data for other trade in goods subject to
US regulation. The nature of the data in this case was similar to data relied
upon by the United States in other contexts, including, for example, under
the application of antidumping laws. In an antidumping case, only when the
information was not supplied or deemed unverifiable did the United States
turn to other information. If a similar practice were to be applied in the case
of the Gasoline Rule, then importers could, for instance, be permitted to use
the individual baselines of foreign refiners for imported gasoline from those
refiners, with the statutory baseline being applied only when the source of
imported gasoline could not be determined or a baseline could not be es-
tablished because of an absence of data….
We agree with the finding above made in the Panel Report. There are,
as the Panel Report found, established techniques for checking, verification,
assessment and enforcement of data relating to imported goods, techniques
which in many contexts are accepted as adequate to permit international trade
- trade between territorial sovereigns - to go on and grow. The United States
must have been aware that for these established techniques and procedures
to work, cooperative arrangements with both foreign refiners and the foreign
governments concerned would have been necessary and appropriate.443
[I]t appears to the Appellate Body, that the United States had not pursued
the possibility of entering into cooperative arrangements with the govern-
ments of Venezuela and Brazil or, if it had, not to the point where it encoun-
tered governments that were unwilling to cooperate. The record of this case
sets out the detailed justifications put forward by the United States. But it
does not reveal what, if any, efforts had been taken by the United States to
enter into appropriate procedures in cooperation with the governments of
Venezuela and Brazil so as to mitigate the administrative problems pleaded
by the United States.
443
Id. at 27.

In its submissions, the United States also explained why the statutory
baseline requirement was not imposed on domestic refiners as well. Here,
the United States stressed the problems that domestic refineries would have
faced had they been required to comply with the statutory baseline. Clearly,
the United States did not feel it feasible to require its domestic refiners to
incur the physical and financial costs and burdens entailed by immediate
compliance with a statutory baseline. The United States wished to give
domestic refiners time to restructure their operations and adjust to the re-
quirements in the Gasoline Rule. This may very well have constituted sound
domestic policy from the viewpoint of the EPA and U.S. refiners. At the same
time we are bound to note that, while the United States counted the costs
for its domestic refiners of statutory baselines, there is nothing in the record
to indicate that it did other than disregard that kind of consideration when
it came to foreign refiners.444
We have above located two omissions on the part of the United States:
to explore adequately means, including in particular cooperation with the
governments of Venezuela and Brazil, of mitigating the administrative prob-
lems relied on as justification by the United States for rejecting individual
baselines for foreign refiners; and to count the costs for foreign refiners that
would result from the imposition of statutory baselines. In our view, these
two omissions go well beyond what was necessary for the Panel to determine
that a violation of Article III:4 had occurred in the first place. The resulting
discrimination must have been foreseen, and was not merely inadvertent or
unavoidable. In the light of the foregoing, our conclusion is that the baseline
establishment rules in the Gasoline Rule, in their application, constitute “un-
justifiable discrimination” and a “disguised restriction on international trade.”
We hold, in sum, that the baseline establishment rules, although within the
terms of Article XX(g), are not entitled to the justifying protection afforded
by Article XX as a whole.
Regional Trade Agreements445

Regional integration is defined as activities of the states to liberalize or
facilitate trade on a regional basis by forming free trade areas, customs unions
or common markets. According to Article XIV of GATT 1947 free trade area
is understood to mean “a group of two or more customs territories in which
the duties and other restrictive regulations of commerce are eliminated on
substantially all the trade between constituent territories in products origi-
444
Id. at 28.
445
Nurzat Myrsalieva, unpublished article (excerpts)(2011).

PA R T I I
nating in such territories.”446 Whereas, customs union shall be understood as

a free trade area with common external customs tariff duties for trade with
third countries.
Today almost all the states in the world are parties to at least one or sev-
eral regional trade agreements.447 However, the level of integration and their
success varies considerably from one regional trade agreement to another.448
European Union represents by far the most successful model of regional in-
tegration process, which not only effectively functions as a customs union
and common market, but is also effectively integrated in WTO system and
international trade order in general.449
Post-Soviet countries just like many countries in the world formed number
of regional integration organizations with an attempt to capitalize on benefits
of free trade,450 one of them being Eurasian Economic Community (EAEC).
Members of EAEC are Belarus, Kazakhstan, Kyrgyzstan, Tajikistan, and Russia
being the biggest, the strongest and the most influential member. Republics
of Moldova, Ukraine and Armenia have the status of observers. The primary
goals of EAEC include effective formation of customs union and single mar-
ket. However, along with these goals EAEC has been also formed in order
to better facilitate region’s integration into global economy by forming the
same position with regard to their entrance into WTO.
Currently EAEC operates as a free trade area, where there are no customs
duties or quantitative restrictions on import of goods originating in EAEC
member states, and with taxes on imports not exceeding domestic rates. So, the
main task to be achieved at the moment is to establish common customs tariff,
which requires harmonizing or unifying existing customs duties of member
states in trade with all third countries. Core EAEC members, Russia, Kazakhstan
and Belarus, have already formed common customs tariff on approximately
62% of tariff lines. Moreover, EAEC members in total adopted around 100
agreements and other documents, aimed at harmonization of foreign trade,
446
General Agreement on Tariffs and Trade 1947, Article XXIV, para 8 (b), Oct. 30,
1947, 61 Stat. A-11, T.I.A.S. 1700, 55 U.N.T.S. 194.
447
For the list of registered regional trade agreements visit http://rtais.wto.org/UI/
PublicAllRTAList.aspx.
448
Reasons for failure of regional integration processes in West Africa see: Regional
Integration: Comparative Experiences, Heba Shams, 10-SUM L. & Bus. Rev.Am. 457.
449
Caribbean Single Market and Economy: What is it and can it deliver?, Andrea Ewart,
11 ILSA J.Int’l & Comp. L. 39, p. 39.
450
Regional Integration in the Post-USSR: Legal and Institutional Aspects, Roman
Petrov, 10 SUM L. & Bus.Rev.Am. 631.

tax, customs and tariff/non-tariff legislation, as well as currency regulation,

border issues, energy and transport.451 However, despite all of these progress
and efforts, successful formation of customs union is still far from complete
because Kyrgyzstan’s synchronous membership in WTO creates certain difficul-
ties for creating common customs tariffs. The problem is that Kyrgyzstan has
already negotiated external customs duties with third countries under WTO
and unilateral change of its customs duties might result in breach of its obliga-
tions under articles I and II of General Agreement on Tariff and Trade (GATT).
GATT Article XXIV allows WTO member states to create regional trade
agreements in the form of free trade areas and customs unions, provided that
certain conditions are satisfied. However, under the current situation it is not
clear whether Kyrgyzstan’s unequal treatment is justified under WTO rules.
WTO Dispute Settlement System

