Study Guide Law

KWAME NKRUMAH UNIVERSITY OF SCIENCE
AND TECHNOLOGY, KUMASI
STUDY GUIDE
ON
PUBLIC INTERNATIONAL LAW

LAW 291/292
(Semester I)
By OSWALD K. SENEADZA
FACULTY OF LAW
KNUST, 2012
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CONTENTS
Introductory Part:
i. Course Author/ Instructor
ii. General Information
iii. Aims and Learning Objectives
iv. Teaching and Learning Methods
v. Student Workload and Assessment
vi Reading List:
(a) Primary Textbooks
(b) Supplementary Texts
(c) Cases and Materials
(d) Reports and Journals
(e) Electronic Resources
Part One (First Semester)
Lecture 1: The Nature of International Law
Lecture 2: Sources of Public International Law
Lecture 3: The Relationship between International Law and Municipal Law
Lecture 4: International Personality
Lecture 5: Recognition of States and Governments
Lecture 6: Territorial Sovereignty
Lecture 7: State Jurisdiction and Immunity
Lecture 8: State Responsibility
Lecture 9: Use of Force in International Law
Lecture 10: Peaceful Settlement of International Disputes
Tutorial questions and Suggested Frameworks
i. Course Author / Instructor

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Oswald K. Seneadza (Dip. JN, LL.B, LL.M) is a Senior Lecturer in Law at the Faculty of Law
of Kwame Nkrumah University of Science and Technology, Kumasi since 2003. He is currently
the Vice Dean and Head of Department of Public Law. He is also the Assistant Editor of KNUST
Law Journal. He lectures in Public International Law, Environmental Law, Administrative Law
and Principles of Law.
He serves in the academic community of KNUST in several capacities as Member of Academic

Board, College of Art and Social Sciences Board, Faculty of Law Board, CASS Strategic Plan
Implementation Committee etc. Besides, several other institutions and professional bodies outside
the university community benefit from his expertise in the capacity as Member of
Commonwealth Legal Education Association (CLEA) and Junior Chamber International (JCI).
Since joining the academia in 2003, he has several publications in his credit. These include books
and articles in refereed journals both local and international. He has reviewed several books and
legal documents.
With the rich and wide experience in academia he has been a Participant/Coordinator of several
projects with funding from reputable local and international organizations. They include: Expert
Management of Journals in Ghana (funded by AJOL & CSIR), Survey on Ghana’s Distance
Learning Market (funded by the British Council), Training of Police Officers on the Conduct of
Criminal Prosecution in Ghana (funded by Foreign and Commonwealth Office of UK &
University of Milan), Managerial Leadership Skills Development (funded by MDPI), etc.
ii. General Information
This study guide has been designed specially for those studying public international law
at the undergraduate level. Each of the fifteen lectures deals with a particular subject
matter found in the curriculum of most courses dealing with public international law.
Coverage is restricted to the syllabus of Faculty of Law of Kwame Nkrumah University
of Science and Technology. Each lecture will provide a brief overview of the relevant
law, and will introduce you to the key notes on various aspects of the subject matter. It
will then give a summary of the lecture. It will also direct you to relevant cases and
materials. Within each lecture you will find self assessment questions and key terms
which will enable you to monitor your progress and confidence in your comprehension.
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The text is best used as a supplement to the recommended readings suggested by the
author/ instructor of the module. The student is required to read supplementary textbooks,
law reports, casebooks and electronic materials as recommended. Students must bring
this study guide with them to all public international law classes and tutorials.
The most valuable feature of this guide is the tutorial questions which direct the attention
of the student to issues most frequently raised in examination papers and the suggested
skeleton solutions. Note that international law often cannot be explained without a basic
knowledge of contemporary world politics. The development of this subject is
fundamentally dependent upon surrounding extra-legal circumstances. There is no
legislature and judicial precedent plays no nominal role in this field. And in order to fully
understand the subject of international law, it is important to acquire a comprehensive
and overall framework of the subject and to understand how the different areas of the law
relate to each other.
iii Aims and Learning Objectives

Aims:
This course is intended to help you:
• provide a significant introduction to the concepts, principles and rules of
international law;
• provide ways of considering the relevance of international law to particular
disputes;
• provide a consideration of the relationship between international law and
municipal law;
• consider the institutions of international law and their legal personalities.
Learning Objectives:
The objective is that when you successfully complete this course you will:
• Appreciate the possibilities and limitations of international law in international
dispute resolution;
• Be able to predict the relevance or otherwise of international law to particular
disputes
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• Be able to formulate arguments in international law directed towards particular
outcomes;
• Be able to critically evaluate the role of international law in particular disputes;
• Be able to evaluate the relationship between international law and social and
economic reality.
• Be able to apply the rules and principles of international law to hypothetical and
real situations.
iv Teaching and Learning Methods
The course consist 15 lectures and 12 tutorial classes covering two semesters (see the
tutorial programme at the end of each part of the Study Guide). The lectures serve the
following purpose:
• As an introduction to the relevant topics in public international law;
• As an outline of the key concepts, principles, cases and materials;
• As a forum for putting forward opinion which may be at variance with views
expressed in textbooks and casebooks;
• As an opportunity to consider recent developments in international law, the
conflicting situations arising and their resolution.
The lectures will not provide you with all the materials which you need in order to pass
the examination. You will need to do your own reading and prepare for tutorials in
accordance with the programme provided in this Study Guide. You will be expected to
take active part in tutorial discussions, problem-solving and other tutorial activities for
your own benefit.
Although the content of the international law course differs from the domestic law
courses you have already studied, the method of study remains much the same. At the
risk of repetition, however, you should try to work as follows: Begin each lecture by
reading the introduction and considering what you might expect to read under the topic.
Next, do the essential reading. The essential reading is the core of the course and it is
crucial both for understanding and for examination success. The Study Guide is not
sufficient in itself. You will need to take notes as you read but these ideally should not
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simply be summarized. Your notes should reflect your understanding of what you have
read. The text (key notes) in the Study Guide should complement the essential reading
and you should consider whether it is in agreement or whether there are contradictory
points being made. Note that much of international law is contentious with persuasive
arguments to be made from more than one perspective. Sometimes the subject guide
should persuade you to modify the notes you made from the essential reading. Self-
assessment questions are factual questions which are intended to highlight some of the
major points you should have taken from the reading. Because they are actual, answers
will not be provided. The answers will be found in the reading.
v Student Workload and Assessment
You will be expected to do 22 credit hours per semester for lectures, and 6 credit hours
per semester for tutorial. You will need about five hours per week for lecture review,
reading and tutorial preparation. Lectures and tutorial activities will cover 11 weeks per
semester and examination will be conducted within 2 weeks to the end of semester.
Assessment is in two-folds: A continuous assessment and a written examination. The

continuous assessment is based on attendance of lectures, participation in tutorial
discussions and tests. The examination paper normally contains Six questions and you are
required to answer three in two and half hours. There are no compulsory question and
all questions will be weighted equally. The majority of the questions will require essay
answers but there will be at least two problem questions. The object of the examination is
to test your knowledge, understanding and critical appreciation of international law.
Continuous assessment constitutes 30 percent of the total mark while end of semester
examination takes 70 percent.
In answering questions, relevance is almost invariably related to authority. The more

legal authority is adduced in support of a proposition, the cogency of the argument and
the higher the answer will score.
vi Reading List
(a) Primary Textbooks
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You are recommended to buy one of the following textbooks (preferably the latest
edition). Few copies of each title are available in the law library for reference only.
1. Peter Malanczuk, Akehurst’s Modern Introduction to International Law, 7th
Revised Edition, Routlege, 1997 (449 pages) or
2. Dixon, M. Textbook on International Law, Oxford University Press, 2005, 5th
Edition [ISBN 0119260729] or
3. Malcolm N. Shaw, International Law 5th Edition, Cambridge University Press,
2003 1288 pages (Student user friendly) or
4 Cassese, A. International law, Oxford University Press, 2005, 5th edition [ISBN
0199259399]
(b) Supplementary Texts

The following texts are also recommended as supplementary and will be referred to.
1. Robert M. MacLean, Public International Law, 4th Edition, The HLT Group Ltd.
1995 (320 pages)
2. Kaczorowska A. Public International Law, (London: Old Bailey Press, 2005) 3rd
Edition [ISBN 1858366070]
3. W. Mansell, Public International Law, University of London, 2006 (260 pages)
4. Brownlie, I. Principles of Public International Law, Oxford University press 2003,
6th Edition [ISBN 0199260710]
5. Van Dervort, T. International Law and Organization, Thousand Oaks, CA: sage
1998 [ISBN 0761901892]
6. Shearer, I. State’s International Law, London: Butterworth’s, 1994, 11th Edition
[ISBN 0406016232]
(c) Cases and Materials

In addition to any one of the primary textbooks listed above you are recommended to buy
one of the following casebooks. Few copies are available in the law library for reference.
1. Harris, D.J. Cases and Materials on International Law, 6th edition, Sweet &
Maxell, London, 2004 [ISBN 1421 7816021SE] (1152 pages) or
2. Dixon, M. and McCorquodale, Cases and Materials on International Law (Oxford
University Press, 2003) 4th Edition [ISBN 0199259992]
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(d) Reports and Journals
There are large number of reports and journals but you should occasionally consult (if
possible) any of the following:
1. European Journal of International Law (EJIL)
2. International and Comparative Law Quarterly (ICLQ)
3. American Journal of International Law (AJIL)
4. Commonwealth Law Bulletin (CLB)
(a) Electronic Resources

A vast amount of international law material is available on the web. The following are
helpful when you require particular information.
1. ‘LAWLINK’ organized by the University of Kent Law librarian. It is to e found at:
http://library.kent.ac.uk/library/lawlinks/
2. United Nations Homepage at: http://www.un.org
3. European Union (EU) at: http:// www.europa.eu.int/index-en.htm
4. The African Union at: http://www.afrca-union.org
5. International Court o Justice at: http://www.icj-cij.org
Established as an Modern international law

INTERNATIONAL
independent legal discipline dates back to 1945 (after the
LAW
in the17th by Hugo Grotius 2nd WW). It is based on
(1583–1645) (Dutch scholar) agreement and prohibit
recourse to war and use of
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The Fundamental Principles force. Before this period
PUBLIC Theories and Jurisprudence existed the right to military
INTERNATIONAL (Basic to all the branches conquest, the right to
LLLAW ssssss of international law) occupation, unequal treaty
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Fig: The International Legal System, by Oswald K. Seneadza
LECTURE 1
THE NATURE OF INTERNATIONAL LAW
1.1 Introduction
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1.2 Key Points
1.3 Summary
1.4 Relevant Cases
1.5 Relevant Materials
1.6 Key Terms
1.7 Self-Assessment Questions
1.1 Introduction
The Term “international law” was first used by Jeremy Bentham in17801 in his
introduction to the Principle of Moral and Legislation. Since about 1840 the term
replaced the older terminology “the law of Nations” or “droit de gens” which can be
traced back to the Roman concept of or jus gentium (universal law) in writings of
Cicero. One needs to look the definition of international law by authorities from different
jurisdictions. The Germans, Dutch and Scandinavians continue to use the old term in
their language (eg. Volkerrecht, Volkenrecht, etc.). Until the period between the two
world wars writers found no difficulty in defining (public ) international law – as the law
that governs the relations between states amongst each other. NGOs such as The League
of Red Cross Societies; The International Chamber of Commerce; the Catholic Church,
Multinational Corporations, Conglomerates or individuals were not considered.
However, the prevailing positive doctrine in the 19th century and first half of the 20th
century held that only states could e subjects of international law and enjoy international
legal personality and to poses rights and duties or bring international claims. But this did
not reflect the reality particularly with recognition of The Holy See as a subject although
not a state and he emergence of other actors than states on the international plane such
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Before this period they were developing the Catholic conception of “natural law” in the spheres of
Consular Law and the Law of Treaties. Alberico Gentilo (1552–1608) was a prominent in this
development.
Nevertheless, it was Hugo Grotius (1583–1645), a prominent Dutch jurist, Theologian and Diplomat who
founded the bourgeois jurisprudence and made international law an independent legal discipline. Before the
works of Grotius, International Law did not exist as a system of theoretical propositions and there was no
corresponding principles and institutions of particular importance. In his vast legacy (over 90 works)
include: (1) Freedom of the Sea and (2) The Law of War and Peace
According to Hugo Grotius, International Law consisted partly of “natural law” and partly of positive law
(conventional law and customary law) and was established through the common consent of States. He
classifies wars as “private” or “mixed” and also as “just” or “unjust”.
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as – intergovernmental organizations (created by states), non-governmental organizations
(create by private individuals), transnational companies, indigenous people, and even
individuals. This development is reflected in the change of the definition by the various
authorities although states remain the dominant actors (e.g. only states may appear before
ICJ; only states can present claims on behalf of a national injured, in the absence of a
treaty). A knowledge of the historical development of the international legal system is
also desirable.
1.2 Key Points

(A) What is International Law?
See definition by the following authorities:
i) The 3rd Restatement of by the American Law Institute of the Foreign Relations
Law of USA – International law consist of general application dealing with the
concept of states and of international organizations and with their relation inter se,
as well as with some of their relations with persons whether natural or juridical
ii) Harris D.J (UK) International law is a system of customary law upon which has
been erected a superstructure of conventional or treaty-made laws to govern
relations among subjects of international law. (Note that, the former communist
countries earlier rejected customary law as source of international law but later
qualified it with advent of new policies).
iii) Denning L. J., in the case of Trendtex Trading Corp. v Central Bank of Nigeria,
(1977) defines international Law as – the sum of rules or usages which civilized
States have agreed shall be binding upon them in their dealings with one another.
iv) Tunkin G. I, based on ‘the theory of concordance of will of states’ developed in
1958 by the Soviet Academy of Sciences (former) defined international law as –
the aggregate of rules governing relations between States in the process of their
cooperation and conflicts, designed to safeguard their peaceful co-existence,
expressing the will of the ruling classes of these States and defend in case of need
by coercion applied by States individually or collectively.
In sum, we can say that public international law is the corpus of legal rules between
sovereign states in regulating their cooperation and conflict
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(B) Is international law really law?
The absence of an international legislature, courts with compulsory jurisdiction and a
centrally organized enforcement mechanism have given rise to misgivings as to whether
international law can really be law properly so-called. Students should be familiar with
the most common criticisms of international legal system, (For example, to some jurist
like Austin, Jessup and De Visscher, the terms “international” and “law” contradict
each other. To them, wherever international conditions prevailed, law would have little
meaning. They believe that the attitudes and interest of the world’s geo-political
groupings of States are too diverse to allow a single international legal system).
In John Austin’s “The province of Jurisprudence Determined (1974)”, he argued that:

“Law obtaining between nations is not a positive law. Every positive law is set
by a given sovereign authority in a state…..the law obtaining between nations
is law (improperly so called) set by general opinion and the duties which it
imposes cannot be enforced by normal sanctions…”
The question above raises two separate, but related issues we need to look at carefully:
i) Do international rules exist to which states refer in the processes of international
decision-making which have normative influence on State behavior?
ii) Does the international legal system qualify as a legal order created on the basis of
the institutions present within municipal legal systems?
Note that, a number of extra-legal factors help to exaggerate the popular perception of
international law as a legal system which cannot effectively regulate State conduct. The
existence of an international dispute does not automatically imply a violation of the rules
of international law. Other factors are often the direct cause of breakdown of international
relations. It could be caused by issues such as compensation for expropriation and human
rights.
It is true that international law differ from municipal law in its subject, its object of
regulation, the method through which norms are formed, compliance and method for
applying sanctions. However, international law possesses basic attributes of law which
are applicable in Municipal law. These include:
• Expression of will by States
• The process of creating norms
• The binding character
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• The enforcement and compliance
• Sanction
(c) The efficacy of the institutional organ of modern international law

Municipal legal system commonly possess features for changing rules of law, for
adjudicating on disputes and for enforcing authoritative interpretation of the law. In
accordance with the doctrine of the separation of power, these commonly take the form
of a legislature, a judiciary and an executive. Are these organs present at an effective
level in the international legal order?
Government Task Municipal (National) Law International Law
(with a central govt.) (with no central govt.)
Legislation Parliament or National General assembly of UN
Assembly with the task of with 7 major committees
enacting laws – statutes. It with the task of passing and
could delegate legislative adopting resolutions of
power to other bodies to on recommendation and
make instruments and gives approval to budgetary
byelaws. matters.
Executive Head of State and Ministers Secretary-General of UN as
to execute the law and Administrative Head and
perform administrative spokesperson for human-
functions. It has organized kind through world opinion
apparatus of coercion e.g. and diplomacy. But lacks
the AG and Police Service coercive power and a police
to prosecute and guarantee force to enforce the laws.
enforcement of law.
Judicial National Courts responsible International Court of
for interpretation of the justice (ICJ) is without
laws and ensure observance compulsory jurisdiction.
of the rules. They have The Statute of ICJ has
compulsory jurisdiction and optional clauses and States
rely on precedents. There is are allowed to make
a right of appeal. reservations.
Fig: 1.2 Tabular illustration of Governmental task of the UN, by Oswald Seneadza
i) Legislature
Legislative enactment is the means adopted by most societies for responding to the
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changing legal needs of the community. Frequently this mechanism takes the form
of a sovereign body or person issuing edicts in the form of command. On the
international plane, multilateral treaties most correspond to legislative
promulgations. However, clearly treaty obligations remain consensual as opposed
to imperative and cannot be imposed against the will of a state.
ii) Judiciary
A court hierarchy is another typical attribute of domestic legal order. The presence
of the processes facilitates the proper identification and application of the relative
rule of law. However, within the international sphere, judicial adjudication remains
a matter of mutual consensus, and the International Court of Justice (ICJ) is not
only devoid of compulsory jurisdiction, but in actual fact is rarely involved in the
settlement of international disputes.
iii Executive
In the past jurists such as Austin have asserted that the enactment of the sovereign
authorities must regularly be met with the threat of force for the existence of legal
order. See, J. Austin, The Province of Jurisprudence Determined (1832). On a
daily basis this task is carried out by the national police authorities. In contrast, the
enforcement of legal obligations in the international legal order remains
decentralized and no impaired system of sanctions or compulsion exists to ensure
compliance with the precepts of international law.
It is important to understand that failure by the international legal system to possess the
above three attributes (on the basis of separation of powers) which characterize municipal
law will not conclusively establish the non-existence of a body of rules and principles
regulating the relationships of Sates inter se.
In Henkins’s opinion in his book “How Nations Behave” (1979):

