La3013 231029 143628

Public international
law
Wade Mansell
This module guide was prepared for the University of London by:
u Wade Mansell, BA, LLB, LLM (Victoria University of Wellington), Emeritus Professor,
Kent Law School, University of Kent.
This is one of a series of module guides published by the University. We regret that
owing to pressure of work the author is unable to enter into any correspondence
relating to, or arising from, the guide.
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Public international law page i
Contents
Module descriptor . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . v
1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
1.1 The aims and objectives of the module . . . . . . . . . . . . . . . . . . . . 3
1.2 Studying international law . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
1.3 Outline structure of this module guide . . . . . . . . . . . . . . . . . . . . . 5
1.4 A suggested approach to study . . . . . . . . . . . . . . . . . . . . . . . . 7
1.5 The examination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
1.6 Useful websites . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
2 The distinctive nature of international law . . . . . . . . . . . . . . . 15

Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
2.1 What is international law? . . . . . . . . . . . . . . . . . . . . . . . . . . 17
2.2 The differences between international law and domestic law . . . . . . . . 18
2.3 The changing nature of international law . . . . . . . . . . . . . . . . . . 19
2.4 International law and common sense . . . . . . . . . . . . . . . . . . . . 24
2.5 Why should international law be defined as law? . . . . . . . . . . . . . . 26
3 The sources and method of international law . . . . . . . . . . . . . . 31

Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
3.1 Article 38 of the Statute of the International Court of Justice . . . . . . . . . 33
3.2 International treaties . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
3.3 Treaties and jus cogens . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
3.4 Treaties and reservations . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
3.5 Customary international law . . . . . . . . . . . . . . . . . . . . . . . . . 37
3.6 Other sources of international law . . . . . . . . . . . . . . . . . . . . . . 39
3.7 ‘Soft’ law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
4 The dynamic quality of international law . . . . . . . . . . . . . . . . 43

Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
4.1 The concept of sovereignty . . . . . . . . . . . . . . . . . . . . . . . . . 45
4.2 Legal personality in international law . . . . . . . . . . . . . . . . . . . . 47
4.3 The place of the individual in international law . . . . . . . . . . . . . . . 49
4.4 The interrelationship between sovereignty, personality and the individual in
international law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
5 Jurisdiction in international law . . . . . . . . . . . . . . . . . . . . . 57

Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
5.1 Jurisdiction to prescribe and jurisdiction to enforce . . . . . . . . . . . . . 59
5.2 Uncontroversial bases for international jurisdiction . . . . . . . . . . . . . 60
5.3 Controversial bases for international jurisdiction . . . . . . . . . . . . . . 62
5.4 Immunity from jurisdiction . . . . . . . . . . . . . . . . . . . . . . . . . 68
6 The law of treaties . . . . . . . . . . . . . . . . . . . . . . . . . . . . 77

Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 78
6.1 The formation and formalities of treaties . . . . . . . . . . . . . . . . . . 79
6.2 Treaties and reservations . . . . . . . . . . . . . . . . . . . . . . . . . . 81
6.3 The validity of treaties . . . . . . . . . . . . . . . . . . . . . . . . . . . . 83
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6.4 The interpretation of treaties . . . . . . . . . . . . . . . . . . . . . . . . 85
6.5 The amendment and termination of treaties . . . . . . . . . . . . . . . . 86
6.6 Case concerning the Gabcikovo-Nagymaros Project (Hungary/Slovakia) 1997 . . 88
7 Self-determination and territory in international law . . . . . . . . . . 95

Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 96
7.1 The concept of self-determination in international law before the creation of
the United Nations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 97
7.2 The United Nations Charter, self-determination and decolonisation . . . . 101
7.3 Self-determination after the Cold War . . . . . . . . . . . . . . . . . . . 108
7.4 States, territory and recognition . . . . . . . . . . . . . . . . . . . . . . 112
7.5 Territorial and other rights over the sea and its bed . . . . . . . . . . . . 115
8 The peaceful settlement of disputes in international law . . . . . . . 119

Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 120
8.1 Legal method and international dispute resolution . . . . . . . . . . . . 121
8.2 The limited use historically made of the ICJ . . . . . . . . . . . . . . . . 124
8.3 The contentious jurisdiction of the ICJ exemplified by Nicaragua v USA . . . 126
8.4 The advisory jurisdiction of the ICJ . . . . . . . . . . . . . . . . . . . . . 130
8.5 International arbitration . . . . . . . . . . . . . . . . . . . . . . . . . . 134
9 Use of force in international law . . . . . . . . . . . . . . . . . . . . 139

Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 140
9.1 The use of force in international law before the creation of the
United Nations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 141
9.2 The Charter of the United Nations . . . . . . . . . . . . . . . . . . . . . 144
9.3 Chapter VII of the UN Charter . . . . . . . . . . . . . . . . . . . . . . . . 147
9.4 Self-defence in international law . . . . . . . . . . . . . . . . . . . . . . 149
9.5 Self-defence and terrorism in international law . . . . . . . . . . . . . . 155
9.6 From humanitarian intervention to responsibility to protect . . . . . . . 157
9.7 Rules constraining the sort of force permissible . . . . . . . . . . . . . . 163
10 Human rights in international law . . . . . . . . . . . . . . . . . . . 169

Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 170
10.1 What are human rights? . . . . . . . . . . . . . . . . . . . . . . . . . . 171
10.2 The politics of human rights . . . . . . . . . . . . . . . . . . . . . . . . 173
10.3 The International Bill of Human Rights . . . . . . . . . . . . . . . . . . . 179
10.4 Principal international human rights treaties . . . . . . . . . . . . . . . . 183
10.5 Regional protection of human rights . . . . . . . . . . . . . . . . . . . . 186
10.6 The International Criminal Court . . . . . . . . . . . . . . . . . . . . . . 192
11 International law in the 2020s . . . . . . . . . . . . . . . . . . . . . 197

Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 198
11.1 Is international law a source of disappointment? . . . . . . . . . . . . . . 199
11.2 The paradox of sovereign equality . . . . . . . . . . . . . . . . . . . . . 200
11.3 The USA and international law . . . . . . . . . . . . . . . . . . . . . . . 202
11.4 The case of Israel and international law . . . . . . . . . . . . . . . . . . 208
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Feedback to activities . . . . . . . . . . . . . . . . . . . . . . . . . . . 215

Chapter 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 217
Chapter 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 217
Chapter 4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 218
Chapter 5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 219
Chapter 6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 220
Chapter 7 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 221
Chapter 8 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 223
Chapter 9 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 223
Chapter 10 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 225
Chapter 11 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 226
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Notes
Public international law page v
Module descriptor
GENERAL INFORMATION
Module title
Public international law
Module code
LA3013
Module level
6
Enquiries
The Undergraduate Laws Programme courses are run in collaboration with the
University of London. Enquiries may be made via the Student Advice Centre at: https://
sid.london.ac.uk
Credit
30
Courses on which this module is offered

LLB, EMFSS
Module prerequisite
None
Notional study time

300 hours
MODULE PURPOSE AND OVERVIEW

Public international law is offered as an optional module to students studying on
the Standard Entry and Graduate Entry LLB courses. It is also offered as an Individual
module. Credits from an Individual module will not count towards the requirements
of the LLB.
Public international law primarily concerns legal relations between states but it is
also concerned with the role of the UN and other international organisations and
their legal relations and, in the fields of human rights and international criminal law, is
concerned with the rights and duties of individuals.
MODULE AIM
This module will: (a) provide a basic but substantial understanding of the rules and
procedure of international law; (b) provide a critique of the relationship between
political power and international law; (c) provide an understanding of the possibilities
and limitations of international law in dispute avoidance and resolution; and (d)
consider the application of the above to contemporary international problems.
LEARNING OUTCOMES: KNOWLEDGE

Students completing this module are expected to have knowledge and understanding
of the main concepts and principles of public international law. In particular, they
should be able to demonstrate:
1. An appreciation of the significant differences and similarities of international law

and domestic law;
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2. An understanding of the methodology and procedures of international law and the

possibilities it provides for international dispute resolution;
3. An awareness of how and why it is that political realities often constrain the
application of international law and marginalise it where it might have been
thought to be at its clearest and most significant.
LEARNING OUTCOMES: SKILLS

In addition to the skills developed at Level 4, students are expected to be able to
demonstrate an ability to:
4. Apply their knowledge to analyse complex legal questions and problems;
5. Critique a range of legal materials and arguments;
6. Conduct complex research exercises and use research evidence appropriately to

support arguments.
BENCHMARK FOR LEARNING OUTCOMES

Quality Assurance Agency (QAA) benchmark statement for Law 2019.
MODULE SYLLABUS
(a) The nature and significance of public international law
Here the intention is to define and understand what international law is, how it
differs from domestic legal systems and the significance of these differences.
(b) The sources of public international law
While the emphasis here will be on treaties and customary international law, the
Statute of the International Court of Justice will also be alluded to.
(c) International law and municipal law
An understanding will be provided of the place and effect of international law in

domestic legal systems and how these differ between states.
(d) International personality. States, international organisations and others
Much of international law is concerned with standing in international law. Whereas

states are full participants, it needs to be understood that other bodies have
standing only for some purposes and in some tribunals.
(e) Legal criteria of statehood
Although this might, to a lay person, seem unproblematic, consideration of

the status of such entities as Palestine, South Ossetia, Taiwan and even Kosovo
exemplifies the complexity (and significance) of this section.
(f) Principles of state jurisdiction, together with immunities
The consideration here is of the legitimate powers of a state (and the limitations
upon them) acting both within its own borders and extraterritorially. Immunity
from jurisdiction is a significant limitation on these powers.
(g) Human rights and international criminal law
The rise of the status of individuals in international law has been paralleled by the
rise of international human rights obligations and responsibility for human rights
abuses.
(h) Settlement of international disputes both peacefully and with the lawful use of force
Chapters VI and VII of the United Nations Charter will be the focus of this topic.
(i) The law of treaties
Here we will develop Topic (b) with an understanding of the Vienna Convention on
the Law of Treaties, 1969, considering in particular the formation and termination
of treaties and the rules for their interpretation.
Public international law page vii
(j) Law of the sea
The central focus here is on the UN Convention on the Law of the Sea, 1982 and on
the property regime there recognised.
LEARNING AND TEACHING
Module guide
Module guides are the students’ primary learning resource. The module guide covers
the syllabus and provides the student with the grounding to complete the module
successfully. The module descriptor contained in the guide sets out the learning
outcomes that must be achieved. The guide also includes the core, essential and
further reading and a series of activities together with sample examination questions,
designed to enable students to test their understanding. The module guide is
supplemented each year with the pre-exam update, made available on the VLE.
The Laws Virtual Learning Environment

The Laws VLE provides one centralised location where the following resources are
provided:
u a module page with news and updates;
u a complete version of the module guide;
u pre-exam updates;
u past examination papers and reports;
u discussion forums where students can debate and interact with other students.
The Online Library

The Online Library provides access to:
u the professional legal databases LexisLibrary and Westlaw;
u cases and up-to-date statutes;
u key academic law journals;
u law reports;
u links to important websites.
Core texts
Students should refer to the following core texts. Specific reading references are
provided for these texts in each chapter of the module guide. The first textbook,
which grew out of this guide, is replicated to a significant extent within the guide with
which it enjoys a symbiotic relationship. However, it contains a significant amount of
additional material of importance to the subject as a whole:
¢ Mansell, W. and K. Openshaw International law: a critical introduction. (Oxford:

Hart Publishing, 2019) second edition [ISBN 9781509926725].
¢ Wallace, R. and O. Martin-Ortega International law. (London: Sweet & Maxwell,

2020) ninth edition [ISBN 9780414070790].
ASSESSMENT
Learning is supported through tasks in the module guide, which include self-
assessment activities with feedback. These formative activities will prepare students
to reach the module learning outcomes tested in the summative assessment.
Summative assessment is through a three hour and fifteen minute unseen

examination. Students are required to answer four questions out of eight.
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Please be aware that the format and mode of assessment may need to change in
light of extraordinary events beyond our control, for example, an outbreak such as
the coronavirus (COVID-19) pandemic. In the event of any change, students will be
informed of any new assessment arrangements via the VLE.
Permitted materials
Students are permitted to bring into the examination room the following specified
document:
¢ Hart core documents on international law 2022–23 (Bloomsbury).

1 Introduction
Contents
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
1.1 The aims and objectives of the module . . . . . . . . . . . . . . . . . . 3
1.2 Studying international law . . . . . . . . . . . . . . . . . . . . . . . . 3
1.3 Outline structure of this module guide . . . . . . . . . . . . . . . . . . 5
1.4 A suggested approach to study . . . . . . . . . . . . . . . . . . . . . . 7
1.5 The examination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
1.6 Useful websites . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

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Introduction
This module guide is intended to help you study public international law. Public
international law was once almost entirely concerned with the regulation of the
relations between nations. Particularly since the Second World War, however, it
has become increasingly concerned with the rights and obligations of individuals
beyond the jurisdiction of the state within which they live. But because it is public
international law we will not be concerned with matters of private international
law. Thus international commercial disputes and international disputes between
individuals will be beyond our focus unless a state or its government is an interested
party. For the sake of convenience ‘international law’ will be used as an abbreviation
for public international law in this module guide.
Each chapter of this module guide will isolate a topic within international law and will
indicate to you its most significant features, provide a brief overview of the relevant
law and direct you to essential reading. Obviously all the topics interrelate, and links
will be suggested to other chapters. Within each chapter you will find exercises and
activities which will enable you to monitor your progress and gain confidence in your
comprehension. In addition, each chapter contains sample examination questions and
advice about appropriate answers.
The most attractive feature of studying international law is that it is always topical. It is
relevant to all of the major international events of the day whether they be concerned
with the international use of force; the activities of such international organisations as
the United Nations, the World Bank or the International Monetary Fund; conflict in the
Middle East or elsewhere; ‘terrorism’ (however defined); the international alleviation
of poverty and illness; the regulation of the exploitation of the seabed (including
the extraction of oil); global warming and climate change; or the possession and
use of nuclear weapons. Clearly not all these topics can be considered in this course,
but those that do make an appearance will have been chosen because they should
enable you to understand and explore the possibilities and limitations of international
law in resolving (or pre-empting) disputes which may arise. The chapters will make
suggestions concerning the relevance of the topics to contemporary issues.
Learning outcomes
By the end of this chapter, you should be able to:
u understand the objectives of the module
u approach the study of international law in an organised way
u appreciate the necessary examination techniques in answering questions in
international law
u begin your study of international law with confidence, interest and enthusiasm.
Public international law 1 Introduction page 3
1.1 The aims and objectives of the module

Although the module is intended to provide an understanding of the role and function
of international law, several themes permeate the entire content. We can summarise
these as follows:
u the question of the reality of international law and its similarities with, and
differences to, domestic law
u the relationship between international law and international relations
u the relationship between international law and European history
u the relationship between political power and the use or abuse of international law
u the limitations inherent in the legal method that constitutes international law.
The aims of the module may similarly be summarised:
u to provide a significant introduction to the concepts, principles and rules of

international law
u to provide ways of considering the relevance of international law to particular

disputes
u to provide an appreciation of both the possibilities and limitations of legal method

in international disputes
u to provide a consideration of the relationship between international law and

power
u to consider the institutions of international law.
It is the objective of this module that when you have successfully completed it you
will:
u appreciate the possibilities and limitations of international law in international

dispute resolution
u be able to predict the relevance or otherwise of international law to particular

disputes
u be able to formulate arguments in international law directed towards particular

outcomes
u be able to critically evaluate the role of international law in particular disputes
u be aware of the arguments about the Eurocentric nature of international law
u be able to evaluate the relationship between international law and social and
economic reality.
1.2 Studying international law
1.2.1 How does this differ from the study of a domestic law subject?
All legal practitioners who specialise in international law would accept that
international law has a very different ‘feel’ from domestic law. Indeed the most
sceptical domestic lawyers often query whether international law should really
be described as law at all. International law often seems to be indistinguishable
from general international relations. For those of that view, such rules as there are
in international law seem excessively malleable and negotiable and often the very
sources of international law are questionable. Such perspectives will be considered at
the beginning of the module and will remain relevant throughout.
Nevertheless the module will argue that international law, while different to domestic
law, is also sufficiently distinctive to international relations to fall easily within the
definition of law and that this label is important. It is important because the legal
quality of international law has consequences. In particular, if rules are accepted

as legal, compliance tends to be much more automatic (although with obvious
exceptions). Further, the centrality of international treaties in international law
indicates that states, through their representatives, enter into what they regard
as binding legal relations. It is often said that the principle pacta sunt servanda
(translated as ‘pacts (or promises) must be respected (or kept)’) underlies the whole
of international law.
International law remains a developing and dynamic subject. If you remember

that when the United Nations was created in 1945 only 51 states became members
immediately, whereas there are now in excess of 190 members, it becomes obvious
that the international community has changed considerably. The great period of
decolonisation and self-determination created myriad new states that were faced
with an international legal regime which they had had no part in creating. Much
international law had been developed in the interaction between colonial powers.
This led not only to stresses and tensions but also to some quite fundamental
developments.
As will be clear from the previous section, this module is not primarily concerned
with the memorising of rules. Examination questions will require answers that
demonstrate knowledge and also provide evidence of reflection. This means that even
as you read the module guide and the essential reading you should not be simply
trying to understand and remember what you read, you should also be reacting to it.
By this I mean that you should constantly be considering your perspective towards
the readings you have been given. If you can respond in this way you will also find
it much easier to remember what you have read because you will probably begin
by remembering your reaction to the material rather than the material itself. Some
people describe this process as not merely learning but internalising, by which
they mean that your interaction with the course material makes it ‘subjectively
meaningful’; that is, it becomes a part of how you see the international world.
Perhaps the first and greatest difficulty for those trained in domestic law posed by
a study of international law, is the breadth of the subject itself. For almost every
international dispute involving a state, international law will be relevant. Thus
the potential topics for study are vast in number. Those that have been chosen for
study have been selected either because they are central to an understanding of
the international legal regime, or because they are illustrative of the way in which
international law impacts upon international problems.
The second major difficulty lies in the relationship between international law and
international politics and power. An understanding of this relationship should develop
throughout the module and the greater your interest in current affairs the easier will
be this aspect to comprehend. To this end you are urged to read about contemporary
international events as much as possible, whether in reputable newspapers, current
affairs magazines or even books analysing particular international crises.
1.2.2 A time of paradoxes

Because public international law is always concerned with contemporary international
events, it is important that you should attempt to ensure familiarity with major world
events while always bearing in mind the possibility of the relevance of international
law. Since the fall of the Berlin Wall in 1989 and what appeared to many to be the
end of the ‘Cold War’, together with the dramatic rise of China as an economic
world power, international law has, unsurprisingly, found itself faced with new and
unforeseeable tensions and questions. The developments over the last 30 years have
not only greatly altered the realm of international organisation and relations, but also
the rule regime which ordered them. While the focus of this module will be upon that
rule regime it is clear that it cannot properly be considered without recognition of the
changes in the world it attempts to regulate.
It is not difficult to think of seminal events since 1989 that have been crucial in posing
challenges to and for international law. Saddam Hussein’s invasion of Kuwait in 1990
challenged what most had considered a ‘done deal’ – the legitimacy of states and
their borders accepted mutually by states joining the United Nations; the terrorist
attacks upon the Twin Towers in New York in 2001 and the subsequent invasion of
Afghanistan and then also Iraq by the USA and its allies; the proliferation of nuclear
weapons (notwithstanding the Nuclear Non-Proliferation Treaty); the creation of new
states arising both from secessionist movements in the Former Yugoslavia and the
voluntary dissolution of the Soviet Union; continuing violence in the Middle East with
Israel ignoring the international law proscription on the annexation of territory and
the creation of ‘settlements’ and climaxing in the so-called ‘Operation Cast Lead’ (the
Israeli name for its war in Gaza in December and January of 2008–09); increasing
use of ‘drones’ facilitating ‘extra-judicial killings’; and the rise of Al Qaeda and the
self-proclaimed ‘ISIL’ (Islamic State of Iraq and the Levant) or ‘ISIS’ (Islamic State
of Iraq and Syria) and its allies, not least in Africa. Most recently, Donald Trump’s
recently completed tenure as US President has presented significant challenges to the
international legal regime.
Such events as these, when combined with the phenomena of climate change,
globalisation, refugee flows, economic crises and the COVID-19 pandemic, have led to
what may fairly be called ‘interesting times’.
Immediately after 1989 many international lawyers argued that the world had become
‘unipolar’ by which they meant that there was now only one ‘super-power’ of almost
unchallengeable authority both militarily but also in economic power. This perception
led many (especially Americans) to argue that this new status was something of which
the world, and particularly the United Nations, should take note, and act accordingly.
This power, some argued, entitled the USA to act unilaterally, whether to effect ‘regime
change’ or to punish what it perceived to be ‘rogue states’ either directly with force,
or indirectly with economic sanction. The immediate effect of this perception of
‘unipolarity’ was that the centrality of the role of the United Nations and particularly
the Security Council in the promotion and maintenance of world peace became,
even if temporarily, highly contentious. It hardly needs to be said that with the rise of
China particularly, but also India, ‘unipolarity’ has come to be seen as an anachronistic
understanding of the world, even while the USA retains its huge military advantage.
This is a time of many paradoxes. One of the most significant for our purposes is that
at a time when imperialism has given way to a recognition of the validity of a diversity
of cultures no longer ‘on the road to civilisation’, globalisation seems to imply a
homogeneity of goals quite incompatible with such real multiculturalism. So-called
‘economic reality’ seemed to dictate one economic ideology and one particular form
of government, both inherent in the idea of ‘liberal democracy’. That this ideology is
at the heart of the government of the (albeit briefly) sole world super-power is clearly
not coincidental. Some indeed have effectively argued (they would probably not
accept that this is the argument) that the ‘road to civilisation’ has been replaced by
the ‘road to democratic governance’.
Perhaps it might also seem paradoxical to suggest that at such a time as this,
international law can have any real effect or be of any real importance in governing
or constraining international events. If realism dictates an appreciation of dramatic
political changes, should international law now be seen as either irrelevant or itself
subject to such changes as will reflect this new power reality? And if the latter is the
case, does this not suggest that the true role of international law is less to constrain
than to legitimate (give legal authority to) what is done through power?
These are substantial questions and ones which underlie much of this course. Before
studying them, however, basic ideas and methods of international law must be
understood. The module begins with a discussion of the meaning of international law.
1.3 Outline structure of this module guide

There is no one way to study international law. There is however considerable
consensus about the topics that are central for an understanding of international
law. A plethora of modern textbooks has appeared recently and as a generalisation

they may be divided between those that are rule focused and those that are context
focused. The former seem to regard international law as a ‘pure’ subject in the sense
that it is seemingly sensible to study the rules in isolation from events. For various
reasons this approach is rejected in this module guide, primarily because it is a very
dull way of learning. It also has the effect of disguising the politics which always
underlie international law. You will be required to read material which will always
emphasise this aspect. Much of the information you will be given is about events to
which international law is applicable, rather than simply about the rules themselves.
The module guide consists of 10 chapters apart from this Introduction:
u Chapter 2: The distinctive nature of international law. Here we will consider

just how international law differs from domestic law and will seek to justify its
description as a legal regime.
u Chapter 3: The sources and method of international law. This is primarily but not
exclusively concerned with treaty and customary international law. It will also
consider a recent phenomenon which has come to be known as ‘soft law’.
u Chapter 4: The dynamic quality of international law. Here we will illustrate the
changing nature of international law by considering concepts of sovereignty, legal
personality and the rise of the individual.
u Chapter 5: Jurisdiction in international law. This will explain the powers of a state
regime, both within and beyond its own borders and consider the limitations of
such power and the immunities from jurisdiction that are granted to individuals
and states, sometimes in particular circumstances.
u Chapter 6: The law of treaties. Although treaty law is largely governed by the
Vienna Convention on the Law of Treaties, 1969, the centrality of treaties in
international law necessitates consideration of important issues concerning the
validity of treaties and their interpretation and enforceability.
u Chapter 7: Self-determination and territory in international law. Whereas until

almost the end of the 20th century, it was thought that self-determination was
exclusively concerned with decolonisation, the demise of the Soviet Union and the
break-up of Yugoslavia revitalised the subject, particularly for minorities wishing to
secede from existing states. Economic self-determination is no less significant than
political self-determination, and we will consider in particular the significance of
international law for international debt.
u Chapter 8: The peaceful settlement of disputes in international law. The primary

focus here will be upon the role and potential of the International Court of Justice
but we will also consider the role of the United Nations.
u Chapter 9: Use of force in international law. Again the role of the United Nations
(particularly the Security Council) will be examined and critically considered.
The invasion of Iraq will be a focus for the chapter, as will be the Syrian crisis. The
question of humanitarian intervention and its legality will be considered with a
focus on the doctrine of ‘the responsibility to protect’.
u Chapter 10: Human rights in international law. Essentially this chapter considers
the individual in international law and the limits to state sovereignty. It will
consider the change in status and the real effects this has produced. The
development of the International Criminal Court will be examined.
u Chapter 11: International law in the 2020s. A final examination of the relationship
between international law and power and the challenge posed by the United
States to the existing regime. We will seek to understand the position and
continuing influence of the ‘neo-conservatives’ in past US administrations together
with the unique position of Israel in international law.
1.4 A suggested approach to study

You should begin your studies with this module guide. The sequence of chapters has
been carefully chosen and you will find it easiest to follow the order provided, reading
the recommended textbook pages for each chapter as you proceed. The course should
develop both in a linear way and in a spiral way in that all the chapters are interrelated
even if the relationship is initially difficult to perceive. Frequently in the subsequent
chapters you will find references to chapters you have already completed and some
you have yet to reach. This is inevitable because of the nature of international law.
Although the course is divided into topics, they are not truly discrete and everything
affects, and is affected by, the other topics.
You are advised to complete the Activities for each chapter as you proceed.
1.4.1 Essential reading
Core texts
¢ Mansell, W. and K. Openshaw International law: a critical introduction. (Oxford:
Hart Publishing, 2019) second edition [ISBN 9781509926725] (available in VLeBooks
via the Online Library).
¢ Wallace, R. and O. Martin-Ortega International law. (London: Sweet & Maxwell,

2020) ninth edition [ISBN 9780414070790].
These books are very different in their approach but are complementary in their
content. The more ‘legal’ is Wallace and Martin-Ortega and the module guide usually
relies upon you to have read at least this. Mansell and Openshaw is based significantly
upon the module guide and considers (in more depth) many of the issues the guide
raises.
The page references in the module guide refer to the ninth edition of Wallace and
Martin-Ortega and the second edition of Mansell and Openshaw.
Supplementary texts
¢ Crawford, J. Brownlie’s principles of public international law. (Oxford: Oxford
University Press, 2019) ninth edition [ISBN 9780198737445] (available in Oxford
Scholarly Authorities on International Law).
¢ Dixon, M. Textbook on international law. (Oxford: Oxford University Press, 2013)

seventh edition [ISBN 9780199574452].
¢ Evans, M. International law. (Oxford: Oxford University Press, 2018) fifth edition
[ISBN 9780198791836].
¢ Gaeta, P., J.E. Viñuales, S. Zappalá Cassese’s international law. (Oxford: Oxford
University Press, 2020) third edition [ISBN 9780199231287].
¢ Kaczorowska-Ireland, A. Public international law. (Abingdon: Routledge, 2015)

fifth edition [ISBN 9780415722360] (available in Oxford Scholarly Authorities on
International Law). This is an excellent text but it is beginning to show its age.
¢ Shaw, M. International law. (Cambridge: Cambridge University Press, 2021) ninth

edition [ISBN 9781108733052].
Cases and materials

¢ Dixon, M., R. McCorquodale and S. Williams Cases and materials on international
law. (Oxford: Oxford University Press, 2016) sixth edition [ISBN 9780198727644].
¢ Harris, D. and S. Sivakumaran Cases and materials on international law. (London:

Sweet & Maxwell, 2020) ninth edition [ISBN 9780414075993].
Neither book is essential but both are useful.

1.4.2 Other stimulating reading related to international law
Books
¢ Anghie, A. Imperialism, sovereignty and the making of international law.
(Cambridge: Cambridge University Press, 2005) [ISBN 9780521828925].
¢ Bergman, R. Rise and kill first: the secret history of Israel’s targeted assassinations.
(New York: Random House, 2018) [ISBN 9781473694712].
¢ Bolton, J. The room where it happened: a White House memoir. (New York: Simon &
Schuster, 2020) [ISBN 9781982148034].
¢ Byers, M. War law: international law and armed conflict. (London: Atlantic Books,
2005) [ISBN 9781843543381].
¢ Charlesworth, H. and C. Chinkin The boundaries of international law: a feminist

analysis. (Manchester: Manchester University Press, 2022) [ISBN 9781526163585].
¢ Clapham, A. War. (Oxford: Oxford University Press, 2021) [ISBN 9780198810476].
¢ Fox, G. and B. Roth (eds) Democratic governance and international law. (Cambridge:
Cambridge University Press, 2000) [ISBN 9780521667968].
¢ Franck, T. Fairness in international law and institutions. (Oxford: Oxford University

Press, 2000) [ISBN 9780198267850].
¢ Glennon, M. Limits of law, prerogatives of power: interventionism after Kosovo.

(London: Palgrave Macmillan, 2001) [ISBN 9781403963666].
¢ Goldsmith, J.L. and E.A. Posner The limits of international law. (Oxford: Oxford
University Press, 2007) [ISBN 9780195314175].
¢ Goodwin-Gill, G.S. and S. Talmon The reality of international law: essays in honour of
Ian Brownlie. (Oxford: Oxford University Press, 2000) [ISBN 9780198268376].
¢ Hamm, B. (ed.) Devastating society: the neo-conservative assault on democracy and

justice. (London: Pluto Press, 2005) [ISBN 9780745323619].
¢ Halper, S. and J. Clarke America alone: the neo-conservatives and the global order.
¢ Higgins, R. Problems and process: international law and how we use it. (Oxford:
Clarendon Press, 1996) [ISBN 9780198764106] (available in Oxford Scholarly
Authorities on International Law).
¢ Ignatieff, M. (ed.) American exceptionalism and human rights. (Princeton, NJ:

Princeton University Press, 2005) [ISBN 9780691116488].
¢ Koh, H.H. The Trump administration and international law. (New York: Oxford
¢ Koskenniemi, M. The gentle civilizer of nation: the rise and fall of international law
1870–1960. (Cambridge: Cambridge University Press, 2004) [ISBN 9780521548090].
¢ Marshall, T. Prisoners of geography. (London: Elliot & Thompson, 2016)

[ISBN 9781783962433].
¢ Megrét, F. and P. Alston The United Nations and human rights: a critical appraisal.
(Oxford: Oxford University Press, 2020) second edition [ISBN 978019829838]
(available in Oxford Scholarly Authorities on International Law).
¢ Merrills, J. and E. de Brabandere Merrill’s international dispute settlement.

(Cambridge: Cambridge University Press, 2022) seventh edition
[ISBN 9781108819220].
¢ Moyn S. Not enough: human rights in an unequal world. (Cambridge, MA: Harvard
University Press, 2018) [ISBN 9780674737563] (available in VLeBooks via the Online
Library).
¢ Moynihan, D.P. On the law of nations. (Cambridge, MA: Harvard University Press,
1992) second edition [ISBN 9780674635760].
¢ Murphy, J.F. The United States and the rule of law in international affairs. (Cambridge:
¢ Newhouse, J. Imperial America: the Bush assault on world order. (New York: Knopf,
2003) [ISBN 9780375713729].
¢ Orford, A. International authority and the responsibility to protect. (Cambridge:

¢ Pahuja, S. Decolonising international law. (Cambridge: Cambridge University Press,

2013) [ISBN 9781107657472].
¢ Rachman, G. Easternisation: war and peace in the Asian century. (London: Vintage,
2017) [ISBN 9781784700744].
¢ Reus-Smit, C. (ed.) The politics of international law. (Cambridge: Cambridge

¢ Roth, B. Governmental illegitimacy in international law. (Oxford: Oxford University

Press, 2000) [ISBN 9780199243013].
¢ Sands, P. Lawless world: making and breaking global rules. (London: Penguin, 2016)
[ISBN 9780141985053].
¢ Simpson, G. Great powers and outlaw states: unequal sovereigns in the international
legal order. (Cambridge: Cambridge University Press, 2004) [ISBN 9780521534901].
¢ Simpson, G. Law, war and crime: war crimes trials and the reinvention of
international law. (London: Polity Press, 2007) [ISBN 9780745630236].
¢ Verones, C. and S. Rosselet The public international law study guide for
students: exercises and answers. (Oxford and Portland: Hart Publishing, 2013)
[ISBN 9781849464543].
Reports and journals

There are large numbers of these but you should occasionally consult (if possible) any
of the following:
¢ European Journal of International Law (EJIL)
¢ International and Comparative Law Quarterly (ICLQ)
¢ American Journal of International Law (AJIL).
1.4.3 How to proceed

This module guide takes you through the international law module in a structured and
systematic way. Each chapter covers a particular topic or group of topics. The order is
loosely based upon the primary textbooks but because we are also concerned with
contemporary issues in international law there is not total correlation.
Working through a chapter of the module guide

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 chapter by reading the Introduction and considering what you might
expect to be reading about in this 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 that you read all of it. It has been chosen because it is appropriate
for undergraduate study and where it is difficult your module guide should help you.
But the module guide is not sufficient in itself. It relies upon what you will have learnt
from the essential reading.
You will find the reading much easier and more interesting if you attempt to relate
to it. You will need to take notes as you read but these ideally should not simply
be summaries but ‘involved summaries’ by which I mean that your appreciation
of the readings is the educational part of the course. Your notes will reflect your
understanding of what others have written. It is often best to begin with a quick and
not very careful read through the readings so that you can see both the theme of the
reading and its main thrust. This will also help your note taking upon a second and
careful read. Note taking is very much an individual skill but the best notes reflect the
theme of the reading, noting the most important points and providing memory aids –
pointers to remind you of the things you thought significant.
When the essential reading and note taking is completed, you should work your way
through the chapter in the module guide. The text should complement the essential
reading and you should consider whether it is in agreement or whether there are
different or even contradictory points being made. Much of international law is
contentious with persuasive arguments to be made from more than one perspective.
Sometimes the module guide should persuade you to modify the notes you took from
the essential reading.
At key points in the chapter, activities are to be found and these are intended to
provide exercises which enable you to learn and understand important points and
issues. They require you to think about a question and an appropriate answer. You
will find it useful to write a response to each Activity – ideally at least a few sentences.
Writing practice in which the English is structured in a logical and ‘legal’ way will be
very useful when you come to sit the examination.
While feedback is provided at the end of the module guide, you should resist the
temptation to look at it before you have formulated your own response as otherwise
you will get little indication as to how well your learning is progressing.
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 factual,
feedback will not be provided as the answers will be in the reading.
1.5 The examination
1.5.1 The examination paper

Important: the information and advice given in the following section are based on the
examination structure used at the time this guide was written. However, the University
can alter the format, style or requirements of an examination paper without notice.
Because of this you are strongly advised to check the rubric/instructions on the paper
you actually sit.
The paper normally contains eight questions and you will be required to answer four
in three hours and 15 minutes. There are no compulsory questions and each question
will be weighted equally. The majority of the questions will require essay answers but
there will often be at least one problem question. The object of the examination is to
test your knowledge, understanding and critical appreciation of international law. The
paper is not divided into sections so you may answer any four questions.
1.5.2 Taking the examination

When taking the paper you should bear in mind the following:
The object of the examination

The purpose of the examination is for you to demonstrate what you have learned and
to show that you have reflected upon the material. There will be no ‘trick questions’
and the paper will have been set to enable you to do justice to your knowledge and
work.
A good examination answer

A good examination answer is one that answers the questions with sufficient depth
and precision. Typically, such an answer will be three or four A4 pages of writing, with
an introduction isolating the matters to be covered, paragraphs on each of them, and
a conclusion directed to the wording of the question.
Do not attempt to learn the whole syllabus in detail

The module does attempt to present international law as a coherent ‘seamless web’
but the fact that there are so many distinguishable topics means that you can, to some
extent, concentrate on some parts of the syllabus. You should ensure that you have
worked through all the topics before deciding which areas you wish to concentrate
on. These are likely to be the ones you have found most interesting. Because the
topics do interrelate it is important that while specialising you are aware of related
implications. Most of the questions will be based upon one topic, or, at the most, two.
Memory and international law

The examination is not testing what you have memorised but what you have
understood and learnt. Nevertheless it is obvious that this can only be done if you
remember much of what you have learnt. You need to memorise the points that
you consider necessary to demonstrate your knowledge of topics. This requires the
re-reading of notes from the readings and familiarity with the activities and sample
examination questions. The essay questions will usually be formulated in a way that
requires you to make your answer a coherent and cogent argument. The best answers
are not simply factual but have within them a thesis (argument) that shows your
comprehension of the learnt facts.
Answering the question

Almost all of your questions will require you to order your material so that your
answer reads as a direct reply to what has been asked. Many students, partly because
of the way in which they have revised, have a tendency to interpret questions as
simply asking that you write all you know about a topic. This is never what is wanted.
While it is sometimes disappointing to have to leave out of an answer things that you
have learnt, this is always the better option if the knowledge is not relevant to what
has been asked. An ideal approach is to place yourself in the position of the person
who set the examination and ask yourself why they thought the questions asked were
important. If you understand why the question was set, you will be well on the way to
answering it.
When not to panic

Examinations are stressful occasions, but it is important to use the consequent
adrenaline rather than be overwhelmed by it. You may find that you are suddenly
unable to remember things that you thought you knew well. This often happens, and
if it does, you can either leave space for when your memory returns – as it usually does
after you have regained composure – or alternatively, you can begin with arguments
that you remember, giving sufficient information so that the examiner might
recognise the source.
1.6 Useful websites
1. United Nations and special agencies

u United Nations
u International Law Commission (ILC)
u International Court of Justice (ICJ)
u International Labour Organization (ILO)
u Office of the United Nations High Commissioner for Human Rights (OHCHR).
Another excellent website about the UN and human rights. You are also linked to
all the UN human rights bodies, both Charter-based and treaty-based, plus texts of
their reports, decisions, etc.
u Office of the United Nations High Commissioner for Refugees (UNHCR)
u United Nations Educational, Scientific and Cultural Organization (UNESCO)
u United Nations Environment Programme (UNEP)
u World Health Organization (WHO)

Regional organisations
u African Union (AU)
u Association of Southeast Asian Nations (ASEAN)
u Council of Europe
u European Union (EU)
u Organization of American States (OAS)
u Organization for Security and Co-operation in Europe (OSCE)
2. Judicial organs and arbitration panels

u International Centre for Settlement of Investment Disputes (ICSID)
u International Court of Arbitration, International Chamber of Commerce
u International Court of Justice (ICJ)
u International Criminal Court (ICC)
u www.icc-cpi.int
u Coalition for the International Criminal Court (CICC)
u International Tribunal for the Law of the Sea
u Permanent Court of Arbitration
u United Nations Mechanism for International Criminal Tribunals (Legacy website of

the International Criminal Tribunal for Rwanda (ICTR))
u United Nations International Criminal Tribunal for the former Yugoslavia (ICTY)
u World Trade Organization (WTO), Dispute Settlement Panels
3. Regional judicial organs

u European Court of Human Rights
u European Court of Justice
u Inter-American Court of Human Rights
4. Non-governmental organisations (NGOs)

u Amnesty International
u Greenpeace International
u Human Rights First
u International Commission of Jurists (ICJ)
u International Committee of the Red Cross (ICRC)
u Redress (an NGO specialising in securing reparations for torture survivors). This
site is useful on torture issues generally. It is also useful on truth commissions and
amnesty/impunity issues.
u World Organisation Against Torture

5. Universities and academic institutions

u University of Minnesota Human Rights Library
A fantastic human rights website which includes the full text of treaties, UN docs,
regional docs, US docs, asylum/refugee docs, etc.
6. Others
u Human Rights Web
Finally
I hope very much that you will enjoy the study of international law and will find it
relevant to the world in which you live. If you become interested and read widely you
will have no need of luck in the examination.
Notes
2 The distinctive nature of international law
Contents
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
2.1 What is international law? . . . . . . . . . . . . . . . . . . . . . . . . 17
2.2 The differences between international law and domestic law . . . . . . 18
2.3 The changing nature of international law . . . . . . . . . . . . . . . . 19
2.4 International law and common sense . . . . . . . . . . . . . . . . . . 24
2.5 Why should international law be defined as law? . . . . . . . . . . . . .26

Introduction
This chapter seeks to introduce you to international law. Although it is introductory,
some of the concepts remain contentious even now, and not everyone would agree
with the views expressed here. This is important because it should be immediately
clear to you that international law is not a static object of study. Indeed, its very ‘legal
quality’ remains a matter of debate, while the continuing changes in international law
give the subject a unique fluidity. Nevertheless, the core of this chapter supports the
view that international law really is ‘legal’ and that it is important that this perspective
is understood.
The 30 years since the ‘end of the Cold War’ have seen many important changes which
are affecting the way international law is conceived and operates. The legality of the
international use of force – often to enforce regime change, as in Iraq, Afghanistan
and Libya, remains questionable. Twentieth century notions of sovereignty and
stability have been called into question with the creation of new states following the
dissolution of old states, together with attempted and actual secessions. The place of
the United Nations is also in question, as is the broader picture of the world as a place
of economic and political diversity. The power of the USA, militarily unchallenged for
much of this period, is now facing an increasingly powerful China, and a Russia, once
more militarily, if not economically, strong. Until recently, unilateral military force
seemed to be able to enforce solutions that international law, lacking sanctions, was
unable to achieve. Contemporary events in Syria and Iraq, leading to a self-proclaimed,
if brief, ‘caliphate’ and challenging established international borders, presented new
international legal challenges. In studying the basis and structures of international law
in this course, therefore, we will continually be obliged to consider how international
law can stand up to this challenge.
Learning outcomes
By the end of this chapter and the relevant readings, you should be able to:
u explain why international law is law
u describe the distinguishing features of the international law regime
u explain and account for the differences between international law and domestic
law
u appreciate the broad changes in international law since the 19th century
u appreciate that international law will always have a political aspect
u understand that international law functions by making situations fit its
categories
u understand the method of international law.
Public international law 2 The distinctive nature of international law page 17
2.1 What is international law?
Core text
¢ Mansell and Openshaw, ‘Introduction’ and Chapter 1 ‘The distinctive nature of
international law’.
¢ Wallace and Martin-Ortega, Chapter 1 ‘Introduction’.
There is no agreed definition of international law and it is easier to describe the role
of international law and the tasks it performs than to rely on a dictionary definition.
The international legal regime (that is, the system of international law) may be
described as ‘consisting of a body of laws, rules and legal principles (sometimes not
easy to isolate or identify as one or the other) that are based on custom, treaties or
legislation and define, control, constrain or affect the rights and duties of states in
their relations with each other’. Unfortunately, almost every meaningful statement in
that description may be queried or require modification, as this course will illustrate.
It is, however, a working model. Among the things it fails to take account of is the
dynamic quality of international law which has led – and is leading – to changes
in both the subjects of international law and its content. Although states are still
central to the international law regime there is no doubt that for some purposes at
least, some international organisations such as the United Nations, the International
Labour Organization and the World Bank are now subjects of international law. And
individuals too have been granted subject status for some purposes.
It was traditionally thought that because international law governed the relations
between states it did not affect their domestic arrangements. Because each state was
said to be sovereign, this suggested that internally a state could behave as it wished.
If this was ever true in practice, it certainly requires modification now. In particular,
the development of human rights law places obligations upon state governments to
conform to international norms in their domestic governance.
Sometimes international law is criticised for the lack of sanctions it is able to apply in the
event of non-compliance or breach of obligation. One answer is that sanctions are not
a necessary element of a legal regime. Nevertheless, as we shall see in the final chapter
the criticism has not disappeared and remains relevant to the position adopted towards
international law by some states.
Some writers, of whom Cassese is one, regard the development of international law
as rather disappointing. Many would prefer to see it as a stage on the way to world
governance in which the role of law would be much more like that in a domestic legal
regime. Such goals, however, also have their own severe critics. These regret the way in
which international law has come to constrain states in their internal conduct and sense
a conspiracy to remove power from democratic states, not least, to a central and largely
unaccountable body. This perspective too will be more fully considered in Chapter 11.
Activity 2.1
What is international law?
Feedback: see end of guide.
Self-assessment questions
1. How may it be argued that sanctions are not a necessary part of law?
2. Why might Cassese consider the development of international law to be

disappointing?
Reminder of learning outcomes

By this stage you should be able to:
u explain why international law is law
u describe the distinguishing features of the international law regime.
2.2 The differences between international law and domestic law
Core text
It is indisputable that there are significant and crucial distinctions between

international law and domestic law. In international law there is of course no supreme
legislature which can promulgate binding international laws. There is no international
law-making body and no equivalent of a domestic legislature. The international legal
regime is overwhelmingly, but not exclusively, one which requires the consent of
those whom it would govern. International law can, by and large, be created only by
consent – it can rarely coerce those state subjects who would not be bound. It is this
that leads Cassese to suggest that the international law regime is best understood as a
horizontal system of organisation rather than vertical. By this he means that whereas
in domestic law, laws are passed down to the subjects from the law making body,
in international law it is the parties themselves who make the law for themselves.
Cassese regards this as unsatisfactory but it might be better seen as the necessary
result of international law being concerned primarily with rules directed to sovereign
states.
Similarly, there is no international court before which states in breach of international

law may consistently be forced to appear. There is an International Court of Justice
(which we will consider in Chapter 8) but this concerns itself only with disputes
between parties who have standing before the Court (and only states do have
standing if the Court is to make an authoritative ruling rather than giving an advisory
opinion). The Court has no role in punishing states in breach of their international
law obligations. Its role is to resolve disputes between states, and without use of
sanctions. And although some states have accepted the compulsory jurisdiction
of the International Court of Justice, this will only be effective in disputes between
states where all parties to the dispute have accepted that compulsory jurisdiction. A
minority of states do so. More frequently the Court will have jurisdiction only where
the parties to the dispute consent to the jurisdiction of the Court for a particular
dispute. Thus here too the emphasis remains upon consent.
This emphasis on consent rests upon two crucial, but not natural, facts. The first is
that each state is said to be sovereign in its own territory. This does not mean that
the rulers of any state can rule with utter impunity. Humanitarian law in particular
has been accepted (generally, if not in particular cases) as constraining states in their
internal governance. Nevertheless there is universal acceptance that while subject to
some qualifications, sovereignty gives total control of domestic jurisdiction (discussed
further in Chapter 5). This remains true even though a state may willingly accept limits
upon its sovereignty, as have for instance the states of the European Union.
The second fact is that there is universal acceptance of the sovereign equality of states –
that is, each is equal in its sovereignty. Needless to say, and this does have implications
for the arguments presented in this course, the sovereignty is formal and legal in its
equality rather than actual. The relative power of states does not alter this aspect of
equality. Just as under the rule of law, each individual has formal equality before the
law, so in international law each state is equal. This acceptance of sovereignty and
sovereign equality makes clear just why it is generally unrealistic to expect a greater
level of coercion and sanction in international law than presently exists.
Activity 2.2
Explain and account for the differences between international law and domestic law.
Summary
It is because the world is not organised as if it were a single state that we should not
and cannot expect to find state institutions in world organisation.
1. State the major differences between domestic law and international law.
2. What arguments would you make to show that international law exists as a
system of law?

u explain and account for the differences between international and domestic law.
2.3 The changing nature of international law
Core text
¢ Mansell and Openshaw, Section 1.3 ‘The changing nature of international law’.
Essential reading
¢ Cassese’s international law, Chapter 2 ‘The historical evolution of the
international community’ (available on the VLE).
The reference in your reading from Cassese suggests that it is useful to recognise four
major stages in the development of international law. His history will reinforce the
argument that it is largely to be found in the history of Europe. This is certainly true of
the first two stages and partly true of the third.
What emerged as international law in the first period up to 1914 was almost exclusively
rules governing the relations between states. Overwhelmingly this was inter-state
regulation and individuals scarcely figured at all. Of course, in so far as states have
always been inanimate entities, the reality was that international law governed the
relationships between state governments (composed of people but in their official
capacity). It has been suggested that this period should be seen as one in which
international law was primarily descriptive in that it described how states generally
conducted affairs with other states, but was hardly normative – it did not seek to
direct states as to their conduct, but merely recognised practice. In particular there
was little or no restraint upon the threat or use of force by states powerful enough
to do as they wished. Such international rules as there were reflected the interests of
those same states.
Following the First World War, with the creation of the League of Nations and the
Permanent Court of International Justice (PCIJ) (the forerunner of the International
Court of Justice), perspectives on world organisation changed significantly. The
creation of the League of Nations recognised for the first time the importance of a
structure that could take part in the governing of relations between nations. One of
its central goals was to limit the right of states to resort to war to a number of stated
causes, and it also provided for cooling off periods before resort to war. The PCIJ was
available for the adjudication of disputes.
These changes could not be described as dramatic in their effect. And of course the
League of Nations failed to preserve peace. Its efforts were hindered by the decision
of the USA to remain outside of the League and by the non-participation of the Soviet
Union. The Bolshevik revolution in Russia in 1917 also challenged such economic and
political consensus as existed in Europe. The League did not challenge the European
colonial empires and some argued that French and British influence in the League was
excessive.
Nevertheless the War had concentrated minds to the extent that it became fashionable
to emphasise the desirability of peace. In 1928 the Paris Pact on the Banning of War
was signed, though its effects were hardly satisfactory. The judicial structure of the PCIJ
survived although it achieved less than its advocates had anticipated.
One aspect of the League’s functioning remains historically important. Under its
auspices many Minority Treaties were negotiated. These were more important as
precursors of human rights protection in international law than as successes in their
own terms. Peace treaties negotiated at the end of the War insisted that certain nation
states with significant ethnic minorities accepted, in return for recognition (discussed
further in Chapter 4), agreements to protect the rights of these minority populations.
The responsibility for guaranteeing and supervising these treaties was allocated to the
League, which developed a (rather ineffective) ‘minority petition procedure’ which
has been described as the procedure that initiated trans-national claims making. You
should remember a final point. Although the Minority Treaties were implicitly about
human rights, they were concerned not with the rights of individuals but with those of
groups or collectivities.
Developments in Cassese’s third period are continuing in their significance. The end of
the Second World War led to:
u the creation of the United Nations
u the Nuremberg trials which asserted that individuals had responsibilities in

international law
u the development of concepts of self-determination and an era of decolonisation

with ex-colonies at last able to contribute to international law creation.
The principal goal of the UN was to be the preservation of peace, stimulated, as your
reading observes, by the potential of nuclear weapons to annihilate humanity. Also of
great and continuing international law significance was the drafting and signing of the
Universal Declaration of Human Rights – not least for its assertion of individual human
rights. Most of these developments will be discussed in subsequent chapters because
they all remain of importance in the present role of international law.
Much the same may be said of Cassese’s final period, from the end of the Cold War to
2005 when his book was published (that was before the ninth edition, published in
2020), although the significance of the changes wrought by the end of the USSR is still
by no means clear. What is clear, however, is that the end of the Cold War dramatically
changed the balance of power between states. Because of the frequent use of the veto
in the Security Council between 1948 and 1990, actions by the UN aimed at preserving
or creating peace had been very limited. Many thought that the demise of the USSR
would enable the UN to become much more powerful and active. The first Gulf War,
aimed at restoring the sovereignty of Kuwait, seemed to suggest that this might be the
case. When this occurred, many observers thought that the states who were parties
to the UN Charter could once more rely upon international guarantees of their settled
borders. Subsequent events in territories such as Kosovo and Crimea meant that this
was not in fact the case.
The other major change in inter-state power relations up to 2005 was the rise of the
USA to become the only world super-power. When Cassese’s book was published, this
seemed likely to continue for the foreseeable future, but while militarily this remains
true, in economic terms, particularly after the financial crisis of 2008, the USA’s power
has been much diminished. The significance of this for the international legal regime is
discussed in Chapter 11.
Regrettably, Antonio Cassese died in 2011, before he had time to publish his thoughts
on events after 2005, when the last edition of his book was issued. These 15 years
have affected international law significantly and the changes that have occurred
are overdue for consideration. From a Western perspective, the greatest challenge
was posed by the financial crisis of 2007–2008, the adverse effects of which are by
no means resolved. Whether this event was a cause of current political upheavals or
merely a catalyst is arguable but what is certain is that its consequences have rippled
throughout the economic, political and cultural world to an extent that could not
have been foreseen in 2005.
It is now clear that the idea that the world is ‘unipolar’, with only one world
superpower, requires significant qualification. The rise of China – and its refusal to
accept the world and its borders and divisions as defined by the USA and its allies as
immutable – is undeniable. Although the USA’s military spending continues to greatly
exceed that of its potential competitors, its continued unchallengeable superiority
can no longer be assumed. Indeed, the limitations of military threats and power have
become increasingly evident since 2001 and it is difficult to perceive any US military
triumphs from that time. In economic terms, the threat posed to the USA is easier
to discern, with China having surpassed the USA in GDP based on purchasing-power-
parity in 2017. Additionally, states that are incomparably economically weaker than the
USA (among others, Russia, Pakistan and North Korea) are all in possession of arsenals
of nuclear weapons capable of jeopardising the future of humanity, thus rendering
technical inequality of arms irrelevant.
Not entirely coincidentally, there has also been a considerable change in attitudes
to nation states. Whereas in 2005 there was almost universal and unquestioning
acceptance of the obvious morality of decolonisation, 2020 allows us to see that
the break-up of the USSR and Yugoslavia presaged a radical reassessment of both
nationhood and self-determination. Nation states had come to be depicted as ‘natural’
phenomena, the continuing existence (and borders) of which were to be found
guaranteed in the UN Charter and in UN membership – a portrayal strengthened
by the rejection of Iraq’s purported annexation of Kuwait in 1990 and Kuwait’s
subsequent ‘liberation’ seven months later by US-led coalition forces. It was also of
the essence of nationhood (at least theoretically) that a state exercised complete
control (sovereignty) over its internal affairs, enjoying a monopoly over the legitimate
domestic use of force and the freedom to design its own financial and monetary
structures and policies. This ‘common sense’ view of sovereignty is increasingly under
threat, even in the case of more affluent and powerful nations, which in turn has
significant implications for international law.
First, it is now ever clearer that decolonisation was, for a number of reasons, hardly
an unalloyed success. The continent of Africa serves as the most obvious example,
although this is not to suggest that colonialism was in any way a preferable system
of administration: indeed, in many ways, it was responsible for the manifest failures
of many now ‘independent’ African states (more fully discussed in Chapter 7 of this
guide). Instead of decolonisation (albeit within borders defined by the colonial power)
bringing democracy, unity, financial viability and a measure of equality to the newly
recognised state’s citizens, too often it has brought continued economic exploitation,
autocratic government (often approximating dictatorship), environmental
degradation, ethnic and religious conflict, wholesale corruption and a complete
rejection of accountability and the rule of law. Internationally, a major effect of this
inability or unwillingness to govern in the interests of the populace has been a vast
increase in displaced persons, both internally and externally (as refugees). The number
of refugees now exceeds that of those seeking refuge after the Second World War.
Second, globalisation has greatly affected the very nature of nationhood. Although it
was never entirely clear what sovereignty implied or quite where its limits lay, Article
2(7) of the UN Charter reaffirmed the principle of non-interference in ‘matters which
are essentially within the domestic jurisdiction of any State’ – a reaffirmation that,
while palpably ambiguous, was not without meaning. However, from the earliest days
of decolonisation, newly independent states were immediately confronted with the
realities of the economic world of which they formed part. As discussed in Chapter 7,
political self-determination did not necessarily entail economic self-determination
and the ability of the decolonised to assert control over their economic affairs was
limited by constraints of fact, such as the difficulty of asserting title to property held
by the colonising power or its commercial enterprises, at least without the payment of
full compensation.
The 21st century and globalisation has greatly complicated and muddled the old
concept of a ‘society of nations’ as envisaged in the UN Charter (and by those who
drafted it). No longer can state governments, whether of colonial or colonised
origin, exercise the level of control over their economies that once seemed, at least
to Western countries, natural and obvious. This becomes evident when comparing
government revenues with corporate turnover: in 2016, of the top 100 global
economic entities, 69 were multinational corporations, scarcely controllable by
the nation state. Notwithstanding the crisis of 2007–2008 (arguably largely caused
by financial deregulation at both the national and international level), there has
been no substantial strengthening of financial governance; and recently the Trump
administration explored cutting such regulation even further. National regulation,
even where politically acceptable, simply lacks the power to be effective. As a
result, the ability of individual states to determine such economic fundamentals as
capital flows, interest rates and the taxation of foreign enterprises has been greatly
diminished. Some idea of the velocity of the movement of capital can be gauged from
the startling figures of April 2016, which revealed that the average daily turnover in
foreign currency trading in London was $2.426 billion, with worldwide daily currency
trading amounting to $5.1 trillion. Any intimation of possible national restrictions
upon the free movement of capital will almost inevitably provoke capital flight
to the immediate detriment of the national economy and currency in question.
Consequently, individual states are locked into a capitalist world that they are
powerless to influence.
The financial crisis did have other consequences of indirect importance for
international law. In the first place, many states adopted ‘austerity policies’ in order
to redress the losses that the banking crisis had caused – some, such as the UK,
voluntarily; others, under intense international pressure, of which Greece is a prime
example (John Maynard Keynes’s view that ‘austerity is the enemy of prosperity’
having fallen out of favour). State austerity has implications for policy not unlike
those that resulted from the old ‘structural adjustment policies’ insisted upon by
the International Monetary Fund in exchange for loans to heavily indebted poor
countries. These policies closely followed the mandate of the Washington Consensus
– privatisation of state-owned property and state-run services, reductions in
government expenditure (impacting health, welfare and education but not normally
defence), the abolition of subsidies (covering basic food and fuel necessities), coupled
with policies thought likely to attract foreign investment and facilitate a return to
private credit markets: liberalisation of capital flows, an increase in interest rates
and reductions in corporate and income tax (mainly of benefit to the wealthy).
Secondly, as a result of such policies, even where the gross domestic product of a state
increased, the beneficiaries were few in number and to be found in foreign investors
and the already rich. Consequently, in almost every state, while the ‘affluence’ of the
working and middle classes has remained at best static, the percentage of wealth held
by a tiny minority of individuals has burgeoned considerably. As summarised by Rana
Dasgupta in an article entitled ‘The demise of the nation state’ (The Guardian,
5 April 2018): ‘In brief, 20th century political structures are drowning in a 21st century
ocean of deregulated finance, autonomous technology, religious militancy and
great-power rivalry.’ His point about autonomous technology is also important for the
development of international law, as may be seen, to give two very different examples,
both in electronic trading in worldwide stock exchanges and also in the development
of ‘drones’ in warfare.
Much of the resulting discontent at stagnating or deteriorating living standards

has arguably been channelled into – or has been co-opted by – populist parties
and politicians, often with scant regard for democratic niceties and the rule of
law. This can be observed at the domestic level: one can point, for example, to the
constitutional ‘reforms’ initiated by President Recep Erdoğan of Turkey or President
Viktor Orbán of Hungary aimed at arrogating more power to themselves and their
parties; the attempt of the governing Law and Justice Party (PiS) in Poland to remodel
the country’s supreme court more to its ideological liking; and the threats made by
Donald Trump and Jair Bolsonaro before assuming presidential office in the USA and
Brazil respectively that they would refuse to accept as legitimate the election of any
other candidate. It is equally evident, however, in the international realm, where

disillusion with globalisation and the supposed benefits brought by international
trade have led many populations, in the West in particular, to align with those who
advocate a renewed strengthening of the nation state, disparage supranational and
global institutions, and embrace economic protectionism and an anti-immigration
agenda. This has been demonstrated most starkly by the Trump administration’s
‘America First’ stance (discussed further in Chapter 9), which has seen the withdrawal
of the USA from many international institutions, treaties and accords, the triggering of
a trade war with China and the implementation of harsh, at times inhumane, border
controls accompanied by unequivocally racist rhetoric. It can also be witnessed in the
UK’s deeply divisive decision to leave the European Union, as well as in a rise in support
across much of Europe for parties situated both to the left and right of the traditional
political spectrum, including increased support for clearly xenophobic and/or racist
parties (exemplified by, for instance, the UK Independence Party, Alternative für
Deutschland in Germany, Fidesz in Hungary, La Liga in Italy, Rassemblement National
(formerly Front National) in France, the Freedom Party in Austria, the Vox party in
Spain). Such parties oppose the admission of refugees and are hostile to immigration
in general, blaming immigrants for job losses, declining living standards, crumbling
infrastructure and rising crime rates, and are also generally antagonistic to the
European Union both in relation to its economic policies, especially in the Eurozone
(budget constraints in order to meet deficit targets, austerity measures after the
financial crisis), and to what the Hungarian and Polish governments in particular have
criticised as an over-liberal social and cultural agenda (supportive, for example, of gay
marriage and rights to abortion), which they argue is alien to the conservative morés
of their respective states.
The year 2021 saw the Presidency of Donald Trump come to a contested end. As was
to be anticipated, President Biden’s administration has lessened the aversion to
multilateral treaties and has engaged or re-engaged with a number of international
organisations (although obviously not with the International Criminal Court). Some re-
engagement has been hampered by a firm congressional prohibition dating from 1994
against funding any UN ‘affiliated organizations’ that accept the Palestinian Authority
as a member state. The prohibition contains no ‘national interest waiver’ provision.
This has so far prevented rejoining UNESCO, although President Biden has requested a
waiver in order to re-engage. (For an informative Israeli perspective on this prohibition
see: Kontorovich, E ‘Palestinian membership in UN Agencies: mandatory defunding
under US law’ July 2018.)
As to the Human Rights Council from which President Trump withdrew in 2018, the
USA now has ‘observer status’ and in October 2021 won a three-year term for one of
the 18 open seats on the Council.
Perhaps an even more momentous event than the change in the US political
alignment has been the current COVID-19 pandemic. This may be expected to have a
substantial, if indirect, effect on international law, not least in its impact on the wealth
of nations. It is too early to anticipate how international law may be affected.
(This section is a slight adaptation of an excerpt from Mansell and Openshaw,

International law: a critical introduction.)
Activity 2.3
Why do you think international law has not developed as a form of world
government?
Summary
The development of international law has arisen from reactions to the results of
historical events rather than as spontaneous legal reform.
Self-assessment question
What are the major features of Cassese’s four stages in the development of
international law?