World Trade Organization452
UNDERSTANDING ON RULES AND PROCEDURES
GOVERNING THE SETTLEMENT OF DISPUTES
Members hereby agree as follows:
Article 1
Coverage and Application
1. The rules and procedures of this Understanding shall apply to disputes
brought pursuant to the consultation and dispute settlement provisions of
the agreements listed in Appendix 1 to this Understanding (referred to in
this Understanding as the “covered agreements”). The rules and procedures
of this Understanding shall also apply to consultations and the settlement
of disputes between Members concerning their rights and obligations under
the provisions of the Agreement Establishing the World Trade Organization
(referred to in this Understanding as the “WTO Agreement”) and of this
Understanding taken in isolation or in combination with any other covered
agreement….
451
Trade Policy Review, WT/TPR/S/170, p. 47.
452
http://www.wto.org/english/docs_e/legal_e/legal_e.htm

PA R T I I
Article 2
Administration
1. The Dispute Settlement Body is hereby established to administer
these rules and procedures and, except as otherwise provided in a covered
agreement, the consultation and dispute settlement provisions of the cov-
ered agreements. Accordingly, the DSB shall have the authority to establish
panels, adopt panel and Appellate Body reports, maintain surveillance of
implementation of rulings and recommendations, and authorize suspension
of concessions and other obligations under the covered agreements. With
respect to disputes arising under a covered agreement which is a Plurilateral
Trade Agreement, the term “Member” as used herein shall refer only to those
Members that are parties to the relevant Plurilateral Trade Agreement. Where
the DSB administers the dispute settlement provisions of a Plurilateral Trade
Agreement, only those Members that are parties to that Agreement may par-
ticipate in decisions or actions taken by the DSB with respect to that dispute….
4. Where the rules and procedures of this Understanding provide for the
DSB to take a decision, it shall do so by consensus.453
Article 3
General Provisions
1. Members affirm their adherence to the principles for the management
of disputes heretofore applied under Articles XXII and XXIII of GATT 1947,
and the rules and procedures as further elaborated and modified herein.
2. The dispute settlement system of the WTO is a central element in
providing security and predictability to the multilateral trading system. The
Members recognize that it serves to preserve the rights and obligations of
Members under the covered agreements, and to clarify the existing provisions
of those agreements in accordance with customary rules of interpretation of
public international law. Recommendations and rulings of the DSB cannot add
to or diminish the rights and obligations provided in the covered agreements.
3. The prompt settlement of situations in which a Member considers that
any benefits accruing to it directly or indirectly under the covered agreements
are being impaired by measures taken by another Member is essential to the
effective functioning of the WTO and the maintenance of a proper balance
between the rights and obligations of Members.
453
The DSB shall be deemed to have decided by consensus on a matter submitted
for its consideration, if no Member, present at the meeting of the DSB when the
decision is taken, formally objects to the proposed decision.

4. Recommendations or rulings made by the DSB shall be aimed at achiev-

ing a satisfactory settlement of the matter in accordance with the rights and
obligations under this Understanding and under the covered agreements.
5. All solutions to matters formally raised under the consultation and
dispute settlement provisions of the covered agreements, including arbitra-
tion awards, shall be consistent with those agreements and shall not nullify
or impair benefits accruing to any Member under those agreements, nor
impede the attainment of any objective of those agreements.
6. Mutually agreed solutions to matters formally raised under the consul-
tation and dispute settlement provisions of the covered agreements shall be
notified to the DSB and the relevant Councils and Committees, where any
Member may raise any point relating thereto.
7. Before bringing a case, a Member shall exercise its judgement as to
whether action under these procedures would be fruitful. The aim of the
dispute settlement mechanism is to secure a positive solution to a dispute. A
solution mutually acceptable to the parties to a dispute and consistent with
the covered agreements is clearly to be preferred. In the absence of a mutu-
ally agreed solution, the first objective of the dispute settlement mechanism
is usually to secure the withdrawal of the measures concerned if these are
found to be inconsistent with the provisions of any of the covered agree-
ments. The provision of compensation should be resorted to only if the
immediate withdrawal of the measure is impracticable and as a temporary
measure pending the withdrawal of the measure which is inconsistent with
a covered agreement. The last resort which this Understanding provides to
the Member invoking the dispute settlement procedures is the possibility of
suspending the application of concessions or other obligations under the
covered agreements on a discriminatory basis vis-à-vis the other Member,
subject to authorization by the DSB of such measures.
8. In cases where there is an infringement of the obligations assumed
under a covered agreement, the action is considered prima facie to consti-
tute a case of nullification or impairment. This means that there is normally
a presumption that a breach of the rules has an adverse impact on other
Members parties to that covered agreement, and in such cases, it shall be
up to the Member against whom the complaint has been brought to rebut
the charge….
10. It is understood that requests for conciliation and the use of the
dispute settlement procedures should not be intended or considered as
contentious acts and that, if a dispute arises, all Members will engage in these
procedures in good faith in an effort to resolve the dispute. It is also under-

PA R T I I
stood that complaints and counter-complaints in regard to distinct matters

should not be linked.
11. This Understanding shall be applied only with respect to new requests
for consultations under the consultation provisions of the covered agree-
ments made on or after the date of entry into force of the WTO Agreement….
12. Notwithstanding paragraph 11, if a complaint based on any of the
covered agreements is brought by a developing country Member against a
developed country Member, the complaining party shall have the right to
invoke, as an alternative to the provisions contained in Articles 4, 5, 6 and 12
of this Understanding, the corresponding provisions of the Decision of 5 April
1966 (BISD 14S/18), except that where the Panel considers that the time-
frame provided for in paragraph 7 of that Decision is insufficient to provide
its report and with the agreement of the complaining party, that time-frame
may be extended. To the extent that there is a difference between the rules
and procedures of Articles 4, 5, 6 and 12 and the corresponding rules and
procedures of the Decision, the latter shall prevail.
Article 4
Consultations
1. Members affirm their resolve to strengthen and improve the effective-
ness of the consultation procedures employed by Members.
2. Each Member undertakes to accord sympathetic consideration to and
afford adequate opportunity for consultation regarding any representations
made by another Member concerning measures affecting the operation of
any covered agreement taken within the territory of the former….454
5. In the course of consultations in accordance with the provisions of a
covered agreement, before resorting to further action under this Understand-
ing, Members should attempt to obtain satisfactory adjustment of the matter.
6. Consultations shall be confidential, and without prejudice to the rights
of any Member in any further proceedings.
7. If the consultations fail to settle a dispute within 60 days after the
date of receipt of the request for consultations, the complaining party may
request the establishment of a panel. The complaining party may request a
454
Where the provisions of any other covered agreement concerning measures taken
by regional or local governments or authorities within the territory of a Member
contain provisions different from the provisions of this paragraph, the provisions
of such other covered agreement shall prevail.