“What matters is not whether the international (system) has legislative,
judiciary or executive branches corresponding to those we have become
accustomed to seek in domestic society, what matters is: whether international
law is reflected in the politics of nations and in relations between nations;
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whether disputes are resolved in an orderly fashion; whether law is observed
or influences behaviour; whether international behaviour reflects stability and
order”
Judge Alvarez also clearly stated his opinion (in Corfu Channel Case of 1949) thus:
“A law may be established and become international, that is to say binding
upon all nations, by the agreement of such nations to be bound thereby. The
resistance of a nation to a law to which it has agreed does not derogate from
the authority of the law because that resistance cannot, perhaps, be
overcome…”
(D) What motivates States to comply with international law?
A number of factors compel states to conform to the rules of international law. Note
however that these remain decentralized and are not administered through an
international body.
i) Perhaps the ultimate deterred against violations of international obligations is the
possibility that the international community will sanction the use of self-help by
state which had its international rights materially infringed, e.g. the Cuban
missile crisis. However this is subject to the obvious limitation that the infringing
nation must be less powerful than the enforcing state.
ii) The possibility of collective sanctions through an international organization,
although extremely unlikely, cannot actually be ignored, e.g. sanctions against
Rhodesia 1966; UN action in Korea 1950; UN Force in Cyprus (UNFICYP) 1964;
Iraq 1991; Libya 1992 and again in 2011; Serbia and Montenegro 1993.2
iii) The existence of a ‘law habit’ those who make light of international
commitments fail to observe that the vast majority of obligations are continuously
and regularly observed even at considerable inconvenience and under adverse
conditions.
iv) International law s a reflection of e collective wills of states desiring to co-
operate and harmonize international and interactions. See the Lotus Case (1927)
2
Like domestic state law, international law, too, provides for the possibility of applying certain punitive
measure for violation international norms or ensuring a compliance with its norms which are carried out by
the States themselves (and other subjects of international law), individually or collectively. These include:
a) Expulsion b) Boycotts c) Economic sanction d) Restoration (of situation), e) Satisfaction f) Reparation
(Compensation), g) Restitution (Material) c), Use of Force through the UN in breach of Art 2(4). These are
discussed in detail under State Responsibility (See, D.J. Harris 1998 p 484-520)
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PCIJ Reports, Series A No. 10. It is therefore most likely that conformity to the
rule of international law will be, at very least, in the strategic interests of most
states.
v) States will hesitate to violate covenants or commitments owing to the fact that
they will lose the reciprocal benefits which would be obtained from overall
participation. Examples of such reciprocal interest are the obligations of
diplomatic protection, the majority of rights established in bilateral treaty
obligations and international trade commitments.
vi) International public opinion can be mobilized against a state which violates
international obligations. A state may face alienation and ostracism for violation
of fundamental principles of la. The most obvious example of this process is the
public and private restrictions on South Africa as a consequence of its continued
policy of apartheid.
vii) The authority of a decision rendered by the International Court of Justice
concentrates international political pressure to compel compliance with the terms
of the judgment. However, this sanction is only available against those states
which have submitted to the Optional Clause of the ICJ Statute
1.3 Summary
• Since the world is not organized as a single sovereign state we should not and
cannot expect to find state institutions in world organization.
• International law should be understood as a particular way of governing
international relations rather than common sense.
• International law is a way of regulating the relations between nations which is
distinctively legal. The lack of sanction for non-compliance or breach, even where
true, does not destroy the legal quality.
1.4 Relevant Cases (Read these cases from any of the recommended casebooks)
Denning L. J., in the case of Trendtex Trading Corp. v Central Bank of Nigeria,
(1977) QB 529, (1977) 2 WLR 365; 36, 38, 42, 44, 46, 105, 1117, 122, 130
Lotus Case (1927) PCIJ Reports, Series A, No 10; 4, 5, 16, 19, 27, 100, 106 113
1.5 Relevant Materials (Read these pages and go to the self-assessment questions)
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Dixon, Chapter 1:‘The nature of international Law and international system, 1-20
Cassese, Chapter 1: ‘The main features of the international community’, pp 3-17
Akehurst, M. A Modern International Law (7th edition), 1997, pp. 1-8
Kaczorowska, Chapter 1: ‘History and nature of international aw’, pp. 1-11
Brownlie, I ‘The Reality and Efficacy of International Law’ (1981) 52 British
Yearbook of International Law, pp. 1-8
1.6 Key Terms (Find the meaning of these terms from the law dictionary
jus gentium
Customary international law
Co-existence
Sovereign authority
The Holy See
Why does Dixon argue that sanctions are not a necessary part of law?
State the major differences between domestic law and international law
What are the major features of Cassese’s four stages in the development of
international law?
What distinguishes international law from international relations?
What arguments do Dixon, Cassese and Akehurst make for international law to be
accepted as genuine law?
What are the major features of Cassese’s four stages in the development of
international law?
What distinguishes international law from international relations?
LECTURE 2
SOURCES OF INTERNATIONAL LAW
2.1 Introduction
2.2 Key Points
2.3 Summary
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2.4 Relevant Cases
2.6 Key Terms
2.1 Introduction
Collectively the ‘sources’ of international law constitute that reservoir of authoritative
rules and principles to which the international lawyer must refer in order to ascertain the
content of the law. An international lawyer must be able to deduce rules of international
law in order to substantiate legal opinions supporting particular courses of action. The
cogency and consistency of the legal argument will stand or fall depending on the
familiarity of the lawyer with these sources of law. It is therefore of the utmost
importance that each student understands the nature of these sources and their interaction
with each other and is accustomed to the methodology involved in citing these sources as
authority for particular propositions.
2.2 Key Points
(A) Formal and material sources of law
A distinction is frequently made by commentators between formal and material sources.
i) Formal sources of law establish constitutional processes and methods which
authorize the creation of binding legal rules which are generally applicable to the
subjects of the legal system. (e.g. conventions, custom and general principles)
See, Article 38(1) of the Statute of the International Court of Justice (ICJ)
ii) Material sources of law provide evidence of particular or specific rules of law
which, when proven, are applicable to a particular dispute. (e.g. judicial decisions
and doctrinal writings which may be advanced as evidence).
The International Court is also authorized to decide a case ex aequo et bono,

under Article 38(2) of the statute. This allows the court to apply the principles
agreed between the parties for the settlement of the dispute.
See, the Frontier Dispute case (Burkina Faso v. Mali)
(B) Hierarchy of priority
Article 38(1) of the ICJ identifies 4 specific sources in the hierarchical order: Treaties,
International Custom, General Principles and Judicial Decision. From the jurisprudence
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of the ICJ, it is clear that in practice the order represents the methodology which the court
will habitually adopt in the resolution of an international dispute. This is true because this
arrangement of sources proceeds from the application of particular rules towards the
application of general principles of law.
Article 38(1) is therefore simply based on a hierarchy of convenience and not on the
relative legal authority or weight of the sources.
Based on the weight of the sources the following hierarchy is adhered to by the Courts.
1. Peremtory norms The principle whereby a treaty would be invalidated if it
“Jus Cogens” departed from a body of principles or norms from which
no derogation is generally permitted.
If a new peremptory norm of general international law
emerges, any existing treaty which is in conflict with that
norm becomes void and terminates. (Article 64 of Law of
Treaties 1969). Example of such norms:
• Pacta Sunt Servanda, (all laws in force are
binding on parties and must be observed in good
faith, Art. 26 of the Law of Treaties (1969)
• Article 2(4) of UN Charter(1945)
2. Treaties / Conventions These are the formal or principal or primary sources
3. General principles where States clearly give their consent and accept
4. International Custom specific rules as binding on them.
5. Judicial Decision of ICJ These are material or secondary sources or subsidiary
6. Decisions of National Court means which can be advanced as evidence. States have
7. Doctrinal Writings not given any clear consent to accept specific rules as
8. Research Publications binding on them because of their method of creation.
9. Resolutions Some of these are of mandatory character (e.g. UN
10. Declarations Security Council Res. and UN/GA Res. on budgetary
matters), while others are of recommendatory character
(“soft laws”).
Fig 2.2 (B) The hierarchy of sources of international law according to their legal weight.
Note: A lower source is relied upon in the absence or inadequacy of a higher source.
A lower source can also be a subsidiary or support to an existing higher source
Note also that much of international law is contentious and persuasive arguments to be
made from more than one perspective and sources.
(C) The individual sources of international law

It is important that student should be familiar with the following sources and the basic
details relating to them.
i) Treaties - an international agreement between two or more states in written form and
is subject to regulation and interpretation in accordance with the principles of
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international law. as a general rule, treaties are classified as either: Multilateral
(between more than two states) or Bilateral (between two states)
Maters such as negotiation or accession, validity, amendment, modification,
reservation, interpretation, suspension and termination of treaties are dealt with by:
The Vienna Convention on the Law of Treaties 1969 (treated under lecture 9)
Treaties may provide evidence of customary law in three ways.
• Lotus case (1927) PCJ Report, Series A No. 10, where a recurrence of bilateral
treaties lay down an identical or similar rule that may result in a rule of general
customary law to the same effect.
• The North Sea Continental Shelf Case (1969) ICJ Report, p., treaty concluded
by limited number of parties becomes custom if the rules are generalized by
international state practice
• The preamble of Geneva Convention on the High Sea (1959)- a treaty among
limited parties as codifying pre-existing rules of international custom and
consequently binding third parties.
ii) International Custom
The necessary elements of custom are the following:
• State practice (e.g. Fisheries Jurisdiction (Merits) Case, 1974 ICJ Rep. p. 3)
But the unsettled questions are: what constitute State practice?
Are claims and assertions of States practice? How much consistency is
required? May a State be bound if it has no practice?
• Opinio juris et necessitates (e.g. Nicaragua v. United States (Merits) Case
(19690 ICJ Report p. 14.; North Sea Continental Shelf Case 1969 p. 3
Evidence to support the existence of custom includes the following:
• diplomatic correspondence;
• policy statement and press release;
• the opinion of official legal advisers;
• executive decisions and practices;
• comments by governments on draft produced by ILC,
• national legislation and national judicial decisions recitals in treaties;
• the practice of international organs and resolutions relating to legal questions
in the UN General Assembly.
20
It is possible for a customary rule of law to exist at a local level either between two States
or on a regional basis. In such cases, the requirements for the creation of general custom
must be replicated on a local basis. See for example these cases:
The Asylum Case (1950) ICJ Report p. 266 and
The Right of Passage over Indian Territory Case (1960) ICJ Report p.6
iii) General Principles of law

a) This source of law was inserted into the text in order to furnish principles and
rules where treaties and custom failed to provide guidance. Reference to such
principles and rules would prevent the occurrence of lacunae in the law and would
substantiate the doctrine of non liquet. However, it has remained unresolved whether
the text refers to general principles of international law or general principle of
municipal law. Doctrine in general supports the wider interpretation of this concept.
General Principles of Internat. Law General Principles of Municipal Law
The 7 principles listed in Article 2 of The intention of the drafters of the
the UN Charter (1945) are called Statute appear to have been to allow the
“General Principles” because they Court to refer to general principles of
apply to all systems of law. They are municipal jurisprudence, and in
often referred to as “lex lata” meaning, particular of private law, in so far as
they operate for both members and these can be applied to the relations of
noon-members of the UN. States. Examples of such principles
These are different from “Basic adopted by the court have included:
Principles” borrowed from municipal good faith, res judicata, circumstantial
law and embodied in different evidence, equity, pacta sunt servanda,
instruments binding only the parties to objectivity, morality and the finality of
a particular instrument.3 awards and settlement.
2.2 (c) General Principles of International Law and Municipal Law
See, Diversion of Water from the Meuse Case (1937) PCIJ Reports, Series A/B No. 70;
Temple of Preah Vihear Case (Merits) (1962) ICJ Reports, p 6, and the Corfu Channel
Case (Merit) (1949) ICJ Reports, p.4.
b) The ICJ has rarely resorted to this particular source of law and in those cases in
which such a reference is made, this ha been restricted to issues of procedure as
3
Example of basic principles can be found in: UN General Assembly Declaration on Principles
of International Law Concerning Friendly Relations and Cooperation among States in
Accordance with the Charter of the UN, 1970; the Charter of the African Union.
21
opposed to matters of substance. Further, such references normally appear without
any formal reference or label, as an element of judicial reasoning.
iv Judicial decisions
a) International jurisprudence –
b) National jurisprudence –
In terms of national jurisprudence, reference to the decisions of national tribunals have
infrequently been made except in individual and dissenting opinions.
See, the individual opinion of Judge Hudson in the Diversion of Water from the Meuse
Case (1937) PCIJ Reports, Series A/B, No. 70, t pp. 76-77.
v Doctrinal Writings
a) The role of jurist in international law has always been more pronounced than in
municipal legal system and this fact is recognized by the Statute acknowledging
that the teachings of publicists constitute a subsidiary source of international law.
b) In contemporary international law the function of writers is more restricted to the
analysis of facts, the formulation of opinions and the making of conclusions in
relation to trends within international law. Such processes are invariably
subjective and frequently result in a biased statement of legal principles as a
result, the Court is reluctant to identify writers in its judgments and advisory
opinion.
c) The opinions of law officers are not to e seen s doctrinal writings, but may be
seen as evidence of state practice. Draft articles from the International Law
Commission are analogous sources to the writings of publicists.
vi Resolutions of the General Assembly

a) General Assembly resolutions have a binding effect when made in relation to
those issues in which this body is given an authoritative constitutional function
within the United Nations. In general this relates to administrative and budgetary
affairs. Article 10 of the Charter circumscribes the role of the Assembly in other
areas to discussions and the making of recommendations.
22
2.3 Summary
• Article 38 of the Statute of ICJ indicates the sources of international law,
but because it is directed to the ICJ it should not be regarded as definitive.
• The importance of the general principles of law lies in their ability to
indicate international law where both custom and treaty are inadequate.
They are however less easily identified and more problematic for those
seeking to identify international law.
2.4 Relevant Cases (Students should be familiar with the principles behind the
following cases in relation to this topic.)
Nuclear Test Cases (1974) ICJ Reports p. 253: Unilateral statements as law
North Sea Continental Shelf Cases (1969) ICJ Report, p.3: Dictum on the duration
and generality of practice required to establish sufficient state practice for the proof
of custom.
Fisheries Jurisdiction Case (1974) ICJ Reports p.3: Comments on duration of time
and practice required to establish customary international law.
Lotus Case (1927) PCIJ Reports, Series A, No 10: Statements on the effect of
acquiescence on the formation of custom and also on the meaning of opinion juris et
necessitates.
Asylum Case (1950) ICJ Reports, p. 266: Dicta in support of the existence of local
customary systems of law.
Dixon, The Sources of International Law(Chapter 2) pp. 38-47
The Vienna Convention on the Law of Treaties 1969, UKTS No. 58 (1980) Cmd.7964
Harries, D.J. Cases ad Materials on International Law (6th edition 2004) pp. 18-65
Parry, C. The Sources and Evidence of International Law (1965)
Brownlie, I ‘Principles of Public International Law’ (4th edition, 1990), pp. 1-35
Akehurst, M. ‘The Hierarchy of the Sources of International Law’ (1974-75) 47
BYIL, p. 273
2.6 Key Terms (Find the meaning of these terms from the law dictionary)
Ex aequo et bono
23
Good faith
Res judicata
Pacta sunt servanda
Non liquet
What is the status of Article 38 of the Statute of the International Court of Justice?
What are the sources of international law? Is Article 38 sufficient to define them?
What does Dixon say of the debate between those who argue that treaties create law
and those who argue that treaties impose obligations which the ‘law’ says must be
carried out?
What problems are inherent in the concept of customary international law?
State the hierarchy of sources of law according to Arkhurst.
How does your reading from Dixon suggest that consistency and generality of
practice as required for customary international law to be established?
LECTURE 3
THE RELATIONSHIP BETWEEN INTERNATIONAL AND
MUNICIPAL LAW
24
3.1 Introduction
3.2 Key Points
3.3 Summery
3.4 Relevant Cases
3.6 Key Terms
3.7 Self – Assessment Question
3.1 Introduction
In spite of the obvious practical importance of applying international law to disputes
before municipal legal tribunals, student are often left unclear as to the precise
relationship between these tow apparently distinct forms of law. A number of competing
theories have been formulated to either define or describe the interaction between
international and municipal law. The product of this competition has been the creation of
an uncertain and ill-defined area in the public international law syllabus. At the same
time, it is clear that this particular subject has important implication for the practicing
lawyer and will continue to grow in signification in the near future.
3.2 Key Points

The expansion of contemporary international law into dimension once considered the
exclusive domain of states has created an extensive overlap of subjects over which both
international law and municipal law purport to regulate. This has led to problems in the
application of municipal law before international tribunal and, in turn, international law
in domestic forums.
(A) Competing theories defining the relationship between international law and
municipal law
Three main theories attempt to describe this interaction
25
i) Monism – this theory asserts that international law and municipal law are both
elements of one all-embracing and universal system of law, in which the overriding
principal is the supremacy of international law.
In event of conflict: {A. International Law prevails over B. Municipal Law} =
incorporation by act of parliament is required
Problem: if the rules of A change B must also change accordingly
e.g. UK adopts this for resolutions / treaty obligations/ customs but later
change position to dualism
ii) Dualism – according to this formulation, international law and municipal law are two
distinct and separate systems of law which do not exit in relationship or superiority or
inferiority to each other. As a result national law may be applied in a manner inconsistent
with international law. E.g. UK, Ghana
In even of conflict:
{A. Municipal Law} prevails over {B. International Law} = transformation
• Act of Parliament will prevail over customary international law.
• Judicial precedent will prevail over customary international law.
But in accordance with Trendtex Case (1977), the English may part from
earlier judicial precedent if rules of international law change in the mean
time.
Problem: if the rules of A change B normally does not change with them
iii) Harmonization – this theory refute the existence of common subject matters in
which co-ordinate competence could arise and therefore no conflict between the two
orders may arise. States may promulgate valid domestic law at variance with
international law but will, as a result, incur international responsibility for such actions.
In event of conflict: {International Law is equal to Municipal Law} = co-ordination
In practice, the distinction between these theories is only relevant to the application of the
international law in domestic forums because, at the international level, all three theories
allow for the exclusive application of international law within international tribunals.
26
(B) The application of municipal law in international tribunals
The preposition that a provision of national law may prevail over the international
obligations of a state has never been accepted by any international tribunal. If such a
possibility is embraced, states would be able to circumvent their international obligation
through the adoption of appropriate legislation. The application of this principal has a
number of consequences:
i) A state may not invoke a provision of national law such as a defence to a claim
based on international law. In the Free Zone of Upper Savoy and the District of Gex
Case (1937) PCIJ Reports, Series A/B, No. 46, at p. 167, the International Court
stated: ‘it is certain that (a state) cannot rely on her own legislation to limit the scope
of her international obligation.’ This principle applies to both treaties and customary
principle of international law. See, United Nation Headquarters Agreement Case
(1988) ICJ Reports, p. 3.
ii) A state may not plead that an absence of statutory authority justifies failure to
observe international obligation. See the Alabama Claim Arbitration (1872) 1 Moore
Int. Art. 485.
iii) Municipal law may be an evidence of international custom or general principal of
law in accordance with Article 38(1) of the Status of the ICJ.
iv) Since international law may leave questions to be decided in accordance with
municipal law, international tribunals occasionally find themselves in a situation of
having to apply the municipal law of a state. See the Serbian Loans Case (1927)
PCIJ Reports, Series A, No. 20.
(C) International law before National Court

The application of international law before municipal courts has arisen in the past in
relation to the rights and duties of diplomats, jurisdiction over foreign national, limits on
the breath of the territorial sea and expropriation.
The English Courts

In the jurisprudence of English court, a distinction is evident in the application of
international obligation based on treaties on the one hand and customary law on the other.
i) The Use of Treaties by English Courts
27
The English Court have adopted a strictly monist view of international obligation
created on a treaty basis. In the leading case, The Parliament Belge (1879) 4D 129,
Pillimore stated that treaties negotiated by the Crown in the exercise of the prerogative
power to enter into treaties have no effect unless incorporation into English law by
enabling statute. In the more recent case, R v Chief Officer, ex part Bibi [1976] 1 WLR
979, Lord Denning unreservedly stated: ‘Treaties and declarations do not become part of
(English) law until they are made law by Parliament.’
However, unincorporated convention and declaration may have two possible functions in
English law:
• They may be used as an aid to interpreting statutes. See IRC v Collco Dealings
(1962) 1 AC. This rule of construction does not, however, extend to interpretation of
subordinate legislation. See, R v Secretary of State for the Home Department, ex part
Brind [1990] 2 WLR 787
• There is a rebuttable presumption that Parliament did not intend to violate an
international conventional obligation. See Salomon v Commissioners of Custom and
Excise [1967] 2 QB 116, where Diplock LJ stated:
“There is a prima facie presumption that Parliament did not intend to act in breach of
international law; and if one of the meanings which can reasonably be ascribed to the
legislation is consonant with the treaty obligations and another or others are not, the
meaning with its consonant is to be preferred”.
Conversely, where treaty has been incorporated into English law, it has equal authority to
an Act of Parliament. The treaties constituting the European Community are directly
applicable in British courts by virtue of s. 2(1) of the European Community Act 1972.
This also gives direct enforceability to judgments of the European Court of Justice. In
contrast, no enabling Act has been passed to give effect to the European Convention on
Human Right 1950 and as a result its provision forms no part of English law. See the
statement by Denning MR in R v Chief Immigration Officer, ex parte Bibi, op. cit.
ii) The Use of United Nation Resolutions by English Courts
28
With the greater degree of co-operation among the five Permanent Members of the
Security Council, UN Security Council Resolutions have become a more important form
of international law. However, within the UK, incorporation of the terms of these
Resolutions requires implementing legislation.
Inside the UK, Resolutions are given effect by means of United Nations Act 1946 which
empower the relevant Minister to enact subordinate legislation. In the absence of such an
instrument, the Resolution has no internal effect.
There have been four recent occasions when this power has been used:
• Iraq and Kuwait (UN Sanctions) Order 1990, SI 1615 (1990) – imposed
restriction on the exportation and importation of goods into the UK from Iraq and
Kuwait and prohibited certain specific related activities and dealings.
• Libya (UN Sanctions) Order 1992, 975 (1992) – imposed restrictions on the
export and supply of arms and related materials to Libya as well as on air flights.
• Haiti (UN Sanctions) Order 1993, SI 1784 (1993) – place restrictions in relation
to the supply of arms and petroleum product to Haiti and in relation to the transfer of
funds.
The effect of these orders is to prohibit transactions relating to these activities which will
not be given effect by the UK courts; see Wahda Bank v Arab Bank (1992), The Times 23
December.
iii) The Use of Customary International law by English Courts

The original rule of English law was that customary international law formed part of
English law which is a clear reception of the doctrines of incorporation. In the early case
of Triquet v Bath (1764) 3 Burr 1478, Lord Mansfield declared that ‘the law of nations, in
its full extent (is) part of the law of England’. However, in the case of R v Keyn (1876) 2
Ex. D. 63, the English courts reversed this position. Jurisdiction of English courts under
international law over the territorial sea could not be constituted under customary
international law but only by Act of Parliament.
29
Once again reversing the apparent direction of the law, in Chung Chi Cheung v R [1939]
AC 160, Lord Atkins, delivering opinion of the Privacy Council, stated that ‘so far, at any
rate, as the courts of this country are concerned, international has no validity save in so
far as its principle are accepted and adopted by our own domestic law.’ R v Secretary of
State of home Department, ex part Thakrar [1974] QB 684 affirmed the position that a
rule was not automatically a pat of English law merely by being a part of international
law.
In the most recent case in point Lord Denning in Trendtex Trading Corp v Central Bank
of Nigeria [1977] QB 529 reversed his earlier dualist opinion in ex part Thakrar by
declaring:
“Under the doctrine of incorporation, when the rules of international law change,
our English law changes with them. But, under the doctrine of transformation, the
English law does not change. It is bound by precedent …. As between these two
schools of thought, I now believe that the doctrine of incorporation is correct.
Otherwise I do not see that our court could ever recognize a change in the rule
international law… The rules of international law, as existing from time to time, do
form part of our English law.”
In effect, this statement represents a return to the original position stated by Lord
Mansfield.
If applied through the processes of judicial reasoning, international law may become
binding on the court as a matter of precedent. Lord Scarman, in the case Thai- Europe
Tapioca Service Lt v Government of Pakistan [1975] 1 WLR 1485, observed that ‘a rule
of international law, once incorporated into our law by decisions of a component court, is
not interference of fact but a rule of law. It therefore becomes part of municipal law and
the doctrine of stare decisis applies as much to a rule of law with a strictly municipal
provenance.’
However, the principles behind the reception of customary law before the English court
remains, at the least, incoherent and unsettled.
(D) The Reception of International Law in other States