u appreciate the broad changes in international law since the 19th century
u appreciate that international law will always have a political aspect.
2.4 International law and common sense
Core text
¢ Mansell and Openshaw, Section 1.4 ‘International law and common sense’.
Read these pages now; they are largely reproduced below.
One issue that is important to think about at the beginning of this course is the
assertion that is sometimes made that the international law way of understanding the
world is actually very ‘Eurocentric’. What is asserted is that although the method of
international law looks very reasonable and obvious to those trained in the common
law or civil law tradition, in fact it is important to be able to see it as something
contingent rather than necessary. This means that we have to be able to appreciate
that international law is not common sense but a particular way of attempting to deal
with international relations and problems.
The foundations of current international law were laid in an era which predates the
creation of the majority of nation states. Equally clearly the antecedents of international
law are overwhelmingly European (within which, for this purpose, we should include the
United States) and the system was one which evolved in a time of European hegemony,
most overtly expressed through colonialism. Because of this it can be persuasively
argued that the international legal regime is crucially European in its method and in its
ideology. What is meant by this is that an argument may be made (and probably should
be made) to the effect that international law reflects one particular way of perceiving
the world, in which even the most fundamental premises underlying the system – such
as those of the nature of sovereignty, and even the acceptance of the principle of pacta
sunt servanda (roughly translated as ‘treaties must be observed’ but with rather wider
implications) – are arguably imbued with Western perceptions.
Before discussing the significance of this further, a broader but related point must
be made. It is not insignificant that most (British in particular) international law
textbooks seem implicitly to reject the assumption that international law is intimately
and necessarily interrelated with contemporary international events. The inference
to be drawn from the content of some of the most eminent texts is not only that law
is separate and distinct from political relationships and international relations, but
because of this, a study of international law can be a very pure one indeed. (Rather like
pure mathematics which remains a sensible subject even though its applications may
apparently be entirely absent.) To the extent that the political world does impinge
upon such texts, it tends to be a historical rather than contemporary world, and it
is a history which is usually decontextualised and ‘objective’. History, if necessary, is
treated as an uncontested series of facts. Very often if the greatest international events
appear at all, they appear only in the form of desiccated legal decisions or opinions.
The majority of such texts also have a remarkably standard set of contents, with
the main differences to be found in the depth of analysis and variety of emphasis.
Such orthodoxy should breed suspicion, particularly if it is accepted that any
study of international law must be concerned with the politics that underlie it, the
power relations that it may disguise, and the ideology that the law way of thinking
conceals. In turn it should be clear that the ideological assumptions which underpin
international law are not only to be found in the content of international law but
equally in the very process and procedure of the law.
To illustrate this proposition it is useful to refer to one exception to the generalisation

about British international law textbooks. This is Cassese’s International law in a divided
world which, although written while the Soviet Union was yet extant (in 1986), remains
pertinent. (Significantly perhaps, it is written by an Italian scholar.) In this book written
over 30 years ago, Cassese does address the lack of universal acceptance of international
law method. His argument with regard to the so-called ‘developing’ countries and
the ‘socialist states’ (patently inappropriately labelled but nevertheless significantly
different from the liberal capitalist states of the West at the time when he was writing)
is that there are crucial differences in perceptions in, or of, international law. At this
point I mention only his assessment of the ideological perception of the governments
of certain African states. Obviously, given the very different cultural traditions of these
states and their inhabitants, with emphasis upon lineage and clan, a different perception
of international law is not unlikely. Cassese suggests that for such states international
law cannot be seen as an abstract problem solver (as it often appears in textbooks
and international texts); rather ‘to them international law is relevant to the extent
that it protects them from undue influence by powerful states and is instrumental in
bringing about social change with more equitable conditions stimulating economic
development’.
Whether or not we are comfortable with such enormous generalisations is less

important than the consequences that are drawn from the statement. Cassese argues
that it is because of this generalisation that we can see many developing states very
much preferring to ‘elaborate general principles as opposed to detailed and precise
legal rules’, and he uses a telling quotation from an Egyptian international lawyer
(Professor Georges Abi-Saab) which requires comment:
…in dealing especially with the Western countries, anything which could be formulated
in the very precise terms of an operational rule was considered nonsense [by developing
countries] while Third World representatives in general attached great weight to general
principles which sometimes could not be refined into operational rules. If we look at the
same thing from a different point of view I would say that in most cases the attitude of
the Third World was defined by the total effect of a proposed solution…I think that the
Western powers put too much emphasis on the mechanistic elements [of law] while
for Third World countries if by going through all the motions and respecting all the
procedural rules you end up with an unjust solution, this would be bad law. And if you
have a general directive, even if you cannot reduce it to very precise procedural rules, it is
still good law, though it may be imperfect in terms of application.
In some ways that quotation summarises a fundamental distinction in perceptions

of international law in particular (but also, to some extent, of municipal law). It is of
the essence of the law way (meaning the ‘rule of law way’) of dealing with the world,
that the rules precede the facts to which they are to be applied. Indeed it is this
that makes the writing of ‘pure international law textbooks’ apparently sensible. It is
also of the essence of both contract law and treaty law that in general, rules are laid
down providing for future possibilities. To most of us this seems, no doubt, obvious
and sensible but the quotation should highlight the potential shortcomings of the
structuring of rules to ensure justiciable disputes (disputes in a form that allows law to
be applied). If the application of rules or treaty provisions, or even contracts, leads to
results which one party is very unwilling to accept, particularly arising from situations
unforeseen or unexpected at the time of the rule or contract formulation, then those
who do not identify with the Western view of international law might well consider it
dysfunctional. The preoccupation of international lawyers with the need to structure
problems in a way which makes them justiciable is of central importance. Indeed, from
the perspective of Western international lawyers, treaties, rules or resolutions which
do not allow the formulation of problems in this way are often accorded significantly
less respect. (A point to which we will return.)
Crucially (and this proposition underlies much of the argument of this module), only if
the ‘rule of law’ approach to international law is seen as a particular way of organising
the world, rather than as common sense, can we begin to appreciate the significance
of international law in the international community as a whole. What has been
suggested to be singular about the international law way of encompassing the world
is both:
u ‘rule magic’, by which I mean that situations in the future are governed by rules
which, when made, had either not contemplated the facts of all future cases or,
when they were made, they were made without the participation of a party now
said to be subject to them
u and, the method by which social facts are translated (or selected) as legally relevant.
What always distinguishes legal disputes from other disputes will be the structuring
of the issues whereby many of the facts which parties (or at least one party) to the
dispute might think important are irrelevant for the purposes of legal resolution.
What is the significance of this? First, it should be made clear that in translating
social and political situations into the legal world, one effect is often to apparently
de-politicise a dispute. Legal questions have an appearance of legal objectivity and
political neutrality. It is the law which is being questioned and considered and this
seems very different from political dispute. This will be further considered in Chapter
6. You should appreciate nevertheless that law questions do, in fact, always have a
political dimension, as indeed does the law itself.
Activity 2.4
Are there any consequences to a conclusion that international law reflects a
‘Western’ way of understanding the world?
Summary
International law should be understood as a particular way of governing international
relations rather than as common sense.
Self-assessment exercise
Explain what you understand by the statement that international law operates by
translating social and political events into legal cases.

u understand that international law functions by making situations fit its
categories.
2.5 Why should international law be defined as law?
Core text
Most international lawyers would claim that what distinguishes international law
from international relations and brings it within the definition of law is, first, that it is a
‘distinctive mode of discourse’ – that is, the law way of discussing international issues
is distinctive because of the rules, procedure and process which it brings to bear upon
questions. Indeed even the formulation of the questions in a dispute will be affected by
the input of international law knowledge. Second, every state does accept the existence
of international law as something distinct from ordinary international intercourse.
Dealing with the second point first, this acceptance of the reality of international law by
states is important in the refutation of those who suggest that international law is not
really law. In domestic law it can be argued that the fact that laws are often broken and
wrongdoers often escape punishment is of only marginal importance to the existence
of law. Much more significant is that most citizens have actually internalised the values
of criminal law even if they do not agree with them. Domestic wrongdoers very seldom
attempt to deny the authenticity of the law, rather they try to justify their transgression.
This is just as true in international law. When Saddam Hussein ordered the invasion
of Kuwait in 1990 he did not announce that he intended to flout or, worse still, ignore
international law. Rather he attempted, perhaps not terribly convincingly, to defend his
actions as being consistent with international law. Thus he not only suggested that the
invasion was legitimate self defence but he also referred to historic Iraqi claims over
the territory of Kuwait. When the United States invaded Grenada in 1983 it too, albeit
belatedly and a little half-heartedly, attempted to justify the invasion legally. The fact
that the ‘justification’ withstood little scrutiny is less important for our argument than
the fact that the United States felt bound to make it. Very much the same was true of the
US invasion of Panama to capture General Noriega. Even the claim by China that both
Tibet and Taiwan are integral components of the Chinese territory is couched in terms
calculated to appeal to international law. More recently the intervention by NATO in the
territory of the former Republic of Yugoslavia was defended as being consistent with
international law; while it is argued (at least by Israel and the United States) that Israel’s
activities in Palestine are not necessarily a breach. Even more recently of course has been
the bitter legal debate concerning the intervention of the US ‘coalition’ in Iraq. Quite
remarkably the debate over the legality of the intervention has been absolutely central
to the debate over intervention itself. There are those, both teachers of international law
and politicians, who argued forcefully that the matter should have been finally resolved
by its persuasively argued illegitimacy. This debate was very important in the 2005 general
election in the UK. (In 2016, we had, for the first time in the modern era, a self-proclaimed
state – the so-called ‘Islamic State of Iraq and the Levant’, commonly referred to as ‘ISIS’
or ‘ISIL’ – which uniquely accepted neither the existence of international law, nor human
rights and democracy. The significance of this will be referred to in the final chapter.)
As Brierly (an eminent UK authority on international law) wrote in 1944:
The best evidence for the existence of international law is that every actual state
recognises that it does exist and that it is itself under obligation to observe it. States may
often violate international law, just as individuals often violate municipal law, but no more
than individuals do states defend their violations by claiming that they are above the law.
As to the first point, the distinctiveness of international law derives in part from its
sources and origin. International law and laws essentially came into existence either
through treaties (which obviously require the consent of those who are to be bound
by them) or through custom, and usually, but not always, custom which has been long
established. Of course not all custom is held to be international law, rather only that
which has been regarded by states as legally binding custom. Thus custom becomes
international law only when the states observing the custom do so in the belief that
the custom is indeed a part of international law. The fact that there is no law-creating
legislature really, it can be argued, simply reflects the reality of sovereignty. As Shabtai
Rosenne observes in a book published in 1984†, ‘International law is a law of co- †
Rosenne, S. Practice and
ordination, not, as is the case of most internal law, a law of subordination. By law of co- method of international law.
ordination we mean to say that it is created and applied by its own subjects, primarily (Dobbs Ferry, NY: Oceana
the independent states (directly or indirectly), for their own common purposes.’ Publications, 1984)
[ISBN 9780379201406].
But let us return to the argument that the law way of dealing with international issues
is a distinct way (that is to say that legal discourse is distinguishable from the language
of general international relations). In domestic terms it can be argued that what
distinguishes most clearly the law way from the social way of resolving disputes is that
law always requires a translation of social facts in to legal facts. This is no less true of
international law. But the argument also suggests that this necessary translation is
both law’s greatest strength and paradoxically its greatest weakness. It is a strength in
that when a dispute is put in legal terms with legal issues, it becomes legally resolvable
in that there will be (almost invariably) a legal solution to the legal problem. It may
also be a weakness because the resolution, while it will resolve the legal issue, may
not resolve the social (untranslated) problem. The law way of resolving disputes works
‘best’ when all the parties to the dispute accept the ‘legalisation’ of the dispute.
Very much the same applies in international law, which is a central factor in explaining
the reasons why only a minority of states accept the compulsory jurisdiction of the
International Court of Justice. There is little point in having a dispute legally resolved if
the underlying political problems remain. Unless the parties to the dispute, together
with the constituencies they represent, accept that the legal outcome resolves the
problem, the resolution itself may in fact simply lead to further disputes. In due course
when we consider at some length the role, effect and politics of the International
Court of Justice, this argument will be made by reference to selected cases which have
come before it. Suffice to say at this point, that while any number of cases could be
selected to illustrate the proposition, a crucial feature of the translation from social
to legal dispute will always be concerned with the initial selection of legally relevant
facts. Almost invariably the selection of these facts not only structures the legal issues
and thus the questions for judgment, but involves at the least a modification of the
political arguments.
Activity 2.5
What distinguishes international law from international relations?
Summary
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.
What arguments can be made for international law to be accepted as genuine law?

u understand the method of international law.
Sample examination questions

Question 1 ‘Comparisons between domestic law and international law bring out
all the reasons why some writers have suggested that international law is no more
than an aspect of the study of international relations. Such views however simply
misunderstand the nature of law.’
Discuss.
Question 2 What arguments can be made for the proposition that international law
is Eurocentric?
Advice on answering the questions

Question 1 This question requires a rehearsal of the differences between domestic
and international law and an assessment as to whether these differences suggest that
international law is not really law. This obviously depends on what is to be defined as
law, but it is then necessary to consider the effect of the method of international law-
making and the lack of a central sanctioning body. It could be argued that law does not
require sanctions in order to be legal. It will also be appropriate to consider law as a
distinct form of discourse and the method of ‘legal translation’.
Question 2 It would be useful to begin by discussing the meaning of ‘Eurocentric’.

There may be more than one meaning. You might first refer to the fact that
international law clearly has European origins – and these from a time of colonialism
when the most powerful states were European. Or you could refer to how law
operates, that is the method it utilises to analyse and resolve problems between
states. Examples could be drawn from cases before the ICJ (these are discussed in
Chapter 8). This could lead to a discussion of the significance of what is arguably
‘Eurocentric’.
Notes
3 The sources and method of international law
Contents
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
3.1 Article 38 of the Statute of the International Court of Justice . . . . . . . 33
3.2 International treaties . . . . . . . . . . . . . . . . . . . . . . . . . . .34
3.3 Treaties and jus cogens . . . . . . . . . . . . . . . . . . . . . . . . . . 35
3.4 Treaties and reservations . . . . . . . . . . . . . . . . . . . . . . . . . 36
3.5 Customary international law . . . . . . . . . . . . . . . . . . . . . . . 37
3.6 Other sources of international law . . . . . . . . . . . . . . . . . . . . 39
3.7 ‘Soft’ law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40

Introduction
The point has been made in earlier chapters that the sources of international law are
not the same as those in domestic law. You should remember, too, that the two major
sources creating legally binding rules of international law are treaty and custom. This
chapter considers those sources and, briefly, other sources.
In domestic law the question of the source of a rule or law is seldom controversial.
Common law systems rely upon statutes and the decisions to be found in court
judgments for evidence of the existence of the rule or law; civil law systems rely upon
the appropriate legislation or Codes. It is rarely necessary in either system to inquire
whether a legal rule is in fact a legal rule and its existence, if not its interpretation, will
be uncontroversial. Exceptionally a further question may arise as to the legitimacy of
the rule. If it does it will usually concern the status of the rule that might be affected
by procedural defects, or be beyond the power of the body that purported to create
it. When such a question does arise there are other rules and procedures that allow for
the testing of the validity of the rule in question.
Various authors have described such domestic systems in terms of primary and
secondary rules. The rules that simply govern conduct are the primary rules, while the
‘rules about the rules’ (that is, those used to determine their legitimacy) are said to be
secondary.
International law presents different problems, which is why all international law
textbooks have a section devoted to the question of sources. Significantly there is
no agreed statement about what does constitute a source of international law. Thus
questions relating to the secondary rules are not only more frequent, but also more
difficult to resolve. The validity or reality of international customary rules is often
contentious and many cases turn on whether the existence of a rule can be proven.
Learning outcomes
u understand why the question of sources receives a different answer in
international law from that in domestic law
u understand that customary international law is still a matter of contention both
in the manner in which it is created and in its application
u describe the content of Article 38 of the Statute of the International Court of
Justice
u recognise that treaty and customary international law are overwhelmingly the
major sources of international law
u understand the meaning and impact of the peremptory norms of international
law (jus cogens) upon treaties
u understand the meaning and significance of reservations in multilateral treaties
u understand the concept of customary international law
u appreciate the nature and quality of sources beyond custom and treaty
u appreciate the nature and quality of ‘soft’ law and its relationship to hard law on
the one hand and political discourse on the other.
Public international law 3 The sources and method of international law page 33
3.1 Article 38 of the Statute of the International Court of Justice

The closest approximation to an authoritative list of relevant sources, and the one
usually quoted, is to be found in Article 38 of the Statute of the ICJ. This states:
(1) The Court, whose function is to decide in accordance with international law such
disputes as are submitted to it, shall apply:
(a) international conventions, whether general or particular, establishing rules

expressly recognised by the contesting states
(b) international custom, as evidence of a general practice accepted as law
(c) the general principles of law recognized by civilized nations
(d) subject to the provisions of Article 59 [‘The decision of the Court has no binding
effect except between the parties and in respect of that particular case’] judicial
decisions and the teachings of the most highly qualified publicists of the various
nations, as subsidiary means for the determination of rules of law.
(2) This provision shall not prejudice the power of the Court to decide a case ex aequo et
bono, if the parties agree thereto.
Of course what you will notice is that this is not a general statement of sources but
an instruction to the ICJ as to the law the Court is to apply in disputes before it. It
has been argued that even in its own terms as a general statement it is inadequate,
because it is not complete. Nevertheless, so overwhelmingly dominant are the sources
of treaty and ‘international custom, as evidence of a general practice accepted as
law’ (customary international law) that it is these with which we will be primarily
concerned.
Custom and treaty can be seen as closely related. Both rely upon the consent of the
parties to be bound, but in customary international law the consent is predominantly
tacit or implicit whereas in treaty it is expressed and explicit. Nevertheless they do
differ, in that customary law comes to affect all states, whereas treaties are generally
confined in their effect to the states that are parties. But sometimes a treaty may
simply explicitly state a rule of customary international law and sometimes, where the
terms of a treaty are very widely accepted by states that are not parties to the treaty,
they may develop as customary international law.
This will become clearer through your Core text readings.
Activity 3.1
What is the status of Article 38 of the Statute of the International Court of Justice?
Could the sources of international law be clarified? How?
Summary
Article 38 indicates the sources of international law, but because it is directed to the ICJ
it should not be regarded as definitive.
What are the sources of international law? Is Article 38 sufficient to define them?

u understand why the question of sources receives a different answer in
international law from that in domestic law
u understand that customary international law is still a matter of contention both
in the manner in which it is created and in its application
u describe the content of Article 38 of the Statute of the International Court of Justice.
3.2 International treaties

NB This topic is considered more fully in Chapter 6 of this module guide.
Core text
¢ Mansell and Openshaw, Section 4.1 ‘Introduction’ and Section 4.2 ‘The law of
treaties’.
¢ Wallace and Martin-Ortega, Chapter 8 ‘The law of treaties’.
The major contemporary source of international law is the treaty. Treaties may
be bilateral (between two states) or multilateral (where there are more than two
states). Generally speaking, treaties will be binding only upon the state parties to
any particular treaty and the nature of the obligation will be defined within the
treaty. The generic term ‘treaty’ covers a multitude of international agreements and
contracts between states. As well as those describing themselves as treaties the term
may include conventions, pacts, declarations, charters, protocols and covenants. The
binding nature of treaties lies at the very heart of international law and is derived from
the pacta sunt servanda principle, which roughly translates as ‘promises must be kept’,
or, more precisely with regard to treaties, as ‘Every treaty in force is binding upon the
parties to it and must be performed by them in good faith’. The exact status of this
principle is a more complex question than it might appear. Some have argued that it
is a basic customary international rule, others that it is simply a premise upon which
the edifice of international law is built. Either way, although it may be criticised, it is
difficult to envisage any international legal system in which state promises were not
overwhelmingly regularly kept, and even sometimes enforced. But it is important to
realise that the principle is not as neutral as is often assumed. As will be seen in the
ICJ case of the Gabcikovo-Nagymaros Project (discussed in Chapter 6), the effect of the
principle may both directly impact upon and constrain democratic decision making.
It was also argued in the previous chapter that the very concept of being bound by
an agreement even when faced with changed (but not fundamentally changed)
circumstances is a quintessentially Western legal way of interpreting the world.
While there are obvious similarities with contracts in domestic law there is of course
no need for consideration in the contractual sense, and the benefit may be all one
way – the fact that the parties may be referred to as ‘high contracting parties’ does not
indicate a contractual relationship. And although Article 52 of the Vienna Convention
on the Law of Treaties, 1969 (which is considered in Chapter 6) provides that a treaty
will be void if its conclusion ‘has been procured by the threat or use of force in violation
of the principles of international law embodied in the Charter of the United Nations’
this is the only sort of coercion accepted as necessarily voiding treaties according
to the Vienna Convention. Indeed, the fact that the Vienna Conference issued a
separate ‘Declaration on the Prohibition of Military, Political or Economic Coercion in
the Conclusion of Treaties’ strongly suggests that such coercion, though it may not
be acceptable, is nevertheless not (at least necessarily) contrary to international law
and will not have the effect of making such a treaty void. This is important because
mere sovereign equality cannot disguise extraordinarily unequal economic or other
bargaining power in treaty negotiation. One example where a coerced treaty would
not have been void had it been concluded was the so-called ‘Rambouillet Accords’
(Interim Agreement for Peace and Self-Government in Kosovo) of February 1999 which
Serbia was ‘pressed’ to accept. Others are less controversial because they are less well
known, and this is particularly true of trade agreements.
The result of a breach of a treaty obligation will often be defined by the terms of the
treaty.
Activity 3.2
‘International conventions or treaties are the only way states can consciously
create international law’.
Discuss.
Summary
Treaties are voluntary (subject to some qualification) agreements between two or
more states generally binding only upon the parties. Unlike contacts in domestic law
there need be no consideration and all the benefit may flow to one party.
Is there a significant 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?

u recognise that treaty and customary international law are overwhelmingly the
major sources of international law.
3.3 Treaties and jus cogens
Core text
¢ Mansell and Openshaw, Section 1.6 ‘Why is it necessary to identify the sources of
international law?’.
¢ Wallace and Martin-Ortega, Chapter 8 ‘The law of treaties’, pp.199 and 200.
There is one significant constraint upon terms which may be included within a treaty.
Article 53 of the Vienna Convention provides that:
A treaty is void if, at the time of its conclusion, it conflicts with a peremptory norm of general
international law. For the purposes of the present Convention, a peremptory norm of general
international law is a norm accepted and recognised by the international community
of States as a whole as a norm from which no derogation is permitted and which can be
modified only by a subsequent norm of general international law having the same character.
This is extended by Article 64 to provide that where new peremptory norms of

international law arise, any existing treaty which is in conflict with the norm becomes
void and terminates. What are such peremptory norms (also known as jus cogens)
and what is their significance? At their broadest they are rules of almost international
constitutional importance. Their significance is that there exists a body of principles
accepted by the international community as a whole that are of such fundamental
gravity as to ensure that no treaty which contemplated their breach would, or could,
be valid. Examples would be ‘the establishment or maintenance by force of colonial
domination, slavery, genocide or apartheid’ (from your Cassese reading), together with
the crimes enumerated in the Geneva Conventions, 1949.
Unfortunately, while some principles such as the prohibition of genocide are accepted
and uncontroversial as peremptory norms, there is widespread disagreement as to
the status of other norms. Thus while many would argue that the principle of the
prohibition of the use of force in international relations as laid out in the United
Nations Charter has achieved this status, subsequent practice makes this doubtful and
less than clear. Surprisingly this is so notwithstanding the agreement between both
parties in the Nicaragua (Merits) Case (referenced in your reading) that the prohibition
of the use of force had come to be recognised as jus cogens.
Activity 3.3
Why do you think peremptory norms have developed in international law? What
are the political views that created a debate?
Summary
Customary international rules that are regarded as fundamental and have the status of
peremptory norms may not be excluded by treaty. Any attempt to do so will arguably
render such a treaty void.
What justification may be advanced for the rule concerning the invalidation of
treaties breaching a peremptory norm of international law?

law (jus cogens) upon treaties.
3.4 Treaties and reservations
Core text
¢ Mansell and Openshaw, Chapter 1 ‘Introduction’, pp.28–30.
¢ Wallace and Martin-Ortega, Chapter 8 ‘The law of treaties’, pp.188–93.
The final aspect of treaties that must be considered in this chapter concerns reservations,
defined in Article 2(1)(d) of the Vienna Convention on the Law of Treaties as meaning
‘a unilateral statement, however phrased or named, made by a State, when signing,
ratifying, accepting, approving or acceding to a treaty, whereby it purports to exclude or
to modify the legal effect of certain provisions of the treaty in their application to that
State’. Reservations are of significance here for two reasons. The first is that reservations
essentially recognise the necessity of consent by a state to all the terms of a treaty by
which it is bound. This in turn, because of the principle of reciprocity, means that a
reservation established with regard to another party to the treaty:
(a) modifies for the reserving State in its relations with that other party the provisions of
the treaty to which the reservation relates to the extent of the reservation; and
(b) modifies those provisions to the same extent for that other party in its relations with
the reserving State.
(Article 21(1) of the Convention)
Thus no party to a treaty can be bound to a greater extent as against any other party
than that party is itself bound. Any reservation by a state also limits the obligations of
other states towards the reserving state to the same extent as the reservation.
The second matter of note is that reservations are often used in a way which has a
very significant effect upon the obligations apparently accepted and undertaken.
The so-called compulsory jurisdiction provision in the Statute of the ICJ (Article 36(2))
which provides that the state parties to the Statute may at any time declare that they
recognise as compulsory ipso facto and without special agreement, in relation to any
other State accepting the same obligation the jurisdiction of the Court in all legal
disputes concerning:
u the interpretation of a treaty
u any question of international law
u the existence of any fact which, if established, would constitute a breach of an

international obligation
u the nature or extent of the reparation to be made for the breach of an international
obligation
has been accepted by 73 states (as at 1 January 2018). But of these many have provided
declarations which reserve substantial areas of dispute from compulsory jurisdiction.
There is always a question as to when such reservations must be seen as incompatible
with the treaty itself, as is discussed in your readings with regard to the Genocide
Convention (Reservations) Case of 1951. Reservations will generally be acceptable so
long as they are not incompatible with the purpose(s) of a treaty.
Activity 3.4
What complications do you envisage arising from the existence of separate and
different individual state reservations to multilateral treaties?
Summary
Reservations to treaties allow states to accept treaties on their own specified terms.
These will only be acceptable if they are compatible with the treaty itself. Reservations
limit the obligations of other parties in their relations with the reserving state.
In what ways and to what extent do reservations to treaties by one state affect the
obligations of other states?

u understand the meaning and significance of reservations in multilateral treaties.
3.5 Customary international law
Core text
¢ Wallace and Martin-Ortega, Chapter 2 ‘Sources’, pp.9–20.
The concept of international customary law is not easy to understand. It is usually said
(as in Article 38) that there are two elements required. The first is the custom itself, but
only custom which evidences a general practice accepted as law. The second element,
commonly entitled opinio juris sive necessitatis (opinion as to law or necessity), means
that only where a state complies with custom in the belief that it is legally required
to do so will law be evidenced. As to the element of custom, it has been held by the
ICJ that the requirement is that state practice should be ‘both extensive and virtually
uniform’ (North Sea Continental Shelf Case (1969) as discussed in Dixon and Cassese),
although it need not be absolutely consistent. On the assumption that this may be
proven (evidenced by state practice), this element presents no difficulties. The second
element, however, is sufficiently opaque to have warranted a plethora of academic
articles and discussions within textbooks.
The concept of customary international law derives from a time when international
law was overwhelmingly the law of (and between) nations. In the 19th century
international law was very much more concerned with describing the actual conduct
of states in their relationships with each other, rather than with prescribing, by which
I mean that it was concerned to encompass what nations in fact did, rather than what
they ought to do, or ought to have done. Under those circumstances it was perhaps
easier to infer opinio juris from state conduct. But now the obvious difficulties are not
readily resolved. The statement that it is necessary to show that compliance arose
because of the state’s belief that it was legally required to comply, implies a mental
element from a non-sentient legal personality which is merely an institution, albeit
reified (turned in to a social fact). Institutions as such are capable of many things but
such mental apprehension is not one of them. The opinio juris is to be inferred from
the words and actions of personnel within the institution whose status so empowers
them. More particularly, examples of state practice required to evidence opinio juris
include official government statements, diplomatic exchanges between governments,
the opinions of national legal advisers, national legislation, bilateral treaties, decisions
of national courts, and possibly also voting patterns of a state in an international

organisation.
Even more significant is the difficulty which Michael Byers (Byers, M. Custom, power and
the power of rules: international relations and customary international law. (Cambridge:
Cambridge University Press, 1999) [ISBN 9780521634083]) calls ‘the chronological
paradox’ and which has been observed by many writers. If, as was stated in the North
Sea Continental Shelf cases:
Not only must the acts concerned amount to a settled practice, but they must also be
such, or be carried out in such a way, as to be evidence of a belief that this practice is
rendered obligatory by the existence of a rule of law requiring it. The need for such a
belief, i.e. the existence of a subjective element is implicit in the very notion of the opinio
juris sive necessitatis. The states concerned must therefore feel that they are conforming to
what amounts to a legal obligation
then it is difficult to see how new customary rules could ever develop since the
required opinio juris could only exist where the custom or rules already had that legal
element.
You should also remember the concept of the persistent objector in international
customary law. Because law requires consent to develop, it has been accepted (with
some qualification) that where a state makes it clear that it does not agree with rules
which appear to be crystallising into law, that an objecting state will remain unbound.
The qualification is that where a rule receives overwhelming acceptance over a period
of time by very many states, then even a persistent objector may come to be bound.
This in turn leads to a further problem. On the one hand customary international
law is said to be constantly developing, and yet on the other hand, quite how it
can develop is not clear. A very recent former US Attorney-General, Bill Barr, was
reported to have said, ‘Well, as I understand it, what you’re saying is the only way to
change international law is to break it.’ This aptly captures the difficulty of creating
new custom sufficient to gestate international law. Here too the question of power
becomes relevant. Shabtai Rosenne once observed that the creation of customary
international law was rather analogous to animals creating a track through a jungle,
in that each animal following the trail left its imprint but the bigger the animal the
bigger the impact on trail creation. Certainly since the intervention in Kosovo there
have been arguments that new customary international law is developing concerning
the use of force for purposes of humanitarian intervention (now referred to as within
a new doctrine concerning the ‘responsibilty to protect’). This, it has been argued,
is more likely because of the weight of the states and the international organisation
(NATO) involved.
Malcolm Shaw, a writer in international law, provided the following example:
If a state proclaims a twelve mile limit to its territorial sea in the belief that although the
three mile limit has been accepted law, the circumstances are so altering that a twelve
mile limit might now be treated as becoming law, it is vindicated if other states follow suit
and a new rule of customary law is established. If other states reject the proposition, then
the projected rule withers away and the original law stands, reinforced by state practice
and common acceptance.
Of course, if new customary international law really can be created by ignoring

the old, crucial problems arise concerning the quality of legality. This is one of the
central arguments of John Bolton, a former US Ambassador to the UN, who became
US National Security Advisor to President Trump for less than two years in April 2018.
He has argued forcefully that, at the least, customary international law should find
no unlegislated place in US domestic law. (This point is discussed further in the final
chapter.)
There is one final problem with customary international law which is observed
frequently by some writers. This concerns the proof of custom. The argument is that
the ICJ has chosen (when it wished) to find the evidence of custom either in passive
acquiescence by states or even in their inactivity. The difficulty here is that inactivity or
passivity gives no evidence of reason or intent, either of which may have nothing to do
with legal concerns. If this is the case then the notion of customary international law is
further sullied. This issue will be considered further in later chapters.
Activity 3.5
What problems are inherent in the concept of customary international law?
Summary
Customary international law with its requirement of custom and opinio juris is both
central to international law and also difficult to explain cogently. This is largely
because of the necessity to attribute a mental element to an institution (the state).
How do your readings suggest that consistency and generality of practice as
required for customary international law is to be established?

u understand the concept of customary international law.
3.6 Other sources of international law
Core text
¢ Mansell and Openshaw, Chapter 1 ‘Introduction’, pp.33 and 34.
It is important that you remember that international law is overwhelmingly concerned

with treaty and custom, and that other international law ‘law-making processes’ are very
much subsidiary to them. But as two further sources are mentioned in Article 38, for the
sake of completeness it is necessary for us to briefly consider them here. They are:
u ‘the general principles of law recognised by civilised nations’, and
u ‘judicial decisions and the teachings of the most highly qualified publicists of the
various nations’.
The phrase ‘general principles of law’ refers to legal principles which exist in almost
all domestic legal systems. These principles will be applied (if their existence can be
proven) where neither treaty nor customary international law seems applicable to a
particular event. Because the international law regime is not totally comprehensive
(that is, it does not have ready international law for every unique event), general
principles are sometimes necessary. Examples of such principles used in international
law include:
u recognition of the principle that violation of an obligation leading to injury or

damage should lead to reparation
u the right of parties to a dispute to be heard before judgment is given
u the concept of limited liability.
The general principles also probably include principles of equity, in the sense of legal
fairness rather than the rather refined UK area of law.
In your reading Dixon makes the very sensible point that even if such ‘principles’ do
not qualify as binding law, it is clear that they may have a profound impact on the
development of international law, either as furnishing a reason why specific norms
should be adopted or as the catalyst for state practice leading to the creation of
customary and treaty law.
The second subsidiary source is said to be judicial decisions and the teachings of the
most highly qualified publicists of the various nations. Debate as to the meaning of this
has been lengthy and intense. It is stated in Article 38 as being only a subsidiary means
for the determination of rules of law – that is, it is not the rules themselves. What
does this mean? The first point you should understand here is that international law
makes no use of the common law system of stare decisis. In international law no court
binds itself or any other court by its decisions and it is explicitly stated in the Statute of
the ICJ that decisions have no binding quality beyond the parties to a particular case.
Nevertheless, as you will quickly appreciate if you read some ICJ cases, they do refer to
earlier relevant cases in order to identify the law. Although the analogy is not exact, in
international law judicial decisions and the writings of the highly qualified publicists
are used as, in the common law system, decisions from different jurisdictions and the
writings of legal academics are used. That is, they may be more or less persuasive not
because of their status but because of the logic in their reasoning and argument.
Finally there are some resources recognised as actual or potential sources of

international law which do not appear in Article 38. The most important of these are
Resolutions of international organisations which may carry weight of their own in
addition to evidencing state practice. Crucially, Resolutions of the UN Security Council
adopted under Chapter VII of the Charter are binding on all members of the UN and
create new obligations for them.
Activity 3.6
What, if anything, necessitates the use of sources over and beyond treaty and
custom?
Summary
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.
How different is customary international law from the general principles of law?

u appreciate the nature and quality of sources beyond custom and treaty.
3.7 ‘Soft’ law
Core text
In the previous chapter, in discussing the singular nature of international law we saw
that not everyone agrees with the law way of resolving disputes. We saw that some
have suggested that rather than attempting to lay down binding rules for future
situations foreseen and unforeseen, an obligation to conform only when the rules
lead to an acceptable outcome might seem fairer. Such arguments have in part been
encompassed by the recent development of what has come to be known as ‘soft’ law.
But it is here that we can observe ‘law’ moving away from our usual understanding and
back towards the political world.
A number of meanings may be assigned to ‘soft’ law, some seemingly more legal in
character than others. At its most nearly ‘legal’ soft law may encompass agreements
between states which simply have no provision for enforcement, regardless of any
default. Frequently they do not explicitly define rights or obligations. These will often
arise from agreements where the parties simply want to oblige themselves in good
faith to endeavour to promote a particular objective. Sometimes agreements which
look orthodox and appear as treaties will come within ‘soft’ law definitions because
they contain a provision stating explicitly that they are not intended to create legal
relationships, but more often the status will depend upon the intentions of the parties
inferred from the document and the circumstances as to whether they intended to
create legal relations.
It is important to realise that such law is not without consequences. One of the earliest
examples is to be found in the Helsinki Final Agreement of 1975 which established the
Conference on Security and Co-operation in Europe. Cassese also suggests that ‘soft’
law often has the potential to crystallise into hard law but that will almost always
require a change in the intentions of the parties.
Activity 3.7
What might be the reasons for the development of ‘soft’ law?
Summary
‘Soft’ law lies between the world of politics and the world of law. It is apparently less
coercive than law and it does not require a reinterpretation of the political world. It
exists where the parties do not intend to create legal relations but do wish to record
their agreement.
For which sorts of agreements might ‘soft’ law be appropriate?

u appreciate the nature and quality of ‘soft’ law and its relationship to hard law on
the one hand and political discourse on the other.

Question 1 What problems arise in attempting to define the sources of
international law?
Question 2 ‘In all of international law no more curious concept exists than
customary international law. It seems that its method of creation is uncertain, its
method of development mysterious and its application arbitrary.’ Discuss.

Question 1 A sensible approach to this question would begin with an examination of
Article 38 and an observation of its apparently limited application. It could continue
with the difficulties in discovering (identifying) and asserting customary international
law and then look at the uncertainties surrounding the general principles of law. A
practical example from an ICJ decision would be appropriate.
Question 2 Some detailed knowledge of customary international law is required here.

Once it has been described, an answer could analyse each of the observed problems
in the question (with examples). Problems in discovering could relate to conflicting
traditions, persistent objectors and uncertain status. This could be followed by
examples of the problems involved with changing customary international law
and could then proceed with examples of the ICJ deciding whether or not custom
had developed in a particular area. Finally some assessment of the accuracy of the
statement should be made.
4 The dynamic quality of international law
Contents
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
4.1 The concept of sovereignty . . . . . . . . . . . . . . . . . . . . . . . . 45
4.2 Legal personality in international law . . . . . . . . . . . . . . . . . . 47
4.3 The place of the individual in international law . . . . . . . . . . . . . 49
4.4 The interrelationship between sovereignty, personality

and the individual in international law . . . . . . . . . . . . . . . . . . 53
Introduction
This chapter is very closely related to some of Chapter 2 of Mansell and Openshaw and
much of what is there is replicated here, emphasising its centrality.
This chapter is intended to introduce you to three concepts that are central to an
understanding of international law. They are introduced in the same chapter because
they interrelate and overlap in their significance, but they are also distinct. The reason
for their introduction here is that not only are they central but their meaning and
relationship has altered significantly over the last 150 years. This historical change was
alluded to in Chapter 2, Section 2.3, and discussed broadly in the relevant readings.
Each of the concepts is also of relevance to other chapters. In particular the concept
of sovereignty is important in the discussion of self-determination (Chapter 7); the
concept of personality is crucial to an understanding of the discussion of jurisdiction
in international law (Chapter 5); and the place of the individual in international law is
relevant to the consideration of international human rights law (Chapter 10).
Learning outcomes
u understand the meaning, significance and centrality of the concept of
sovereignty
u explain the relationship between sovereignty and jurisdiction
u understand that the meaning of sovereignty is not fixed and explain why the
changes in meaning have occurred
u appreciate the significance of the UN Charter in its assertion of the equality of
states
u understand the meaning of legal personality in international law
u appreciate that the concept of international legal personality has changed over
time and is still capable of further change
u explain the place of the individual in international law and why it has changed
u understand the relationship between changes in sovereignty and legal
personality
u understand the relationship between the concepts of sovereignty, personality
and the place of the individual.
Public international law 4 The dynamic quality of international law page 45
4.1 The concept of sovereignty
Core text
¢ Mansell and Openshaw, Chapter 2 ‘The dynamic quality of international law’,
pp.39–42.
¢ Wallace and Martin-Ortega, Chapter 5 ‘Territory’.
Although this section is concerned with defining sovereignty we will not deal with
all aspects in detail. In particular the question of the limits of jurisdiction implied by
sovereignty, which is of major importance, will only be alluded to here as it is more
fully considered in Chapter 5.
Sovereignty and the state

A first important point to remember is that the concept of sovereignty in international
law is intimately related to the concept of a state. Sovereignty is what independent
states are said to possess. In international law sovereignty is the power possessed
by such states and the right or ability to exercise it. Typically such power includes
the ‘power to wield authority over all the individuals living in the state’s territory’
(Cassese). This power, although once regarded as at least theoretically absolute (the
sovereign, or rulers of a state could do as they wished in their own state and to their
own citizens), was probably never quite as broad as this. The political reality has
always exercised some constraint over the conduct of state rulers either by resistance
from subjects or by ‘influence’ from other states. Nevertheless such was the theory of
sovereignty that, as an example, when the British first learned of the atrocities being
committed in Germany against Jewish people in the 1930s, not even a note of protest
was sent by the British Government because it was thought that such intervention
breached German sovereignty!
The acquisition of statehood and territory

Because sovereignty has close links with physical territory it is important to
understand how statehood and territory are acquired. Acquisition of statehood will be
considered in Chapter 7, when we consider self-determination. Subject to what is said
in future chapters, ordinarily questions of a state’s acquisition of territory are largely
academic – or at least this appeared to be the position until purported annexations
of territory by Russia and Israel. The United Nations Charter proscribing as it does ‘the
threat or use of force against the territorial integrity or political independence of any
state’ (Article 2(4)) implicitly outlaws the acquisition of territory by a state except
through peaceful agreement. This position is reinforced by an important Declaration
of the General Assembly of the UN known as the Declaration of Principles of International
Law Concerning Friendly Relations and Cooperation among States in Accordance with the
Charter of the UN (Resolution 2625 of 1970). Here it is stated that ‘The territory of a state
shall not be the object of acquisition by another state resulting from the threat or use
of force’ and although the exact legal status of the Declaration remains controversial,
the statement was relied upon in the ICJ when in the case of Nicaragua v USA (which
we will consider in a later chapter) it concluded that international customary law also
proscribed the threat or use of force.
This, together with the ICJ’s Palestinian Advisory Opinion of 2004 which made it clear
that lawful title to territory could not be obtained by force of arms and/or effective
occupation, leads to a clear position in international law which you should remember
– namely ‘Title to territory cannot be achieved by conquest’. As one writer puts it,
‘from the moment aggressive force becomes unlawful it has been impossible for a
state to acquire title to territory by conquest’. Given the 19th century’s recognition of a
right to colonise by conquest this is a remarkable change in international law.
The principle of sovereign equality

Sovereignty has two other important aspects. The first lies in the principle of sovereign
equality. This lies at the heart of the present international law regime. The second,
which is closely related and will be discussed in the next section, is that states have a
duty of non-intervention in any area that falls within the exclusive jurisdiction of other
states.
The traditional view of sovereignty is usually traced back to the Peace of Westphalia of
1648, a series of peace treaties that ended the Thirty Years War. This is a little arbitrary,
but convenient because the Peace of Westphalia did create the foundations of a new
European system that has, since the creation of the United Nations, developed into
a world system of independent and separate states. In the words of one author, the
Westphalian settlement may be said to have ‘created the basis for a decentralised
system of sovereign and equal nation states’. This reaction to the Thirty Years War,
which had devastated Europe, was intended to enable separate states to co-exist with
a reciprocal prohibition on interference in the internal affairs of other states. Thus
the foundations were laid for a state to enjoy unlimited power over its own territory
without interference. The agreement effectively recognised that inter-state wars
could only be avoided by recognition of this principle. Needless to say, the Peace of
Westphalia was not entirely effective and there were many subsequent wars and
interventions, though possibly fewer than would have occurred without it.
The acceptance of at least the theory of sovereign equality is now enshrined in the UN
Charter, where Article 2(1) states that ‘The Organisation is based on the principle of
the sovereign equality of all its members’. I say ‘at least the theory’ because of course
the reality of a Security Council with permanent members having special powers does
seem to undercut such equality.
This feature of sovereign equality is of fundamental importance in the international

legal regime because it is this which ensures a form of ‘Rule of Law’ in that system. Just
as in domestic law each individual (that is, each subject of the legal system) enjoys
formal equality before the law, so in international law each state, as a subject of the
international legal system, enjoys formal equality. We will see the significance (and
limitations) of this proposition when we consider the methodology of the ICJ. We will
also consider the opposition to the idea of sovereign equality in the final chapter.
The authority of sovereignty

Sovereignty also brings with it total discretion for the government of a state to decide
matters that are essentially within domestic jurisdiction. Again this is an important
principle also enshrined in the UN Charter in Article 2(7) but the meaning of the
principle has not remained unchanged. In the early days of the UN some states argued
that for their internal policies even to be discussed internationally was a breach of the
principle. Needless to say, the states that held that view usually pursued policies which
were anathema to the majority. Apartheid states were prominent proponents of this
interpretation of the principle.
Constraints on sovereignty through membership of the international community are

seldom explicit and are primarily to be found in voluntary acceptance of international
law, whether through treaty or customary international law. When the UK joined
what became the European Union, this required a voluntary surrender (or at least the
curbing) of some sovereign powers to the central European authority in Brussels. It
was these voluntarily ceded powers which the UK voted in the ‘Brexit’ referendum to
regain – albeit at the cost of the benefits that came from EU membership.
Activity 4.1
What is sovereignty?
1. What historical factors meant that sovereignty was never (or almost never)
absolute?
2. Explain the significance of the sovereign equality of states.

u understand the meaning, significance and centrality of the concept of
sovereignty
u explain the relationship between sovereignty and jurisdiction
u understand that the meaning of sovereignty is not fixed and explain why the
changes in meaning have occurred
u appreciate the significance of the UN Charter in its assertion of the equality of
states.
4.2 Legal personality in international law
Core text
¢ Mansell and Openshaw, Sections 2.7–2.9.
¢ Wallace and Martin-Ortega, Chapter 4 ‘International personality’.
As Cassese observed, domestic legal systems have as their primary objective the
governance of individuals within their jurisdiction. Thus the primary subjects of
domestic law are individuals, although other created entities such as partnerships,
companies and local authorities may also both be governed by the domestic law
and have ‘legal personality’ which allows them to sue or be sued under defined
circumstances. Obviously such entities have no real personality at all in the sense that
unlike individuals, created organisations have no mind or consciousness of their own.
Nevertheless they are treated as though they have an existence independent of the
individuals within them.
In international law the primary subjects are not individuals but states, and
traditionally international law regarded states as the only subjects of international law.
4.2.1 States and legal personality

Of course states themselves might seem to us no less and no more than a collectivity
of individuals occupying a defined territory. But while in some senses this is true,
just as in domestic law corporations are regarded as real entities, so too are states in
international law. Actions and reactions by states are regarded as the acts of those
states, divorced from the individuals responsible for the state action.
In the 19th century few would have argued that international law was about anything
more than the international regulation of state conduct. Domestic law governed
individuals, but the individuals of international law were states and states alone.
The question of the role of real individuals in international law led to rather arid
discussions which often concluded that while only states were the subjects of
international law, individuals were the objects of international law. This was supposed
to suggest that international law was for the benefit of individuals through the
medium of the regulation of states.
While such a perspective is now of little significance, it does remain the case that
only states are said to be full subjects of international law because only states have
complete legal capacity in that regime. This complete legal capacity means that they
have the power to exercise legal rights in international law and are subject to the
duties prescribed by international law. This position is most easily understood by
contrasting it with the position of other actors in the international law regime.
Activity 4.2
What are the implications of regarding states as the only subjects of international
law?
4.2.2 Non-state actors and international law

At least one author (Dixon) provides a very clear discussion of the concept of
personality in international law. Most importantly he points out that the answer
to the question as to whether a particular entity is to be regarded as a subject of
international law is seldom capable of a simple positive or negative response (except
in the case of states). This is because many entities may be subjects for some purposes
and yet not for others. Dixon explains this by outlining the main capacities of a subject
of international law. These include:
u the ability to make claims to directly establish rights granted under international
law
u being subject to some or all of the obligations imposed by international law
u the capacity to make binding treaties under international law
u the right to enjoy some or all of the immunities from the jurisdiction of the
national courts of other states (see Chapter 5).
While only states enjoy all these capacities to the full, other entities will enjoy some of
the rights or be subject to some of the duties. To have international legal personality is
to be able to participate in some ways within the system of international law.
The non-state actors within international law are basically threefold. First, there are
individuals, particularly private persons but sometimes private corporations. These
are considered in section 4.3. Second, there are intergovernmental international
organisations and third, are the so-called NGOs – international non-governmental
organisations.
An obvious example of the second category (which includes myriad organisations)

is the United Nations itself. In an early case in the newly reconstituted International
Court of Justice (1949) the Court was called upon to define the status of the UN. It
did this in its Advisory Opinion on Reparation for Injuries Suffered in the Service of the
United Nations. The Opinion held that it was indispensable to attribute international
personality to the UN because its Charter assigned to it specific tasks such as
international peace-keeping together with the promotion of international economic,
social, cultural and humanitarian co-operation. In concluding that the UN was an
international person the Court went on to say:
That is not the same thing as saying that it is a State, which it certainly is not, or that its
legal personality and rights and duties are the same as those of a State. Still less is it the
same thing as saying that it is a super-State, whatever that expression may mean. It does
not even imply that all its rights and duties must be upon the international plane, any
more than all the rights and duties of a State must be upon that plane. What it does mean
is that it is a subject of international law and capable of possessing international rights and
duties, and that it has capacity to maintain its rights by bringing international claims.
In addition to the requirement that when the organisation was set up it was intended
to have international functions and obligations in order to have international
personality, is the need to show that the organisation also enjoys autonomy from its
member states. In that same case, the Court added that it must be shown that such an
organisation constitutes a ‘collective unity detached from the member states’.
Sometimes international legal personality may be explicitly provided for in the

enabling document. One example of this is the Statute of the International Criminal
Court where Article 4.1 states that ‘The Court shall have international legal personality.
It shall also have such legal capacity as may be necessary for the exercise of its
functions and the fulfilment of its purposes.’
But there are clear limits to such personality in relation to international organisations.
In particular only states and never international organisations are allowed to bring
claims in the International Court of Justice. International organisations may sometimes
have standing before regional international courts – as an example the Council and
Commission of the European Union may appear before the European Court of Justice.
In addition, any international agreements international organisations make do not
come within the definition of ‘treaties’ within the Vienna Convention on the Law of
Treaties (discussed in Chapter 6), although there is a separate Convention (the Vienna
Convention on Treaties Concluded Between States and International Organisations or
Between International Organisations, 1986) governing such agreements.
You should also appreciate that not all international inter-governmental organisations
have identical capacity in international law. The EU along with the United Nations most
nearly approach the status of a state in international law while other organisations will
have much more limited capacity.
Very much more limited is the status of international NGOs in international law. They
certainly have a part to play in international law – particularly in standard setting and
in contributing to the drafting of international documents – and most recently in the
creation of the International Criminal Court. However, they seldom enjoy rights in
international law as defined by Dixon. In spite of such limited capacity in international
law such international bodies as the International Red Cross and Amnesty
International, to mention but two, influence both the creation and the administration
of international law concerned with human rights in particular.
Activity 4.3
What is legal personality? Why is an understanding of international legal
personality crucial for any appraisal of international law?
Summary
Whereas in the 19th century only states were thought to be subjects of international
law, by recognising different aspects of legal personality it is now clear that non-state
actors also have a role in international law.
Define and explain the different attributes of legal personality.

u understand the meaning of legal personality in international law
u appreciate that the concept of international legal personality has changed over
time and is still capable of further change.
4.3 The place of the individual in international law
Core text
pp.69–75.
¢ Wallace and Martin-Ortega, Chapter 4 ‘International personality’, pp.88–92.
4.3.1 The place of the individual in international law before 1945

The idea that international organisations would ever acquire international legal
personality, albeit limited, would have been quite alien to 19th century international
law writers. The idea that individuals would ever acquire such standing would have
been simply incredible. There were a number of reasons for this perspective. The first
was that the international legal regime was obviously (at that time) concerned only
with states and related to this was the view that states, by definition, had the right to
deal with their own nationals and an obligation to respect that right of other nations.
In addition there were really no international organisations capable of imposing
obligations on or granting rights to individuals in international law.
This does not mean that international law ignored individuals entirely. Questions
which affected them were often the concern of the international regime. Questions
of international commerce, marine matters and rules relating to ‘passports, rights of
ambassadors and piracy’ were all, according to Blackstone writing in the 18th century,
matters for the concern of the law of nations. But Blackstone also maintained that
such international law was directly applicable only through municipal courts. His view
was that because the law of nations was (according to him) a full part of the common
law and the law of England, its principles could be directly applied by English courts.
Even so, if this were true, international law could affect individuals but was still seen
as a law for states alone. Because such a position left the use of international law in
the hands of state courts it was also consistent with the Westphalian rules prohibiting
interference in the affairs of one sovereign state by another.
At the same time, this view of the state as solely responsible for its nationals did give
international law an indirect means of providing remedies to individuals for claims
which they could not themselves enforce. It was held in a case heard in the Permanent
Court of International Justice in 1924 (Mavrommatis Palestine Concessions Case) that
doctrine and procedure provided for states to protect their individual nationals in an
international arena. The Court justified this position as follows:
It 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 the ordinary channels.
By taking up the case of one of its subjects and by resorting to diplomatic action or
international judicial proceedings on his behalf, a State is in reality asserting its own rights
– its right to ensure, in the person of its subjects, respect for the rules of international law.
The question, therefore, whether the present dispute originates in an injury to a private
interest, which in point of fact is the case in many international disputes, is irrelevant from
this standpoint. Once a State has taken up a case on behalf of one of its subjects before an
international tribunal, in the eyes of the latter the State is sole claimant.
It is when one realises the indirect effect of international law upon individuals before
the Second World War that sense can be made of the proposition that whereas states
were the subjects of international law, individuals were its objects.
4.3.2 The place of the individual in international law after 1945

Such perspectives have been dramatically transformed since (and to a considerable
extent, because of) the Second World War. Whereas in the past it had been accepted
that it was states that waged war, in the aftermath of the Second World War, with its
appalling humanitarian cost and the events of the Holocaust, international individual
responsibility even for the acts of states seemed not only appropriate but essential.
The development of an international law of human rights (substantively discussed in

Chapter 10) has now rendered obsolete the view that individuals had no direct place in
international law.
Critical in this fundamental change were the events surrounding the creation and
operation of the International Military Tribunal at Nuremberg in 1945. The dilemma
for the victorious Allied Powers who wished to punish individual German Nazis
responsible not only for waging an aggressive war but for the mass murder of German
and other nationals who were categorised as Jewish, homosexual, Gypsy, Communist,
or other groups regarded as unacceptable to the Reich, was that the perpetrators of
these atrocities had broken no national German laws. They had, of course, actually
written the laws which were intended to make legal their foul deeds, themselves.
Legal positivists (those who argued that international law was for states alone and that
for individuals there was no law above domestic law) found it difficult to come up with
a basis for prosecution.
Nevertheless, pursuant to promises made by the Allies during the War, the USA, the
Soviet Union, Great Britain and France created the International Military Tribunal for
violations of international law perpetrated by individuals. This Tribunal established
irrevocably that rules of international law not only should, but in fact did apply to
individuals. In a ringing endorsement of the role of individuals in international law
the Tribunal asserted, ‘Crimes against international law are committed by men, not by
abstract entities, and only by punishing individuals who commit such crimes can the
provisions of international law be enforced’.
While the truth of that statement is self-evident, the legal basis for it was not, but that
international assertion of control and authority over those who committed the most
appalling acts has come to be accepted as representing contemporary international
law. In the now accepted words of the International Military Tribunal, which have
echoes in the Statute of the International Criminal Court:
The following acts, or any of them, are crimes coming within the jurisdiction of the
Tribunal for which there shall be individual responsibility:
(a) ‘Crimes against peace:’ namely, planning, preparation, initiation or waging of a war of
aggression, or a war in violation of international treaties, agreements or assurances, or
participation in a common plan or conspiracy for the accomplishment of any of the
foregoing;
(b) ‘War crimes:’ namely, violations of the laws or customs of war. Such violations shall
include, but not be limited to, murder, ill-treatment or deportation to slave labour
or for any other purpose of civilian population of or in occupied territory, murder or
ill-treatment of prisoners of war or persons on the seas, killing of hostages, plunder
of public or private property, wanton destruction of cities, towns or villages, or
devastation not justified by military necessity;
(c) ‘Crimes against humanity:’ namely, murder, extermination, enslavement, deportation,

and other inhumane acts committed against any civilian population, before or during
the war, or persecutions on political, racial or religious grounds in execution of or in
connection with any crime within the jurisdiction of the Tribunal, whether or not in
violation of the domestic law of the country where perpetrated.
This position was further developed, initially by the UN General Assembly in its
Universal Declaration of Human Rights of 1948 asserting many rights belonging to all
individuals. At the time the Declaration was not intended to be a legal document;
a legal Covenant would be drafted to encompass the rights enumerated in the
Declaration. (This is further considered in Chapter 10.) Also in 1948 the Convention
on the Prevention and Punishment of the Crime of Genocide was created (commonly
referred to as the Genocide Convention). This did create legally binding obligations
and was explicit in its attribution of international legal responsibility to individuals.
Article IV provided:
Persons committing genocide…shall be punished, whether they are constitutionally

responsible rulers, public officials or private individuals.
Thus by the second half of the 20th century the fact of a status for individuals in
international law could not be doubted, though it remained confined to the arena of
human rights.
4.3.3 The individual in international law as exemplified by the European

Convention on Human Rights and Fundamental Freedoms
The history of the place of the individual in international law is well illustrated by the
development of the European Convention, especially as it affected individuals in the
United Kingdom. It was drafted under the auspices of the Council of Europe, which
at that time was an intergovernmental organisation the purpose of which was to

facilitate European co-operation over a broad range of subjects. When the Convention
was drafted in 1950 there were 25 members of the Council and a requirement under
the Council’s Statute (Article 3) provided that each member, upon joining, must
‘accept the principles of the rule of law and of the enjoyment by all persons within its
jurisdiction of human rights and fundamental freedoms’.
The motivation underlying the Convention was clear. It was to further democracy,
guard against the rise of any totalitarian regime (either Nazi or Communist), and
protect human rights. Many argued that these goals were all interrelated. For our
purposes what is significant is the role assigned to the individual in all this. When
drafted, provision was made within the Convention for one member state to petition
against another if the petitioner considered the respondent state to be in breach of
its obligations. It was probably the case that this was seen as the appropriate method
under international law to achieve enforcement. Such petitions were to be judged
by an adjudicatory body and significant sanctions were available. A respondent state
was not permitted to assert that matters complained of were within its domestic
jurisdiction and so unavailable for external review.
But while it was thought that inter-state petition would be the central mechanism of
enforcement, this has proved not to be the case. Article 25 of the Convention provided
that the European Commission of Human Rights (a body created by the Convention)
could receive petitions from any person, non-governmental organisation or group
of individuals claiming to be the victim of a violation by one of the state parties of
the rights guaranteed in the Convention. Before this could happen, however, each
state was given the right to decide whether to grant this right of individual petition
to those within their jurisdiction. With the passage of time more and more states
accepted this right, some initially for limited periods but most finally and irrevocably.
The United Kingdom accepted the right only in 1966. But even then the UK position
was curious to those not familiar with international law. An individual was entitled
to bring an application to Strasbourg, where the Commission and European Court of
Human Rights resided, having exhausted the possibility of a domestic remedy. Such
an applicant could not however invoke the guarantees of the Convention before UK
courts because, although the UK was a party to the Convention, the provisions of the
Convention had not been made a part of the domestic law. Furthermore, having taken
a case to Strasbourg and having won, the successful applicant had no way of enforcing
the judgment through UK courts. Rather, they must rely upon the UK fulfilling its
international obligations under the Convention in providing the remedy ordered, and
only other parties to the Convention could insist upon that obligation.
The UK did in fact give effect to judgments against it, but that nevertheless was the
legal position. It was only with the passage of the UK Human Rights Act of 1998, which
effectively incorporated the provisions of the Convention into domestic law, that UK
courts could give effect to Convention content.
This digression into the status of the individual under the European Convention
highlights the relationship between the citizen and his state on the one hand – a
direct relationship within which rights are directly provided; and on the other
hand the relationship between a citizen and other states and international bodies
with whom his own state has entered into international legal relations. This is to
be contrasted with those international legal documents which provide for direct
individual responsibility (as opposed to rights) for international crimes. The Genocide
Convention, together with the Statute of the International Criminal Court, both
provide for such responsibility unmediated by the state.
The conclusion you should draw, therefore, regarding the place of the individual in the
international legal regime is that individuals may be given rights in international law
with the acquiescence of their state but responsibilities may be imposed irrespective
of the position adopted by a national’s state.
Activity 4.4
Why have individuals come to occupy a place in international law since the Second
World War?
Summary
Although it is clear that individuals now have a status in international law that they
did not enjoy before the Second World War, it is also clear that this status is limited. It
gives individuals responsibility for international crimes and, with state acquiescence,
individual rights to protect guaranteed human rights.
Do you think that the role of the individual in international law is rational? How can
it be justified?

u explain the place of the individual in international law and why it has changed
personality.
4.4 The interrelationship between sovereignty, personality and

the individual in international law
Core text
¢ Mansell and Openshaw, Section 2.10 ‘The interrelationship between sovereignty,
personality and the individual in international law’, which is largely replicated
below.
The first thing that the concepts we have considered have in common is that they are
all in a state of change or have in fact changed. What we will consider here is whether
that change is simply coincidental or whether it illustrates some general phenomena
of relevance to a study of international law. My argument is that by examining the
changes we can gain some idea of the relationship between the social and political
world and the world of international law. What were the major political and social
changes from the 19th to the 21st centuries that necessitated major international
legal change? At one level this question is too broad to be sensible but some
generalisations are important.
The 19th century was dominated by European states and it was from these that 19th
century international law emanated. Not surprisingly, therefore, international law
reflected the wishes and needs of these states as perceived by those who ruled them.
In turn these wishes and needs reflected a very idiosyncratic perception of the world.
Colonialism was accepted as unproblematic and sovereignty was defined accordingly.
Along with this concept was carried the right to use what we would now call ‘gun-boat
diplomacy’ (or unrestricted force) in order to assert possession of colonial territory.
The ideology that accompanied colonialism could be described as social-Darwinism
– a stated belief in the superiority of European development and a belief that colonial
societies required development before they could reach such a stage. Indeed many
Europeans saw no possibility of ‘primitive’ peoples ever reaching a point where they
would be capable of running their own affairs. Deeply offensive as these views now
appear, it is important to realise that they underpinned much international law.
European empires and their preservation lay at the heart of international law.
Changes in the concept of sovereignty accompanied the period of decolonisation (as

we shall discuss in Chapter 7) and it reflected the new-found voice of colonial peoples
in their self-assertion. From the concept of sovereignty being entirely at home with
empire it was redefined so that it legitimated and sustained anti-colonial freedom
movements. As the power of empire waned, so sovereignty as the guarantor of state

independence grew. Yet even as it did so its nature modified as the human rights era
qualified its previously arguably absolute character.
The 19th century also saw the beginnings of a system of intergovernmental

organisations that foreshadowed a role for such bodies in international law.
Improvements in transport, communications and trade led in the second half of the
19th century to a plethora of these organisations, beginning with the 1865 founding of
the International Telegraphic Union and the 1874 Universal Postal Union. This precursor
of ‘globalisation’ made it inevitable that such bodies, created with the express consent
of states, yet having an independent existence, were obvious candidates for at least
limited international legal personality.
As for individuals in international law, as long as one attribute of sovereignty was

complete and exclusive control over those within a state’s jurisdiction, there could be
no place for the individual in international law. Such an attribute however rendered
the international community entirely legally impotent in the face of atrocities
committed by a government against its own people (or in occupied territories).
Whereas this had been accepted with something approaching equanimity in
colonial legal circles, social pressures arising especially from Nazi atrocities dictated
reconsideration, manifested both at Nuremberg and in the Universal Declaration.
What should be clear, then, is that in spite of there being no mechanism for enacting
new international law, through the medium of treaties, and through the development
of customary international law, it is possible for international law to at least reflect
changing times, changing power structures and changing international public opinion.
Activity 4.5
What if anything is the relationship between sovereignty and personality in
international law?
Summary
The dynamic nature of international law is clearly related to changes in world society,
both political and social. International law is able to reflect these changes either
by explicit decision-making by the international community, as in the Universal
Declaration of Human Rights, or by decisions of the International Court of Justice
or its predecessor (when for instance it accepts a role in international law for
intergovernmental organisations).
In what ways do you think international law responds to political changes in the
world?

personality.

Question 1 What is the status of the individual in international law? Give examples
where appropriate.
Question 2 ‘All states are equal in their sovereignty but some are more equal than
others.’
Discuss.