panel during the 60-day period if the consulting parties jointly consider that
consultations have failed to settle the dispute.
8. In cases of urgency, including those which concern perishable goods,
Members shall enter into consultations within a period of no more than 10
days after the date of receipt of the request. If the consultations have failed
to settle the dispute within a period of 20 days after the date of receipt of
the request, the complaining party may request the establishment of a panel.
9. In cases of urgency, including those which concern perishable goods,
the parties to the dispute, panels and the Appellate Body shall make every
effort to accelerate the proceedings to the greatest extent possible.
10. During consultations Members should give special attention to the
particular problems and interests of developing country Members.
11. Whenever a Member other than the consulting Members considers
that it has a substantial trade interest in consultations being held pursuant
to paragraph 1 of Article XXII of GATT 1994, paragraph 1 of Article XXII of
GATS, or the corresponding provisions in other covered agreements455, such
Member may notify the consulting Members and the DSB, within 10 days
after the date of the circulation of the request for consultations under said
Article, of its desire to be joined in the consultations. Such Member shall be
joined in the consultations, provided that the Member to which the request
for consultations was addressed agrees that the claim of substantial interest
is well-founded. In that event they shall so inform the DSB. If the request to
be joined in the consultations is not accepted, the applicant Member shall be
free to request consultations under paragraph 1 of Article XXII or paragraph
1 of Article XXIII of GATT 1994, paragraph 1 of Article XXII or paragraph 1
455
The corresponding consultation provisions in the covered agreements are listed
hereunder: Agreement on Agriculture, Article 19; Agreement on the Application
of Sanitary and Phytosanitary Measures, paragraph 1 of Article 11; Agreement on
Textiles and Clothing, paragraph 4 of Article 8; Agreement on Technical Barriers to
Trade, paragraph 1 of Article 14; Agreement on Trade-Related Investment Measures,
Article 8; Agreement on Implementation of Article VI of GATT 1994, paragraph 2 of
Article 17; Agreement on Implementation of Article VII of GATT 1994, paragraph
2 of Article 19; Agreement on Preshipment Inspection, Article 7; Agreement on
Rules of Origin, Article 7; Agreement on Import Licensing Procedures, Article 6;
Agreement on Subsidies and Countervailing Measures, Article 30; Agreement on
Safeguards, Article 14; Agreement on Trade-Related Aspects of Intellectual Property
Rights, Article 64.1; and any corresponding consultation provisions in Plurilateral
Trade Agreements as determined by the competent bodies of each Agreement and
as notified to the DSB.

PA R T I I
of Article XXIII of GATS, or the corresponding provisions in other covered

agreements.
Article 5
Good Offices, Conciliation and Mediation
1. Good offices, conciliation and mediation are procedures that are
undertaken voluntarily if the parties to the dispute so agree….
3. Good offices, conciliation or mediation may be requested at any time
by any party to a dispute. They may begin at any time and be terminated at
any time. Once procedures for good offices, conciliation or mediation are
terminated, a complaining party may then proceed with a request for the
establishment of a panel….
6. The Director-General may, acting in an ex officio capacity, offer good
offices, conciliation or mediation with the view to assisting Members to settle
a dispute.
Article 6
Establishment of Panels
1. If the complaining party so requests, a panel shall be established at
the latest at the DSB meeting following that at which the request first appears
as an item on the DSB’s agenda, unless at that meeting the DSB decides by
consensus not to establish a panel….456
Article 8
Composition of Panels
1. Panels shall be composed of well-qualified governmental and/or non-
governmental individuals, including persons who have served on or presented
a case to a panel, served as a representative of a Member or of a contracting
party to GATT 1947 or as a representative to the Council or Committee of
any covered agreement or its predecessor agreement, or in the Secretariat,
taught or published on international trade law or policy, or served as a senior
trade policy official of a Member.
2. Panel members should be selected with a view to ensuring the in-
dependence of the members, a sufficiently diverse background and a wide
spectrum of experience.
456
If the complaining party so requests, a meeting of the DSB shall be convened for
this purpose within 15 days of the request, provided that at least 10 days’ advance
notice of the meeting is given.

3. Citizens of Members whose governments457 are parties to the dispute

or third parties as defined in paragraph 2 of Article 10 shall not serve on a
panel concerned with that dispute, unless the parties to the dispute agree
otherwise….
5. Panels shall be composed of three panelists unless the parties to the
dispute agree, within 10 days from the establishment of the panel, to a panel
composed of five panelists. Members shall be informed promptly of the
composition of the panel….
8. Members shall undertake, as a general rule, to permit their officials to
serve as panelists.
9. Panelists shall serve in their individual capacities and not as govern-
ment representatives, nor as representatives of any organization. Members
shall therefore not give them instructions nor seek to influence them as
individuals with regard to matters before a panel.
10. When a dispute is between a developing country Member and a de-
veloped country Member the panel shall, if the developing country Member
so requests, include at least one panelist from a developing country Member.
11. Panelists’ expenses, including travel and subsistence allowance, shall
be met from the WTO budget in accordance with criteria to be adopted by the
General Council, based on recommendations of the Committee on Budget,
Finance and Administration….
Article 10
Third Parties
1. The interests of the parties to a dispute and those of other Members
under a covered agreement at issue in the dispute shall be fully taken into
account during the panel process.
2. Any Member having a substantial interest in a matter before a panel
and having notified its interest to the DSB (referred to in this Understand-
ing as a “third party”) shall have an opportunity to be heard by the panel
and to make written submissions to the panel. These submissions shall
also be given to the parties to the dispute and shall be reflected in the
panel report….
457
In the case where customs unions or common markets are parties to a dispute,
this provision applies to citizens of all member countries of the customs unions
or common markets.

PA R T I I
Article 13
Right to Seek Information
1. Each panel shall have the right to seek information and technical
advice from any individual or body which it deems appropriate. However,
before a panel seeks such information or advice from any individual or body
within the jurisdiction of a Member it shall inform the authorities of that
Member. A Member should respond promptly and fully to any request by a
panel for such information as the panel considers necessary and appropriate.
Confidential information which is provided shall not be revealed without
formal authorization from the individual, body, or authorities of the Member
providing the information.
2. Panels may seek information from any relevant source and may consult
experts to obtain their opinion on certain aspects of the matter. With respect
to a factual issue concerning a scientific or other technical matter raised by
a party to a dispute, a panel may request an advisory report in writing from
an expert review group. Rules for the establishment of such a group and its
procedures are set forth in Appendix 4.
Article 14
Confidentiality
1. Panel deliberations shall be confidential.
2. The reports of panels shall be drafted without the presence of the
parties to the dispute in the light of the information provided and the state-
ments made.
3. Opinions expressed in the panel report by individual panelists shall
be anonymous….
Article 16
Adoption of Panel Reports
1. In order to provide sufficient time for the Members to consider panel
reports, the reports shall not be considered for adoption by the DSB until 20
days after the date they have been circulated to the Members.
2. Members having objections to a panel report shall give written reasons
to explain their objections for circulation at least 10 days prior to the DSB
meeting at which the panel report will be considered.
3. The parties to a dispute shall have the right to participate fully in the con-
sideration of the panel report by the DSB, and their views shall be fully recorded.