The approach adopted by states to the validity of international law before municipal
tribunal varies in relation to the constitution of the state in question.
30
i) United States
In the United State Constitution, Article VI provides that treaties between the United
State and other countries, properly negotiated under the authority vested in the
constitution, “shall be the supreme law of the land.’ In relation to customary international
law, the US Supreme Court, in the Paquete Habana 175 US 677 (1900), stated
‘international law is part of our law, and must be ascertained and administered by the
courts of justice of appropriate jurisdiction, as often as questions of right depending upon
it are dully presented for their determination.”
ii) Germany
Article 25 of the German Constitution specifically provides that “the general rules of
public international law are an integral part of Federal Law. They shall take precedence
over the law and shall direct create right and duties for the inhabitants of the Federal
territory.” German jurisprudence indicates that international law is superior to municipal
law, but does not prevail over the constitution itself.
iii) The Netherlands

Article 60 of the Netherlands Constitution provides that treaties have priority over
domestic law and that of municipal law. This is generally accepted to be the closest
possible reception of the monist position.
iv) France
The French Constitution of 1958 declares that treaties properly ratified and public shall
have the force of law. The effect of this provision is mitigated by the fact that, in a
number of situations, the same constitution stipulates that certain international agreement
must be ratified by legislative processes.
v) Ghana
The Constitution of Ghana does not expressly define the relationship between
international law and national law (municipal law). However, Ghana follows the English
practice as part of the common law tradition and is in accord with the dualist position. In
event of conflict with international norms an act of parliament or customary international
law will prevail. As regards treaties, their application in the domestic courts is
31
governed by the doctrine of transformation (domestication of ratified instruments).
In human rights adjudication, it would seem that although the judges do not have a clear
mandate to apply international law, they have tried, where necessary to rely on such law
in determining human right issues.4
In the UK treaties form part of the English law only when they are enacted into domestic
legislation (corresponding Act) before the courts have power to enforce the treaty rights
and obligations. In Ghana, however, the matter is not free from controversy. In Ghana
there is no law which requires promulgation of treaty into domestic law before it may
have the force of law. Hence some argue that it is not incorporation that gives
international conventions the force of law within the legal system of Ghana but rather
they have in force of law the moment they are ratified by parliament and the instrument
deposited with the Secretary General of the United Nations. But on the other hand this
position is not totally acceptable to others referring to the Ghanaian practice. It can be
argued that Article 75(1) vested the treaty making power in the President but the
President lacks legislative power and therefore cannot make a law binding on Ghanaians
even if ratified.
Also article 11 of the 1992 Constitution which provides a list of sources of law in Ghana
does not expressly include international law. In the common law tradition the omission in
list of comparable items raises the implication that the draftsman intended to exclude that
which was not included in the list. It is only when international law is promulgated into
domestic law of Ghana, or has become a customary rule of law, that it becomes a law of
Ghana by virtue of Article 11(1)(b) (i.e. enactment made by or under the authority of
Parliament)5
The preferred view point is that treaties executed and ratified by Ghana ought to be
backed by appropriate domestic legislation to give force or effect to them in Ghana.
4
Emmanuel Quansah, “An examination of the use of international law as an interpretative tool in
human rights litigation in Ghana and Botswana” in: International Law and Domestic human
rights litigation in Africa, Magnus Killander (editor) 2010., Pretoria University Press (PULP).
5
There are a number of international treaties ratified by Ghana which were transformed into
domestic legislations to give them the force of law. E.g. Diplomatic Immunity Act 1962,
domesticating the rules of Vienna Convention on Diplomatic relations 1961; the Maritime Zones
(Delimitation) Law 1986, was enacted to give effect to certain provisions of UNCLOS; the
Refugee Law 1992, incorporate the UN Convention on the Status of Refugees, 1951; the
Children’s Act 1998, incorporates the UN Convention on the right of the Child etc.
32
3.3 Summary
• Very often the divergence between national law and international law simply
means that the respective state is unable to exercise rights which international law
entitles (but does not require) that state to exercise.
• Even then a rule of municipal law is capable of resulting in a breach of
international law, it is the application of the rule, and not its mere existence,
which normally constitutes the breach of international law; consequently, if the
enforcement of the rule left to the executive, which enforces it in such a way that
no breach of international law occurs, all is well. For instance, there is no need to
pass an Act of Parliament in order to exempt foreign diplomats from customary
duties; the government can achieve the same result by simply instructing customs
officers not to levy customs duties on the belongings of foreign diplomats.
3.4 Relevant Cases: (Student should be familiar with the following cases):
Trendtext Trading v Central Bank of Nigeria [1977] QB 529: See in particular the
judgment of Lord Denning affirming that the English court recognized the doctrine of
incorporation.
R v Secretary of State for Home Department, ex part Bhajan Singh [1876] 1 QB 198:
Comments of the effect of treaties not made part of British law.
Standard Charted Bank v International Tin Council and Others [1987] 3 All ER 257:
Discusses the implication of bankruptcy of international organization in English law.
United Nations Headquarters Agreement Case (1988) ICJ Reports, s.3: Reaffirmation
of the principle that, at the international level, international law prevails over
inconsistent measures of national law.
Wahda Bank v Arab Bank (1992) The Time 23 December: The British courts’
approach to the application of Security Council Resolutions given effect by Order-in-
Council.
R v Secretary of State, ex parte Factortame (No 2 ) (1990) 3 WLR 818: Explanation
of the principle of the supremacy of Community law in the United Kingdom.
Akehurst’s Modern Introduction to International Law (7th edition 1997). Pp.63-71
33
Articles 11(1) and 75(1) of the 1992 Constitution of the Republic of Ghana.
Monism
Dualism
Incorporation
Transformation
Ratification

Identify the competing theories which describe the interaction of international law
and municipal law at both the international and municipal levels.
State the major differences between monism and dualism.
Give the position of the English courts in relation to the incorporation/transformation
disputes.
What is the attitude of Ghanaian Courts towards the adoption of international
customary law?
LECTURE 4
INTERNATIONAL PERSONALITY
4.1 Introduction
34
4.2 Key points
4.3 Summary
4.4 Relevant case
4.5 Relevant materials
4.6 Key words
4.7 Self Assessment Questions
4.1 Introduction of Topic

The subject of international personality in international law is a relatively straightforward
one which students in general have little difficult in grasping. States have traditionally
been accepted as the sole subjects of international law, but this position has been
undermined to a certain extent by recognition of international organizations and
individuals as subjects possessing limited capacity. This is the recurring theme of
questions in this area of the law.
4.2 Key points

(A) States are primary subjects of international law.
The legal criteria of statehood were established by Montevideo Convention on the Rights
and Duties of States (1933)6. The generally accepted criteria are:
• A State must have a permanent population (not migrating from place to place)
• A State must possess a defined territory (fixed frontiers in bilateral agreements)
• A State must have an effective government (in full control of territory and affairs)
• A State must have the capacity to enter into relations with other States.
In the past, entities which have not possessed all these attributes have been received as
States by the international community. In modern times, the last two criteria together
signify the independence of a State. However, the last criterion in the Montevideo
Convention is not generally accepted by States as necessary. Guinea-Bissau, for example
was recognized in 1970s by the US and Germany on the basis of only the first three
elements without the last (i.e. without political, technical and financial capabilities).
(B) Right and Duties of States as subject of International law
6
Montevideo Convention was concluded by 15 American States in 1933.
35
Where States fulfill the criteria for statehood and international personality, a number of
rights and consequences follow:
i) International law is essential law between States and created by State, and
international personality permits a State to participate in this process.
ii) Decisions and judgments of the ICJ cannot bind State without their consent to
participation in the hearing of the case. For example, in Case Concerning Land,
Island and Maritime Frontier Dispute (E1 Salvador v Honduras, Nicaragua
intervening) (1992) ICJ Reports, p. 351 where El Salvador and Honduras submitted
their dispute to the Court for resolution and Nicaragua intervened in the proceedings,
the decision was binding on Nicaragua only to the extent to which it participated in
the proceedings.
iii) Only states may institute proceeding before the International Court of Justice.
See Article 34(1), Status of the ICJ.
iv) In general, only States may seek a remedy for international wrong, in which case
the State is imputed to have suffered the harm. See the Mavrommatis Palestine
Concessions Case (1924) PCIJ Report, Series A, No. 2
v) In pursing a claim, a State does not act as an agent of the individual aggrieved, but
in its own interest. Compensation obtained belongs to the state and the individual has
no legal right to such sums. See Civilian War Claimants Association v The King
[1932] AC 14
(C) Non- State entities

A number of international entities are denied status as international persons because they
fail to meet the criteria they deem necessary for statehood.
i) Colonies: These are not States because of their lack of capacity to conduct
external relation with other states.
ii) Mandated and trusteeship territories: These are territories formally governed by
the Axis States prior to the first World War and subsequently placed under the
administration of the League of Nations which was replaced by the trusteeship
36
system under the auspices of the United Nations. Such territories have no legal
personality while they remain dependent on the supervising state.
(D) Controversial candidates for international personality

i) Liechtenstein was refused membership of the League of Nation because, while
the principality possessed fixed frontiers, a permanent population and a stable
government, it delegated responsibility for the conduct of foreign policy to other
states. However, Liechtenstein is a party to the status of the International Court.
ii) The Holy See was established as a sovereign state by the Lateran Treaty of 1929
despites its minuscule territory and population. It has subsequently acquired
membership of the International Labour Organization and the World Health
Organization (which are UN specialized organizations).
iii) Cyprus attained independent in 1960 by agreement between the United Kingdom,
Greece, and Turkey and has been admitted to the United Nations. This membership
was conferred despites limitations on its sovereignty imposed by Article 4 of the
1959 Treaty of Guarantee which gives every guarantor the right to interfere in the
internal affairs of the state to maintain the status quo established between the Greek
Cypriot and Turkish Cypriot communities.
(E) The Personality of international organizations

In the Reparations for Injuries Suffered in the Service of the United Nations Case (1949)
ICJ Reports, p. 174, the Court upheld the claim of the United Nations to exercise
limited international personality. International personality was essential to give effect to
the purposes and principles of the organization and could clearly be presumed from the
intentions of the draftsmen of the Charter. The Organization was a subject of
international law and was capable of possessing international rights and duties and had
the capacity to maintain its rights by initiating international claims.
Any claim incurred by the organization must have been incurred in exercise of the
legitimate functions of the organization. As a result, the grant of personality is co-
extensive with the powers of the organization. These powers may be:
37
i) Express: This would include treaty – marking power in relation to matters within
the Charter, i.e. in relation to privileges and immunities under Article 105 which
resulted in the General Conversion on Privileges and Immunities of the UN 1946.
ii) Implied: A power may be implied by necessary implication from the
constitutional document of the organization. For example, the UN possesses an
implied treaty making authority, e.g. Headquarter Agreement between the United
Nation and the United States 1947.
In addition, regional international organization may be capable of exercising limited

international capacity. Under Article 113(3) of the Treaty of Rome the European
Community is empowered to negotiate tariff and trade agreements with third countries to
implement the Community’s commercial policy.
(F) The Personality of International Organization in Municipal Law

Although the international personality of organizations has been recognized by the ICJ at
the international level, it was not until recently that a national court had to consider the
implication of this personality in national law. This occurred in Arab Monetary Fund v
Hashim and Ors (No 3) [1991] 2 WLR 729. In this case, the English courts held that an
international organization has no personality in English law in the absence of an order -
in- council giving such effect, but in the circumstances of this particular case, the locus
standi of this organization could be upheld on the basis of the rule of privet international
law that confers standing in the English court to foreign corporate bodies incorporated in
other States.
(G) Individuals
Individuals per se are deemed objects of international law and do not exercise
international rights unless conferred expressly by treaty. In the case Jurisdiction of the
Courts of Danzig (Danzig Railway Officials) Case (1928) PCIJ Reports, Series B, No.
15, the International Court held that where an agreement was specifically intended to
establish ‘definite rules creating individual right and obligation and enforceable in
38
national courts’, international right could be conferred on individuals. This interpretation
of the law has permitted the creation of a number of mechanisms for the exercise of rights
by individuals through due processes of international law. In particular, the following
instruments are most relevant:
i) The European Conversion on Human Right 1950; the International Covenant on
Civil and Political Right 1966; and the International Covenant on Economic, Social
and Cultural Rights 1966.
ii) The provision of the Treaty of Rome which permit individual to institute
proceeding before the Court of the European Communities.
At the same time, international law imposes certain duties directly on individuals and
their violation will result in criminal responsibility. Of these the most important include:
i) The duty to refrain from acts of piracy which is defined as a crime humani
generis.
ii) The duty to refrain from committing crimes against peace, crimes against
humanity, war crimes and genocide. The famous Nuremberg7 and Tokyo War
Tribunals after the Second World War marked the beginning of an individual
(instead of the State) as a subject of international law arising from individual
criminal conduct.
iii) Hijacking and associated acts are now considered to be crimes of quasi-universal
jurisdiction as created by convention. See Tokyo Convention on offences and Certain
Other Acts Committed on Board Aircraft 1963; Hague Convention for the
Suppression of Unlawful Seizure of Aircraft 1970; and the Montreal Convention for
the Suppression of unlawful Acts against the Safety of Civil Aviation 1971.
7
On December 20, 1945, the Allied Control Council issue Control Law No. 10, establishing the basis for
"the prosecution of war criminals and similar offenders." Each of the occupying authorities was
authorized, in its occupation zone, to try persons suspected of committing war crimes. The Military
Governor of the American Zone subsequently enacted Ordinance No. 7, establishing military tribunals with
the power to try and punish. Each of the tribunals was comprised of three American lawyers, usually past
or present members of state judiciaries. The judges were recruited by the War Department.
39
4.3. Summary
The state as a person of international law should possess the following
qualifications: (a) a permanent population; (b) a definite territory; (c) government;
(d) capacity to enter into relations with other states. The first three criteria
correspond to established international practice and the so-called doctrine of the
three elements (‘Drei Elementen-Lehre’).
Reparations Case (1949) ICJ Reports, p 174: The authoritative statement of the
international personality of a state.
Namibia Case (1971) ICJ Reports, p. 16 Dicta relating to the legal status of mandates
and trusteeships territories.
Officer van Justitie v Kramer (1976) ECR 1279: Where the European Community
developed a common policy in a particular area, it also acquired the capacity to
implement the policy by concluding international agreements on the matter.
Case Concerning Land, Island and Maritime Frontier Disputer (El Salvador v
Honduras, Nicaragua intervening) (1992) ICJ Reports, p. 351: ICJ Judgments are
only binding on states to the degree to which they have consented to engaging in the
proceedings.

Akehurst’s Modern Introduction to International Law (7th edition 1997). pp.75-79
Montevideo Convention on the Rights and Duties of States 1933.
Brownlie, I. Principle of International Law (4th edition, 1990) pp. 58-86.
Starke, J.G. Introduction to International Law (10th edition, 1989) pp. 58-70
Bowett, D. W. The Law of International Institutions (4th edition, 1982) pp. 335-382
Marston, G. ‘Origins of the Personality of International Organizations in UK Law’
(1991) 40 ICLQ 403.
Crime humani generis
Locus standi
40
Status quo

In what ways may the state be regarded as the principal subject of international law?
What do you understand by ‘capacity to enter into relations with other states’?
Give explanation to the terms: permanent population; effective control by
government; definite territory.
To what extent is the Montevideo qualifications applicable universally?
LECTURE 5
RECOGNITION OF STATES AND GOVERNMENTS
5.1 Introduction
5.2 Key Points
41
5.3 Summary
5.4 Relevant Cases
5.5 Relevant Material
5.6 Key Words
5.7 Self- Assessment Question
5.1 Introduction
The concept of recognition functions at the interface between law and politic in
international relations. Recognition of States and Governments is essentially a political
act which involves international and municipal legal implications. Between these two
dimensions, the legal effects and consequences of recognition vary considerably.
However, both doctrine and State practice have remained incoherent and indecisive in
relation to the role of the recognition in contemporary international affairs. Student
should be aware of the dichotomy in theory and in practice relation to the operation of
recognition and should be familiar with both the international and municipal legal
connotations associated with recognition and non- recognition.
5.2 Key Points

(A) Recognition of States and Governments
The doctrine of recognition applies equally to newly emerged States and Governments
but only operates where changes in political landscape has been brought about through:
• Unconstitutional means (such as Coup d’état, civil war, war of independence or self-
determination)
• Revolutionary means ( e.g. former USSR, Cuba, Libya. North Korea)
• The intervention of foreign power in internal affairs of Sate.
• Unilateral Secession of territorial part of a State (e.g. Biafra, )
Recognition may be employed as a political device and used to express approbation

or denunciation of the political nature of the State or Government in question.
Expressions of political approval or disapproval are more often reserved for the
recognition or non-recognition of revolutionary governments and not newly
emergent State.
42
(B) Express and implied recognition
Recognition may be express, through the formal acknowledgment of the existence of a
state or government or in the negotiation of a bilateral treaty formally regulating the
relations between the states or governments in question. Alternatively, recognition may
be implied by an unequivocal act intended to indicate that recognition is being conferred.
Implied recognition is commonly achieved through the exchange of ambassadors or
diplomatic missions.
(C) Constitutive and declaratory theories of recognition

In international legal doctrine a profound difference of opinion has emerged as to the
effect of recognition in international law. This difference has resulted in the formulation
of two separate theories of recognition:
i) The constitutive theory provides that states and governments do not legally exist
until recognition by the international community. Unless and until recognition is
afforded, no international personality is established.
ii) The declaratory theory asserts that coming into existence of a state or
government is a matter of fact and recognition is merely an acknowledgment of an
existing factual situation. According to this view, states and governments are
conferred with international personality at the moment at which they come into
existence.
(D) Criteria for the recognition of States

To recognize a state is to acknowledge that an entity fulfils the condition of statehood as
required by international law. The Montevideo Convention on Rights and Duties of States
1933, Article 1, provides the criteria as discussed in the previous lecture.
These criteria are generally acknowledged to express principles of customary

international law. In reality, the recognition of States is not as controversial as the
recognition of governments and practice suggests that recognition of State fulfilling these
requirements will be infrequently withheld.
(E) Recognition of Governments
43
State practice suggests that there is no legal duty incumbent on individual members of the
international community to recognize a new government. It remains a matter for
individual State to decide whether recognition will be extended to new a government.
i) British practice
Since April 1980, the policy of the British government is no longer to accord express
recognition to the government. The British Foreign Secretary, Lord Carrington, stated:
“The British government shall…..decide the nature of our dealing with regimes that
come to power unconstitutionally in the light of our assessment of whether they are
able of themselves to exercise effective control of the territory of State concerned
and seem likely to continue to do so.”
This statement has been generally interpreted as an adoption of the Estrada doctrine
which avoids express recognition of governments for danger that such an expression
might be constructed as a manifestation of approval.
ii) United States practice

The United State government maintains a constitutive orientation towards the practice of
recognizing government and as a result recognition may be used as a diplomatic weapon.
However, in 1977 the US State Department acknowledged a slight change of approach by
stating:
‘In recent years, US has de-emphasized and avoided the use of recognition in
cases of change of government and to concern ourselves with the question of
whether we wish to have diplomatic relations with the new governments.’
The policy was illustrated by the approach of the American Government adopted in
relation to the revolutionary government which came to power in Afghanistan in 1978.
The US decided to maintain diplomatic relation with the new regime on the express
condition that it would ‘continue to honour and support the existing treaties and
agreements in force between our two states.’
(F) Effect of non- recognition in international law
44
If the constitute theory is embraced, then un-recognition states would, in fact, be subject
to no duties and would possess no rights under international law.
Early in this century such an approach was recognition as absurd. In the Tinoco
Arbitration (1923) I RIAA 369, Arbitrator draft stated:
‘Non-recognition…cannot outweigh… the de facto character of Tinoco’s

government, according to the standards set by international law.’
‘To hold that a government which establishes itself and maintains peaceful
administration, with the acquiescence of the people for a substantial period of time,
does not become a de facto government unless it conforms to a previous constitution
would be to hold that within the rules of international law a revolution contrary to
the fundamental law of the existing government cannot establish a new government.
This cannot be, and is not, true.’
This opinion clearly applied the declaratory theory of recognition to the right of
unrecognized de facto governments in international law. As a result, such governments
continue to be subject to the duties set by international law and are entitled to exercise
their international right to the fullest extent practically possible. Thus, for example, a
treaty entered into by a de facto government would have validity in international law if it
otherwise conformed to the law of treaties.
In the case Deutsch Continental Gas-Gesellschaft v Polish State (1929) 5 AD 11, the
declaratory approach is similarly applied to the recognition of an emergent state.
(G) Recognition in UK law and the role of the courts

Since the policy of refraining from recognizing governments was adopted by UK
government, the court has been required to formulate principles to decide the question of
the status of a foreign government as plaintiff/ defendant in civil proceedings.
45
The leading case on this Republic of Somalia v Woodhouse Dark and Cary (Suisse) SA
[1992] 33 WLR 744 which concerned the recognition of the provisional government of
Somalia in legal proceedings for enforcement of commercial contract.
The judge, Hobhouse J, examined four criteria in order to decide whether the plaintiffs
existed as the government of the state of Somalia:
i) whether the plaintiffs were the constitutional government of the state;

ii) the degree, nature and stability of administrative control, if any, that the plaintiffs
maintain over the territory of the state;
iii) whether Her Majority’s Government had any dealing with the provisional
government and, if so, what were the nature and extent of those dealings; and.
iv) the extent of the international recognition afforded by the world community as the
government of the state.
Each of this consideration was, however, given different weight. The most significant
factors were effective control over the population and territory as well as the nature of the
dealing between the UK government and the entity.
(H) Effects of non-recognition in municipal law.