Question 1 Although one of the major developments in international law over the last
century has undoubtedly been the change in the status of the individual, this should
not be exaggerated. Individuals still have no standing before the International Court
of Justice and such rights and obligations as they have acquired are largely confined
to the human rights field. Here they have been given both direct international law
obligations – in particular not to commit international crimes – and responsibility
should they do so; and usually indirect rights to bring applications against states
alleging breaches of state human rights obligations.
Your answer might then consider the individual’s rights under the European Convention
and how they are protected and/or consider the authority providing the rights. Finally it
would be relevant to explain why the status of individuals is limited as it is.
Question 2 The problem in defining sovereignty is both that the concept has changed
and that it may be argued that different states enjoy different levels of sovereignty.
While modern notions of sovereignty may be traced to the Peace of Westphalia,
suggesting that each state is sovereign and interference in the internal affairs of
one state by another is forbidden, in fact the constraints on sovereignty are much
greater than this would suggest. These should be discussed (particularly limitations
because of treaties, human rights regimes and powerlessness in the face of powerful
neighbours). The point that the more powerful a state the greater is its control
over its own domestic affairs means that a single definition of sovereignty might be
inappropriate. Sovereign equality can be seen to be a minor feature of sovereignty,
except in the event of international disputes before a judicial body.
Notes
5 Jurisdiction in international law
Contents
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
5.1 Jurisdiction to prescribe and jurisdiction to enforce . . . . . . . . . . . 59
5.2 Uncontroversial bases for international jurisdiction . . . . . . . . . . . 60
5.3 Controversial bases for international jurisdiction . . . . . . . . . . . . 62
5.4 Immunity from jurisdiction . . . . . . . . . . . . . . . . . . . . . . . 68

Introduction
In Chapter 4 we considered the meaning of sovereignty and suggested that it may be
understood as ‘the power possessed by states and the right or ability to exercise it’.
The purpose of this chapter is to consider more closely just what this power is and the
limits or constraints which circumscribe it. The central consideration will be the issue
of when a state may claim authority, derived from sovereignty, to act in accordance
with international law. In other words, under what circumstances does a state have
legal competence to make, apply and enforce rules of conduct? Clearly this question
may have different answers in different circumstances. We would probably assume
that, generally speaking, a state may do what it wishes in its own territory – though
there are obvious qualifications to that statement arising not least either from
international treaty obligations or international human rights law.
More significant for international law purposes is the question of when a state may
exercise power beyond its borders and what justification can be provided for doing
so. While we will see that principles have developed that define the occasions when
such an exercise of power is regarded by the international community as legitimate,
it is important to remember that the reality of power imbalance between states
(notwithstanding the principle of sovereign equality discussed in Chapter 4) means
that some states will be better able to exercise power beyond their borders than
others.
After we have considered the principle of jurisdiction in international law we will

proceed to examine the circumstances in which states or individuals or other bodies
may claim to have immunity from such jurisdiction. Much of the basis for a claim
of immunity may also be traced to the concept of sovereign equality. One of the
implications of this, it has been argued, is that no state has the right to adjudicate
upon another state’s internal policies or actions. This in turn means that no state
can require another state to appear as a party before its domestic courts. Some
individuals, because of their position within their own state, and most obviously
diplomats, will enjoy similar immunity.
Throughout this chapter it should be borne in mind that answers to questions of

jurisdiction are never final in a world of constant change. Most recently the rise of the
internet has necessitated reconsideration of some aspects of jurisdiction, particularly
concerning criminal matters.
Learning outcomes
u see why and how questions of jurisdiction relate to the concept of sovereignty
u distinguish between jurisdiction to prescribe and jurisdiction to enforce
u recognise the natural link between territory and jurisdiction
u understand the nationality principle in international law
u explain protective jurisdiction
u appreciate the controversial nature of the passive personality principle and the
effects doctrine
u discuss the meaning and significance of universal jurisdiction
u explain the basis and effect of state immunity from jurisdiction
u explain the basis and effect of individual immunity from jurisdiction
u describe diplomatic immunity.
Public international law 5 Jurisdiction in international law page 59
5.1 Jurisdiction to prescribe and jurisdiction to enforce
Core text
particularly Sections 2.3–2.6.
¢ Wallace and Martin-Ortega, Chapter 6 ‘Jurisdiction’.
If you have already studied public law you will probably remember that as a matter of
constitutional principle a state may pass any laws it wishes. Most students remember
the statement that the UK parliament could, if it so wished, pass a law banning smoking
in the streets of Paris. The point made by this rather extraordinary statement is that
the ability to legislate is not limited. This too is a premise of international law, as was
expressly recognised in one of the most famous cases to come before the PCIJ – The
Lotus Case (1927). The facts are not difficult, but unfortunately the questions of exactly
what propositions of international law the case stands for continue to exercise legal
academics. It is however comparatively clear concerning the jurisdiction to prescribe
and the jurisdiction to enforce. The case concerned a collision between ships on the
high seas (that is, beyond territorial jurisdiction) between a French steamer, the Lotus,
and a Turkish steamer, the Boz-Kourt. Eight people died in the collision, the Boz-Kourt
sank, and having rescued the survivors the Lotus entered Constantinople (now Istanbul)
where the Turkish authorities arrested and charged Lieutenant Demons, the officer of
the watch on the Lotus (they also arrested the captain of the Boz-Kourt). Demons was
convicted of manslaughter and after prolonged French objection to the Turkish exercise
of jurisdiction over him the Turkish Government accepted a reference concerning
jurisdiction to the PCIJ. By the President of the PCIJ’s casting vote the Court held that
Turkey had not acted contrary to the principles of international law. It stated as follows:
Now the first and foremost restriction imposed by international law upon a State is that –
failing the existence of a permissive rule to the contrary – it may not exercise its power in
any form in the territory of another State. In this sense, jurisdiction is certainly territorial;
it cannot be exercised by a State outside its territory except by virtue of a permissive rule
derived from international custom or from a convention.
It does not, however, follow that international law prohibits a State from exercising
jurisdiction in its own territory, in respect of any case which relates to acts which have
taken place abroad and in which it cannot rely on some permissive rule of international
law. Such a view would only be tenable if international law contained a general prohibition
to States to extend the application of their laws and the jurisdiction of their courts to
persons, property and acts outside their territory and if, as an exception to this general
prohibition, it allowed States to do so in certain specific cases. But this is certainly not
the case under international law as it stands at present. Far from laying down a general
prohibition to the effect that States may not extend the application of their laws and the
jurisdiction of their courts to persons, property and acts outside their territory, it leaves
them in this respect, a wide measure of discretion which is only limited in certain cases by
prohibitive rules; as regards other cases, every State remains free to adopt the principles
which it regards as best and most suitable.
What this seems reasonably clearly (and in my view, clearly reasonably) to assert is no
more than the proposition that sovereignty includes the right to prescribe almost as
the state wishes. But there is an equally clear difference between a right to prescribe
jurisdiction and a right to enforce jurisdiction. While a UK parliament may legislate
to criminalise Parisian smokers, it does not have the right to enforce such legislation
against French citizens – although if such a smoking Parisian came into UK territory
and was charged the position would require further consideration (see below).
Thus there is a crucial distinction between the almost unfettered right to prescribe
and the much more limited right to enforce. In the first case sovereignty allows the
exercise of right which comes with territory, but once action takes place beyond the
territory – that is, where there is no longer sovereignty – other rules recognising this
difference apply.
Activity 5.1
Explain and justify the distinction between jurisdiction to prescribe and jurisdiction
to enforce.
Paraphrase (i.e. make a shorter and simpler version of) the above quotation from
The Lotus Case.

u see why and how questions of jurisdiction relate to the concept of sovereignty
u distinguish between jurisdiction to prescribe and jurisdiction to enforce.
5.2 Uncontroversial bases for international jurisdiction
Core text
¢ Mansell and Openshaw, Section 2.4 ‘Sovereignty and controversial bases of
international jurisdiction’.
¢ Wallace and Martin-Ortega, Chapter 6 ‘Jurisdiction’, pp.123–25.
5.2.1 Territorial jurisdiction

Some authors argue that territorial jurisdiction is complete and absolute. This is because,
they would argue, sovereignty is at least co-extensive with jurisdiction. They are aspects
of the same phenomenon of statehood which implies power and authority over all
persons, property and events occurring within its territory. The fact that a state may
grant, by treaty or otherwise, limitations upon this right, does not affect its absolute
nature.
There is therefore no contentious issue of jurisdiction if an act is perpetrated within a

state’s territorial jurisdiction (which includes both its territorial sea and its airspace).
If the act is criminal, prosecution may follow regardless of other factors such as the
nationality of the perpetrator (subject only to what is said below about individual
immunity from prosecution, particularly for diplomats). Slightly more problematic
are criminal acts that are not confined to the territory of a single state. For example,
if a criminal act is planned in Pakistan and executed in India; or, to take a real case,
if a bomb is planted on an aircraft in Malta and explodes while the aircraft is in UK
airspace, where does the criminal act take place and which country has jurisdiction?
In fact states have adopted a flexible approach with the assistance of two concepts
which usually enable a single state to at least take the lead in the investigation and
prosecution of an offence. The concepts are ‘subjective territorial jurisdiction’ and
‘objective territorial jurisdiction’.
Because of objective territoriality a state will have jurisdiction over all offences that
are completed within its territory. Thus in the Lockerbie bombing where an American
passenger aircraft crashed in Scotland on 21 December 1988 following the explosion
of a bomb on board, the UK clearly had jurisdiction over the perpetrators because this
was where the murders took place.
On the other hand, subjective territorial jurisdiction will allow a state to exercise
jurisdiction where a crime has been set in motion within its territory but completed
elsewhere. The UK had not always exercised jurisdiction in such cases but with the
great rise in cross-border crime, it chose to do so and explicitly enacted legislation
– the Criminal Justice Act 1993 – enabling courts in England and Wales to exercise
jurisdiction for some crimes where an element of the crime had occurred within the
UK. The recent rise in the fear of international crime has reinforced the trend of states
asserting jurisdiction in such cases.
5.2.2 Nationality jurisdiction
Core text
¢ Mansell and Openshaw, Section 2.3 ‘The concept of sovereignty and jurisdiction’.
¢ Wallace and Martin-Ortega, Chapter 6 ‘Jurisdiction’, p.126.
A national (or subject) of a state is subject to that state’s jurisdiction wherever in the
world he may be, and a state is entitled to prosecute and punish its nationals for crimes
committed anywhere in the world. It is said that this is the corollary of the privilege of
citizenship which offers the diplomatic protection of the state to its nationals wherever
they may be. And it is because allegiance is owed by a national to his state that the
state in turn may exercise jurisdiction over him wherever in the world he is.
Such a position is exemplified by the UK case of Joyce v DPP [1946] AC 347. William
Joyce had voluntarily made propaganda broadcasts from and for Germany during
the Second World War. (He was popularly known in wartime Britain as ‘Lord Haw
Haw, the Humbug† of Hamburg’.) After Germany’s defeat he was returned to England †
‘Humbug’: a traditional
and charged with treason. Joyce’s defence was that he had in fact been born in the English boiled sweet; also an
USA of Irish parents and therefore as a US citizen he owed no loyalty to the British unreliable and hypocritical
Crown. However, he had not only lived in the UK for a considerable period but had person.
also (improperly) obtained a UK passport which was still current at the time of his
broadcasts. The House of Lords held that Joyce’s assertion of nationality in obtaining
the passport indicated the acceptance of a duty of allegiance as he would have been
entitled to claim the protection of the Crown. Joyce was convicted and executed.
Obviously the nationality principle gives rise to important questions as to who is to

be defined as a national of a state (as Joyce makes clear). In fact international law does
not define the conditions an individual must satisfy before becoming a national. Each
state is left to decide this for itself and such a decision is within its internal jurisdiction.
The role of international law is, however, of importance where one state objects to the
granting of nationality by another state. For one state to be compelled to recognise
the granting of nationality to an individual by another state it has sometimes been
suggested that there must exist a real link between the national and his state. In
fact this is doubtful and almost invariably the question of nationality remains at
the discretion of the awarding state. The only exception would seem to be where a
state has attempted to impose nationality upon an unwilling subject in order to gain
nationality jurisdiction.
5.2.3 Protective jurisdiction
Core text
pp.44 and 45.
¢ Wallace and Martin-Ortega, Chapter 6 ‘Jurisdiction’, p.126.
International law reflects and accepts the reality that states will act to punish deeds
committed beyond their borders which they regard as prejudicial to their security,
regardless of the nationality of the perpetrators. It is the so-called protective principle
that legitimates this fact. In the case of Joyce v DPP (above) this was accepted as an
alternative basis for Joyce’s conviction. Whereas in the past the principle was most
applied to such acts as espionage, the counterfeiting of currency or attempts to evade
immigration regulation, more recently the ‘vital interests’ of concern to a state have
been interpreted more widely. Both acts of terrorism and international drug offences
are accepted as acts coming within the protective principle.
While the UK had traditionally been conservative in its use of this principle, preferring
to find other bases where possible, the Privy Council decision in Liangsiriprasert v
Government of the USA [1991] 1 AC 225 signalled a change of policy which indicated
that this may no longer be the case. In that case the defendant was a Thai national
suspected of drug smuggling. A US agent lured him to Hong Kong on the pretext of a
possible drug deal. While in Hong Kong, where he had committed no offence under
Hong Kong law, he was arrested although the charges which were the basis for an
extradition request concerned offences committed outside of the Territory. Indeed
the defendant’s only connection with Hong Kong was the fact that he was temporarily
there. This notwithstanding, the Privy Council permitted his extradition, implying that
the protective principle was relevant to the recognition that the common law had to
adapt to the new reality of crime being no longer largely local in origin and effect.
There is little doubt that such a view enjoys widespread support among the
international community of states.
Activity 5.2
Define the concept of jurisdiction.
Summary
The three uncontroversial bases of jurisdiction in international law are territorial
jurisdiction, jurisdiction based on nationality and protective jurisdiction. In each case
there is a clear and close connection between the state and either the person or the
act giving rise to jurisdiction. In each case the international community is effectively
unanimous in its acceptance of these bases.
1. Why is it necessary to distinguish between jurisdiction to prescribe and
jurisdiction to enforce?
2. Why is it necessary to distinguish between objective territoriality and subjective

territoriality?

u recognise the ‘natural’ link between territory and jurisdiction
u understand the nationality principle in international law
u explain protective jurisdiction.
5.3 Controversial bases for international jurisdiction
Core text
pp.45–47.
5.3.1 The ‘effects’ doctrine as an extension of protective jurisdiction

In the last section we defined protective jurisdiction as jurisdiction necessitated by the
reality that states will act to protect themselves from extra-territorial acts that they
regard as prejudicial to their security. More controversially some states have, as Dixon
observes, ‘enacted legislation designed to give themselves jurisdiction over any matters
which produce an effect in their territory’. Obviously, for a state to make such legislation
meaningful, that state must have either substantial international power or substantial
international co-operation, or both. Thus it is not surprising that the USA has been
the main claimant of such a basis of jurisdiction. There are two major aspects to such
jurisdiction as claimed by the USA, both intended to further its economic and political
interests. The first is complicated and a detailed examination is beyond the parameters
of your syllabus. It concerns US anti-trust legislation. This is legislation intended to
prevent anti-competitive measures in business, and abuse of monopoly/oligopoly
business positions. The USA has enacted legislation under which foreign companies
that also operate, or have business interests, in the USA may receive heavy penalties for
business activities taking place wholly outside US territory. Such penalties could become
payable even though the actions of the offending company not only took place outside
of the USA but were actually quite lawful in the state where they did take place.
Not surprisingly, other states (and the European Union in particular) have objected
strenuously. If such legislation became normal for states, international trade and co-
operation would be greatly hampered and Dixon’s comment that ‘These difficulties,
and the tensions they produce between trading partners, mean that negotiation and
self-restraint among states will be necessary if jurisdictional disputes of this nature are
to be minimised’ is entirely accurate.
The second aspect to such extra-territorial claims to jurisdiction is situations

where the USA has sought to enforce a trading embargo against states of which it
disapproves. The most extraordinary of these was directed towards Fidel Castro’s
Cuba. In 1996 Congress passed the Cuban Liberty and Solidarity Act (also known after
its promoters as the ‘Helms–Burton’ Act). The stated purpose of this Act is to help the
Cuban people ‘to restore its freedom’, to which end it provides for unilateral measures
against foreigners or foreign companies engaging in commercial activities involving
assets ‘confiscated’ (arguably ‘nationalised’ is the more appropriate term) in Cuba
in the early 1960s. Such attempts to prohibit trade by foreign companies with states
which the USA disapproves of have been bitterly resented and criticised by most
other states. Cassese simply asserted that such jurisdictional claims are contrary to
international law. Nevertheless the fact that they have been asserted by the world’s
super-power is important and will receive further consideration in Chapter 11.
Another example of the ‘effects’ doctrine in international law, concerned with extra-
territorial jurisdiction is where a state attempts not only to boycott trade with another
state but also makes financial threats against states and foreign companies that fail to
comply with the announced boycott, and this concerns Iran. Since the USA unilaterally
withdrew from the Joint Comprehensive Plan of Action (JCPOA) concerning Iran, it has
not only re-imposed the Iranian boycott but is insisting that all state parties to the
agreement do likewise under the threat of financial sanction. While the legitimacy
of such action is highly questionable, this is another example of where ‘might’ will
triumph over ‘right’ as the financial power of the USA will probably prove irresistible to
all but the most powerful states.
The USA has, however, not been entirely successful in these aims in the face of the rise
of other major economic powers such as China, the EU and India, all able on occasions
to resist this imposition of unilateral sanctions and thus depriving US businesses of an
opportunity to compete with foreign competitors. The lawfulness of these secondary
sanctions intended to compel third-party states and their nationals to follow the USA’s
rather than their own state’s policies is cogently argued by many to be contrary to
international law as they violate the principle of sovereign equality. Under the Trump
administration, the USA was deterred from attempting to enforce such sanctions
against both foreign nationals and states. (In January 2021 Iran seized a South Korean
tanker on the pretext that it was polluting the Gulf with chemicals. More probably,
the seizure was because of South Korea refusing to release some $7 billion of Iranian
oil export revenues, which it says it requires to purchase anti-COVID-19 medicines and
vaccines. The South Korean explanation is that its refusal stems from the penalties
imposed by the Trump administration on Iran’s crude oil exports.)
An excellent journal article, arguing the illegality of such sanctions and, with many
examples, is Terry, P. ‘Enforcing US policy by imposing unilateral secondary sanctions:
is might right in public international law?’ (2020) 30 (1) Washington International Law
Journal 1.
1. Can you conceive of a justification for the United States’ assertion of jurisdiction
under the Helms–Burton legislation? (The Act, which is well worth reading, is
available on the internet.)
2. Is the ‘effects’ doctrine ever justifiable?

5.3.2 Passive personality jurisdiction

Whereas protective jurisdiction asserted rights in situations where the acts outside
a state’s territory were prejudicial to its security, the so-called ‘passive personality’
jurisdiction claims to allow jurisdiction over foreigners, committing acts beyond the
territory of the asserting state, where their acts have an effect not upon the national
territory but upon the subjects (nationals) of that state. As an example, the French
Civil Code gives jurisdiction to French courts over persons anywhere who are legally
responsible to French nationals even concerning obligations incurred outside France.
More usually the passive personality principle is framed in terms of a state asserting
a right to punish aliens for crimes committed abroad against its nationals. Such a
jurisdictional claim is controversial and not all states regard it as compatible with
international law. Traditionally it has been opposed by the common law countries
while countries such as Italy and Turkey have asserted it. Nevertheless even in common
law jurisdictions there have been rare occasions where the principle has formed at
least an alternative basis for the assertion of jurisdiction. One such case was that of
United States v Yunis 681 F Supp 896 (1988) where a Lebanese national was prosecuted
in the USA for his alleged part in the hijacking of a Jordanian aircraft in the Middle East.
The only connection between the USA and the airliner was that there were a number of
US citizens on board the hijacked aircraft. It was accepted by the court that the passive
personality principle did provide an appropriate basis for jurisdiction.
Dixon explains the theoretical objections to this jurisdictional justification. In particular,

as he says, most criminal acts will give rise to liability in a state more intimately
connected with the offence and clearly able to exercise jurisdiction under a non-
controversial head. In addition, the passive personality principle effectively means that
each national carries the protection of his home state wherever he goes, in that anyone
committing an offence against him anywhere becomes liable under his national law.
These theoretical objections notwithstanding, my view is that at least on some

occasions this basis is not only acceptable but desirable, but only if the defendant
arrives voluntarily or lawfully (that is, pursuant to extradition proceedings) in the state
of the offended national. It would seem appropriate when the offence is a serious one,
and for whatever reason the state of the offender is unwilling to prosecute.
5.3.3 Universal jurisdiction

A claim of universal jurisdiction as the basis of a prosecution is seldom made but its
place is nevertheless important as it highlights once more the relationship between
international law and international relations. Most writers claim to find the history
of universal jurisdiction in the treatment meted out to pirates in and after the 17th
century. International law accepted that every state had jurisdiction over pirates,
partly because the pirate was to be regarded as hostis humani generi (meaning ‘an
enemy of all mankind’) but more practically because by plying their ‘trade’ upon the
high seas pirates would, or could, otherwise have remained beyond the jurisdiction
of territorial states, and states capturing pirates might have been unable otherwise to
punish and prevent piracy.
In the contemporary world the concept of universal jurisdiction has little to do with
piracy. Rather it proposes that so-called international crimes are so heinous that
each state has an interest and a right to prosecute such an enemy of all mankind. The
most important discussion of universal jurisdiction (at least until the case concerning
General Pinochet, on which, more later) is to be found in, and was a result of, the trial of
Adolf Eichmann (Attorney General of Israel v Eichmann [1961] ILR 18). Eichmann had been
unlawfully abducted from Argentina where he was living, by members of the Israeli
secret service. During the Second World War Eichmann’s post in the Third Reich made
him responsible for organising the deaths of many hundreds of thousands of Jewish
people in concentration camps. Following Germany’s defeat he escaped to Argentina
where he lived with his family until his abduction. He was charged and convicted
by the Israeli court on counts of war crimes and crimes against humanity under an
Israeli Act of 1950. In the course of his trial Eichmann’s defence counsel challenged
the jurisdiction of the court, arguing not only that he had been unlawfully abducted,
but that he was charged with crimes that did not exist at the time he was supposed to
have committed them, and furthermore, in and by a state, Israel, which did not then
exist. Not surprisingly, given the enormity of the effect of Eichmann’s deeds, all these
arguments were rejected and the court held that the crimes committed by Eichmann
were crimes known to international law, and therefore the principle of universal
jurisdiction enabled the court to hear the case. In its judgment the court stated:
The crimes defined in this [Israeli] law must be deemed to have always been international
crimes, entailing individual criminal responsibility; customary international law is
analogous to the common law and develops by analogy and by reference to general
principles of law recognised by civilised nations, these crimes share the characteristics of
crimes…which damage vital international interests, impair the foundations and security of
the international community, violate universal moral values and humanitarian principles…
and the principle of universal jurisdiction over ‘crimes against humanity’…similarly derives
from a common vital interest in their suppression. The state prosecuting them acts as
agent of the international community, administering international law.
Since Eichmann, which was accepted overwhelmingly by the international community,

further application of universal jurisdiction has not been extensive, in spite of marked
enthusiasm from human rights activists. But some states have explicitly legislated to
provide universal jurisdiction for their courts in the event of grave international crimes.
Belgium in particular used such legislation as the basis upon which to prosecute (and
convict) a number of Rwandan nationals in Belgium who had significant responsibility
for the massacres of Tutsi people in Rwanda in 1994. According to Amnesty
International, some 120 states have passed acts that provide for universal jurisdiction
over war crimes, crimes against humanity, genocide and torture. Nevertheless
prosecutions have not been numerous. There are a number of reasons for this.
The first is that the creation of the International Criminal Court provides what many
consider to be a more appropriate forum for such trials (see further Chapter 10).
Second, states such as Belgium that have attempted to promote universal jurisdiction
have come under substantial political pressure from states that fear what they regard
as unfortunate possibilities (on one occasion an attempt was made to have the then
Prime Minister Ariel Sharon of Israel prosecuted). Third, questions of immunity from
prosecution arise, as we will see later in this chapter.
Rather than utilising universal jurisdiction, many states, including the UK, have elected
to enact the provisions of international treaties that prohibit international crimes
and have thereby provided themselves with jurisdiction where appropriate. Thus, for
example, the provisions of the Torture Convention, 1984 and the Genocide Convention,
1948 have both been explicitly incorporated into the domestic law of the UK.
In 2002, when the ICJ had the opportunity to consider the status of universal
jurisdiction it rather avoided the issue. The Case Concerning the Arrest Warrant of 11
September 2000 (Congo v Belgium) arose as a result of a Belgian attempt to have an
ex-foreign minister of the Congo arrested in order to be charged with grave violations
of human rights. The attempt was based upon the principle of universal jurisdiction.
(It was perhaps politically unfortunate that such a case arose between Belgium and a
state it had cruelly administered as a colony.) There was strong evidence to support
the Belgian allegations but the Court upheld the ex-minister’s claim of immunity
from prosecution and so it was not necessary to determine the validity of universal
jurisdiction in such a case. The majority of the Court ‘assumed for the purpose of
the case that universal jurisdiction was established as a principle of customary law’,
whereas the minority took the view that while historically universal jurisdiction had
been exercised where there was some positive tie between the state exercising the
jurisdiction and the individuals charged, they did not conclude that this necessarily
remained the case, and effectively elected to stand back and await developments.
Within the UK, asserting the principle of universal jurisdiction, attempts have been
made by individuals to effect the arrest of a number of visiting foreign ‘dignitaries’
including Henry Kissinger, Robert Mugabe and Tzipi Livni (together with a number
of other Israelis). Although such attempts were popular with human rights activists
they were an embarrassment to the UK Government and consequently in 2011 the
Police Reform and Social Responsibility Act was passed. This legislation restricts
the possibility for individuals to obtain an arrest warrant when wanting to bring a
prosecution against a person or persons suspected of crimes attracting universal
jurisdiction. Such a warrant may now only be issued with the consent of the Director
of Public Prosecutions.
Although it was widely expected that this might be the end of such prosecutions, on
3 January 2013 the London Metropolitan Police arrested a visiting Nepalese, Colonel
Kumar Lama, while he was holidaying in the UK, and charged him with two counts
of torture allegedly committed in the course of Nepal’s civil war in 2005. He was
arrested under s.134 of the UK Criminal Justice Act which put into domestic law the
relevant provision of the UN Convention against Torture and other Cruel, Inhuman or
Degrading Treatment or Punishment of 1984. The prosecution was approved by the
Attorney-General and was pursued in spite of protests by the Nepalese Government.
This notwithstanding it is improbable that prosecutions of visiting official figures
(visiting in their official capacity) would be approved. (More than three years after
Lama’s arrest, he was cleared by a jury of torture in 2016 and other charges were not
proceeded with, after a chaotic trial process and a cost of some £1 million.)
Universal jurisdiction has not, however, fallen into desuetude as might have been
expected in the 21st century. A recent count suggested that from 2008 to 2017 there
have been some 815 cases, with at least 16 countries having heard cases under universal
jurisdiction. It is said that 71 cases have been completed mostly with convictions, with
about 40 per cent of defendants being African, 25 per cent from the Middle East, 20 per
cent from Europe and 8 per cent from Asia. In the vanguard of states pursuing cases
under universal jurisdiction are the Netherlands, the Nordic countries, Switzerland
and Germany. The cases – many involving torturers and murderers in conflicts such as
that in Syria, Liberia, Libya and Rwanda – are often against individuals not necessarily
in leadership positions. (See The Economist, 2 January 2021, ‘No time to give up: laws
to punish human-rights abusers are growing teeth’ and also Langer, M. ‘The quiet
expansion of universal jurisdiction’ (2019) 30 EJIL 779.)
Two recent assertions of universal jurisdiction of interest are first the Frankfurt regional
court in Germany convicting a former member of the Islamic State group of genocide
over the death of a young Yazidi girl he had purchased as a slave and then caused her
death by chaining her to die in hot sun. Another 29-year-old person was also convicted
of crimes against humanity, war crimes and bodily harm resulting in death. The judges
found that ‘Al-J’ acted with the intention of eradicating Yazidis, thereby constituting
the crime of genocide. (Purely as a matter of interest, the dead girl’s mother was
represented by her Counsel, Amal Clooney.)
A second assertion was by an Argentinian court deciding to take up a genocide case

against those individuals in Myanmar responsible for the assault upon the Rohingya
population.
5.3.4 Universal jurisdiction and customary international law

It is clear, at least in the UK, that treaties entered into by the state are binding upon
the state but do not, without more being done, automatically become a part of the
domestic law. This was exemplified in Chapter 4 when we considered the place of the
European Convention on Human Rights in UK domestic law.
The position is less clear with regard to customary international law which many
argue to be a part of the common law and therefore may, and should, be applied in
domestic courts without the need for legislation. An example of the debate is to be
found within the saga of attempts by the Spanish government to extradite General
Pinochet to Spain to face charges arising from his period in office as Head of State of
Chile. Among the international criminal charges against him was the crime of torture.
Under the requirements of extradition law, extradition may only be granted where
the alleged offence was, at the time of commission, an offence under the law of both
the state requesting extradition and the state to whom the request is made. Thus
in Pinochet’s case it was necessary to show that in the UK at the time of the alleged
torture, it was a crime to torture a non-UK citizen outside of UK territory. In fact the
position was that while the UK had been party to the Torture Convention it had not
enacted its provisions into domestic law until the passage of an Act which provided
for criminalisation of acts of torture occurring after 28 September 1988. In its final
judgment the House of Lords concluded that extradition was possible only for acts of
torture for which General Pinochet was allegedly responsible occurring after that date.
Only Lord Millett took a significantly different view. He was of the opinion that
torture by public officials, carried out as an instrument of state policy, was already an
international crime attracting universal jurisdiction by 1973 when General Pinochet
had seized power. Writing of the events later, Lord Millett explained his position:
On the question of jurisdiction, five of the six ruled that there was no jurisdiction over
offences committed by foreigners abroad before the Criminal Justice Act 1988 conferred
extraterritorial jurisdiction on the English courts. At first sight, the difference between us
appears to be a technical one. We all agreed that torture by public officials carried out as
an instrument of State policy was already an international crime of universal jurisdiction
by 1973. The majority considered that this meant that, as a matter of international law, the
United Kingdom was free to assume extraterritorial jurisdiction, which it eventually did in
1988. I considered that it meant that, as a matter of customary international law, which is
part of the common law, the United Kingdom already possessed extraterritorial jurisdiction.
But the difference really goes far deeper than that. The majority considered that torture
by foreigners abroad was not a crime at all under English law before the 1988 Act made it
one. I could not accept that. In my opinion torture has always been a crime under every
civilised system of law. It is just that, until 1988, our courts had no jurisdiction over it if it
was committed abroad.
Thus even he conceded that courts required the statutory incorporation of this
international crime before they would be able to hear cases.
This position has also been confirmed in Australia, where it was held that the
admittedly international crime of genocide, which, if any crime does, gives rise to
universal jurisdiction, was nevertheless not a crime under Australian federal law
because there was no enactment by the Australian parliament.
The conclusion must therefore be that, at least for common law states, international
crimes give rise to universal jurisdiction but domestic courts will only be able to hear
such cases where the international provisions and definitions have explicitly been
made a part of the domestic law.
Activity 5.3
What do you consider to be the essential differences between the non-
controversial and the controversial bases for international jurisdiction?
Summary
Controversial bases for international jurisdiction include situations where there is no
direct or obvious link between the state wishing to assert jurisdiction and the event
or individuals over which or whom it wishes to assert it. The more powerful a state
the more likely it is to assert international jurisdiction, even where this is opposed by
some, or many, other states.
1. When, if at all, might universal jurisdiction be important?
2. Should a state be able to make use of the ‘effects’ doctrine? Under what
circumstances?

u appreciate the controversial nature of the passive personality principle and the
effects doctrine
u discuss the meaning and significance of universal jurisdiction.
5.4 Immunity from jurisdiction
Core text
¢ Mansell and Openshaw, Section 2.6 ‘Immunity from jurisdiction’.
The necessary counterpart to a discussion of jurisdiction is a consideration of

immunity from municipal jurisdiction. Immunity from jurisdiction provides the
exception to the permissive rules of jurisdiction discussed thus far. Such immunity
from suit (meaning an immunity from being called upon to appear in the domestic
courts of a state) is most widely and most importantly extended to all other states.
Under international law, because states are equal in their sovereignty, no state is
entitled to call another state before its courts. This sovereign immunity also extends to
diplomatic representatives. Originally sovereign immunity was almost always granted
on an absolute basis and this was the case in the UK. Such broad-based immunity
however gave rise to some problems. The first was that, particularly after the Russian
revolution of 1917, and then in the period of decolonisation, many activities that had
been private commercial activities attracting no immunity became state enterprises
whose commercial dealings were immune from suit. Even states which were not
command economies extended their commercial activities and interests. This brought
problems both for those who would otherwise have been able to sue on a breached
contract and for states enjoying immunity, as other parties would be unwilling
to enter into contracts where there was no remedy in the event of breach. These
problems led to provision for immunity being modified.
5.4.1 Sovereign immunity

There is a Latin maxim which neatly summarises the justification for sovereign
immunity. It states ‘par in parem non habet imperium’, usually translated as ‘one equal
cannot exercise authority over another’. It was also said in earlier English cases that a
sovereign was not to be ‘impleaded’ (meaning ‘brought into litigation’) in the court
of another sovereign. In addition it was accepted that where some act of a foreign
sovereign fell for consideration in a domestic court, that court could not pronounce
upon the legality of that act in the foreign jurisdiction. It did not have the power to
make such a judgment and an issue of this kind is said to be ‘non-justiciable’. This
position has been confirmed by the House of Lords in Jones v Ministry of Interior (The
Kingdom of Saudi Arabia) [2006] UKHL 26, and by a Chamber of the European Court of
Human Rights (Jones v United Kingdom (34356/06) (2014) 59 EHRR 1). The decision has
had a very mixed reception and you should be familiar with both the facts and the
controversy.
Whereas the immunity was once absolute, the reality of states being heavily involved
in commerce made the rule increasingly difficult to justify. Although the precise scope
of the immunity depends upon the domestic law of each state, the principle of state
immunity remains. A very brief history of the change from absolute immunity to
restricted immunity should help you to understand this rather arcane (but important)
area of international law. There are many examples of immunity in action.
One of the earliest, later accepted into British law, which well illustrates the principle
and the rationale of immunity is the decision of the US Supreme Court in 1812, in The
Schooner Exchange v McFadden. The trading vessel The Exchange had been seized on the
high seas by persons acting on the orders of the French Emperor, Napoleon Bonaparte,
taken to France, confiscated under French law, and then fitted out as a French warship.
Bad weather later forced it into the port of Philadelphia. While there, the plaintiffs, who
were the owners of the vessel at the time of its seizure on the high seas, issued a writ
for the return of the schooner. Without sovereign immunity the position at law would
have been clear and the boat restored to the owners from whom it was improperly
appropriated. Marshall CJ, however, giving the judgment of the Court, held that a vessel of
a foreign state with which the USA was at peace, and which the US Government allowed
to enter its harbours, was exempt from the jurisdiction of the courts. He stated:
The full and absolute territorial jurisdiction being alike the attribute of every sovereign,
and being incapable of conferring extraterritorial power, would not seem to contemplate
foreign sovereigns nor their sovereign rights as its objects.
Further, he added that there was a ‘perfect equality and absolute independence
of sovereigns’ from which it was inferable that no state could exercise territorial
jurisdiction over another. (Interestingly for later developments, it was submitted in
argument that if a sovereign engaged in trade he would enjoy no immunity in respect
of his trading operations, but that question was left open in the judgment.)
Typical of the UK cases following The Schooner Exchange was The Parlement Belge of 1880,
another case concerning a ship. The Parlement Belge was a Belgian vessel which carried
mail and passengers between Ostend and Dover. Through incompetence and negligence
by its crew it collided with the British sea tug Daring, whose owners sought to recover
damages. It was argued in defence that The Parlement Belge was the property of the King
of the Belgians, and was therefore immune from such an action. The Court of Appeal,
reversing the decision of the court below and granting immunity, stated that the court
could not exercise jurisdiction if either an attempt was being made to sue a foreign
sovereign in person, or an action ‘in rem’ (an expression from Latin meaning that the
action is ‘against or about a thing’, in this case the vessel) was brought where the ship
was being used substantially for public purposes, as was the case with The Parlement
Belge. Again, in later cases the question of immunity in The Parlement Belge had the ship
been wholly or substantially in ordinary commerce was left open.
Nevertheless it was widely accepted that at least in the UK such sovereign immunity
was absolute. This was not the way the law was developing in all countries. With
the dramatic increase in state involvement in commercial deals, particularly in an
era of decolonisation where many new states nationalised significant commercial
enterprises, it was difficult to defend total immunity and not helpful to trade or
international contracts. Some states (particularly ‘first world’ or developed states)
moved towards a position of accepting only a restricted doctrine of immunity. They
did this by providing that a state has immunity for only a limited class of acts. The
distinction is between acts jure imperii, and acts jure gestionis. In Dixon’s appropriate
explanation the purpose is to ensure ‘that the state is treated as a normal litigant
when it behaves like one, and as a sovereign when it exercises sovereign power’.
Thus the first category, acts jure imperii, are acts in and of public authority for which there
would still be immunity; whereas acts jure gestionis are acts which are commercial or
private where immunity would not apply. Policy in some countries, including the USA,
began to restrict immunity in this way as early as 1950 but the change to restrictive
immunity in the UK started through judicial decision only in the 1970s leading to
legislation in the State Immunity Act, 1978. The cases which led to the passage of this Act
well illustrate the urge for modification but we will briefly examine only two. The first,
significantly, was a decision of the Privy Council – significant because the Privy Council
was able to decide not to follow previous House of Lords decisions that appeared to
compel absolute immunity. In The Philippine Admiral [1977] AC 373, the Privy Council
determined that a ship that had been operated throughout its life as an ordinary
merchant ship, earning freight by carrying cargo, was beyond sovereign immunity. This
was consistent with decisions elsewhere and probably reflected the appreciation that
jurisdictions that did not limit immunity stood to lose business to those that did and
which gave more protection to those trading with foreign governments.
Shortly after that case, an action giving rise to the same questions fell to be decided
in an English court, which was of course technically still bound by House of Lords
decisions thought to assert absolute liability. The case was Trendtex Trading Corp v
Central Bank of Nigeria [1977] QB 529. Both the facts and the decision are memorable.
In the 1970s Nigeria suffered a significant and destructive scandal concerning the
importation of cement. While there was a considerable need for cement for Nigeria’s
extensive building projects, orders were placed for cement delivery in 1976 of some
20 million tons. This was approximately ten times the capacity of Nigeria’s ports for
the whole year. The result was that many ships arrived carrying cement which could
not be unloaded (and, apparently, because of the delay in discharge and the humid
conditions much of the cement ‘went off’ (hardened) in the ships’ holds).
Trendtex was one of the companies that had a contract for the delivery of cement. They
were to be paid against a letter of credit issued via a London bank, from the Central
Bank of Nigeria. The Bank of Nigeria effectively prevented payment for the unwanted
and undeliverable cement and when sued sought to rely upon state immunity. The
Court of Appeal held that the Central Bank of Nigeria was a separate entity from the
Government of Nigeria (a rather strained interpretation) and thus was not entitled
to immunity. (The effect of this decision was consistent with similar cases heard in
other European jurisdictions.) Lord Denning, however, went further than was strictly
required and through remarkable judicial gymnastics concluded that past House of
Lords decisions applying international law were no longer relevant as, he argued,
international law had developed to accept restricted immunity. Precedents based on
outdated principles of international law could, he said, be ignored. And he added:
…It follows, too, that a decision of this court – as to what was the ruling of international
law 50 or 60 years ago – is not binding on this Court today. International law knows no rule
of stare decisis. If this Court today is satisfied that the rule of international law on a subject
has changed from what it was 50 or 60 years ago, it can give effect to that change – and
apply the change in our English law – without waiting for the House of Lords to do it.
Doubtful though Lord Denning’s arguments were (earlier cases had determined what
English law held concerning immunity, not what international law said), the conclusion
he reached was followed in the House of Lords in a case in 1981, I Congreso del Partido,
when applying the law as it was before legislation. Trendtex did highlight the need for
legislation, and this came in the State Immunity Act, 1978. This Act effectively enacted
the provisions of the European Convention on State Immunity, 1972, which had been
intended to harmonise European perspectives on immunity. Like the Convention, the Act
begins by providing for general sovereign immunity before proceeding to list exceptions
which accord with the restrictive immunity perspective. Under the Act a plaintiff must
show that the action complained of by a foreign state comes within these exceptions.
In essence, where the transaction is commercial, immunity is excluded. Nevertheless it

is provided that the ‘exception to the exception’ is where, although the transaction is
commercial, it was entered into ‘in the exercise of sovereign authority’. The test really
is as follows, as quoted in I Congreso del Partido:
…it is not just that the purpose or motive of the act is to serve the purposes of the state,
but that the act is of its own character a governmental act, as opposed to an act which any
private citizen can perform.
Finally, it is worth consulting the UN Convention on Jurisdictional Immunities of States

and Their Property, adopted by General Assembly Resolution on 2 December 2004 and
now open for signature. Although the Convention represents a compromise between
states favouring something approaching absolute immunity (primarily developing
states) and others, existing UK legislation seems to be compatible with its provisions.
US Justice Against Sponsors of Terrorism Act, 2016

In a remarkable development, the US Congress overruled President Obama’s veto to
pass the Justice Against the Sponsors of Terrorism Act (JASTA) on 28 September 2016.
This was the only occasion in President Obama’s presidency that the presidential veto
was overruled. The effect of JASTA is to amend the US Foreign Sovereign Immunities
Act, 1976 (FSIA). This Act, as amended, had provided that a court could hear a case
against a sovereign state if that state had been designated as a state sponsoring
terrorism by the US Department of State and the claimant or victim was at the
time of the act a US national. The terrorism exception was introduced to FSIA by an
amendment made in 1996 and then further revised in 2008. 28 USC §1605A reads:
A foreign state shall not be immune from the jurisdiction of courts of the United States
or of the States in any case […] in which money damages are sought against a foreign
state for personal injury or death that was caused by an act of torture, extrajudicial killing,
aircraft sabotage, hostage taking, or the provision of material support or resources for
such an act if such act or provision of material support or resources is engaged in by an
official, employee, or agent of such foreign state while acting within the scope of his or her
office, employment, or agency.
That law was intended to enable victims of acts of terrorism to bring actions against
designated states for substantial damages in the event of harm and to deter these
‘designated states’ from perpetrating or sponsoring acts harmful to US citizens. As of
late 2017, these designated states were Iran, North Korea, Sudan and Syria.
Only Canada has similar legislation (Justice for Victims of Terrorism Act, 2012) but with
only two ‘listed’ states – Iran and Syria.
What makes JASTA unique is that it authorises federal courts to exercise personal
jurisdiction over any foreign state’s support for acts of international terrorism against
a US national or property regardless of whether such state is designated as a state
sponsor of terrorism or not. The narrow intention of the legislators was to enable
those who had suffered as a result of 9/11 to bring a class action against Saudi Arabia
arguing that that state had provided material support or resources to the perpetrators
of that act of terrorism.
Many commentators have observed that, while that might have been the intention of
the legislators, JASTA has the potential to significantly disrupt sovereign immunity in
international law. It has been suggested that it might open the way for actions against
Israel, or indeed against states using ‘drones’ to attack targets on foreign soil. (One
action against Israel has already been commenced – see www.courthousenews.com/
wp-content/uploads/2017/02/netanyahu.pdf)
In March 2018 the US District Court for the Southern District of New York denied Saudi
Arabia’s motion to dismiss a high-profile lawsuit for its alleged involvement in the
September 11 terror attacks, see In Re Terrorist Attacks on September 11, 2001. In doing so,
the Court applied JASTA for the first time since it was passed. For a discussion see
www.ejiltalk.org/jasta-keeps-saudi-arabia-on-trial-for-9-11-terror-attacks-the-us-and-
its-foreign-sovereign-immunity-issue/
This case continues and in March 2020 the Plaintiffs’ Executive Committees (acting for
the plaintiffs) addressed the Court, alleging that the case was compromised by Saudi
Arabia’s threats to potential witnesses whose identities they demanded. (Significantly,
one potential witness was Jamal Khashoggi who was murdered by the Saudi state
when visiting the Saudi consulate in Istanbul.) See www.courthousenews.com/wp-
content/uploads/2020/03/Letter-to-netburn.pdf
In 2021 the case against Saudi Arabia ground on with continuing attempts by counsels
for the plaintiffs (with some limited success) to obtain access to documents that they
believe will finally prove a link between the 2001 hijackers and the Saudi government.
Apart from JASTA, there are still rare attempts to implead one state before the national
courts of another. In January 2021 in a case brought against the State of Japan in a
South Korean Court (Seoul District Court), that Court ordered the State of Japan
to pay some $90,000 to each of 12 plaintiffs who had been used by the Imperial
Japanese Army as sex slaves in military brothels during the Second World War. Japan
did not recognise the jurisdiction of the court but the judgment did grant an order
that purported to allow it to be enforced against Japanese government assets. The
controversy continues.
5.4.2 Head of state immunity

So far in considering state immunity we have considered the state itself, and indeed
historically the state and its sovereign were regarded as the same entity. The ruler was
the state, in the sense that he (or rarely she) personified the territorial entity. Of course
this rather strains language, as most of us would readily distinguish between persons
and things. It is apparent, though, that state or sovereign immunity would only be
meaningful if it extended to those people who by their actions determine the actions
of the state. For this reason s.14(1)(a) of the State Immunity Act, 1978 explicitly states
what had already been accepted in both international and domestic law, namely
that the immunities granted to a foreign state extend to ‘(a) the sovereign or other
heads of that State in his public capacity, (b) the government of that State, (c) any
department of that government’, but do not extend to any separate entity which is
distinct from the executive organs of the government of the state.
The Pinochet case

The extent of the immunity granted to a head of state was at issue in the case of
General Pinochet, referred to earlier in the chapter. The final decision of the House
of Lords in this case is well worth reading – see R v Bow Street Metropolitan Stipendiary
Magistrate, ex parte Pinochet (No. 3) [1999] 2 All ER 97. In brief the well known facts
were that General Pinochet led a violent right wing military coup in Chile in 1973. The
elected President, Allende, was deposed and killed and General Pinochet became
Head of State of Chile until he resigned in 1990. In 1998 while on a private visit to
the UK he was arrested after a Spanish request for his extradition to Spain to face a
wide range of alleged crimes including torture and conspiracy to torture. A first and
important question for the House of Lords was whether General Pinochet, by reason
of his position of Chilean Head of State, enjoyed, and continued to enjoy, immunity
from UK domestic courts even for acts as extreme as torture. (As explained earlier in
this chapter when discussing universal jurisdiction, the Court decided that extradition
would only be possible, if at all, for acts of torture committed after the date on which
the Torture Convention was incorporated into domestic UK law.)
The case was extraordinarily important. This was the first time it had been suggested
that a domestic court could refuse head of state immunity on the basis that there
could be no immunity against prosecution for serious international crimes. There
would seem to be little doubt that if General Pinochet had still been Chilean Head
of State at the time of his arrest he would have enjoyed immunity. While this is
manifestly unfortunate and harsh towards those tortured, it represents the law,
because international relations could hardly survive otherwise. If the position was not
as it is, heads of state, whether of Israel, Zimbabwe, USA, Pakistan, the UK or Russia, to
name but a few, could scarcely venture beyond their borders without fear of arrest.
Thus the House of Lords (Lord Browne-Wilkinson) stated:
…This immunity enjoyed by a head of state in power and an ambassador in post is a

complete immunity attaching to the person of the head of state or ambassador and
rendering him immune from all actions or prosecutions whether or not they relate to
matters done for the benefit of the state. Such immunity is said to be granted ratione
personae.
But what is the position of a head of state who is no longer in office? Here the Court
found the position of ex-heads of state to be identical to ex-ambassadors. Lord
Browne-Wilkinson said:
The continuing partial immunity of the ambassador after leaving post is of a different
kind from that enjoyed ratione personae while he was in post. Since he is no longer the
representative of the foreign state he merits no particular privileges or immunities as a
person. However in order to preserve the integrity of the activities of the foreign state
during the period when he was ambassador, it is necessary to provide that immunity is
afforded to his official acts during his tenure in post. If this were not done the sovereign
immunity of the state could be evaded by calling in question acts done during the
previous ambassador’s time. Accordingly under Article 39(2) [of the Vienna Convention on
Diplomatic Relations, 1961] the ambassador, like any other official of the state, enjoys
immunity in relation to his official acts done while he was an official. This limited
immunity, ratione materiae, is to be contrasted with the former immunity, ratione
personae which gave complete immunity to all activities whether public or private.
In my judgment at common law a former head of state enjoys similar immunities, ratione
materiae, once he ceases to be head of state. He too loses immunity ratione personae on
ceasing to be head of state…
You will probably realise that there is some parallel between absolute as opposed
to restricted immunity for states and the distinction between acts ratione peronae
and acts ratione materiae for ex-heads of state and ambassadors in that immunity
continues to attach to ex-heads of state and ambassadors for things they did in
an official capacity, that is, ‘both enjoy [continuing] immunity for acts done in
performance of their respective functions whilst in office’. As with absolute and
restricted immunity the test is concerned with the nature of the act performed.
In the Pinochet case, however, a further question arose. Could it ever be said that
the alleged organisation of torture would constitute an act committed by General
Pinochet as part of his official functions as head of state? The Court recognised that
‘Actions which are criminal under the local law can still have been done officially and
therefore give rise to immunity ratione materiae’. The House of Lords concluded that
there were strong grounds for concluding that the implementation of torture, as
defined by the Torture Convention, could not be a state function and there could be
no surviving immunity because the acts were contrary to international criminal law.
After the Pinochet case, international criminal courts have brought new questions
concerning the immunity of Heads of State. Cases concerning Milosovic in the
International Criminal Tribunal for the Former Yugoslavia, and Charles Taylor (former
Head of State of Liberia) in the Special Court for Sierra Leone (the case was heard in
the Netherlands), have allowed no immunity. Nor has the Court in Senegal that tried
Hissène Habré (the former Head of State of Chad). Here the alleged grave offences
had been committed before the International Criminal Court could have jurisdiction
(between 1982 and 1990) and the Court was an Extraordinary African Chambers
inaugurated by Senegal and the African Union in 2013, with two Senegalese judges
and a Court President from another African Union state. (This court is largely financed
by Western state donors.) On 30 May 2016, Hissène Habré was convicted of crimes
against humanity, war crimes and torture, including sexual violence and rape, by the
Extraordinary African Chambers in the Senegalese court system and sentenced to life
in prison.
Article 27(2) of the Statute of the International Criminal Court states that:
Immunities or special procedural rules which may attach to the official capacity of
a person, whether under national or international law, shall not bar the court from
exercising its jurisdiction over such a person.
In 2009 and 2010 the International Criminal Court issued arrest warrants for the
Sudanese President, Omar Hassan al-Bashir. It is generally agreed that Head of State
immunity does not apply in international criminal courts or tribunals. (Sudan is not a
party to the ICC statute.) A disregard by states of obligations accepted under the ICC
statute, to arrest anyone for whom the ICC has issued an arrest warrant who comes
within another state’s jurisdiction, enabled al-Bashir to travel widely without being
apprehended. Among other states, he visited Malawi, Chad, Kenya, Qatar, Saudi Arabia,
Egypt, Ethiopia, South Africa and China. The ICC referred Malawi and Chad to the UNSC
for their failure to detain al-Bashir but with opposition from China it became clear
that no further support from that body would be forthcoming. Subsequently the
ICC prosecutor, Fatou Bensouda, decided to halt investigations to ‘shift resources to
other urgent cases’. (Subsequently al-Bashir was removed from power and is now
subject to a drawn-out legal process in Khartoum, Sudan.) The anticipated charges of
crimes against humanity against the Kenyan president, Uhuru Kenyatta have also been
abandoned.
5.4.3 Diplomatic and consular immunity

The previous section briefly alluded to the position of ambassadors with regard to
judicial immunity. Here we will consider diplomatic immunity in a little more depth.
Again the position is largely dictated by the history of international relations. This has
long recognised that reciprocal respect for those representing foreign states in the
territory of another is fundamental to international intercourse. In the words of the
ICJ, diplomatic immunity is ‘essential for the maintenance of relations between states
and is accepted throughout the world by nations of all creeds, cultures and political
complexions’.
As with the head of state, the immunities granted to diplomatic and consular officers
are personal and enjoyed by individuals, but it is of course because they are an integral
part of the government of the state they represent that immunity extends to them. UK
legislation protecting diplomats goes back to the Diplomatic Privileges Act, 1708 and
is currently governed by the Diplomatic Privileges Act, 1964 which is based upon the
Vienna Convention on Diplomatic Relations, 1961. The latter has been ratified by more
than 190 nations.
The scope of the immunity granted to diplomats was considered in depth in the UK
Supreme Court decision Reyes v Al-Malki [2017] UKSC 61. While it is true that diplomatic
personnel have immunity from all prosecutions, such an official will remain liable to
prosecution in the state that he represents on the nationality principle of jurisdiction.
Again the immunity is closely related in definition to the distinction between absolute
and restricted state immunity. Immunity will not be available only where there is
a civil action which arises from an enterprise unrelated to the diplomat’s official
position.
The immunity provided extends to other matters as well. In particular diplomatic

premises are inviolable and can only be entered with the permission of the head of
mission. Freedom of movement (though not totally free movement, see Article 26
of the Convention) is assured and free and secret communication between mission
and home state is permitted. Diplomatic bags intended for official use may not be
searched. (‘Bag’ is a euphemism for any container, including even containers from a
container ship.)
Nevertheless the receiving state retains the ultimate sanction of being able to ask,
without cause, for the withdrawal of any person enjoying diplomatic privilege and
they may be declared ‘persona non grata’.
Activity 5.4
What are the justifications for immunity from jurisdiction? Explain the doctrine of
sovereign immunity as applied by the English courts, making reference to the State
Immunity Act, 1978.
Summary
The immunity of states was once generally absolute and this was the position adopted
by the English courts. But at the time when this rule developed, state governmental
activities overwhelmingly remained in the public sphere. This position changed with
both the creation of socialist states after 1917 and decolonisation following the Second
World War. States came to participate much more directly in commercial activities
to which state immunity seemed less appropriate. These different circumstances
were recognised both by the English courts and by the State Immunity Act, 1978. This
Act reflected the European Convention on State Immunity, 1972 and ensured that
European states harmonised their state immunity law.
1. Had English courts already achieved through the common law that which was
enacted in the State Immunity Act?
2. Summarise the law concerning the immunity of a head of state in the light of the
Pinochet decision.

u explain the basis and effect of state immunity from jurisdiction
u explain the basis and effect of individual immunity from jurisdiction
u describe diplomatic immunity.

Question 1 ‘Universal jurisdiction is much more significant in theory than in reality.’
Discuss.
Question 2 What principles underlie the doctrine of sovereign immunity? Does the
doctrine of sovereign immunity achieve its goals?

Question 1 This question requires an explanation of universal jurisdiction in order
to consider its significance. You might begin by considering the history of universal
jurisdiction and its development as a means to prosecute those who commit
international crimes anywhere. A discussion of the Eichmann case would highlight the
potential. This could be followed by a consideration of the problems associated with
universal jurisdiction, the ambivalence of the ICJ, and the threat posed for international
relations if nationals of one state are to be tried in another state for crimes committed
perhaps in yet another state against nationals of other states. Such potential
complexity reinforces the need for the International Criminal Court and its usefulness.
Additionally a satisfactory answer would consider where universal jurisdiction has

been considered but rejected as a basis in itself for prosecution. This would probably
focus on Pinochet and the Australian court’s rejection of the possibility of a prosecution
for genocide where Australia, although a party to the Genocide Convention, has not
yet enacted the provisions of the Convention into domestic law. The conclusion would
probably confirm the quotation but suggest that the need for the exercise of universal
jurisdiction should be obviated by other developments in international law.
Question 2 Sovereign immunity is said to be an implicit aspect of sovereign equality.