Article 17
Appellate Review
Standing Appellate Body
1. A standing Appellate Body shall be established by the DSB. The Appel-
late Body shall hear appeals from panel cases. It shall be composed of seven
persons, three of whom shall serve on any one case. Persons serving on the
Appellate Body shall serve in rotation. Such rotation shall be determined in
the working procedures of the Appellate Body….
13. The Appellate Body may uphold, modify or reverse the legal findings
and conclusions of the panel.
Article 19
Panel and Appellate Body Recommendations
1. Where a panel or the Appellate Body concludes that a measure is in-
consistent with a covered agreement, it shall recommend that the Member
concerned458 bring the measure into conformity with that agreement.459 In ad-
dition to its recommendations, the panel or Appellate Body may suggest ways
in which the Member concerned could implement the recommendations.
Article 21
Surveillance of Implementation of Recommendations and Rulings
1. Prompt compliance with recommendations or rulings of the DSB is
essential in order to ensure effective resolution of disputes to the benefit of
all Members.
2. Particular attention should be paid to matters affecting the interests
of developing country Members with respect to measures which have been
subject to dispute settlement.
3. At a DSB meeting held within 30 days460 after the date of adoption of
the panel or Appellate Body report, the Member concerned shall inform the
DSB of its intentions in respect of implementation of the recommendations
and rulings of the DSB. If it is impracticable to comply immediately with the
458
The “Member concerned” is the party to the dispute to which the panel or Appel-
late Body recommendations are directed.
459
With respect to recommendations in cases not involving a violation of GATT 1994
or any other covered agreement, see Article 26.
460
If a meeting of the DSB is not scheduled during this period, such a meeting of the
DSB shall be held for this purpose.

PA R T I I
recommendations and rulings the Member concerned shall have a reasonable

period of time in which to do so….
6. The DSB shall keep under surveillance the implementation of adopted
recommendations or rulings. The issue of implementation of the recom-
mendations or rulings may be raised at the DSB by any Member at any time
following their adoption. Unless the DSB decides otherwise, the issue of
implementation of the recommendations or rulings shall be placed on the
agenda of the DSB meeting after six months following the date of establish-
ment of the reasonable period of time pursuant to paragraph 3 and shall
remain on the DSB’s agenda until the issue is resolved. At least 10 days prior
to each such DSB meeting, the Member concerned shall provide the DSB
with a status report in writing of its progress in the implementation of the
recommendations or rulings.
7. If the matter is one which has been raised by a developing country
Member, the DSB shall consider what further action it might take which
would be appropriate to the circumstances.
8. If the case is one brought by a developing country Member, in consider-
ing what appropriate action might be taken, the DSB shall take into account
not only the trade coverage of measures complained of, but also their impact
on the economy of developing country Members concerned.
Article 22
Compensation and the Suspension of Concessions
1. Compensation and the suspension of concessions or other obligations
are temporary measures available in the event that the recommendations and
rulings are not implemented within a reasonable period of time. However,
neither compensation nor the suspension of concessions or other obligations
is preferred to full implementation of a recommendation to bring a measure
into conformity with the covered agreements. Compensation is voluntary
and, if granted, shall be consistent with the covered agreements.
2. If the Member concerned fails to bring the measure found to be in-
consistent with a covered agreement into compliance therewith or otherwise
comply with the recommendations and rulings within the reasonable period
of time determined pursuant to paragraph 3 of Article 21, such Member shall,
if so requested, and no later than the expiry of the reasonable period of time,
enter into negotiations with any party having invoked the dispute settlement
procedures, with a view to developing mutually acceptable compensation. If
no satisfactory compensation has been agreed within 20 days after the date
of expiry of the reasonable period of time, any party having invoked the

dispute settlement procedures may request authorization from the DSB to

suspend the application to the Member concerned of concessions or other
obligations under the covered agreements.
3. In considering what concessions or other obligations to suspend, the
complaining party shall apply the following principles and procedures:
(a) the general principle is that the complaining party should first seek to
suspend concessions or other obligations with respect to the same sector(s)
as that in which the panel or Appellate Body has found a violation or other
nullification or impairment;
(b) if that party considers that it is not practicable or effective to suspend
concessions or other obligations with respect to the same sector(s), it may
seek to suspend concessions or other obligations in other sectors under the
same agreement;
(c) if that party considers that it is not practicable or effective to suspend
concessions or other obligations with respect to other sectors under the same
agreement, and that the circumstances are serious enough, it may seek to
suspend concessions or other obligations under another covered agreement;…
(f) for purposes of this paragraph, “sector” means:
(i) with respect to goods, all goods;
(ii) with respect to services, a principal sector as identified in the current
“Services Sectoral Classification List” which identifies such sectors;461
(iii) with respect to trade-related intellectual property rights, each of the
categories of intellectual property rights covered in Section 1, or Section 2,
or Section 3, or Section 4, or Section 5, or Section 6, or Section 7 of Part II, or
the obligations under Part III, or Part IV of the Agreement on TRIPS;
(g) for purposes of this paragraph, “agreement” means:
(i) with respect to goods, the agreements listed in Annex 1A of the WTO
Agreement, taken as a whole as well as the Plurilateral Trade Agreements in
so far as the relevant parties to the dispute are parties to these agreements;
(ii) with respect to services, the GATS;
(iii) with respect to intellectual property rights, the Agreement on TRIPS.
4. The level of the suspension of concessions or other obligations authorized
by the DSB shall be equivalent to the level of the nullification or impairment….
461
The list in document MTN.GNS/W/120 identifies eleven sectors.

PA R T I I
8. The suspension of concessions or other obligations shall be tempo-

rary and shall only be applied until such time as the measure found to be
inconsistent with a covered agreement has been removed, or the Member
that must implement recommendations or rulings provides a solution to the
nullification or impairment of benefits, or a mutually satisfactory solution is
reached. In accordance with paragraph 6 of Article 21, the DSB shall continue
to keep under surveillance the implementation of adopted recommendations
or rulings, including those cases where compensation has been provided or
concessions or other obligations have been suspended but the recommenda-
tions to bring a measure into conformity with the covered agreements have
not been implemented.
9. The dispute settlement provisions of the covered agreements may be
invoked in respect of measures affecting their observance taken by regional
or local governments or authorities within the territory of a Member. When
the DSB has ruled that a provision of a covered agreement has not been ob-
served, the responsible Member shall take such reasonable measures as may
be available to it to ensure its observance. The provisions of the covered
agreements and this Understanding relating to compensation and suspen-
sion of concessions or other obligations apply in cases where it has not been
possible to secure such observance.462
Article 23
Strengthening of the Multilateral System
1. When Members seek the redress of a violation of obligations or other
nullification or impairment of benefits under the covered agreements or an
impediment to the attainment of any objective of the covered agreements,
they shall have recourse to, and abide by, the rules and procedures of this
Understanding.
2. In such cases, Members shall:
(a) not make a determination to the effect that a violation has oc-
curred, that benefits have been nullified or impaired or that the attainment
of any objective of the covered agreements has been impeded, except
through recourse to dispute settlement in accordance with the rules and
procedures of this Understanding, and shall make any such determination
462
Where the provisions of any covered agreement concerning measures taken by
regional or local governments or authorities within the territory of a Member
contain provisions different from the provisions of this paragraph, the provisions
of such covered agreement shall prevail.