Non- recognition of a State or Government has a number of implications in English law.
In particular:
i) Only a recognized Government can raise an action in a British court. City of
Berne v Bank of England (1804) 32 ER 636.
ii) A recognized government is entitled to sovereign immunity in British law. See
Luther v Sagor [1921] 3 KB 532; Gur Corporation v Trust Bank of Africa Ltd [1986]
3 All ER 449.
iii) The legislative, judicially and administrative acts of an unrecognized state are not
applicable to problems involving conflicts of laws. See Carl Zeiss Stiftung v Rayner
and Keeler Ltd (No. 2) (1939) Ac 853.
iv) A de jure government may recover public debt, State assets. See Haile Selassie v
Cable Wireless (No 2) [1939] C 182.
46
v) The act of de jure recognition has retroactive effect. See Civil Air Transport Inc v
Central Air Transport Corp [1953] AC 70.
5.3 Summary
The distinction between de jure and de facto recognition usually arise in the case of
government. It is sometimes said that a state can be recognized only de jure, but there are
a few examples of states being recognized de facto, for instance, Indonesia was
recognized de facto by several states while it was fighting for its independence against
the Dutch in 1945-49. Similarly, there are a few examples of territorial claims being
given only de facto recognition: UK, for example, granted only de facto recognition to
the Soviet annexation of Estonia, Latvia and Lithuania in 1940.
Deutsche Continental Gas-Gesellschaft v Polish State (1929) 5 AD 11: Dicta
referring to the requirement of territory for the purpose of recognition
Austro-German Customs Union Case (1931) PCIJ Reports, Series A/B, No. 41:
statehood.
Western Sahara Case (1975) ICJ Reports, p. 12: Refers to the requirement of the
defined population for statehood.
Tinoco Arbitration (1923) 1 RIAA 369: The acts of de facto government have
international legal implication regardless of non- recognition by certain states.
Cdynia Ameryka Linie v Boguslawski [1953] AC 11. Contrasts the legal implication
of de facto and de jure recognition of governments.
Duff Development Co v Kelantan [1924] AC 797: Support the proposition that a
recognition state is entitled to sovereign immunity.
Republic of Somalia v Woodhouse Drake and Carey (Suisse) SA [1992] 3 WLR 744:
The principles to be applied by the UK court in determination the status of foreign
governments which have not yet been recognize by the international community.
Gate Concerning the Application of the Convention on the Prevention and
Punishment of the Crime of Genocide (First Request for the Indication of Provisional
Measurers) (1993) ICJ Reports, p. 3: Judgment relation to the right of a state to bring
an international application against another state which does not recognize its
existence.
47
Chen, B. The International Law of Recognition (1951).
Lauterpacht, H. Recognition of International Law (1947).
Crawford, J. The Creation of State on International Law (1979).
Harris, D.J. Case and Material on International Law (4th edition, 1991) pp. 102- 172.
State
Government
De facto
De jure

Differentiate between de facto and de jure recognition.
What are the specific requirements laid down in the European Community guidelines
for recognition and the establishment of diplomatic relations? (See, Akehurs’s
Modern Introduction to International Law. 7th Edition, 1997, pp 89)
LECTURE 6
TERRITORIAL SOVEREIGNTY
6.1 Introduction
6.2 Key Point
48
6.3 Summary
6.4 Relevant Case
6.6 Key Words
6.7 Self- Assessment Questions
6.1 Introduction
An essential criterion of sovereignty is the possession of the identifiable geographical
area within which exclusive governmental and legal functions are exercised. The means
through state such territory sovereignty remains the most popular subject within this
particular topic, although increasingly other matter in matters in this field are becoming
significant. The legal regimes establish to regulate air space and outer space and the legal
regimes of State in Antarctica are issue of growing legal interest. In addition, the
development of self- determination as a legal principle relevant to the settlement of
territory claims is an issue which must be addressed.
6.2 Key Points

(A) The traditional modes of acquiring title to territory
1 Occupation
Occupation is a means of acquiring title to territory which has never belong to any state,
or which was abounded by the former sovereignty. Virtually all of the globe has already
been apportioned among nations, but this method of acquiring title has more than a
historical significance since the number of territorial claims still remains disputed by
state- e.g. Falkland Island and Gibraltar. Resolutions of these claims and determination of
title will ultimately require reference to the legal principle behind the concept.
To acquire title through occupation, a number of conditions must be satisfied.

i) The territory must be terra nullius, hat is, ‘land belonging to no one’. In colonial
period, when claims to territory were frequently based on this ground, the rights of
the indigenous population were ignored where such people were insufficiently
49
organized to constitute a recognition government. See Cooper v Stuart (1889) 14 AC
286.
ii) The possessions which constitute occupation must be carried out by a state and
not private individuals.
iii) The territory must be placed under ‘open, continues, effective and peaceful’
control – Island of Palmas Case (982) 2 RIAA 829. The degree of control necessary
will vary n accordance with the circumstances. Minimal overt action may be
sufficient to establish effective occupation over small, uninhabited areas of territory.
The exercise of a great control of authority necessary will vary in accordance with
the circumstance. Minimal overt action may be sufficient to establish effective
occupation over small, uninhabited area of territory. The exercise of a greater degree
of authority will be necessary in other cases to establish effective control. However,
possession must be actual and not nominal. See the Clipperton Island Case (1931) 2
RIAA 1105 and the Minquiers and Ecrehos Islands Case (1953) ICJ Reports, p. 47.
iv) The acquiring state must demonstrate an animus occupandi or will to act as
sovereign. This is generally evidenced by the creation of legal apparatus for the
administration of the territory. In the Legal Status of Eastern Greenland Case (1933)
PCIJ Reports, Series A/B No 53, the International Court ruled ‘a claim to sovereignty
based…. upon a continued display of authority, involves two elements each of which
must be shown to exist: (a) the intention and will to act as sovereign; and (b) some
actual exercise or display of such authority.
In order to effectively claim abandoned territory on the basis of occupation, it must be

shown that the previous sovereign manifest animus relinquendi which is the intension to
relinquish sovereignty over the area. See the Clipperton Island Case (1931), op. cit.
2. Prescription:
Prescription is a derivative means of acquiring territory which may originally belonged
to another sovereign whose rights have been extinguished for some reason by the passage
50
of time. Acquisition of title by prescription may be achieved through two forms of
possession:
i) immemorial possession, where the state acquiring the territory has maintained
possession for such a good that possible competing claims of an earlier sovereign
have been forgotten; or
iii) adverse possession, where the previous sovereign is unknown, but the acquiring
state has exercised control over the territory of such a period of that the original or
previous sovereignty is deemed to have lost his title. This control must be
accompanied by acquiescence on the part of the state relinquishing sovereignty and
prostrates, particularly if vigorous and repeated, prevent acquisition of title by
prescription. See the Chamizal Arbitration (1911) 9 RIAA 316.
In practice, the distinction between the occupation and prescription is obscure and
tribunals settling issues of title to territory have tended to render judgment only after due
consideration of both means of acquiring title.
3. Accretion and avulsion:

Accretion is caused by the gradual movement of land from one territory to anther, such
as occurs in the silting of river banks. Avulsion is the process of violent change, such as a
dramatic change in the course of a river or the creation of volcanic formation within
state’s territory.
If accretion occurs on a boundary river between tow or more states, then the intentional
boundary changes accordingly. But in case of avulsion, despite changes in the physical
landscape, the boundary remains the same. Detailed rules have been established to deal
with the problems created by the natural occurrence. See Louisiana v Mississippi 282 US
458 (1940).
4. Cession:
Cession is the transfer of territory from one state to another, usually in the form of treaty,
and required that one party manifest an intention to assume sovereignty and the other an
intention to relinquish it. Cession is an example of derivative title and should defects
exist in the ceding State’s title, then purported cession from the previous sovereign will
not cure the defect. Further, where third States have rights over the territory, such as
51
rights of passage, these must be respected by the new sovereign States. Examples in the
past have included the purchase of Louisiana from France and Alaska from Russia.
4 Conquest:
Prior to the creation of rule restraining the use of force, territory changes brought about
by such means were acknowledge as legitimate. Acquisition of territory by conquest
could come about in tow ways:
i. Subjugation, where the armed force of the State in question were absolutely
destroyed, leave the territory open to the victors to possess; or
ii. Implied abandonment, which involve withdrawal of armed force of the state form
it territory following military defeat leaving the territory open to conquest by
the victor.
Through the creation of the limitations on the use of force in 1945 modern international
law does not recognize the possibility of acquisition by conquest. See, in particular,
Security Council Revolution 242 (XXII) which emphasized the inadmissibility of
acquisition of territory by force and the 1970 Declaration of Principles of international
law which specifically state
(B) Doctrine of Inter-temporal law

In the Island of Palmas Arbitration (1928) Umpire Huber stated that ‘a judicial fact must
be appreciated in the light of the law contemporary with it’. This has become know as
the ‘doctrine of international law’ according to which, in relation to the acquisition of
territory, claims by rivals must be determined in accordance with the law in force at the
time of discovery of the territory.
(C) Modern relevant principles for determining territory

i. Self-determination
The principle of self determination has been considered significant in at least tow case
involving question of territory sovereignty. The principle, elaborated in General
Assemble Resolution 2625, provides that people have the right to select their own form
of government and social organization.
52
In the Status of South- West Africa Case (1950) ICJ Reports, p.6, the ICJ acknowledged
that the principles of self-determination was a significant factors in deciding whether
Namibia should become an independent state on the territory which was formerly South-
West Africa. South Africa was therefore held to be under an obligation to fulfill the
requirements of the mandate from the United Nation through which it had been given
responsibility for the territory.
In addition, in the Western Sahara Case (1975) ICJ Reports, p. 12, the Court applied the
principle of self-determination to decide he claims of a number of states to the territory in
the Western Sahara. The Court found, inter alia, that the claims of the indigenous
populations of the area to self-determination did not prevail over the claims to territorial
sovereignty espoused by the claiming state. However, Judge Boni and Dillard rendered
strong dissenting decisions in support of the application of the principle. In particular,
Jude Dillard asserted that:
‘It is for the people to determine the destiny of the territory and not the territory the
destiny of the people.’
ii Uti possidetis
The principles of the uti possidetis was first develop by the former Spanish colonies if
Latin America in order to settle frontier disputes. According to the principle, the former
colonies administrative boundaries are to be adopted as the new frontier between the
independent states which have succeeded to the territory of the former colonies.
The principles was first employed by the International Court in the Frontier Dispute Case
(Burkina Faso v Mali) (1986) ICJ Report, p. 554 in order to determine the frontier
between these two African States. The function of the principles is to preserve continuity
in the demarcation of international boundaries between former colonial states.
The principles was again followed in the Case Concerning Land, Island and Maritime
Frontier Dispute ( El Salvador v Honduras, Nicaragua intervening ) (1992) ICJ Report,
p. 351, which involved a dispute between EL Salvador and Honduras concerning the
land frontier between their respective territories. Both parties agreed that the matter
should be resolved according to the principles of uti possidetis and the court delimited the
53
disputed boundaries accordingly. The original colonial boundaries were therefore
transformed into international frontiers.
iii Boundary treaties
Treaties defining border have a special status in international law. Borders established by
such agreements have a permanence that exists independently from the fate of the treaties
which set them out. This principle was acknowledged by the ICJ in Case Concerning the
Territorial Dispute between Libya and Chad (1994) ICJ Report, p. where, commenting
on a treaty of limited duration but which established a boundary between the two
countries, the Court stated:
‘The establishment of this boundary is a fact which, from the outset, has had legal
life on it own, independently of the fact of the 1955 Treaty. Once agreed, the
boundary stands, for any other approach would vitiate the principles of the
stability of boundaries, the importance of which has been repeatedly emphasized
by the Court.’
Other recent cases concerning boundaries have also been resolved by granting special
status to this type of agreement. For example, in Case Concerning Land, Island and
Maritime Frontier Disputes (1992) ICJ Report, p. 135, the International Court resolved a
long-standing territorial dispute between these two countries by reference to the terms of
a treaty setting out the principles for the delimitation of the boundary between them.
(D) Air pace and outer space and celestial bodies
Article 1 of the Chicago Convention on International Civil Aviation 1944 which in

generally accepted as declaring customary law proclaims that, every state has complete
and exclusive sovereignty over the air space above its territory’. As exceptions to the
general principle of sovereignty, two freedom of air transportation were created under
another convention, the Chicago International Air Service Transit Agreement 1944. As
stated in Article 1, these they are:
i. Freedom of passage without landing; and
ii. Freedom of landing for non- traffic purposes
54
In terms of height, Sovereignty terminates where outer space begins, although remains
unclear at what exact height, airspace becomes outer space. Problems arise because
deferent legal principles regulate the different areas.
The legal principles applicable in outer space originate in customary law, created by the
combine effect of:
i. General Assembly Resolution 1721 (XVI) of 1961 which declare that outer
space could not be appropriated on a national basis; and
ii. General Assembly Resolution 1884 (XVIII) of 1963 which constituted a
declaration of principles applicable to outer space.
These customary principles were codified in the Treaty on Principles Government the
Activities of States in the Exploration and Use of Outer Space 1967. The main principles
include:
i. The Moon, celestial bodies and outer space are res communis and not res nullius.
Consequently they are the province of all mankind and therefore incapable of
appropriation.
ii. International law, including the principles of the United Nation Charter, is
applicable to the Moon and other celestial bodies on the same basis as to
territorial activities.
iii. The Moon and other celestial bodies shall be used by state parties exclusively for
peaceful purposes. State parties to the treaty undertake not to place nuclear
weapons or any other weapons of mass destruction in orbit around Earth.
iv. State parties bear international responsibility for national activities conducted in
outer space.
v. An international body is established for registration of space vehicles in
accordance with their nationality.
These obligations have been expanded upon in a number of international convention

including: the Rescue and Return Treaty 1968, the Liability Convention 1971, the
Registration Treaty 1975 and the Moon Treaty 1979.
55
(E) Antarctica
A number of states claim some form of title to this territory based on different principles
and concepts. As a result, a number of different of views have emerged in relation to the
legal status of the area:
i. The United State adopts the view that the acquisition of a large
uninhabitable territory by discovery alone, in the absence of effective
occupation, is legally impossible.
ii. The United Kingdom asserts that title may be consolidated by discovery
and the exercise of effective governmental and administrative authority.
iii. A number of states including Chile claim that sovereignty of the region
may be claimed by the application of the sector theory. As well as the
United Kingdom, Australia, Argentina, Chile, France, New Zealand and
Norway claim areas of region. The Argentina, Chilean and British claims
overlap.
In order to avoid a confrontation between the different states claiming part of Antarctic,
the Antarctic Treaty 1959 was negotiated which imposed a moratorium on territory
claims in the region. Under Article 4(1) no claims are recognize or renounced as a
consequence of the principles embodied in the treaty and similarly no activities occurring
during the life of the treaty will affect pre- existing claims. This international agreement
has been supplemented by the Convention on the Regulation of Antarctic Mineral
Resource Activities 1988 to which all 39 Antarctic Treaty nations are parties. The
purpose of the agreement is to facilitate the commercial development of the minerals of
Antarctica, and to that end the agreement contains a number of provisions allowing
prospecting, exploration and exploitation of the mineral resources of the territory. The
exploration and exploitation systems envisaged by the agreement has not yet come into
operation because the convention expressly provides that no mineral resource activities
are to take place until it is agreed that the technology and procedure are available to allow
safe mining operations.
6.3 Summary
• Two factors affect the use of the concept of self-determination at the end of
the cold war: 1. The disintegration of the Soviet Union and creation of new
independent states. New limitations on the concept of territorial integrity
56
became necessary upon the subsequent dissolution of Yugoslavia – though in
both cases the principle of uti possidetis was applied. 2. Because self-
determination had been confined to decolonization and this process was
almost complete, the concept required a new definition if it was to have any
continuing relevance.
• It is important to understand that de facto situations cannot compel
recognition and that it is not uncommon for a recognizing state to impose
conditions before recognition.
Island of Palmas Arbitration (1928) 2 RIAA 829: The leading case on the issue of
occupation and prescription.
Clipperton Island Arbitration (1931) 2RIAA 1105: Relate to obtaining title to res
nullius by occupation.
Minquiers and Ecrehos Case (1953) Report, p.47: The degree of governmental
authority necessary for proper occupation.
Western Sahara Case (1957) ICJ Report, p. 12: Discussion of the concept of self-
determination to the issue of title to territory.
Colombia- Venezuela Boundary Arbitration (1922) 1 RIAA 133: Case involving the
application of the principles behind the concept of accretion.
Burkna Faso v Mali (1986) ICJ Reports, p. 554: Dictum of the ICJ relating to the
application of the principle of uti possidetis.
Case Concerning Land, Island and Maritime Frontier Dispute (EL Salvador v
Honduras, Nicaragua intervening) (1992) ICJ Report, p. 351: Application of the
principle of uti possidetis to South America counties.
Case Concerning Territorial Dispute between Libya and Chad (1994) ICJ Reports,
p.6: treaties establishing borders have a special status in international law and
establish frontiers which continue to exist after their expiry.
Harris, D.J 6th edition, 2004,pp. 187- 254
Akehurst’s Modern Introduction to International Law, 7t edition, 1997 pp. 147-158
Antarctica Treaty 1959, 402 UNTS 71
Treaty on Principles Governing the Activities of States in the Exploration and Use of
57
Outer Space, Including the Moon and other Celestial Bodies 1967, 610 UNTS 205
Chicago Convention on International Civil Aviation 1944, 15 UNTS 295
Convention on the Regulation of Antarctic Mineral Resource Antarctic 1988 (1988)
27 ILM 859.
Watts, A. International law and the Antarctic Treaty System (1992).
uti possidetis
res communis
res nullius.
Secession

Has the continuing use of the principle of uti possidetis proved helpful in the creation
of new States since the Cold War?
What are the limitations of the right to self-determination in any claim for secession?
Explain the doctrine of inter-temporal law.
What are the traditional modes of acquiring title to territory?
58
LECTURE 7
STATE JURISDICTION AND IMMUNITY FROM JURISDICTION
7.1 Introduction
7.2 Key Points
7.3 Summary
7.4 Relevant Cases
7.6 Key Terms
7.1 Introduction
Jurisdiction is the power of a State under international law to prescribe rules
(prescriptive jurisdiction) and the authority to enforce judgments made in accordance
with these rules (enforcement jurisdiction). Jurisdiction may be exercised in both the civil
and criminal dimensions of municipal law, although, in terms of international law,
emphasis is usually placed on the criminal jurisdiction of a state. The basic principles
behind this concept are relatively simple and students should be thoroughly acquainted
with their operation. The issue of jurisdiction is closely tied to the matter of immunity
from jurisdiction.
7.2 Key points

(A) The grounds of state jurisdiction in international law
i) Territorial jurisdiction
Territorial jurisdiction is the ground on which the vast majority of offences are
prosecuted. All crimes alleged to have been committed within the geographical territory
of a state may be heard before the municipal courts of the state in question. In the case
Compania Naviera Vascongado v Cristina SS (1938)AC 485, Lord Macmillan stated .
‘It is an essential attribute of the sovereignty of this realm, as all sovereign
independent states, that it should possess jurisdiction over all persons and
things within its territorial limits and in all causes civil criminal arising within
these limits’.
59
This principle is applicable notwithstanding that the defendants are foreign nationals.
Territorial jurisdiction extends not only to crimes committed wholly within the territorial
of the state, but also to cases in which only part of the offence occurred in the state.
Where a crime is a continuing one insofar as the perpetration of the criminal act extends
to two or more states, all involved may claim jurisdiction. This is because the territorial
principle may be divided into two constituent parts:
a) Sate in which acts initiate or perpetuate the offence may claim jurisdiction on the
‘subjective territorial principle’. This is the normal meaning of the term territorial
jurisdiction. In Treacy v DPP [1971] AC 537, Lord Diplock declared that:
‘there is no rule of comity to prevent Parliament from prohibiting under pain of
punishment persons who are present in the United Kingdom… from doing physical acts
in England, notwithstanding that the consequences of those acts take effect outside the
United Kingdom.’
b) State in which injury takes place may claim jurisdiction in accordance with the
‘objective territorial principle’. The objective territorial principle has been applied in a
number of cases at the international, national and supranational levels:
• The Permanent Court, in the Lotus case (1923) PCIJ Reports, Series A, No.10,
recognized the objective territorial principle when it stated:
‘…it is certain that the courts of many countries… interpret criminal law in the
sense that offences, the authors of which at the moment of commission are in the
territorial of another state, are nevertheless to be regarded as having committed
in the national territory, if one of the constituent elements of the offence, and
more especially its effects, have taken place there’.
• In DPP v Doot [1973] AC 807, The House of Lords held that the English courts
had jurisdiction over persons conspiring to import cannabis resin into the United
Kingdom, despite the fact that the conspiracy to commit the offence had been
carried out aboard. In considering the issue of jurisdiction Lord Wilberforce
stated:
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‘The present case involves “international elements”- the accused are aliens and
the conspiracy was initiated abroad – but there can be no question here of any
breach of any rules of international law if they are prosecuted in this country.
Under the objective territorial principle… the courts have a clear right, if not a
duty, to prosecute in accordance with our municipal law.’
• The United States courts have adopted this principle in order to extend the scope
of American anti-trust laws to cover alien individuals and companies whose
activities, although perfectly legitimate in the foreign state in which hey occur,
have a certain effect on the economy of the United State. See Timberlane Lumber
Co v Bank of America 549 F 2nd 597(1976).
• The European court of Justice has adopted an extra-territorial approach to the
application of community competition law. See the Woodpulp Cartel case
(1988)4 CMIR 901.
ii) Active national principle