The understanding is that one state cannot compel another equal state to submit itself
to the jurisdiction of the former. Traditionally this immunity was absolute and any act
of a state was protected from jurisdiction. This understandably led to problems where
the acts in dispute were purely commercial. The result of the immunity was that if
one party to a commercial contract was a state which then breached its agreement,
the innocent party might have no enforceable redress. This position was not only
manifestly unjust but was probably commercially undesirable and would discourage
such contractual relations. It should be added that many states before the UK had
moved to restrict the sovereign immunity proffered, by restricting such immunity to
those state activities that could not be regarded as purely commercial.
A brief discussion of sovereign immunity in the UK courts would then be appropriate,

with a concluding discussion of the provisions and effect of the State Immunity Act,
1978, in turn leading to consideration of whether this fulfils the goals of sovereign
immunity. In fact it probably does, at least for the UK, but the opposition of the
‘developing’ countries should be noted and explained.
Notes
6 The law of treaties
Contents
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 78
6.1 The formation and formalities of treaties . . . . . . . . . . . . . . . . 79
6.2 Treaties and reservations . . . . . . . . . . . . . . . . . . . . . . . . 81
6.3 The validity of treaties . . . . . . . . . . . . . . . . . . . . . . . . . . 83
6.4 The interpretation of treaties . . . . . . . . . . . . . . . . . . . . . . 85
6.5 The amendment and termination of treaties . . . . . . . . . . . . . . 86
6.6 Case concerning the Gabcikovo-Nagymaros Project

(Hungary/Slovakia) 1997 . . . . . . . . . . . . . . . . . . . . . . . . . . 88
Introduction
In Chapter 3 we briefly considered treaties as a major source of international law. We
observed that it may be argued that treaties are now the most important of all sources
of international law. While much customary international law remains contentious
(and contended) treaties are supposed to be explicit and clear, expressing the will of
the parties who wish to be bound by agreement to the negotiated terms stated in the
document (although you should remember that agreements not reduced to writing
may still be binding.). That at least is the theory. States voluntarily commit themselves
to perform in accordance with the negotiated terms. And underlying international law
is this obligation – pacta sunt servanda – which was suggested to be a legal principle
which takes such obligations beyond ‘mere’ international relations.
Although that is the theory the reality is much less clear and remains controversial.
Indeed such is the potential for dispute that the International Law Commission spent
much time codifying and drafting rules that finally received significant international
approval in the form of the Vienna Convention on the Law of Treaties (VCLT), 1969
which came into force in January 1980. This Convention is an attempt to clarify rules of
both interpretation and definition with the intention of ensuring a uniform approach
to problems arising out of treaties, whether concerned with the formation of the
treaty, the content of the treaty, or the continuation or termination of the treaty.
This might seem a rather dull topic. It is not. Crucially important questions of policy
and politics arise in cases concerned with the interpretation of treaties. In order to
exemplify this aspect we will consider in some depth in Section 6.6 the ICJ’s decision
in the 1997 Case concerning the Gabcikovo-Nagymaros Project (Hungary/Slovakia). This
case not only further exemplifies the method of the ICJ but, more importantly for this
chapter, demonstrates the attitude of international law to international treaties.
Learning outcomes
u define a treaty
u describe the status and effect of the Vienna Convention on the Law of Treaties,
1969
u understand the legal quality of pacta sunt servanda
u explain why a treaty is not identical to a contract
u describe the means by which treaties are concluded and understand the formal
requirements
u define and explain the significance of treaty reservations
law (jus cogens) upon treaties
u outline the rules for treaty validity
u describe the rules of treaty termination
u understand and explain the restrictions on the possibilities of treaty termination
u be familiar with and critical of the law of treaty interpretation as exemplified in
the Case concerning the Gabcikovo-Nagymaros Project (Hungary/Slovakia).
Public international law 6 The law of treaties page 79
6.1 The formation and formalities of treaties
Core text
¢ Mansell and Openshaw, Chapter 4 ‘The international obligations of states:
treaties and state responsibility‘, pp.119–21.
Essential reading
¢ VCLT Articles 1–18.
This section summarises the ways by which treaties may be concluded and their
formal requirements. These are both remarkably few and extraordinarily flexible. The
Vienna Convention on the Law of Treaties, Article 2(1)(a) defines a treaty to which the
Convention applies as follows:
…an international agreement concluded between states in written form and governed
by international law, whether embodied in a single instrument or in two or more related
instruments, and whatever its particular designation.
It also provides, however, that this does not affect the legal force of other agreements
between states and other bodies having international legal personality, or agreements
between states not in written form. For our purposes, though, it is only agreements
between states that are of interest and only those in written form. Because Article
102 of the UN Charter provides for all treaties to be registered with the UN Secretariat
(without which a treaty may not be invoked before any organ, including the ICJ) it is
clear that this may only be done if the agreement was in writing, and there are thus
very few unwritten treaties; these too we will ignore.
Furthermore, political positions and considerations had much to do with the

eventual formulation of the Vienna Convention and it finally represented a shift in
thinking about treaties. Whereas traditionally the emphasis in treaty law was upon
the equivalent of ‘freedom of contract’ in that states could enter any treaty on any
terms under any circumstances in the expectation that it would be upheld, the Vienna
Convention introduced constraints and controls that had not previously existed. Of
course, just as in ‘freedom of contract’ theory, so too in international treaty-making
the freedom was not what it seemed. The effect of upholding such treaties was often
a wilful refusal to see the unequal bargaining power which had led to the treaties.
In colonial times particularly, strong states were able to impose ‘agreements’ upon
weaker states. The spirit of the Convention is very much opposed to validating such
coercion, although this remains controversial. It is controversial because strong states
consider coercion of weaker states to be a normal aspect of international relations.
The Convention also limited the terms a treaty might include by proscribing the
inclusion of terms in contravention of the ‘central core of international values’ from
which no country, however great its economic and military strength, may deviate.
It is essential to understand that the Convention contains both codification of

existing customary law and also innovative new provisions. The effect of this must be
remembered. Obviously codification of existing law makes no change and ordinarily all
states will be bound as they were before. Where, however, the provision is innovative,
under the Convention’s provisions it will apply when interpreting only those treaties
made after its entry into force (27 January 1980). Under these circumstances too, it
will apply only where the parties to a disputed treaty are themselves parties to the
Convention. (And remember that the United States is not a member.) Nevertheless it
has been argued that the exception to this final point is where innovative provisions
of the Convention can be shown to have developed into customary international law,
affecting even those states not party to it.
One further important difference between treaties and contracts should be

remembered. Although not formally defined as a treaty, it is possible in international
law for a unilateral statement made by one state in the expectation that another
state or states will rely upon it to have legal effect as though it were a treaty. Thus in
the Nuclear Test Cases (Australia v France, New Zealand v France) (1974) the ICJ held that
when France, through both its President and Foreign Minister, issued a statement to
the effect that its current round of atmospheric nuclear tests would be its last, this
was a statement upon which the international community could rely. Here, manifestly,
unlike contract, there is no need for reciprocity or even acceptance by other states.
Because the Convention refers to agreements ‘governed by international law’ it is

possible to infer the requirement of the need to create legal relations (and thus legal
obligations). Agreements which do not meet this requirement are not without effect
but have no legal content. An example of such an agreement was the Final Act of the
Helsinki Conference on Security and Co-operation of 1975 which was stated in the final
document to be ‘not eligible for registration under art 102 of the Charter of the United
Nations’ and this was understood to mean that the Act was not legally enforceable. It
was, however, a document of immense political significance which came to influence
international law.
The making of a treaty is usually a three-stage process involving:
u the negotiation of the treaty
u the authentication of the drafted document (usually by signature or initialling)
u ratification.
Article 12(1) of the Convention nevertheless provides that if a treaty does not require
ratification and the signature was intended to express the consent of a state to be
bound, then the signature shall have that effect. Much more commonly the signature
represents a step along the way to treaty creation and the treaty will require
ratification.
Ratification
There are two aspects of importance in ratification. For domestic law purposes
in the UK, ratification is effected by the Crown. How this is done in other states
depends upon their domestic law. Once ratified, the treaty exists in domestic law
as an international treaty to which the UK is bound. Without more, however, it will
not be a part of domestic law and it will thus not be enforceable in municipal courts.
The second aspect of ratification is ratification in international law. This ratification,
which brings the treaty into force, is a procedure usually requiring the deposit
of ratification documents or their exchange. This common two-stage process of
signature and ratification allows time for domestic consideration of a signed treaty.
The only obligation of a signatory before ratification (where this is required) is not
to work against the signed but unratified treaty. This is why when the USA signed the
Rome Statute of the International Criminal Court in 1988 in the last days of the Clinton
presidency, the incoming Bush administration took steps to ‘un-sign’ (withdraw
signature) to enable it to oppose the effect of the treaty.
Finally it should be noted that the question of when a treaty enters into force will
usually be resolved by provision in the treaty document itself. This will often be
explicitly stated, such as, for example, upon the deposit of the 60th ratification, or on a
date some time after such ratifications are received. If the treaty is silent as to when it
is to enter into force, the date will be inferred.
As an addendum, in view of the US attitude to treaties under President Trump’s

administration, it is important to understand the US treaty process.
For readers with some knowledge of constitutional law and the doctrine of the
separation of powers, what follows will probably be obvious. Foreign policy is the
prerogative of the executive branch of government (that is the administration). As
such, the president is able to enter into ‘international agreements’ that will be binding
in international law. It will not, however, affect domestic law. For an agreement to
become a treaty, and thus also creating domestic law, it must (by Article II, s.2(2) of
the US Constitution) be made with the ‘Advice and Consent’ of the Senate (that is the
legislative branch of government) and this requires approval in the Senate, by a two-
thirds majority. Thus, while the negotiation and signing of international agreements is
the responsibility of the executive branch, such agreement may only become a treaty
when, upon presentation of the treaty to the Senate by the President, a two-thirds
majority is obtained.
Activity 6.1
Explain the status of the provisions of the Vienna Convention on the Law of Treaties.
Is the present position satisfactory? (Give your reasons.)
Summary
Treaties represent the explicit intention of states to be bound to agreed terms within
the treaty document. It is this voluntary assumption of obligation that lies at the heart
of international law. The Vienna Convention on the Law of Treaties, 1969 is an important
Convention, codifying some aspects of treaty law and innovative in other aspects.
Which provisions in the Vienna Convention codify and which are innovative, and
what are the consequences? (See Dixon.)

u define a treaty
u describe the status and effect of the Vienna Convention on the Law of Treaties
u understand the legal quality of pacta sunt servanda
u explain why a treaty is not identical to a contract.
6.2 Treaties and reservations
Core text
treaties and state responsibility‘, pp.121 and 122.
Essential reading
Reservations to treaties are relevant only to multilateral treaties. In a bilateral treaty

each party will be bound to the same terms. Where there are more than two parties,
however, there are many occasions when not all parties will be prepared to accept all
the provisions of a treaty as drafted. The Vienna Convention codifies customary law in
defining a reservation to a treaty in Article 2(1)(d) as
…a unilateral statement, however phrased or named, made by a State, when signing,

ratifying, accepting, approving or acceding to a treaty, whereby it purports to modify the
legal effect of certain provisions of the treaty in their application to that State.
The status and effect of a reservation is not exactly the same in customary
international law as it is under the Convention and it is necessary to understand both.
The traditional approach to reservations was that they would be valid only if permitted
by the treaty terms, and if all other parties to the treaty accepted the reservation.
Such an approach, which seemed consistent with principle, was not well suited
to multilateral treaties with large numbers of states where such total agreement
would be unlikely. The approach was reviewed in an important ICJ advisory decision
of 1951 – Reservations to the Convention on the Prevention and the Punishment of the
Crime of Genocide. Here the General Assembly of the United Nations had adopted the
Convention on the Prevention and Punishment of the Crime of Genocide in 1948 and a
dispute arose over whether reservations to the Convention could be accepted. There
was no provision for reservation within the Convention. The majority of the Court held
that a state could be regarded as a party to a treaty, even if its reservation had not
been accepted by all other parties, so long as that reservation was compatible with
the object and purpose of the Convention’. Where, however, another state would not
accept such a reservation the refusing state would be entitled to regard the reserving
state as not being in a treaty relationship with itself. Although the International Law
Commission thought the compatibility test too subjective, the Convention, in Articles
19–23, followed the principles of the Reservations Case, but with a slight modification
in that it accepted that for some treaties every reservation will be held incompatible
except where all treaty parties unanimously agree otherwise.
The effect of valid reservations in a multilateral convention must be clearly

understood. The effect is not only to restrict the obligation of the reserving state in
accordance with the reservation but also effectively to redraft the treaty as between
the reserving state and all others so that all have the same reservation. In other words,
because treaties must affect all parties equally among each other, no party can rely
upon a reservation to give it an advantage against a state that has not made a similar
reservation. This is stated in Article 21 of the Vienna Convention, which explains
the legal effect of reservations, stating that a reservation not only modifies for the
reserving State the provisions of the treaty to which the reservation relates to the
extent of the reservation, but also modifies those same provisions to the same extent
for other parties in their relations with the reserving state.
There are occasions when a state does not want to make a formal reservation but
does want to make explicit its interpretation of a provision. These so-called
‘interpretive declarations’ may on occasion be interpreted as reservations. In the
words of the International Law Commission, ‘Such a declaration may be a mere
clarification of a state’s position or it may amount to a reservation, according to
whether it does or does not vary or exclude the application of the terms of the treaty
as adopted’. This test remains and what matters is not the form of words used, but the
effect of those words.
Activity 6.2
‘The acceptance of reservations in treaty law meets a need created by multilateral
treaties with many parties (often more than one hundred). Unless reservations
were accepted, agreement between so many states would be almost impossible.
That notwithstanding, reservations do severely compromise the goal of consistency
and uniformity in the creation of international obligations.’
Discuss.
Summary
Reservations enable one state party to a multilateral treaty to modify the terms of
the treaty for itself and yet remain a party to the treaty, although on different terms
from other parties. Not all reservations are valid or permissible. If they are in conflict
with the object and purpose of the treaty they will not be valid, nor yet if the treaty
prohibits reservations. In addition, where another party to the treaty objects to the
reservation, the effect, depending on the intentions of the objecting state, will either
be that the treaty does not operate between itself and the reserving state, or that
while the treaty remains in force the provision to which reservation is made is not
operative between those two parties.
When and under what circumstances may a treaty affect states not party to it?

u describe the means by which treaties are concluded and understand the formal
requirements
u define and explain the significance of treaty reservations.
6.3 The validity of treaties
Core text
Essential reading
Article 26 of the VCLT formally states the principle of pacta sunt servanda. It provides
that every treaty in force is binding upon the parties to it and must be performed
by them in good faith. The strength of the principle is reinforced in the following
article, which forbids any state from relying on the provisions of its domestic law as
justification for its failure to perform its obligations under a treaty.
Questions as to the validity of a treaty again may resonate with considerations

concerning the validity of contracts in domestic law. Unfortunately the parallels, while
attractive, are not exact and it is better to consider treaty validity quite separately.
Under the VCLT the validity of a treaty can only be impeached by using the provisions
of the VCLT. Similarly the termination of a treaty, its denunciation or the withdrawal of
a party will be valid only if it is consistent with the provisions of the treaty itself, or the
provisions of the Convention. The application of this principle is illustrated in our case
study at the end of this chapter.
Error, fraud and corruption

The VCLT states the reasons and causes that may justify a treaty being held invalid.
The first is that under Article 48 error may be invoked if the ‘error relates to a fact or
situation which was assumed by that state to exist at the time when the treaty was
concluded and formed an essential basis of its consent to be bound by the treaty’, but
this will not apply if the state in error ‘contributed by its own conduct to the error’
or should have been aware of the mistake. Article 49 provides for invalidating an
expressed consent to be bound to a treaty if a state has been induced to conclude it by
the fraudulent conduct of another negotiating party, and Article 50 provides similarly
where a state’s consent has been procured by the corruption of its representative.
Coercion of a state or its representative

Much more significant are the provisions of Articles 51 and 52 concerning the coercion
of a state or its representative. Article 51 states that where a state’s consent to be
bound by a treaty has been procured by the coercion of its representative through
acts or threats directed against him, that expression of consent shall be without any
legal effect. Article 52 states that a treaty is void if its conclusion has been procured by
the threat or use of force ‘in violation of the principles of international law embodied
in the Charter of the United Nations’.
Such coercion of a state has been widely considered. As the Law Commission observed,
prior to the Covenant of the League of Nations it had not been thought that the
validity of a treaty could be affected because it had been concluded where one party
was under threat from another. Many treaties had been concluded by powerful states
insisting upon acquiescence from weaker ones and this had simply been accepted as a
description of how international relations were conducted. Article 2(4) of the Charter
of the United Nations proscribing the threat or use of force had however recognised
a major change in such relations and the emphasis upon sovereign equality in the
Charter was also important. Furthermore, the VCLT was negotiated during a period of
decolonisation and the newly independent states wanted their independence to be
real. Within the International Law Commission there were arguments as to what sort
of coercion should be proscribed. Pressure to define coercion beyond ‘threat or use of
force in violation of the principles of the Charter’ was resisted. While the Soviet Union
existed, international law writers from there often argued that the crucial principle
determining the binding nature of a treaty should be that it was concluded on the
basis of the equality of the parties; and that unequal treaties were not legally binding.
At the Vienna Treaty Conference a compromise was reached with the provisions
being reinforced by a Declaration on the Prohibition of Military, Political or Economic
Coercion in the Conclusion of Treaties, adopted by the Conference and stating that the
Conference:
Solemnly condemns the threat or use of pressure in any form, whether military, political
or economic, by any state in order to coerce another State to perform any act relating to
the conclusions of a treaty in violation of the principles of the sovereign equality of States
and freedom of consent.
That notwithstanding, the exact scope of the provisions remains uncertain. Many
states have been forced to conclude treaties with other states or to assume
obligations required by such international bodies as the International Monetary
Fund or the World Bank because their parlous financial position left them with little
alternative. There is no indication that the ICJ will accept such economic reality as
coercion.
Treaties conflicting with a peremptory norm of international law (jus cogens)

Article 53 is another provision of the Convention over which debate has been
long. It provides that a treaty will be void if it conflicts with a peremptory norm
of international law, which is defined within the Article as ‘a norm accepted and
recognised by the international community of States as a whole as a norm from which
no derogation is permitted…’. This was a provision that attracted strong support
from Eastern European countries and from developing countries but was resisted
by others. It was included because of the widespread acceptance of the reality of jus
cogens which at the least included the prohibition on the unlawful threat or use of
force, genocide, slavery or piracy. The Commission considered listing examples of
peremptory norms but concluded that to do so might appear to prioritise or privilege
those listed.
The effect of the provision is to recognise that under the rules and principles of
international law there are some (generally humanitarian) principles that are so basic
to international relations that their exclusion could not be permitted. Thus a treaty
intended to further aggression against another state or to forcibly acquire territory
from another is to be void regardless of the level of support and acceptance it receives
internationally.
Activity 6.3
Why do you think peremptory norms have developed in international law? What
are the political views that created a debate?
Summary
The principle of pacta sunt servanda underlies treaty law. Nevertheless there is a
recognition that rules are necessary to ensure the validity of treaties and to provide
the circumstances in which an apparent treaty may be void. Customary international
rules that are regarded as fundamental and have the status of peremptory norms may
not be excluded by treaty. Any attempt to do so will arguably render such a treaty void.
What arguments can be made for the view that a treaty breaching a peremptory
norm of international law may not be wholly invalid?

law (jus cogens) upon treaties.
6.4 The interpretation of treaties
Core text
Essential reading
The art of treaty interpretation is not dissimilar from that of statutory interpretation
in domestic law. Problems of interpretation arise where treaty provisions are
ambiguous, unclear or contested. Historically in international law different rules of
interpretation were applied in particular circumstances. That said, the first and most
common principle was that the words of a treaty should be given their common
meaning, provided this was uncontroversial. Thus in the Interpretation of the Peace
Treaties Case (1950) the ICJ decided that the case was at an end if the language of the
text was clear. Nevertheless other considerations might be relevant, especially if the
objective is to give effect to the obligations intended by the parties when concluding
their agreement. It has also been suggested that a ‘teleological’ approach might
on occasion be helpful. This would consider the objectives of a treaty and what
interpretation or construction of the treaty would best satisfy those objectives.
Article 31 of the VCLT adopts a sensible and modified ‘ordinary meaning’ approach. It
states that a treaty ‘shall be interpreted in good faith in accordance with the ordinary
meaning to be given to the terms of the treaty in their context and in the light of its
object and purpose’. Thus object and purpose will not be irrelevant. The Article also
allows, in order to understand the context, reference to matters in addition to the
text of the treaty with its preamble and annexes, including other agreements and
instruments between the parties relating to the treaty; any instrument made by
the parties (such as letters or declarations) in connection with the negotiation and
conclusion of the treaty; and any subsequent agreements or practice between the
parties concerning the interpretation or application of the treaty. Furthermore, if
the parties intended any special meanings to be given to any term these too will be
applied. As a supplementary means to interpretation, recourse may be had to other
sources including the travaux préparatoires† but only to confirm the meaning or to †
Travaux préparatoires
resolve ambiguity. (French) = ‘preparatory
works’. Travaux or
Activity 6.4 documentation of a treaty
may serve as an aid to
Paraphrase Article 31 of the VCLT.
interpretation of the treaty
Do you think it actually goes further than declaring that treaties are to be
in the same way as legislative
interpreted using common sense in the light of the intentions of the parties? or drafting history might
No feedback provided. shed light on the wording of
a statute.
Summary
Treaties are interpreted by applying a number of not necessarily consistent rules.
While the first task is to give the words of the treaty their ordinary meaning, it is
equally important that the intentions of the parties be identified and the object and
purpose of the treaty be achieved.

u outline the rules of treaty interpretation.
6.5 The amendment and termination of treaties
Core text
Remembering that all treaty law is based upon the consent of the parties, it is not
surprising that this is the first source by which treaties may be amended, suspended
or terminated. Broadly speaking, the parties to a treaty may agree between or among
themselves to treat a treaty as at an end, or modify it, or suspend it. Often the treaty
itself will provide either for its termination or will define the circumstances that
will bring it to an end. It may also provide for the withdrawal of one or more parties.
Difficulties arise when not all parties are agreed and it is here that rules become
important. One example of the sort of difficulty that may be experienced concerns
the Trump administration and its attitude to treaties. President Trump purported to
withdraw from the Paris Agreement concerning climate change, even though that
treaty did not allow parties to withdraw until three years after it has come into force
(which was November 2019). He also withdrew from the multilateral agreement with
Iran in which Iran agreed to limitations on its nuclear programme in return for trade
concessions and the lifting of economic sanctions.
Such rules as these are mostly customary international law rules that have been
codified in the VCLT. Again the case study concerning the Danube dams in the next
section will exemplify the law.
What reasons then may be advanced to justify the termination of a treaty? The three
main non-consensual grounds that may lead to termination are material breach,
supervening impossibility of performance, and fundamental change of circumstances.
Material breach
The VCLT defines a material breach as ‘a repudiation not sanctioned by the present
Convention’ or ‘the violation of a provision essential to the accomplishment of the
object or purpose of the treaty’. Such a material breach of a bilateral treaty entitles
the party not in breach to ‘invoke the breach as a ground of terminating the treaty or
suspending its operation in whole or in part’. Where one party to a multilateral treaty
is in material breach, this allows all the other parties by unanimous agreement to
suspend the treaty in whole or in part, or to terminate it either as between themselves
and the defaulting party, or as among all parties. A single state especially affected by
material breach may invoke it as a ground for suspending the operation of the treaty
in whole or in part in the relations between it and the defaulting state; and otherwise
allows any party not in breach to invoke the breach as a ground for ‘suspending the
operation of the treaty in whole or in part with respect to itself if the treaty is of such
a character that a material breach of its provisions by one party radically changes
the position of every party with respect to the further performance of its obligations
under the treaty’ (Article 60).
As we will see in the case study, the ICJ is reluctant to accept that a breach is
sufficiently material to permit termination. There seems to be no objective definition
of ‘material breach’, and when a breach is to be deemed material has not been
defined. Emphasis always seems to remain upon the performance of treaty obligations
wherever possible.
Supervening impossibility of performance

Once more the interpretation of this Article (Article 61) is to be understood in the
light of a determination to ensure performance except in the most extraordinary
circumstances. While it is provided that there is a right to terminate where there
is impossibility of performance resulting from ‘the permanent disappearance or
destruction of an object indispensable for the execution of the treaty’ it may not be
invoked if the impossibility is the result of a breach by the party wishing to terminate
either an obligation under the treaty or any other international obligation owed to any
other party to the treaty.
Again the case study will show just how high the ICJ will set the criteria before
permitting termination. The fact that performance has become considerably
more difficult than could have been (or was) foreseen by the parties at the time of
negotiation and agreement has been held to be insufficient.
Fundamental change of circumstances (rebus sic stantibus)

Once more it is clear that while Article 62 provides for termination in the event of
a fundamental change of circumstances, instances of termination are few and far
between. Indeed the Article is drafted to emphasise this negative attitude, stating as it
does that an unforeseen (by the parties) change of circumstances may only be invoked
as a ground for terminating or withdrawing from a treaty if the existence of those
circumstances constituted an essential basis of the consent of the parties to be bound
and also the effect of the change is to radically transform the extent of obligations still
to be performed under the treaty.
As an additional qualification, under Article 62(2) fundamental change of circumstance

cannot be invoked to challenge the validity of a treaty establishing a boundary or
if the change results from the breach of the party seeking relief. Thus once more
the emphasis of Article 62 and the customary international law it codified is upon
performance of treaty obligations wherever possible. The perils of this course of action
are all too apparent (in my opinion) in the case study that follows.
Activity 6.5
What arguments can be made in favour of the restrictive approach of international
law to allowing unilateral withdrawal from treaty obligations? Is it sufficient to say,
as some authors do, that the object is to excuse states from obligations that have
changed beyond all recognition, rather than to provide an escape from what has
turned out to be a hard bargain?
Summary
The possibility of being excused performance of treaty obligations is extremely
restrictive. Pacta sunt servanda is elevated in a way that may be more consistent with
a contract way of understanding the world than a recognition that it is not always
appropriate to enforce obligations that have, for whatever reason, become more
difficult or impossible to perform.
Formulate the principles that underlie the termination of treaties.

u describe the rules of treaty termination
u understand and explain the restrictions on the possibilities of treaty termination.
6.6 Case concerning the Gabcikovo-Nagymaros Project

(Hungary/Slovakia) 1997
Essential reading
¢ Case concerning the Gabcikovo-Nagymaros Project (Hungary/Slovakia) 1997
(available at: www.icj-cij.org/public/files/case-related/92/092-19970925-JUD-01-
00-EN.pdf).
In September 1977, Hungary and the then Czechoslovakia entered into a major and
significant treaty providing for the construction and operation of the Gabcikovo-
Nagymaros system of locks on the Danube river. The agreement was for the creation
of a typically ‘Communist’ East European ‘modernist’ project, never known for their
environmental or social sensitivity. According to the preamble to the treaty the
barrage system was designed to attain ‘the broad utilisation of the natural resources
of the Bratislava-Budapest section of the Danube River for the development of water
resources, energy, transport, agriculture and other sectors of the national economy of
the Contracting Parties’. The utilisation was primarily to result in hydro-electric power
generation and supposed or intended improvements to navigation and flood defences.
The two states agreed that the development was to be a joint investment and ‘a single
and indivisible operational system of works’. The intended control of this section of
the Danube was to be achieved by damming it at Dunakiliti on Hungarian territory
with the majority of the river flow diverted through a constructed asphalt-lined bypass
canal to Gabcikovo in Czechoslovakia where electricity was to be generated twice daily
(‘peak power generation’). The intended intermittent damming and releasing of water
in this way necessitated a further dam downstream of Gabcikovo to regulate flow. This
was to be built at Nagymaros in Hungary where electricity was also to be generated,
though on a smaller (non-peak power) scale.
Although environmental protection was hardly central in the treaty provisions, it did
nevertheless provide that the development was not to compromise water control
in the Danube (Article 15) and that it should ‘ensure compliance with the obligations
for the protection of nature’ (Article 19), and that the parties should protect fishing
interests in conformity with a 1958 Convention concerning fishing in the waters of the
Danube. Whether, however, the completion of the construction could ever have been
achieved while giving effect to these provisions is highly doubtful.
Work on the project began in 1978, but while Czechoslovakia made rapid progress,
work at Nagymaros by the Hungarians began only in 1986. By this time concerns had
already surfaced, especially in Hungary, about the potentially damaging nature of the
project on the environment. In addition to the direct environmental impact of the
construction, concerns centred on the reduction in quantity and quality of surface
and ground waters and the consequences thereof. Decreasing the flow in the Danube
by 95 per cent through the use of the asphalt-lined bypass canal threatened to dry up
the last inland delta in Europe, comprising the islands of Szigetkoz (in Hungary) and
Zitny Ostrov (in Slovakia), and hosting unique wetland ecosystems. Eutrophication
(an excess of nutrients) leading to changes in the nature of surface water quality was
also feared. It was also argued that damming the river would lead to a slow but certain
deterioration in water quality in the aquifer under the inland delta (one of Europe’s
largest and used to supply the Hungarian capital, Budapest) due to the accumulation
of pollutants so that the drinking water source would be either undrinkable, or
drinkable only after prohibitively expensive treatment. As a final threat, damage to
biodiversity at the delta wetlands, due to the lowering of the water table and the
lack of floods, was likely. These wetlands have been referred to as the ‘fish-crib† of the †
Crib: a place or object where
Danube’, and it is an area of exceptional importance for biodiversity. There were also young creatures are nurtured.
fears of risks to fisheries and the loss of recreational amenities.
These concerns finally gave rise to large-scale public demonstrations in Budapest against
the project. Despite agreeing in February 1989 to accelerate the project, in May of that
year the Hungarian government suspended work at Nagymaros and then extended the
suspension of operations to all works on its territory until a full investigation into the
environmental consequences of the project had been completed.
Despite ongoing negotiations between Czechoslovakia and Hungary† in September †

This was at a time of
1991, the Czechoslovakian government proceeded to provide its own ‘provisional unprecedented political
solution’ to the inactivity of the Hungarians and their failure to proceed as required. upheaval for both countries,
This ‘provisional solution’ came in the face of now considerable opposition to the culminating in the dissolution
of the COMECON (the
scheme in Czechoslovakia itself. This solution came to be known as ‘Varient C’ and
East European economic
it involved the Czechoslovakian government doing as much as it could to maximise
organisation, disbanded
the benefits of the scheme in the face of Hungarian inactivity. ‘Varient C’ provided for
in 1991) and the Warsaw
the completion of the Gabcikovo reservoir and all works on Slovak territory originally
Pact, and the demise of the
envisaged downstream, together with the construction of a dam at Cunovo on
Soviet Union which had
Czechoslovak territory where the Danube would be diverted into the headrace canal
greatly encouraged the
leading to Gabcikovo. As work at Nagymaros had ceased, peak power production had
original project with an eye
to be abandoned. Although further negotiations were held, in May 1992 the Hungarian
to increased integration of
government issued a written termination of the 1977 Treaty. Eastern European economies.
On 24 October 1992, despite the involvement of the European Commission as mediator,
the damming of the Danube at the diversion weir at Cunovo began and the vast majority
of flow was directed through the artificial bypass canal to Gabcikovo. Thereafter a
temporary water management plan was put in place pending final reference to the
International Court of Justice. Under this plan Slovakia (which peacefully separated
from the Czech Republic on 1 January 1993) was committed to maintaining 95 per
cent of the flow in the Danube and to refrain from operating the power plant, yet it
continued to divert more than 80 per cent of flow to Gabcikovo for power production.
The environmental consequences were stark. In November 1992 the Danube floodplain
dried out completely. From 1993 both countries instigated artificial floodplain water
supply systems, as well as joint monitoring of environmental impact, and in 1995 Slovakia
guaranteed a minimum flow into the original Danube bed below Cunovo. Together
with the construction of a new Hungarian weir near Dunakiliti, this would enable water
to be supplied to the side-arms of the Danube at Szigetkoz. Yet there is evidence of
considerable drought stress to large forest areas as a result of the two-to-four metre drop
of river and ground water levels in the Danube floodplains after diversion.
It is obvious that the consequent dispute, which the International Court of Justice was
called to resolve, was of immense complexity. A construction treaty had been entered
into by two so-called communist states, both of whose governments had given way
to democratically elected regimes by the time the case fell for judgment. In addition
Czechoslovakia had divided into two new states – the Czech and Slovak Republics.
Czechoslovakia had expended large sums of money in respect of its obligations, Hungary
very much less. Evidence was increasingly available to suggest that if construction
were to be completed environmental damage could be catastrophic. There were also
social considerations concerning the people who would be adversely affected by this
development. In fairness to the parties and to the Court, an obvious and just solution was
not apparent. Nevertheless the subsequent events do much to suggest the shortcomings
of legal dispute resolution concerned with possible treaty termination.
The very questions agreed by the parties (obviously on the advice of their lawyers)
exemplify just what was gained and lost by translating the complex dispute in to one
which the Court could be called upon to resolve. The questions referred to the Court
on 2 July 1993 by agreement of the parties were as follows:
u Was Hungary entitled to suspend and subsequently abandon, in 1989, the

work on the Nagymaros Project and on its part of the Gabcikovo Project?
u Was Czechoslovakia entitled to proceed, in November 1991, to the

‘provisional solution’ and to put this system into operation from October 1992
(that is, by the damming of the Danube at Cunovo on Slovak territory)?
u What were the legal effects of the notification of the termination of the Treaty
by Hungary?
The parties also asked the Court to rule on their respective legal obligations arising
from its answers to those three questions.
You will immediately notice how restricted those legal questions were – even though
they could not be answered satisfactorily without a consideration of at least some
of the social questions. In particular, the first question should have been answerable
only if there was in-depth consideration of the environmental risks posed by the
completed (or even incomplete) project. In considering that element of risk, however,
the Court answered it simply by considering in the main, the law relating to treaties.
The judgment considered the status of the contract (treaty) and gave a judgment as
narrow as the questions asked.
In terms wider than simply legal terms, the decision of the Court suffers from two
significant defects. The first arises from the application of the law itself; the second
from an inability to determine environmental issues concerned with water. As to
the first, the questions posed by the parties seemed far removed from the realities
of environmental and health concerns, from commercial and development matters,
political and social concerns, and of course from a post-communist East Europe with
new democracies and market economies. The questions addressed were concerned
with treaty law. Given the way the questions for the Court were termed, it would have
been difficult for the Court to give centrality even to the crucial environmental issues.
Difficult – but not impossible, however. In the four and a half years between the
date the legal questions were jointly submitted and the date judgment was given,
10,000 pages of supporting evidence had been provided, much of which the Court
considered superfluous to its needs and did not consider. Even though the questions
were narrow, the Court should have found it necessary to ask itself whether the treaty
might be incapable of performance in conformity with the environmental provisions it
contained. Legally those provisions are not simple for they provide (Article 15) that the
Contracting Parties shall ensure by the means specified in the joint contractual plan
that the quality of water in the Danube is not impaired as a result of the envisaged
construction, and (Article 19) that the Contracting Parties shall through the means
specified in the joint contractual plan ensure compliance with the obligations for the
protection of nature. Thus the underlying assumption of the Treaty is that construction
of the locks and dams will be possible, if necessary after research and negotiation, in a
way which compromises neither water resources nor conservation.
Evidence was, however, provided which suggested that these provisions were simply
incapable of being complied with. The evidence was not incontrovertible but is
nonetheless formidable. Given the perils to the environment, it might be thought to
have been appropriate to have required clear evidence, acceptable to neutral experts,
that neither water quality, conservation nor fisheries would be affected in a way which
breached the important articles.
In answer to Hungary’s contention that the Treaty had become impossible to

perform because ‘the essential object of the Treaty – an economic instrument
which was consistent with environmental protection and which was operated by
the two contracting parties jointly – had permanently disappeared…’ the Court was
dismissive. It stated that the Articles concerned with environmental protection
‘actually made available to the parties the necessary means to proceed at any time,
by negotiation, to the required readjustments between economic imperatives and
ecological imperatives’. The idea that those two imperatives may always be amenable
to compromise and ‘adjustment’ fundamentally ignores the potential impossibility
of reconciliation. Hungary had put forward evidence, which the Court found it
unnecessary to consider, suggesting that the inevitable result of the constructions
proposed was a risk of irreversible ecological and environmental damage, no matter
how the ‘economic imperatives’ were adjusted.
Not surprisingly, then, the Court’s answer to the three questions were narrow answers
applying the provisions of the Vienna Convention on the Law of Treaties. It held that
Hungary was not entitled to terminate the Treaty, there being no sufficient legal
grounds for termination. It also held that the purported termination could not justify
Czechoslovakia’s ‘provisional solution’ which was a clear violation of the express
provisions of the Treaty and thus an internationally wrongful act. Having answered
the first two questions the Court avoided detailed findings as to the respective future
obligations of the parties. It did stress the need, unless the parties agreed otherwise,
for the joint regime to be restored, taking into account ‘essential environmental
concerns’. As to the basis upon which any compensation should be payable, the Court
held that given the intersecting wrongs of both parties the issue of compensation
could be resolved if each of the parties were to renounce or cancel all financial claims
and counterclaims. But in relation to the settlement of accounts for the construction
of the works, this was to be resolved in accordance with the 1977 treaty and related
instruments: ‘If Hungary is to share in the operation and benefits of the Cunovo
complex, it must pay a proportionate share of the building and running costs.’
As to the solution to the dispute itself, in essence the Court instructed the parties
to negotiate an agreement in the light of the Court’s legal findings, but gave little
indication as to how such an agreement could be reached. Thus the legal questions
were answered but the resolution of the dispute remained elusive, if not illusory.
A final parenthetic point should also be made. One of the arguments made by Hungary
was that it should have been able to invoke the legal concept of fundamental change
of circumstances to justify termination. A part of the claimed fundamental change
was advances in scientific environmental understanding which suggested that the
Treaty was incapable of performance in a way that complied with the environmental
provisions. Another argument, however, was that the change of governmental system
from ‘communist’ dictatorship to democracy, together with the change of economic
system, might be sufficient to absolve Hungary from its obligations under the law of
treaties. This was rejected by the Court which continued to lay primary emphasis upon
the crucial premise of international law – that of pacta sunt servanda. Few international
lawyers would question that rejection but the emphasis does perpetuate, through
the concept of international legal personality, the injustice by which democratic
governments and the people they represent, remain bound by contracts and treaties
signed by dictators or non-representative governments (as in the case of apartheid
South Africa) which they have overthrown or replaced, even when the other party
to such a treaty or contract was well aware of the non-representative nature of the
previous regime.
The result of the emphasis upon pacta sunt servanda is well summed up by Professor
Eyal Benvenisti (in Byers, M. (ed.) The role of law in international politics: essays in
international relations and international law. (Oxford: Oxford University Press, 2000)
[ISBN 9780198268871] p.121) as follows:
In reaching [its] conclusion the Court deliberately emphasised international undertakings

at the expense of domestic pressures. It rejected Hungary’s claim that a ‘state of ecological
necessity’, if it existed, precluded the wrongfulness of the unilateral suspension of the
project, and did so because Hungary could instead have recourse to negotiations to
reduce the environmental risks. It similarly rejected Hungary’s claim to impossibility
of performance, fundamental change of circumstance, and of a lawful response to
Czechoslovakia’s earlier material breach (namely, Slovakia’s construction of the provisional
diversion project). The ICJ also found that Slovakia’s diversion of the Danube waters
breached its obligation towards Hungary to respect the right to an equitable and
reasonable share of the river. Despite its findings to the effect that both sides failed to
comply with their obligations under the treaty, the ICJ concluded that ‘this reciprocal
wrongful conduct did not bring the Treaty to an end nor justify its termination’. Finding the
agreement flexible and therefore renegotiable, the ICJ held that the 1977 treaty continued
to apply, requiring both sides to negotiate its implementation, taking into account current
standards on environmental protection and sustainable development, and to regard
Slovakia’s diversion dam and canal as a ‘jointly operated unit’ under the treaty regime.
Without entering into the doctrinal aspects of the judgment, it is revealing to examine
its implications for the interface between domestic and international politics.
The judgment clearly seeks to insulate international politics from the influence of
domestic politics. Notwithstanding momentous internal political, economic and
social changes affecting both countries, and despite strong public pressure and even
parliamentary resolutions, domestic options remain constrained by an international
agreement entered into during a past era. Even when one government breaches its
obligations to renegotiate in good faith, the other government cannot bow to internal
public pressure and take unilateral action.
Activity 6.6
Assume that it is possible to appeal from the decision of the ICJ in the Gabcikovo/
Nagymaros Dam Case. Draft the grounds of appeal for Hungary.
Summary
The International Court of Justice in its decision in the Gabcikovo/Nagymaros Case
re-emphasised the importance of pacta sunt servanda. The effect of this course of
action, while understandable, really did not resolve the issues. The decision rests on
the doubtful assumption that it could be possible to perform the treaty in accordance
with its terms. It was arguable that the environmental protection provided for in the
treaty was simply impossible to achieve if the central purpose of the Treaty was to be
performed. The Court ignored this possibility.
‘The purpose of the rebus sic stantibus doctrine is to excuse states from obligations
that have changed out of all recognition rather than to provide an escape from
what has turned out to be a bad bargain.’
Discuss.

By this stage you should be:
u familiar with and critical of the law of treaty interpretation as exemplified in the
Case concerning the Gabcikovo-Nagymaros Project (Hungary/Slovakia).

Question 1 Critically consider the circumstances under which a treaty may be
terminated or suspended against the wishes of one party.
Question 2 What was innovative about the Vienna Convention on the Law of
Treaties? How significant are the innovations?

Question 1 What is required here is a discussion of material breach, supervening
impossibility of performance and rebus sic stantibus (fundamental change of
circumstance). A discussion of the position in both customary international law
and Articles 60, 61 and 62 of the Vienna Convention is necessary. It will be important
to emphasise the centrality of pacta sunt servanda in treaty interpretation and the
insistence of international law that treaties be performed except in the most unusual
circumstances. It would be appropriate to use the Gabcikovo-Nagymaros case study
to exemplify the position of the ICJ. Because you are asked to consider the matter
critically you need to have some views on whether the emphasis on pacta sunt
servanda is justifiable and wise. To do this you should consider the impact of the
decisions upon the interests of the states in dispute. Reference should also be made
to the effect of state succession upon treaty obligations, especially where democratic
governments replace non-democratic regimes.
Question 2 This requires an outline of the history of the Vienna Convention and the
reasons for its drafting. An explanation of why it was considered that some innovation
was required will enable a directed response. Particular provisions may then be
discussed and a discussion of why states objected to certain provisions would be
helpful. A brief explanation of the status of different provisions is appropriate and an
explanation of which provisions codified customary international law, which were
innovative but have developed into customary international law and which remain
effective only in cases between parties to the Convention will clarify the position.
Notes
7 Self-determination and territory in international
law
Contents
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 96
7.1 The concept of self-determination in international law before the

creation of the United Nations . . . . . . . . . . . . . . . . . . . . . . 97
7.2 The United Nations Charter, self-determination and decolonisation . . 101
7.3 Self-determination after the Cold War . . . . . . . . . . . . . . . . . 108
7.4 States, territory and recognition . . . . . . . . . . . . . . . . . . . . 112
7.5 Territorial and other rights over the sea and its bed . . . . . . . . . . 115
Introduction
In this chapter you are required to think about the relationship between people and
territory as understood in international law. Probably for most of us, most of the time,
the concept of identity as a national of a state is common sense and unproblematic.
We simply know and accept that we are Pakistani, Singaporean, Chinese or whatever.
Particularly in Europe few people question their national identity even if they
recognise that they are, in addition to being French, Polish or whatever, European
by residence, regardless of ethnicity. In theory, and in some cases in fact, individuals
may have more than one national identity, but what is significant for us is that for
most inhabitants of most long-established states, the link between identity and state,
captured in nationality, is unproblematic. This is not necessarily so in every part of
the world. Within Europe the fact that territory, especially at the margins or borders,
has belonged to different states at different times over the last century indicates that
an easy identification of an individual with a state, as opposed to identification with
territory, is not always simply common sense.
Beyond Europe in much of the world within existing states, the ‘natural’ identification
of person with state often has no great history. Decolonisation brought with it state
independence, but of course almost invariably within the pre-existing colonial
borders. It was the state that achieved independence rather than the state’s
inhabitants – an important fact that we will explore later. It is sufficient here to observe
that in such states it is not unusual for persons to regard the fact of their nationality as
much less significant than ethnic, religious or tribal allegiance.
Learning outcomes
u trace the development of the concept of self-determination as a principle of
limited application
u recognise the tension between sovereignty and self-determination
u explain the significance of the UN Charter in the change from self-determination
as a principle to self-determination as a human right
u recognise the limitations to this right created by the principle of uti possidetis
u explain the contribution of the right of self-determination to the process of
decolonisation
u understand the limitations of the right to self-determination in any claim for
secession
u explain the significance of the end of the Cold War and the disintegration of the
Soviet Union for the concept of self-determination
u appreciate that secession will usually only be accepted when it has become an
accomplished fact
u explain the relevance of recognition to state identity
u explain the means by which sovereign territory may be gained or disposed of
u outline the changes in the law relating to the exploitation of the sea and the sea
bed since the Second World War
u discuss the debates concerning newly created rights over the sea and sea bed.
Public international law 7 Self-determination and territory in international law page 97
7.1 The concept of self-determination in international law

before the creation of the United Nations
Core text
¢ Mansell and Openshaw, Section 3.1 ‘Introduction’ and Section 3.2 ‘The concept
of self-determination in international law before the creation of the United
Nations’.
It is difficult now to imagine a time when the ordinary population was regarded as of
no consequence when it came to determining the state to which the territory they
inhabited should belong. Yet for much of history this was overwhelmingly the case.
The disposition of territorial sovereignty was within the exclusive power of those (or
he) who ruled it – often royalty but always aristocrats in the widest sense. Often the
sovereignty of territory was disposed of after, or as the result of, war in which territory
was conquered, and this was indeed the most common method by which territory was
acquired. The wishes of the inhabitants of such territory, even if known, were simply
ignored as being utterly irrelevant. These ‘rules’ of territorial acquisition (and accepted
as rules in international law) were simply extended to facilitate and legitimate
colonisation. States with sufficient power, or by agreement, asserted title over what
became colonial possessions and this ownership came to be recognised both in law
and in fact by other independent states. Such was the state of international law.
But the seeds of the concept of self-determination were sown even in the earliest
days of colonisation, particularly through the medium of the French Revolution as
well as the American War of Independence with the latter asserting that rulers were
effectively legitimated by the ‘consent of the governed’. Such developments had their
origins in renewed interest in the classical heritage and ‘Athenian democracy’, the
writings of political philosophers and a heritage (at least in the UK) of a limited role
for parliament. All of these militated towards concern for the role of the populace – or
some part of it – in government.
That few thought in terms of this consideration extending to colonised peoples

reflected a European attitude to race that remained largely unchallenged until the
20th century, notwithstanding the abolition of slavery. Such an attitude was well
expressed in the Treaty of Berlin of 1885, a treaty concerned with the allocation of
rights and responsibilities of the European powers (and King Leopold II of Belgium) in
Central Africa. Article VI stated:
All the Powers exercising sovereign rights or influence in the aforesaid territories bind
themselves to watch over the preservation of the native tribes, and to care for the
improvement of the conditions of their moral and material well-being, and to help in
suppressing slavery, and especially the slave trade. They shall, without distinction of
creed or nation, protect and favour all religious, scientific or charitable institutions and
undertakings created and organized for the above ends, or which aim at instructing the
natives and bringing home to them the blessings of civilization.
Patronising and hypocritical though such sentiments seem today, paving as they
did the way for the famous ‘3 Cs’ – commerce, Christianity and civilisation – they
yet, as Pakenham points out, provided a commitment of sorts not to be forgotten
by humanitarians. (Pakenham, T. The scramble for Africa. (London: Weidenfeld and
Nicolson, 1991) [ISBN 9780394515762] p.254.)
More immediately the idea of self-determination did play a part in the creation
of European nation states in the 19th century, and in the First World War it fell
to President Wilson of the USA to extol its virtues. (In fact it seems that initially
his purpose for doing so was, at least in the understanding of his allies, to score
propaganda points against an enemy that contained within its empires many
disparate minority peoples who wished for self-government. This was thought to
be true especially of the Ottoman Empire and the Austro-Hungarian Empire. Within
the latter there were, apart from Germans and Hungarians, Poles, Croats, Bosnians,
Serbians, Italians, Czechs, Ruthenes, Slovenes, Slovaks and Romanians. Overall, 15

different languages were spoken in the Austro-Hungarian empire.)
In January 1918 in Wilson’s address to Congress – the famous ‘Fourteen Points Address’
– his fifth point stated the need for
A free, open-minded, and absolutely impartial adjustment of all colonial claims, based
upon a strict observance of the principle that in determining all such questions of
sovereignty the interests of the populations concerned must have equal weight with the
equitable claims of the government whose title is to be determined.
This is significant for two reasons. First, the colonial claims he spoke of did not include
the colonies of the victorious allies and, second, the principle of self-determination is
obviously not absolute but merely one factor of importance.
The conclusion of the First World War brought no right of self-determination to

colonial peoples and while the maps of Europe and the Middle East were redrawn
there was no great consultation with inhabitants. Rather than provide plebiscites or
even consultation with such people generally, the Treaty of Versailles only prescribed
this process for those living in disputed areas. In other cases minorities were to
be protected through ‘minority treaties’ where states were required to enter into
agreements to guard and protect minority rights – a process of limited effect.
Colonial peoples were not granted any right of self-determination, but those that
were in what were defined as colonies of the defeated states were brought within the
‘mandate system’ whereby territories that were not self-governing were allocated
to the victorious powers. This, it was stated, was to provide ‘tutelage’ so that such
territories might ‘advance’ to a stage where independence was appropriate.
Article 22 of the League of Nations Covenant stated:
To those colonies and territories which as a consequence of the late war have ceased
to be under the sovereignty of the States which formerly governed them and which are
inhabited by peoples not yet able to stand by themselves under the strenuous conditions
of the modern world, there should be applied the principle that the well-being and
development of such peoples form a sacred trust of civilisation and that securities for the
performance of this trust should be embodied in this Covenant.
The best method of giving practical effect to this principle is that the tutelage of such
peoples should be entrusted to advanced nations who by reason of their resources, their
experience or their geographical position can best undertake this responsibility, and who
are willing to accept it, and that this tutelage should be exercised by them as Mandatories
on behalf of the League.
The character of the mandate must differ according to the stage of the development of
the people, the geographical situation of the territory, its economic conditions and other
similar circumstances.
Certain communities formerly belonging to the Turkish Empire have reached a stage
of development where their existence as independent nations can be provisionally
recognised subject to the rendering of administrative advice and assistance by
a Mandatory until such time as they are able to stand alone. The wishes of these
communities must be a principal consideration in the selection of the Mandatory.
Other peoples, especially those of Central Africa, are at such a stage that the Mandatory
must be responsible for the administration of the territory under conditions which will
guarantee freedom of conscience and religion, subject only to the maintenance of public
order and morals, the prohibition of abuses such as the slave trade, the arms traffic and
the liquor traffic, and the prevention of the establishment of fortifications or military and
naval bases and of military training of the natives for other than police purposes and the
defence of territory, and will also secure equal opportunities for the trade and commerce
of other Members of the League.
There are territories, such as South-West Africa and certain of the South Pacific Islands,
which, owing to the sparseness of their population, or their small size, or their remoteness
from the centres of civilisation, or their geographical contiguity to the territory of the
Mandatory, and other circumstances, can be best administered under the laws
of the Mandatory as integral portions of its territory, subject to the safeguards above
mentioned in the interests of the indigenous population.
In every case of mandate, the Mandatory shall render to the Council an annual report in
reference to the territory committed to its charge.
The degree of authority, control, or administration to be exercised by the Mandatory

shall, if not previously agreed upon by the Members of the League, be explicitly defined in
each case by the Council.
A permanent Commission shall be constituted to receive and examine the annual reports
of the Mandatories and to advise the Council on all matters relating to the observance of
the mandates.
There were three categories of mandate. The first was for those considered almost
ready for independence, all of which did achieve self-government between 1932
and 1947. Such states, with boundaries redrawn without plebiscite, primarily by
France and the UK, included Syria and Lebanon (both under French mandate), and
Iraq, Trans-Jordan and Palestine (under British mandate). The second category
covered German colonies in central Africa. These were considered to be further from
possible independence and were allocated to the UK, France or Belgium. The third
category, consisting of territories thought by the Council of the League of Nations
to be incapable of independence and self-government in the foreseeable future,
included the former German colonies of South West Africa, mandated to South Africa,
and Pacific and other colonies in the Southern hemisphere mandated to Japan,
Australia and New Zealand. With the exception of South West Africa (now Namibia),
all mandated territories of the second and third categories became ‘trust territories’
under the Charter of the United Nations.
The mandates were important because they provided, probably inadvertently, the
basis for the subsequent movement towards decolonisation. If independence was to
be the goal for mandated territories it was difficult to argue that it should not also be
the goal for colonies of the victors of the First World War.
The Aaland Islands Case† †

Sometimes spelled Aland
(or, in Swedish, Åland).
In the aftermath of the creation of the League of Nations a case arose that has
continued contemporary significance. It concerned the sovereignty of the Aaland
Islands. These islands occupy a site in the Gulf of Bothnia in the Baltic Sea, between
Finland and Sweden. There is one main island and an archipelago of over 6,000 small
islands and skerries (small rocky islands usually too small for habitation). Ninety per
cent of the population, which is only 27,000, live on the main island. The population is
overwhelmingly Swedish speaking. The recent history of the islands is that in 1809 they
were ceded by Sweden to Russia and they became a part of the semi-autonomous
Grand Duchy of Finland. In 1832 the Russians began to fortify the islands but these
fortifications were destroyed by the British and French in 1854 as part of the campaign
relating to the Crimean War. In the Finnish Civil War of 1918 Swedish troops briefly
intervened as a peacekeeping force but were quickly replaced by German troops on
behalf of the Finnish ‘White’ government. The inhabitants of the islands wished for
the islands to be returned to Swedish sovereignty. Indeed in a petition it was said that
more than 95 per cent of the adult population supported this change. Finland resisted
such a cession but did offer autonomy. The dispute was referred to the Council of
the League of Nations for resolution. In essence the question was whether in such
circumstances the wishes of the inhabitants of a territory overcame the territorial
rights of the sovereign state of which it was a part.
The Swedish government responded to the decision of the Council by stating that in
supporting the cause of the people of the Aaland Islands before Europe and the League of
Nations, Sweden was not influenced by the desire to increase its territory. It only wished
to support noble and just aspirations and to defend the right of an absolutely
homogenous island population to reunite itself to its mother-country, from which it had
been detached by force, but to which it is still united by the ties of a common origin,
a common history, and a common national spirit. This population has declared to the
whole world its unanimous wish not to be bound to a country to which it had been
joined by force of arms alone.
The Swedish government said that it had hoped that an institution established to
assist in the realisation of right in international relationships would have favoured a
solution of the Aaland question in conformity with the principle of self-determination,
since, although not recognised as a part of international law, it has received so wide an
application in the formation of the New Europe.
The decision itself stated unequivocally as follows:
(1) The sovereignty of the Aaland Islands is recognised to belong to Finland.
(2) Nevertheless, the interests of the world, the future of cordial relations between
Finland and Sweden, the prosperity and happiness of the Islands themselves cannot
be ensured unless (a) certain further guarantees are given for the protection of the
Islanders; and unless (b) arrangements are concluded for the non-fortification and
neutralisation of the Archipelago.
(3) The new guarantees to be inserted in the autonomy law should specially aim at the
preservation of the Swedish language in the schools, at the maintenance of the landed
property in the hands of the Islanders, at the restriction, within reasonable limits, of
the exercise of the franchise by newcomers, and at ensuring the appointment of a
Governor who will possess the confidence of the population.
(4) The Council has requested that the guarantees will be more likely to achieve their
purpose, if they are discussed and agreed to by the Representatives of Finland with
those of Sweden, if necessary with the assistance of the Council of the League of
Nations, and, in accordance with the Council’s desire, the two parties have decided
to seek out an agreement. Should their efforts fail, the Council would itself fix the
guarantees which, in its opinion, should be inserted, by means of an amendment, in
the autonomy law of May, 7th, 1920. In any case, the Council of the League of Nations
will see to the enforcement of these guarantees.
In effect, then, the Council of the League elevated existing territorial sovereignty above
the wishes of a people even where their physical location and ethnic and linguistic
identity were undeniably distinct. Sovereignty originally acquired by force remained
sacrosanct. (It is however important to observe that through the good will of the
Finnish and Swedish governments the guarantees provided for the autonomous rights
of the population have been maintained in an unexceptionable manner.) The decision
has been accepted as being of relevance in all contemporary cases of attempted or
projected secession.
Decolonisation and the Indian sub-continent

One other development before the UN Charter concerning self-determination should
be remembered. Although the Indian sub-continent did not achieve independence
until 1947, its struggle to that end was well-established in the 1930s. This movement
enjoyed overwhelming support on the sub-continent and not inconsiderable support
in the colonial power, the UK. Independence and self-government was the inevitable
end and it is clear that the wishes of the people were irresistible. What is important
for the development of self-determination in this example is that it showed that if a
people had sufficient power and unity a colonial state would have no alternative but
to grant what was demanded. Here it was less the exercise of a right than an exercise
of power that developed into a right after the creation of the UN. Indeed, it might be
argued that the concept of self-determination simply channelled the results of the
struggle towards independence.
Activity 7.1
Can it be argued that the process of self-determination was inadvertently initiated
with the mandate system of the League of Nations?
Summary
The early history of the principle of self-determination is important because it
illustrates an accidental historical process. On the one hand the development was
not planned nor its significance understood by those responsible for it, but on the
other hand it did reflect a change in the power relations in international relations
brought about particularly by the First World War. Even so, it should be noted that the
international community placed great significance upon sovereignty and there was
no suggestion that where sovereignty was settled the wishes of a people or peoples
might be able to change this.
Why do you think that the Council of the League of Nations decided to ignore the
wishes of the inhabitants of the Aaland Islands? Were they right to do so?

u trace the development of the idea of self-determination as a principle of limited
application
u recognise the tension between sovereignty and self-determination.
7.2 The United Nations Charter, self-determination and

decolonisation
Core text
¢ Mansell and Openshaw, Section 3.3 ‘The United Nations Charter, self-
determination and decolonisation’ and Section 5.3 ‘The structure of the UN’.
The draft of the UN Charter did not contain any suggestion that the recognised
principle of self-determination would ever be conceived of as a right, let alone
a human right, and certainly not as a peremptory norm of international law.
Nevertheless to some extent this development was foreshadowed by the Atlantic
Charter of 1941 when Roosevelt and Churchill stated the reasons why the Second
World War was being fought. The second and third principles stated:
Second, they desire to see no territorial changes that do not accord with the freely
expressed wishes of the peoples concerned.
Third, they respect the right of all peoples to choose the form of government under which
they will live; and they wish to see sovereign rights and self government restored to those
who have been forcibly deprived of them.
Within the Charter the principle of self-determination received acknowledgement,

but not as a legal right. Its first mention is as a principle in Article 1(2) where it is
stated that one of the purposes of the UN is ‘to develop friendly relations among
nations based on the respect for the principle of equal rights and self-determination
of peoples’. There is a similarly oblique reference in Article 55, while Chapter XII which
concerns trusteeship territories explicitly requires that action be taken by those states
charged with administering trustee territories to promote the welfare of the native
inhabitants and to steer them towards self-government. (The trusteeship territories
included those previously mandated but not yet independent – except South West
Africa – together with dependent territories previously held by the defeated states of
the Second World War. All territories in this system had either achieved independence
or had chosen otherwise by 1995. South West Africa remained under mandate and
became independent in 1990.)
From the earliest days of the UN two issues preoccupied the non-aligned states and
newly independent states. These were decolonisation and the apartheid regimes.
Much energy was directed at ensuring that these two issues remained at the forefront
of all UN concerns. Indeed the reason for the very long delay (18 years) between the
Universal Declaration of Human Rights and the signing of the International Covenants
of Human Rights of 1966 arose from what was seen as persistence to that end on the
part of non-aligned and newly independent states, and ‘bloody-mindedness’ by the
developed UN states.
7.2.1 The process of decolonisation

While Chapter XII of the Charter dealt with the mandated territories and territories
detached from the states defeated in the Second World War, Chapter XI was
concerned with other non-self-governing territories which remained outside of the
trusteeship system. Chapter XI is entitled ‘Declaration Regarding Non-Self-Governing
Territories’ and was intended to provide for colonial matters. As Cassese points out,
this was a provision in which the contribution of small and medium-sized countries
was important. Article 73 provided as follows:
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:
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;
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;
to further international peace and security;
to promote constructive measures of development, to encourage research, and to

co-operate with one another and, when and where appropriate, with specialised
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 XI and XII apply.
While the requirements placed upon colonial powers were scarcely onerous, the
very fact that they moved towards accountability of such states to the international
community lent a substantial impetus to decolonisation. Cassese explains the
reasons for this impetus (pp.328–29) but, although I agree with his factors, I think
that they should be ordered differently. The crucial factors were the liberation
movements in colonies and the support they derived from non-aligned and newly
independent states within the UN. At the Bandung Conference of 1955, 29 African and
Asian countries met (with China, India and Indonesia playing a prominent role) and
agreed to resist colonialism. This conference led to the formation of the ‘Non-Aligned
Movement’ in 1961, which was also dedicated to decolonisation. The other factors –
the support of the ‘Second World’ (that is, the USSR and its allies) for decolonisation,
the economic and social cost to colonial states, the waning support of the USA for
European colonial empires and the rise to power of European parties that favoured
decolonisation – were important, but less so. And Article 73, as drafted, certainly
played its part.
But while decolonisation was one of the great triumphs for the United Nations with
the process being largely complete by 1975, self-determination brought a number of
substantial problems, to which we will turn shortly. First it is necessary to consider the
role of the UN in this remarkable process.
Even the light obligations imposed by Article 73 were regarded as unacceptable by

some colonial states and they attempted through a variety of rationalisations to avoid
the reporting obligation. Portugal and Spain claimed that they were without colonies
because their ‘overseas territories’ were in fact an integral part of the European state
itself (thus Mozambique and Angola were argued to be a part of Portugal!). France
argued that as its overseas territories were a part of the French Union they too were
beyond the scope of Article 73, and the UK said that the article did not apply to
territories that had local autonomy. Really the question was whether the power to
define territories as colonies was to lie with the colonial powers themselves or with an
external body.
By 1960, the newly independent and non-aligned states were in the majority in the UN
General Assembly and promoted a Declaration on the Granting of Independence to
Colonial Countries and Peoples that was passed as Resolution 1514 by a vote of 89 in
favour and none against. There were, however, nine significant abstentions including
the USA, the UK, Portugal, Spain and Belgium. This Resolution, together with the
subsequent Resolution 1541, greatly altered and advanced the cause of decolonisation.
Resolution 1514 provided:
(1) The subjection of peoples to alien subjugation, domination and exploitation

constitutes a denial of fundamental human rights, is contrary to the Charter of the
United Nations and is an impediment to the promotion of world peace and co-
operation.
(2) All peoples have the right to self-determination; by virtue of that right they freely
determine their political status and freely pursue their economic, social and cultural
development.
(3) Inadequacy of political, economic, social or educational preparedness should never

serve as a pretext for delaying independence.
(4) All armed action or repressive measures of all kinds directed against dependent
peoples shall cease in order to enable them to exercise peacefully and freely their
right to complete independence, and the integrity of their national territory shall be
respected.
(5) Immediate steps shall be taken, in Trust and Non-Self-Governing Territories or all other
territories which have not yet attained independence, to transfer all powers to the
peoples of those territories, without any conditions or reservations, in accordance
with their freely expressed will and desire, without any distinction as to race, creed or
colour, in order to enable them to enjoy complete independence and freedom.
(6) Any attempt aimed at the partial or total disruption of the national unity and the
territorial integrity of a country is incompatible with the purposes and principles of
the Charter of the United Nations.
(7) All States shall observe faithfully and strictly the provisions of the Charter of the United
Nations, the Universal Declaration of Human Rights and the present Declaration on the
basis of equality, non-interference in the internal affairs of all States, and respect for
the sovereign rights of all peoples and their territorial integrity.
Thus it called for immediate decolonisation, regardless of the colonial power’s view
of ‘readiness’ or ‘maturity’. At the same time, it reinforced the view discussed below
that territorial integrity implied that self-determination would be exercised within
colonial borders. (For a discussion of the contemporary relevance of General Assembly
Resolution 1514, see the 2019 ICJ advisory opinion Legal consequences of the Separation
of the Chagos Archipelago from Mauritius (www.icj-cij.org/en/case/169) briefly discussed
at Section 8.4.) Resolution 1541 complemented this by providing that acts of self-
determination must be exercised by the people to whom it applied, by free and fair
elections by which they might choose either to constitute themselves as a sovereign
independent state, or to associate freely with an independent state, or to integrate
with an already existing state.
Other important developments in the United Nations were to be found in the finally
signed two International Covenants on Human Rights of 1966 which had a common
first Article, namely:
(1) All peoples have the right of self-determination. By virtue of that right they freely
determine their political status and freely pursue their economic, social and cultural
development.
(2) All peoples may, for their own ends, freely dispose of their natural wealth and
resources without prejudice to any obligations arising out of international economic
co-operation, based upon the principle of mutual benefit, and international law. In no
case may a people be deprived of its own means of subsistence.
(3) The States Parties to the present Covenant, including those having responsibility for
the administration of Non-Self-Governing and Trust Territories, shall promote the
realisation of the right of self-determination, and shall respect that right, in conformity
with the provisions of the Charter of the United Nations.
The significance of these common provisions in the Covenants intended to give legal
effect to the UDHR cannot be over-emphasised. Not only is a right of political self-
determination asserted but it is asserted as a human right. Of equal importance to the
right of political self-determination is that of economic self-determination, on which
more later.
One other development is also crucial. As we observed earlier, the preoccupations

of the newly independent states and the Non-Aligned Movement lay not only with
decolonisation but with states in which apartheid was accepted. The latter situation
was encompassed by a determination by the General Assembly that those living under
racist regimes or those living in occupied territories (especially but not exclusively
Palestinians) also had a right to self-determination even where they were in an
established state such as South Africa.
While all these developments increased the rate of decolonisation and kept
international attention focused upon the topic, they were not unproblematic in their
results. Three features presenting problems must be considered – the operation of
the principle of uti possidetis, the methods by which the wishes of people claiming
the right of self-determination were to be ascertained and guaranteed, and finally the
operation of a proclaimed right of economic self-determination.
7.2.2 The principle of uti possidetis

This principle, derived from Roman law and meaning ‘you will have sovereignty over
those territories you possess as of law’, has now been adapted and absorbed from the
principles upon which Latin American states obtained independence in the early 19th
century. Independence was acquired within the frontiers of the pre-existing colonial
territory and these could not be altered unilaterally but only in agreement with adjacent
states. Following the Second World War it was quickly accepted both by the colonial
powers and by colonies seeking independence that this was an appropriate general
principle and in turn this was accepted both by the Organisation of African Unity and
by the ICJ (in the Frontier Dispute Case (Burkina Faso v Mali) [1986] ICJ Rep 554), and later
in Case concerning Territorial and Maritime Dispute between Nicaragua and Honduras in
the Caribbean Sea (Judgment of 8 October 2007) ICJ Rep 659 which confirmed that the
principle of uti possidetis is, and remains, an important legal principle.
No doubt this seemed sensible in the interests of stability. It has, however, had a great
number of unfortunate consequences, many of which continue to plague African
states in particular. The most cursory glance at a political map of contemporary
Africa will reveal the number of boundaries that often extended in a straight line for
hundreds of kilometres. Such boundaries were drawn by colonial draftsmen without
reference either to the physical features of the territory being bounded, or to the
people and their ethnicity who might live either side of the line. In fact straight African
borders indicate that when they were drawn there was total ignorance of topography,
geography or inhabitants (or, usually, all three) on the part of the draftsmen. Not
surprisingly then, many African borders unintentionally contain disparate ethnic
groups or, probably more seriously, cut through tribal territories, dividing people
from their kith and kin and imposing different nationalities upon them. The result of
the first, the containing of disparate people, led to substantial secessionist problems,
most acutely in Biafra’s attempt to secede from Nigeria, from 1967–70, and Katanga’s
attempt to secede from the Congo after its independence from Belgian rule. In
fairness to those who rejected such secession it should be said that both of the above
examples concerned the richest parts of ex-colonial states attempting to secede, and
both movements were supported by states that hoped to profit.
The result of the application of uti possidetis has been a series of frontier disputes
coming before the ICJ in which we see the rather unedifying spectacle of the disputes
being resolved in a way thought to conform with colonial intention and evidenced
by the earliest colonial maps or treaties. Many contemporary disputes in Africa, both
internal and external, have their origins in colonial frontier drawing. Examples are
innumerable and range from the civil strife within Ivory Coast to the frontier dispute
between Eritrea and Ethiopia.
Thus the effect of uti possidetis has greatly constrained the proclaimed right of self-
determination. Although value judgments may be inappropriate, some have argued
that while the concept of decolonisation and self-determination was progressive, the
consequent constraints of uti possidetis were distinctly conservative and prevented
many peoples from breaking free from the colonial borders that had been imposed
upon them. Certainly many minority peoples in African states have continued to
experience subjugation. At the same time it remains obvious that statehood can
never be equated with ethnic homogeneity. Arguably almost all states contain diverse
ethnic groups and what is important is the access such people have to government
participation and transparency.
The comparative clarity of the principle of uti possidetis is, however, under threat from
an entirely new phenomenon – that of territory not defined by previous state borders
but claiming to be a ‘state entity’. Thus, within the sovereign territories of Iraq and
Syria there now exist substantial areas under the control of those claiming to have
organised an ‘Islamic caliphate’, governed by the Sunni Wahhabi ideology. In Nigeria
there is a territory unrelated to state boundaries under the control of ‘Boko Haram’,
organised by self-proclaimed Muslim ‘fundamentalists’. The future for either area is
unpredictable but they do challenge the almost universal acceptance of uti possidetis.
7.2.3 Methods of self-determination and consequences