consistent with the findings contained in the panel or Appellate Body

report adopted by the DSB or an arbitration award rendered under this
Understanding;
(b) follow the procedures set forth in Article 21 to determine the rea-
sonable period of time for the Member concerned to implement the recom-
mendations and rulings; and
(c) follow the procedures set forth in Article 22 to determine the level of
suspension of concessions or other obligations and obtain DSB authorization
in accordance with those procedures before suspending concessions or other
obligations under the covered agreements in response to the failure of the
Member concerned to implement the recommendations and rulings within
that reasonable period of time.
Article 24
Special Procedures Involving Least-Developed Country Members
1. At all stages of the determination of the causes of a dispute and of
dispute settlement procedures involving a least-developed country Member,
particular consideration shall be given to the special situation of least-devel-
oped country Members. In this regard, Members shall exercise due restraint
in raising matters under these procedures involving a least-developed country
Member. If nullification or impairment is found to result from a measure
taken by a least-developed country Member, complaining parties shall ex-
ercise due restraint in asking for compensation or seeking authorization
to suspend the application of concessions or other obligations pursuant to
these procedures.
2. In dispute settlement cases involving a least-developed country
Member, where a satisfactory solution has not been found in the course of
consultations the Director-General or the Chairman of the DSB shall, upon
request by a least-developed country Member offer their good offices, concili-
ation and mediation with a view to assisting the parties to settle the dispute,
before a request for a panel is made. The Director-General or the Chairman
of the DSB, in providing the above assistance, may consult any source which
either deems appropriate.
Article 25
Arbitration
1. Expeditious arbitration within the WTO as an alternative means of
dispute settlement can facilitate the solution of certain disputes that concern
issues that are clearly defined by both parties.

PA R T I I
Article 27
Responsibilities of the Secretariat
1. The Secretariat shall have the responsibility of assisting panels, espe-
cially on the legal, historical and procedural aspects of the matters dealt with,
and of providing secretarial and technical support.
2. While the Secretariat assists Members in respect of dispute settlement
at their request, there may also be a need to provide additional legal advice
and assistance in respect of dispute settlement to developing country Mem-
bers. To this end, the Secretariat shall make available a qualified legal expert
from the WTO technical cooperation services to any developing country
Member which so requests. This expert shall assist the developing country
Member in a manner ensuring the continued impartiality of the Secretariat.
3. The Secretariat shall conduct special training courses for interested
Members concerning these dispute settlement procedures and practices so
as to enable Members’ experts to be better informed in this regard.
APPENDIX 1
AGREEMENTS COVERED BY THE UNDERSTANDING
(A) Agreement Establishing the World Trade Organization
(B) Multilateral Trade Agreements
Annex 1A: Multilateral Agreements on Trade in Goods
Annex 1B: General Agreement on Trade in Services
Annex 1C: Agreement on Trade-Related Aspects of Intellectual Property
Rights
BILATERAL INVESTMENT TREATIES
Doubtless, investment is an important determinant of economic growth
of the country. Readiness of an investor to invest in the economy of a state
depends on many economic, political, legal, social and other factors that
determine the conditions of investment risk and security. One of the main
reasons for the lack of direct foreign investment in developing and transi-
tioning countries is the insecurity and instability of its judicial system, which
includes such problems as corruption, non-enforcement of judgments, insuf-
ficient legal framework and others Therefore, investors in transitioning States
in particular seek to have an effective dispute resolution mechanism which
offers a neutral substantive law, speedy and fair trial.
Bilateral Investment Treaties (BIT) are agreements between states aimed
at solving these problems, which serve as a special tool and mechanism to
promote and attract foreign direct investment. BITs provide stable legal re-

gime, incentives for investors and effective dispute settlement mechanism.

The content of BITs varies depending on economic and political factors.
Nevertheless, there are several keys issues that are governed by a typical BIT:
(1) conditions of admission and regulation of foreign investment in the host
country; (2) provision of government guarantees and incentives to encour-
age investment; (3) provision of protection and guarantees against potential
total or partial expropriation of investments by host state; (4) methods and
mechanisms for the settlement of investment disputes.
Today, BITs enjoy wide recognition among many countries. Majority of
BITs are concluded between developed and developing countries. Due to
the fact that BITs are designed to protect investments made by investors of
one State in the territory of another State scope of BITs primarily depends
on the definition of the term “investments.” To date, no universal definition
of investment exists. Definition of investments varies depending on invest-
ment policy of States, economic interests and forms of investment. Typically,
many BITs contain broad definition of investment covering various forms of
capital in order to provide the greatest degree of protection.
One of the dispute settlement options provided by such agreements is
Investor-State arbitration under the auspices of International Centre for the
Settlement of Investment Disputes (ICSID) established and governed by the
Convention on the Settlement of Investment Disputes between States and
nationals of other States. Investor-State Arbitration is a mechanism whereby
foreign investors can avoid filing a claim against host State in its courts, where
the State is likely to enjoy a home court advantage. Thus, the main purpose
of the Convention is to remove investment disputes from the jurisdiction of
national courts and transfer them into consideration to a specialized neutral
international dispute settlement body.
Convention on the Settlement of Investment Disputes

Between States and Nationals of Other States, 1965463
The Contracting States
Considering the need for international cooperation for economic devel-
opment, and the role of private international investment therein;
Bearing in mind the possibility that from time to time disputes may arise
in connection with such investment between Contracting States and nation-
als of other Contracting States;
463
1965 Convention on the Settlement of Investment Disputes Between States and
Nationals of Other States 575 UNTS 159, 4 ILM 532 (1965).

PA R T I I
Recognizing that while such disputes would usually be subject to national

legal processes, international methods of settlement may be appropriate in
certain cases;
Attaching particular importance to the availability of facilities for interna-
tional conciliation or arbitration to which Contracting States and nationals
of other Contracting States may submit such disputes if they so desire;
Desiring to establish such facilities under the auspices of the International
Bank for Reconstruction and Development;
Recognizing that mutual consent by the parties to submit such disputes
to conciliation or to arbitration through such facilities constitutes a binding
agreement which requires in particular that due consideration be given to
any recommendation of conciliators, and that any arbitral award be complied
with; and
Declaring that no Contracting State shall by the mere fact of its ratifica-
tion, acceptance or approval of this Convention and without its consent
be deemed to be under any obligation to submit any particular dispute to
conciliation or arbitration,
Have agreed as follows:…
Article 1
1. There is hereby established the International Centre for Settlement of
Investment Disputes (hereinafter called the Centre).
2. The purpose of the Centre shall be to provide facilities for concilia-
tion and arbitration of investment disputes between Contracting States and
nationals of other Contracting States in accordance with the provisions of
this Convention….
CHAPTER II - JURISDICTION OF THE CENTER
Article 25
1. The jurisdiction of the Centre shall extend to any legal dispute arising
directly out of an investment, between a Contracting State (or any constituent
subdivision or agency of a Contracting State designated to the Centre by that
State) and a national of another Contracting State, which the parties to the
dispute consent in writing to submit to the Centre. When the parties have
given their consent, no party may withdraw its consent unilaterally.