The nexus established between a state and its citizens by the concept of nationality is
another basis for the exercise of jurisdiction, even when the nationals in question are
outside the territorial of the state itself. In such circumstance, jurisdiction is said to be
founded on the nationality principle.
Civil law countries make extensive use of jurisdiction on this basis. Common law system
only claim jurisdiction on this for a limited number of serious crimes. It is a recognized
principle of English law that British nationals are label to be punished for treason,
murder, bigamy and perjury, even in those case in which their crimes were committed
abroad. In Joyce v Director of public prosecutions (1946) AC 347, the House held:
‘No principle of comity demands that a state should ignore the crime of treason
committed against it outside its territory. On the contrary a proper regard for the
own security requires that all those who commit that crime, whether they commit
it within or without the realm, should be amenable to its laws’.
The principal problem which arises in the exercise of jurisdiction according to the
principle involves the means selected by individual states for the granting the nationality
to individuals. As a general rules, a state has discretion in the rule which it adopts for
61
conferring nationality. However, this is circumscribed by international law which
prohibits a state from infringing a state’s obligation towards other states. See the
Nottebohm Case (1955) IC Reports, p.4.
iii) Passive personality principle

This principle grants jurisdiction to a state to punish alleged offences committed abroad
against national of that state. An illustration of an exercise of jurisdiction on this basis
was the request by the United States to Italy for the extradition of Palestinian nationals
responsible for the murder of an American national abroad the Italian cruise ship, the
Achille Lauro in 1985.
Another illustration of the application of this principle is United States v Yunis (1989) 83
A JIL 94, in which the United States courts founded jurisdiction over a Lebanese citizen
accused of hijacking on the passive personality principle, even though none of the
American passengers on board the plane was taken captive.
International law recognize jurisdiction on this principle is the passive basis but on
subject to certain qualifications. It appears from the Cutting case (1887) 2 Moore’s
Digest 228, that a state which does not acknowledge jurisdiction according to the passive
personality principle is not bound to acquiesce to proceedings brought against one of its
nationals on this basis. The United Kingdom has tended to reject the possibility of
jurisdiction on this basis .
iv Protective (or security) jurisdiction

This extensive principle of jurisdiction would permit jurisdiction to be exercise over
foreign national whose conduct threatens the security of the state. This allows states to
punish acts threatening to undermine national security such as plotting to overthrow the
government, spying, forging currency and conspiracy to violate regulations..
Two rationales for the exercise of jurisdiction on this basis are frequently asserted:
a) offences prosecuted on the protective principle involve consequences of outmost
gravity which actually threaten the stability of the state prosecuting, and
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b) unless jurisdiction was exercised in accordance with the protective principle many
offences would escape punishment because they did not contravene the law of the place
in which they were alleged to have been committed or because extradition would be
refused because of the political nature of the offence.
In the case Attorney-General for Israel v Eichmann (1962) 36 ILR 5, the Israeli courts
applied the doctrine of protective jurisdiction in order to exercise jurisdiction over a Nazi
war criminal. This linking point between the defendant and the state of Israel was crimes
committed against the Jewish people which Israel had the right to pursue since the
connection between the state of Israel and the Jewish people needed no explanation.
The Privy Council, on an appeal from the Hong Kong courts, has also recently applied
the protective principle to found jurisdiction in that territory. In Liangsiriprasert v
Government of the United States (1990) 3 WLR 606, the court held that a drug smuggler
persuaded to go to Hong Kong by an American agent could be extradited to the United
States by the Hong Kong courts and that jurisdiction over the plaintiff could be derived
from the protective principle. In rendering its decision, the Court asked:
‘If the inchoate crime is aimed at England with the consequent injury to English
society, why should the English courts not accept jurisdiction to try it if the
authorities can lay hands on the offenders, either because they come within the
jurisdiction or through extradition procedures?’
The main objection to this principle is that ‘security’ is more often than not defined in an
extensive manner in order to acquire jurisdiction. Such a process would permit the
exercise of jurisdiction in an unlimited and unrestrained fashion
v) University principle
The basis for jurisdiction in accordance with the universality principle is that the state
exercising jurisdiction has custody of a person accused of perpetrating an offence
recognized by international law as an international crime. In principle, three main forms
of international crime exist under this principle:
63
1) Piracy jure gentium: This activity was recognized as an international crime under
customary international law and was codified in Articles 14 to 17 of the Geneva
Convention on the High Seas 1958 and Articles101 to 107 of the Convention on the Law
of the 1982. A state which has apprehended an alleged pirate may try that person for that
offence regardless of nationality and even if the activities of the pirate have had no
adverse effect on the shipping of the state in question.
2) War crimes: Although strictly violations of the laws of war, international custom has
made war crimes offences of universal jurisdiction see the judgment of the Nuremberg
Tribunal. In fact UK legislation does not rely on this principle as a basis for prosecution
of war crimes against individuals present within the United Kingdom. The War Crimes
Act 1991 instead relies on both the nationality principle and the territorial principle to
supply the basis for jurisdiction.
3) War – related crimes: These are:

• Crimes against peace which include the planning or waging of aggressive war in
violation of international law, and
• Crimes against humanity which include extermination, enslavement, deportation and
other inhumane acts.
See the judgment of the Nuremberg War Tribunal
(B) Limitation of the traditional principle

The traditional grounds for establishing jurisdiction have struggled to accommodate
increased international crimes such as – terrorism, hijacking, drug-smuggling and
international fraud. More and more frequently, courts in which accused persons appear
are unwilling to relinquish jurisdiction simply because the traditional principles are so
rigorous.
The United States courts especially have been willing to abandon the rigorous application
of these principles in favour of asserting jurisdiction where possible over persons accused
of committing offences against the national security of that country or against its
nationals.
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For example, in United State v Alvarez-Machain 112 S Ct2188 (1992), the accused was a
Mexican national charged with kidnapping, torturing and murdering an American
national drug enforcement officer in Mexico. The accused had himself been kidnapped
and taken to the United States against his will.
The US Supreme Courts held that US courts had jurisdiction to try an accused charged
with harming an American national as long as the manner in which the accused was
brought before the court did not violate the terms of any treaty between the States
involved.
This is undoubtedly a dangerous precedent for the US Supreme Court to have set but it is
no doubt an expression of the frustration that is felt when the traditional grounds for
jurisdiction allow perpetrators of transnational crimes to escape justice. However, if the
traditional grounds of jurisdiction are no longer of any relevance, what rules should
replace them?
C) Jurisdiction in special circumstance and in accordance with international

agreements.
1) Offence committed against aircraft
Problem arise in hijacking because the offence is not necessarily committed in any
particular territory but in transit. A number of conventions have been established in an
attempt to regulate the issue of jurisdiction over hijacking. These include:
• Tokyo Convention on Offences and Certain Other Acts Committed on board Aircraft
1963: Article 4 grants jurisdiction over hijackers on he basis of the objective
territorial principle, the protective principle and in order to enforce national flight
regulations or international obligations.
• Hague Conventions for the Suppression of Unlawful Seizure of Aircraft 1970:Articles
4(2) establishes state jurisdiction on the university principle to signatories of the
convention regardless of any connection with the offence.
• Montreal Convention for the Suppression of Unlawful Acts against the safely of civil
Aviation 1917: This agreement enlarges the category of crimes to include sabotage of
air craft and related acts, on the same basis of jurisdiction as established under the
Hague Convention.
65
The defects in established jurisdiction over persons accused of crimes specified in
multilateral treaties such as these were recently highlighted in the case concerning
Questions of Interpretation and Application of the 1971 Montreal Convention Arising
from the Aerial Incident of Lockerbie (1992)
2) Slavery
Slavery is prohibited by Article 4 of the Universal Declaration of Human Rights
1948 and Covenant on Civil and Political Rights 1996.
Further, the International Law Commission draft on state responsibility declared
slavery to be an international crime. However, it is unclear whether universal
jurisdiction accompanies this particular international crime.
3) Extradition
The concept of extradition is based on treaty and no general right of customary
international law exists. Extradition is usually regulated by a framework of bilateral
treaties which generally have a number of features in common:
a) A statement of extraditable offence which is usually confined to serious offences.
Alternatively, extraditable offence may be determined by reference to the
principle of double criminality which requires that the offence be recognized by
both States involved.
b) An definition of extraditable persons. This may be all persons accused of
extraditable crimes or may exclude national of the extraditing state. The exclusion
of nationals form extradition processes is common in the continental civilian
countries.
c) An exception in case of political, military or religious offences. Of these the most
important is the deface of so-called political offence. These are offence motivated
by political objectives such as the overthrow of the government. Problems have
arisen on this ground in relation to the extradition of terrorists. As a result, the
tendency has to restrict the category of political offence. See the European
Convention on the Suppress of Terrorism 1976, Article 1.
d) The inclusion of a specialty principle which mean that the extradited cannot be
fried for a crime other than for which extradition was obtained.
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e) Provision for the prima facie proof of guilt. This is a common law phenomenon,
unknown in extradition treaties between civil law States.
In the United Kingdom, the Extradition Act 1989 contains the relent principles and the
procedures for extradition a person from the United Kingdom. This statute governs the
procedure for extraditing a person accused of the commission of an extraditable crime in
the requesting state, or who is allegedly at large after conviction of an extradition crime
by a court in such a State.
An extradition crime is defined as conduct which, if it occurred in the United Kingdom,

would constitute an offence punishable by a team of imprisonment of twelve month or
longer and which is also punishable in law of the of the foreign State.
The procedure for the extradition apply not only when the United Kingdom has entered
into a bilateral agreement with another State, but also when the United Kingdom is a
party to multilateral agreement which creates offence of an international character.
Special provisions have been drafted onto the statute to deal with the problem of
terrorism. In particular, under this legislation, no offence similar to that created by section
I of the Suppression of Terrorism, Act 1978 shall be deemed a political offence.
The courts have recently had cause to interpret the Extradition Act 1989 in R v Governor
of Brixton Prison, ex parte Osman (No 3) [1992]I WLR 36.
D) Immunity from jurisdiction

i) Introduction
Immunity from municipal jurisdiction, which most frequently extends to states and their
diplomatic representatives, is a complex counterpart of the subject of jurisdiction itself.
Exceptions to the general principles permitting jurisdiction also arise in relation to the
acts of international organizations and their representatives which, in certain
circumstances, may be entitled to claim immunity from suit and, in addition, from the
application of the act state doctrine. It is important that students are familiar with the
various conventions which regulate immunity at the international level, as well as the
body of case law from Ghana the United Kingdom and the United States which has
evolved from this very practical aspect of international law.
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ii) Sovereign immunity
A state cannot exercise its sovereign dominium over other sovereign States, a principle
which is embodied in the maxim par in parem non habit emporium –one equal cannot
exercise authority over another equal since exercising jurisdiction over the actions of
other heads of States or members of government would be a manifestation of such
authority The classic exposition of the principle of sovereign immunity was made by the
US Supreme Courts of Schooner Exchange v McFadden (1812), where Marshall CJ
observed.
‘One sovereign being is in no respect amenable to another, bound by
obligations of the highest character not to degrade under the dignity of this
nation....supposed to enter a foreign territory only under an express license,
or in the confidence that immunities belonging to his independent sovereign
state, though not expressly stipulated, are reserved by implication, and will be
extended to him.’
This principle was adopted into British law in a series of cases which included the
following:
i) Krajinav Tass Agency [1949]2 ALL ER 274, in which the principle of
sovereign immunity was extended to an organ of the soviet government which
was therefore entitled to immunity from jurisdiction.
ii) Baccus SRL v Service National del Trigo [1957]I QB438, where the
defendants, although separate legal persons, were in fact found to be an organ
of the Spanish government and consequently entitled to sovereign immunity.
The English courts have adopted the practice of accepting an executive certificate from
the Foreign Office as absolute proof of the statute of a foreign entity as sovereign state,
and as such, entitled to claim sovereign immunity. See Duff Development Company v
Kelantan [1924] AC 797.
This traditional view of sovereign immunity as being absolute has been eroded,
particularly as a result of the growing involvement of States in international commerce.
By judicial interpretation, absolute immunity gave way to the doctrine of restrictive
immunity in a course of decisions which modified the original common law position.
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This approach was endorsed by subsequently legislations which embraced the restrictive
approach to sovereign immunity.
ii) Immunity of diplomats

The law relating to diplomatic immunity has been declared by the International Court in
the US Diplomatic and Consular staff in Tehran case (1980) ICJ Re puts p.3.
‘…constitute a self-contained regime, which on the one hand, lays down the by
receiving state’s obligations regarding the facilities, privileges and immunities to be
accorded to diplomatic mission and on the other, foresees their possible abuse by
members of the mission and specifies the means at the disposal of the receiving State
to counter any such abuse.”
The modern law of diplomatic immunity was both codified and developed in the Vienna
Convention on Diplomatic Relations 1961. This was ratified and domesticated by Ghana
under the Diplomatic Relations Act, 1962, (Act 148) which provides:
1. Articles to have force of law
Articles 22, 23, 24, and 27 to 40 of the Vienna Convention (which regulate the
immunities and privileges, including exemption from taxation, freedom of
communication, inviolability of premises and immunity from civil and criminal
jurisdiction, to be conferred on diplomatic agents) shall have the force of law and
references in the Convention set out in the First Schedule to the receiving State shall, for
this purpose, be construed as references to the Republic.
2. International Organizations
The President may, by legislative instrument, make Regulations extending any or all of
the immunities and privileges conferred on diplomatic agents by virtue of this Act to
prescribed organizations and prescribed representatives and officials, subject to the
conditions and limitations prescribed in the instrument.
Consular Relations
5. Articles to have force of law
The following articles of the Convention, the text of which is set out in the Second
Schedule shall have the force of law, namely,
(a) article 31 (inviolability of the consular premises);
(b) article 32 (exemption from taxation of consular premises);
69
(c) article 33 (inviolability of consular archives and documents);
(d) articles 40 to 53 and 55 to 57 (facilities, privileges and immunities relating
to career consular officers and other members of a consular post);
(e) articles 58 to 67 (facilities, privileges and immunities relating to honorary
consular officers).
In addition (according to the Vienna Convention), the receiving state is under a positive
obligation to protect the mission against intrusion or damage. Three principal theories
have been advanced to define the basis for this special status:
• The ‘extraterritorial theory ‘which claims that the diplomatic premises
constitute an extension of the sovereign territory of the sending state;
• The ‘functional necessity theory’ in which diplomatic privileges are
considered to personify the foreign sovereign which is dispatched to
represent the sending state; and
• The functional necessity theory in which diplomatic privileges and
immunities are justified as necessary to enable the proper functioning
of the diplomatic mission.
Among these theories, it is the functional necessity theory which is least open to
criticism. In Radwan [1973] Fame 24, the court rejected the proposition that Egyptian
Consulate in London was Egyptian territory.
Diplomatic premises are also protected against the enforcement of a judgment, degree or
arbitral awards made against the government of the State maintaining the premises.
Immunity of the diplomatic personnel from criminal jurisdiction and civil litigation
(Article 31 of the Vienna Convention) provides that:
‘A diplomatic agent shall enjoy immunity from jurisdiction of the receiving
State. He shall also enjoy immunity from its civil and administrative
jurisdiction,’ (subject to exception).
Clearly, absolute immunity from criminal jurisdiction is granted whilst conditional
immunity is conferred in relation to the civil jurisdiction of the receiving State. The
exceptions to civil jurisdiction relate to private real property. Succession and commercial
activity carried on by the diplomat outside official functions are not covered. See, Ingra
70
Properties (UK) Ltd v Suavely [1983] 2 All ER 1. Further, a diplomatic cannot be
compelled to give evidence in a courts of law (Article 31(2).
Note, however, that foreign diplomats and their families are not entitled to diplomatic
immunity nor the right to residence or to expedited immigration procedure, after the
expiry of their secondment to their mission.
iii) The immunities of international organizations

No customary rights of immunity from jurisdiction appear to be endowed upon
international organizations and their representatives. However, a number of treaties
regulate the rights and duties of such entities within the territory of the receiving state.
Although the Vienna Convention on the Representation of State in their Relations with
International Organizations of a Universal character (1975) would regulated this
subject-matter on a multilateral basis, it has not yet entered force.
Immunities of international organizations are therefore established on bilateral basis.

Note in particular, the General Convention on the Privilege and Immunities of the United
Nations (1946), 1 UNTS 15, which sets out the immunities of the personnel of the United
Nations. The US-UN Headquarters Agreement 1947 reiterates the rights and duties of the
United Nation and its personnel in the United States.
7.3 Summary
Every sovereign state is bound to respects the independence of every other sovereign
state and the courts of one country will not sit in judgment on the acts of the government
of another, done within its own territory.
Alcom Ltd v Republic of Colombia [1984] 2 All ER 6 : Affirmation of the restrictive
theory of sovereign immunity in English law.
Autocracy –General for the United Kingdom v Heinemann Publishers Pity Ltd (1988)
62 AIJR 344: Contains relevant statement on the act of state doctrine.
A company Ltd v Republic of X [1990] 2 Lloyd’s Rep 520: This case illustrates the
71
approach of the UK Courts towards interpretation of State Immunity Act 1978.
R v IRC, ex Parte Camacq Corp [1990] 1All ER 173: Limitations imposed on the
principle of sovereign immunity for taxation purposes.
R v Secretary for the Home Department, ex parte Bagger [ 1990] 3 WLR 1013:
Some limitations on the principle of diplomatic immunity after the period of duty
has expire.
The Lotus Case (1927) PCIJ Reports, Series A No. 10: Support for the exercise of
jurisdiction on an objective and subjective territorial basis. Joyce v Director of
Public Prosecutions [1946] AC347:An example of the application of jurisdiction
according to the nationality principle.
Attorney-General for Israel v Eichmann (1962)36ILR 5: Application of jurisdiction
on the protective principle.
Liandirsprasert v Government of the United States [1990] 3 WIR 606: UK
R v Governor of Braxton Prison, ex Osuman (No 3) [1902] IWIR 36: judicial
consideration of the terms of the Extradition Act 1989.
United States v Alvarez-Machain 112 S Ct 2188 (1992) (US Supreme Ct):
US Supreme Court ruling elimination the need for US court to rely on the
traditional basis of jurisdiction.
Locker Case (Libya v United Kingdom / United states) (1992) ICJ Reports, p.3
consideration of the problems of exercise jurisdiction on multiple grounds.
Woodpulp Cartel Case, Re, Ahlstrom and Ors v EC Commission [1988]4 CMLR
901: the extradition application of EC law.

Tokyo Convention of Offence and Certain other Acts Committed on Board Aircraft
1963 704 UNTS
Hague Convention for the suppression of Unlawful Seizure of Aircraft 1970 (1970)
10 ILM 133
Montreal Convention for the Suppression of Unlawful Arts Against the Safely of
Civil Aviation, 1971 10 ILM 1151.
Roth, P ‘Reasonable Extraterritoriality’ (1992) 41 ICLQ 245.Scobbi, I. ‘Lockerbie
Cases Intern Measures’ (1992) SIT (N) 159
72
Cunningham, A. To the Outermost End of the Earth: The War Crime Act and
International Law’ (1992) 11 Legal Studies 281.
Dard, G. state Immunity: The Development in International Law (1984).
Higgins, R. Recent Development, in the Law of sovereign Immunity in the United
Kingdom ‘(1977) 71AJIL, P.42.
Mann, F.A ‘The state Immunity Act 1978’ (1979) 50BYIL, P.113.
Crawford, J. ‘International to International Law of Foreign Sovereigns:
Distinguishing Immune Transactions’ (1989)54 BYIL, p.75
Starke, J-G. Introduction to International Law (10 edition, 1989), pp-232.
-------------------------------------------------------------------------------------------------------
Immunity
Jurisdiction
Universal
73
Lecture 8
STATE RESPONSIBILITY
11.1 Introduction
11.2 Key points
11.3 Summary
11.4 Relevant cases
11.6 Key terms
11.1 Introduction
State responsibility refers to the liability of states for conduct in violation of the rules of
international law and resulting in injury to other states. It is a complex, and often little
understood aspect of the syllabus. Confusion arises in part due to the lack of consensus
behind some of the more important principles involved, but also as a result of the
complicated nature of the fundamental concepts involved. The following discussions will
emphasis the distinctions made within this branch of the law and will concentrate on
highlighting the difficulties involved in the application of basic principles.
11.2 Key points

All legal systems create rights and impose duties upon the subjects which they regulate
and in this respect international law is no different. Infringement or denial of a right owed
to another state creates a duty to redress the violation or to make reparation. In the
Spanish Zones of Morocco Claim (1925) 2 RIAA 615, Umpire Huber expressed the
concept of state responsibility in the following terms:
‘Responsibility is the necessary corollary of a right. All rights of an international
character involve international responsibility. If the obligation is not met, responsibility
entails the duty to make reparations.’
The International Law Commission (ILC) Draft Articles on State Responsibility

(Yearbook of the ILC, 1979, II, p. 90), represent an authoritative statement of the
principles regulating this topic, in particular in relation to the content, forms and degrees
74
of state responsibility. This is supplemented by a considerable amount of case law on the
subject generated within the last century.
(A) Distinction between civil and criminal responsibility