Once the reality of decolonisation had been conceded by the colonial power there
were still two issues to be resolved. The first was the means by which the future of
the decolonised territory was to be resolved, and the second was to be the role of the
colonial power in defining the terms under which self-government was granted.
As to the first, in retrospect it seems obvious that some act expressing the will of the
people being decolonised should have been sought. Usually this was the case and
plebiscites were often the means by which this was determined. Within African states
receiving independence this was unproblematic. There was little doubt that the
overwhelming majority of inhabitants would, and did, prefer domestic rule to that of
colonial masters. There the question was rather about the constitutions with which
such states were to be provided rather than determining wishes. This was not always
the case, and on occasion events occurred that were difficult to reconcile with the
spirit of decolonisation, and indeed its reality. Two examples indicate once more the
significance of power in any analysis of international law.
The first example is that of Goa, an enclave on the West Coast of the Indian sub-
continent. Goa was a thriving Portuguese colony for some 450 years. Portugal was
arguably in breach of its UN obligations in not taking steps to ascertain the wishes
of the people of the colony. In 1961 India entered and annexed Goan territory which
it claimed was an integral part of ‘Mother India’. This being the case it refused a
referendum and the de facto result was accepted by the UN, a draft resolution
condemning the annexation having been vetoed by the USSR.
The second example concerns what was once West New Guinea, a Dutch colony from
1883. It was the western half of the second largest island in the world, the other half of
which became independent Papua New Guinea in 1975. When in 1949 the independent
state of Indonesia was formed from the Dutch colonies known as the Dutch East
Indies, West New Guinea was retained by Holland with a view to preparation for
independence. Indonesia, under President Sukarno, and with the support of the Non-
Aligned Movement in which he was influential, laid claim to all former Dutch territory.
It had already successfully incorporated the Molucca Islands, although the Dutch
decolonisation agreement had provided for the possibility of Moluccan secession – a
fact subsequently ignored by the United Nations. Sukarno’s claim to West New Guinea
was no more attractive or reasonable than Dutch colonial occupation. There was no
natural link between West New Guinea and Indonesia and the claim can be seen as an
attempt at late colonisation. Nevertheless, after armed confrontation by Indonesia
in 1962, the Dutch entered negotiations which led to the transfer of the territory
and its sovereignty to UNTEA (the United Nations Temporary Executive Authority) for
six years, after which period it was to determine the people’s preference between
independence and Indonesian integration. Almost immediately Indonesia began to
direct events and finally, in 1969, a referendum of 1,205 delegates was organised in a
vote that was neither representative, free nor fair. This vote in favour of integration
into Indonesia was accepted by the United Nations, to its shame and notwithstanding
misgivings, and the territory was unhappily transferred to Indonesia in November
1969. Needless to say, the change in sovereignty has brought no happiness to
the ordinary people of West New Guinea (subsequently known as Irian Jaya) and
opposition to the regime continues.
What should be understood, therefore, is that although self-determination is

portrayed as always beneficial to those enjoying the right, this is not necessarily
inevitable, unless the process is carried out in the manner supposedly intended.
As to the role of the colonial power in defining subsequent constitutional

arrangements, we turn to two other examples: Burma (Myanmar) and Indonesia.
(More detailed information is to be found in an article by Karen Parker entitled
‘Understanding self-determination: the basics’, at www.guidetoaction.org/parker/
selfdet.html)
Both are examples of attempts by departing colonial powers to leave a constitutional

legacy in the form of a written constitution intended to constrain the sovereignty of
newly independent states. This was a typical process but the two chosen examples were
early ones that foreshadowed the impossibility of the task, even if well meant. Burma
gained independence from Great Britain in 1948 with a constitution that had been
drafted in 1947. This provided for a parliamentary democracy and also, in recognition
of the different peoples within Burma, provided for states within Burma for each of
the Karen, Kachin and Shan people. Although the parliamentary democracy was to be
unitary, Article 201 provided that any of the above groups would have a right to secede
after 10 years of constitutional rule. As you might know, within that 10 year period the
majority Burmese seized power and unilaterally removed the right to secession even
though it had been thought that it had been effectively entrenched. Two points should
be noted. First, although constitutions usually continue to operate ‘beyond the grave’
(obviously the US constitution is an example of this), where a constitution is left as an
imposed colonial legacy it is likely that its prestige will be greatly diminished. Second, the
effect of constitutional changes by the newly independent state might be (as happened
in Burma) to extinguish the very ‘self-determination rights’ of minority peoples,
supposedly achieved through decolonisation.
Indonesia too was formed from many different peoples in what had previously been
the Dutch East Indies. The Dutch used many soldiers from the Moluccan islands in
the struggle against decolonisation. In 1949 there was a Round Table Conference
between the Netherlands, the Javanese (leaders of the Indonesian independence
movement) and the United Nations, which agreed upon a de-colonisation instrument.
It too included the possibility of ‘opt-outs’ providing for plebiscites for territories
not wishing to be a part of the ‘United States of Indonesia’. Plebiscites were never
permitted and when the Moluccan leadership declared independence in 1950, the
islands were invaded by Indonesian forces. The matter was taken up by the United
Nations Commission for Indonesia but the UN did nothing and the Commission ceased
to exist five years later – no doubt reflecting the wishes of both newly independent
states and those of the Second World who were more concerned with decolonisation
than true self-determination.
There are also parallels to be discovered in African decolonisation and state

constitutions.
Economic self-determination
As is clear from Article 1 of the International Covenants on Human Rights, there
was recognition that political self-determination in itself was insufficient. Thus
there was an insistence that independent states should have the right to control
both their economies and their resources without external interference. What was
claimed was both the right to nationalise property within the new state regardless of
ownership and title, and the right to economic development on equitable terms. (At
this time it was not expressed in such terms but was implicit in the request of many
independent but disadvantaged countries for financial and technical assistance.)
Cassese observes how from the 1960s newly independent states perceived the
damage done to their economies by the terms under which they traded. Industrial
prices rose persistently while primary produce and raw materials, the major exports
of decolonised states, remained at or fell below the prices achieved at independence.
Although nationalisation of foreign property remained an option, the reality of the
consequences detracted from the attractiveness of this option, and to make matters
worse, developed states took the view that the corollary of the right to nationalise was
the obligation to pay ‘fair’ compensation. Efforts by the newly independent states to
achieve a ‘New International Economic Order’ through a General Assembly resolution
in 1974 were successful in a resolution but had little real effect.
Attempts to redress the wealth disparity between North and South made little
progress in spite of having the concept of ‘the common heritage of mankind’ adopted
within a Law of the Sea Convention in 1982 (discussed later), and in spite of achieving
a UN General Assembly Declaration recognising a ‘human right to development’. All
these attempts to argue for economic redress for the debilitating effects of colonialism
by way of fair trade and development, while very successful in obtaining widespread
UN support, achieved very little in real terms. Indeed it is possible to argue that
while self-determination brought political control, at least to parts of the indigenous
population, one of its major effects was to remove the administrative burden and cost
of colonialism from the colonial states and to place it directly upon ex-colonies.
Such a generalisation demands discussion and thought beyond the scope of this
guide, and it would be unfortunate to conclude this section on a negative note. The
fact is that many states decolonised since 1945 have made much greater strides
towards economic independence and prosperity than they could have expected
had their colonial status continued. Few would now maintain that a system whereby
territory and peoples are administered by foreign nationals with whom sovereignty
resides is anything other than unacceptable and immoral. That colonialism was for so
long accepted as unproblematic by European empires seems, in retrospect, almost
unbelievable. This has been the great achievement of decolonisation.
Activity 7.2
Can one provide general answers as to why decolonisation and self-determination
achieved less than might have been hoped or expected? In your view does
responsibility lie with developed or underdeveloped states?
Summary
This section has been concerned to consider the change in the principle of self-
determination that existed at the time of (and in) the UN Charter to a ‘human right
of self-determination’ in the 1966 International Covenants on Human Rights. The
argument is that rapid decolonisation was both remarkable and generally in the
interests of indigenous inhabitants. Nevertheless it is important to recognise the
limitations of the right and the fact that some people got as little from ‘decolonisation’
as they had from colonial administration. This stems in part from the application of
the principle of uti possidetis, and in part from the factual lack of economic self-
determination which impeded economic development.
1. Why were attempts through the UN to assert rights to development and fair
trading conditions never successful, except in the passage of the resolutions
themselves?
2. Is it conceivable that a right of secession could ever have been a part of a right to
self-determination?

u explain the significance of the UN Charter in the change from self-determination
as a principle to self-determination as a human right
u recognise the limitations to the right created by the principle of uti possidetis.
7.3 Self-determination after the Cold War
Core text
¢ Mansell and Openshaw, Section 3.4 ‘Self-determination after the Cold War’.
¢ Wallace and Martin-Ortega, Chapter 5 ‘Territory’, pp.99–111.
By the end of the Cold War in 1990 most people thought that the concept of self-
determination had almost fulfilled its purpose. This was because it had been accepted
as being of relevance only to colonial or occupied peoples and there were few of these
left. One obvious remaining problem was that presented by the Palestinian situation,
particularly after the war of 1967 in which Israel captured and continued to occupy the
West Bank and Gaza. Many resolutions were passed by the UN recognising the right of
Palestinian self-determination, but unwavering support by the USA for whatever position
the Israeli government adopted in order to resist, left the Palestinians frustrated and the
Israelis building more and more settlements in the occupied lands. Israel has remained
intransigent notwithstanding international pressure and has continued to defy an ICJ
decision, with the construction of a ‘security fence’ largely built in the occupied land.
Regrettably, this is one right of self-determination that still remains to be exercised.
As we have seen above, any right of self-determination was subordinate to the

principle of the territorial integrity of a state, and hence there was no right of
secession. Academic writers suggested that where secession was sought this would
only be arguable where those wishing to secede were deprived of their civic rights
within the state in which they existed. A right of internal self-determination meant
that all peoples within a state should have equal rights of access to the means of
government, but not a right to their own government. In some ways this emphasis
upon territorial integrity was understandable. The feeling was that if distinct
ethnic groups, religious groups or language groups were to be able to argue for
independence, the resulting fragmentation of states would have no end. It was also
recognised that if secession was tolerated, most secessions would themselves lead to
the creation of a new minority within the seceding state.
Nevertheless the events at the end of the Cold War forced a reconsideration of the
place of self-determination. The disintegration of the Soviet Union into 15 independent
states was a remarkable event. That it was accomplished with so little violence
was nothing short of astounding. The disintegration brought about not only new
institutions of government but agreement about the division of both the Soviet
Union’s assets and its debts. Again the principle of uti possidetis was applied, with the
new states appearing, at least temporarily, within their erstwhile federal frontiers.
Eleven of the states that replaced the Soviet Union remained in loose alliance with
Russia, in a Commonwealth of Independent States (CIS), while the Baltic states, Latvia,
Estonia and Lithuania, together with Georgia, rejected such links.
Immediately following the break up of the Soviet Union came the disintegration
of Yugoslavia. It is notable that at least in the early stages of the crisis international
emphasis was upon the territorial integrity of Yugoslavia and there was no assertion
of a right to secession. It is still widely argued that the recognition of the independent
states of Croatia and Slovenia occurred only when the disintegration was an
accomplished fact. (While there can be no right to secession, sufficient power to assert
the fact of secession may suffice for recognition! This is discussed further below.)
A number of recent cases have confirmed that self-determination remains a

contentious concept. South Sudan gained its independence from Sudan after
an agreement was negotiated between those seeking independence and the
Government of Sudan, and a subsequent referendum. The new state received
widespread recognition and was granted admission as a member of the UN. The
position with regard to Kosovo’s independence was very different.
Kosovo announced its Unilateral Declaration of Independence in February 2008. The

Declaration was strongly opposed by Serbia but Kosovans had voted to secede in
a referendum held in 1991. On a turnout of 87 per cent, 99 per cent voted in favour
of independence but Kosovan Serbs (10 per cent of the population) boycotted the
referendum. Although 69 states quickly recognised an independent Kosovo (this number
did reach 114 but after 15 withdrawals of recognition, now (September 2020) numbers 98
out of 193 UN members), many refused to recognise the new state. The refusal primarily
came from states faced with their own secessionist movements, or from states with
traditional religious or political ties to Serbia. In October 2008, the General Assembly
requested that the ICJ provide an advisory opinion as to whether Kosovo’s declaration
of independence was in accordance with international law. The ICJ duly provided this
opinion in June 2010 (see [2010] ICJ Rep 403). It is important that this opinion is read and
understood.
While those states recognising Kosovo’s independence claimed that this was a sui
generis case, it has been used by Russia (one of the states that refused to recognise
Kosovo) as providing a justification to recognise republics purporting to break away
from the State of Georgia (South Ossetia and Abkhazia), and then to justify Russian
annexation of Crimea in March 2014.
Legal arguments concerning Russia’s purported annexation of Crimea need to be

studied. The fact of a referendum (although by no means flawless) in which 97 per
cent of those voting supposedly voted to leave Ukraine to become a part of Russia,
is claimed by Russia to have justified its actions in international law. Arguments for
and against this position should be understood. Shaw’s International law has a helpful
discussion of this claimed exercise of self-determination.
At the time of writing, (December 2021) there is considerable apprehension (at least
in the USA and Europe) as to President Putin’s intentions towards Eastern Ukraine
with a Russian arms build up at the Russian border. A new ‘Crimean episode’ is feared
with Russia intending to invade Ukrainian territory and ‘legitimate’ annexation of
land where a referendum might be held to prove support from the East Ukrainian
population (particularly if those who oppose such invasion have fled to other parts of
Ukraine). It is worth considering whether the ICJ’s advisory opinion on Kosovo might
have encouraged such Russian claims and whether Article 2(4) of the UN Charter,
which implicitly accepts the inviolability of established UN members’ state borders, is
as universally accepted as it was before the 21st century.
When considering Eastern Ukraine, it is important also to understand Russian
expressed apprehension as to the eastwards extension of NATO to states with which
Russia shares a border.
Contemporary rules on secession

While there have been many secessionist movements since the Cold War they tend
to be diverse in their nature, cause and hopes. They range from attempts by Tamils
to create an independent state in Sri Lanka to Somalis attempting to create a state
of Somaliland, from attempts by those in Western Sahara to achieve independence
to Chechnyans fighting for independence from Russia, from Quebecois wishing to
separate from Canada to the Scottish National Party seeking independence from the
United Kingdom, to Catalonia seeking to secede from Spain. When considering any of
these cases it is useful to refer to the conclusions reached by the Canadian Supreme
Court when it was asked by the Federal Government to consider the legitimacy of any
Quebecois declaration of independence if it was successful in obtaining a positive vote
for independence in a referendum. (When the question was asked there had already
been two such referenda, in 1980 and 1995, and although independence was rejected,
the second vote was very close with a majority of only 1 per cent.)
The most important point it makes is consistent with the Aaland Islands decision of
1923. The Supreme Court had been asked to consider both whether such a declaration
of independence would be legal under the Canadian Constitution and whether
it would be consistent with international law. The Court’s answer was that such
unilateral secession was not consistent with either, and emphasised that territorial
integrity prevails over any right of external self-determination. Effectively it stated that
where rights of internal self-determination were protected so that the ‘government
represents the whole of the people or peoples resident within its territory, on a
basis of equality and without discrimination, and respects the principles of self-
determination in its own internal arrangements, [it] is entitled to the protection under
international law of its territorial integrity’. In other words, as we have seen above,
a right of external self-determination can exist only where a people or peoples are
denied equal access to the machinery of government and civil rights.
Of course in some ways Quebec is a unique situation. It is not a case where a territory
at the extremity of the state is seeking to detach itself. The geographical position of
Quebec within Canada means that, were it to achieve independence, the implications
for the remainder of Canada would be severe. In addition, as with the Aaland Islanders,
not only were the inhabitants not discriminated against but their language and culture
received real protection.
The contemporary position is accurately stated (though with a caveat which we shall
add at the end) in the summary of legal advice given by Professor James Crawford of
Cambridge University in answer to a request from the Canadian Department of Justice in
1997. These were his conclusions:
(a) In international practice there is no recognition of a unilateral right to secede based

on a majority vote of the population of a sub-division or territory, whether or not that
population constitutes one or more ‘peoples’ in the ordinary sense of the word. In
international law, self-determination for peoples or groups within an independent state is
achieved by participation in the political system of the state, on the basis of respect for its
territorial integrity.
(b) Even where there is a strong and sustained call for independence (measured, for example,
by referenda results showing substantial support for independence), it is a matter for
the government of the state concerned to consider how to respond. It is not required to
concede independence in such a case, but may take into account the national interest
and the interests of all those concerned.
(c) Even in the context of separate colonial territories, unilateral secession was the
exception. Self-determination was in the first instance a matter for the colonial
government to implement; only if it was blocked by that government did the United
Nations support unilateral secession. Outside the colonial context, the United Nations is
extremely reluctant to admit a seceding entity to membership against the wishes of the
government of the state from which it has purported to secede. There is no case since
1945 where it has done so. Where the parent state agrees to allow a territory to separate
and become independent, the terms on which separation is agreed between the parties
concerned will be respected, and if independence is achieved under such an agreement,
rapid admission to the United Nations will follow. But where the government of the state
concerned has maintained its opposition to unilateral secession, such secession has
attracted virtually no international support or recognition.
(d) This pattern is reflected in the so-called ‘safeguard’ clause in the United Nations General
Assembly Resolution 2625 (XXV), the Friendly Relations Declaration of 1970. In accordance
with this clause, a state whose government represents the whole people on a basis of
equality complies with the principle of self-determination in respect of all of its people
and is entitled to the protection of its territorial integrity. The people of such a state
exercise the right of self-determination through their equal participation in its system of
government.
In spite of these conclusions it is possible to infer from the first and fourth sections that
a right of external self-determination might exist where a people or peoples enjoy no
participation in the political system and/or are subject to discrimination. Such examples
could arguably be found in Chechnya or Tibet. But these two examples make a different
but familiar point. No secession will ever be permitted from a strong state regardless of
the political conditions obtaining.
Finally, notwithstanding Professor Crawford’s conclusions, the example of Eritrea’s

independence should be mentioned. At the end of the Second World War Eritrea
became a trust territory administered by the UK. In 1952 control was transferred
to Ethiopia by the UN where it retained full autonomy until annexed by Ethiopia in
1962. It remained an Ethiopian province with UN acquiescence until a prolonged war
of resistance, and independence was finally gained in 1993 with the downfall of the
Ethiopian dictator, Mengistu. An Eritrean plebiscite under the supervision of the UN was
held, as a result of which independence was declared and the new state was recognised
by Ethiopia. What this example demonstrates is that where a territory is physically able
to insist upon its demands for secession, the de facto position will gain recognition.
The state from which secession has taken place will have no realistic alternative to
acceptance and recognition.
Activity 7.3
Is the idea of a human right to self-determination of any continuing relevance after
decolonisation? Should it be?
Summary
Two factors affected the use of the concept of self-determination at the end of the
Cold War. The first was the disintegration of the Soviet Union and the reasonably
amicable creation of new independent states. New limitations on the concept
of territorial integrity became necessary upon the subsequent dissolution of
Yugoslavia – though in both cases the principle of uti possidetis was applied. The
fact of the disintegration could not be denied. The second factor was that because
self-determination had been confined to decolonisation and this process was almost
complete, the concept required a new definition if it was to have any continuing
relevance. This has been achieved, at least theoretically, by distinguishing a right of
internal self-determination from a right of external self-determination. As always
in international law, the question of power is central in any purported exercise of
self-determination. This is nowhere better illustrated than in the Palestinian people’s
frustrated but acknowledged right to self-determination.
1. Summarise Crawford’s conclusions concerning the contemporary meaning of
self-determination. Are they adequate and sufficient?
2. Has the continuing use of the principle of uti possidetis proved helpful in the
creation of new states since the Cold War?

u explain the contribution of the right of self-determination to the process of
decolonisation
u understand the limitations of the right to self-determination in any claim for
secession
u explain the significance of the end of the Cold War and the disintegration of the
Soviet Union for the concept of self-determination
u appreciate that secession will usually only be accepted when it has become an
accomplished fact.
7.4 States, territory and recognition
Core text
¢ Mansell and Openshaw, Section 3.5 ‘States, territory and recognition’.
Essential reading
¢ Security Council Resolution 2334.
The discussion of the right of self-determination has so far left unconsidered two
major areas of international law that are crucial for a full understanding of territory
and international law. The first relates to the principle of uti possidetis and answers
the question as to how a state either upon creation or later may acquire or dispose of
territory. The second looks at the topic of recognition of a state’s claim to territory and
its importance.
7.4.1 State acquisition or disposal of territory in international law

Until the formulation of the UN Charter, this was a complex topic with abstruse
rules. A world in which territory was won by conquest, or the planting of a flag,
or international agreement of European colonial powers, or indeed by purchase
regardless of the wishes of inhabitants, or simply by occupying territory previously
uninhabited, at least by ‘civilized’ people, called for rules of an elaborate nature. Those
that existed were based initially upon Roman law. On occasions they remain relevant
even post-Charter, as for instance when frontier disputes exist between decolonised
states leading to uncertainty as to where the borders are to which uti possidetis
applies, or should have applied upon independence. These cases are, however, so rare
that it is enough for you to be aware that such questions might arise and to know that
most international law texts spend a disproportionate amount of time discussing law
that is largely irrelevant to the 21st century.
Article 2(4) of the UN Charter states:
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.
Having recalled this provision, the ICJ, in Legal Consequences of the Construction of a Wall
in the Occupied Palestinian Territories – an advisory judgment in 2004, stated in para 87
as follows:
On 24 October 1970, the General Assembly adopted resolution 2625 (XXV), entitled
‘Declaration on Principles of International Law concerning Friendly Relations and
Co‑operation among States’ (hereinafter ‘resolution 2625 (XXV)’), in which it emphasised
that “No territorial acquisition resulting from the threat or use of force shall be recognised
as legal.” As the Court stated in its Judgment in the Case concerning Military and
Paramilitary Activities in and against Nicaragua (Nicaragua v United States of America),

the principles as to the use of force incorporated in the Charter reflect customary
international law (see I.C.J. Reports 1986, pp.98–101, paragraphs 187–190); the same is true
of its corollary entailing the illegality of territorial acquisition resulting from the threat or
use of force.
This unequivocal statement contains the law of territorial transfer in the present
day. Transfer can only be legitimate if it comes with the agreement of the sovereign
parties to the deal. Such a conclusion has manifest consequences for the future of
Israeli settlements in the Occupied Territories. Only Israel and the United States have
argued that ‘facts on the ground’ might replace international law. It is also relevant
to remember that, although Israel’s purported annexation of the Golan Heights has
(contrary to international law) been recognised as legitimate by the USA, this position
is not shared by the overwhelming majority of nations. The unequivocality of this
position in international law is once more emphasised in SC Resolution 2334 of 2016.
This explicitly reaffirmed the inadmissibility of the acquisition of territory by force and,
with regard to Israel, ‘Underlines that it will not recognise any changes to the 4 June
1967 lines, including with regard to Jerusalem, other than those agreed by the parties
through negotiations’.
While it is still reasonable to state that ‘Transfer can only be legitimate if it comes
with the agreement of the sovereign parties to the deal’, notwithstanding the US
recognition of the Golan Heights as Israeli territory, the position has become a little
more controversial with the decision of the Trump administration to declare that
Israeli settlements in Palestine are ‘not necessarily illegal’. This may have implications
for many other territories occupied or claimed (such as Crimea, or Northern Cyprus).
Such a position could even have implications for Russian settlements in the Baltic
states.
Nevertheless, it should be noted in passing that challenges to colonial acquisition of

title continue in the claims of indigenous peoples in such countries as Canada, New
Zealand, Australia and the USA.
7.4.2 Recognition in international law

Because the world of states is not one which is irrevocably settled, new states and new
configurations of old states have been a constant feature of international relations.
Thus apart from decolonisation, we have seen the creation of new independent
states arising from the dissolution of the Soviet Union and the former Yugoslavia,
and we have seen the amicable division of what was Czechoslovakia into the Czech
Republic and Slovakia. Such changes in statehood necessitate a response from other
states taking cognisance of the new realities. It is here that recognition is important.
Recognition by one state of another state implies that the recognising state is willing
to enter into relations with the entity that is being recognised. The recognition may
be of either a state or the government of a state. Where it is the state that is being
recognised, recognition implies that the recognising state accepts that the recognised
state has the attributes of a state and will be treated as such. The recognition of
a government formally acknowledges that the recognising state accepts that the
recognised regime is the effective government and will be treated on that basis. In
addition the recognition may be express, as for instance by a formal announcement,
or it may be by implication through an act which of itself implies recognition
unequivocally, particularly by entering a bilateral treaty.
Very often the recognition will be collective, as when a state is newly admitted
to membership of the UN under the procedure set out in Article 4 of the Charter.
Once a state has been admitted to the UN it becomes subject to, and benefits from,
sovereign equality (Article 2(1)). Indeed it was the fact of Kuwait’s membership of the
UN that made Iraq’s purported annexation before the first Gulf War subject to almost
unanimous condemnation.
There is also an academic debate as to whether recognition is ‘declaratory’ or

‘constitutive’. In other words, does recognition simply recognise an existing reality or
is it the act(s) of recognition that creates the reality of statehood? The Montevideo
Convention on the Rights and Duties of States, 1933 stated the generally accepted
criteria for statehood as requiring (a) a permanent population, (b) a defined territory,
(c) a government and (d) capacity to enter into relations with other states; it went on
in Article 3 to add, ‘The political existence of a state is independent of recognition by
the other states’. This is clearly an acceptance of the declaratory thesis but it is equally
clearly largely obsolete. Those who argue that recognition is more than this point to
Article 4 of the UN Charter, which provides for admission only to those states willing to
accept the Charter obligations. They are able to reinforce this position by considering
the events leading to the recognition of states formed from the dissolving Soviet
Union and the Former Yugoslav Republic. Here the EC (now the EU) had determined
that recognition was to be granted only upon important specified conditions. To
this end the foreign ministers of the member states of the EC adopted the following
‘Guidelines on the Recognition of New States in Eastern Europe and in the Soviet
Union’ in 1991:
In compliance with the European Council’s request, Ministers have assessed developments
in Eastern Europe and the Soviet Union with a view to elaborating an approach regarding
relations with new states.
In this connection they set out the following guidelines:
The Community and its Member States confirm their attachment to the principles of the
Helsinki Final Act and the Charter of Paris, in particular the principle of self-determination.
They affirm their readiness to recognise, subject to the normal standards of international
practice and the political realities in each case, those new States which, following the
historic changes in the region, have constituted themselves on a democratic basis, have
accepted the appropriate international obligations and have committed themselves in
good faith to a peaceful process and to negotiations.
Therefore, they adopt a common position on the process of recognition of these new
states, which requires:
u respect for the provisions of the Charter of the United Nations and the
commitments subscribed to in the Final Act of Helsinki and in the Charter of Paris,
especially with regard to the rule of law, democracy and human rights
u guarantees for the rights of ethnic and national groups and minorities in
accordance with the commitments subscribed to in the framework of the
Commission on Security and Co-operation in Europe
u respect for the inviolability of all frontiers which can only be changed by peaceful
means and by common agreement
u acceptance of all relevant commitments with regard to disarmament and nuclear

non-proliferation as well as to security and regional stability
u commitment to settle by agreement, including where appropriate by recourse to

arbitration, all questions concerning state succession and regional disputes.
The EU and its member states will not recognise entities which are the result of
aggression. They take account of the effects of recognition on neighbouring states.
Thus the position would seem to be that states are not under an obligation to
recognise a state merely because of a political reality. East Germany was not
recognised as a state by the West until 1973 and the ‘Turkish Republic of Northern
Cyprus’ received recognition only from Turkey.
Finally, you will probably not be surprised to learn that there remains one anomalous
territory, that of Palestine. A State of Palestine was proclaimed in November 1988,
establishing it in the land of Palestine with a capital at Jerusalem (Al-Quds Ash-Sharif),
though of course it is difficult to reconcile with the Montevideo criteria for statehood.
Nevertheless the State has been recognised by more than half of the nations of the world
and all of the Arab League. Obviously such recognition is a politically motivated action
reflecting the frustration of many states at the Middle Eastern impasse. In 2011 Palestine
made a further attempt at UN membership – an ambition that was bound to be thwarted
by US opposition. Palestine was, however, granted full membership of UNESCO (although
one unwished for consequence was that the USA withdrew its budgetary contribution to
the organisation). On 29 November 2012 the UN General Assembly voted overwhelmingly
to grant Palestine the status of Non-Member State Observer (the vote was 138 states in
favour, 9 against, with 41 abstentions), and in November 2013 Palestine cast its first vote
in the General Assembly. Perhaps even more significantly, on 1 January 2015, Palestine
lodged a Declaration under Article 12(3) of the Rome Statute accepting the jurisdiction of
the ICC and on 2 January it acceded to the Rome Statute.
That the question of recognition still raises important questions became clear when
on 5 October the UK Court of Appeal allowed an appeal against a High Court ruling as
to which government was to be recognised as the legitimate authority in Venezuela.
Although the Appeal Court did not decide the issue, its discussion of recognition
remains timely and significant. See Banco Central de Venezuela v Bank of England [2020]
EWCA Civ 1249.
While the question of which government is to be recognised as the legitimate

government of Venezuela remains unresolved, with the EU and the USA recognising
different presidents, a new matter concerning recognition concerns Afghanistan.
While it is clear that the country is controlled by the Taliban, there is considerable
resistance to granting recognition before assurances are given over human rights,
particularly with regard to women. See the useful article regarding the return of the
Taliban and another perspective from Pakistan.
Activity 7.4
Explain the debate about whether recognition is declaratory or constitutive. Is the
debate significant?
Summary
In this section has we have considered how sovereign territory may be acquired
or disposed of. Since the UN Charter, acquisition or disposal is only possible by
agreement. Even prolonged occupation will no longer suffice and purported
annexation is unlawful. When considering the role of recognition in international law
it was necessary first to explain the effect of recognition and how it is granted either
of a state or a government. It was also important to understand that de facto situations
cannot compel recognition and that it is not uncommon for a recognising state to
impose conditions before recognition.
Summarise the position of recognition in municipal law as described in
Kaczorowska-Ireland (Section 6.4: ‘Recognition of States and governments in
national law: the UK’).

u explain the relevance of recognition to state identity
u explain the means by which sovereign territory may be gained or disposed of.
7.5 Territorial and other rights over the sea and its bed
Core text
¢ Mansell and Openshaw, Section 3.6 ‘Territorial and other rights over the sea and
its bed’.
¢ Wallace and Martin-Ortega, Chapter 13 ‘The law of the sea’.
So far in discussing self-determination and the acquisition and disposal of territory we

have confined ourselves to a consideration of land. Until well into the 20th century this
would have been sufficient. Whereas territorial rights over land were highly developed,
questions of ownership of and rights over the sea and its bed remained largely unasked.
This was for a number of important reasons. The first concerned the rights of passage of
ships. So important was merchant shipping that all powerful nations had an interest in
protecting the rights of ships to the freedom of the seas. The only real limitation lay over
the territorial sea where it was generally accepted that states could claim three nautical
miles from the coastline as part of national territory. Because of this status the state
enjoyed full sovereignty over the territorial sea, the airspace above it, the seabed and all
that lay below it. Even then, however, the sovereignty was subject to the right of innocent
passage that lay with all foreign merchant shipping and warships. ‘Innocent passage’
meant that the right could be exercised if passage was not prejudicial ‘to the peace, good
order or security of the coastal state’. While the right has sometimes been contested,
usually the power of states in whose interests the rule operates has been sufficient to
ensure innocent passage.
The 1982 Convention on the Law of the Sea determined that coastal states should
be able to claim up to 12 nautical miles of territorial sea (one nautical mile is 1.852
kilometres, or 1.508 land miles). This development was very much a part of the process
by which property rights were being asserted over what had previously been available
to all. Typically, property claims are made over resources that have scarcity value. As
long as the sea was seen as primarily a route for shipping and a place for fishing, with
enough fish for all, there was no need to make property claims. By the end of the
Second World War coastal states had come to realise that the seabed and what lay
below it could be extraordinarily valuable. Then followed a ‘property grab’, unseen
since the scramble for colonies. It began with President Truman’s Proclamation of
September 1945 which stated:
Having concern for the urgency of conserving and prudently utilising its natural resources,
the Government of the United States regards the natural resources of the subsoil and sea
bed of the continental shelf beneath the high seas but contiguous to the coasts of the
United States as appertaining to the United States, subject to its jurisdiction and control.
In cases where the continental shelf extends to the shores of another State, or is shared
with an adjacent State, the boundary shall be determined by the United States and the
State concerned in accordance with equitable principles. The character as high seas of the
waters above the continental shelf and the right to their free and unimpeded navigation
are in no way thus affected.
Very quickly customary international law followed the proclamation, to the great
benefit of all coastal states fortunate enough to have a continental shelf. In turn the
Geneva Convention on the Continental Shelf, 1958 (and the later 1982 Convention on
the Law of the Sea) regularised the position and as a result states are able to claim up
to 200 nautical miles of continental shelf, not as sovereign territory but as territory
that the coastal state has an exclusive right to explore and exploit. Such rights do not
affect the status of the high seas nor the air space above the continental shelf.
Initially coastal states without significant continental shelf appeared to be prejudiced

by that fact in that the ability to exploit the sea was not initially extended in the same
way. This disadvantage was corrected with the creation of an ‘exclusive economic zone’
(EEZ). The 1982 Convention defined this EEZ as ‘an area beyond and adjacent to the
territorial sea’ which was not to extend beyond 200 nautical miles. Again sovereignty is
limited – in this case to rights ‘for the purpose of exploring and exploiting, conserving
and managing the natural resources, whether living or non-living, of the seabed and
subsoil and the superjacent waters’. Most importantly, even if there is no continental
shelf the rights include the right to regulate fishing within the EEZ.
What will be apparent, then, is that within 30 years of the UN Charter the law of the
sea had undergone an immense change to the considerable benefit of most coastal
states (not all, because some that had been involved in distance fishing found their
rights restricted). Particularly through off-shore oil exploitation many coastal states
had title to resources to which a claim was recognised only in the second half of
the 20th century. Land locked states received no such benefit of course, and it was
this that persuaded many of the delegations at the Law of the Sea conferences to
attempt to distribute at least the proceeds of the exploitation of the deep seabed in
a way dictated more by need than luck. While this was the view of developing states
who argued that the benefits of deep sea exploitation should be recognised as ‘the
common heritage of mankind’, the developed states (not altogether coincidentally
the states with the ability to exploit the deep seabed) argued merely for regulation
and licensing. The 1982 Convention provided that all deep seabed exploration should
be carried out and controlled by an ‘International Sea Bed Authority’. Cassese explains
the subsequent events (pp.92–94). Whereas the Convention paved the way for the
deep seabed to be used ‘in the interest of mankind’, this was firmly rejected by
industrialised countries, and the Convention did not enter into force until 1994 when
considerable concessions were made to the perspective of the developed countries.
Activity 7.5
‘The whole development of the law of the sea was thus dictated by State
sovereignty, nationalism, and a laissez-faire attitude. In the scramble for economic,
scientific, or military control over the new resources, almost all new notions were
inspired by self interest and geared to competition.’ (Cassese, p.82.)
Does this quotation accurately reflect developments concerning the law of the sea
after the Second World War?
Summary
Changes in the law of the sea over the last 60 years have been dramatic. This has been
to the great advantage of many coastal states and to no real advantage to others.
To a large extent the size of the benefit has corresponded to the length of coastline,
although some states have found their continental shelf to be much richer in natural
resources than others. Attempts to distribute these ‘windfall’ profits more equitably
proved significantly unsuccessful. This was the case despite attempts to secure the
benefits of the deep sea bed for distribution in accordance with need.
Define and distinguish between the following:
u the territorial sea
u internal waters
u the contiguous zone
u the exclusive economic zone
u the continental shelf
u the high seas
u the international seabed.

u outline the changes in the law relating to the exploitation of the sea and the sea
bed since the Second World War
u discuss the debates concerning newly created rights over the sea and sea bed.

Question 1 ‘The concept of self-determination has changed from a broad but
reasonably well-defined principle to a “human right to self-determination” that is
almost impossible to define or apply.’
Discuss.
Question 2 ‘The legitimacy of secession has always posed an almost insuperable
problem for international law. Having emphasised for so long the sanctity of
sovereignty, international law has been unable to develop criteria to distinguish
between acceptable and unacceptable secession. The result is that secession must
be achieved by force.’
Discuss.

Question 1 This question requires a discussion of the development of the concept of
self-determination. A satisfactory structure would be to describe what the principle of
self-determination meant and its limitations. Thus it would be appropriate to speak of
its philosophical underpinnings and the reasonable inference that sovereign territory
was not only about territory but also about the interests of inhabitants. At the same
time the tension between territorial integrity and accepting the political wishes of a
minority of citizens should be observed. This is well illustrated by the Aaland Islands
Case where sovereignty was allowed to prevail over the wishes of the islanders.
Although self-determination was still regarded as a principle when the UN Charter was
accepted, it was only a short time later that it was being accorded the status of a right
by the majority of the members of the General Assembly and utilised in the process of
decolonisation. At this point it is appropriate to explain the benefits and limitations
in the process with special consideration of uti possidetis. Some discussion could then
cover the elevation of the ‘right’ to a ‘human right’ in the International Covenants in
1966 and the significance of this.
Finally an analysis of the right after the Cold War should be made, emphasising how
the right remained largely unchanged in theory even though it no longer concerned
decolonisation. This could be followed by an indication of where and when the
right is still sought and the likely outcome. The conclusion could concern itself with
the question of whether self-determination as defined in international law really is
capable of definition and application.
Question 2 A right to secede would surely be the antithesis of territorial integrity. It is

because territorial integrity is one of the cornerstones of sovereignty in international
law that any notion of a right to secede would have to be extremely narrow and
well-defined. It is clear that there remain situations where secession would be an
appropriate response to an unjust situation – West Papua would be a good example.
Many people would argue that the oppression directed towards the Chechnyan
people historically provides justification for their efforts to secede. Equally clearly,
however, the ability to secede will be more significant than any ‘right’ to secede. It
remains inconceivable that Russia will in the foreseeable future be prepared to accept
Chechnyan secession just as it is equally inconceivable that China would contemplate
Tibetan secession.
At this point it would be relevant to consider the Canadian Supreme Court decision
concerning Quebec, also drawing upon the Crawford discussion. The conclusion might
be either that there could never be any unilateral right to secession for the reasons
expressed in those two sources; or that secession will always have to remain a political
act which can be made lawful only upon recognition by other states or admission into
the UN.
8 The peaceful settlement of disputes
in international law
Contents
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 120
8.1 Legal method and international dispute resolution . . . . . . . . . . 121
8.2 The limited use historically made of the ICJ . . . . . . . . . . . . . . . 124
8.3 The contentious jurisdiction of the ICJ exemplified by Nicaragua v USA . 126
8.4 The advisory jurisdiction of the ICJ . . . . . . . . . . . . . . . . . . . 130
8.5 International arbitration . . . . . . . . . . . . . . . . . . . . . . . . 134

Introduction
The Charter of the United Nations places considerable emphasis upon the obligation
of member states to avoid conflict and to settle disputes through peaceful means.
Article 1(1) states that it is a purpose of the UN 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
while Article 2(3) places an obligation upon members to:
settle their international disputes by peaceful means in such a manner that international
peace and security, and justice, are not endangered.
Every member of the United Nations is of course a party to this Charter and is bound
by it. The means of the pacific settlement of disputes is the subject of Chapter VI of
the Charter. Such means include, under Article 33, ‘negotiation, enquiry, mediation,
conciliation, arbitration, judicial settlement, resort to regional agencies or
arrangements, or other peaceful means of their own choice’.
You should notice immediately that the means suggested for resolving disputes, while
they are all obviously lawful, are not all, strictly speaking, legal means as we defined
them in Chapter 2. Negotiation, enquiry, mediation and conciliation, while they do
have definitions in international law, seem, at least in my view, to lack the quality of
legal means. This, as suggested in Chapter 2, requires some ‘translation’ from the social
and political world to a legal frame in which legal issues are isolated and answered. For
this reason we will primarily be concerned with judicial resolution, especially through
the ICJ, and to a lesser extent with arbitration. The chapter will begin with a discussion
of legal method and international dispute resolution, and will then proceed to a rather
critical analysis of the International Court. It will consider the history of the Court, its
composition and Statute, and some cases will exemplify the points made.
Nevertheless, for the sake of completeness, mention is required of the non-legal

methods. These are well explained in Dixon but summarised here. Negotiation
is obviously the means by which most international disputes are resolved. This is
usually, but not necessarily, diplomatic and face to face, and any agreement will have
the status intended by the parties. It will be legally binding if this is what the parties
intend. Mediation and good offices involve a third party or third parties. ‘Good offices’
from a third party precede negotiation, and mediation is a third party attempting to
mediate, or be an intermediary between disputing parties. A commission of inquiry
is usually a preliminary means by which facts may be impartially found in order to
provide the basis for a resolution to the dispute.
Public international law 8 The peaceful settlement of disputes in international law page 121
Learning outcomes
u recognise the significance of the emphasis placed by the international
community upon the peaceful settlement of disputes
u explain the means enumerated in Article 33 of the UN Charter for the peaceful
settlement of disputes
u explain why some means of settlement can be categorised as legal methods and
some not
u understand the ICJ in its form and structure
u describe the legal method of the Court
u formulate criticisms of both the Court and its methods
u appreciate the role of the ICJ in contentious cases, and give examples of how it is
limited by political realities
u explain the role and scope of the ICJ’s advisory jurisdiction
u appreciate the possibilities and limitations of arbitration in international dispute
resolution
u understand the advantages and disadvantages of arbitration as opposed to
judicial settlement.
Core text
¢ Mansell and Openshaw, Chapter 5 ‘The United Nations, the UN Charter and
international law’ and Chapter 7 ‘The peaceful settlement of disputes in
¢ Wallace and Martin-Ortega, Chapter 9 ‘Arbitration and judicial settlement’.
8.1 Legal method and international dispute resolution

It was observed in Chapter 2 that international law is a phenomenon without
compulsory jurisdiction in the event of disagreement or dispute. This is in spite of the
fact that compulsory and binding jurisdiction was perceived as desirable by many
writers for most of the 20th century. Many argued that an international court with
the ability to hand down authoritative judgments which would finally decide the
rights and wrongs of issues which threatened world peace, and also with the moral
or physical standing to ensure compliance, would contribute directly to the United
Nations objective of maintaining international peace and security. Often, it is argued,
legal dispute resolution is the only alternative to the resolution of the dispute by force,
often meaning war.
There have historically been many efforts to persuade states that their interests lay in
accepting this compulsory jurisdiction and the obligation to give effect to judgments
even when inconvenient or worse. In retrospect this attempted persuasion seems to
have been doomed to failure. The reasons are briefly alluded to in Chapter 2 but now
require further discussion.
The assumptions of those who advocated the acceptance of compulsory jurisdiction

were over-optimistic for two central reasons. The first lies in the distinction between
politics and law, and the second (which is related) is concerned with the belief in the
objectivity of law and its ability to provide justice.
These reasons may be exemplified through discussion of the significance of two

decisions of the International Court of Justice. The first concerns the USA and its
‘relations’ with the government of Nicaragua; the second, the advisory opinion given
by the Court in 1996 after considering whether the threat or use of nuclear weapons
is, in any circumstances, permitted under international law. Both cases illustrate the
advantages, and also the pitfalls of putting international problems into legal form.
8.1.1 The history and structure of the ICJ

The ICJ is the judicial organ of the United Nations and was the successor to the
Permanent Court of International Justice (PCIJ), which was established in the aftermath
of the First World War in 1921. There were however some significant differences
between the two which indicate changing attitudes to adjudication in international
law. As Judge Bedjaoui observed when he was President of the ICJ, the PCIJ was more
of a precursor than a predecessor. This, he explained, was because of one striking
difference between the Courts. Whereas the PCIJ, not an organ of the League of
Nations, ‘aimed essentially to do no more than establish peace in order to preserve
the status quo’, the ICJ was an integral part of the United Nations with the framers of
the UN Charter directing their efforts towards the establishment ‘of an entirely new
international society – a society consistently moving towards progress; a society more
just, more egalitarian, more wont to show solidarity, more universal; a society all of
whose members were to engage in an active and collective endeavour to usher in a
full and lasting peace’.
Thus he suggests that the ICJ was to be fully integrated into the concerns and purposes
of the United Nations Organisation.
While both Courts were given the authority to give final judgments, neither was given
the power to create new international law. Decisions of the Courts do not, at least
technically, create precedents as they would if they were given in domestic common
law jurisdictions, although their importance will in fact extend beyond the instant
case. The impetus for the creation of both Courts came from the reasonable sentiment
that the use of force to settle disputes should be avoided as a matter of both policy
and choice. As Judge Weeramantry often observed while a judge of the ICJ, there was a
recognition that all major international disputes are finally concluded by negotiations
and adjudication, and this in itself suggests that it is advantageous to have the
negotiations and adjudication before, rather than after, the use of force.
The creation of both Courts was stimulated by senseless and revolting carnage and
the reaction thereto. The Statute of each Court provided that states could at any
time declare that they recognised the jurisdiction of the Court as compulsory ipso
facto in relation to any other state accepting the same obligation, in all legal disputes
concerning a wide range of topics. In such a case it is provided that if the dispute
is of a legal character and concerns the interpretation of a treaty; any question of
international law; the existence of any fact which, if established, would constitute a
breach of an international obligation; or the nature or extent of reparation to be made
for the breach of an international obligation, then the Court’s jurisdiction becomes
compulsory (Article 36(2) of the Statute of the Court). Most disputes between states
would come within at least one of these provisions.
8.1.2 Criticisms of the ICJ

For various important reasons this acceptance of compulsory jurisdiction has not
proved popular and hence the role of the ICJ in world affairs remains limited, although
not inconsequential. Why should this be? A first answer lies in the composition and
structure of the Court itself. The Statute of the Court provides that appointed judges
are to be qualified for the highest judicial offices in their own state, or that they should
be jurisconsults of recognised competence in international law (Article 2). There are 15
judges from 15 different states, elected by the UN General Assembly and the Security
Council, and they sit as independent judges for nine-year terms. The intricate voting
procedure elaborated in Articles 3–12 ensures that each elected candidate has received
majority support in both the General Assembly and the Security Council. It is provided
also that at every election (these are staggered) the electors are to ‘bear in mind not
only that the persons to be elected should individually possess the qualifications
required, but also in the body as a whole the representation of the main forms of
civilization and of the principal legal systems of the world should be assured’.
Perhaps the use of ‘the main forms of civilization’ might not give great confidence to
the poorest states and the suspicion is always that ‘civilisation’ is equated with power
and wealth, rather than culture. It is not without significance that the two working
languages of the ICJ are English and French.
And it is certainly true that the composition of the ICJ has remained contentious, with
the view often being expressed that the Court was dominated by the North and by
the powerful states in particular. There has recently been increased diversity in the
judges chosen but this has certainly not met all of the objections. The problems lie
rather deeper and lead to inherent contradictions. Such diversity as there is comes
from a system which has evolved de facto. In this system, probably not incorrectly
labelled as a ‘gentlemen’s agreement’, there is a regional distribution of judges with
three from Africa, three from Asia, two from Latin America, two from Eastern Europe,
and five from Western Europe and other countries. Within that regional distribution
there was a ‘convention’ which ensured that a judge from each of the states which
hold permanent membership of the UN Security Council would be elected. In 2017
this aspect of the ‘gentlemen’s agreement’ came to an end when the sitting UK judge
(Christopher Greenwood) had his nomination for re-election withdrawn by the UK
Government, after he received far fewer votes in the General Assembly than the Indian
nominee (Dalveer Bhandari). For the first time in 70 years the UK was without a seat on
the ICJ.
Until recently, only one female judge had been elected in the history of both the PCIJ
and the ICJ (Judge Rosalyn Higgins), although three currently sit. Just as significant is the
difficulty in actually achieving the diversity apparently envisaged. Although the judges
sit as judges with independence, it is obvious that candidates will only be selected if
they have shown a significant commitment to the structure, form and methodology of
international law as it is. Neither rebels nor iconoclasts will conceivably be elected no
matter what state they come from or with what support. Thus it may be argued that
notwithstanding the diversity of states from which judges come, the ICJ will continue
to reflect a very Western perception of the way in which courts should operate and the
sort of legal perspective that is brought to bear. Furthermore, although the judges are
nationals of 15 states, overwhelmingly they have traditionally received at least some
part of their legal education in the USA, the United Kingdom or France. Additionally,
some have argued that the fact that the judges are eligible for re-election to a second
term of office (eight of the current 15 are in their second nine-year terms) may not lend
itself to judicial independence. Evidence suggests that judges making judgments not
favoured by the major powers are unlikely to be re-elected.
This homogeneity of judicial identification is reinforced by the status, salary and

privileges which are a part of their appointments. With the status of eminent people
of ambassadorial rank, constantly reinforced by procedures which emphasise their
exalted positions, their diversity tends to evaporate. This of course is only significant
if it is accepted, as has been argued, that the international law way of proceeding is in
fact not objective or neutral but imbued with the ideological perceptions of the West.
Activity 8.1
What criticisms may be made of the form and structure of the International Court of
Justice? Do you agree with them?
Summary
Arguably the scope for judicial resolution of international disputes is limited. This is
because judicial resolution will seldom resolve political issues. The structure and form
of the ICJ can, anyway, be seen as reflecting Western perspectives on judicial resolution
and although the Court is drawn from many states this remains the case.
1. How are judges for the ICJ chosen?
2. How do you think they should be chosen?


u recognise the significance of the emphasis placed by the international
community upon the peaceful settlement of disputes
u explain the means enumerated in Article 33 of the UN Charter for the peaceful
settlement of disputes
u explain why some means of settlement can be categorised as legal methods and
some not
u understand the ICJ in its form and structure
u describe the legal method of the Court.
8.2 The limited use historically made of the ICJ

The fact that there are concerns over the structure and composition of the Court
only partly explains the reluctance of states to grant jurisdiction. More fundamental
is the very real apprehension about the usefulness of litigation and adjudication as
a method of dispute resolution. By its very nature a legal case may be won by either
party, and it is obvious, if usually unobserved, that no party if given a choice would
choose to litigate unless that party believed it had a very real chance of success.
Indeed even then it might well choose negotiation and mediation rather than the risk
of adjudication.
It was observed in Chapter 2 that the legal method of resolving disputes brings
other problems as well. In the selection of the ‘legally relevant’, many social facts
of significance to the parties or their constituents may simply be ignored, bringing
political danger to governments. And because of the adversarial method of the ICJ this
in itself often has the effect of aggravating disputes rather than mitigating them.
Finally, there is the well-founded fear that the application of international law will
generally preserve the status quo rather than promoting change which might
arguably be desirable. (One alleged example of this concerned the legality of the
NATO intervention in Kosovo. When the government of Yugoslavia attempted to have
the legality of the intervention considered by the ICJ the UK government refused to
allow the case to be heard as they were entitled to do. One reason advanced for the
refusal to accept was that the law relating to humanitarian intervention was still
developing and to allow the ICJ to determine the existing position might set back this
development.)
And it is seldom forgotten that international law governed the colonial world just as
‘objectively’ as it now governs a world of independent states. Considering the cost
and the time involved in litigation, if the outcome is unpredictable, usually only those
states unlikely to prevail in other forums will be prepared to chance all before the ICJ.
Two significant qualifications to this critique must however be addressed and allowed.
The first is that while the disadvantages of the legal method of dispute resolution
are clear, so too are the advantages. In structuring a dispute in terms of questions
of international law, while much of the political reality and context may be lost, the
advantage is that a question is formulated that is answerable. At least the dispute as
formulated by law may be resolved. A sometimes quoted example suggests that there
are disputes in which both parties welcome any solution because of the intransigence
of the argument. In the words of Nagendra Singh, a judge at the ICJ from 1973 until his
death in 1988:
The successful resolution of the border dispute between Burkino Faso and Mali in the 1986
Frontier Dispute Case illustrates the utility of judicial decision as a means of settlement in
territorial disputes. The case was submitted to a Chamber of the ICJ pursuant to a special
agreement concluded by the parties in 1983. In December 1985 while written submissions
were being prepared, hostilities broke out in the disputed area. A ceasefire was agreed,
and the Chamber by an order of 10 January 1986 directed the continued observance of the
ceasefire, the withdrawal of troops within twenty days, and the avoidance of actions
the ceasefire, the withdrawal of troops within twenty days, and the avoidance of actions
tending to aggravate the dispute or prejudice its eventual resolution. The case proceeded,
and in its judgement of 22 December 1986 the Chamber determined the overall course
of the frontier line. The Presidents of Burkino Faso and Mali publicly welcomed the
judgement and indicated their intention to comply with it.
Thus the legal method may be useful where resolution plus authority is in the interests
of all parties, and it may also be appropriate in disputes between friendly states
prepared to accept outside jurisdiction, as in several cases concerning the law of the
sea.
The second qualification to the critique is that the record of the ICJ (such as it is, given
that until recently very few cases had been referred to it) does not suggest that it
has been less than independent. Its activities with regard to South West Africa (now
Namibia) in 1966 did cause international concern, particularly in the non-Western
world, when it held that it enjoyed no jurisdiction to determine whether South Africa
was in violation of its mandate from the League of Nations in maintaining a system of
apartheid within the territory. Certainly many African and Asian states regarded this
decision as unacceptable and doubt was cast upon both the credibility of the Court
and its ability to move easily into a post-colonial era.
Some of the lost ground was recovered when in 1971, in an advisory opinion given
at the request of the Security Council dealing with some aspects of the status of
Namibia in international law, the Court upheld the obligation of states to give effect to
a Security Council Resolution declaring the continued presence of the South African
authorities to be unlawful. Sound though this may have seemed, its merit was greatly
diminished by South Africa’s continuation of occupation until 1990. The ability to
ignore an advisory opinion and to flout the ruling did little to increase the standing
of the Court in the eyes of those consistently offended both by apartheid and by the
Western friends of the South Africa government.
Overall, however, it is difficult to assess and appraise the Court because it is obviously
constrained by the cases referred to it. But the fact that there have been so few
must obviously represent either a distrust of legal method and international law as
a suitable dispute resolution method or a sense that law is not relevant to political
disputes.
Such suspicion and scepticism can only have been increased by the effects of the
ruling of the ICJ in the case between Nicaragua and the United States. For many
reasons, this is one of the most significant cases to have been heard by the ICJ. But
as will be seen, it is at least as significant for what it failed to achieve as for what it
decided. And parenthetically it is not unimportant in assessing this case to observe
the difficulty of discovering the facts which gave rise to this case, both in British
international law textbooks and even in collections of cases and materials. While
there are myriad references to the law applied in that case, the factual reality of the
aggression of the United States against Nicaragua is made to appear quite peripheral.
There are few better examples of how ‘pure’ international law can be with the legal
being severed from the political context.
One important case that is currently before the ICJ is Application of the Convention on
the Prevention and Punishment of the Crime of Genocide (The Gambia v Myanmar)
www.icj-cij.org/en/case/178
In this case the Gambia has filed an application against Myanmar requesting the
Court to adjudge and declare that Myanmar has breached and continues to breach
the Genocide Convention with regard to the Rohingya population forced to flee to
Bangladesh and must therefore desist and provide reparations to those affected, and
also requested that the Court indicate provisional measures in order to prevent any
further harm to the victims.
In answer to the question as to why a state such as the Gambia would file this
application and whether it would have the required standing to do so, not being in any
way directly affected by the alleged crimes of Myanmar, the response is that both the
Gambia and Myanmar are parties to the Genocide Convention 1948 and so allegations
of the crime of genocide at least would clearly come within the Court’s jurisdiction.
Myanmar has Reservations to the Genocide Convention but these are probably
ineffective in the present case (see the argument in the Application).
Of course, it is probable that should judgment be given against Myanmar and Myanmar
refuse to comply, as enforcement of any decision is only finally possible through the
Security Council, it has to be recognised that the prospect of this, given the veto power
of China (and probably Russia), is extraordinarily unlikely.

u formulate criticisms of both the Court and its methods.
8.3 The contentious jurisdiction of the ICJ exemplified by

Nicaragua v USA
Core text
¢ Wallace and Martin-Ortega, Chapter 9 ‘Arbitration and judicial settlement’,
pp.223–37.
Essential reading
¢ Cases: Nicaragua v United States (Jurisdiction) [1984] ICJ Reports 392; Nicaragua v
United States (Merits) [1986] ICJ Reports 14; Case Concerning Armed Activities
on the Territory of the Congo (Democratic Republic of the Congo v Uganda) ICJ,
19 December 2005.
Nicaragua brought its action against the United States making some of the gravest
allegations known to international law. The history of the antagonism between these
two states had begun its latest chapter very shortly after the Nicaraguan Sandinistas
overthrew General Somoza, the dictator of Nicaragua from 1967 to 1979. Somoza, even
when judged by the low standards of military dictators, excelled in both human rights
abuse and avarice. The kindest thing US President Johnson had reportedly been able to
say of him was, ‘He may be a son of a bitch, but he’s our son of a bitch’.
Almost any overthrow would have been an improvement, but in fact the Sandinistas
arrived with policies of land reform, public health care and education. These were
policies calculated at once to appeal to the populace and to appal the government
of the United States of America, which not only feared for the security of foreign
investment in Nicaragua but was seemingly apprehensive about another ‘threat
of a good example’ to other Central and South American dictatorships and their
populations. It is not an exaggeration to assert that the policy of the USA towards
Nicaragua was directed at making the humanitarian goals pursued by the Sandinistas
impossible to attain. Not only did the USA train, arm and pay for the ‘Contras’ (in the
main, remnants from Somoza’s oppressive army who, when he was still in power, had
indulged in every form of torture and human rights abuse directed at the peasants
who were thought to support the Sandinistas) who were determined to make reform
impossible; it was also found by the ICJ to have mined Nicaraguan harbours, attacked
oil installations, ports and shipping and even permitted the distribution of a manual
on guerrilla warfare techniques which the Court found to be contrary to ‘general
principles of humanitarian law’.
The United States argued vehemently that the ICJ was not the appropriate forum
within which to consider its ‘differences’ with Nicaragua. Because the strife between
the countries was political, and in so far as this was alleged to threaten international
peace and security, this was, it was argued, a matter not for the ICJ but rather for the
Security Council of the United Nations which is charged under Article 24 of the UN
Charter with ‘…primary responsibility for the maintenance of peace and security…’.
This argument did have its merits. There was clearly a threat to international peace and
security and in other circumstances the Security Council would have been the obvious
main forum. In this situation, however, the argument was disingenuous because as
long as the matter was within the Security Council the United States would be able, if
necessary, to exercise its veto to prevent any action which might constrain its political
goals (for example, the destruction of the Sandinista government of Nicaragua).
When the US government decided to withdraw from further proceedings in the ICJ it
made a public statement explaining its position. This pronouncement declared that
the continuing proceedings constituted a ‘misuse of the Court for political purposes…
the Court lacks jurisdiction and competence over such a case’.
Why, then, did the ICJ feel able to consider the problem notwithstanding the Security
Council involvement? The ICJ is declared in the Charter of the United Nations to be
the principal judicial organ of the UN and according to the Statute of the ICJ was given
jurisdiction over all cases referred to it by state parties. Once the Court found that the
United States had, under Article 36(2) of the Court’s Statute, accepted the compulsory
jurisdiction of the Court (as, it was held, had Nicaragua) it was scarcely open to it to
suggest that the appropriate forum for dispute resolution lay elsewhere. Given that
the allegations were of grave breaches of international law the ICJ could not plausibly
have declined jurisdiction within the terms of its own Statute.
The position of the United States, had it not been so utterly untenable, would have
bordered on the ludicrous. Initially its position was to vehemently dispute the jurisdiction
of the ICJ, claiming that its qualified acceptance of Article 36(2) of the Court’s Statute
was not matched by Nicaragua’s qualified acceptance (a position rejected by the Court).
When this argument did not prevail the United States simply announced that it would
no longer recognise the compulsory jurisdiction of the Court, with immediate effect, and
so withdrew. Such an act was patently in breach of treaty obligations voluntarily entered
into. It was also a devastating and cynical act by the world’s most powerful nation and
betrayed the long held position of the United States which had favoured compulsory
jurisdiction. No one more clearly highlights just what the United States’ reaction to
the action begun by Nicaragua meant than D.P. Moynihan in his book On the law of
nations (Cambridge, MA: Harvard University Press, 1992) [ISBN 9780674635760]. This is an
impressive source because Moynihan, a sometime Senator from New York, had also been
both Professor of Government at Harvard, and US Ambassador to the United Nations.
Moynihan uses two quotations to show how the thinking of the United States had
changed. He quotes President Eisenhower in 1959 stating that ‘the time has come
for mankind to make the role of law in international affairs as normal as it is now in
domestic affairs…’ and supporting global acceptance of ICJ compulsory jurisdiction,
adding that it would be far ‘better to lose a point now and then in an international
tribunal and gain a world in which everyone lives at peace under the rule of law’. He then
adds a quotation from then Vice-President Richard Nixon where he observed that the
United States ‘should be prepared to show the world by our example that the rule of law,
even in the most trying circumstances, is the one system which all free men of good will
must support’.
One final quotation from Moynihan is relevant because of its poignant accuracy (and
continuing pertinence). He quotes Professor Louis Henkin of Columbia University
as summarising the inferable position of the United States government towards
international law at this time as follows:
The United States appears to have adopted the view that under international law a state
may use force in and against another country for the following reasons:
to overthrow the government of that country in order to protect lives there
to counter intervention there by another state and carry the attack to the territory of the
intervening state
to overthrow the government of that country on the ground that it is helping to

undermine another friendly government
in reprisal for that country’s suspected responsibility for terrorist activities in the hope of
deterring such acts in the future
to overthrow a communist (or pro-communist) government or to prevent a communist
(or pro-communist) government from assuming power, even if it was properly elected or
emerged as a result of internal forces.
To its credit, the ICJ ruled against the USA in 1986, notwithstanding the refusal of
that state to appear. The ICJ refused to decline jurisdiction as the USA had hoped.
Undoubtedly the judgment is highly significant for international law and international
lawyers. Typically a book of cases and materials in international law will have some
seven excerpts from the Merits judgment considering the sources of international law,
the relationship between custom and treaty, jus cogens, sovereignty over air space,
state responsibility and private persons, the use of force, and self-defence.
The benefits to the state of Nicaragua were rather less than those to international
lawyers and writers. While at least some of the latter observe in passing that the
United States rejected the decision of the Court and refused to accept its ruling, few
actively considered the aftermath. Yet this is surely crucially important both for the
Nicaraguan citizens and for other states contemplating adjudication of international
issues through the World Court. Supposedly one great merit of the ICJ and the rule
of law is that in legal proceedings states are equal before the law. In this case of
exceptionally high visibility the United States showed itself able to ignore the Court
with impunity, and even avoid Security Council condemnation for the clearest breach
of treaty obligation. Article 94 of the Charter of the United Nations is unequivocal:
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.
If any party to a case fails to perform the obligations incumbent upon it under a
judgement rendered by the Court, the other party may have recourse to the Security
Council, which may, if it deems necessary, make recommendations or decide upon
measures to be taken to give effect to the judgement.
Yet the aftermath seems to be seen by most international law writers as a matter for
political, rather than legal, commentators.
Although Noam Chomsky’s writing (beyond the field of linguistics) is sometimes more
emotive than ‘dispassionate’ academic audiences are used to, his comments about the
decision of the ICJ seem justified:
The World Court condemnation of the United States evoked further tantrums.
Washington’s threats finally compelled Nicaragua to withdraw the claims for reparation
awarded by the Court, after a US-Nicaragua agreement ‘aimed at enhancing economic,
commercial and technical development to the maximum extent possible’, Nicaragua’s
agent informed the Court. The withdrawal of just claims having been achieved by force,
Washington moved to abrogate the agreement, suspending the trickle of aid with
demands of increasing depravity and gall. In September 1993, the Senate voted 94–4 to
ban any aid if Nicaragua fails to return or give adequate compensation (as determined
by Washington) for properties of US citizens seized when Somoza fell – assets of US
participants in the crushing of the beasts of burden by the tyrant who had long been a US
favourite.
(From Chomsky, N. World orders, old and new. (London: Pluto Press, 1994)
[ISBN 9780745313207] p.136.)
Even before these developments, Nicaragua had clearly found itself with a Pyrrhic
victory (or worse). After the rejection by the USA of the decision in 1986, Nicaragua had
referred the matter to the Security Council pursuant to Article 94(2) of the Charter.
Here the United States vetoed a resolution calling on all states to observe international
law! In the General Assembly a call for compliance with the ICJ ruling was passed by
94–3 with only Israel and El Salvador supporting the USA and a year later passed a
resolution calling for ‘full and immediate compliance’ with the ICJ decision, with only
the USA and Israel voting against.
As will be well known, US policy towards Nicaragua finally bore fruit, with the
electorate ultimately persuaded that the realities of the world meant that an
acceptance of American hegemony was preferable to the level of suffering which

resistance brought. Predictably, health care has declined, infant mortality has risen,
and disparities in wealth continue to increase. The ICJ case is a continuing reminder
that legal victory is illusory unless there is both consent and co-operation from the
disappointed party, or the international community is willing and able to insist upon
compliance.
What conclusions may be drawn regarding the significance of this case in an

understanding of international law? The first repeats that while legal method allows
for the de-politicisation of a dispute, the price paid might be that the legal decision
will not be seen as a real resolution to the problem. Second, it has become clear
through the writings of textbooks that for lawyers the judgment of the Court is an
end in itself. The decision is significantly more important than the illusory nature of
the relief granted and the aggression directed towards Nicaragua. Third, it may be
seen that the ability of the law to resolve disputes in favour of the powerless is always
dependent upon the acquiescence of the powerful. This does have implications for the
rule of law in the international arena.
Interestingly, in Moynihan’s wonderfully indignant book, On the law of nations, his

indignation is not directed at the foreign policy of the USA but rather at its inability
to achieve – or to attempt to achieve – goals in a manner which is consistent (or at
least arguably consistent) with international law. It is not the attempt to remove
the Sandinistas from power with which he disagrees, but the patent illegality of the
methods used in that attempt. Like Richard Nixon he clearly believes that international
law is an important weapon in the armoury of a powerful nation, particularly where
the use of force is impractical or undesirable. That the USA had usefully used the ICJ in
seeking the return of the US diplomatic and consular staff being held hostage in Iran in
violation of several international treaties seems to add weight to his views.
In the Case Concerning US Diplomatic and Consular Staff in Iran (USA v Iran) [1979] ICJ
Reports 7, the USA had, within two weeks of applying to the ICJ, received a provisional
order establishing that the rights of the USA had been violated and that the
government of Iran should restore the embassy to the USA and release the hostages.
Although not immediately complied with, there is no doubt that the final decision
had put the USA itself in a position, pursuant to Article 94 of the Charter, to refer the
matter to the Security Council. Moynihan’s view that had the Security Council not then
taken action, the United States itself would have been entitled to, is certainly arguably
correct. (Here of course there was no fear of a veto.)
Conclusion
In some ways, using Nicaragua v USA to exemplify the use of the ICJ in contentious cases
might be argued to be misleading. This was, after all, one of the few cases where the
Court’s ruling had been rejected with impunity and without direct sanction. But the
advantages of its use outweigh the disadvantages. It highlights both the possibilities
and the limitations of the judicial method of international dispute resolution.
What pertinent generalisations may one then make about the ICJ? The first is that
because of the nature of sovereignty and the reality of power, the legal method of
adjudication is inherently unlikely to be effective unless the parties have agreed
to this form of settlement. As we have seen, they are only rarely likely to do so. The
acceptance of compulsory jurisdiction, accepted by fewer than 50 states, and then
very often with significant reservations, has not proved successful, and with states
which had accepted compulsory jurisdiction feeling able to withdraw acceptance
when decisions of which they disapproved were made (as in the case of the USA and
France), it is unlikely to increase. Theoretically at least, this should be bad news for
states with little power. For them the great advantage of legal adjudication should
have been that in translating international agreements into legal argument, the
reality of the physical disparities in power between the disputants should have been
irrelevant. This indeed was what happened in Nicaragua v USA, but although the power
was irrelevant in the adjudication, it was critical in the inability to give effect to the
decision. This fact, together with the very Western jurisprudence and methodology
of the Court, makes it unlikely that poor states will find the justice they think they
deserve in the United Nations judicial organ.
Activity 8.2
What is the significance of the decision of Nicaragua v USA for international law?
Summary
Adjudication in contentious cases before the ICJ is not always successful. To be so
the parties must not only accept the jurisdiction of the Court but be ready to accept
an adverse decision. These requirements are highlighted in Nicaragua v USA, where
not only did one party refuse to accept the jurisdiction of the Court but it also had
sufficient power to be able to resist the judgment. This suggests that particular
features are necessary for effective adjudication.
1. Explain the USA’s argument in Nicaragua v USA about whether or not the Court
enjoyed jurisdiction in this case. In particular, did the arguments have any
arguable merit?
2. Does the ICJ decision in Case Concerning Armed Activities on the Territory of the
Congo (Democratic Republic of the Congo v Uganda) reinforce or modify the
decision in Nicaragua v USA?