2. “National of another Contracting State” means:

(a) any natural person who had the nationality of a Contracting State
other than the State party to the dispute…, and
(b) any juridical person which had the nationality of a Contracting State
other than the State party to the dispute….
3. Consent by a constituent subdivision or agency of a Contracting State
shall require the approval of that State unless that State notifies the Centre
that no such approval is required.
4. Any Contracting State may, at the time of ratification, acceptance or
approval of this Convention or at any time thereafter, notify the Centre of the
class or classes of disputes which it would or would not consider submitting
to the jurisdiction of the Centre….
Article 27
1. No Contracting State shall give diplomatic protection, or bring an inter-
national claim, in respect of a dispute which one of its nationals and another
Contracting State shall have consented to submit or shall have submitted to
arbitration under this Convention, unless such other Contracting State shall
have failed to abide by and comply with the award rendered in such dispute….
SECTION 6: RECOGNITION AND ENFORCEMENT OF THE AWARD
Article 53
1. The award shall be binding on the parties and shall not be subject to
any appeal or to any other remedy except those provided for in this Con-
vention. Each party shall abide by and comply with the terms of the award
except to the extent that enforcement shall have been stayed pursuant to
the relevant provisions of this Convention….
Article 54
3. Execution of the award shall be governed by the laws concerning
the execution of judgments in force in the State in whose territories such
execution is sought.


Index
A Cote d’Ivoire, 16, 546
actus reus, 57, 460, 496 Court of Justice of the European Union,
Afghanistan, 189, 362, 427, 428, 439, 9, 225, 226
441, 542 Creation of New States, 5, 89, 92
Alice De Jong, 7, 122 crimes against humanity, 20, 27, 49, 50,
arbitration, 19, 34, 94, 122, 145, 191, 192, 59, 116, 235, 359, 451, 461, 483, 484,
193, 195, 198, 209, 219, 615, 625, 627, 489, 490, 491, 493, 505, 506, 508,
628, 629 509, 510
Argentina, 16, 17, 20, 27, 369, 374, 375, D
376, 410, 534, 535, 536, 537, 580, 581, doctrine of incorporation, 205
582, 583, 584, 585 duress, 49, 50, 52, 53, 54, 55, 56, 57, 58,
Australia, 6, 7, 22, 53, 67, 90, 105, 107, 59
139, 141, 167, 224, 427, 428 E
B East Timor, 6, 7, 22, 72, 90, 105, 106, 107,
Basel Convention, 16, 519, 533, 543, 139, 141, 190, 358
544, 547 Edwin B. Firmage, 79
biodiversity, 521, 548, 549 England, 53, 130
Burkina Faso, 9, 11, 23, 216, 291, 292, ENVIRONMENTAL LAW, 16, 514
383, 385 erga omnes, 66, 106, 140, 215
C Estonia, 17, 22, 362, 558
Canada, 24, 53, 71, 73, 193, 247, 248, 249, Ethiopia, 53, 215, 342
252, 289, 306, 367, 427, 428, 518, 585 European Court of Human Rights, 12,
Caroline Case, 10, 247 17, 20, 21, 23, 24, 25, 192, 307, 320,
CEDAW, 270 326, 346, 367, 370, 382, 462, 463,
Charter of the United Nations, 22, 47, 62, 494, 564, 567
63, 65, 74, 84, 85, 86, 90, 93, 99, 141, European Court Of Justice, 9, 225
142, 146, 149, 196, 197, 198, 199, 200, F
202, 209, 238, 242, 266, 287, 288, 359, Finland, 52, 521
360, 369, 391, 406, 408, 417, 428, 473, Fisheries Jurisdiction Case, 7, 22, 146
487, 514, 519, 520, 524, 527, 575 G
Chile, 52, 362, 369 Gabčíkovo-Nagymaros Project, 6, 8, 23,
China, 53, 76, 190, 210, 211, 357, 427, 94, 158, 173, 174, 176, 181, 473
428 GATT, 17, 23, 29, 192, 580, 581, 582, 584,
Christopher L. Blakesley, 79 585, 586, 588, 589, 591, 594, 595, 596,
Climate Change, 17, 323, 515, 531, 532, 597, 598, 611, 613, 614, 617, 618, 621
533, 556, 557, 558 General Assembly resolution, 47, 68, 81,
Combatants, 14, 388, 396, 412, 413, 418, 84, 86, 90, 106, 119, 141, 196, 224,
419, 420, 422, 423, 424 239, 266, 273, 288, 292, 363, 400,
Conciliation, 191, 192, 553, 618 454, 473, 532
Congo v. Belgium, 8, 15, 20, 182, 483 Geneva Convention, 14, 36, 37, 38, 39,
Constitution of the Kyrgyz Republic, 10, 136, 147, 150, 386, 413, 420, 421, 423,
30, 272, 273, 310, 311 424, 430, 435, 442, 444, 445, 471, 472
Convention on Prevention and Punish- Genocide, 6, 16, 19, 95, 102, 104, 360,
ment of Genocide, 95 401, 492, 494, 495, 498, 499, 500
Convention on the Elimination of All Germany, 4, 6, 16, 24, 26, 36, 52, 53, 56,
Forms of Discrimination against 71, 118, 119, 120, 152, 153, 165, 185,
Women, 264, 270, 343, 353, 354, 356 205, 206, 358, 361, 427, 428, 494, 495,
Convention on the Rights of the Child, 509, 512, 513, 557
13, 270, 343, 345, 349