Although there is little doubt that international responsibility has both civil and criminal
dimensions, the nature and scope of criminal responsibility remains highly controversial
while civil responsibility is regulated on more settled principles.
Civil liability
In general state responsibility is synonymous with civil liability and the principles
discussed in the subsequent key points of this chapter relate exclusively to civil liability.
International law does not subdivide civil responsibility into contractual and delictual or
tortuous liability, and when the terms 'international delict’ or 'international tort' are
employed this has a wider meaning than the common law terms. All unlawful violations
of international law, including breaches of treaty, are considered to be international
delicts or torts.
According to the ILC Draft, 'any internationally wrongful act which is not an
international crime……constitutes an international delict' (Draft Article 19(4)). This
allows for a relatively simple distinction: an act or omission prohibited by international
law constitutes an international delict where it is not a recognized international crime.
Criminal liability
Article 19(2) of the Draft Articles defines an international crime as:
'An internationally wrongful act which results from the breach by a state of an
international obligation so essential for the protection of fundamental interests of the
international community that its breach is recognized as a crime by that community as a
whole ... '
Four practices are expressly identified as international crimes, although these are merely
illustrative and not exhaustive. These are:
i) A serious breach of the international rules created for the preservation of
international peace and security, such as the rules prohibiting aggression;
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ii) A serious infringement of the principles which safeguard the right of self-
determination of peoples, such as the rule prohibiting the establishment or
maintenance by force of colonial domination;
iii) A serious breach on a widespread scale of an international obligation of essential
importance for safeguarding human beings, such as those prohibiting slavery,
genocide and apartheid; and
iv) A serious breach of an international obligation of essential importance for the
safeguarding and preservation of the human environment, such as those
prohibiting mass pollution of the atmosphere or of the seas.
Other unlawful actions falling within the definition of an international crime, but which
are not included within this list, are feasible.
International criminal law remains inchoate. No sanctions or penalties have been

prescribed for criminal conduct, and no tribunals with jurisdiction over international
crimes have been established, with the exception of the ad hoc Nuremberg Tribunal.
Further, it is unclear whether international crimes are perpetrated by individuals or by
states. Brownlie claims that 'the state is only liable for delicts …. (while)….. the
individual directly responsible for a crime against peace in liable to trial and punishment
(International Law and the Use of Force by States (1963), p. 15). However, in their
commentary on the Draft Articles, the ILC declared that 'in adopting the designation
"international crime" the Commission intends only to refer to “crimes” of the state, to
acts attributable to the state as such’
(B) Imputability
The actions of a number of state organs, agencies and representatives must he attributed
to the state for the purposes of determining international responsibility. Direct or indirect
responsibility will devolve to the state for:
i) Acts of the executive, legislative and judicial branches of the government. (Draft
Article 6).
ii) Any actions of the political sub-division of the state, such as individual federal
states or provinces (Draft Article 5).
iii) An action of any organ, state employee or other agent of the government
76
functioning within their official capacity (Draft Article 8).
Acts which are lawful under municipal law, but unlawful under international law, attract
international responsibility and it is no defence to an international delict that such action
was legitimate under municipal law. As the Court pointed out in the Polish Upper Silesia
Case (1926) PCI) Reports, Series A, NO.7:
‘….....municipal laws are merely facts which express the will of and constitute the
activities of states in the same manner as do legal decisions or administrative
measures.’
Imputability for actions of agents and employees of the state extends in particular to the
police and the armed forces. In this respect, the following principles are important:
i) A state is liable for the official actions of all agents no matter how minor in rank
(Draft Article 6). In the Massey Case (1927) 4 RIAA 15, Commissioner Nielsen
declared:
‘To attempt by some broad classification to make a distinction between some
“minor” or “petty” officials and other kinds of officials must obviously at times
involve practical difficulties ... In reaching conclusions in any given case with
respect to responsibility for acts of public servants, the most important
considerations ... are the character of the acts alleged to have resulted in injury to
persons or to property, or the nature of functions performed whenever a question
is raised as to their proper discharge.’
ii) A state is also liable for the conduct of an individual or group if it can be
established that such a person or group was in fact acting on behalf of the state, or
the individual or group was in fact exercising elements of governmental authority,
in the absence of official permission, in circumstances which justified the exercise
of those elements of authority (Draft Article 8).
iii) A state is liable for the actions of its agents even when these are ultra vires of
their authority. Article 10 of the ILC Draft proposals states:
77
‘The conduct of an organ of the state, of a territorial governmental entity
empowered to exercise elements of the governmental authority, such organ
having acted in that capacity, shall be considered as an act of the state under
international law even if, in the particular case, the organ exceeded its
competence according to international law or contravened instructions
concerning its activity.’
In the Youmans Claim (1926) 4 RIAA 110, Mexico was held liable for the actions of
militia responsible for the murder of American citizens, even though the soldiers had
acted lawfully and within their powers. Similarly, in the Caire Claim (1929) 5 RIAA 516,
Commissioner Verzijl declared:
‘The state, in international affairs, [bears] the responsibility of all acts committed by its
officials or organs which constitute offences from the point of view of the law of nations,
whether the official or organ has acted within or exceeded the limits of his competence’.
iii) A State is not liable for the acts of foreign States or international organizations
performed within its territory (Draft Articles 12 and 13).
iv) A state is not liable for the actions of revolutionary forces (Draft Article 14).
In the Sambaggio Claim (1903) 10 RIAA 499, Umpire Ralston declared that 'the
government [of a state] should not be held responsible for the acts of
revolutionaries ... Revolutionaries are not the agents of the government, and a
natural responsibility does not exist.’
However, should a revolutionary government overthrow the incumbent
government, then responsibility devolves on those authorities for their actions in
the civil conflict (Draft Article 15).
v) A State is not responsible for the conduct of persons or groups not acting on
behalf of the State (Draft Article 11). Actions by nationals or private individuals
not related to the state do not impute liability to the state.
78
(C) The theoretical basis of responsibility
Two contending theories purport to describe the basis for the operation of
responsibility:
i) Objective responsibility
According to this theory, strict liability is conferred upon States for the
commission of international delicts by itself of its agents. It is therefore
unnecessary to establish fault or intention on behalf of the officials alleged to
have perpetrated the unlawful act. This is supported by a number of cases. In the
Caire Claim (1929) 5 RIAA 516, the Mixed Claims Commission advocated the
application of:
‘…. the doctrine of the objective responsibility of the Sate, that is to say, a
responsibility for those acts committed by its officials or its organs ... despite the
absence of fault on their part.'
ii) Subjective responsibility

This approach emphasizes the requirement of fault or negligence on the part of
the state or its officials for the determination of international responsibility. In the
Home Missionary Society Claim (1920) 6 RIAA 42, the arbitral tribunal declared:
‘It is a well-established principle of international law that no government can be

held responsible for the act of rebellious bodies of men committed in violation of
its authority, where it is itself guilty of no breach of good faith, or of no
negligence in suppressing insurrection.’
In the Lighthouses Arbitration (1956) 12 RIAA 217, the Permanent Court of Arbitration
held that the damage to a lighthouse was neither a foreseeable nor a normal consequence
of the evacuation, nor attributable to any want of care on the part of Greece. Liability for
the act on the part of Greece was denied.
Although it is unclear whether fault, negligence or intention is a necessary attribute for
state responsibility, strict liability may be imputed by treaty. See, for example, the
Convention on International Liability for Damage Caused by Space Objects 1972, 10
ILM 965.
79
(D) Defences and justifications for the commission of international delicts
The International Law Commission Draft Articles on state responsibility distinguish
between defences and justifications. A state may be allowed to plead the following in
defence of an otherwise unlawful action:
i) The alleged wrongful act was committed by a state subject to the power or control
of another state and coerced into the action.
ii) The state alleging the violation of international law consented to the commission
of the act.
iii) The actions constituted legitimate countermeasures under international law (not
including the use of force).
iv) A situation of force majeure or extreme distress occasioned the unlawful act and
there was an absence of willingness on the part of the officials concerned (Draft
Article 30).
In addition, two grounds may be adduced to justify the commission of illegal acts:
i) A state of necessity may justify an otherwise illegal action where (a) the act was
the only means of safeguarding the vital interests of the state against grave and
imminent peril; and (b) the act did not seriously impair the essential interests of
the state harmed (Draft Article 33).
ii) Actions taken by a state in conformity with lawful measures of self-defence under
the U N Charter do not entail international responsibility (Draft Art. 34)
(E) Reparations
A violation of international obligations invariably establishes a duty to make reparations.
In the Chorzow Factory Case (Indemnity) (Merits) (1928) PCIJ Reports, Series A, No.
17, the International Court clearly enunciated that' ... any breach of an engagement
involves an obligation to make reparation'. Reparation should be made through restitution
in kind which must, as far as possible, wipe out the consequences of the illegal act and re-
establish the status quo ante. Where this is not possible, according to the Court in the
above case, monetary compensation is required which:
‘….. corresponds to the value which a restitution in kind would bear; the award,
if need be, of damages for loss sustained which would not be covered by
80
restitution in kind or payment in place of it - such are the principles which should
serve to determine the amount of compensation due for an act contrary to
international law.’
Although the international law of damages is little settled, a few points seem to have been
established. In British Petroleum v Libya (1974) 53 ILR 297, the arbitrator made it clear
that:
‘…….. when by the exercise of sovereign power a state has committed a
fundamental breach of a concession agreement by repudiating it through a
nationalization of the enterprise ... in a manner which implies finality, the
concessionaire is not entitled to call for specific performance [of the contract] ...
but his sole remedy is an action for damages.’
The quantum of damages was considered in the Norwegian Shipowners Claim (1922) 1
RIAA 307, in which a Mixed Tribunal enunciated the principle that:
‘Just compensation implies a complete restitution of the status quo ante, based,
not upon future gains ... but upon the loss of profits of the Norwegian owners as
compared with owners of similar property.’
Compensation must cover the damage caused by the illegal act and that which will likely
to result from it. However, remote or ‘speculative’ damages are unlikely.
(F) Nationality of Claims

For a state to espouse an international claim against another state for violation of
international law, it must prove that the injury was occasioned against a national. In the
Panevezys-Saldutiskis Railway Case (1939) PCIJ Reports, Series A/B, No. 76, the
Permanent Court stated:
‘In taking up the case of one of its nationals …….a state is in reality asserting its
own right ... This right is necessarily limited to intervention on behalf of its
nationals because ... it is the bond of nationality between the state and the
individual which alone confers upon the state the right of diplomatic protection ...
Where the injury was done to the national of some other state, no claim to which
81
such injury may give rise falls within the scope of diplomatic protection which a
state is entitled to afford nor can it give rise to a claim which that state is entitled
to espouse.’
This rule is firmly enshrined in the Rules regarding International Claims issued by the
British Foreign and Commonwealth Office in 1971. Rule one states: ‘Her Majesty's
Government will not take up the claim unless the claimant is a United Kingdom national
and was so at the date of the injury.’
(G) Establishing nationality

Each state is at liberty to determine, in accordance with its domestic laws, those
individuals who will be conferred with nationality. As the Permanent Court pointed out in
the Nationality Decrees in Tunis and Morocco Case (1923) PCIJ Reports, Series B, No.4,
'in the present state of international law, questions of nationality are in principle within
the reserved domain [of a state's domestic jurisdiction]. This principle was confirmed in
the Nottebohm Case (1955) ICJ Reports, p. 4, where the ICJ stated:
‘It is for Lichtenstein, as it is for every sovereign state, to settle by its own
legislation the rules relating to the acquisition of its nationality, and to confer that
nationality by naturalization granted by its own organs in accordance with that
legislation ….’
Nationality is generally determined by reference to two principles:
i) Jus sanguinis: Nationality is conferred, according to this principle, by the
nationality of the father or mother. Thus, the British Nationality Act 1981 permits
the grant of nationality by descent for one generation through either parent for
legitimate children and through the mother for illegitimate children.
ii) Jus soli: Nationality is conferred on this basis where the child was born in the
territory of a state.
In addition, nationality may be acquired through naturalization - application to the
appropriate immigration authorities - or by marriage.8
8
In the Ghanaian case, see in particular, The Citizenship Act 2000, Act 591 which aimed at
bringing the citizenship law of Ghana in conformity with the 1992 Constitution and the principles
of international law. See also Oswald K. Seneadza,” The law of citizenship: international legal
82
Although a state has unilateral discretion to determine the rules according to which it
confers nationality, this authority is circumscribed in relation to claims against other
states. In the Nottebohm Case, op. cit., the International Court established the principle
that:
‘A state cannot claim that the rules it has thus laid down (for the grant of
nationality) are entitled to recognition by another state unless it has acted in
conformity with this general aim of making the legal bond of nationality accord
with the individual's genuine connection with the state ….’
In order to determine the existence of a genuine link at the international level, the Court
continued to define nationality as:
‘…a legal bond having as its basis a social fact of attachment, a genuine
connection of existence, interests and sentiments, together with the existence of
reciprocal rights and duties. It may be said to constitute the juridical expression
of the fact that the individual upon whom it is conferred, either directly by the law
or as a result of an act of the authorities, is in fact more closely connected with
the population of the state conferring nationality than with that of any other
state.’
Although the rules for granting nationality remain relatively simple, despite the existence
of this additional test at the international level, special circumstances often arise in which
two or more states are involved in the determination of nationality. In this respect, a
number of special situations merit consideration:
a) Dual nationality
Where a person possesses dual nationality, either state may institute proceedings against
third states. The dicta of the arbitral tribunal in the Salem Case (1932) 2 RIAA 1161, is
particularly instructive in this respect:
‘The rule of international law [is] that in a case of dual nationality a third power
is not entitled to contest the claim of one of the two powers whose national is
interested in the case by referring to the nationality of the other power.’
questions arising”, in: KNUST Law Journal Vol.1 (2004) No 1 FOL, University Press, KNUST,
Kumasi pp11-28
83
In relation to claims between the two states of which the nationalities are held, in the
Merge Claim (1955) 22 ILR 443, it was held that a test of 'effective nationality' was
relevant to the determination of whether one state could initiate a claim against the other.
In order to establish the prevalent nationality in individual cases, habitual residence can
be one of the criteria of evaluation, but not the only one. The conduct of the individual in
his economic, social, political, civic and family life, as well as the closer and more
effective bond with one of the two states must also be considered.
This test was upheld in the recent Iran-United States Claims Tribunal where the full
tribunal held that it had jurisdiction over claims against Iran by a dual national when the
'dominant and effective nationality' was American. See the Islamic Republic of Iran v
United States (1984) 78 AJIL 912.
b) Companies and legal persons

The general rule is that a company has the nationality of the state under whose laws it
was incorporated and in whose territory it has its registered office. This was confirmed in
the Barcelona Traction, Light and Power Co Case (1970) ICJ Reports, p. 3, where the ICJ
stated:
‘In allocating corporate entities to states for purposes of diplomatic protection,

international law is based, but only to a limited extent, on an analogy with the
rules governing the nationality of individuals. The traditional rule attributes the
right of diplomatic protection of a corporate entity to the state under the laws of
which it is incorporated and in whose territory it has its registered office. These
two criteria have been confirmed by long practice and by numerous international
instruments.’
As a result, a state is precluded from initiating an international claim against another state
on behalf of its nationals merely by virtue of their possessing shares in a foreign
company.
c) Nationality of ships
The Geneva Convention on the High Seas 1958, Article 5, states the rule in relation to the
nationality of ships:
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‘Ships have the nationality of the state whose flag they are entitled to fly. There
must exist a genuine link between the state and the ship; in particular, the state
must effectively exercise its jurisdiction and control in administrative, technical
and social matters over ships flying its flag.’
This rule is confirmed by Article 91 of the Convention on the Law of the Sea 1982. The
rules for conferring British nationality on a ship are contained in the Merchant Shipping
Act 1894 sections 1-2
d) Nationality of aircraft
The nationality of aircraft is governed by Article 17 of the Chicago Convention on
International Civil Aviation 1944, 15 UNTS 295, which provides that ‘aircraft have the
nationality of the state in which they are registered.' In British law, this is regulated by
the Civil Aviation Act 1949, section 8.
(H) Exhaustion of local remedies

In order to reduce both the number of international claims and friction between states
caused by the institution of proceedings, a customary rule of international law has been
established to the effect that, before recourse is made to international processes, the state
alleged to be responsible for the unlawful act must be given an opportunity to remedy the
alleged violation through processes, both judicial and administrative, available within the
state itself. This was ably restated in the Ambatielos Arbitraiton (1956) 12 RIAA 83, in
which the principle was enunciated that:
‘A State against which an international action is brought for injuries suffered by

private individuals has the right to resist such an action if the persons alleged to
have been injured have not first exhausted all the remedies available to them
under the municipal law of that state.’
The principle extends to the whole system of redress established by the municipal law of
the state in question, and not only judicial processes. However, it is restricted in that only
effective remedies need be exhausted. For example, in the Finnish Ships Arbitration
(1934) 3 RIAA 1479, the arbitrator ruled that appeal to the highest court in the land was
85
unnecessary because that tribunal could not overturn the decision because it was
restricted to considerations of law and the controversy in question was one of fact.
The International Court has recently made a further erosion of this principle. In the
Elettronica Sicula SPA Case (1989) ICJ Reports, p. 15, the Court held that local remedies
were exhausted if the claim in question is inappropriate for resolution by national courts
or tribunals and is in fact a matter for an international court or body. As the Court pointed
out:
‘The local remedies rule does not, indeed cannot, require that a claim be
presented to the municipal courts in a form, and with arguments, suited to an
international claim to be admissible, it is sufficient if the essence of the claim has
been brought before the competent tribunals and pursued as far as permitted by
local law and procedures, and without success…’
(I) Common international delicts

Maltreatment of aliens
In the Mavrommatis Palestine Concessions Case (Jurisdiction) (1924) PCIJ Reports,
Series A, No. 2, the International Court stated the customary principle that:
‘[I] t is an elementary principle of international law that a state is entitled to protect its
subjects, when injured by acts contrary to international law committed by another state,
from whom they have been unable to obtain satisfaction through ordinary channels.’
At the same time, a state is not automatically responsible for all criminal acts committed
against aliens within its territory. In the Noyes Claim (1933) 6 RIAA 308, the following
rule was elaborated:
‘The mere fact that an alien has suffered at the hands of private persons… does
not make a government liable for damages under international law. There must
be shown special circumstances from which the responsibility of the authorities
arises; either their behaviour in connection with the particular occurrence, or a
general failure to comply with their duty to maintain order, to prevent crimes or
to prosecute and punish criminals.’
However, the exact nature of the obligation to treat aliens in national territory remains
unclear. Two formulations” of duty have been asserted:
86
International minimum standard
This standard has been maintained by the developed states. It is a minimum standard that
must be upheld regardless of how a state treats its own nationals. In the Neer Claim
(1926) 4 RIAA 60, it was held that ‘the propriety of governmental actions should be put
to the test of international standards’, while in the Certain German Interests in Polish
Upper Silesia Case (1926) PCIJ Reports, Series A, No.7, the Permanent Court recognised
the existence of a certain minimum standard of treatment in international law. See also
the Garcia Case (1926) 4 RIAA 119, and the Roberts Claim (1926) 4 RIA A 77.
National treatment standard