u appreciate the role of the ICJ in contentious cases, and give examples of how it is
limited by political realities.
8.4 The advisory jurisdiction of the ICJ
Core text
¢ Mansell and Openshaw, Chapter 7 ‘The peaceful settlement of disputes in
international law’, pp.248–50.
Essential reading
¢ Legality of the Threat or Use of Nuclear Weapons [1996] ICJ Reports 66.
¢ Palestinian Wall Advisory Opinion [2004] ICJ Reports 136.
¢ Legal consequences of the separation of the Chagos Archipelago from Mauritius in

1965. www.icj-cij.org/en/case/169 Read the opinion of 25 February 2019.
¢ Articles 65–68 of the Statute of the International Court of Justice.
In this chapter we look at the advisory jurisdiction of the ICJ, exemplified by the
Legality of the Threat or Use of Nuclear Weapons Case and the Legal Consequences of the
Construction of a Wall in the Occupied Palestinian Territory Case. More recently (June
2017), the General Assembly requested an advisory opinion concerning the status of
the Chagos Islands. The request was made by 94 votes to 15, with 65 abstentions. It
was opposed both by the UK and the USA. The opinion was given on 25 February 2019
and for a discussion of the issues raised, see, Stephen Allen www.ejiltalk.org/the-oral-
hearings-in-legal-consequences-of-the-separation-of-the-chagos-archipelago-from-
mauritius-in-1965/
8.4.1 Legality of the Threat or Use of Nuclear Weapons case

The second case to be used to illustrate points concerning the ICJ is concerned with
the legality of the threat or use of nuclear weapons in which judgment was given in
1996. This was an advisory opinion given pursuant to Article 65 of the Statute of the ICJ
which allows authorised bodies of the United Nations (primarily the Security Council
and the General Assembly, but also other organs of the UN if authorised by the General
Assembly) to request an opinion on any legal question. In this case both the World
Health Organization (WHO) and the General Assembly had separately asked questions
concerning the legality of the threat or use of nuclear weapons. The question posed by
the WHO was asked particularly at the behest of Pacific state members and was framed
as follows:
In view of the health and environmental effects, would the use of nuclear weapons by a
State in war or other armed conflict be a breach of its obligations under international law
including the WHO Constitution?
The majority of the 15 judges of the ICJ decided, for reasons that will be addressed
shortly, that the WHO did not have competence to seek such an advisory opinion.
The General Assembly question was asked in a resolution of 1994. It simply asked:
Is the threat or use of nuclear weapons in any circumstances permitted under

international law?
The majority of the Court was prepared to entertain this question. No doubt readers
of a legal training will already have begun to ask questions of the ‘So what?’ kind.
That is, they will be asking what the practical consequences of the Court’s decision
would be, whatever was decided. If the Court was to answer in the negative, was it
really conceivable that states possessing nuclear weapons such as Israel or Pakistan,
let alone the major nuclear powers, would surrender their nuclear weapons for
destruction, accepting that they could neither be used nor threatened to be used?
Accepting the improbable nature of this outcome, what if anything was to be gained
by a legal answer to a legal question which was so isolated from political reality?
The answer to this is to be found in the impressive submission of the Pacific states
brought together in a book entitled The case against the bomb (Clark, R.S. (ed.), Newark,
NJ: Rutgers University School of Law, 1996 [ISBN 9780965557801]). One reason for
formulating the WHO question was that some of the Pacific states are members of
the WHO but not the United Nations – a position dictated by financial considerations
and expenditure constraints. The small Pacific states feel themselves extremely
vulnerable to things nuclear. Not only has much of the testing of nuclear weapons by
the USA, France and the UK taken place in the Pacific, but also many of the smallest
states, because of their size and limited elevation above sea-level, are sensitive to
environmental change in a way that larger states are not.
Within the Court there were some judges, particularly Judge Oda from Japan, who
seemed to feel that the question posed was really an attempt to force the court to
become a vehicle by which a political point could be made. This view was arguable.
It is correct in that it recognised that a decision in favour of illegality could not, of
itself, alter the ‘defence’ policies of those states with nuclear capability; but it is wrong
to imagine that such a decision would either ‘open the floodgates’ to innumerable
questions or, more importantly, be inconsequential. Its effect would be to reinforce
with law the arguments of those who wanted the inherent immorality and inhumanity
of weapons of immense mass destruction to be recognised and acted upon.
This is yet again an example of the legal method of translation. All those involved in
the case knew that what was being argued in fact, though not in law, was whether the
possession and potential use of nuclear weapons could be justified – but not justified
in law, or not only law but also in reality. Here was a political question par excellence;
political in the sense of being imbued with policy. Debates on this policy have been
prolonged and bitter both between states with and without nuclear weapons and
within states with and without nuclear weapons. Movements for compulsory nuclear
disarmament have a history which begins almost with the first nuclear explosion. Their
success has, however, been limited by their inability to gain democratic mandate for
disarmament.
Given that every member of the Court was aware of this reality, it is not surprising
that some felt discomfited with the problem’s presentation as a legal one. Nor is
it surprising that the decision of the Court was neither unanimous nor consistent.
The refusal of the majority to accept the WHO question for opinion must be seen in
this light. Significantly too, in the advisory opinion that was given, views were very
different. Generalised to the greatest possible extent it may be put in the words of
Professor R.S. Clark (Counsel for Samoa in the case), when he says of the ICJ opinion:
While the opinion strongly reflects the argument made on behalf of the Pacific coalition,
what those States would have liked was a statement that the use or threat of use of
nuclear weapons is illegal per se (illegal in itself), any time any place.
Three of the 15 judges – Judges Weeramantry (Sri Lanka), Koroma (Sierra Leone), and
Shahabuddeen (Guyana) – said exactly that. Seven more – Judges Bedjaoui (Algeria,
the President of the Court), Ranjeva (Madagascar), Herczegh (Hungary), Ski (China),
Fleischhauer (Germany), Vereshchetin (Russia) and Ferrari Bravo (Italy) – said that
it would ‘generally’ be contrary to the laws of war to use or threaten to use nuclear
weapons. These judges were not sure, however, whether such a use ‘would be lawful
or unlawful in an extreme circumstance of self-defence, in which the very survival of a
State would be at stake’. Four judges – Judges Schwebel (United States), Oda (Japan),
Guillaume (France) and Higgins (United Kingdom) – disagreed with both of these
positions. While they conceded that a threat or use of nuclear weapons could be made
only when it was compatible with the requirements of international law applicable to
armed conflict, they believed that each individual case would have to be considered
against the relevant standards and that no general rule is possible.
It is difficult not to infer, except in the cases of the judges from Sri Lanka, Sierra Leone
and Guyana, that the judges were not entirely happy with what they had been called
upon to answer. The result was a cynical reception by at least some observers. The
title of Professor Vaughan Lowe’s note in one legal journal (ICLQ) sums up much of
the response: ‘Shock decision: nuclear weapons may or may not be illegal’. The Court
must also have been unhappy with the way in which it divided, as, although there is
no complete correlation, the division does not seem to reflect the independence of
the 15 judges. Rather, but not exactly, the differences reflect the different attitudes
of states with no nuclear capability and no prospect of it, or even the ‘protection’ of
a nuclear power’s umbrella, at one extreme; and states with nuclear capability or
concerned with the protection it supposedly offers at the other. It may not be entirely
coincidental that two of the judges (Judge Weeramantry and Judge Shahabuddeen)
most adamantly in favour of the law clearly declaring the illegality of the threat or use
of nuclear weapons were exceptionally not re-elected to the Court.
8.4.2 Advisory opinion on the Legal Consequences of the Construction of

a Wall in the Occupied Palestinian Territory
To further exemplify the process of advisory opinions we will briefly consider another
case in which the General Assembly called upon the ICJ, in a resolution of 8 December
2003, ‘to urgently render an advisory opinion on the legal consequences arising
from the construction of the wall being built by Israel, in the occupied Palestinian
territories, including in and around East Jerusalem, considering the rules and
principles of international law’. The resolution arose from the decision by the Israeli
government to construct what they claimed was a defensive wall which would enable
them to protect themselves from violence coming into Israel from the occupied
West Bank. The intended wall did not however follow the ‘Green Line’ which was the
Israeli boundary before the conquests of 1967. Rather it cut, sometimes deeply, into
the occupied land and also cut off some Palestinians from access to their land. As
was made clear in Chapter 7, the acquisition of title to territory by force or conquest
is clearly not allowed in international law. (Since the United Nations Charter this has
been unarguable.)
Not surprisingly the Court was robust in its opinion. Only the American Judge
Buergenthal voted against all of the conclusions of the otherwise generally unanimous
Court. However, he did so not because he considered the wall lawful but because he
was of the opinion that the Court should have declined jurisdiction unless it could take
into account all of the evidence relating to what he referred to as ‘Israel’s legitimate
right of self-defence’. In the view of most commentators such a consideration would
have been relevant only if the wall being constructed followed the Green Line
scrupulously. Further, consideration would in any case have been impossible as Israel
elected not to appear before the Court to provide evidence to support its contentions.
(As this was an advisory opinion Israel was within its rights to choose this course of
action.) In fact, of those states making submissions to the Court, 22 did argue that the
political nature of the case suggested that the ICJ was an inappropriate forum. The
Court was not persuaded.
The Court’s decision was that the construction of the wall being built by Israel, the
occupying power in the Occupied Palestinian Territory, was contrary to international
law; that Israel was under an obligation to terminate its breaches of international law
and to cease construction immediately; that Israel had an obligation to make reparation
for all damage caused; that all States are under an obligation not to recognise the illegal
situation and have an obligation, while respecting the UN Charter, to ensure compliance
by Israel with international humanitarian law as embodied in the Fourth Geneva
Convention; and that the UN should consider what further action is required to bring the
illegal situation arising from the construction of the wall to an end.
The reasoning of the Court was in three parts. The first considered whether the request
for opinion should be accepted, the second considered the legality of the construction
of the wall, and the third considered the legal consequences of the breaches found. On
the first point the Court found it proper to give an opinion as it had been legitimately
requested by the General Assembly after the USA had vetoed a Security Council
resolution concerning the construction of the wall. Further it said that here it was
not exercising its advisory jurisdiction in a way which effectively adjudicated upon a
dispute between Israel and Palestine. The question was wider and of importance to
the United Nations as a whole. The Court also rejected the contention of some states
that its opinion could impede a political, negotiated settlement to the conflict and
found no compelling reason precluding it from giving the requested opinion.
The Court had little difficulty in concluding that the construction of the wall
was contrary to international law. Indeed it seemed to contravene every rule of
international law that the Court considered. Further, it held that Israel could not
rely on either a right of self-defence or a state of necessity in order to preclude the
wrongfulness of the construction of the wall.
The question of legal consequences was more interesting. The Court observed that its
opinion now allowed the General Assembly and the United Nations generally to use
it as it wished – that is, it could be used as authority for General Assembly conclusions
consistent with it. As we saw above, however, it did suggest that the consequences
placed an obligation on Israel to cease the building of the wall and to make reparation.
The obligation for other states was to not recognise the illegal situation and not to
provide any aid or assistance in maintaining the illegal situation. In addition they
should seek compliance with the Fourth Geneva Convention. The UN, it was said,
should give further consideration to action intended to bring to an end the illegal
situation resulting from the construction of the wall. Israel immediately denounced
the opinion and indicated that it intended to ignore it.
There has seldom been such an adamant and explicit advisory opinion. It was of
course a moral victory for those opposed to Israeli action, but was it more? Shortly
after the judgment the General Assembly voted overwhelmingly to demand that Israel
accept the opinion and cease work on the wall and do as the Court had suggested
international law required. The resolution was passed by 150 states in favour, 10
abstentions and six against. Those against were Australia, the Federated States of
Micronesia, Israel, the Marshall Islands, Tuvalu and the United States. On 10 July 2005,
the Israeli cabinet approved the construction of the wall in Jerusalem and stated that
the entire wall was to be completed as intended with only minor modification as
required by the Israeli Court.
Politically it would be unrealistic to have expected an ICJ advisory opinion to have
resolved the dispute between the Palestinians and Israel. Nevertheless the strength of
feeling both from the Court and from the General Assembly might have been expected
to give Israel pause for thought. So far there is no indication that it has done so. An
authoritative statement of international law has been ignored by those who were able
to ignore it.
And while advisory opinions may on occasion provide a political forum for political
points to be made and they may reinforce moral positions, in time their efficacy is
crucially limited in the face of resistance from rich and powerful states.
8.4.3 Advisory opinion on the Legal Consequences of the Separation of

the Chagos Archipelago from Mauritius
In February 2019, in a response to a request from the UN General Assembly, the ICJ
handed down its advisory opinion concerning the status of the Chagos Archipelago in
the Indian Ocean. These Islands had been purchased by the UK from the self-governing
colony of Mauritius before that colony’s independence in 1965. The UK then leased the
largest of the islands (Diego Garcia) to the USA for military purposes, a lease that has
lasted 53 years and is unlikely to be terminated. Additionally, the original inhabitants
of the islands were forcibly deported by the UK in the 1960s and 1970s and have ever
since been arguing for a right to return. The advisory opinion (www.icj-cij.org/en/
case/169) confirmed that the UK’s continued presence on the islands is unlawful and
that the Archipelago should be returned to Mauritius.
An adequate summary is available at www.icj-cij.org/public/files/case-related/169/169-

20190225-SUM-01-00-EN.pdf The opinion was subsequently endorsed by the General
Assembly, but the UK has shown no willingness to give effect to the ruling (which, of
course, it is not technically required to do) and non-cooperation will not enhance the
UK’s reputation as an upholder of international law.
Activity 8.3
What arguments may be made for the use of the advisory jurisdiction of the ICJ?
What are the consequences, theoretical and real, that flow from such a decision?
Summary
The advisory jurisdiction of the ICJ has often given rise to cases in which political
considerations made the isolation of legal issues difficult. Nevertheless the Court has
determined that a mixed question of law and fact does amount to a legal question.
And as has been observed, the Court is not concerned with ‘the motives for a request,
even if these are political’. This does however affect the effect of the decision.
Is there any point in giving decisions without direct consequence?

u explain the role and scope of the ICJ’s advisory jurisdiction.
8.5 International arbitration
Core text
¢ Mansell and Openshaw, Chapter 7 ‘The peaceful settlement of disputes in
international law’, pp.250–51.
¢ Wallace and Martin-Ortega, Chapter 9 ‘Arbitration and judicial settlement’,

pp.212–16.
International arbitration has been defined by the International Law Commission as ‘a
procedure for the settlement of disputes between States by a binding award on the
basis of law and as a result of an undertaking voluntarily accepted’. You will notice
that this definition of arbitration in international law is significantly narrower than the
common meaning of arbitration. The crucial difference between judicial settlement
and arbitration lies in the role played by the parties to the dispute and the degree
of control they can exercise over the process. Arbitration allows the parties to select
the tribunal, whereas parties have no control over the composition of a judicial body.
In addition, in arbitration the parties may decide the law to be applied while the
applicable law in the International Court is always the principles of international law.
The modern history of arbitration began with procedures established in 1794 under
the Jay Treaty between the United States and United Kingdom for the settlement of
bilateral disputes. This provided for the creation of mixed Commissions, to which
each state nominated an equal number of members with an umpire. In 1871 in
an innovatory move, arbitration took place concerned to determine breaches of
neutrality by Britain during the American Civil War. What was novel was that not only
were there British and American nominees but there were also three independent
nominees from other states (Brazil, Switzerland and Italy). Following the 1899
Convention on the Pacific Settlement of International Disputes an institution known
as the Permanent Court of Arbitration was created (actually, as international lawyers
like to observe, neither permanent, nor a court) whose organisation and composition
was modified in 1907. The Permanent Court of Arbitration is still in existence. Relying
as does the ICJ upon the consent of the states that use it, it actually has some features
often preferred to the International Court of Justice.
Each of the contracting parties is entitled to nominate up to four persons to be

members of the PCA panel (there are more than 300 nominated from some 90 states).
Any of these may be selected by the parties for any particular dispute. Once the parties
to a dispute have agreed to arbitration they must agree a compromis (compromise).
In essence this is an instrument that contains the agreement to arbitrate and will
specify agreements as to the form the arbitration is to take. Thus it will name the
selected arbitrators, define the questions the tribunal is to address, define the law and
procedure that is to be applied, and state the period within which the award is to be
made. Model rules exist as a basis for the drafting of the compromis.
Arbitration awards are usually binding and final except in the event of some
substantial procedural error, or manifest error of fact. Should an appeal be possible
and successful, the result will be to render the award of the tribunal null and void.
Although the use of arbitration is not extensive (there seem to be a much larger
number of members of the Permanent Court of Arbitration available to arbitrate than
the number of disputes submitted for arbitration) it is clear that it does have a place.
Arbitration is possible in some disputes between a state and an individual. Thus the
Convention on the Settlement of Investment Disputes between States and Nationals of
Other States, 1965 makes conciliation and arbitration possible (with consent) between
contracting parties and companies of the nationality of another contracting party. And
perhaps the best known arbitral settlement of private claims of nationals has been the
Iran–United States Claims Tribunal.
A perusal of the current and recent claims at the Permanent Court seems to imply that
in disputes between states, those most likely to be arbitrated are disputes between
states generally otherwise enjoying close relations. There is also a close relationship
between the ICJ and the PCA which is more than physical (both having homes in
The Hague) and almost half the judges of the ICJ are also among the more than 300
members of the PCA available as arbitrators.
Summary
International arbitration under the Permanent Court of Arbitration is ‘quasi-judicial’
but provides parties who have consented to arbitration with significant control over
the selection of arbitrators and over the procedure and law to be applied. While there
are nevertheless fewer cases than might be anticipated, this is again because of the
shortcomings of a process where parties must undertake to accept a result which is
uncertain.
Define and explain the means contemplated for the peaceful settlement of
international disputes in Chapter VI of the Charter of the United Nations.

u appreciate the possibilities and limitations of arbitration in international dispute
resolution
u understand the advantages and disadvantages of arbitration as opposed to
judicial settlement.

Question 1 ‘The role of the International Court of Justice has been much more
restricted both in the number of cases decided and in the effect of the Court’s
decisions than had been anticipated. This is regrettable but possibly inevitable.’
Discuss.
Question 2 Assess the significance of the advisory jurisdiction of the International
Court of Justice.

Question 1 From the end of the 19th century increasing attention was paid in
international relations to the possibility of having disputes between states resolved
through the application of international legal principles. The use of arbitration had
become relatively commonplace and judicial resolution probably seemed the next
logical step. In retrospect it can be seen that judicial method is not always appropriate
to inter-state disputes. There are cases where the decisions of the ICJ and before that
the PCIJ have been effective in resolving disputes, but these probably contained one
or more of a number of special factors. Judicial method is appropriate if the parties
enjoy good relations that will not be disrupted by an adverse decision. The North Sea
Continental Shelf Cases are a good example of this. It may also be appropriate where the
parties are willing to accept the possibility of an adverse decision in order to resolve
an intransigent problem. Various border and boundary disputes could be quoted here.
On the other hand, Nicaragua v USA shows all too clearly the pitfalls of judicial decision.
This case could be profitably analysed in some detail and the causes of its limited
authority discussed.
Question 2 The advisory jurisdiction of the International Court of Justice is to be

found in Articles 65–68 of the Court’s Statute. It is provided that the Court may give
an advisory opinion on any legal question at the request of any body authorised by
or in accordance with the Charter of the United Nations. This refers to Article 96 of
the Charter. Advisory opinions are not binding but have nevertheless played a part in
the development of international law. In particular the Reparations Case, the Certain
Expenses Case and the Western Sahara Case have all contributed to international
jurisprudence. (An indication of the significant points of these cases is relevant.)
Nevertheless there are cases which exemplify the limitations of the process. It could
be argued that problems typically arise where the question asked is held to be
impossible to answer in the abstract (Legality of the Threat or Use of Nuclear Weapons)
or where the case is in fact intended to avoid the requirement of state consent to
adjudication – probably the Eastern Carelia Case and arguably the Western Sahara
Case and possibly the Legal Consequences of the Construction of a Wall in the Occupied
Palestinian Territory. The Court was however aware of this possible criticism in the last
case but rejected it forcefully. That case may be said to have greatly strengthened the
moral arguments of the Palestinians and, but for the power of Israel’s allies, might
have had even more significance.
Notes
9 Use of force in international law
Contents
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 140
9.1 The use of force in international law before the creation of the United
Nations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 141
9.2 The Charter of the United Nations . . . . . . . . . . . . . . . . . . . 144
9.3 Chapter VII of the UN Charter . . . . . . . . . . . . . . . . . . . . . . 147
9.4 Self-defence in international law . . . . . . . . . . . . . . . . . . . . 149
9.5 Self-defence and terrorism in international law . . . . . . . . . . . . . 155
9.6 From humanitarian intervention to responsibility to protect . . . . . . 157
9.7 Rules constraining the sort of force permissible . . . . . . . . . . . . 163

Introduction
In default of the resolution of disputes by peaceful means discussed in the previous
chapter, states may well resort to force. In international law no topic is more
important than the control of this use of force by states. Whereas in the context of
domestic law governments have a monopoly over the legitimate use of force, in
international law sovereign equality and the lack of a supra-national government
provides no such legitimacy. Further, in so far as international law has sought to govern
the use of force by states it has no power in the form of military forces to assert its
authority. International law requires the consent and co-operation of states in its
attempts to curb and constrain violence with an international dimension.
This chapter will begin with a brief analysis of the (restricted) role of international
law before the creation of the United Nations. This history illustrates the problems in
both defining ‘force’ and its use, and also in creating rules for many different sorts of
situation where the question of the use of force requires consideration. While there
are two separate matters for regulation – first, the use of force as in recourse to war,
usually described as jus ad bellum (the justification for going to war) and, second, the
regulation of the sort of force permitted, usually covered by the term jus in bello (the
law of war that includes rules concerning the conduct of war and the protection of war
victims) – there are also many distinct situations requiring different rules.
Thus, in considering the constraints on the use of force we must first identify the
category to which the force is related. Does the matter concern intervention in a civil
war? Does it concern the provision of help, military or otherwise, in such a situation?
Does it concern an act of aggression or an act of self-defence? Is it concerned with
the legitimacy of forcible intervention to save nationals or to prevent crimes against
humanity or even genocide? Is it concerned with the question of when a state may
legitimately come to the assistance of one side in an existing war? Is it claimed to be
a legitimate response to an act or acts of terrorism, or could it be legitimate action in
an attempt to pre-empt such conduct? Is it a reprisal for acts committed by another
state?
On each and all of these matters international law has been developing rules but
obviously some are clearer than others and some remain contentious. When NATO
intervened in Kosovo in 1999 for ‘humanitarian reasons’, the legality of the operation
remained debatable. Similarly the actions of the United States and United Kingdom
after establishing ‘no-fly zones’ through Security Council Resolution 688 in 1991, in
carrying out air strikes against Iraq in 1998 and 2001 are controversial. Even more
obviously controversial in international law has been the invasion and occupation of
both Afghanistan and later Iraq by the United States and its few allies, the bombing
and ‘regime change’ in Libya, and currently the intervention in Syria and/or Iraq by
Russia, by Turkey and by the USA and its allies.
Public international law 9 Use of force in international law page 141
Learning outcomes
u describe the development of international law concerned with the use of force
before the UN Charter
u distinguish between jus ad bellum and jus in bello
u explain the significance of the UN Charter in restricting the use of force in
international law
u recognise the exceptions to the proscription of the use of force in the
UN Charter
u explain the effect of General Assembly resolutions purporting to interpret
the Charter
u explain the literal meaning of Article 51 and its constraints upon the inherent
right of self-defence
u explain why reprisals, apparently clearly unlawful, are often carried out without
condemnation
u outline the debate concerning the scope of Article 51 in response to
terrorist acts
u appreciate why powerful states favour an expansive interpretation of
Article 51
u explain the debate about the law relating to humanitarian intervention
u understand the doctrine concerning the ‘responsibility to protect’
u discuss the significance of the debate concerning the right of humanitarian
intervention without Security Council authorisation
u explain the basis and effect of rules constraining the sort of force permissible
(when it is permissible).
9.1 The use of force in international law before the creation of

the United Nations
Core text
¢ Mansell and Openshaw, Section 8.2 ‘The use of force in international law before
the creation of the UN’.
¢ Wallace and Martin-Ortega, Chapter 10 ‘The use of force’, pp.241 and 242.
9.1.1 Before the First World War

In a book published by the United States Council on Foreign Relations entitled Right v
Might the Foreword begins:
Man’s readiness to settle differences by force of arms has been a feature of society since
prehistory. Man’s attempt to place rational bounds on the use of force, emerging from his
revulsion against the scourge of war, is almost as old. This struggle to impose ‘rationality
on reality’ was a central feature of the Enlightenment and the ‘Age of Reason’ in the
eighteenth century.† †
Henkin, L. Right v might.
(Washington, DC: Council on
While this is undoubtedly true, the fact is that a right to wage war remained
Foreign Relations, 1989)
unconstrained until after the First World War. One might have thought that the Peace
[ISBN 9780876090671].
of Westphalia, bringing as it did the concept of sovereign equality, might have at
least implicitly affected this position. How, after all, could sovereignty be equal if the
powerful states were entitled to wage war on the powerless? Such inconsistency was
at the very heart of the Westphalian system however and the idea that international
law could constrain the prerogative of sovereign states to wage war would have been
unimaginable.
Endemic European wars were an enduring feature of the 17th, 18th and 19th centuries,
waged both within and without Europe. Conquest was the means by which territory
was acquired and colonies won. But the ferocity of battle came to be greatly enhanced
by the development of ever more fearful weaponry and the beginnings of the
‘weapons of mass destruction’. The ability to kill and maim enemies and civilians alike
progressed in a remarkable way. The revulsion at the result of this ‘progress’ led to
the founding of the International Red Cross in 1863. Nevertheless, while many armies
remained essentially mercenary (and where not, the overwhelming percentage of
casualties remained impoverished recruits) there was little impetus to develop rules
as to when war might be waged.
A further separate development was important. As Oppenheim observes, whereas

in the Middle Ages ‘war was a contention between the whole populations of the
belligerent States…[and] in time of war every subject of one belligerent, whether
an armed and fighting individual or not, whether man or woman, adult or infant,
could be killed or enslaved by the other belligerent at will’ ((in Lauterpacht, H. (ed.)
International law: a treatise by L. Oppenheim. (London: Longmans, 1967) eighth edition),
Vol. 2, p.204), by the 20th century war had become almost invariably ‘a contention of
States through their armed forces’. This led to an increase in awareness that private
subjects of belligerent states, not involved in the ‘contention’, could reasonably
expect some protection.
International law responded with states developing customary international laws

not as to when war might or might not be waged but concerning how it might be
waged and, to a lesser extent, against whom it might be waged. These were ultimately
codified in treaties beginning only in the second half of the 19th century. The first
of these was the 1856 Paris Declaration on maritime war, and it was followed by the
1864 Geneva Convention on wounded and sick and the St Petersburg Declaration
of 1868 concerned with explosive projectiles. In 1874, at the instigation of Russia,
an international conference was held in Brussels which adopted an International
Declaration Concerning the Laws and Customs of War. While a lack of ratifications
meant that it never entered into force, it was important as a precursor to the crucial
Hague ‘First International Peace Conference’ of 1899, and the ‘Second International
Peace Conference’ of 1907. These Conferences, again held at the invitation of the
Russian Government, adopted numerous international instruments codifying (and
sometimes adding to) international law. The 1907 Conference alone adopted 13
conventions and a declaration. Because these Conventions primarily codified the
existing customary international law relating to warfare they were, when this was the
case, binding on all states. Prominence was also given here to the so-called ‘Martens
Clause’ which appeared in the Preamble in 1899. While the origin of this clause is
disputed, what it did was to assert that where law was not yet sufficiently complete,
the parties nevertheless wished to declare that in cases outside those covered by
the declarations and regulations, populations and belligerents remained under the
protection of international laws ‘as they result from usages established among civilized
peoples, from the laws of humanity, and the dictates of the public conscience’. This
clause was later to be reformulated in the 1949 Geneva Conventions, where it is stated
that ‘in cases not covered by [the Geneva Conventions and Protocols] or by other
international agreements, civilians and combatants remain under the protection and
authority of the principles of international law derived from established custom, from
the principles of humanity and from dictates of public conscience’.
9.1.2 Efforts of the League of Nations

Thus before the First World War serious attempts had been made to control the form
of warfare, but attempts to control recourse to war received serious consideration only
after the War. Initially this was through the creation of the League of Nations and then
with the negotiation and adoption of the General Treaty for the Renunciation of War,
1928, also known as the Kellogg–Briand Pact, and also as the Pact of Paris. The Covenant
of the League of Nations of 1919 did not purport to abolish war but it did attempt to
provide a permanent forum where states could negotiate and discuss differences
rather than resorting to war; and it placed limitations upon the use of force. Member
states agreed that where they had serious disputes with one or more other states
they would submit the dispute to arbitration or judicial settlement or inquiry by the
Council of the League. There was to be no resort to war until three months after the
completion of such a process. Thus the League’s aim was to provide time for reflection
before recourse to war – a cooling off period for the disagreeing states. Members also
undertook not to go to war with another member who complied with either an arbitral
award, a judicial decision or a unanimous report from the Council. Finally they agreed
to ‘respect and preserve as against external aggression, the territorial integrity and
political independence of all Members of the League’.
One further innovation of the Covenant is to be found in Article 16 which is not unrelated
to the development of the later Chapter VII of the United Nations Charter. Article 16
provides for collective security for League members and the first paragraph states:
Should any member of the League resort to war in disregard of its covenants under Articles
12, 13 or 15, it shall ipso facto be deemed to have committed an act of war against all other
Members of the League, which hereby undertake immediately to subject it to the severance
of all trade or financial relations, the prohibition of all intercourse between their nationals
and the nationals of the covenant-breaking State, and the prevention of all financial,
commercial or personal intercourse between the nationals of the covenant-breaking State
and the nationals of any other State, whether a Member of the League or not.
Of course the League’s attempts even to limit recourse to war were scarcely successful.
Unfortunately members of the League proved unwilling to sanction a state acting in
defiance of the Covenant. Other paragraphs of Article 16 had empowered the League
to take such decisions and also to use military sanctions. The provisions were never
effective and even economic sanctions were irregularly applied, with the Assembly of
the League voting in 1921 to make such economic sanctions optional for each member
rather than compulsory.
9.1.3 General Treaty for the Renunciation of War, 1928 (the Kellogg–
Briand Pact)
Whereas the Covenant of the League of Nations had sought to limit recourse to
war, the Kellogg–Briand Pact sought to reject it. Originally created at the behest
of the French Foreign Minister, Aristide Briand, who wanted it as a bilateral treaty
with the United States, this optimistic document became multilateral and after an
original 15 states signed when it was concluded, 63 were parties by 1939, including
Germany, Japan and Italy. This in itself hints at its effectiveness. It was inspired by
a liberal internationalist view that war could be prevented and abolished with a
combination of enlightened diplomacy and collective solidarity. War was renounced
as an instrument of national policy. It was accepted by the US Senate by 85–1 (though
admittedly with the qualifications that it neither affected the US right of self-defence,
nor yet committed the USA to action to enforce the Treaty). The Treaty has but two
brief substantive articles. Article 1 states:
The High Contracting Parties solemnly declare in the names of their respective peoples
that they condemn recourse to war for the solution of international controversies, and
renounce it, as an instrument of national policy in their relations with one another.
Article 2 provides:
The High Contracting Parties agree that the settlement or solution of all disputes or
conflicts of whatever nature or of whatever origin they may be, which may arise among
them, shall never be sought except by pacific means.
Although the Pact has been superseded by the UN Charter, it does remain in force. The
reason for its substantial failure is significant. It remained a Pact without enforcement
provisions and it was violated frequently. Its importance, however, was twofold.
First, this was the first treaty to suggest that recourse to war could be a breach of
international law. Second, it was used as an important legal base for the prosecution
in Nuremberg of those held responsible for starting the Second World War. In the
Nuremberg judgment, in considering the Pact it was stated as follows:
The question is, what was the legal effect of this pact? The nations who signed the pact or
adhered to it unconditionally condemned recourse to war for the future as an instrument
of policy, and expressly renounced it. After the signing of the pact, any nation resorting to
war as an instrument of national policy breaks the pact. In the opinion of the Tribunal, the
solemn renunciation of war as an instrument of national policy necessarily involves the
proposition that such a war is illegal in international law; and those who plan and wage such
a war, with its inevitable and terrible consequences, are committing a crime in so doing.
War for the solution of international controversies undertaken as an instrument of national
policy certainly includes a war of aggression and such a war is therefore outlawed by the
pact. As Mr Henry L. Stimson, then Secretary of State of the United States said in 1932:
‘War between nations was renounced by the signatories of the Kellogg–Briand Treaty.
This means that it has become throughout practically the entire world…an illegal thing.
Hereafter, when engaged in armed conflict, either one or both of them must be termed
violators of this general treaty law…We denounce them as law-breakers.’
Activity 9.1
Consider the significance of the Hague Peace Conferences and their outcome.
Explain the reasons for the ineffectiveness of the League of Nations in the
preservation of peace.

u describe the development of international law concerned with the use of force
before the UN Charter
u distinguish between jus ad bellum and jus in bello.
9.2 The Charter of the United Nations
Core text
¢ Mansell and Openshaw, Chapter 5 ‘The United Nations, the UN Charter and
international law’, particularly Section 5.5 ‘The UN Charter: a constitution for the
world?’, and Sections 8.3 ‘The Charter of the UN’ and 8.4 ‘Chapter VII of the
UN Charter’.
¢ Wallace and Martin-Ortega, Chapter 10 ‘The use of force’, pp.243–49.
The conclusion of the Second World War gave rise to a renewed determination to use
international law to prevent war, and, where it had begun, to terminate it. The opening
of the Preamble to the UN Charter states the determination ‘to save succeeding
generations from the scourge of war’, and the first purpose in Article 1(1) is:
To maintain international peace and security, and to that end: to take effective collective
measures for the prevention and removal of threats to the peace, and for the suppression
of acts of aggression or other breaches of the peace, and to bring about by peaceful
means, and in conformity with the principles of justice and international law, adjustment
or settlement of international disputes or situations which might lead to a breach of the
peace;
while Article 2(3) commits UN member states to settle their international disputes by
peaceful means in order to ensure that international peace and security, and justice,
are not endangered. Article 2(4) commits members to refrain in their international
relations from the threat or use of force ‘against the territorial integrity or political
independence of any State, or in any other manner inconsistent with the Purposes
of the United Nations’. All of these provisions need to be read together with General
Assembly Resolutions and Declarations that have sought to interpret them.
A first point to be noted is that it was held in Nicaragua v USA (Merits) by the ICJ that
Article 2(4) states the customary rule of international law and is therefore now
applicable to all states. Its effect is to prohibit all measures of force other than those
permitted by the Charter. These exceptions are:
u self defence (Article 51)
u collective self-defence (also under Article 51)
u measures taken pursuant to Chapter VII of the Charter as authorised by the Security
Council.
The 1970 General Assembly Resolution 2625 – Declaration of Principles of International

Law Concerning Friendly Relations and Co-operation Among States in Accordance
with the Charter of the United Nations – is important in the interpretation of Article
2(4). While it is of course only a Resolution it is nevertheless regarded as expressing
the consensus of member states regarding the way in which Article 2(4) is to be
interpreted. This Resolution identifies the following duties:
Every State has the duty to refrain in its 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. Such a threat or use of force
constitutes a violation of international law and the Charter of the United Nations and shall
never be employed as a means of settling international issues.
A war of aggression constitutes a crime against the peace, for which there is responsibility
under international law.
In accordance with the purposes and principles of the United Nations, States have the
duty to refrain from propaganda for wars of aggression.
Every State has the duty to refrain from the threat or use of force to violate the existing
international boundaries of another State or as a means of solving international disputes,
including territorial disputes and problems concerning frontiers of States.
Every State likewise has the duty to refrain from the threat or use of force to violate
international lines of demarcation, such as armistice lines, established by or pursuant to
an international agreement to which it is a party or which it is otherwise bound to respect.
Nothing in the foregoing shall be construed as prejudicing the positions of the parties
concerned with regard to the status and effects of such lines under their special regimes
or as affecting their temporary character.
States have a duty to refrain from acts of reprisal involving the use of force.
Every State has the duty to refrain from any forcible action which deprives peoples
referred to in the elaboration of the principle of equal rights and self-determination of
their right to self-determination and freedom and independence.
Every State has the duty to refrain from organising or encouraging the organization of
irregular forces or armed bands, including mercenaries, for incursion into the territory of
another State.
Every State has the duty to refrain from organizing, instigating, assisting or participating
in acts of civil strife or terrorist acts in another State or acquiescing in organised activities
within its territory directed towards the commission of such acts, when the acts referred
to in the present paragraph involve a threat or use of force.
Obviously Article 2(4) goes beyond proscribing war, referring as it does to the
‘threat or use of force’. ‘Force’ however is undefined and opinions differ as to the
interpretation it should be given. Clearly both political force and economic force could
be interpreted as coming within Article 2(4). Not surprisingly, those states with the
capability of exercising economic or political force (or coercion, to use one possible
interpretation of ‘force’) have resisted such an interpretation, while those lacking such
capability (primarily smaller and developing states) did not want ‘force’ confined to
‘armed force’. General Assembly Resolution 2625 does, in its interpretation of Article
2(7) (the duty not to interfere in matters within the domestic jurisdiction of any state)
proscribe ‘economic, political or any other type of measures to coerce another State
in order to obtain from it the subordination of the exercise of its sovereign rights [or]
to secure from it advantages of any kind’. But it has been held in the case of Nicaragua
v USA (Merits) that economic sanctions by the USA against Nicaragua did not constitute
a breach of the customary law principle of non-intervention. The generally held view
(and one consistent with the interests of the powerful) is that Article 2(4) cannot
encompass situations beyond armed force.
Another General Assembly Resolution relevant to the interpretation of Article 2(4) is

GA Resolution 3314 of 1974 – Resolution on the Definition of Aggression. This defines
aggression as follows: ‘Aggression is the use of armed force by a state against the
sovereignty, territorial integrity or political independence of another state, or in any
manner inconsistent with the Charter of the United Nations.’ It goes on to state that
first use of armed force against Article 2(4) is deemed to be prima facie evidence of an
act of aggression. Acts identified as aggression include an invasion or armed attack;
any annexation of territory; bombardment by the armed forces of a state against the
territory of another state; an attack by the armed forces of a state on the land, sea or
air force, marine and air fleets of another state; and the sending, by or on behalf of a
state, of armed bands, groups, irregulars or mercenaries who carry out acts of armed
force against another state ‘of such gravity as to amount to acts defined as aggression’.
The Declaration also significantly states that ‘no consideration of whatever nature,
whether political, economic, military or otherwise, may serve as a justification for
aggression’. The proposed defined acts of aggression were explicitly claimed not to be
exhaustive and the task of determining the existence of any act of aggression remains
with the Security Council under Article 39 of Chapter VII of the UN Charter.
This, then, is the framework provided by the United Nations for the elimination of the use
of force in international relations. The fact that provision was made for exceptions makes
clear that this was not simply a utopian document. The Charter’s drafters recognised that
situations contravening these provisions would arise and that it was necessary also to
provide for lawful and legitimate responses where breaches did occur. If the chapter has
been rather arid so far it is necessarily so because of the need to appreciate the dramatic
aims of the Charter in proscribing war and yet the very real difficulties of achieving these
goals. But I hope that as you have done the reading concerning international law and the
use of force, you will have been trying to apply what is said to any or all of the cases of
international strife we see about us, and to consider its relevance.
Activity 9.2
Should the Charter of the United Nations be seen as providing a dramatic change
in the international law concerning the use of force, or merely as a logical
development from what had gone before?
Summary
Perhaps the most important theme of the United Nations Charter lies in the
preservation of peace and the proscription of war. The Charter reflects the reaction
to a second World War in less than 40 years and a determination that international
law had a role to play in avoiding a third. The position reached is related to the
General Treaty for the Renunciation of War, 1928 but such is the membership of the
UN accepting its Charter provisions that there can be no doubt that it represents
customary law too. As interpreted in General Assembly Resolutions there can be no
justification for instigating war. The exceptions to the proscription are limited and
temporary.
1. To what extent do you consider that Article 2(4) is open to interpretation?
2. Why is it of importance that Article 2(4) be seen as customary international law?

u explain the significance of the UN Charter in restricting the use of force in
international law
u recognise the exceptions to the proscription of the use of force in the UN Charter
u explain the effect of General Assembly resolutions purporting to interpret the
Charter.
9.3 Chapter VII of the UN Charter
Core text
¢ Mansell and Openshaw, Section 8.4 ‘Chapter VII of the UN Charter’.
What should now be clear is that at the formation of the United Nations the intention
was that this body would have the role of ensuring international peace and security.
Both the prohibition on the threat and use of force (Article 2(4)) and the prohibition
on intervention in matters essentially within domestic jurisdiction (Article 2(7)) were
intended to do so. Those who drafted the Charter, however, recognised that these
provisions in themselves would be insufficient to prevent or halt international strife
and thus placed the responsibility to make these provisions effective in the hands of
the Security Council. The Security Council is defined and created by Chapter V of the
Charter. This not only defines membership, both permanent and elected, and confers
the power of veto on permanent members, but, crucially, gives the Security Council
‘primary responsibility for the maintenance of international peace and security’
(Article 24). Article 25 obliges all members to accept and carry out Security Council
decisions. Its powers with regard to threats to the peace, breaches of the peace and
acts of aggression are to be found in Chapter VII of the Charter.
Chapter VII gives the Security Council the power to determine the existence of any threat
to the peace, breach of the peace, or act of aggression and it is then empowered, upon
such a determination, to make recommendations, or decide what measures shall be
taken to maintain or restore international peace and security. It is important to realise
that this power ‘to determine’ is unfettered. Once the Security Council has so determined
there is no possibility of review by any judicial or other body. While some writers have
argued that the position should be otherwise, being of the view that the power of the
Security Council should be constrained in order to ensure that there is some objective
evidence for such a determination, this does not seem to be a plausible interpretation of
the power given to it. The measures available to the Council under Chapter VII to achieve
its goals range from the imposition of economic sanctions to authorising the use of
military force against states not complying with its decisions.
Because of the power of veto and the Cold War, the Security Council’s Chapter VII
powers were largely unused until 1990. The two occasions on which the powers were
used were wholly exceptional. The first was when after conflict between North and
South Korea the Security Council ‘recommended’ that the member states of the UN
give such assistance to South Korea ‘as may be necessary to repel the armed attack [by
North Korea] and to restore international peace and security in the area’. This, then,
was a recommendation rather than an authorisation and furthermore it was passed
in the absence of the one Security Council permanent member that would have
exercised the veto (the Soviet Union). (The Soviet Union was absent because it was
boycotting the Security Council in protest at the Chinese seat in the General Assembly
and the Security Council being held by the nationalist Chinese, of Taiwan, rather
than the communist government of mainland China.) Although Article 27 provides
that decisions on such matters shall include ‘the concurring votes of the permanent
members’, it seems now to be accepted that abstention for whatever reason is not
to be equated with a veto. The second exceptional case concerned the attempt
by Ian Smith’s government of then ‘Southern Rhodesia’ (now Zimbabwe) to claim
independence with a white minority government in 1965. Here the Security Council
deemed the resulting situation a ‘usurpation of power by a racist settler minority’ and
in a later resolution deemed imminent supply of oil to the country a ‘threat to the †
Vessels arrived at Beira
peace’ and called upon the UK ‘to prevent by the use of force if necessary, the arrival of in Mozambique, Southern
vessels† reasonably believed to be carrying oil destined for Southern Rhodesia’. Later Rhodesia’s main port of
the Security Council imposed mandatory economic sanctions. access.
The end of the Cold War brought hope to many that a new era had dawned in which
the Security Council might at last perform the role allocated to it in 1945. This has
proved over-optimistic for significant reasons. The first is structural. It had been
intended under Article 43 that all member states would, ‘in order to contribute to
the maintenance of international peace and security, undertake to make available to
the Security Council…armed forces, assistance, and facilities…’. In fact the intentions
of Articles 43–47 were never fulfilled and while action has been sanctioned by the
Security Council it has always been entirely under the control of the participating
states. Not surprisingly it has often proved difficult to gain the agreement of all
permanent members when the action is to be under the control not of the UN but
designated coalitions of members. It should be added, however, that even if this had
not been the case there is little evidence to suggest that the international community
is sufficiently united for the UN to have been more effective.
That notwithstanding, Chapter VII has been used more widely since the Cold War and
in 1990 the Security Council authorised member states to use ‘all necessary means’ to
restore international peace and security in the Gulf by forcing Iraq to withdraw from
Kuwait, the result of which was to return sovereignty to that occupied state. Other
Resolutions have authorised particular states or sometimes organisations of states
(such as the Organisation of American States) to use all necessary means to achieve
particular ends. The two principle provisions under which the Security Council takes
enforcement decisions are Article 41 (enforcement not involving the use of armed
force) and Article 42 (providing for enforcement with the use of armed force).
Article 41
Article 41 provides:
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.
The Cold War had prevented much use of this provision, although it had been used
against Rhodesia in 1965 and South Africa in 1977. Its effect when used against Rhodesia
was limited by the refusal of Portugal, then a colonial power with control over
Mozambique and Angola, and South Africa to support UN sanctions. Against South
Africa the operative Resolution 418 called for an arms embargo but there was little
enthusiasm among powerful states for monitoring to ensure implementation. Wider
sanctions have always been controversial, partly because many state governments
were cynical about their effect, partly because many were unwilling to give up trade,
and partly because many states thought that the effect of sanctions most directly
affected the poorest citizens of the sanctioned state. The exposure of the corruption
and graft that accompanied the sanctions against Iraq after its expulsion from Kuwait
will have strengthened the arguments of those opposed to sanctions in principle.
Nevertheless between 1990 and January 2005 sanctions had been imposed on 16
occasions and subsequently lifted in nine.
Article 42
Article 42 provides:
Should the Security Council consider that measures provided for in Article 41 would be
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.
This provision has never, strictly speaking, been applied. While the Resolution
concerning Korea in 1950 was, as has been said, a ‘recommendation’, when it came to
authorising the use of force against Iraq in 1990 Article 42 was not referred to (leaving
some cynics to speak of action under ‘Article forty one and a half’). This was because
of the lack of structure under Articles 43–47 forcing the Security Council to authorise
a state, a group of states or a regional organisation to use armed force to restore
international peace and order. This has had the effect of passing the control of such
exercises of force away from the United Nations Organisation to other states or bodies.
This was not envisaged in the Charter but the authority to act in this way is arguably
implicit within Chapter VII.
As a result of deep disquiet, an ‘Iraq Inquiry’ was created by the then Prime Minister,
Gordon Brown, in 2009 to consider all aspects of UK involvement in the Iraq
‘intervention’ of 2003. The website contains much information – www.iraqinquiry.org.uk
Although there was no UNSC authorisation in the 2003 intervention, the UK argued that
the authorisation of 1990 remained in force.
Following the terrorist attacks attributed to the ‘Islamic State’ in Paris on 13 November
2015, on 20 November the UNSC passed SC Resn 2249. While this resolution should
be read in full, of particular significance is paragraph 5 which states that the Security
Council:
5. Calls upon Member States that have the capacity to do so to take all necessary measures,
in compliance with international law, in particular with the United Nations Charter, as
well as international human rights, refugee and humanitarian law, on the territory under
the control of ISIL also known as Da’esh, in Syria and Iraq, to redouble and coordinate
their efforts to prevent and suppress terrorist acts committed specifically by ISIL also
known as Da’esh as well as ANF, and all other individuals, groups, undertakings, and
entities associated with Al-Qaida, and other terrorist groups, as designated by the United
Nations Security Council, and as may further be agreed by the International Syria Support
Group (ISSG) and endorsed by the UN Security Council, pursuant to the statement of the
International Syria Support Group (ISSG) of 14 November, and to eradicate the safe haven
they have established over significant parts of Iraq and Syria…
The resolution provides no authorisation of the use of force under Article 42, and
arguably proscribes the use of force by insisting that the ‘necessary measures’ must
be consistent with international law, which, of course, in the absence of Article 42
authorisation, means that the use of force is unlawful. It must be added that the resulting
ambiguity was probably what made the resolution acceptable to the members.
Summary
Chapter VII of the UN Charter was intended to allocate power and responsibility to the
Security Council both to determine the existence of any threat to the peace, and to
decide what forcible or other measures should be taken to resolve the situation. The
results have been less successful than anticipated, partly because of deep divisions
among the veto states in the Council, and partly because of the failure ever to provide
the UN with its own military forces, as had been envisaged. Nevertheless it remains
arguable that any use of force, except for reasons of self-defence, remains unlawful
unless sanctioned by the Security Council.
9.4 Self-defence in international law
Core text
¢ Mansell and Openshaw, Section 8.5 ‘Self-defence in international law’.
Essential reading
¢ Case Concerning Oil Platforms: Islamic Republic of Iran v USA [2003] ICJ Rep 161.
9.4.1 Self-defence under Article 51

The other main exception to the UN Charter’s proscription of the use of force is
concerned with self-defence and is to be found in Article 51. It states:
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.
A number of points need to be made. First, and quite obviously, historically as long as
recourse to war was not inconsistent with international law, there was no need for
any right of self-defence. It was no more and no less lawful than the act that provoked
it. Having said that, it is equally clear that the principles of this ‘inherent right’ were
in fact laid down in an era when war remained lawful. The identification of the rights
and limitations of self-defence first appeared in a rather oblique way after an incident
concerning the destruction of a steamboat – the Caroline – in 1837. The Caroline was
a US boat that was being used by US private militia to provide aid to rebels (against
the British) in Upper Canada. While the boat was docked in New York State the British
set the boat on fire and then sent it over the Niagara Falls. Two were killed and two
taken prisoner. In response to a US protest the British said that the act was one of
‘necessary self-defence’. The dispute was resolved in 1842 when Daniel Webster, the
then US Secretary of State, accepted that self-defence should be restricted to ‘cases in
which the necessity of that self-defence is instant, overwhelming, leaving no choice of
means, and no moment of deliberation’.
Of course this was a peculiar case because property belonging to citizens of a third
entity (the USA) was destroyed in that third state in order to prevent interference by
those citizens in a rebellion in a second entity (Upper Canada) against a first (Great
Britain). Nevertheless these principles of necessity and proportionality have come to
be accepted as appropriate criteria with which to judge the lawfulness of a claimed
act of self-defence. Even so, Article 51 exists within the Charter, the intention of which
was essentially to acquire a monopoly over the use of force in international relations.
Thus although a right of self-defence is recognised as ‘inherent’, it is a right that was
expected to exist only until such time as the Security Council was able to take the
measures necessary to maintain (or restore) international peace and security. Such
is the theory, but the failure to create the structures that would have enabled the
Security Council to play this role, together with political disagreements, have meant
that the exercise of self-defence is less brief than the Charter contemplated.
Armed attack and Entebbe Airport

Unfortunately Article 51 fails either to define ‘armed attack’ or to specify whether
the attack must be upon the territory of the state under attack. What, for instance,
of the situation where it is the nationals of a state who are being attacked beyond its
borders? This situation arose in 1976 when an Air France aircraft with 251 passengers on
board was hijacked by pro-Palestinians and taken to Entebbe in Uganda. The hijackers
released the majority of the passengers but continued to hold some 60, most of whom
were Israeli citizens. The Ugandan Government (under Idi Amin) did little to bring
the hijacking to an end and shortly before a deadline set by the hijackers an Israeli
commando raid took place. Commandos arrived unannounced at Entebbe where they
stormed the hijacked craft, released the passengers and killed the hijackers (and some
45 Ugandan soldiers) before returning with the passengers to Israel. (The only Israeli
soldier killed in the operation was its commander – Yonatan Netanyahu, the elder
brother of Benjamin Netanyahu the current Israeli Prime Minister.) Did international
law permit such a rescue? Israel claimed that Article 51 permitted it to use force in
such circumstances in order to protect its citizens abroad if the state in which they
found themselves was either unable or unwilling to protect them. International
opinion was divided (less along the lines of international law than of individual states’
attitude to Israel) but since then it has become at least implicitly accepted that in
such circumstances, if a state has sufficient power to rescue its citizens, then if the
intervention does not exceed what is a proportionate response it will not be regarded
as inconsistent with Article 51. But it is clear once more that the ability to exercise such
a right belongs only to powerful states. It is equally clear that claims of such a right
are obviously open to abuse (as for instance when the USA invaded Grenada in 1983
supposedly to rescue its nationals, or when it intervened in Panama in 1989 – certainly
in neither case was the primary objective of the US actions the rescue of nationals).
It is probably correct to conclude that intervention to rescue nationals will not be

contrary to Article 2(4) only if:
u the threat to nationals is real and imminent
u the state where they are being held is unwilling or unable to protect them
u the sole purpose of the intervention is rescue
u the response is proportionate in the sense that more lives may be expected to be
saved than lost.
Delayed response and reprisals

On occasions the justification of self-defence has been used when the response to
the original offensive act is nevertheless delayed. At first sight this might seem clearly
contrary to Article 51, since it would seem that if there is time for reflection there is time
to refer the matter to the Security Council. The advantage of treating the matter as within
Article 51, rather than referring it to the Security Council, is that no Security Council action
(such as a Resolution) will be required, and if the right of self-defence is being exercised,
only a Security Council Resolution will suffice to order a halt to the act of defence.
Two examples are instructive. The Argentinean invasion of the Falkland Islands/
Malvinas in 1982 led to no immediate response. This was because of the time required
to assemble and dispatch a substantial naval force and the time required to reach the
South Atlantic once the force had been assembled. It could have been argued that
this delayed ‘act of self-defence’ should have been replaced by putting the matter
in the hands of the Security Council, but for transparent political reasons this course
of action was rejected. This was probably inevitable given the inability of the United
Nations and the Security Council to fulfil the intentions of the drafters of the Charter.
Had the matter been referred to the Council, a Resolution empowering action would
have been most unlikely – a veto would have prevented it.
The second example arose from the attempted assassination of former President
George H.W. Bush in 1993 when a car bomb was discovered in Kuwait. Some two
months later the USA launched a substantial cruise missile attack against Iraqi Military
Intelligence Headquarters in Baghdad, causing death and destruction. Although this
appeared to be much more like an act of reprisal in retaliation for an attributed act
the USA argued that it was a response permitted under Article 51. The delay in the
act of self-defence arose, it was claimed, because of the need to obtain proof of Iraqi
involvement. This position received considerable support from within the Security
Council but the international community was deeply divided at such a unilateral use of
force without Security Council authorisation.
After the terrorist attacks of 13 November 2015 in Paris, France commenced bombing
of Syria, claiming this was justified as self-defence. While this received support from
French allies, a spokeswoman for the Russian Foreign Ministry asked a pertinent
and unanswered question: ‘it would be nice to know more about this concept of
self-defence, in the form of air strikes [on the territory of Syria,] a state which did not
attack anyone, and without its consent, and about this concept’s compliance with
international law.’
As we will see later, acts of terrorism pose particular problems for Article 51.
Reprisals are generally considered to have been outlawed by the United Nations
Charter, but they do still occur. Because they are unlawful, very often in the past they
have been cloaked in the hopeful garb of self-defence, although this stance seems
to be changing. Certainly Israel is currently much less likely to bother attempting
self-defence justifications and is content to accept the fact of reprisal. When in 1969,
in response to the action of Palestinian guerrillas in destroying an El Al aircraft in
Athens, Israeli commandos destroyed 13 civil aircraft valued at more than $40 million
in Beirut, the Israeli Chief of Staff simply said that the objective was to make clear ‘to
the other side that the price they must pay for terrorist activities can be very high’.
Notwithstanding Security Council condemnation for Israel’s ‘premeditated military
action in violation of its obligation under the Charter’, no further price was exacted,
despite a call for compensation.
Thus to conclude this section it is essential to recognise the limits of the right
to self-defence and to recognise that theory does not necessarily coincide with
reality. The theory is that self-defence is limited to a necessary and immediate (and
proportionate) response until such time as the matter can be considered by the
Security Council. The reality is that if states have sufficient power or support it is
possible either to put forward the justification of self-defence even where it is strictly
inappropriate or, more simply, to accept explicitly that an act is one of reprisal in the
knowledge that Security Council condemnation is highly improbable.
9.4.2 Collective self-defence

As you will have realised, Article 51 contemplates collective self-defence, by which
is meant the right of each state to use force in order to defend another state. Such
collective self-defence is most common where there are alliances formed with the
intention of mutual protection. In the Cold War, the Warsaw Pact and the North
Atlantic Treaty Organisation were the most prominent of these, but they were
certainly not unique. Under Article 5 of the North Atlantic Treaty it is provided that the
Contracting Parties:
agree that an armed attack against one or more of them in Europe or North America
shall be considered an attack against them all and consequently they agree that, if such
an armed attack occurs, each of them, in exercise of the right of individual or collective
self-defence recognised by Article 51 of the Charter of the United Nations, will assist the
Party or Parties so attacked by taking forthwith, individually and in concert with the other
Parties, such action as it deems necessary, including the use of armed force, to restore and
maintain the security of the North Atlantic area.
Because Article 51 applies, the same obligation to report to the Security Council
exists and the requirement of an armed attack remains. (The use of force in Kosovo is
considered under ‘humanitarian intervention’ later.)
As to the right of states to make regional arrangements, Article 52 of the UN Charter

states:
(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.
Again, given Article 51, the actions of such regional arrangements must either be an act
of collective self-defence or an action consistent with the purposes and principles of
the UN. Most importantly, the power of the Security Council remains superior to any
regional arrangement.
9.4.3 Pre-emptive self-defence

Because Article 51 refers to the situation where ‘an armed attack occurs’, this might
seem to confine the right of self-defence to a response to an attack that has happened.
This has been the view of most commentators since the creation of the Charter. The
‘inherent right’ seems so confined by the ordinary meaning of the words of Article 51.
For this reason, states have seldom attempted to justify any use of force as an act of
pre-emptive self-defence, and when Israel did so in its bombing of the Osirak nuclear
reactor in Iraq in 1981 its action was condemned unanimously by the UN Security
Council as illegal. Even the USA supported this Resolution. Nevertheless it might be
thought unreasonable that states should have no right to take action from some
threatened attacks. It has been suggested that the Caroline principle might be called
into play, recognising a right of pre-emptive self-defence only where the need for
self-defence is ‘instant, overwhelming, leaving no choice of means and no moment of
deliberation’ and where the response is proportionate to this imminent threat.
Any attempt to define such a right is, however, fraught with difficulty. Because it has
such potential for abuse, and often by states in unstable relationships (India and
Pakistan, Israel and Iran/Syria, or North and South Korea) and with powerful, even
nuclear weaponry, its use must be heavily circumscribed. Most states accept this and
of course few states have the armed forces to make such pre-emptive strikes anyway.
But recently, and particularly since the terrorist attacks upon its territory in 2001, the
United States has asserted new rights of ‘pre-emptive self-defence’. We shall return
to this point in the final chapter, but the position taken by the Bush administration
is spelt out in a document – The National Security Strategy of the United States of
America – published under the presidential seal in September 2002. Although many
would query some of the assertions, what is said probably does currently represent
the US view. It is startling. On page 15 it states:
For centuries, international law recognized that nations need not suffer an attack
before they can lawfully take action to defend themselves against forces that present an
imminent danger of attack. Legal scholars and international jurists often conditioned the
legitimacy of pre-emption on the existence of an imminent threat – most often a visible
mobilization of armies, navies, and air forces preparing to attack.
We must adapt the concept of imminent threat to the capabilities and objectives
of today’s adversaries. Rogue states and terrorists do not seek to attack us using
conventional means. They know such attacks would fail. Instead, they rely on acts of
terrorism and, potentially, the use of weapons of mass destruction – weapons that can be
easily concealed and delivered covertly and without warning.
The targets of these attacks are our military forces and our civilian population, in direct
violation of one of the principal norms of the law of warfare. As was demonstrated by the
losses on September 11, 2001, mass civilian casualties is the specific objective of terrorists
and these losses would be exponentially more severe if terrorists acquired and used
weapons of mass destruction.
The United States has long maintained the option of pre-emptive actions to counter a
sufficient threat to our national security. The greater the threat, the greater is the risk
of inaction – and the more compelling the case for taking anticipatory action to defend
ourselves, even if uncertainty remains as to the time and place of the enemy’s attack. To
forestall or prevent such hostile acts by our adversaries, the United States will, if necessary,
act pre-emptively. The United States will not use force in all cases to pre-empt emerging
threats, nor should nations use pre-emption as a pretext for aggression. Yet in an age
where the enemies of civilization openly and actively seek the world’s most destructive
technologies, the United States cannot remain idle while dangers gather.
Significantly, the USA used this position as one justification for its unauthorised
invasion of Iraq in 2003. More significantly, its major allies chose to justify their part
only by a reading of Security Council resolutions. Yet again this is a situation where
the power of the USA enables it to assert a position in international law not shared by
other states and certainly rejected by the United Nations.
The position adopted by the UK relating to the use of force for the purpose of self-
defence was made clear in the UK Attorney-General’s address in January 2017 (available
at: www.gov.uk/government/speeches/attorney-generals-speech-at-the-international-
institute-for-strategic-studies). In this speech, which is well worth reading in its
entirety, he was concerned to consider the appropriate response to new and
evolving threats from non-state actors. He did acknowledge that, where possible, the
appropriate response to threats from non-state actors should be through the criminal
justice system. Where, however, such a response was impractical or impossible, he
suggested that factors which must be taken into account included the following:
a. the nature and immediacy of the threat
b. the probability of an attack
c. whether the anticipated attack is part of a concerted pattern of continuing armed

activity
d. the likely scale of the attack and the injury, loss or damage likely to result
therefrom in the absence of mitigating action, and
e. the likelihood that there will be other opportunities to undertake effective action
in self-defence that may be expected to cause less serious collateral injury, loss or
damage.
It is difficult to reconcile some US actions with these criteria.
When, after the assassination of the Iranian General, Qasem Soleimani, on 3 January
2020 by rockets fired from a US drone while he was on a visit to Iraq, the USA was
called upon to justify this action under international law, the response was that this
was an act of self-defence as permitted under Article 51 of the UN Charter. The claim
(although with no evidence made public) was that General Soleimani was planning an
imminent attack on US embassies or forces. Clearly, this act gave rise to two questions.
First, was the extra-judicial killing by rockets fired from drones while General Soleimani
was visiting Iraq permissible under international law? Second, in the unlikely event
that it could be so regarded, was it an act of preemptive self-defence meeting the
criteria enumerated above?
Of course, the position was complicated further by the fact that the attack took place
not in Iran but in Iraq and also that a number of Iraqis were deliberately killed in the
assassination.
Activity 9.3
‘While the requirements of self-defence for a justification of the use of force are
theoretically clear it seems all too apparent that this defence is used by states
with sufficient power to assert a right to use force for other reasons – even if those
reasons seem incompatible with the Charter.’ Discuss.
Summary
Self-defence in international law was intended in the Charter to be a restricted
justification for the use of force. It was intended to legitimate forceful resistance to
armed attack until such time as the Security Council could be notified so that it might
resolve the conflict. Unfortunately the Security Council has never had the power
required to play its assigned role. Now it is not unusual for states to define their own
understanding of self-defence and effectively to challenge the Security Council to
condemn them. Powerful states or states with powerful allies have not
been constrained as intended.
What is the evidence for the view that reprisals are once more permissible under
international law?

u explain the literal meaning of Article 51 and its constraints upon the inherent
right of self-defence
u explain why reprisals, apparently clearly unlawful, are often carried out without
condemnation.
9.5 Self-defence and terrorism in international law
Core text
¢ Mansell and Openshaw, Section 8.5 ‘Self-defence in international law’.
The 11 September 2001 act of Al-Qaida against the United States which killed almost
3,000 people was of course not the first major act of terrorism. But it was seminal
in the effect that it had upon international law. Until that date the typical response
to acts of national or international terrorism was to interpret the conduct as that of
individuals and thus as acts of a criminal nature. This recognised that while different
states might support different acts of terrorism, it would be rare indeed that acts of
terror could be attributed to such a state. As we will see shortly, however, that position
was not absolute, nor were responses to terrorism uniform.
International law has had considerable difficulty in providing a definition of terrorism.