Greece, 31, 166, 205, 210, 565 62, 64, 69, 94, 104, 118, 144, 156, 159,
Guinea Bissau v. Senegal, 9, 19, 221 160, 164, 170, 173, 174, 175, 176, 177,
H 179, 180, 184, 192, 219, 238, 407, 493,
Holy See, 71, 75, 76, 79 497, 500, 501, 522
Honduras, 13, 100, 153, 154, 163, 219, IPCC, 532
240, 241, 242, 243, 369, 379, 380, Israel, 113, 232, 258, 418, 419, 420, 421,
381, 383 422, 423, 424, 470, 471, 472, 473, 474
Human Rights Committee, 11, 12, 21, Italy, 21, 52, 55, 75, 229, 534, 597
26, 28, 29, 270, 274, 277, 280, 284, J
287, 293, 296, 299, 301, 302, 305, 306, James Crawford, 8, 15, 164, 487
307, 311, 314, 316, 319, 325, 326, 355, Japan, 17, 24, 53, 55, 556, 581, 585, 588,
365, 366, 370 594, 596
Human Rights Council, 17, 122, 357, 363, Jus Ad Bellum, 14, 404
364, 379, 545, 572, 573, 574, 575, 577 jus cogens, 37, 62, 63, 64, 65, 66, 67, 68,
Hungary v. Slovakia, 6, 8, 94, 158, 173, 75, 76, 79, 91, 103, 104, 105, 180, 186,
181 238, 489
I jus in bello, 402, 404, 405, 406
Ian Brownlie, 69 Juvénal Kajelijeli, 15, 16, 490, 496, 502
I.C.J. Advisory Opinion, 4, 5, 6, 9, 10, 14, J. William Fulbright, 30
42, 81, 89, 97, 99, 223, 236, 243, 398 K
IGOs, 6, 97, 123, 124 Kamrul Hossain, 5, 63
immunity, 64, 107, 108, 109, 128, 160, Kashmir, 190, 289
182, 183, 274, 436, 484, 485, 579, Kazakhstan, 205, 367, 542, 612
595, 597 Kyoto Protocol, 17, 531, 533, 556, 557,
India, 4, 40, 41, 42, 53, 73, 190, 209 558, 559, 560
Indonesia, 7, 17, 22, 23, 28, 106, 140, 594, Kyrgyz Republic, 3, 10, 12, 15, 30, 31, 272,
595, 596, 598 273, 302, 310, 311, 334, 335, 336, 337,
Inter-American Commission on Human 338, 351, 352, 474, 477, 478, 479, 480,
Rights, 14, 368, 375, 378, 380, 410, 542, 630
462 L
International Committee of the Red LaGrand Case, 6, 24, 118, 361
Cross, 2, 80, 387, 427, 428, 430, 437, M
442, 443, 474 Malaysia, 7, 28, 53, 108, 140, 142, 159,
International Court of Justice, 4, 7, 9, 160
15, 19, 20, 23, 24, 25, 26, 27, 29, 33, Manila Declaration, 8, 196
50, 51, 60, 63, 64, 102, 113, 117, 122, Maritime Delimitation, 4, 7, 9, 25, 33, 100,
146, 185, 186, 187, 190, 192, 196, 201, 150, 151, 153, 154, 193, 218
202, 209, 211, 213, 232, 246, 256, 290, Martin Dixon, 7, 8, 126, 186
359, 360, 361, 403, 466, 470, 519, 521 mens rea, 57, 58, 460, 491, 493, 494, 496
International Covenant on Civil and Mexico, 29, 52, 258, 553
Political Rights, 11, 12, 13, 21, 26, 28, Montevideo Convention, 5, 80
29, 122, 141, 265, 266, 268, 269, 270, Montreal Protocol, 533
273, 274, 277, 280, 284, 287, 292, 293, Montreux Document, 14, 427, 428
296, 299, 301, 307, 311, 319, 326, 338, Morocco, 29, 53, 81, 83, 84
344, 346, 366 Most Favored Nations Principle, 579
International Criminal Tribunal, 26, 27, N
49, 115, 124, 169, 258, 402, 459, 481, Nationality jurisdiction, 130
484, 485, 490, 491, 493, 496, 502 National liberation movements, 73, 74
International Customary Law, 4, 36 New Delhi Declaration, 16, 523
International Law Commission, 7, 14, 50, New Zealand v. France, 8, 28, 158

Nicaragua, 5, 7, 8, 9, 10, 26, 43, 52, 55, 61, Red Crescent, 15, 447, 476, 477, 478, 479
62, 63, 64, 90, 100, 136, 137, 138, 153, Red Cross, 2, 15, 80, 387, 427, 428, 430,
154, 161, 162, 163, 168, 169, 177, 214, 434, 437, 442, 443, 447, 466, 474, 476,
215, 219, 233, 235, 238, 240, 241, 242, 477, 478
243, 257, 358, 361, 369, 398, 403, 539 Richard F. Scott, 79
Nigeria, 5, 8, 24, 53, 88, 154, 185, 362 right to life, 26, 29, 264, 325, 327, 343,
North Sea Continental Shelf Cases, 4, 349, 570, 571
26, 36, 51 Robinson Law Firm, 17, 578
Norway, 39, 52, 55, 56, 153, 154, 192, Romania v. Ukraine, 7, 25, 151
521, 597, 608 Ruth Wedgwood, 10, 245
Nuclear Weapons, 4, 5, 6, 9, 10, 14, 15, S
24, 42, 44, 45, 48, 86, 87, 99, 175, 223, Secondary Sources of Law, 4, 60
224, 225, 234, 235, 236, 243, 244, 398, Secretary-General, 15, 28, 50, 92, 103,
399, 466, 469, 519, 523, 537 107, 108, 109, 110, 114, 142, 159, 160,
O 189, 190, 202, 233, 235, 324, 361, 418,
Objective territoriality, 129 454, 455, 459, 470, 473, 488, 509, 510,
opinio juris, 37, 39, 45, 46, 47, 48, 62, 65, 541, 572, 574, 575, 577
141, 400, 401, 529 Security Council, 6, 14, 22, 44, 45, 63, 71,
OSCE, 11, 284, 285, 326, 345 72, 81, 89, 90, 91, 92, 93, 100, 102,
P 103, 104, 105, 106, 107, 111, 113, 140,
Pakistan, 189, 190 187, 189, 190, 191, 195, 196, 198, 199,
Palestine, 6, 74, 111, 112, 113, 114, 289, 200, 201, 202, 209, 212, 224, 235, 236,
472, 473 237, 238, 240, 241, 242, 244, 254, 255,
Palestine Liberation Organization, 6, 111, 256, 257, 258, 262, 290, 357, 358, 359,
112, 113, 114 360, 365, 399, 405, 441, 454, 455, 456,
Panama, 52, 369 458, 471, 472, 473, 474, 481, 482, 485,
Permanent Court of International Justice, 505, 509
25, 40, 43, 51, 60, 63, 126, 131, 151, self-determination, 22, 74, 75, 86, 89,
178, 182, 210, 211, 212, 218, 219, 359 91, 93, 106, 139, 140, 141, 142, 143,
Practice Directions, 7, 122 144, 194, 197, 199, 202, 264, 268,
prescriptive jurisdiction, 126, 127, 128 287, 288, 289, 290, 291, 292, 362,
principle of common but differentiated 405, 472, 487
responsibilities, 524 Sharon A. Williams, 79
PRINCIPLE OF DISTINCTION, 388 Somalia, 53, 247, 358, 362, 457
principle of equity, 52, 524 South Africa, 12, 28, 53, 90, 100, 140,
principle of good governance, 526 330, 331, 333, 358, 360, 427, 428, 529
principle of integration and interrela- Soviet Union, 6, 92, 93, 189, 509, 542
tionship, 527, 528 Spain, 52, 81, 82, 83, 84, 205, 219, 521,
principle of the precautionary approach 553, 565
to human health, natural resources Special Rapporteur, 16, 107, 108, 109,
and ecosystems, 525 159, 160, 165, 219, 280, 302, 305,
prisoners of war, 28, 413, 414, 421, 452, 328, 462, 545
510, 512, 513 statu nascendi, 75, 95
proportionality, 55, 56, 155, 178, 180, Subjective territoriality, 129
181, 234, 235, 236, 237, 243, 244, 259, succession of States, 95, 144
348, 398, 399, 455, 470 Sweden, 52, 55, 306, 307, 372, 427, 428,
Q 521, 597
Qatar v. Bahrain, 4, 7, 25, 33, 100, 150, 218 T
R Tajikistan, 542, 612
Rainbow Warrior Case, 8, 28, 158 terra nullius, 81, 82, 83