Developing states assert that foreign nationals need only be treated in the same manner,
and to the same standard, as nationals of the state into which they enter.
Expropriation
It is a recognized attribute of state sovereignty that property within the territory of a state
may be nationalized or expropriated. Only the processes and compensation of the practice
raise differences in formulating principles.
i) Public purpose
In the Certain German Interests in Polish Upper Silesia Case (1926) PCIJ Reports,
Series A, No.7, the International Court observed that expropriation must be for 'reasons
of public utility, judicial liquidation and similar measures.’ This standard was reiterated
in the 1962 General Assembly Resolution on Permanent Sovereignty over Natural
Resources, although it was omitted in the subsequent 1974 Charter of Economic Rights
and Duties of States.
ii) Non-discrimination
Expropriation must involve no discrimination between national and foreign property. See
the Oscar Chinn Case (1934) PCIJ Reports, Series A/B, No. 63 and the Anglo-Iranian
Oil Co Case (1952) ICJ Reports (Pleadings), p.93.
iii) Compensation
The original formulation for appropriate compensation was made by US Secretary of
State Hull on the occasion of Mexican expropriations, where the formula of 'prompt,
87
adequate and effective' was established. This was adopted in the 1962 Resolution on
Permanent Sovereignty over Natural Resources.
However, the 1974 Charter of Economic Rights and Duties of States declared that
compensation is a matter to be determined by national law.
11.3 Summary
If a state violates a rule of customary international law or ignores an obligation of a treaty
it has concluded, it comes under a breach of international law and thereby a so-called
‘international wrongful act’ and the consequence is to restore the previous situation or to
pay compensation.
There are special rules concerning the attribution of conduct of organs of international
organizations and of a foreign state acting on the territory of another state (see for
example, the ILC draft articles 12). When someone resides or acquires property in a
foreign country, he is deemed to accept the laws and customs of that country, his national
state cannot base a claim on the fact that he would have been better treated in his home
country. But majority of states have accepted that the national state claim if the foreign
country’s laws or behavior fall below the minimum international standard (as upheld by
US and other European Countries). However, Latin American states in opposition argued
that a state’s only duty is to treat foreigners the same way as it treats its own nationals
(‘national standard’). In general practice international minimum standard is applied even
in arbitrations between the two groups.
8.4 Relevant cases
Chorzow Factory Case (Indemnity) (Merits) (1928) PCIJ Reports, Series A, No. 17:
Detailed judgment on the legality of expropriation.
Barcelona Traction, Light and Power Co. Case (1970) ICJ Reports, p. 3: Nationality of
Corporations.
Nottebohm Case (1955) ICJ Reports, p. 4: Leading case on the issue of nationality of
individuals.
Texaco v Libya (1977) 53 ILR 389: Rules of reparation and commission of international
delicts.
Interhandel Case (1959) ICJ Reports, p. 6: Exhaustion of local remedies.
Eletronica Sicula SpA (ELSI) Case (United States v Italy) (1989) ICJ Reports, p.15:
88
Application of the exhaustion of domestic/local remedies rule.
------------------------------------------------------------------------------------------------------------
8.5 Key terms
1. international delicts
2. international torts
3. subjective responsibility
4. objective responsibility
5. jus sanguinis
6. jus sanguinis
------------------------------------------------------------------------------------------------------------
International Law Commission Draft Articles on State Responsibility (1979) 2 (II)
Yearbook of the International Law Commission, p. 90.
Brownlie, I. State Responsibility (1984)
Lillich, R. International Law of State Responsibility for Injuries to Aliens (1983).
Sornarajah, M. The Pursuit of Nationalized Property (1986)
Penrose, E. ‘Nationalization of Foreign-Owned Property for a Public Purpose’ (1992) 55
MLR 351
------------------------------------------------------------------------------------------------------------
8.7 Self-Assessment questions
1. What are the rules for exhausting of local remedies? What are the consequences of an
international wrongful act? What are the principles regarding waiver of claims by states?
89
CHARTER OF THE UNITED NATIONS
TABLE OF CONTENTS
Introductory Note
Preamble
Chapter I Purposes and Principles (Articles 1-2)
Chapter II Membership (Articles 3-6)
Chapter III Organs (Articles 7-8)
Chapter IV The General Assembly (Articles 9-22)
Chapter V The Security Council (Articles 23-32)
Chapter VI Pacific Settlement of Disputes (Articles 33-38)
Chapter VII Action with Respect to Threats to the Peace, Breaches of the Peace, and
Acts of aggression (Articles 39-51)
Chapter VIII Regional Arrangements (Articles 52-54)
Chapter IX International Economic and Social Cooperation (Articles 55-60)
Chapter X The Economic and Social Council (Articles 61-72)
Chapter XI Declaration Regarding Non-Self-Governing Territories (Articles 73-74)
Chapter XII International Trusteeship System (Articles 75-85)
Chapter XIII The Trusteeship Council (Articles 86-91)
Chapter XIV The International Court of Justice (Articles 92-96)
Chapter XV The Secretariat (Articles 97-101)
Chapter XVI Miscellaneous Provisions (Articles 102-105)
Chapter XVII Transitional Security Arrangements (Articles 106-107)
Chapter XVIII Amendments (Articles 108-109)
Chapter XIX Ratification and Signature (Articles 110-111)
INTRODUCTORY NOTE
The Charter of the United Nations was signed on 26 June 1945, in San Francisco,
at the conclusion of the United Nations Conference on International Organisation, and
came into force on 24 October 1945. The Statute of the International Court of Justice is
an integral part of the Charter.
Amendments to Articles 23, 27 and 61 of the Charter were adopted by the
General Assembly on 17 December 1963 and came into force on 31 August 1965. A
further amendment to Article 61 was adopted by the General Assembly on 20 December
1971, and came into force on 24 September1973.
90
An amendment to Article 109, adopted by the General Assembly on 20 December
1965, came into force on 12 June 1968. The amendment to Article 23 enlarges the
membership of the Security Council from eleven to fifteen.
The amended Article 27 provides that decisions of the Security Council on
procedural matters shall be made by an affirmative vote of nine members (formerly
seven) and on all other matters by an affirmative vote of nine members (formerly seven),
including the concurring votes of the five permanent members of the Security Council.
The amendment to Article 61, which entered into force on 31 August 1965,
enlarged the membership of the Economic and Social Council from eighteen to twenty-
seven. The subsequent amendment to that Article, which entered into force on 24
September 1973, further increased the membership of the Council from twenty-seven to
fifty-four.
The amendment to Article 109, which relates to the first paragraph of that Article,
provides that a General Conference of Member States for the purpose of reviewing the
Charter may be held at a date and place to be fixed by a two-thirds vote of the members
of the General Assembly and by a vote of any nine members (formerly seven) of the
Security Council. Paragraph 3 of Article 109, which deals with the consideration of a
possible review conference during the tenth regular session of the General Assembly, has
been retained in its original form in its reference to a “vote, of any seven members of the
Security Council”, the paragraph having been acted upon in 1955 by the General
Assembly, at its tenth regular session, and by the Security Council.
PREAMBLE TO THE CHARTER OF THE UNITED NATIONS

WE THE PEOPLES OF THE UNITED NATIONS DETERMINED
to save succeeding generations from the scourge of war, which twice in our lifetime has
brought untold sorrow to mankind, and
to reaffirm faith in fundamental human rights, in the dignity and worth of the human
person, in the equal rights of men and women and of nations large and small, and
to establish conditions under which justice and respect for the obligations arising from
treaties and other sources of international law can be maintained, and
to promote social progress and better standards of life in larger freedom,
91
AND FOR THESE ENDS
to practice tolerance and live together in peace with one another as good neighbours, and
to unite our strength to maintain international peace and security, and
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
to employ international machinery for the promotion of the economic and social
advancement of all peoples,
HAVE RESOLVED TO COMBINE OUR EFFORTS TO ACCOMPLISH THESE AIMS

Accordingly, our respective Governments, through representatives assembled in the city
of San Francisco, who have exhibited their full powers found to be in good and due form,
have agreed to the present Charter of the United Nations and do hereby establish an
international organisation to be known as the United Nations.
CHAPTER I
PURPOSES AND PRINCIPLES
Article 1
The Purposes of the United Nations are:
1. 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;
2. 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;
3. 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
4. To be a centre for harmonizing the actions of nations in the attainment of these
common ends.
92
Article 2
The Organisation and its Members, in pursuit of the Purposes stated in Article 1, shall act
in accordance with the following Principles.
1. The Organisation is based on the principle of the sovereign equality of all its Members.
2. All Members, in order to ensure to all of them the rights and benefits resulting from
membership, shall fulfill in good faith the obligations assumed by them in accordance
with the present Charter.
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.
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.
5. 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.
6. The Organisation shall ensure that states which are not Members of the United Nations
act in accordance with these Principles so far as may be necessary for the maintenance of
international peace and security.
7. 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 II
MEMBERSHIP
Article 3
The original Members of the United Nations shall be the states which, having participated
in the United Nations Conference on International Organisation 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.
93
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 judgment of the Organisation,
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 recommendation of the Security Council.
Article 5
A Member of the United Nations against which preventive or enforcement action has
been taken by the Security Council may be suspended from the exercise of the rights and
privileges of membership by the General Assembly upon the recommendation of the
Security Council. The exercise of these rights and privileges may be restored by the
Security Council.
Article 6
A Member of the United Nations which has persistently violated the Principles contained
in the present Charter may be expelled from the Organisation by the General Assembly
upon the recommendation of the Security Council.
CHAPTER III
ORGANS
Article 7
1. There are established as the principal organs of the United Nations: a General
Assembly, a Security Council, an Economic and Social Council, a Trusteeship Council,
an International Court of Justice, and a Secretariat.
2. Such subsidiary organs as may be found necessary may be established in accordance
with the present Charter.
Article 8
The United Nations shall place no restrictions on the eligibility of men and women to
participate
in any capacity and under conditions of equality in its principal and subsidiary organs.
94
CHAPTER IV
THE GENERAL ASSEMBLY COMPOSITION
Article 9
1. The General Assembly shall consist of all the Members of the United Nations.
2. Each Member shall have not more than five representatives in the General Assembly.
FUNCTIONS AND POWERS
Article 10
The General Assembly may discuss any questions or any matters within the scope of the
present Charter or relating to the powers and functions of any organs provided for in the
present Charter, and, except as provided in Article 12, may make recommendations to the
Members of the United Nations or to the Security Council or to both on any such
questions or matters.
Article 11
1. The General Assembly may consider the general principles of co-operation in the
maintenance of international peace and security, including the principles governing
disarmament and the regulation of armaments, and may make recommendations with
regard to such principles to the Members or to the Security Council or to both.
2. The General Assembly may discuss any questions relating to the maintenance of
international peace and security brought before it by any Member of the United Nations,
or by the Security Council, or by a state which is not a Member of the United Nations in
accordance with Article 35, paragraph 2, and, except as provided in Article 12, may make
recommendations with regard to any such questions to the state or states concerned or to
the Security Council or to both. Any such question on which action is necessary shall be
referred to the Security Council by the General Assembly either before or after
discussion.
3. The General Assembly may call the attention of the Security Council to situations
which are likely to endanger international peace and security.
4. The powers of the General Assembly set forth in this Article shall not limit the general
scope of Article 10.
Article 12
1. While the Security Council is exercising in respect of any dispute or situation the
functions assigned to it in the present Charter, the General Assembly shall not make any
recommendation with regard to that dispute or situation unless the Security Council so
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requests.
2. The Secretary-General, with the consent of the Security Council, shall notify the
General Assembly at each session of any matters relative to the maintenance of
international peace and security which are being dealt with by the Security Council and
shall similarly notify the General Assembly, or the Members of the United Nations if the
General Assembly is not in session, immediately the Security Council ceases to deal with
such matters.
Article 13
1. The General Assembly shall initiate studies and make recommendations for the
purpose of: a) promoting international co-operation in the political field and encouraging
the progressive development of international law and its codification; b) promoting
international co-operation in the economic, social, cultural, educational, and health fields,
and assisting in the realization of human rights and fundamental freedoms for all without
distinction as to race, sex, language, or religion.
2. The further responsibilities, functions and powers of the General Assembly with
respect to matters mentioned in paragraph 1 (b) above are set forth in Chapters IX and X.
Article 14
Subject to the provisions of Article 12, the General 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 relations among nations, including situations
resulting from a violation of the provisions of the present Charter setting forth the
Purposes and Principles of the United Nations.
Article 15
1. The General Assembly shall receive and consider annual and special reports from the
Security Council; these reports shall include an account of the measures that the Security
Council has decided upon or taken to maintain international peace and security.
2. The General Assembly shall receive and consider reports from the other organs of the
United Nations.
Article 16
The General Assembly shall perform such functions with respect to the international
trusteeship system as are assigned to it under Chapters XII and XIII, including the
approval of the trusteeship agreements for areas not designated as strategic.
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Article 17
1. The General Assembly shall consider and approve the budget of the Organisation.
2. The expenses of the Organisation shall be borne by the Members as apportioned by the
General Assembly.
3. The General Assembly shall consider and approve any financial and budgetary
arrangements with specialized agencies referred to in Article 57 and shall examine the
administrative budgets of such specialized agencies with a view to making
recommendations to the agencies concerned.
VOTING
Article 18
1. Each member of the General Assembly shall have one vote.
2. Decisions of the General Assembly on important questions shall be made by a two-
thirds majority of the members present and voting. These questions shall include:
recommendations with respect to the maintenance of international peace and security, the
election of the nonpermanent members of the Security Council, the election of the
members of the Economic and Social Council, the election of members of the Trusteeship
Council in accordance with paragraph 1 (c) of Article 86, the admission of new Members
to the United Nations, the suspension of the rights and privileges of membership, the
expulsion of Members, questions relating to the operation of the trusteeship system, and
budgetary questions.
3. Decisions on other questions, including the determination of additional categories of
questions to be decided by a two-thirds majority, shall be made by a majority of the
members present and voting.
Article 19
A Member of the United Nations which is in arrears in the payment of its financial
contributions to the Organisation shall have no vote in the General Assembly if the
amount of its arrears equals or exceeds the amount of the contributions due from it for the
preceding two full years. The General Assembly may, nevertheless, permit such a
Member to vote if it is satisfied that the failure to pay is due to conditions beyond the
control of the Member.
PROCEDURE
Article 20
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The General Assembly shall meet in regular annual sessions and in such special sessions
as occasion may require. Special sessions shall be convoked by the Secretary-General at
the request of the Security Council or of a majority of the Members of the United
Nations.
Article 21
The General Assembly shall adopt its own rules of procedure. It shall elect its President
for each session.
Article 22
The General Assembly may establish such subsidiary organs as it deems necessary for
the performance of its functions.
CHAPTER V
THE SECURITY COUNCIL
COMPOSITION
Article 23
1. The Security Council shall consist of fifteen Members of the United Nations. The
Republic of China, France, the Union of Soviet Socialist Republics, the United Kingdom
of Great Britain and Northern Ireland, and the United States of America shall be
permanent members of the Security Council. The General Assembly shall elect ten other
Members of the United Nations to be non-permanent members of the Security Council,
due regard being specially paid, in the first instance to the contribution of Members of the
United Nations to the maintenance of international peace and security and to the other
purposes of the Organisation, and also to equitable geographical distribution.
2. The non-permanent members of the Security Council shall be elected for a term of two
years. In the first election of the non-permanent members after the increase of the
membership of the Security Council from eleven to fifteen, two of the four additional
members shall be chosen for a term of one year. A retiring member shall not be eligible
for immediate re-election.
3. Each member of the Security Council shall have one representative.
Article 24
1. In order to ensure prompt and effective action by the United Nations, its Members
confer on the Security Council primary responsibility for the maintenance of international
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peace and security, and agree that in carrying out its duties under this responsibility the
Security Council acts on their behalf.
2. In discharging these duties the Security Council shall act in accordance with the
Purposes and Principles of the United Nations. The specific powers granted to the
Security Council for the discharge of these duties are laid down in Chapters VI, VII, VIII,
and XII.
3. The Security Council shall submit annual and, when necessary, special reports to the
General Assembly for its consideration.
Article 25
The Members of the United Nations agree to accept and carry out the decisions of the
Security Council in accordance with the present Charter.
Article 26
In order to promote the establishment and maintenance of international peace and
security with the least diversion for armaments of the world's human and economic
resources, the Security Council shall be responsible for formulating, with the assistance
of the Military Staff Committee referred to in Article 47, plans to be submitted to the
Members of the United Nations for the establishment of a system for the regulation of
armaments.
VOTING
Article 27
1. Each member of the Security Council shall have one vote.
2. Decisions of the Security Council on procedural matters shall be made by an
affirmative vote of nine members.
3. Decisions of the Security Council on all other matters shall be made by an affirmative
vote of nine members including the concurring votes of the permanent members;
provided that, in decisions under Chapter VI, and under paragraph 3 of Article 52, a party
to a dispute shall abstain from voting.
PROCEDURE
Article 28
1. The Security Council shall be so organized as to be able to function continuously. Each
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member of the Security Council shall for this purpose be represented at all times at the
seat of the Organisation.
2. The Security Council shall hold periodic meetings at which each of its members may,
if it so desires, be represented by a member of the government or by some other specially
designated representative.
3. The Security Council may hold meetings at such places other than the seat of the
Organisation as in its judgment will best facilitate its work.
Article 29
The Security Council may establish such subsidiary organs as it deems necessary for the
performance of its functions.
Article 30
The Security Council shall adopt its own rules of procedure, including the method of
selecting its President.
Article 31
Any Member of the United Nations which is not a member of the Security Council may
participate, without vote, in the discussion of any question brought before the Security
Council whenever the latter considers that the interests of that Member are specially
affected.
Article 32
Any Member of the United Nations which is not a member of the Security Council or any
state which is not a Member of the United Nations, if it is a party to a dispute under
consideration by the Security Council, shall be invited to participate, without vote, in the
discussion relating to the dispute. The Security Council shall lay down such conditions as
it deems just for the participation of a state which is not a Member of the United Nations.
CHAPTER VI
PACIFIC SETTLEMENT OF DISPUTES
Article 33
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1. 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.
2. 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 determine whether the
continuance of the dispute or situation is likely to endanger the maintenance of
Article 35
1. 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.
2. 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.
3. 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.
Article 36
1. 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.
2. The Security Council should take into consideration any procedures for the settlement
of the dispute which have already been adopted by the parties.
3. In making recommendations under this Article the Security Council should also take
into consideration 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.
Article 37
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1. 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.
2. 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.
CHAPTER VII
ACTION WITH RESPECT TO THREATS TO THE PEACE, BREACHES OF
THE PEACE AND ACTS OF AGGRESSION
Article 39
The Security Council shall determine the existence of any threat to the peace, breach of
the peace, or act of aggression and shall make recommendations, or decide what
measures shall be taken in accordance with Articles 41 and 42, to maintain or restore
Article 40
In order to prevent an aggravation of the situation, the Security Council may, before
making the recommendations or deciding upon the measures provided for in Article 39,
call upon the parties concerned to comply with such provisional measures as it deems
necessary or desirable. Such provisional measures shall be without prejudice to the rights,
claims, or position of the parties concerned. The Security Council shall duly take account
of failure to comply with such provisional measures.
Article 41
The Security Council may decide what measures not involving the use of armed force are
to be employed to give effect to its decisions, and it may call upon the Members of the
United Nations to apply such measures. These may include complete or partial
interruption of economic relations and of rail, sea, air, postal, telegraphic, radio, and other
means of communication, and the severance of diplomatic relations.
Article 42
Should the Security Council consider that measures provided for in Article 41 would be
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inadequate or have proved to be inadequate, it may take such action by air, sea, or land
forces as may be necessary to maintain or restore international peace and security. Such
action may include demonstrations, blockade, and other operations by air, sea, or land
forces of Members of the United Nations.
Article 43
1. All Members of the United Nations, in order to contribute to the maintenance of
international peace and security, undertake to make available to the Security Council, on
its call and in accordance with a special agreement or agreements, armed forces,
assistance, and facilities, including rights of passage, necessary for the purpose of
maintaining international peace and security.
2. Such agreement or agreements shall govern the numbers and types of forces, their
degree of readiness and general location, and the nature of the facilities and assistance to
be provided.
3. The agreement or agreements shall be negotiated as soon as possible on the initiative
of the Security Council. They shall be concluded between the Security Council and
Members or between the Security Council and groups of Members and shall be subject to
ratification by the signatory states in accordance with their respective constitutional
processes.
Article 44
When the Security Council has decided to use force it shall, before calling upon a
Member not represented on it to provide armed forces in fulfillment of the obligations
assumed under Article 43, invite that Member, if the Member so desires, to participate in
the decisions of the Security Council concerning the employment of contingents of that
Member’s armed forces.
Article 45
In order to enable the United Nations to take urgent military measures, Members shall
hold immediately available national air-force contingents for combined international
enforcement action. The strength and degree of readiness of these contingents and plans
for their combined action shall be determined within the limits laid down in the special
agreement or agreements referred to in Article 43, by the Security Council with the
assistance of the Military Staff Committee.
Article 46
Plans for the application of armed force shall be made by the Security Council with the
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assistance of the Military Staff Committee.
Article 47
1. There shall be established a Military Staff Committee to advise and assist the Security
Council on all questions relating to the Security Council’s military requirements for the
maintenance of international peace and security, the employment and command of forces
placed at its disposal, the regulation of armaments, and possible disarmament.
2. The Military Staff Committee shall consist of the Chiefs of Staff of the permanent
members of the Security Council or their representatives. Any Member of the United
Nations not permanently represented on the Committee shall be invited by the Committee
to be associated with it when the efficient discharge of the Committee’s responsibilities
requires the participation of that Member in its work.
3. The Military Staff Committee shall be responsible under the Security Council for the
strategic direction of any armed forces placed at the disposal of the Security Council.
Questions relating to the command of such forces shall be worked out subsequently.
4. The Military Staff Committee, with the authorization of the Security Council and after
consultation with appropriate regional agencies, may establish regional sub-committees.
Article 48
1. The action required to carry out the decisions of the Security Council for the
maintenance of international peace and security shall be taken by all the Members of the
United Nations or by
some of them, as the Security Council may determine.
2. Such decisions shall be carried out by the Members of the United Nations directly and
through their action in the appropriate international agencies of which they remembers.
Article 49
The Members of the United Nations shall join in affording mutual assistance in carrying
out the measures decided upon by the Security Council.
Article 50
If preventive or enforcement measures against any state are taken by the Security
Council, any other state, whether a Member of the United Nations or not, which finds
itself confronted with special economic problems arising from the carrying out of those
measures shall have the right to consult the Security Council with regard to a solution of
those problems.
Article 51
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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 present Charter to take at any time
such action as it deems necessary in order to maintain or restore international peace and
security.
CHAPTER VIII
REGIONAL ARRANGEMENTS
Article 52
1. Nothing in the present Charter precludes the existence of regional arrangements or
agencies for dealing with such matters relating to the maintenance of international peace
and security as are appropriate for regional action provided that such arrangements or
agencies and their activities are consistent with the Purposes and Principles of the United
Nations.
2. The Members of the United Nations entering into such arrangements or constituting
such agencies shall make every effort to achieve pacific settlement of local disputes
through such regional arrangements or by such regional agencies before referring them to
the Security Council.
3. The Security Council shall encourage the development of pacific settlement of local
disputes through such regional arrangements or by such regional agencies either on the
initiative of the states concerned or by reference from the Security Council.
4. This Article in no way impairs the application of Articles 34 and 35.
Article 53
1. The Security Council shall, where appropriate, utilize such regional arrangements or
agencies for enforcement action under its authority. But no enforcement action shall be
taken under regional arrangements or by regional agencies without the authorization of
the Security Council, with the exception of measures against any enemy state, as defined
in paragraph 2 of this Article, provided for pursuant to Article 107 or in regional
arrangements directed against renewal of aggressive policy on the part of any such state,
until such time as the Organisation may, on request of the Governments concerned, be
charged with the responsibility for preventing further aggression by such a state.
105
2. The term enemy state as used in paragraph 1 of this Article applies to any state which
during the Second World War has been an enemy of any signatory of the present Charter.
Article 54
The Security Council shall at all times be kept fully informed of activities undertaken or
in contemplation under regional arrangements or by regional agencies for the
maintenance of international peace and security.
CHAPTER IX
INTERNATIONAL ECONOMIC AND SOCIAL CO-OPERATION
Article 55
With a view to the creation of conditions of stability and well-being which are necessary
for peaceful and friendly relations among nations based on respect for the principle of
equal rights and self-determination of peoples, the United Nations shall promote:
a) higher standards of living, full employment, and conditions of economic and social
progress and development;
b) solutions of international economic, social, health, and related problems; and
international cultural and educational co-operation; and
c) universal respect for, and observance of, human rights and fundamental freedoms for
all without distinction as to race, sex, language, or religion.
Article 56
All Members pledge themselves to take joint and separate action in co-operation with the
Organisation for the achievement of the purposes set forth in Article 55.
Article 57
1. The various specialized agencies, established by intergovernmental agreement and
having wide international responsibilities, as defined in their basic instruments, in
economic, social, cultural, educational, health, and related fields, shall be brought into
relationship with the United Nations in accordance with the provisions of Article 63.
2. Such agencies thus brought into relationship with the United Nations are hereinafter
referred to as specialized agencies.
Article 58
The Organisation shall make recommendations for the co-ordination of the policies and
activities of the specialized agencies.
Article 59
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The Organisation shall, where appropriate, initiate negotiations among the states
concerned for the creation of any new specialized agencies required for the
accomplishment of the purposes set forth in Article 55.
Article 60
Responsibility for the discharge of the functions of the Organisation set forth in this
Chapter shall be vested in the General Assembly and, under the authority of the General
Assembly, in the Economic and Social Council, which shall have for this purpose the
powers set forth in Chapter X.
CHAPTER X
THE ECONOMIC AND SOCIAL COUNCIL
COMPOSITION
Article 61
1. The Economic and Social Council shall consist of fifty-four Members of the United
Nations elected by the General Assembly.
2. Subject to the provisions of paragraph 3, eighteen members of the Economic and
Social Council shall be elected each year for a term of three years. A retiring member
shall be eligible for immediate re-election.
3. At the first election after the increase in the membership of the Economic and Social
Council from twenty-seven to fifty-four members, in addition to the members elected in
place of the nine members whose term of office expires at the end of that year, twenty-
seven additional members shall be elected. Of these twenty-seven additional members,
the term of office of nine members so elected shall expire at the end of one year, and of
nine other members at the end of two years, in accordance with arrangements made by
the General Assembly.
4. Each member of the Economic and Social Council shall have one representative.