Some thought such a definition unnecessary as any act of so-called terrorism was
better defined depending upon the circumstances. An act of terrorism might
be murder, arson, causing explosions or whatever, each giving rise to charges of
recognised crimes. There were also some state representatives who were unwilling
to define terrorism in a way that condemned the ‘freedom fighter’ – those concerned
with pursuing a legitimate goal of self-determination – as well as the religious
fanatic or politically disaffected. In Cassese’s words (p.449), ‘Third World countries
staunchly clung to their view that this notion [terrorism] could not cover acts of
violence perpetrated by the so-called freedom fighters, that is individuals and groups
struggling for the realisation of self-determination’. (In fact more recently it has been
the 56 members of the Organization of the Islamic Conference who have continued
to insist that the armed struggle ‘for liberation and self-determination’ be excluded
from a definition of terrorism because of their empathy with the Palestinian cause.)
Nevertheless it was recognised that acts of terrorism seemed to be more than
simple, if terrible, crimes under other names. In 1994 in GA Resolution 49/60 passed
by consensus, there was an attached Declaration which, in paragraph 3 referred to
terrorism as:
Criminal acts intended or calculated to provoke a state of terror in the general public,
a group of persons or particular persons for political purposes are in any circumstance
unjustifiable, whatever the considerations of a political, philosophical, ideological, racial,
ethnic, religious or any other nature that may be invoked to justify them.
And there have been other attempts at definitions, both earlier and later. In an
unadopted League of Nations Convention of 1937 terrorism was defined as:
All criminal acts directed against a State and intended or calculated to create a state of
terror in the minds of particular persons or a group of persons or the general public.
General Assembly Resolution 51/210 of 1999 (Measures to eliminate international

terrorism) read as follows: The GA
(1) Strongly condemns all acts, methods and practices of terrorism as criminal and
unjustifiable, wherever and by whomsoever committed;
(2) Reiterates that criminal acts intended or calculated to provoke a state of terror in
the general public, a group of persons or particular persons for political purposes
are in any circumstance unjustifiable, whatever the considerations of a political,
philosophical, ideological, racial, ethnic, religious or other nature that may be invoked
to justify them.
Finally it is worth quoting a comparatively short legal definition proposed by A.P. Schmid:
Terrorism is an anxiety-inspiring method of repeated violent action, employed by (semi-)

clandestine individual, group or state actors, for idiosyncratic, criminal or political
reasons, whereby – in contrast to assassination – the direct targets of violence are not the
main targets. The immediate human victims of violence are generally chosen randomly
(targets of opportunity) or selectively (representative or symbolic targets) from a target
population, and serve as message generators. Threat- and violence-based communication
processes between terrorist (organization), (imperilled) victims, and main targets are
used to manipulate the main target (audience(s)), turning it into a target of terror, a target
of demands, or a target of attention, depending on whether intimidation, coercion, or
propaganda is primarily sought.
(Schmid, A.P. ‘Terrorism and human rights: a perspective from the UN’, Terrorism and
political violence (2005) 17(1–2), 25.)
The need for a definition of this kind arises from the legal consequences of acts
of terrorism. If acts fulfil the criteria, they will be regarded as international crimes
(discussed elsewhere). But of most importance here is the question of when acts of
terrorism might give rise to the use of force in international law and whether that
use of force is to be regarded as lawful. You will no doubt quickly realise that an
assertion of a right of international self-defence in relation to a terrorist attack does
not dispose of the question of legality. The claim was often made particularly by the
United States, Israel and South Africa (when under the apartheid regime). Israel used
this justification when invading the Lebanon in 1982, arguing that the invasion was an
act of self-defence in response to terrorist attacks, and again when attacking the PLO
headquarters in Tunis and killing 60 people in 1985 after the murder of three Israeli
citizens on a yacht in Larnaca harbour in Cyprus supposedly by a Palestinian task force.
In 1986 a terrorist bomb exploded in a West Berlin nightclub frequented by US service
people. Two Americans were killed and there were many injuries. Ten days later the
United States bombed Tripoli in Libya, claiming to have information that Libya was the
source of the Berlin terrorist act. Fifteen people were killed. The then US Secretary of
State George Shultz asserted that this action was within Article 51 but there was little
international support for his argument. Both Israel and the USA have insisted that this
right of self-defence even covers attacks upon states not directly involved in the terror,
as for instance Tunisia in 1985.
The prelude to 11 September may be seen in the bombing of United States embassies in
Nairobi and Dar es Salaam in August 1998. Twelve Americans were killed but more than
200 non-Americans also lost their lives while thousands were injured. The response
clearly illustrates the importance of power in determining action appropriate to the
terror attack. While the governments of Kenya and Tanzania, whose innocent citizens
had suffered so grievously, were incapable of mounting a response by way of self-defence
(had that been available to them, as it almost certainly would have been if the identity
of the bombers could be ascertained), the USA concluded that responsibility lay with
Osama bin Laden and Al-Qaida. Some two weeks later it launched 79 cruise missiles at
what it claimed were terrorist training camps in Afghanistan and against a factory in
Sudan. As in Israel’s attack in Tunis the claim was that Article 51 justified a self-defence
response even against the territory of a state where the attack had been mounted by a
group not identified with the state under attack itself.
Michael Byers, in his book War law (London: Grove Press, 2007) [ISBN 9780802142948],
points out with regard to this action that in an attempt to defuse any international
reaction, President Clinton had taken the precaution of communicating with close
allies (the UK, France and Germany) to advise of his plans for these strikes. Protest
was therefore generally muted. Byers suggests that at least until the second Bush
administration, ‘Whenever the US government wishes to act in a manner that is
inconsistent with existing international law, its lawyers regularly and actively seek
to change the law. They do so by provoking and steering changing patterns of state
practice and opinio juris, with a view to incrementally modifying customary rules and
accepted interpretations of treaties such as the UN Charter’. He goes on to suggest
that this is the best explanation of the course of action adopted by the USA after the
11 September attacks. This is because other more obviously legitimate courses of
action were available to the USA rather than the position adopted. The USA chose to
base the justification for its subsequent attack on Afghanistan purely upon the right of
self-defence. Most obviously it would have been possible to obtain a Security Council
resolution, probably in almost any terms the USA requested. The undesirability of this
course of action however lay in the fact that it would recognise the authority of the
Security Council over US action. As we will discuss in the final chapter, this would not
have been acceptable to the Bush administration.
How much better, therefore, to justify the response as an act of self-defence. Although
this was against the Taliban, then in control of most of Afghanistan, this course of
action was made more acceptable by the refusal of the Taliban to co-operate with
the USA in apprehending and handing over those thought to be responsible. It is
Byers’ argument that this extended meaning given to ‘self-defence’ is capable of
claims of further extension. Thus perhaps (although this is highly contentious and
will be considered in the final chapter) it might be extended even to justify ‘targeted
assassinations’ as carried out by Israel, the United States, Russia (and recently by
the UK), against those it considers to be involved in violence against its citizens. The
criteria utilised by the UK in considering an appropriate response was announced by
the Attorney General in 2017 (see Section 9.4.3).
To conclude this section, it may be seen that the precise scope of Article 51 in defining
permissible responses to terrorist attacks is unclear. Two final points need to be
remembered. The first is that any ‘right’ of self-defence will always also depend
upon the means to respond, whether directly or through powerful friends. Second,
terrorism is almost always a manifestation of an asymmetric struggle between
irregular and often ill-equipped forces on the one side and a state with access to
armed forces and weapons on the other. While this makes no comment about the
‘rightness’ of any irregular terrorist action, it might give rise to the view that simply
to label one side of a struggle as ‘terrorists’, as for instance with Palestinians or
Chechnyans or Tamil Tigers, while exonerating the other of terrorism because of its
governmental legitimacy is excessively simplistic. Indeed some of the most repressive
states have been enthusiastic about the so-called war against terror, precisely because
it can be used to justify additional repression and a refusal to negotiate in response to
important demands. What can be stated with some certainty, however, is that Article
51 is being used to justify responses never contemplated by the drafters of the Charter.
Activity 9.4
Should acts of terrorism ever justify the use of force as defined in Article 51 of the
UN Charter?
Consider the debate between those who argue that all acts of terrorism everywhere
are always contrary to international law and constitute international crimes, and
those who argue that before such a conclusion the context of the terrorist act must
be considered.

u outline the debate concerning the scope of Article 51 in response to terrorist acts
u appreciate why powerful states favour an expansive interpretation of Article 51.
9.6 From humanitarian intervention to responsibility to protect
Core text
¢ Mansell and Openshaw, Section 8.6 ‘From humanitarian intervention to
responsibility to protect’.
We have already seen in this chapter how international law seems generally to
permit the use of force by a state to rescue its citizens who are being improperly
held in the territory of another state, though of course the usual qualifications
relating to necessity and proportionality, not to mention ability, apply. The question
of humanitarian intervention is related to this proposition, but differs in that
questions of the need for one state to intervene in the affairs of another state for
humanitarian reasons are unlikely to concern the safety of the intervening state’s
nationals. Discussion as to when, if ever, one or more states are entitled to forcibly
intervene in the affairs of another is often coloured by the rather mixed history
of such interventions. In particular the intervention in Somalia in 1992, which was
authorised by the Security Council, is widely accepted to have been a fiasco, and the
non-intervention in Rwanda in 1994 where some 800,000 were massacred is widely
portrayed as utterly shameful. Opinion is still divided over the NATO intervention
in Kosovo in 1999, conducted by an alliance of states but without Security Council
authorisation. Even the way in which humanitarian intervention is described is
controversial, ranging from ‘forcible intervention’ to a ‘responsibility to protect’.
Within the debate over such intervention opinions range all the way from those who
consider that ‘humanitarian intervention’ is always necessarily wrong, to those who
argue that it should be extended much further to enable regime change to be effected
where a government is ruling without a democratic mandate. Those of the former
opinion point out both that only some states are ever vulnerable to humanitarian
intervention and that the number of such situations that have brought long-term
improvements are few and far between; while those of the latter have suggested that
it is a lack of democracy in states that is largely responsible for international instability.
It is important at the outset to distinguish humanitarian intervention that is pursuant

to a Security Council Resolution from other interventions. Although some authors are
unhappy with the situation, the position in international law is as follows: where, as
in Somalia, Haiti or East Timor, intervention complies with a specific Security Council
Resolution, it is to be regarded as legitimate (if not necessarily wise). The reservation
expressed by some commentators is that in fact these situations should not have been
held to be threats to the peace and the Security Council was wrong in declaring them
to be so. But as we have observed, there is no body with the power to review Security
Council Resolutions and the concept of ultra vires is not relevant. Thus the contentious
question in international law concerns the situation where a state or a number of
states wish to intervene militarily in order to save or protect either nationals of the
state where intervention is contemplated or nationals of states other than those
contemplating intervention.
At first sight the legal position appears to be clear. It seems that the ‘Declaration on
the Inadmissibility of Intervention in the Domestic Affairs of States and the Protection
of Their Independence and Sovereignty’ adopted in 1965 by the General Assembly (and
restated in a further declaration in 1981), and intended to interpret Article 2(7) of the
UN Charter, should govern the position. Article 1 provides:
No state has the right to intervene, directly or indirectly, for any reason whatever, in the
internal or external affairs of any other State. Consequently, armed intervention and all
other forms of interference or attempted threats against the personality of the State or
against its political, economic and cultural elements, are condemned.
The demonstrated strength of international feeling on this subject is probably why

there was so little evidence of a developing law permitting international humanitarian
intervention until the 1999 intervention in Kosovo. Indeed it is important to see that
in each case before then, the intervening state defended its actions not in terms of
any right to humanitarian intervention but as an act of self-defence. While this is no
doubt partly due to the determination to intervene before seeking Security Council
consideration as discussed in the last section, the refusal to attempt to rely upon any
justification of humanitarian intervention has had the effect of negating any evidence
of changing opinio juris. Thus when each of the cases usually put forward to suggest a
history of humanitarian intervention is examined, it seems to do no such thing. Three
cases typically quoted are:
u India’s intervention in what was then East Pakistan (now Bangladesh) in 1971 after
widespread atrocities carried out by the army of West Pakistan
u Vietnam’s invasion of Kampuchea (now Cambodia) in 1978, where the Kampuchean

army had been responsible for the murder of hundreds of thousands of its own
citizens
u Tanzania’s 1979 invasion of Uganda to overthrow the regime of Idi Amin,
responsible for humanitarian outrages and the mass murder of Ugandan citizens
(Uganda had invaded the Kagera region of Tanzania the previous year).
Not only did each invading state rely upon self-defence, but none suggested that
humanitarian motives were of any influence. The removal of tyrants, tyrannical
regimes or marauding armies was never argued as justification, nor yet did such a
happy result receive approval in those terms. Vietnam was roundly criticised for its
use of force against the territorial integrity and political independence of Kampuchea
even as the atrocities of the Pol Pot government were condemned.
In fact before the intervention by NATO in Kosovo there had been only one
occasion when a state had been prepared to justify such actions as a response to a
humanitarian crisis. When the UK deployed forces along with the USA, Italy, Holland
and France in Northern Iraq after the first Gulf War of 1991, in order to provide safe
havens for the Kurdish people under attack from Saddam Hussein, it was the British
Foreign Office that stated, ‘We believe that international intervention without the
invitation of the country concerned can be justified in cases of extreme humanitarian
need’. Significantly, it was not suggested that the justification amounted to ‘legal’
justification. Such a proposition would seem immediately incompatible with Article
2(4) of the UN Charter.
How then should the intervention in Kosovo be characterised? Could it, and did
it, represent a change in international law? Brief facts are relevant. When the
Constitution of Yugoslavia was drafted in 1945, Kosovo was included as an autonomous
region. It was inhabited by people who were divided by their religion and to some
extent by their ethnicity. Some 90 per cent of the population (of 2.2 million) by the
1990s were Muslim and ethnically Albanian. The remaining 10 per cent were Serbs who
were Orthodox Christians. Many of the religious and national sites most revered by
the Serbs are to be found in Kosovo and there were tensions between the two groups.
Significantly Kosovo was the poorest part of Yugoslavia and the Serbs had had little
success in persuading ethnic Serbs to live there. A major reason for the election of
Slobodan Milosevic as President in 1989 was his promise to promote Serbian interests
in Kosovo. After his election he immediately withdrew Kosovo’s autonomous status
and this led to increasing tension and violence between the two communities. While
opinions differ, the evidence seems to prove that Serbian aggression was provoking
defensive action which in turn provoked more Serb violence with allegations of ‘ethnic
cleansing’ and other atrocities, including both murder and rape. In fact it is difficult to
obtain clear evidence of exactly what was done to either community by the other but
the Security Council was concerned by the violence and in 1998 imposed a mandatory
arms embargo. A series of resolutions followed. Resolution 1199 of September 1998,
expressly referring to the authority of Chapter VII, determined that the situation in
Kosovo was one that was a threat to peace and security in the region. Nevertheless it
was clear that no Resolution could be obtained that would expressly authorise the use
of force because Russia would exercise its veto. Under threat from NATO for failing to
comply with Resolution 1199’s demand for the cessation of hostilities and a return to
negotiations, the Serbian dominated Federal Republic of Yugoslavia (FRY) eventually
agreed to comply. Resolution 1203 followed in October 1998, again under Chapter
VII, endorsing the two agreements made by the FRY to comply with Security Council
Resolutions and to accept a verification mission from the Organisation for Security
and Co-operation in Europe (OSCE), and also an agreement with NATO creating an air
verification mission. That notwithstanding, the violence escalated, NATO resumed its
threats and after the failure of talks aimed at resolving the Kosovan problem held in
Rambouillet near Paris, NATO began its campaign of aerial bombardment against FRY
targets on 23 March 1999, which lasted until the withdrawal of Serbian forces after
an agreement of 9 June 1999. The agreement was notified to the UN and the Security
Council passed Resolution 1244 endorsing both the ending of hostilities and the plan
for the restoration of peace.
This action by the states of NATO caused immense concern to international lawyers.
Few argued (or could argue) that the action came within the rules of the UN Charter,
yet many felt that the correct moral decision to intervene had been taken. Some
suggested that although it was not legal, the intervention was justifiable and justified
by subsequent international reaction. In particular the attempt by Russia and Belarus
to have the NATO bombing declared illegal was rejected by the Security Council with a
large majority and the General Assembly did not condemn NATO’s actions.
What is once more usefully illustrated here is the difference between international law
and international morality. The fact is that international humanitarian intervention is
legal only if consistent with the UN Charter. But the question of legality does not finally
dispose of the matter, though many might think it should. International law is a major
factor in determining a course of action but other facts might outweigh illegality
in the eyes of statesmen and diplomats, particularly where egregious breaches of
humanitarian law are claimed to exist. Here we can also observe the different weight
of veto. The knowledge that Russia would prevent any resolution (with or without
support from China) empowering forcible intervention did not amount to a threat
of war if the authority of the Charter was ignored. The use by the USA of the veto to
prevent the condemnation of Israel under Chapter VII is altogether more powerful.
Even where the USA is alone in the Security Council no other party or parties would
challenge that veto.
9.6.1 Responsibility to protect (R2P)

Over the past two decades, another concept has emerged that has arguably
superseded humanitarian intervention: responsibility to protect (commonly
abbreviated to RtoP or R2P). Devised by the International Commission on Intervention
and State Sovereignty (ICISS) – a body set up in 2000 under the auspices of the
Canadian government to consider how to respond to gross human rights violations
– this new concept entails a reorientation of the debate on how to deal with
humanitarian catastrophes. As set out in the ICISS’s 2001 report, R2P places the onus
for protecting individuals from severe human rights violations primarily on the state
in which those individuals reside, seeking to avoid outside military intervention
wherever possible. In particular, it champions a preventive rather than reactive
strategy: that is, states are encouraged to take steps to eliminate the conditions that
are likely to give rise to humanitarian crises rather than attempting to deal with the
consequences of such calamities after they have occurred. Where a state is unable or
unwilling to deal with a humanitarian catastrophe, then the international community
has a responsibility to help through a variety of responses, which may include coercive
measures, such as the imposition of sanctions or prosecuting individuals alleged
to have committed grave human rights abuses. Military intervention, however, is
envisaged only as a last resort and in clearly defined circumstances. Emphasis is also
placed on following up any military intervention with measures aimed at rebuilding
and restoring order to the society subject to the intervention and, significantly,
‘addressing the causes of the harm that the intervention was designed to halt or avert’,
thereby engaging with a criticism frequently levelled at humanitarian interventions:
that, whatever their outcome, they do little if anything to tackle the causes of human
rights violations, with the result that such violations simply recur.
The ICISS’s recommendations have had an appreciable impact on UN and state

thinking on how to deal with grave human rights transgressions. The UN’s High-
level Panel on Threats, Challenges and Change, in its own report published in 2004,
endorsed ‘the emerging norm that there is a collective international responsibility
to protect, exercisable by the Security Council authorizing military intervention as a
last resort, in the event of genocide and other large-scale killing, ethnic cleansing or
serious violations of humanitarian law which sovereign governments have proved
powerless or unwilling to prevent.’ The Panel’s report also set out five minimum
criteria that it believes the Security Council should take into account when deciding
whether or not a military intervention is justified:
a. Seriousness of threat. Is the threatened harm to state or human security of a kind,

and sufficiently clear and serious, to justify prima facie the use of military force? In
the case of internal threats, does it involve genocide and other large-scale killing,
ethnic cleansing or serious violations of international humanitarian law, actual or
imminently apprehended?
b. Proper purpose. Is it clear that the primary purpose of the proposed military
action is to halt or avert the threat in question, whatever other motives or
purposes may be involved?
c. Last resort. Has every non-military option for meeting the threat in question been
explored, with reasonable grounds for believing that other measures will not succeed?
d. Proportional means. Are the scale, duration and intensity of the proposed military
action the minimum necessary to meet the threat in question?
e. Balance of consequences. Is there a reasonable chance of the military action being

successful in meeting the threat in question, with the consequences of action not
likely to be worse than the consequences of inaction?
The General Assembly, at its 2005 World Summit, celebrating the 60th anniversary of
the UN, approved the concept of R2P, albeit limiting its application to cases in which
the following atrocities are taking place, or are believed to be at risk of occurring:
genocide, war crimes, ethnic cleansing, and crimes against humanity (referred
to in UN parlance as ‘the four specified crimes and violations’). It confirmed that
responsibility for preventing such crimes lies primarily with a population’s own state,
but also acknowledged that the international community as a whole has a collective
responsibility to support individual states in order to ensure that such atrocities do
not occur. Such support, it explained, should take the form of ‘appropriate diplomatic,
humanitarian, and other peaceful means’, but could, if such approaches proved
insufficient, extend to military action undertaken through the Security Council.
The conclusions of the World Summit on the responsibility to protect were in turn
reaffirmed by the Security Council in a 2006 resolution on the subject of protecting
civilians in armed conflict, and were drawn on by the then Secretary-General,
Ban Ki-Moon, in a report presented to the General Assembly in 2009. Entitled
‘Implementing the Responsibility to Protect’, the report sets out a three-pillar strategy
aimed at preventing crimes against humanity that:
1. recognises that responsibility for protecting populations from genocide, war

crimes, ethnic cleansing and crimes against humanity lies principally with the
states in which those populations are located
2. emphasises the important part to be played by the international community in

helping states fulfil that responsibility, and
3. acknowledges the need for UN members ‘to respond collectively in a timely and
decisive manner when a state is manifestly failing to provide such protection.’
The Secretary-General later issued further reports concentrating on particular aspects of

R2P, namely: the need to improve the UN’s early-warning and information assessment
capabilities, so as to deal with the threat of genocide and the other specified crimes as
soon as possible; the important contribution to be made by regional and sub-regional
organisations of states in combating these abuses; and a detailed discussion of what
a ‘timely and decisive response’ actually entails. This discussion clarifies, among other
matters, that such a response should be aimed at bolstering, rather than displacing,
a state’s own protective responsibilities. It also emphasises that the three pillars are
not to be applied in a particular order, with all being equally important, and with both
preventive and responsive approaches necessary in order to combat atrocities. Each of
the Secretary-General’s reports were subsequently discussed by the General Assembly in
an informal interactive dialogue.
It should also be noted that, as far back as 2000, the African Union, which promotes
unity, solidarity, and economic, social and political progress among its members,
recognised the right to intervene in a member state where gross human rights
violations are occurring. Hence, even as the organisation’s Constitutive Act (its
constitution or founding principles) places great emphasis on respect for each
member’s sovereignty and the principle of non-interference (as might well be
expected on a continent where colonialist exploitation ended only a comparatively
short time ago), so it also enshrines a right for the Union to intervene in a member
state where ‘war crimes, genocide, and crimes against humanity’ are taking place.
In spite of the impressive inroads that R2P has made in the debate concerning how
best to prevent people from suffering gross human rights violations, it is still some
way yet from establishing itself as a principle of international law. While states have
generally expressed a willingness to implement the concept as encapsulated in the
2005 World Summit Outcome document, a dearth of state practice, a lack of clarity as
to precisely what R2P entails and how far its ambit is intended to extend, and a belief
on the part of some states that it embodies a political commitment to stamp out
gross human rights abuses rather than an emerging legal obligation would all seem to
militate against its crystallising into an international norm at any point soon.
As with its predecessor, humanitarian intervention, R2P has also been invoked
selectively and not always appropriately. As has been noted, the concept has, in the
past few years, been referred to by a number of actors (various states, the UN and
other entities, such as NGOs) in the context of certain humanitarian crises, including
Darfur and Kenya, but ignored in others where the loss of life, displacement of persons
and general suffering might have made it equally applicable, such as Somalia. It
has also made an appearance in circumstances where its applicability is moot, to
say the least, having been appealed to by Russian Foreign Minster Sergei Lavrov to
justify Russia’s intervention in the South Ossetian region of Georgia in 2008, shortly
before Russia recognised the independence of South Ossetia and Abkhazia, and by
French Foreign Minister Bernard Kouchner, again in 2008, in an attempt to persuade
the Security Council to intervene in Myanmar after the country’s military rulers had
been slow to accept foreign aid following the devastation wreaked on the country by
Cyclone Nargis. In both cases, however, the relevance of R2P was strongly disputed by
significant elements of the international community, confirming two points in relation
to the concept: a determination, at present, to confine its use to only those cases in
which the ‘four specified crimes and violations’ are at issue (and, hence, precluding
its employment in other cases of humanitarian catastrophe, including the aftermath
of natural disasters) and also an insistence that any intervention for humanitarian
reasons be authorised by the Security Council, demonstrating firm resistance to
any resort to a unilateral approach (that is, an intervention undertaken by one or
more states without the approval of the Security Council). Similarly, the attempt a
few years earlier by a number of American and British politicians to characterise the
2003 invasion of Iraq as partly a humanitarian venture (citing the brutality of Saddam
Hussein’s regime towards Iraq’s citizens and neighbours, and the lack of democracy)
generally met with distrust, and has been widely condemned as an unhelpful, if not
downright dangerous, misuse of the concept.
What R2P has provided then is a new way of talking about international and national
crises and the issue of humanitarian intervention. It did seem, when the Security
Council authorised intervention in Libya, relying upon the doctrine, that it might
be a significant change in practice also. For better or for worse that intervention
confirmed the fears of those who opposed any significant change to international law
constraining humanitarian intervention. The authorised NATO-led action, in the view
of many states, exceeded its mandate by facilitating regime change rather than simply
providing protection for Libyan citizens against egregious human rights abuses. The
subsequent and continuing political chaos in Libya confirmed the views of many states
who, were the situation to be replayed, would undoubtedly vote against authorisation
in the Security Council.
Despite the obvious shortcomings of R2P, particularly with regard to the manifest
egregious breaches of human rights by the Assad regime in Syria, it is relevant to
note that many institutions are collecting and collating evidence of these breaches
and information on the individuals responsible. This is what has allowed Germany
to prosecute (under universal jurisdiction) Anwar Aslan, a Syrian policeman and
alleged torturer, at present on trial in Koblenz. It is said that a Dutch-based NGO – The
Commission for International Justice and Accountability – has collected 800,000
documents incriminating President Assad and his collaborators.
Additionally, pursuant to GA Resn 71/248, the International, Impartial and Independent

Mechanism was created with a mandate
to collect, consolidate, preserve and analyse evidence of violations of international

humanitarian law and human rights violations and abuses and to prepare files in order
to facilitate and expedite fair and independent criminal proceedings, in accordance with
international law standards, in national, regional or international courts or tribunals
that have or may in the future have jurisdiction over these crimes, in accordance with
international law.
The IIIM is neither a prosecutor’s office nor a court but collects and analyses
information and evidence of international crimes committed in Syria to assist criminal
proceedings in national, regional or international courts or tribunals that have or may
in the future have jurisdiction over these crimes (see: https://iiim.un.org/mandate/).
Activity 9.5
Do you agree that the intervention by NATO in Kosovo without Security Council
authorisation strikes at the heart of international law, or should it be seen merely
as one of the rare situations in which the use of power for the common good should
be accepted as illegal but moral?
Summary
In proscribing the use of force in international law the UN Charter made no allowance
for humanitarian intervention except upon authorisation of the Security Council.
Clear though this is, it is equally clear that veto powers may prohibit intervention even
where preventable atrocities are being carried out. In Kosovo an anticipated veto
did not dissuade NATO from an intervention that lacked legality, though arguably not
morality. Although this action was not condemned by the majority of the international
community this does not make it retrospectively lawful. Enthusiasm for such action
should be tempered by a realisation that few states or regional organisations will have
the power or will to intervene in states in breach of human rights obligations. Darfur in
the Sudan represents a situation even worse than Kosovo but one where there is little
prospect of intervention. Additionally some states, because of their power (or their
powerful allies), will never be subject to humanitarian intervention no matter how
deplorable their human rights record. Chechnya and the Israeli Occupied Territories
are two such examples.
1. Might the General Assembly ‘Uniting for Peace’ Resolution of 1950 (Resolution
377) be useful to overcome the effect of a Security Council veto?
2. Formulate the arguments for and against the development of international law
to make lawful at least some humanitarian interventions without a Security
Council Resolution.

u explain the debate about the law relating to humanitarian intervention
u understand the doctrine concerning the ‘responsibility to protect’
u discuss the significance of the debate concerning the right of humanitarian
intervention without Security Council authorisation.
9.7 Rules constraining the sort of force permissible
Core text
¢ Mansell and Openshaw, Section 8.7 ‘Rules constraining the type of force
permissible’.
¢ Wallace and Martin-Ortega, Chapter 12 ‘The law of armed conflict and

international criminal law’.
As we observed at the beginning of this chapter, historically international law was
more concerned with the rules of warfare, that is how wars are to be fought, than with
the question of when, if ever, it was permissible to go to war. In a further development
because wars between states became less common whereas civil strife increased,
rules relating to the use of force came to be concerned with armed conflict rather
than confined to war. Because this question of international humanitarian law will also
receive mention in the chapter on human rights, this section will be brief. As we have
also said, the rules of international humanitarian law are to be found primarily in the
four Geneva Conventions of 1949, and the Hague Conventions of 1899 and 1907. The
two sources are concerned with different dimensions of the rules of armed conflict.
The Hague Conventions are primarily concerned with the methods and means of
warfare, and limiting (though not to a very great extent) the sorts of ‘acceptable’
weapons. The Geneva Conventions have as their central concern the protection of
persons who are not participating in the armed conflict or who have ceased to do
so, whether because of injury or surrender. It is sometimes said that ‘Hague law’
encompasses the laws of war or the law of armed conflict, whereas ‘Geneva law’ is
concerned with humanitarian law.
Underlying all of the rules are the principle of humanity and that of the protection of
non-combatants and civilians. As it suggests, the principle of humanity is intended to
ensure that individuals are treated humanely in all circumstances. Although ‘humane
warfare’ might seem an oxymoron, it is not. In essence it means that any violence
not justified by ‘military necessity’ is prohibited by the law of armed conflict. In
particular if violence or destruction is unnecessary, disproportionate, indiscriminate
or intended to spread terror it will not meet the criteria of lawful armed conflict.
Similarly, particular kinds of weapons are unlawful in their use. Both chemical and
biological weapons are incompatible with international law while the use of nuclear
weapons remains apparently unprohibited, at least in some imaginary scenarios,
according to the ICJ. Conventional weapons may be unlawful if those weapons are
disproportionately inhumane (such as ‘dum-dum’ bullets, designed to expand upon
impact, or, arguably, anti-personnel land mines).
The four Geneva Conventions were drafted after the Second World War, but they
drew upon earlier international law developments. The first Geneva Convention is the
Convention for the Amelioration of the Condition of the Wounded and Sick in Armed
Forces in the Field and this was the natural successor to the Geneva Convention of
1864 which had a similar name. The second Convention developed the first to provide
similar protection for those concerned with maritime warfare, that is those wounded,
sick or injured at sea or shipwrecked. The third concerned prisoners of war and was
based upon the Prisoners of War Convention of 1929, while the fourth was the Geneva
Convention Relative to the Protection of Civilians in Time of War. This in turn was
developed from the draft Tokyo Convention of 1934. In excess of 180 states are party to
these Conventions, which are therefore unarguably customary international law for
any state which is not a party.
Supplementing the Geneva Conventions are two Protocols of 1977, each with more
than 150 parties. These provide enhanced protection for, in the first Protocol, victims
of international armed conflicts, and in the second, victims of non-international armed
conflicts.
It is probably accurate to state that until the aftermath of the US-led invasion of Iraq
in 2003, no international lawyer considered that the Geneva Conventions were other
than binding on all parties to any conflict. It was surprising, therefore, to hear some
lawyers representing the Bush administration suggesting that as neither the Taliban (in
Afghanistan) nor members of Al-Qaida were parties to the Conventions, they were not
entitled to claim their protection. This seems demonstrably wrong. The Conventions
were for the protection of all, not simply nationals of states whose governments had
ratified the Conventions. The principle of humanity is of universal application and the
suggestion by the US administration that the Geneva Conventions could be described
as ‘quaint’ was rejected forcefully by both academic and political opinion.
Since the Geneva Conventions and their Protocols the most important developments
in this field have been the development of the ad hoc tribunals created by the Security
Council, namely the International Criminal Tribunal for the Former Yugoslavia (1993)
and the International Criminal Tribunal for Rwanda (1994) intended to try international
crimes committed in those two states; and the International Criminal Court, the
Statute of which was completed in 1998 and which came into force in 2002. These
developments are dealt with in more detail in Chapter 10. Suffice here to state that the
United States is not a party to the Statute and, while George W. Bush was President, did
its best to impede the development of the Court. (This is further discussed in Chapter
11.) Both the Tribunals and the Court are concerned to criminalise conduct which is in
breach of humanitarian law.
One important development concerning the sort of force permissible in international

law is the development of unmanned aerial vehicles (colloquially known as ‘drones’).
Here it is relevant to bear in mind Additional Protocol 1 of 1977 to the Geneva
Conventions of 1949, Article 35(1) and (2) of that Protocol state as basic rules that:
1. In any armed conflict, the right of the Parties to the conflict to choose methods or
means of warfare is not unlimited.
2. It is prohibited to employ weapons, projectiles and material and methods of

warfare of a nature to cause superfluous injury or unnecessary suffering.
This Article, together with Article 36, is of clear relevance to drones.
Further, as will be appreciated, drones are used extensively over and beyond any
armed conflict – particularly for the purpose of ‘targeted extra-judicial killings’.
In July 2018 the UK All Party Parliamentary Group on Drones released a significant
Report – ‘The UK’s use of armed drones’.
http://appgdrones.org.uk/wp-content/uploads/2014/08/INH_PG_Drones_AllInOne_v25.pdf
Of particular relevance is Chapter 2 –‘Legal norms and ethics – an erosion of standards?’
It will have been observed that this section is concerned with the rules constraining
the sort of force permissible in warfare. It is clear that when, in January 2020, the
USA assassinated the Iranian General in Iraq by rockets fired from drones, the USA
was not at war either with Iran or Iraq. Quite what the effect of this is on the question
concerning the legality of the use of drones (which the USA has also used extensively
in Pakistan) is a question as yet unresolved.
Summary
It is clear that the means of warfare are not unconstrained by law. Rules constraining
both conduct and means in armed conflict have developed to the point where they
are not only widely ratified but they must also be accepted as customary international
law. In spite of US resistance the development of the International Criminal Court
reflected the views of most states to the effect that an independent international
tribunal may often be the appropriate forum in which to try those charged with
international crimes.

u explain the basis and effect of rules constraining the sort of force permissible
(when it is permissible).

Question 1 ‘International law contained in the Charter of the United Nations
intended to proscribe the use of force in international relations, has proved
inadequate. This is less the fault of the Charter than it is the fault of powerful
member states and their allies who have ignored the Charter when it was thought
that to do so was politically expedient.’
Discuss. (You may, if you wish, confine your answer to one or more examples of the
use of force, arguably in contravention of Charter requirements.)
Question 2 Has the apparent rise in international terrorism posed problems for
international law with which it has been unable to cope? How, if at all, should
international law develop or change in order to respond satisfactorily to the
problems?

Question 1 What is required here is first an explanation of the Charter’s prohibition
on the use of force and the exceptions to that prohibition (Article 2(4), Article 51
and Chapter VII). It is necessary to discuss the main reasons for the failure of these
provisions to prevent the use of force in international relations. In particular the Cold
War, the veto power, and the inability to complete a UN military force should all be
discussed. It is also relevant to address one or more selected situations to exemplify
your argument. These could be drawn from cases where self-defence has been claimed
to justify actions that did not appear to meet the criteria, to cases where it was clearly
possible to consult the Security Council before taking action. Concerning Chapter VII,
examples of where a potential veto persuaded parties to act without Security Council
sanction should be provided and discussed. Both the second invasion of Iraq and the
intervention in Kosovo are important.
You might then consider whether ‘fault’ is an adequate or accurate attribution to the
acts of powerful states and their allies. What alternatives exist if the Security Council is
unable to act?
A conclusion might consider the limitations of any attempt to constrain states in

their pursuit of what they perceive to be their best interests by charter, treaty or
convention. This is a crucial recognition that the power of the most powerful can only
be limited by consent.
Question 2 This answer might begin by considering whether there has in fact been a
real rise in international terrorism (including a discussion of how it might be defined)
before going on to consider the implications in either case. In turn this should lead
to a consideration of traditional responses to international terrorism in international
law. Criminalisation and individual responsibility has been a hallmark of this response,
at least where it was possible to detain the perpetrators. It might be argued that the
International Criminal Court would and should be the obvious development of this
response.
Nevertheless it is clear that such a response, though relevant, may not be adequate.
Thus it is necessary to consider other responses to international terrorism both before
and after the attack on the Twin Towers in 2001. A discussion of the Israeli response
to the hijacking of the Air France aircraft taken to Entebbe, Uganda would highlight
both the doubtful legality of a forceful reaction as well as its possible legitimacy if the
response is necessary and proportionate. It should be observed that there are few
states equipped to mount such a response.
The US response to the attack on the Twin Towers then requires consideration. This
involves a discussion of the limited use of the Security Council, the question of state
responsibility and a possible requirement of proportionality. Perhaps by reference
to the National Security of the United States of America document the position
proclaimed by the USA may be critically considered – including its assertion of a right
of ‘pre-emptive self-defence’. What will again become clear is that possible responses
to acts of international terrorism will depend not only upon international law but
upon the military capability of the state subject to such an attack. The significance of
this fact for international law needs to be observed.
Notes
10 Human rights in international law
Contents
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 170
10.1 What are human rights? . . . . . . . . . . . . . . . . . . . . . . . . 171
10.2 The politics of human rights . . . . . . . . . . . . . . . . . . . . . . 173
10.3 The International Bill of Human Rights . . . . . . . . . . . . . . . . . 179
10.4 Principal international human rights treaties . . . . . . . . . . . . . . 183
10.5 Regional protection of human rights . . . . . . . . . . . . . . . . . . 186
10.6 The International Criminal Court . . . . . . . . . . . . . . . . . . . . 192

Introduction
There is a popular view that there is a world of difference between theorising about
human rights and drafting grand charters, covenants and conventions on the one
hand, and actually working to ameliorate the unnecessary suffering of mankind on
the other. And it remains true that it is almost impossible to judge the effect (if any)
of the work and effort manifested in many human rights documents, particularly
those emanating from the United Nations. This fact should alert us to the realisation
that the concept of human rights is something more than agreed means by which
the quality of life of individuals is to be improved. Underlying the apparently neutral
and uncontroversial phrase ‘human rights’ is a foment of philosophical and political
ideas and disagreements that makes it remarkable that any consensus has ever been
reached.
This chapter begins with a discussion of what meaning can be attributed to the phrase
‘human rights’: how they might be defined, by whom and with what significance.
This might seem superfluous in a chapter on the international law of human rights,
but it is not. As we will see, one of the primary difficulties international law has had
in enforcing human rights arises from difficulties in achieving accepted definitions.
Having observed these problems we will proceed to consider the politics of human
rights. This section ought to suggest that the way in which different states, different
governments and different peoples and religions seek to define human rights depends
upon their political perspectives. It will be suggested that the end of the Cold War
and the proclaimed triumph of liberal capitalism had, at least until recently, directly
affected perspectives upon human rights. What this has meant, has been much
greater emphasis upon so-called civil and political rights, at the expense of economic,
social and cultural rights. But of course this distinction itself reflects different political
ideologies.
Having provided the background to the international law of human rights we will next
consider the role of the United Nations in the protection of human rights through
the ‘International Bill of Human Rights’, that is, the Universal Declaration of Human
Rights (UDHR) and the two covenants of 1966: the International Covenant on Civil
and Political Rights (ICCPR) and the International Covenant on Economic, Social and
Cultural Rights (ICESCR). The UN has also been responsible for promoting a number of
other important human rights conventions and these too will be discussed. In turn
this gives rise to the question as to why regional regimes of human rights protection
should have been necessary to supplement the work of the United Nations. Of course
we will conclude that the question of enforcement is central to the law of human
rights and this might be more easily achieved on a regional rather than world-wide
basis.
The chapter will conclude with a discussion of what has been suggested to be a crucial
and developing area of human rights protection, which is the role of the International
Criminal Court.
Whatever conclusions we reach on the international law of human rights, one

thing should be quite clear. The ‘rise and rise of human rights’ is probably the most
startling development in international law since the Second World War. In placing
the protection of individuals at the heart of international law the old ‘state-centric’
international law has been changed forever. Perhaps the most remarkable effect
of this has been on the fundamental concept of sovereignty. In the 21st century no
recognised state would argue that the question of its treatment of its own nationals
is a matter of only domestic concern. (The self-proclaimed, but unrecognised Islamic
State within Syria and Iraq clearly would reject this proposition.) The role of non-
governmental organisations (NGOs) in promoting this internationalisation of human
rights has also been unprecedented.
Public international law 10 Human rights in international law page 171
Learning outcomes
u appreciate the philosophical problems in defining human rights
u appreciate that an understanding of what human rights are and their order of
priority is always political
u understand the meaning and scope of the provisions of the UDHR
u recognise the significance and limitations of the UDHR
u understand the reasons for the drafting of two International Covenants on
Human Rights
u explain the enforcement measures that each Covenant contains
u explain the role of the UN in standard setting and drafting human rights treaties
u understand the need to consult reservations before coming to conclusions about
the efficacy of such treaties
u understand the significant achievements of the ECHR in the realm of the
protection of civil and political rights
u understand the nature and scope of the problems facing the ECHR regime in the
21st century
u appreciate the controversial nature of the effectiveness of enforcement
u explain the role of regional regimes in the protection of human rights
u explain the significance of the differences between international and regional
protection of human rights
u compare and contrast different regional systems for human rights protection
u explain the basis and effect of a claim for the right of democratic government
u understand the role, significance and limitations of the International Criminal
Court in the protection and promotion of human rights.
10.1 What are human rights?
Core text
¢ Mansell and Openshaw, Section 6.1 ‘Introduction’ and Section 6.2 ‘What are
human rights?’.
¢ Wallace and Martin-Ortega, Chapter 11 ‘International human rights’.
Practical lawyers might question the need for this section, and the next. Here we are
attempting to provide an understanding of the meaning of human rights without
which any appraisal of the role and effect of the international law of human rights is
impossible. It is of course very difficult to isolate the concept of human rights from
international law in general and it will be argued that the two are not really separable.
The political and ideological world that dictates international law also defines the
reality of human rights. In this section there are two separate but related questions
that need to be raised. The first requires us to understand what is meant by ‘human
rights’ and the second considers whether they must be seen as time and culture
specific, or whether they are, as is generally asserted, universal. The answers to these
questions have significant implications.
As to the first question, it is immediately clear that the concept of human rights has
close links with natural law – the theory that argues that beyond the laws created
by people there are natural or divine laws with which created laws must conform.
With a divine explanation there can be no rational debate. Religion is about faith and
not susceptible to either proof or disproof through reason. The US Declaration of
Independence of 1776 stated the natural law assertion in these terms:
We hold these truths to be self-evident: That all men are created equal; that they are
endowed by their Creator with certain unalienable rights; that among these are life,
liberty, and the pursuit of happiness.
Such an assertion of divine law is however only possible where the constituency to
which it is addressed is less than religiously diverse. Clearly when the UDHR was being
drafted not all participants would have accepted such a statement – and certainly not
the USSR with its state commitment to atheism. The alternative that was adopted was
to make an attempt at a secular assertion of natural rights (arguably something of a
paradox), namely with the paragraph:
Whereas recognition of the inherent dignity and of the equal and inalienable rights of
all members of the human family is the foundation of freedom, justice and peace in the
world…
There are some problems with such an approach. It is an assertion without evidence
and is simply unprovable. On the other hand it may be argued that the authority of the
UDHR derives not from the dubious appeal to reason but from the agreement of the
international community, notwithstanding the eight abstentions. It is this agreement
that replaces the divinity in the document. Additionally there can be no doubt that
‘human rights’ exist as a social fact. By this I mean that, although quite how any thing
may be proved to be a human right remains unresolved, the reality is that human
rights obtain their meaning from the fact that they receive constant recognition in the
language and effect of international diplomacy and relations.
Self assessment question

Is the concept of natural law necessary for a concept of universal human rights?
The second difficulty in the concept is related to the first. The UDHR describes itself as
universal, yet paradoxically almost everyone would agree that as drafted it is clearly
time and place specific. It was a response to a totalitarian and racist Nazi regime, and
the desire to prevent a recurrence of such a phenomenon underlay the post-war
reaction. Furthermore, although its provisions may seem largely unexceptionable,
some, particularly those directed to economic rights, certainly would not find favour
with many post-Cold War governments in the West. And as Cassese observed:
On the whole, the view of human rights expressed in it is Western. More space and
importance are allotted to civil and political rights than to economic, social, and cultural
rights, and no mention at all is made of the rights of peoples. The position taken with
regard to colonised peoples, who had been partially or completely denied their right to
freedom, was purely formal. Nor did the Declaration say anything specific about economic
inequalities between States (although today many commentators cite with increasing
frequency Article 28 whereby ‘Everyone is entitled to an international and social order
in which the rights and freedoms set forth in the Declaration can be fully realised’). In
addition one could note that the Declaration did not consider the fact that some States,
being underdeveloped, faced special problems when trying to guarantee certain basic
rights, such as those to work, to education, to suitable housing etc.
Consequently there has been a continuing debate between so-called ‘cultural

relativists’ and ‘universalists’, with the former arguing that the concept of human
rights must necessarily differ in different cultures (hence nothing can be written in
stone as irrevocably permanent) and the latter that the concept of human rights
makes sense only if they are granted to all individuals regardless of culture and
because only of their membership of the human race. The former seems reasonable
but the latter desirable.
My own conclusion (with which you may reasonably disagree) is that this debate
is less important than it might seem. It will only seem crucial if one believes that
the concept of human rights carries with it some ‘magical’ quality over and beyond
existence as social fact. In my view the importance of the concept lies in the weight
implied by international acceptance of the appellation, and much of the struggle
for human rights is about seeking this acceptance. This seems particularly clear with
so-called ‘third generation rights’ (the first generation rights being civil and political
rights and the second, economic, social and cultural rights – though this designation
itself may be seen as political). Third generation rights are said to include group rights
as opposed to individual rights, exemplified by the claimed right to development and
the right to self-determination. In my view, whatever the objections to these rights
being described as ‘human rights’ (and there are many), once there is overwhelming
acceptance by the international community that they are human rights, it makes little
sense to oppose the categorisation.† †
If you are looking for a
label for this perspective
For further argument on this point see Mansell, W. and J. Scott ‘Why bother about a
it probably comes within
right to development?’ (1994) 21 Journal of Law & Society 171 .
‘constructivism’ – but if you
are not, it is unimportant.
Activity 10.1
Why do some people argue that cultural relativism undercuts the whole subject of
human rights and why do others think it inconsequential?
Summary
The question of the philosophical meaning of human rights has preoccupied many,
while others have attempted to use the term in order to lend weight to demands.
Some have argued that ‘human rights’ must be clearly definable and define both
the holders of the rights and those having reciprocal duties to provide them. This
reasonable but narrow view, much favoured by Western governments and legal
philosophers, receives much less approval from developing states, which have used
the phrase to emphasise that their economic demands are demands as of right and
not requests for charity.
The problem of meaning can (at least to some extent) be avoided by accepting
‘human rights’ as social facts existing because of belief, but no less real because of this.
1. Define ‘human rights’. Compare and contrast the philosophy of human rights
with the politics of human rights.
2. Should the UDHR be seen as a politically neutral document? What are the
implications of your answer?

u appreciate the philosophical problems in defining ‘human rights’.
10.2 The politics of human rights
Core text
¢ Mansell and Openshaw, Section 6.3 ‘The politics of human rights’.
The protection of human rights is often portrayed as an objectively desirable and

politically neutral goal. For many of us this position is unexceptionable and the
thought that the protection of human rights is imbued with political premises and
ideology seems inherently unreasonable. Yet such is the case. The promotion of
human rights is often portrayed (at least in the West) as one of the gifts of democratic
states to those less fortunate. As was argued in the last section, the history of human
rights is not nearly as extended as it is often suggested. The contemporary emphasis
upon human rights scarcely predates the Second World War. It was primarily because
of the revulsion and incredulity that a Second World War had come so shortly after
the first, that a way of talking about a different world found the language of individual
rights useful.
The UDHR was very largely the product of the victorious allies, and particularly the
work of the USA. But it was not an isolated project. At the end of the War the USA had
laid plans for the world it hoped to see. This was one confirming economic liberalism
and creating international financial institutions to encourage free trade and a ‘United
Nations’ (originally to have been called ‘Associated Powers’) to provide global security
and stability. Human rights was but one aspect of this overall plan, even if it did
provide ‘the moral foundation’. The preparation of the UDHR was not, even then, an
easy matter. There were three obvious problems and many more less obvious ones.
The first of the obvious was that the disparity in ideological outlook between the first
world and the second (including the so-called socialist states of the USSR) in terms
of the centrality of the individual with civil and political rights seemed insuperable.
The second was that for states with an Islamic population (in this case, Saudi Arabia)
the idea of a right to change religion was unacceptable and indeed the very idea of
a Universal Declaration seemed incompatible with the supremacy of the Koran. The
third was that for a state such as South Africa, a right of participation in government
and free movement of people was unacceptable (let alone the prohibition on
discrimination). Nevertheless the Declaration was accepted by the General Assembly
in Paris in 1948 by a vote of 48 for, none against and eight abstentions (the Soviet Bloc,
Saudi Arabia and South Africa).
In retrospect, however, what seems most remarkable in the document was the
inclusion of what would come to be known as economic and social rights. Amazingly,
these provisions received the support of (as Kirsten Sellars puts it) ‘everyone from
Soviet Stalinists and Latin American socialists to British Keynesians and American
Democrats’ (Sellars, K. The rise and rise of human rights. (Stroud: Sutton Publishing,
2002) [ISBN 9780750927550], p.21). These provisions, which will be considered in
the next section, would, in the 21st century, enjoy very little popular support in the
governments of states pursuing a liberal economic agenda. Their very presence had
repercussions that were unforeseen.
The objectivity of the concept of human rights was almost immediately called into
question by the purposes to which human rights discourse was being put. Human
rights debate became largely determined by the propaganda advantages that either
party to the Cold War could gain from it.
The earliest days of the United Nations were clearly dominated by the victorious
allies of the Second World War. Their status lent them a moral superiority which
they exploited in the organisation. Even then however there were crucial ideological
battles between the USA and its allies and the Soviet Union and its allies. Probably to
the surprise of Western delegates they found it difficult to hold the high ground of
protecting civil and political human rights in the face of concerted opposition. Their
superiority was attacked both by the ‘second’ socialist world and the ‘third’ (poor)
world, initially from two directions. Colonialism came to be vilified, as the proclaimed
right of self-determination gained prominence and dominance. Colonialism also came
to be identified with something approaching racism – white colonial masters and non-
white colonial peoples. In the 1950s and 1960s respect for civil and political rights was
tempered by this reality and by the emphasis placed by the so-called socialist states
upon economic rights supposedly directed to ensuring the security of individuals in
their ability to acquire food and housing.
The end of the Cold War and the demise of the USSR together with the end of the
process of decolonisation very clearly altered human rights rhetoric in the corridors of
power. As free market economics and its accompanying ideology gained ascendancy,
so economic rights declined, at least in so far as they were incompatible with the
policies sanctioned, blessed and often insisted upon by the international financial
institutions. The African Charter on Human and Peoples’ Rights, 1981, with its emphasis
upon social duties and peoples’ rights based upon collective community interest, was
and is barely compatible with the new orthodoxy.
Thus a first conclusion about the politics of human rights must be that the subjects of
popularity are negotiable depending upon competing or dominant ideologies. The
popular economic rights represented in a claimed right to a New International Economic
Order, or even a human right to development, now seem hopelessly unfashionable. Need
has not changed, but the way in which it is talked about certainly has.
What, if anything, do you think are the significant differences between civil and
political rights on the one hand, and economic social and cultural rights on the
other?
Another fact that is inferable from the above is that a state’s rhetoric (the way it
talks) about human rights will reflect its own political ideology. This is obvious but
important. There is a clear tension between the proclaimed universality of human
rights and the particularity with which they are chosen. Liberal democratic states
such as the United States and many countries within Western Europe placed emphasis
upon the civil and political rights exemplified in the European Convention on Human
Rights. The social provisions found within the Universal Declaration were considered
inappropriate for comparable protection or, in some states, even recognition. Such
states effectively either ignored collective rights (as in the case of the United States),
or to a large extent merely paid them lip service (as is the case of the signatories of the
European Social Charter). The view that came implicitly to be promulgated was that
civil and political rights were legal and justiciable, while others were at best desirable,
and at worst utopian or even counter-productive because of their threat to the
perceived productive free market economy.
Collectivist states, of course, attempted to counter these views by asserting the

importance of distributive justice and the need to ensure the participation of
individuals in the collective life of the state. Regrettably, though a level of security was
provided for citizens by many states (a fact which has come to be accepted only since
the decline in the living standards of the poorest people living in the former USSR),
such were the feelings of insecurity of those governments that the governed could
not be trusted with the civil and political rights which were portrayed as incompatible
with a ‘socialist’ property regime.
Meanwhile, with the rise of the so-called Asian Tiger Economies, a third perspective
on human rights protection was developed. This suggested that the protection of
individual civil liberties might be incompatible with the needs of development.
Malaysia in particular took the view that ‘the Asian tradition’ led to positions on
human rights which could not be reconciled even with the Universal Declaration. If
these arguments seem manifestly specious to the cynical among us, and designed
only to justify wilful human rights abuses, this is less important (for a sense of
comprehension of the human rights world) than the recognition that these arguments
reflect a particular power structure with particular goals. This is a power structure
dedicated to economic ‘progress’ (that is, increased economic growth) both for
its own sake and for the sake of national pride. (It is of course ironic that this latter
ambition is itself evidence of continuing feelings of insecurity, if not inferiority.)
Whether or not such ‘progress’ is ever adversely affected by protecting such rights as
those concerned with freedom of speech or freedom from arbitrary detention remains
highly questionable.
Power and law in the UN

Another factor in the politics of human rights has been the distinction in the
effectiveness of international institutions between institutions operating under the
principle of sovereign equality, and hence one vote per nation (the General Assembly),
and institutions where the power of each voting state affects the strength of its vote (the
Security Council with its five permanent members, or the International Monetary Fund
or the World Bank where votes are weighted in accordance with economic strength). As
the numbers in the General Assembly grew, so General Assembly Resolutions became
increasingly independent of the wishes of the great powers. Interests diverged with the
interests and pre-occupations of the ‘underdeveloped’ newly admitted states being
very different to those of the majority of founder members. This in turn affected the
status of General Assembly Resolutions. One writer (McWhinney, E. ‘International law’ in
Hawkesworth, M. and M. Kogan (eds) Encyclopaedia of government and politics. (London:
Routledge, 2002) [ISBN 9780415030922]) writing just as the Cold War came to an end,
pertinently observed:
The Third World majority in the United Nations, and their supporting jurists, argued that
the General Assembly resolutions – adopted, as they invariably were, by overwhelming
majorities, with only a few Western states holding out in the form of negative votes or
abstention – effectively made new law. UN General Assembly resolutions would qualify,
thereby, as new sources of international law, side by side with traditional or classical
sources. As an abstract, a priori, legal issue, this debate over the new sources remains
unsolved. Western and Soviet jurists have conceded, equally, that resolutions of the
General Assembly, if adopted unanimously or at least with substantial intersystemic
consensus – Western bloc, Soviet bloc and Third World [written before the demise of
the Soviet Union] – may acquire normative legal quality in their own right. This has
clearly become the case by now, with most of the General Assembly resolutions on
decolonisation, and self-determination of peoples, sovereignty over natural resources,
and nuclear and general disarmament, however intransigent the last-ditch resistance of
predominantly Western members may have been at the actual time of their adoption.
This statement now needs to be read with discretion. Although partially true, the
failure (in effect though not in passage) of both the Resolution concerning the ‘New
International Economic Order’ and that agreeing to a ‘human right to development’,
each of which received overwhelming assent, suggests the continuing ability of the
West generally and the USA in particular to deny the status of law to unwelcome
resolutions. It is certain that mere numerical superiority in terms of votes cast has
brought little lawmaking power to the majority. Rather, power has moved decisively to
the Security Council where democracy takes second place to the acknowledgement of
power – or at least power as it was perceived in 1946. The role of the General Assembly
remains as defined in the Charter: to make recommendations to its Members or to
the Security Council (Article 11(1)). Article 12 provides that while the Security Council
is exercising ‘in respect of any dispute or situation the functions assigned to it’ by
the Charter, the General Assembly shall not make any recommendations with regard
to that dispute or situation unless the Security Council requests it. The power to
recommend rather than to decide belongs to the General Assembly. Thus the final
ability to define human rights content does not lie with the majority of states.
The international financial institutions

But what of the role of the international financial institutions themselves in the politics
of human rights? The international financial institutions of the World Bank and the
International Monetary Fund, intended to prevent subsequent international economic
recession and to promote development, were created in the immediate post-war period
outside of the United Nations. If the United Nations was to be the institution promoting
friendly relations among nations based upon the principle of sovereign equality, the
World Bank and the International Monetary Fund were, even if their aims were no less
utopian, founded upon what was seen as hard realism. That they were both to be based
in Washington, the seat of US government, was not coincidental. That power within the
institutions was not democratically apportioned according to the basis of sovereign
equality but according to financial contribution was also crucial. Finally, the intended use
of both institutions to counter totalitarian tendencies, particularly on the left, and even
more particularly of communism, among states was not accidental.
Given these facts, it is obvious that poor states, though they may come to, or have to,
depend upon these institutions in fact, have little say in how they are run or on the
principles upon which they operate. Equally importantly, because many poor states
are governed by a political and wealthy elite, the interests of that state may well
coincide with those of the greatest international financial institutions even if they are
inimical to the interests of the populace as a whole. Either way the effect upon the
politics of human rights is significant.
In essence, the objective of the International Monetary Fund (IMF), as formed in 1944
by a treaty entering into force in December 1945, was to avert any new economic
recession of the kind which had been so devastating in the 1920s and 30s. To this
end, provisions in Article 1 of the IMF’s Articles of Agreement in defining its purposes
provided that the Fund’s aims would include the following:
(2) To facilitate the expansion and balanced growth of international trade, and to
contribute thereby to the promotion and maintenance of high levels of employment
and real income and to the development of the productive resources of all members
as primary objectives of economic policy.
(3) To promote exchange stability, to maintain orderly exchange agreements among

members, and to avoid competitive exchange depreciations.
(5) To give confidence to members by making the general resources of the Fund
temporarily available to them under adequate safeguards, thus providing them with
the opportunity to correct maladjustments in their balance of payments without
resorting to measures destructive of national or international prosperity.
These objectives seem so innocuous, and indeed benign, that it is surprising to

discover the tragedies that they have led to, if not actually caused.
It is from this role of the Fund in correcting maladjustments under adequate

safeguards that many of the complaints from the poor states stem. From 1980, these
‘adequate safeguards’ have, until recently, taken the form of ‘structural adjustment
lending’, an innocuous phrase which has led to endless controversy and no little
misery. There is little consensus on the effectiveness of the prescribed measures. The
policies prescribed are imbued with a capitalism which eschews state intervention.
Thus many of the past policies which at least appeared to make life possible for the
poorest section of the population – such as subsidised food, health care and transport
– are anathema to the IMF requirements in granting loans to help indebted countries.
Structural adjustment has as its goal just one central objective – the elimination of
unsustainable indebtedness. The orthodoxy of the IMF is that this can be achieved only
in the recognition of the superiority of the market over central economic planning.
Evidence for this is, in the view of most cynics of structural adjustment (myself
included), very difficult to discover. The so-called Pacific tigers, which are often held up
as evidence, in fact pursued state-led development – at least initially.
The bottom line, however, is that even had these structural adjustment policies
been shown to achieve their limited goal, many might think that the cost of
implementation is simply unacceptably high, with the wrong people (the poorest)
being effectively called upon to repay loans and deficits which have brought them
no benefit whatsoever. Indeed, throughout Latin America and Sub-Saharan Africa and
in many states outside those regions, the period of profligate lending for doubtful
purposes, benefiting overwhelmingly the political elite, led to crises where the very
people who had seen no benefit were called upon to make sacrifices to overcome
both debt and deficit. The policies required in structural adjustment were no more
and no less than a return to economic liberalism – a policy which had frequently been
rejected in order to ensure a level of social cohesion and protection of the poorest.
Thus, when the peoples of the poor nations of the world look at the IMF they see
an institution whose purpose is to resolve balance of payment difficulties, instead
concentrating its attention upon poor states and making demands of them which
effectively ensure that they enforce economic policies which, while clearly not in the
interests of their own poor, are just as clearly very much in the interests of those with
power within the IMF. The forced opening of the economy to private investment,
national or international, allows unrestricted flows of capital to or from states as
the market and profit require. Whatever one’s views of economic ideology, what
is incontrovertible is the destructive effect of such policies upon the obligation to
promote economic, social and cultural rights.
And while many thought that these IMF policies were generally to be confined to the
‘poor’ countries, the recent world economic turmoil affecting countries rich and poor
alike has revivified substantial elements of those structural adjustment policies. Even
within Europe, the conditions attached to bail-outs by the IMF for such countries as
Greece, Ireland, Portugal and Italy are remarkably similar to those traditionally asked
of countries of the global South with balance of payments problems. Whatever the
success of such policies, an incontrovertible fact remains, namely that the result will
be a transfer of resources away from those most dependent upon social spending and
a challenge to the social welfare economic policies that have been pursued in much of
continental Europe.
Why are international financial institutions of relevance to the international
protection of human rights?
As has been seen yet again in the recent rounds of World Trade Organization (WTO)
talks, international trade policies have traditionally favoured ‘developed’ economies
over ‘underdeveloped’ ones. Primary commodity export is much more vulnerable
to fluctuating market prices than manufactured or processed exports. Fluctuating,
and often declining, prices made the process of economic planning hazardous in the
extreme, necessitating subsequent IMF intervention.
Trade policies are seldom perceived to affect the protection of human rights. This
is regrettable. There is an obvious relationship between trade and income, and the
terms of world trade will dictate economic policies and investment decisions. Poor
countries have enjoyed little autonomy in determining either. In the words of the
back cover of Belinda Coote’s The trade trap: poverty and the global commodity markets
(Oxford: Oxfam, 1996) [ISBN 9780855983512] we must consider:
...how countries that depend on the export of primary commodities, like coffee or
cotton, are caught in a trade trap: the more they produce, the lower the price falls on the
international market. If they try to add value to their commodities by processing them,
they run into tariff barriers imposed by the rich industrial nations. To make matters worse,
they have to compete with subsidised exports dumped on the world market by rich
surplus-producing countries.
The politics of trade, then, affect the political reality of human rights protection.
It may begin to be apparent that the politics of international law and human rights
may (and should) be seen as intimately connected with economic and political
ideology. This will be considered further later.
Activity 10.2
‘A consideration of the political aspects of international human rights protection
suggests that the very concept of human rights is political. The implications of this
conclusion are substantial.’
Discuss.
Summary
This section has challenged the assumption that ‘human rights’ is a politically neutral
concept. The argument is that what dictates the terms of the debate about human
rights is very often the political interests and ideology of those making or rejecting
demands. In addition we see the importance again of the division between civil and
political rights on the one hand and economic rights on the other. It is suggested
that the West has been much more concerned with the former while often making
protection of the latter exceedingly difficult.
1. Do you think that human rights should be divided between civil and political
rights on the one hand and economic, social and cultural rights on the other?
Why?
2. Compare and contrast the philosophy of human rights with the politics of
human rights.