territorial jurisdiction, 128, 129, 132, 599, use of force, 32, 61, 62, 63, 64, 68, 85,
600, 601 90, 91, 136, 137, 180, 186, 194, 197,
theory of implementation, 207, 208 199, 223, 231, 232, 233, 234, 235, 236,
theory of transformation, 203, 204, 207 237, 238, 239, 243, 244, 245, 247, 254,
Toxic Dumping, 16, 546 255, 256, 257, 258, 259, 260, 261, 262,
Turkey, 5, 7, 13, 25, 60, 129, 131, 132, 133, 290, 398, 399, 404, 405, 406, 409, 411,
134, 135, 136, 153, 246, 326, 370, 372, 469, 472, 570
373, 463, 570 U.S. v. Iran, 8, 157
Turkmenistan, 542 Uzbekistan, 12, 26, 28, 29, 293, 302, 303,
U 305, 306, 311, 370, 542
Ukraine, 7, 17, 21, 25, 151, 152, 153, 154, V
205, 427, 428, 564, 566, 612 Venezuela, 52, 606, 608, 610, 611
UN Charter, 9, 10, 189, 231, 232, 233, W
237, 257, 260, 261, 405, 468 war crimes, 20, 26, 28, 49, 50, 55, 59, 116,
UNEP, 515, 517, 520, 532, 533, 550 358, 359, 432, 451, 457, 461, 475, 483,
U.N. General Assembly, 19, 68, 84 484, 489
United Nations Charter, 5, 61, 73, 80, 87, Western Sahara, 5, 29, 81, 82, 83, 84,
136, 141, 186, 209, 212, 232, 235, 242, 140, 358
256, 345, 357, 469, 485 World Health Organization, 6, 24, 87, 99,
United Nations Law of the Sea, 16, 540 323, 324, 339, 356, 366, 440, 466
United States, 3, 5, 6, 7, 8, 9, 10, 14, 18, World Trade Organization, 9, 18, 230,
24, 26, 29, 31, 43, 53, 55, 61, 62, 63, 366, 579, 580, 585, 594, 606, 613,
66, 71, 73, 87, 90, 118, 119, 120, 121, 626
136, 137, 138, 157, 158, 161, 162, 163, WTO, 17, 18, 20, 23, 24, 29, 527, 579,
164, 165, 166, 168, 177, 185, 205, 209, 580, 581, 584, 585, 586, 587, 588, 589,
211, 212, 214, 238, 239, 240, 241, 242, 591, 595, 597, 612, 613, 614, 616, 619,
243, 248, 249, 250, 251, 252, 253, 255, 623, 625, 626
256, 257, 258, 261, 262, 325, 357, 361, Y
363, 398, 424, 425, 426, 427, 428, 461, Yugoslavia, 4, 6, 14, 19, 26, 27, 49, 52, 55,
466, 488, 511, 517, 518, 581, 582, 583, 56, 57, 92, 93, 95, 102, 103, 115, 124,
585, 592, 596, 598, 599, 600, 603, 604, 169, 186, 189, 190, 258, 358, 362, 402,
605, 606, 608, 609, 610, 611 457, 459, 481, 482, 484, 485, 493, 499,
Universal Declaration of Human Rights, 506, 509
264, 265, 266, 267, 268, 269, 343, 345, Yusuf Aksar, 15, 481
361, 369, 377

Contemporary
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Contemporary

Materials and Cases

Editors and Contributors

Project and Publication Coordinators

Editors and Contributors..................................................................................................2

The Evolving Nature of International Law ............................................................. 30

Getting the most from this Resource Book .......................................................... 32

Statute of the International Court of Justice.......................................................... 33

4 Contemporary International Law Materials and Cases

Contemporary International Law Materials and Cases 5

6 Contemporary International Law Materials and Cases

The Concept of Territory in International Law................................................. 126

State Responsibility for Internationally Wrongful Acts.............................. 156

Contemporary International Law Materials and Cases 7

Gabčíkovo-Nagymaros Project (Hungary v. Slovakia), 1997........ 181

Disputes Between States..................................................................................................... 186

8 Contemporary International Law Materials and Cases

PART II......................................................................................................................................................... 231

Contemporary International Law Materials and Cases 9

UN Charter and Prohibition of Use of Force....................................................... 231

10 Contemporary International Law Materials and Cases

Contemporary International Law Materials and Cases 11

12 Contemporary International Law Materials and Cases

Contemporary International Law Materials and Cases 13

14 Contemporary International Law Materials and Cases

Contemporary International Law Materials and Cases 15

Tribunals and the ICC............................................................................................................ 481

Prosecutor v. Juvénal Kajelijeli............................................................................... 490

Prosecutor v. Juvénal Kajelijeli............................................................................... 496

Prosecutor v. Juvénal Kajelijeli............................................................................... 502

16 Contemporary International Law Materials and Cases

Historical Overview................................................................................................................. 514

Contemporary International Law Materials and Cases 17

History and Basic Principles of WTO........................................................................ 579

Tariff Binding and GATT Article II................................................................................ 580

18 Contemporary International Law Materials and Cases

Contemporary International Law Materials and Cases 19

20 Contemporary International Law Materials and Cases

Contemporary International Law Materials and Cases 21

22 Contemporary International Law Materials and Cases

Contemporary International Law Materials and Cases 23

24 Contemporary International Law Materials and Cases

Contemporary International Law Materials and Cases 25

Military and Paramilitary Activities in and Against Nicaragua (Ni-

26 Contemporary International Law Materials and Cases

Contemporary International Law Materials and Cases 27

28 Contemporary International Law Materials and Cases

mittee, Yekaterina Pavlovna Lantsova, was the mother of Vladimir Albertovich

Contemporary International Law Materials and Cases 29

In so far as international law is observed, it provides us with stability and

The Evolving Nature of International Law

30 Contemporary International Law Materials and Cases

and also the universally recognized principles and norms of

Contemporary International Law Materials and Cases 31

Getting the most from this Resource Book