Article 62
1. The Economic and Social Council may make or initiate studies and reports with
respect to international economic, social, cultural, educational, health, and related matters
107
and may make recommendations with respect to any such matters to the General
Assembly to the Members of the United Nations, and to the specialized agencies
concerned.
2. It may make recommendations for the purpose of promoting respect for, and
observance of, human rights and fundamental freedoms for all.
3. It may prepare draft conventions for submission to the General Assembly, with respect
to matters falling within its competence.
4. It may call, in accordance with the rules prescribed by the United Nations,
international conferences on matters falling within its competence.
Article 63
1. The Economic and Social Council may enter into agreements with any of the agencies
referred to in Article 57, defining the terms on which the agency concerned shall be
brought into relationship with the United Nations. Such agreements shall be subject to
approval by the General Assembly.
2. It may co-ordinate the activities of the specialized agencies through consultation with
and recommendations to such agencies and through recommendations to the General
Assembly and to the Members of the United Nations.
Article 64
1. The Economic and Social Council may take appropriate steps to obtain regular reports
from the specialized agencies. It may make arrangements with the Members of the United
Nations and with the specialized agencies to obtain reports on the steps taken to give
effect to its own recommendations and to recommendations on matters falling within its
competence made by the General Assembly.
2. It may communicate its observations on these reports to the General Assembly.
Article 65
The Economic and Social Council may furnish information to the Security Council and
shall assist the Security Council upon its request.
Article 66
1. The Economic and Social Council shall perform such functions as fall within its
competence in connection with the carrying out of the recommendations of the General
Assembly.
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2. It may, with the approval of the General Assembly, perform services at the request of
Members of the United Nations and at the request of specialized agencies.
3. It shall perform such other functions as are specified elsewhere in the present Charter
or as may be assigned to it by the General Assembly.
VOTING
Article 67
1. Each member of the Economic and Social Council shall have one vote.
2. Decisions of the Economic and Social Council shall be made by a majority of the
members present and voting.
PROCEDURE
Article 68
The Economic and Social Council shall set up commissions in economic and social fields
and for the promotion of human rights, and such other commissions as may be required
for the performance of its functions.
Article 69
The Economic and Social Council shall invite any Member of the United Nations to
participate, without vote, in its deliberations on any matter of particular concern to that
Member.
Article 70
The Economic and Social Council may make arrangements for representatives of the
specialized agencies to participate, without vote, in its deliberations and in those of the
commissions established by it, and for its representatives to participate in the
deliberations of the specialized agencies.
Article 71
The Economic and Social Council may make suitable arrangements for consultation with
nongovernmental organisations which are concerned with matters within its competence.
Such arrangements may be made with international organisations and, where appropriate,
with national organisations after consultation with the Member of the United Nations
concerned.
Article 72
1. The Economic and Social Council shall adopt its own rules of procedure, including the
method of selecting its President.
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2. The Economic and Social Council shall meet as required in accordance with its rules,
which shall include provision for the convening of meetings on the request of a majority
of its members.
CHAPTER XI
DECLARATION REGARDING NON-SELF-GOVERNING TERRITORIES
Article 73
Members of the United Nations which have or assume responsibilities for the
administration of territories whose peoples have not yet attained a full measure of self-
government recognize the principle that the interests of the inhabitants of these territories
are paramount, and accept as a sacred trust the obligation to promote to the utmost,
within the system of international peace and security established by the present Charter,
the well-being of the inhabitants of these territories, and, to this end:
a) to ensure, with due respect for the culture of the peoples concerned, their political,
economic, social, and educational advancement, their just treatment, and their protection
against abuses;
b) to develop self-government, to take due account of the political aspirations of the
peoples, and to assist them in the progressive development of their free political
institutions, according to the particular circumstances of each territory and its peoples and
their varying stages of advancement;
c) to further international peace and security; to promote constructive measures of
development, to encourage research, and to cooperate with one another and, when and
where appropriate, with specialized international bodies with a view to the practical
achievement of the social, economic, and scientific purposes set forth in this Article; and
to transmit regularly to the Secretary-General for information purposes, subject to such
limitation as security and constitutional considerations may require, statistical and other
information of a technical nature relating to economic, social, and educational conditions
in the territories for which they are respectively responsible other than those territories to
which Chapters XII and XIII apply.
Article 74
Members of the United Nations also agree that their policy in respect of the territories to
which this Chapter applies, no less than in respect of their metropolitan areas, must be
110
based on the general principle of good-neighbourliness, due account being taken of the
interests and well-being of the rest of the world, in social, economic, and commercial
matters.
CHAPTER XII
INTERNATIONAL TRUSTEESHIP SYSTEM
Article 75
The United Nations shall establish under its authority an international trusteeship system
for the administration and supervision of such territories as may be placed thereunder by
subsequent individual agreements. These territories are hereinafter referred to as trust
territories.
Article 76
The basic objectives of the trusteeship system, in accordance with the Purposes of the
United Nations laid down in Article 1 of the present Charter, shall be:
a) to further international peace and security;
b) to promote the political, economic, social, and educational advancement of the
inhabitants of the trust territories, and their progressive development towards
selfgovernment or independence as may be appropriate to the particular circumstances of
each territory and its peoples and the freely expressed wishes of the peoples concerned,
and as may be provided by the terms of each trusteeship agreement;
c) to encourage respect for human rights and for fundamental freedoms for all without
distinction as to race, sex, language, or religion, and to encourage recognition of the
interdependence of the peoples of the world; and
d) to ensure equal treatment in social, economic, and commercial matters for all Members
of the United Nations and their nationals, and also equal treatment for the latter in the
administration of justice, without prejudice to the attainment of the foregoing objectives
and subject to the provisions of Article 80.
Article 77
1. The trusteeship system shall apply to such territories in the following categories as
may be placed there under by means of trusteeship agreements:
a) territories now held under mandate;
b) territories which may be detached from enemy states as a result of the Second World
War; and
c) territories voluntarily placed under the system by states responsible for their
111
administration.
2. It will be a matter for subsequent agreement as to which territories in the foregoing
categories will be brought under the trusteeship system and upon what terms.
Article 78
The trusteeship system shall not apply to territories which have become Members of the
United Nations, relationship among which shall be based on respect for the principle of
sovereign equality.
Article 79
The terms of trusteeship for each territory to be placed under the trusteeship system,
including any alteration or amendment, shall be agreed upon by the states directly
concerned, including the mandatory power in the case of territories held under mandate
by a Member of the United Nations, and shall be approved as provided for in Articles 83
and 85.
Article 80
1. Except as may be agreed upon in individual trusteeship agreements, made under
Articles 77, 79, and 81, placing each territory under the trusteeship system, and until such
agreements have been concluded, nothing in this Chapter shall be construed in or of itself
to alter in any manner the rights whatsoever of any states or any peoples or the terms of
existing international instruments to which Members of the United Nations may
respectively be parties.
2. Paragraph 1 of this Article shall not be interpreted as giving grounds for delay or
postponement of the negotiation and conclusion of agreements for placing mandated and
other territories under the trusteeship system as provided for in Article 77.
Article 81
The trusteeship agreement shall in each case include the terms under which the trust
territory will be administered and designate the authority which will exercise the
administration of the trust territory. Such authority, hereinafter called the administering
authority, may be one or more states or the Organisation itself.
Article 82
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There may be designated, in any trusteeship agreement, a strategic area or areas which
may include part or all of the trust territory to which the agreement applies, without
prejudice to any special agreement or agreements made under Article 43.
Article 83
1. All functions of the United Nations relating to strategic areas, including the approval of
the terms of the trusteeship agreements and of their alteration or amendment shall be
exercised by the Security Council.
2. The basic objectives set forth in Article 76 shall be applicable to the people of each
strategic area.
3. The Security Council shall, subject to the provisions of the trusteeship agreements and
without prejudice to security considerations, avail itself of the assistance of the
Trusteeship Council to perform those functions of the United Nations under the
trusteeship system relating to political, economic, social, and educational matters in the
strategic areas.
Article 84
It shall be the duty of the administering authority to ensure that the trust territory shall
play its part in the maintenance of international peace and security. To this end the
administering authority may make use of volunteer forces, facilities, and assistance from
the trust territory in carrying out the obligations towards the Security Council undertaken
in this regard by the administering authority, as well as for local defence and the
maintenance of law and order within the trust territory.
Article 85
1. The functions of the United Nations with regard to trusteeship agreements for all areas
not designated as strategic, including the approval of the terms of the trusteeship
agreements and of their alteration or amendment, shall be exercised by the General
Assembly.
2. The Trusteeship Council, operating under the authority of the General Assembly shall
assist the General Assembly in carrying out these functions.
CHAPTER XIII
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THE TRUSTEESHIP COUNCIL
COMPOSITION
Article 86
1. The Trusteeship Council shall consist of the following Members of the United Nations:
a) those Members administering trust territories;
b) such of those Members mentioned by name in Article 23 as are not administering trust
territories; and
c) as many other Members elected for three-year terms by the General Assembly as may
be necessary to ensure that the total number of members of the Trusteeship Council is
equally divided between those Members of the United Nations which administer trust
territories and those which do not.
2. Each member of the Trusteeship Council shall designate one specially qualified person
to represent it therein.
Article 87
The General Assembly and, under its authority, the Trusteeship Council, in carrying out
their functions, may:
a) consider reports submitted by the administering authority;
b) accept petitions and examine them in consultation with the administering authority;
c) provide for periodic visits to the respective trust territories at times agreed upon with
the administering authority; and
d) take these and other actions in conformity with the terms of the trusteeship
agreements.
Article 88
The Trusteeship Council shall formulate a questionnaire on the political, economic,
social, and educational advancement of the inhabitants of each trust territory, and the
administering authority for each trust territory within the competence of the General
Assembly shall make an annual report to the General Assembly upon the basis of such
questionnaire.
VOTING
Article 89
1. Each member of the Trusteeship Council shall have one vote.
114
2. Decisions of the Trusteeship Council shall be made by a majority of the members
present and voting.
PROCEDURE
Article 90
1. The Trusteeship Council shall adopt its own rules of procedure, including the method
of selecting its President.
2. The Trusteeship Council shall meet as required in accordance with its rules, which
shall include provision for the convening of meetings on the request of a majority of its
members.
Article 91
The Trusteeship Council shall, when appropriate, avail itself of the assistance of the
Economic and Social Council and of the specialized agencies in regard to matters with
which they are respectively concerned.
CHAPTER XIV
THE INTERNATIONAL COURT OF JUSTICE
Article 92
The International Court of Justice shall be the principal judicial organ of the United
Nations. It shall function in accordance with the annexed Statute, which is based upon the
Statute of the Permanent Court of International Justice and forms an integral part of the
present Charter.
Article 93
1. All Members of the United Nations are ipso facto parties to the Statute of the
International Court of Justice.
2. A state which is not a Member of the United Nations may become a party to the
Statute of the International Court of Justice on conditions to be determined in each case
by the General Assembly upon the recommendation of the Security Council.
Article 94
1. Each Member of the United Nations undertakes to comply with the decision of the
International Court of Justice in any case to which it is a party.
2. If any party to a case fails to perform the obligations incumbent upon it under a
judgment rendered by the Court, the other party may have recourse to the Security
115
Council, which may, if it deems necessary, make recommendations or decide upon
measures to be taken to give effect to the judgment.
Article 95
Nothing in the present Charter shall prevent Members of the United Nations from
entrusting the solution of their differences to other tribunals by virtue of agreements
already in existence or which may be concluded in the future.
Article 96
1. The General Assembly or the Security Council may request the International Court of
Justice to give an advisory opinion on any legal question.
2. Other organs of the United Nations and specialized agencies, which may at any time be
so authorized by the General Assembly, may also request advisory opinions of the Court
on legal questions arising within the scope of their activities.
CHAPTER XV
THE SECRETARIAT
Article 97
The Secretariat shall comprise a Secretary-General and such staff as the Organisation
may require. The Secretary-General shall be appointed by the General Assembly upon
the recommendation of the Security Council. He shall be the chief administrative officer
of the Organisation.
Article 98
The Secretary-General shall act in that capacity in all meetings of the General Assembly,
of the Security Council, of the Economic and Social Council, and of the Trusteeship
Council, and shall perform such other functions as are entrusted to him by these organs.
The Secretary-General shall make an annual report to the General Assembly on the work
of the Organisation.
Article 99
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.
Article 100
1. In the performance of their duties the Secretary-General and the staff shall not seek or
receive instructions from any government or from any other authority external to the
Organisation. They shall refrain from any action which might reflect on their position as
international officials responsible only to the Organisation.
116
2. Each Member of the United Nations undertakes to respect the exclusively international
character of the responsibilities of the Secretary-General and the staff and not to seek to
influence them in the discharge of their responsibilities.
Article 101
1. The staff shall be appointed by the Secretary-General under regulations established by
the General Assembly.
2. Appropriate staffs shall be permanently assigned to the Economic and Social Council,
the Trusteeship Council, and, as required, to other organs of the United Nations. These
staffs shall form a part of the Secretariat.
3. The paramount consideration in the employment of the staff and in the determination
of the conditions of service shall be the necessity of securing the highest standards of
efficiency, competence, and integrity. Due regard shall be paid to the importance of
recruiting the staff on as wide a geographical basis as possible.
CHAPTER XVI
MISCELLANEOUS PROVISIONS
Article 102
1. Every treaty and every international agreement entered into by any Member of the
United Nations after the present Charter comes into force shall as soon as possible be
registered with the Secretariat and published by it.
2. No party to any such treaty or international agreement which has not been registered in
accordance with the provisions of paragraph 1 of this Article may invoke that treaty or
agreement before any organ of the United Nations.
Article 103
In the event of a conflict between the obligations of the Members of the United Nations
under the present Charter and their obligations under any other international agreement,
their obligations under the present Charter shall prevail.
Article 104
The Organisation shall enjoy in the territory of each of its Members such legal capacity
as may be necessary for the exercise of its functions and the fulfilment of its purposes.
Article 105
1. The Organisation shall enjoy in the territory of each of its Members such privileges
and immunities as are necessary for the fulfillment of its purposes.
117
2. Representatives of the Members of the United Nations and officials of the Organisation
shall similarly enjoy such privileges and immunities as are necessary for the independent
exercise of their functions in connection with the Organisation.
3. The General Assembly may make recommendations with a view to determining the
details of the application of paragraphs 1 and 2 of this Article or may propose
conventions to the Members of the United Nations for this purpose.
CHAPTER XVII
TRANSITIONAL SECURITY ARRANGEMENTS
Article 106
Pending the coming into force of such special agreements referred to in Article 43 as in
the opinion of the Security Council enable it to begin the exercise of its responsibilities
under Article 42, the parties to the Four-Nation Declaration, signed at Moscow, 30
October 1943, and France, shall, in
accordance with the provisions of paragraph 5 of that Declaration, consult with one
another and as occasion requires with other Members of the United Nations with a view
to such joint action on behalf of the Organisation as may be necessary for the purpose of
maintaining international peace and security.
Article 107
Nothing in the present Charter shall invalidate or preclude action, in relation to any state
which during the Second World War has been an enemy of any signatory to the present
Charter, taken or authorized as a result of that war by the Governments having
responsibility for such action.
CHAPTER XVIII
AMENDMENTS
Article 108
Amendments to the present Charter shall come into force for all Members of the United
Nations when they have been adopted by a vote of two thirds of the members of the
General Assembly and ratified in accordance with their respective constitutional
processes by two thirds of the Members of the United Nations, including all the
permanent members of the Security Council.
118
Article 109
1. A General Conference of the Members of the United Nations for the purpose of
reviewing the present Charter may be held at a date and place to be fixed by a two-thirds
vote of the members of the General Assembly and by a vote of any nine members of the
Security Council. Each Member of the United Nations shall have one vote in the
conference.
2. Any alteration of the present Charter recommended by a two-thirds vote of the
conference shall take effect when ratified in accordance with their respective
constitutional processes by two thirds of the Members of the United Nations including all
the permanent members of the Security Council.
3. If such a conference has not been held before the tenth annual session of the General
Assembly following the coming into force of the present Charter, the proposal to call
such a conference shall be placed on the agenda of that session of the General Assembly,
and the conference shall be held if so decided by a majority vote of the members of the
General Assembly and by a vote of any seven members of the Security Council.
CHAPTER XIX
RATIFICATION AND SIGNATURE
Article 110
1. The present Charter shall be ratified by the signatory states in accordance with their
respective constitutional processes.
2. The ratifications shall be deposited with the Government of the United States of
America, which shall notify all the signatory states of each deposit as well as the
Secretary-General of the Organisation when he has been appointed.
3. The present Charter shall come into force upon the deposit of ratifications by the
Republic of China, France, the Union of Soviet Socialist Republics, the United Kingdom
of Great Britain and Northern Ireland. and the United States of America, and by a
majority of the other signatory states. A protocol of the ratifications deposited shall
thereupon be drawn up by the Government of the United States of America which shall
communicate copies thereof to all the signatory states.
4. The states signatory to the present Charter which ratify it after it has come into force
will become original Members of the United Nations on the date of the deposit of their
respective ratifications.
119
Article 111
The present Charter, of which the Chinese, French, Russian, English, and Spanish texts
are equally authentic, shall remain deposited in the archives of the Government of the
United States of America. Duly certified copies thereof shall be transmitted by that
Government to the Governments of the other signatory states.
IN FAITH WHEREOF the representatives of the Governments of the United Nations have
signed the present Charter. DONE at the city of San Francisco the twenty-sixth day of
June, one thousand nine hundred and forty-five.
120

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KWAME NKRUMAH UNIVERSITY OF SCIENCE

AND TECHNOLOGY, KUMASI

PUBLIC INTERNATIONAL LAW

Tutorial questions and Suggested Frameworks

i. Course Author / Instructor

He serves in the academic community of KNUST in several capacities as Member of Academic

ii. General Information

iii Aims and Learning Objectives

iv Teaching and Learning Methods

v Student Workload and Assessment

Assessment is in two-folds: A continuous assessment and a written examination. The

In answering questions, relevance is almost invariably related to authority. The more

(b) Supplementary Texts

(c) Cases and Materials

(a) Electronic Resources

Established as an Modern international law

Fig: The International Legal System, by Oswald K. Seneadza

1.2 Key Points

In John Austin’s “The province of Jurisprudence Determined (1974)”, he argued that:

(c) The efficacy of the institutional organ of modern international law

In Henkins’s opinion in his book “How Nations Behave” (1979):

The International Court is also authorized to decide a case ex aequo et bono,

(C) The individual sources of international law

iii) General Principles of law

vi Resolutions of the General Assembly

3.2 Key Points

3.4 Relevant Cases

3.5 Relevant Materials

3.6 Key Terms

3.7 Self – Assessment Question

3.2 Key Points

(C) International law before National Court

The English Courts

ii) The Use of United Nation Resolutions by English Courts

iii) The Use of Customary International law by English Courts

(D) The Reception of International Law in other States

iii) The Netherlands

3.7 Self-Assessment Questions

4.1 Introduction of Topic

4.2 Key points

(B) Right and Duties of States as subject of International law

(C) Non- State entities

(D) Controversial candidates for international personality

(E) The Personality of international organizations

In addition, regional international organization may be capable of exercising limited

(F) The Personality of International Organization in Municipal Law

4.5 Relevant Materials

4.7 Self-Assessment Questions

5.2 Key Points

Recognition may be employed as a political device and used to express approbation

(C) Constitutive and declaratory theories of recognition

(D) Criteria for the recognition of States

These criteria are generally acknowledged to express principles of customary

(E) Recognition of Governments

ii) United States practice

(F) Effect of non- recognition in international law

‘Non-recognition…cannot outweigh… the de facto character of Tinoco’s

(G) Recognition in UK law and the role of the courts

i) whether the plaintiffs were the constitutional government of the state;