u appreciate that an understanding of what human rights are and their order of
priority is always political.
10.3 The International Bill of Human Rights
Core text
¢ Mansell and Openshaw, Section 6.4 ‘The International Bill of Human Rights’.
¢ Wallace and Martin-Ortega, Chapter 11 ‘International human rights’, pp.267–96.
The so-called International Bill of Human Rights came into existence as a result of the
wording of the UN Charter. While the references in the Charter to human rights are
limited, they are nevertheless significant and provide the basis for what followed.
Its preamble reaffirmed the ‘faith in fundamental human rights, in the dignity and
worth of the human person, in the equal rights of men and women’, while among the
purposes and principles of the UN (in Article 1(3)) is the following:
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.
This in turn is reinforced by Articles 55 and 56, providing in 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:
higher standards of living, full employment, and conditions of economic and social
progress and development;
solutions of international economic, social, health, and related problems; and

international cultural and educational co-operation; and
universal respect for, and observance of, human rights and fundamental freedoms for all
without distinction as to race, sex, language, or religion.
Article 56 states that:
All Members pledge themselves to take joint and separate action in co-operation with the
Organization for the achievement of the purposes set forth in Article 55.
Article 55 is noteworthy for the way in which it combines the promotion of human
rights and fundamental freedoms with economic and social goals. Article 68, within
Chapter X of the Charter setting up the Economic and Social Council (ECOSOC), gives
that body the task of establishing commissions in economic and social fields and for
the promotion of human rights. Initially it was intended that the Bill of Human Rights
should consist of three documents – a declaration, a convention and a document
concerned with implementation. On 10 December 1948 the General Assembly sitting
in Paris adopted the UDHR and also asked the Commission on Human Rights (a body
created by ECOSOC in 1946) to prepare drafts of the other two documents. From the
outset there was an important question of the relationship between proclaimed
civil and political human rights and economic, social and cultural rights. As we saw
in the last section, the debate was to a large extent ideological. All agreed that all the
rights were interrelated but quite how the relationship was to be incorporated in
legal documents was fiercely contested. In the sixth session of the General Assembly
(1951/52) it was resolved to request two separate Covenants, one concerning civil
and political rights and the other economic, social and cultural rights, but with as
much duplication as possible. The Resolution also required an article providing that
‘all peoples shall have the right of self-determination’. It was not until 1966 that the
drafting of these covenants was complete, and they entered into force almost 10 years
later. As at December 2015, the ICCPR had 168 ratifications and the ICESCR 164.
One final general point should be made. While the Charter paved the way for the
promotion and protection of human rights, as is often pointed out, the only human
right to explicitly derive directly from the Charter is the right to non-discrimination in
the provision and protection of fundamental rights.
10.3.1 The Universal Declaration of Human Rights

The UDHR was explicitly not intended to be a legal document. Nevertheless, because
of the disparate nature of the members of the initial United Nations (much less so than
now but significant even so, with democratic states, communist states, Islamic states
and an apartheid state) it was still difficult to find words to which all states could agree.
Of course because it was merely a Declaration, legal precision was not required – these
were not articles that a court would have to define. Although Cassese suggests that the
task involved finding the lowest common denominator of all states (that is, the things
to which all could agree), as we have seen the eight abstentions suggest that success
was limited. But the UDHR remains a remarkable document and nearly all states
would now argue that it is almost entirely consistent with their aims and aspirations.
In retrospect what perhaps seems most surprising is not that the ‘communist’ states
merely abstained from, rather than voting against, a Declaration that included many
civil and political rights that they obviously had no intention of accepting; but rather
that the radical economic, social and cultural rights were acceptable to the United
States in particular. Such has been the widespread acceptance of the Declaration
that many of its provisions are regarded as having the status of customary rules,
although this was never the intention. In the Proclamation of the Teheran International
Conference on Human Rights of 1968 it was unanimously accepted that ‘the Universal
Declaration...states a common understanding of the peoples of the world concerning
the inalienable and inviolable rights of all members of the human family and
constitutes an obligation for the members of the international community’.
The UN Centre for Human Rights usefully summarises the provisions of the UDHR as
follows:
Article 1 All human beings are born free and equal.
Article 2 Everyone is entitled to the same rights without discrimination of any kind.
Article 3 Everyone has the right to life, liberty, and security.
Article 4 No one shall be held in slavery or servitude.
Article 5 No one shall be subjected to torture or cruel or degrading treatment or

punishment.
Article 6 Everyone has the right to be recognized everywhere as a person before the law.
Article 7 Everyone is equal before the law and has the right to equal protection of the law.
Article 8 Everyone has the right to justice.
Article 9 No one shall be arrested, detained, or exiled arbitrarily.
Article 10 Everyone has the right to a fair trial.
Article 11 Everyone has the right to be presumed innocent until proven guilty.
Article 12 Everyone has the right to privacy.
Article 13 Everyone has the right to freedom of movement and to leave and return to
one’s country.
Article 14 Everyone has the right to seek asylum from persecution.
Article 15 Everyone has the right to a nationality.
Article 16 All adults have the right to marry and found a family. Women and men have
equal rights to marry, within marriage, and at its dissolution.
Article 17 Everyone has the right to own property.
Article 18 Everyone has the right to freedom of thought, conscience and religion.
Article 19 Everyone has the right to freedom of opinion and expression.
Article 20 Everyone has the right to peaceful assembly and association.
Article 21 Everyone has the right to take part in the government of one’s country.
Article 22 Everyone has the right to social security and to the realization of the economic,
social and cultural rights indispensable for dignity.
Article 23 Everyone has the right to work, to just conditions of work, to protection against
unemployment, to equal pay for equal work, to sufficient pay to ensure a dignified
existence for one’s self and one’s family, and the right to join a trade union.
Article 24 Everyone has the right to rest and leisure.
Article 25 Everyone has the right to a standard of living adequate for health and well-
being, including food, clothing, housing, medical care and necessary social services.
Article 26 Everyone has the right to education.
Article 27 Everyone has the right to participate freely in the cultural life of the community.
Article 28 Everyone is entitled to a social and international order in which these rights can
be realized fully.
Article 29 Everyone has duties to the community.
Article 30 No person, group or government has the right to destroy any of these rights.
While I usually think that such summaries are superfluous to this module guide, here
I think it is important in order to appreciate the range of lofty ideals expressed and
the limitations upon the protections that have been afforded since 1948. As we have
suggested already, the economic, social and cultural rights seem to the governments
of many Western states to be entirely anachronistic, while many of the civil and
political rights are regularly abused by most states.
Summary
It is significant that the International Bill of Human Rights is not in the UN Charter. It
took 28 years, from 1948 until 1976, before human rights covenants (legal documents)
entered into force. The Charter carried a commitment to the promotion and
protection of human rights but most of the work was left to the Third Committee
of the General Assembly and ECOSOC. The UDHR has received a remarkable level of
support but with different states emphasising the centrality of different provisions.
The intended convention on enforcement was never drafted and such enforcement
provisions as there are, are to be found in the two Covenants.
1. What is the essence of the distinction between civil and political rights and
economic, social and cultural rights?
2. What, if anything, is the current legal status of the UDHR?
3. Critically consider the provisions of the UDHR. Do you consider them merely
time and place specific, or do they have a claim to universal status?

u understand the meaning and scope of the provisions of the UDHR
u recognise the significance and limitations of the UDHR.
10.3.2 The International Covenants on Human Rights

The International Covenants were drafted to give legal effect to the principles contained
within the UDHR. They were drafted by the UN Human Rights Commission which was
set up by the UN as a subsidiary body of the ECOSOC. (This Commission, which in 2006
was converted to the Human Rights Council, has continued to perform important
tasks, in particular through the ‘Universal Periodic Review’ which examines the human
rights record of each member of the UN every four years.) A recent example of the work
done by the Human Rights Council is reported in August 2018, when a UN Independent
International Fact-finding Mission on Myanmar, established by the UN Human Rights
Council in March 2017, reported. It found patterns of gross human rights violations
and abuses that ‘undoubtedly amount to the gravest crimes under international law’
principally by Myanmar’s military, the Tatmadaw, but also by other security forces. See:
www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=23475&LangID=E
The changes in the nature of the drafting committee from when the UDHR was
formulated is immediately apparent in the choice of the first article common to both
Covenants that asserts a legal human right to self-determination – a right that does
not appear, let alone take pride of place in the UDHR. Its primacy reflects the drafting
committee’s determination that decolonisation and anti-racism (Article 2) be at the
forefront of any international human rights concern.
The International Covenant on Civil and Political Rights

The ICCPR guarantees, in addition to those above, rights to life, prohibitions on
torture (and cruel, inhuman and degrading treatment or punishment) and slavery,
rights to liberty and security of the person, the right to freedom of movement,
and rights to freedom of thought, conscience and religion. Because it is a legal
document it is possible for a state to derogate from some obligations if there is an
emergency threatening the life of the nation (Article 4), but not from those regarded
as fundamental. The ICCPR has been ratified by 168 states whose obligations under
the Covenant include an obligation to introduce legal or other measures within
their domestic jurisdictions to give effect to the rights set out and also to provide an
effective remedy for those whose rights under the Covenant are violated.
What is of most interest, however, are the means chosen to give legal effect to the
provisions. Part IV of the Covenant created the Human Rights Committee consisting of
18 elected independent experts (Article 28). Article 40 gave this Committee the primary
task of reviewing state reports (which state parties to the Covenant are obliged to submit
every five years) on the ‘measures they have adopted which give effect to the rights’ of
the Covenant. This review provides for the public questioning of state representatives on
the content of their reports. Fairly clearly such a procedure leaves itself open to abuse,
such as where governments conceal the true state of affairs. The Committee has however
developed a practice which allows individual members to receive reports from human
rights NGOs and to ask questions based upon that information. After questioning the
Committee will give concluding observations which may well be critical. Having said that,
there is little further ‘enforcement’ and states are expected to listen to criticisms and to
correct the situation before the next report in five years time.
Under Article 41 there is a further optional process providing that the Committee
may receive and consider complaints from one or more state party against another
state party alleging that the state complained of is not fulfilling its obligations under
the Covenant. Both the alleging party and the alleged violator must have declared
acceptance of this optional process. No applications have yet been made.
More important is the procedure under the First Optional Protocol, ratified by in excess
of 100 states. As we will see, this is a pale imitation of the provisions for individual
petition contained within the European Convention on Human Rights. The Optional
Protocol allows individual communications with regard to alleged violations of the
Covenant to the Committee (where the victim is a national of a state party to the
Protocol, has exhausted domestic remedies, is not anonymous and the matter is not
currently under another procedure of international investigation or settlement). If the
Committee decides that the communication is admissible it requests comments from
the state concerned and transmits these to the complainant. On the basis of all the
information submitted, the Committee meets in closed session and forwards its opinion
to the complainant and the state. Under Article 42 there may be an ad hoc Conciliation
Committee with the consent of both parties but this is the end of the process.
For the sake of completeness it should be added that there is a Second Optional
Protocol providing for the abolition of the death penalty in the territory of ratifying
states. Eighty-eight states have ratified (as at March 2020).
The International Covenant on Economic, Social and Cultural Rights

If the enforcement measures available under the ICCPR seem extraordinarily weak,
they do however seem powerful in comparison with those available under the ICESCR.
This Covenant might seem to confirm that economic, social and cultural rights really
are the ‘children of a lesser God’. The premise that underlies the ICESCR is that these
rights are not ‘justiciable’ and that the appropriate means for securing them is through
encouragement while recognising a state’s economic constraints. The only supervisory
machinery provisions provide for a reporting process. Parties ‘shall furnish their
reports in stages, in accordance with a programme to be established by the Economic
and Social Council within one year of the entry into force of the present Covenant after
consultation with the States Parties and the specialized agencies concerned’.
Although ECOSOC has the power to transmit these reports to the UN Commission
on Human Rights for scrutiny, in order to make general recommendations ‘or
as appropriate for information’, and may ‘submit to the General Assembly, from
time to time, comments of a general nature’ on state reports, this extraordinarily
inconsequential procedure seems scarcely consistent with the real promotion and
protection of human rights.
Perhaps what is illustrated most clearly is that the range of states within the UN is so
broad that, difficult though it was to draft the UNDHR, it is almost impossible to draft
sensible, legally binding provisions that are relevant to all member states. It is this
reality that has encouraged the development of regional protection mechanisms, to
which we turn after a brief consideration of other UN human rights treaties.
1. Can you conceive of a better way of securing international human rights than
through the existing Covenants?
2. Are there significant differences between the UDHR and the Covenants? What
are they and how might they be explained?

u understand the reasons for the drafting of two International Covenants on
Human Rights
u explain the enforcement measures that each Covenant contains.
10.4 Principal international human rights treaties
Core text
¢ Mansell and Openshaw, Section 6.5 ‘Other principal UN human rights
conventions and bodies’.
In addition to the International Bill of Human Rights there are a number of other
international human rights treaties of the United Nations. Once more, while the texts
of the treaties are clear, the effectiveness of their provisions is difficult to assess. The
usual response to this problem is to take the treaties at face value, to outline their
provisions and to avoid a discussion of effect. If an attempt is made at evaluation,
this is usually done in terms of the importance of the treaties as ‘standard setting’. In
this section we will list the principal treaties and will then look at one in more detail.
Beyond the International Bill of Human Rights are (together with their Protocols, if
any) the following:
u Convention for the Prevention and Punishment of Genocide, 1948. Under this treaty
genocide constitutes an international crime whether committed in times of war or
peace. There is no independent enforcement mechanism
u Convention for the Suppression of Traffic in Persons and of the Exploitation of the
Prostitution of Others, 1950
u Convention on the Status of Refugees, 1951
u International Convention on the Elimination of All Forms of Racial Discrimination, 1965
u International Convention on the Suppression of the Crime of Apartheid, 1973
u Convention on the Elimination of All Forms of Discrimination Against Women, 1979

u Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment,1984
u Convention on the Rights of the Child, 1989
u International Convention on the Protection of the Rights of All Migrant Workers

and Members of Their Families, 1990.
u International Convention for the Protection of All Persons from Enforced

Disappearance, 2007
u Convention on the Rights of Persons with Disabilities, 2007.
With regard to the 1965 International Convention on the Elimination of All Forms of
Racial Discrimination, the following case is of interest: Application of the International
Convention on the Elimination of All Forms of Racial Discrimination (Qatar v United Arab
Emirates) www.icj-cij.org/en/case/172
We will now look at the Convention on the Elimination of All Forms of Discrimination
Against Women. In the words of the UN website www.un.org/womenwatch/daw/cedaw/
The Convention on the Elimination of All Forms of Discrimination Against Women

adopted in 1979 by the UN General Assembly, is often described as an international bill
of rights for women. Consisting of a preamble and 30 articles, it defines what constitutes
discrimination against women and sets up an agenda for national action to end such
discrimination.
The Convention defines discrimination against women as:
‘...any distinction, exclusion or restriction made on the basis of sex which has the effect
or purpose of impairing or nullifying the recognition, enjoyment or exercise by women,
irrespective of their marital status, on a basis of equality of men and women, of human
rights and fundamental freedoms in the political, economic, social, cultural, civil or any
other field.’
By accepting the Convention, States commit themselves to undertake a series of measures

to end discrimination against women in all forms, including:
to incorporate the principle of equality of men and women in their legal system, abolish all
discriminatory laws and adopt appropriate ones prohibiting discrimination against women
to establish tribunals and other public institutions to ensure the effective protection of
women against discrimination to ensure elimination of all acts of discrimination against
women by persons, organisations or enterprises.
The Convention provides the basis for realising equality between women and men
through ensuring women’s equal access to, and equal opportunities in, political and
public life – including the right to vote and to stand for election – as well as education,
health and employment. States parties agree to take all appropriate measures, including
legislation and temporary special measures, so that women can enjoy all their human
rights and fundamental freedoms.
The Convention is the only human rights treaty which affirms the reproductive rights of
women and targets culture and tradition as influential forces shaping gender roles and
family relations. It affirms women’s rights to acquire, change or retain their nationality and
the nationality of their children. States parties also agree to take appropriate measures
against all forms of traffic in women and exploitation of women.
Countries that have ratified or acceded to the Convention are legally bound to put its
provisions into practice. They are also committed to submit national reports, at least every
four years, on measures they have taken to comply with their treaty obligations.
This Convention has now been ratified by 189 nations (as at March 2020), which at
first sight seems remarkable. It would seem that all of these nations are dedicated to
the elimination of discrimination against women. Things are not, however, quite as
they seem. Not only is the list of reservations remarkably extensive but many of the
reservations seem scarcely compatible with the purposes of the Convention.
The stated position of the Committee charged with administering the Convention is
one of concern:
The Convention permits ratification subject to reservations, provided that the reservations
are not incompatible with the object and purpose of the Convention. Some States
parties that enter reservations to the Convention do not enter reservations to analogous
provisions in other human rights treaties. A number of States enter reservations to
particular articles on the ground that national law, tradition, religion or culture are not
congruent with Convention principles, and purport to justify the reservation on that basis.
Some States enter a reservation to article 2, although their national constitutions or laws
prohibit discrimination. There is therefore an inherent conflict between the provisions
of the State’s constitution and its reservation to the Convention. Some reservations
are drawn so widely that their effect cannot be limited to specific provisions in the
Convention.
Impermissible reservations
Article 28, paragraph 2, of the Convention adopts the impermissibility principle contained
in the Vienna Convention on the Law of Treaties. It states that a reservation incompatible
with the object and purpose of the present Convention shall not be permitted.
Although the Convention does not prohibit the entering of reservations, those which
challenge the central principles of the Convention are contrary to the provisions of the
Convention and to general international law. As such they may be challenged by other
States parties.
Articles 2 and 16 are considered by the Committee to be core provisions of the

Convention. Although some States parties have withdrawn reservations to those articles,
the Committee is particularly concerned at the number and extent of reservations
entered to those articles.
The Committee holds the view that article 2 is central to the objects and purpose of
the Convention. States parties which ratify the Convention do so because they agree
that discrimination against women in all its forms should be condemned and that the
strategies set out in article 2, subparagraphs (a) to (g), should be implemented by States
†
parties to eliminate it.† Article 2 condemns
discrimination against
Neither traditional, religious or cultural practice nor incompatible domestic laws and women and contains an
policies can justify violations of the Convention. The Committee also remains convinced agreement to pursue the
that reservations to article 16, whether lodged for national, traditional, religious or cultural elimination of it.
reasons, are incompatible with the Convention and therefore impermissible and should
be reviewed and modified or withdrawn.† †
Article 16 commits parties
to taking appropriate steps
This position effectively illustrates both the strengths and weaknesses of such a treaty.
to eliminate discrimination
The strength is that the Convention is an international statement that clearly accepts
against women relating to
a goal and defines discrimination against women as unacceptable and increasingly marriage.
incompatible with international law – treaty law for those states that are party to the
treaty, and customary international law for others. The weakness once more concerns
the ‘enforcement’ (state reports every four years reporting progress) and reservations
of doubtful compatibility. States with a substantial Muslim population in particular
have entered reservations against either or both Article 2 and/or Article 16 to the effect
that should there be a conflict, Shariah law must prevail. While this is unsurprising, as
the Committee has observed, neither religious nor custom reasons can be allowed to
effectively destroy the very purpose of the Convention.
Activity 10.3
‘The Reservations of states when ratifying the Convention on the Elimination of
All Forms of Discrimination Against Women illustrate the substantial gap between
approval in principle of a human rights statement and the willingness to make it
effective.’
Discuss.
Summary
The UN has been highly successful in drafting, and having accepted, international human
rights treaties. Genocide, torture, racism and apartheid are all now clearly proscribed in
international law. In other areas, however, it is harder to judge the contribution of human
rights treaties to the protection of human rights. While almost all states are prepared to
support a document aimed at the elimination of discrimination against women, the true
intentions are inferable from the reservations entered.
Consider the contribution (if any) of the decision to assert a right to development as
a human right.

u explain the role of the UN in standard setting and drafting human rights treaties
u understand the need to consult reservations before coming to conclusions about
the efficacy of such treaties.
10.5 Regional protection of human rights

By now you should appreciate the possibilities and limitations of the international
protection of human rights – and indeed the difficulty of making any accurate
assessment of the contribution made by conventions or treaties. A cost-benefit
analysis would be grippingly interesting but almost impossible to achieve. Henry Ford
is supposed to have observed that he knew 90 per cent of his advertising budget was
wasted, but the problem was that he was unable to discover which 10 per cent was
effective. When it comes to the international protection of human rights the picture
is even less clear. It is obvious that at the least there is a standard setting process with
some provisions achieving a jus cogens status in international law, but the effect of the
standard setting process is unquantifiable.
Problems of enforcement at the world level led to attempts to provide regional

protection. It was anticipated that a higher degree of homogeneity among the
participating states would make enforcement less controversial. It was in Europe that
the impetus for such regional protection was at its greatest, primarily as a reaction to
the war that had had to be fought against fascist totalitarian states. In the words of the
most famous historian of the development of post-war human rights, A.W.B. Simpson:
The idea that there was a link between the protection of human rights and the
preservation of peace was to become a common feature of post-war thinking…Thus it
came about that whereas before the Second World War there was virtually no public
interest in the international protection of human rights, except in relation to European
minority protection, by 1944, and even earlier, there was a widespread interest in the
subject, and a growing belief that the protection of human rights against oppressive
governments should be embodied in a new world order which needed to be established
to establish not only security through a lasting peace, but also a just world in which
governmental misconduct would be brought under the control of the international
community…The idea that the war had been about the protection of the rights of
individuals, originally little more than a rhetorical adornment, was coming home to roost.
[Simpson, A. Human rights and the end of empire. (Oxford: Oxford University Press, 2004)
[ISBN 9780199267897] pp.219–20.)
As we have seen, progress in the drafting of the International Covenants was not rapid
and this also gave impetus to regional provision.
10.5.1 The European Convention on Human Rights
Essential reading
¢ European Convention on Human Rights.
The European Convention on Human Rights (ECHR) was drafted by the Council of
Europe (not to be confused with the European Union) and opened for signature in
November 1950. It entered into force after 10 ratifications in 1953. There are currently
47 state parties with a combined population in excess of 800 million, each with the
right of individual petition. Such an increase has more than been reflected in the
number of applications. Whereas the number of cases registered with the Court in
Strasbourg in 1981 was 407, by 1997 this had risen to 4,750, and in 2004, 44,100 new
cases were lodged. It is said that in 2004 applications were lodged at a rate of 1,000
per month more than the Court could deal with. There were 82,100 cases pending on
1 October 2005, and this had grown to 161,000 by the end of 2011. Due to Protocol 14
altering the way in which applications were dealt with, by the end of 2014 the backlog
had been reduced to 70,000 and was steadily declining, although whether this meant
that many applications of some merit were being rejected out of hand is an open
question. As at 31 March 2018, the total number of pending applications was 55,800,
which had grown to 59,800 by 31 December, 2019. (Forty per cent of these were from
Russia and Ukraine, with another 15 per cent coming from Turkey.)
These changes are remarkable and of course many of them have resulted from the
influx of new states since the major enlargement of the Council of Europe when
countries of the former Soviet Bloc acceded to the Convention. As the Review
observes, whereas the Court was originally primarily concerned to fine tune ‘well-
established and well-functioning’ democracies, it is now ‘working to consolidate
democracy and the rule of law in new and relatively fragile democracies’. In the first
nine months of 2005 more than half of pending cases were from just four countries
(the Russian Federation, 17 per cent; Turkey, 13 per cent; Romania, 12 per cent; and
Poland, 11 per cent). The only real solution to this crisis is for member states to legislate
the provisions of the Convention and ensure through adherence to the rule of law that
remedies are available and may be enforced.
It is therefore crucial to appreciate that the ECHR is currently very different from what
it used to be. When it was drafted it was based to a great extent upon the civil and
political rights found in the UDHR. Of course because this was a legal document the
wording had to be much more careful, and when you read the ECHR you will at once
notice that almost every right is immediately heavily qualified and significantly less
absolute than in the Declaration.
One recent measure intended to reduce the case load is Protocol 16 to the ECHR, which
entered into force in August 2018 for the 10 members that have signed and ratified it.
Its effect is to enable (in the words of the press release) ‘the highest national courts
and tribunals, as designated by the member states concerned, to request the ECtHR
to give advisory opinions on questions of principle relating to the application of the
rights and freedoms defined in the Convention or the Protocols thereto’. The advisory
opinions, which will be delivered by the Grand Chamber, will contain reasons and will
not be binding.
Examine and explain the differences between the substantive provisions
concerning civil and political rights in the UDHR and the ECHR.
The history of the ECHR is well and briefly described on its website:
In addition to laying down a catalogue of civil and political rights and freedoms, the
Convention set up a mechanism for the enforcement of the obligations entered into
by Contracting States. Three institutions were entrusted with this responsibility: the
European Commission of Human Rights (set up in 1954), the European Court of Human
Rights (set up in 1959) and the Committee of Ministers of the Council of Europe, the latter
organ being composed of the Ministers of Foreign Affairs of the member States or their
representatives.
Under the Convention in its original version, complaints could be brought against
Contracting States either by other Contracting States or by individual applicants
(individuals, groups of individuals or non-governmental organisations). Recognition of the
right of individual application was, however, optional and it could therefore be exercised
only against those States which had accepted it (Protocol No. 11 to the Convention [which
came into force in 1998] was subsequently to make its acceptance compulsory).
The complaints were first the subject of a preliminary examination by the Commission,
which determined their admissibility. Where an application was declared admissible,
the Commission placed itself at the parties’ disposal with a view to brokering a friendly
settlement. If no settlement was forthcoming, it drew up a report establishing the facts
and expressing an opinion on the merits of the case. The report was transmitted to the
Committee of Ministers.
Where the respondent State had accepted the compulsory jurisdiction of the Court,
the Commission and/or any Contracting State concerned had a period of three months
following the transmission of the report to the Committee of Ministers within which to
bring the case before the Court for a final, binding adjudication. Individuals were not
entitled to bring their cases before the Court.
If a case was not referred to the Court, the Committee of Ministers decided whether there
had been a violation of the Convention and, if appropriate, awarded ‘just satisfaction’
to the victim. The Committee of Ministers also had responsibility for supervising the
execution of the Court’s judgments.
(www.coe.int/en/web/tirana/european-court-of-human-rights)
Since then there have been significant developments.
Since the Convention’s entry into force thirteen Protocols have been adopted. Protocols
Nos. 1, 4, 6, 7, 12 and 13 added further rights and liberties to those guaranteed by the
Convention, while Protocol No. 2 conferred on the Court the power to give advisory
opinions. Protocol No. 9 enabled individual applicants to bring their cases before the
Court subject to ratification by the respondent State and acceptance by a screening
panel. Protocol No. 11 restructured the enforcement machinery (see below). The
remaining Protocols concerned the organisation of and procedure before the Convention
institutions.
From 1980 onwards, the steady growth in the number of cases brought before the
Convention institutions made it increasingly difficult to keep the length of proceedings
within acceptable limits. The problem was aggravated by the accession of new
Contracting States from 1990. The number of applications registered annually with the
Commission increased from 404 in 1981 to 4,750 in 1997. By that year, the number of
unregistered or provisional files opened each year in the Commission had risen to over
12,000. The Court’s statistics reflected a similar story, with the number of cases referred
annually rising from 7 in 1981 to 119 in 1997.
The increasing case-load prompted a lengthy debate on the necessity for a reform of the
Convention supervisory machinery, resulting in the adoption of Protocol No. 11 to the
Convention. The aim was to simplify the structure with a view to shortening the length of
proceedings while strengthening the judicial character of the system by making it fully
compulsory and abolishing the Committee of Ministers’ adjudicative role.
Protocol No. 11, which came into force on 1 November 1998, replaced the existing, part-
time Court and Commission by a single, full-time Court. For a transitional period of one
year (until 31 October 1999) the Commission continued to deal with the cases which it had
previously declared admissible.
During the three years which followed the entry into force of Protocol No. 11 the Court’s
case-load grew at an unprecedented rate. The number of applications registered
rose from 5,979 in 1998 to 13,858 in 2001, an increase of approximately 130%. Concerns
about the Court’s capacity to deal with the growing volume of cases led to requests for
additional resources and speculation about the need for further reform.
A Ministerial Conference on Human Rights, held in Rome on 3 and 4 November 2000 to

mark the 50th anniversary of the opening of the Convention for signature, had initiated a
process of reflection on reform of the system. In November 2002, as a follow-up to a
Ministerial Declaration on ‘the Court of Human Rights for Europe’, the Ministers’ Deputies
issued terms of reference to the Steering Committee for Human Rights (CDDH) to draw up
a set of concrete and coherent proposals covering measures that could be implemented
without delay and possible amendments to the Convention.
Since then another Protocol (Protocol 14) has been drafted and accepted. In essence
it provides, first, that a single judge can decide on a case’s admissibility. (There is
the same number of judges as states (48).) Second, it provides that where cases are
broadly similar to ones brought previously before the Court, and are essentially due
to a member state failing to change their domestic law to correct a failing highlighted
by that previous judgment, admissibility can be decided by three judges rather than
the seven-judge Chamber. Third, a case may not be admissible if it is considered
that the applicant has not suffered ‘significant disadvantage’. However, this is not a
‘hard and fast’ rule. Fourth, a member state can be brought before the Court by the
Committee of Ministers if that state refuses to enforce a judgment against it. Finally,
the Committee of Ministers can ask the Court for an ‘interpretation’ of a judgment to
help determine the best way for a member state to comply with it.
Finally, it may be said that the ECHR is undoubtedly the most successful regional
system for the protection of human rights yet devised. Until the 1990s it had sat in
a role that approached a supreme constitutional court interpreting civil liberties
protection. It is now in danger of being paralysed by its own success and even further
measures would seem necessary if it is to continue in its present form.
Activity 10.4
‘The ECHR is a victim of its own success. Its original strength came from the relative
homogeneity of the political ideology of its members. This no longer exists and the
ECHR is coming to suffer from the same defects as the International Bill of Human
Rights.’ Discuss.
Summary
The ECHR has been a remarkably successful Convention in effectively guaranteeing
fundamental civil and political rights. But whereas it proved competent in this,
the influx of members with diverse histories and ideological outlooks has led to an
unmanageable case load that will necessarily affect the jurisprudence of the Court. The
ECHR reflects the European view that civil and political rights are justiciable in a way
that economic, social and cultural rights are not.
1. Explain and consider the role of the Committee of Ministers in the operation of
the ECHR.
2. Under the ECHR there is provision for inter-state petitions concerning human
rights abuses (Article 24). How significant is this provision? Should it be more
widely used?

u understand the significant achievements of the ECHR in the realm of the
protection of civil and political rights
u understand the nature and scope of the problems facing the ECHR regime in the
21st century.
10.5.2 The inter-American system of human rights protection
Essential reading
¢ Charter of the Organization of American States,1948.
¢ American Convention on Human Rights, 1969.
The primary aim of this brief appraisal of the inter-American system for the protection
of human rights is to enable a comparison with the ECHR. You will see that opinions
on the inter-American system are polarised. Some (with whom I agree) regard it as
disappointing while others are much more positive.
There are two inter-American bodies concerned with the protection and enforcement
of human rights: the Inter-American Commission on Human Rights (IACHR) (ironically
with its headquarters in Washington, DC) and the Inter-American Court of Human
Rights, located in Costa Rica. The most important documents for this system are
the Charter of the Organization of American States (OAS) and the Inter-American
Convention on Human Rights, 1969. Neither the USA nor Canada is a party to the
Convention.
The IACHR was created by the OAS in 1959 as an autonomous organ to ensure respect
for human rights. Its first investigation was of Castro’s Cuba and resulted in Cuban
expulsion from the OAS, but it made no such ‘progress’ with other member states,
notwithstanding the appearance of a number of military dictatorships with utterly
deplorable human rights records. It was not difficult to see the hand of the US Central
Intelligence Agency in the impotence of the IACHR. It imposed no sanctions and could
merely make a declaration to the effect that a state was in breach of the (non-binding)
American Declaration of the Rights and Duties of Man, 1948.
When the Convention was adopted the IACHR continued its role for the OAS but took
on new tasks too. The Commission:
(a) Receives, analyses and investigates individual petitions which allege human rights
violations, pursuant to Articles 44 to 51 of the Convention.
(b) Observes the general human rights situation in the member States and publishes special
reports regarding the situation in a specific State, when it considers it appropriate.
(c) Carries out on-site visits to countries to engage in more in-depth analysis of the
general situation and/or to investigate a specific situation. These visits usually result
in the preparation of a report regarding the human rights situation observed, which is
published and sent to the General Assembly.
(d) Stimulates public consciousness regarding human rights in the Americas. To that end,
carries out and publishes studies on specific subjects, such as: measures to be taken to
ensure greater independence of the judiciary; the activities of irregular armed groups;
the human rights situation of minors and women; and the human rights of indigenous
peoples.
(e) Organises and carries out conferences, seminars and meetings with representatives
of Governments, academic institutions, non-governmental groups, etc...in order to
disseminate information and to increase knowledge regarding issues relating to the
inter-American human rights system.
(f) Recommends to the member States of the OAS the adoption of measures which would
contribute to human rights protection.
(g) Requests States to adopt specific ‘precautionary measures’ to avoid serious and
irreparable harm to human rights in urgent cases. The Commission may also request that
the Court order ‘provisional measures’ in urgent cases which involve danger to persons,
even where a case has not yet been submitted to the Court.
(h) Submits cases to the Inter-American Court and appears before the Court in the litigation
of cases.
(i) Requests advisory opinions from the Inter-American Court regarding questions of
interpretation of the American Convention.
The Commission receives individual petitions against member states of the OAS. If the
member is not a party to the Convention, the Commission will judge the matter under
the Declaration, but of course cannot give a binding decision. If the member is a party
to the Convention then, if there is no amicable settlement, the Commission may refer
the matter to the Inter-American Court of Human Rights. Individuals do not have a
right of access to the Court. Both inter-state and individual cases can be heard by the
Court only if contracting states have made a general or specific agreement that this
will happen. In the event of an adverse judgment there is no means of enforcement.
Thus it may be seen that inter-American regional protection of human rights leaves
much to be desired. Indeed, there is no surrender of sovereignty that in any way
equates with the European system. It has certainly not developed comparably and
although the right of individual petition is important, there does not seem to have
been a major change in the quality of human rights protection offered within states as
a result of the Declaration or Convention.
1. Compare and contrast the substantive provisions of the ECHR with the Inter-
American Convention on Human Rights.
2. Why do you think that Europe and the Americas developed such different
systems of regional human rights protection?
Activity 10.5
‘Experience suggests that while regional systems for the protection of human
rights are essential, it has to be realised that they can at best be supplementary to
domestic state protection. Current European and American experience confirms
this view.’
Discuss.
Summary
The inter-American system for the protection of human rights has not been a notable
success. It is much less intrusive into national sovereignty than it needs to be in order
to be effective. US and Canadian participation has not been substantial. It could be
argued that its emphasis has been upon human rights promotion, but the system has
lived in remarkable harmony with abusive military dictatorships. In addition, to have
singled out Cuba as the only member of the OAS worthy of suspension for its human
rights abuses seems perverse in the extreme.
1. Why have Canada and the USA elected to remain outside the Inter-American
Convention on Human Rights?
2. Compare and contrast the substantive provisions of the ECHR with the Inter-
American Convention on Human Rights.
3. Why do you think that Europe and the Americas have developed such different
systems of regional human rights protection?

u appreciate the controversial nature of the effectiveness of enforcement
u explain the role of regional regimes in the protection of human rights
u explain the significance of the differences between international and regional
protection of human rights
u compare and contrast different regional systems of human rights protection
u explain the basis and effect of a claim for the right of democratic governance.
10.6 The International Criminal Court
Core text
¢ Mansell and Openshaw, Section 6.7 ‘The International Criminal Court’.
¢ Wallace and Martin-Ortega, Chapter 12 ‘The law of armed conflict and

international criminal law’, pp.311–21.
As international criminal law is a subject in itself, with many textbooks devoted to it,
the intention here is to provide only the briefest outline of the International Criminal
Court (ICC) and its operation.
The ICC was established under the Rome Statute of the International Criminal Court
of 1998. The Statute was intended to establish an international court with the power
to try individuals accused of committing the most serious crimes under international
law. As such, it is intimately connected to the international protection of human rights.
After 60 ratifications, the ICC came into existence in 2002, and there are now 123 states
parties (not including, however, China, Russia, the USA or Israel). The ICC does not
form part of the UN system, although, in 2004, the Court and the UN did enter into an
agreement governing the relationship between them and confirming their agreement
to consult with each other and to cooperate on matters of mutual interest.
The creation of the ICC was the culmination of attempts dating from the First World
War to hold individuals to account for the perpetration of war crimes and other grave
crimes under international law. Immediate precursors of the ICC can be found in the
ad hoc tribunals set up by the Security Council under its Chapter VII powers in response
to the atrocities committed in the former Yugoslavia and in Rwanda in the early 1990s.
The Rome Statute limits the ICC’s jurisdiction ‘to the most serious crimes of concern to
the international community as a whole’, with the Court’s remit initially encompassing
genocide, war crimes and crimes against humanity. Such jurisdiction applies only
where such crimes have been committed on or after the Statute came into force (i.e. 1
July 2002), and a state ratifying the Statute after this date will be subject to the Court’s
jurisdiction only from the date on which the Statute enters into force for that state.
The Statute also provides (under Article 5(2)) for the Court to exercise jurisdiction over
the crime of aggression. A definition of this crime was agreed at a review conference
in Kampala, Uganda, in 2010 and it has now entered into force. It does, however,
leave many issues unresolved and there is continuing debate. A very brief summary
of the issues is to be found at https://blog.oup.com/2018/12/top-ten-developments-
international-law-2018/ where it is stated in point 5):
Twenty years after the Rome Statute was signed and nearly eight years after International
Criminal Court Member States agreed on its definition, the crime of aggression became
a crime within the Court’s jurisdiction. Only nationals of states who have accepted the
relevant amendments to the Statute can be prosecuted and then only if the crimes aren’t
committed on the territory of a state that has opted out of jurisdiction, but the impact
could still be momentous. Proponents of the criminalization of aggression argue that
it will end impunity for starting an illegal war; opponents claim it is unlikely to lead to
successful prosecutions, and could derail future humanitarian interventions aimed at
stopping atrocities being committed against civilians (whether those interventions are
desirable in the first place is a whole different debate...).
The crime of aggression means ‘the planning, preparation, initiation or execution, by

a person in a position effectively to exercise control over or to direct the political or
military action of a State, of an act of aggression which, by its character, gravity and
scale, constitutes a manifest violation of the Charter of the United Nations.’
The act of aggression means ‘the use of armed force by a State against the sovereignty,
territorial integrity or political independence of another State, or in any other manner
inconsistent with the Charter of the United Nations.’
These acts can include, among others, invasion, military occupation, and annexation
by the use of force, blockade by the ports or coasts.
(Rome Statute of the International Criminal Court articles 8 bis 1 and 2.)
The ICC operates according to the principle of ‘complementarity’ (Article 17), which
means that the Court is intended to complement, rather than replace, the role of
national courts in dealing with the crimes set out in the Statute, thus deferring to the
principle of sovereignty. As a consequence, the Court will only act if a state is unwilling
or unable to act itself. Uniquely, the Statute provides for victims to have a voice in the
proceedings, entitling them to make submissions to the Court at the pre-trial stage,
during the trial itself or during any appeal. The Statute also created (by virtue of Article
79) a Trust Fund for Victims, with a mandate to implement reparations ordered by
the Court, and to provide support for the victims of crimes over which the Court has
jurisdiction and their families. For a recent assessment of the provisions for victims
under the ICC Statute, see Sehmi, A. ‘Now that we have no voice, what will happen
to us?: Experiences of victim participation in the Kenyatta case’ (2018) 16(3) Journal of
International Criminal Justice 571–91 .
10.6.1 Structure and composition of the ICC

The Court has 18 full-time judges, elected by representatives of states parties for a
nine-year term. As with the ICJ, states parties to the Statute are directed to ensure that
the Court as a whole is representative of the ‘principal legal systems of the world’ and
also reflects ‘[e]quitable geographical representation’. The selection process of the
judges is as subject to political influence as that for the ICJ. It is, however, stipulated
that at least one-third of the 18 judges be women.
The Office of the Prosecutor (OTP), an independent organ of the Court, is headed by a
Prosecutor, who again is elected by representatives of the states parties for a nine-year
term. Investigations by the OTP may be triggered in one of three ways provided for
under Article 13. First, a state party to the Statute can apprise the Prosecutor of any
situation apparently involving the commission of one or more crimes over which the
Court has jurisdiction occurring on the territory of a state party, or involving one or
more of its nationals. (This has also led to a number of ‘self-referrals’, with Uganda, the
Democratic Republic of the Congo, the Central African Republic and Mali all having
referred for investigation alleged criminal acts which have occurred in their respective
territories.) Second, the Security Council, acting under its Chapter VII powers, can
refer for investigation any situation apparently involving one or more of the specified
crimes if it considers it a threat to international peace and security. Such situations
are not confined to those involving states parties. The SC has exercised this power in
respect of Sudan, in relation to the situation in Darfur (in 2005) and with regard to
Libya (in 2011). (A draft SC resolution to refer the conflict in Syria to the ICC in 2014 was
vetoed by Russia and China.) Third, the Prosecutor may themselves choose to launch
an investigation, provided they have received reliable information concerning the
crimes alleged to have been committed, reasonably believes that an investigation
is warranted and has first obtained judicial authorisation. Such Prosecutor-initiated
investigations have occurred in relation to the post-electoral violence that occurred in
Kenya in 2007–08 and in Côte d’Ivoire in 2010, and in respect of the armed conflict in
South Ossetia, Georgia, in 2008.
A state that is not a party to the Rome Statute can also choose to accept the Court’s
jurisdiction on an ad hoc basis in relation to crimes that have occurred on its territory
or involve one of its nationals.
Under Article 16, the Security Council can order the ICC to suspend any investigation
or prosecution for a period of one year, with such suspension subject to indefinite
renewal. (The awarding of such powers to the Security Council was forced upon the
drafters of the Statute by three of the five permanent members of the SC – China,
Russia and the USA – none of which, of course, has ratified the Statute.) It should
be added that the USA has gone rather beyond non-ratification in asserting that its
military personnel serving overseas might be vulnerable to politically motivated
arrests and prosecutions, and has pressured a significant number of states (more than
a hundred) into signing so-called Article 98 agreements under which they promise
never to surrender US citizens to the ICC.
As the ICC has no enforcement arm of any kind, it is reliant on the assistance of state
authorities, particularly for the apprehension of suspects and their subsequent
imprisonment. All states parties are obliged to cooperate fully with the Court in its
investigation and prosecutions, and if the matter has been referred to the Court by the
Security Council then all UN members are obliged to cooperate.
10.6.2 Weaknesses of the ICC

One accusation frequently levelled at the ICC is that it has not treated all within its
jurisdiction equally. In particular, it is suggested that African situations have been
unfairly targeted (all but one of the Court’s investigations to date have involved African
states), whereas those involving the West and its allies have been able to escape
scrutiny. The African Union has been highly critical of the ICC, and in recent years a
number of African states, including South Africa, have threatened at various times to
withdraw from its jurisdiction.
Others argue that it is hardly surprising that so much of the Court’s work should
involve African states, since these are the very countries that, owing to greater levels
of impoverishment, tend to lack a fully functioning judicial system and are therefore
more likely to turn to the ICC to conduct criminal trials for them. It has to be conceded,
however, that many of the most egregious violations of international criminal law
remain uninvestigated, not least for reasons relating to the power of the violating
nations and the ‘interference’ of the Security Council.
A further problem arises from the regrettably (but possibly inevitably) slow progress
made in prosecuting. The first conviction was obtained only after the ICC had been in
operation for 10 years (and at enormous expense), and only a total of four convictions
have been secured to date. Moreover, attempts by some states parties to restrict the
Court’s budget (the ICC is largely funded by its members), combined with unpaid
contributions from previous years, means that the ICC is also experiencing financial
difficulties.
Furthermore, clearly only the very worst perpetrators of international crimes can ever
be prosecuted in the ICC – although, ironically, this will bring those charged enormous
privileges, including excellent facilities, competent legal representation and no
possibility of capital punishment. In addition, although the ICC has an important
educative function in publicising the horrors that have been perpetrated and endured,
this may lead to two unfortunate outcomes. The first is media ‘war crime horror
fatigue’, with boredom being the inappropriate response to horrific crimes. The
second is that prosecutions themselves may imperil moves towards reconciliation
within war-torn territories.
In part, the recognition of these problems has led to the creation of so-called ‘mixed
tribunals’, where those charged with international crimes are brought before a court
in their own country, but a court that includes both domestic judges and judges from
outside the state, who apply both domestic and international law.
Finally, in a recent OUP blog, concerning international law developments in 2019

(https://blog.oup.com/2020/01/top-eight-developments-in-international-law-2019/),
under the title ‘Crisis at the International Criminal Court’ is the following comment:
The International Criminal Court has been under a cloud for some time, the early
optimism of its founders and supporters long dissipated. This year brought more trouble:
In January, Laurent Gbagbo, a former president of Ivory Coast, was acquitted of crimes
against humanity after an eight-year, high-profile trial. There are rumours of discord
between the judges and some are suing the Court for higher pay. At the same time, the
States Parties are keeping their fingers on the purse strings and asking the Court to justify
why it has become quite so expensive with so little to show in terms of convictions.
In April, the Court’s Pre-Trial Chamber denied the Prosecutor’s application to open an
investigation into international crimes committed in Afghanistan in a highly controversial
decision. The Chamber based itself on ‘the interest of justice’, which is not a concept it
had been asked to decide on. Some of the Chamber’s concerns about the feasibility of the
investigation may have been justified, but the decision did nothing to silence those who
accuse the Court of being a neo-colonial institution preoccupied with Africa.
On 9 December 2020, the ICC decided to investigate no further into allegations
of war crimes by the British in Iraq. The 184 page report is at: www.icc-cpi.int/
itemsDocuments/201209-otp-final-report-iraq-uk-eng.pdf
For an excoriating appraisal of this report see the blog of Craig Murray of 29 December
2020: ‘The International Criminal Court: now simply indefensible’ at: www.craigmurray.
org.uk There is time still for the Court to turn things around, and it was always going
to struggle under the expectations placed upon it at birth. But it will be hoping for a
more successful, less contentious year in 2021.

u understand the role, significance and limitations of the International Criminal
Court in the protection and promotion of human rights.

Question 1 ‘The concept of human rights provided the first major and decisive
rejection of the principles of state sovereignty derived from the Peace of
Westphalia.’
Explain and discuss.
Question 2 ‘The international protection of human rights has become a matter
of concern throughout the world. It is curious therefore that there is so little
agreement either about what the fundamental rights are, or how they ought to be
guaranteed and protected.’
Discuss with reference to international documents intended to promote and
protect human rights.

Question 1 The Peace of Westphalia has come to be accepted as the foundation stone
of sovereignty and sovereign equality in international law. In fact it is very doubtful
whether this can really be supported, but it has been accepted. The mythology
suggests that the import of the treaty was effectively to provide that no state had the
right to interfere in the domestic affairs of another. Recognition of a state’s exclusive
internal jurisdiction was thought to be necessary for international peace.
Obviously the whole idea of the international protection of human rights has to be
based upon intervention in the internal affairs of states. Although in the early days of
the UN Charter it was argued that there should be no such interference, this argument
was roundly defeated by the strength of feeling in favour of human rights protection.
But many states have ceded absolute sovereignty unwillingly and some have
conceded as little as possible. This is one explanation for the weakness of enforced
international human rights and also for the differences among regional human rights
protection.
At this point it is relevant to consider the attitude of different states to regional

protection. The position adopted by the Russian Federation, China and the USA might
usefully be compared and contrasted. The International Bill of Human Rights could
also be compared and contrasted with regional protection.
Question 2 This question requires you to discuss the debate about the meaning
of human rights. The debate about civil and political human rights as opposed to
economic, social and cultural rights needs to be considered with some thought given
to why the former seem (at least in the protection offered) to be superior to the
latter. A discussion of the politics of human rights would also be appropriate, tracing
the division back to ideology pre-dating the UDHR. The different documents in the
International Bill of Human Rights could then be examined, particularly looking at
the different ‘enforcement’ mechanisms. This in turn could lead to an examination of
some of the principal UN treaties for the protection of human rights. Some discussion
of the centrality of the human right to self-determination would also be relevant.
11 International law in the 2020s
Contents
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 198
11.1 Is international law a source of disappointment? . . . . . . . . . . . . 199
11.2 The paradox of sovereign equality . . . . . . . . . . . . . . . . . . . 200
11.3 The USA and international law . . . . . . . . . . . . . . . . . . . . . 202
11.4 The case of Israel and international law . . . . . . . . . . . . . . . . . 208

Introduction
The purpose of this chapter is to provide something of a critique of international
law. What is meant by the word ‘critique’ is that we will attempt to stand back from
the method, detail and rules of international law, to be found in this module guide
and particularly in your Wallace and Martin-Ortega textbook, in the hope that we
might discover some academic questions about public international law that might
reveal possible perspectives on its role which would otherwise remain invisible. To
some extent this approach may be unsettling because it does call into question the
objectivity of at least parts of this module guide and the necessary textbooks. It should
also be liberating for those of you who have had some feeling of dissatisfaction with a
module guide that has often hinted at the political aspects of international law but has
only occasionally explored them. Such feelings are important because they reflect the
intellectual challenge of having, on the one hand, to study the rules and methods of
international law as objective phenomena and, on the other, to question the neutrality
of the results achieved. There are many ‘big questions’ that it is difficult to incorporate
into an undergraduate course but without which the subject itself may be misleading.
Learning outcomes
u define the concept of sovereignty in international law and understand why the
concept of sovereignty is not fixed in definition
u appreciate the significance, importance and limitations of the concept of
sovereign equality
u understand that the relationship between law and power does not necessarily
coincide in international law as it does in domestic law
u be aware of the significance of the present ‘power disparity’ state of the
contemporary world
u recognise that some within the United States are willing to argue that
international law is in no real sense law and that this has foreign policy
implications
u explain US legitimations of the use of force
u understand the significance of the ability of Israel to flout international law
because of its relationship with the USA
u appreciate the effect of such protection upon the perception of international law
by other states
u draw some conclusions about the relationship between power, justice and
international law
u formulate a critical position appreciating both the strengths and weaknesses of
the contemporary international law regime.
Public international law 11 International law in the 2020s page 199
11.1 Is international law a source of disappointment?

Some of you are probably disappointed with international law because it seems so
malleable, indeterminate and infinitely arguable. Even where the rules do seem clear
(as in Chapter 9 when we looked at the rules governing the use of force in international
law), and even if they are apparently broken, particularly by a powerful state, not
only do retribution and enforcement seem to be beyond the ability and will of the
international community, but a legal argument will often be ‘constructed’ in order to
avoid a clear legal position. A very good example of this concerned the intervention in
Iraq by the USA, the UK and their allies in 2003. The response of the British academic
international law community was to be found in an unequivocal letter to the British
newspaper, The Guardian, on 7 March 2003. The letter was signed by many of the most
prominent UK international lawyers not in government service. It stated as follows:
We are teachers of international law. On the basis of the information publicly available,
there is no justification under international law for the use of military force against Iraq.
The UN charter outlaws the use of force with only two exceptions: individual or collective
self-defence in response to an armed attack and action authorised by the Security Council
as a collective response to a threat to the peace, breach of the peace or act of aggression.
There are currently no grounds for a claim to use such force in self-defence. The doctrine
of pre-emptive self-defence against an attack that might arise at some hypothetical future
time has no basis in international law. Neither Security Council resolution 1441 nor any
prior resolution authorises the proposed use of force in the present circumstances.
Before military action can lawfully be undertaken against Iraq, the Security Council must
have indicated its clearly expressed assent. It has not yet done so. A vetoed resolution
could provide no such assent. The prime minister’s assertion that in certain circumstances
a veto becomes ‘unreasonable’ and may be disregarded has no basis in international
law. The UK has used its Security Council veto on 32 occasions since 1945. Any attempt
to disregard these votes on the ground that they were ‘unreasonable’ would have been
deplored as an unacceptable infringement of the UK’s right to exercise a veto under UN
charter article 27.
A decision to undertake military action in Iraq without proper Security Council

authorisation will seriously undermine the international rule of law. Of course, even with
that authorisation, serious questions would remain. A lawful war is not necessarily a just,
prudent or humanitarian war.
The conclusion was thus inevitable. Because Article 2(4) of the United Nations Charter
proscribes the use of force except pursuant to Article 51 (allowing self defence), or
pursuant to a Security Council Resolution under Chapter VII of the Charter, (the Council
having been persuaded of the reality of a ‘threat to the peace, breach of the peace, or
act of aggression’ (Article 39)) an invasion of Iraq could not be lawful. QED.† †
QED – (Latin) Quod
erat demonstradum,
So strong, clear and seemingly incontrovertible was this position that when the
meaning ‘which was to be
UK government sought to justify intervention, it purported to accept that legal
demonstrated’. This means
analysis while finding room for manoeuvre within it. Advice accepted by the
that you have proved
government argued the legality of the intervention because of non-compliance by
something that you wanted
Iraq with earlier Chapter VII Resolutions which had authorised the use of force. In
to prove.
the UK the government accepted the need for its actions to be legal, accepted the
constraints upon the use of force arising from the UN Charter, and argued within that
circumscription. Thus in the UK, the governance by the UN of the use of force was
accepted as representing international law, and any illegality was denied.
The important point here is that arguments in international law for almost any course
of action can be constructed and generally there is no final adjudication as to their
legality. It is very rare for a body such as the ICJ to be able to conclude authoritatively
on the validity of legal argument. It is of course able to do so when a matter comes
before it but it is this which dictates that matters coming before it are few and far
between. As a result, states may hold on to tenuous legal argument even when it
seems quite unsustainable. (The UK, for instance, refused to allow the legality of its
intervention in Kosovo to be tested in the ICJ when the opportunity arose, arguing,
remarkably, that the law relating to humanitarian intervention was in a state of
development and the ICJ might arrest that development!)
In response to such criticism of international law, there is the often proffered defence
that for every situation in which international law remains arguable there are myriad
times when international law either pre-empts disputes or even resolves them, but
this is not wholly convincing in the face of the ability of some states to ignore the
international community and its rules with almost total impunity.
Others of you may well be disappointed with international law because, as was
suggested in Chapter 2, it seems to reflect a very European way of seeing the world
– and perhaps even a European (Western) way of dominating the world, only now
being challenged by a rising China. Certainly many international rules and much
international legal methodology were created in a time of Western hegemony and
colonialism, and arguably some of the consequences of this remain.
Yet others will probably have noticed that public international law seems a very
‘gendered’ way of making sense of world events. At the risk of potentially facile
typifications, international law seems to be about creating, structuring and managing
competition and competitiveness. The desirability, healthiness and inevitability of
competition (or conflict) over co-operation is not only taken for granted but even
seems ‘natural’, and the consequent conflicts that arise seem all too often resolved
by power, force or the threat of force – all causes and means which some would
suggest privilege stereotypically ‘masculine’ modes of ordering over alternatively less
hierarchically subordinated modes, typically understood as ‘feminine’.
Finally you will almost certainly have been preoccupied throughout this course with
the relationship between power and law. Underlying the whole of this module guide
has been the paradox of sovereign equality. That concept is at once at the heart of
the rule of law way of organising the international community by emphasising the
superiority of justice over power, and yet all too often irrelevant in the face of the
reality of unequal power. The conclusion drawn from this fact could be interpreted
as an attack upon the actions of powerful states and upon the USA in particular. This
would be a misinterpretation. While it is not improper to be critical of the policies of
any state, the fact of the status of any state is always important. Most states pursue
foreign policy that their governments perceive to be in their own interests to the
maximum of their ability almost all of the time. How effective they can be depends
upon both power and diplomacy. When this is appreciated it becomes clear that
the USA is not acting exceptionally in attempting to achieve its foreign policy goals.
It is, however, the goals themselves that are politically questionable – though this is
generally beyond the range of a course in international law.
This chapter therefore considers two problematic areas of dispute that go to the
heart of the reality of international law. The first concerns the place of the USA in an
international law regime in a world with gross disparities of both wealth and power
and the second considers the significance of the demonstrable ability of one client
state of the USA (Israel) to flout international law at will and without sanction.
11.2 The paradox of sovereign equality
Core text
¢ Mansell and Openshaw, Chapter 2 ‘The dynamic quality of international law’.
In Chapter 4 we briefly considered notions of sovereignty and sovereign equality. At

various points we have observed how dramatically the Westphalian system (at least
the theoretical Westphalian system) has changed with the rise of the United Nations
and the centrality of human rights. Even in 1967, however, Oppenheim’s Treatise on
international law felt able to define sovereignty as follows (p.286):
Sovereignty as supreme authority, which is independent of any other earthly authority,

may be said to have different aspects. Inasmuch as it excludes dependence upon any
other authority, and in particular from the authority of another State, sovereignty is
independence. It is external independence with regard to the liberty of action outside its
borders in the intercourse with other States which a State enjoys. It is internal
independence with regard to the liberty of action of a State within its borders. As
comprising the power of a State to exercise supreme authority over all persons and things
within its territory, sovereignty is territorial supremacy (dominium, territorial sovereignty).
As comprising the power of a State to exercise supreme authority over its citizens at home
and abroad, sovereignty is personal supremacy (imperium, political sovereignty).
In fairness, the work does go on to recognise limits to external independence arising

from treaty obligations, and internal independence through the obligation of a
state to respect the fundamental human rights of its own citizens. Nevertheless the
emphasis upon liberty of action seems to warrant even more qualification in the 21st
century, at least as concerns the majority of states. Here it is appropriate to make
clear the view that the constraints upon sovereignty will depend not only upon treaty
commitments, but upon power. This will be explored below but first it is necessary to
briefly discuss sovereign equality.
An important book considering the question of the concept of sovereignty of direct

relevance to this section is Gerry Simpson’s Great powers and outlaw states; unequal
sovereigns in the international legal order. (Cambridge: Cambridge University Press,
2004 [ISBN 9780521534901]). Critically for our discussion of sovereign equality Simpson
takes the view that the concept of sovereign equality has three distinct aspects not
all of which lead to assumptions of real equality. The first aspect is ‘formal equality’,
defined as no more than ‘equality before the law’ and which ‘extends neither to forms
of jurisdictional equality nor to equal capacity to vindicate rights outside the judicial
context’ (p.47). I say ‘no more than’, but as has been suggested in Chapter 8 this is a
truly crucial feature, necessary for any international rule of law. The second aspect
is legislative equality, to be found for instance in the General Assembly of the United
Nations with its single vote for each state. In truth, as he recognises, this is one of the
few places where legislative equality is accepted and enjoyed. More typically strength
and wealth will dictate legislative power, as is all too clear both in the Security Council
and in the deliberative bodies of the international financial institutions.
Existential equality is the third aspect of sovereign equality. This is really an equal right
to existence with the accompanying corollary of the principle of non-intervention
(and generally certainly not for purposes of regime change). Simpson shows that
traditionally, historically and contemporaneously this has been more problematic
than some might wish to believe. The claimed anti-pluralist (that is, universal)
virtue of ‘liberal democracies’ (as Fukuyama would argue) he suggests resonates
with times of proclaimed ‘Christian’, ‘European’ or ‘civilised’ superiority used as a
justification for intervention. Pariah or rogue states have replaced the heathen, the
primitive and the uncivilised states which were historically beyond the realm of the
‘uninterventionable’.
The point that is being made here is an important one. Simpson is suggesting that
sovereign equality in the existential sense (elsewhere identified as ‘independence’)
has, at least in fact, never achieved the uncontroversial status often claimed for it, for
example under the United Nations Charter. Historically the reality is that powerful
states have always curbed the freedom of action of lesser states if it was in their
interests so to do, and if the constraints were not counter-productive. Both the US
hegemony in Central and South America, sometimes formalised under the ‘Munro
Doctrine’, and Soviet hegemony in Eastern Europe between 1945 and 1990 are very
clear examples. In both cases direct intervention was sometimes resorted to (usually
with a highly doubtful claim to legitimacy) and on occasions regimes were changed.
Simpson’s argument is that powerful states are now questioning sovereign rights of
states without democratic governance, in the same way as in the 19th century colonial
powers justified colonial acquisitions on the assumption that all ‘civilised’ peoples
would approve. This argument is usually characterised as the so-called ‘emerging right
to democratic governance’.
Activity 11.1
What is sovereign equality?
1. What historical factors have meant that sovereignty was never (or almost never)
absolute?
2. Explain the significance of the sovereign equality of states.

u define the concept of sovereignty in international law and understand why the
concept of sovereignty is not fixed in definition
u appreciate the significance, importance and limitations of the concept of
sovereign equality.
11.3 The USA and international law

Having briefly observed the complexity of sovereign equality it is now necessary to
consider the role of the United States. In 2006, when this guide was first written, the
USA was clearly the world’s only ‘super power’ in the international legal regime. Its
status is now much more questionable. While it has retained its remarkable military
position, spending more than the combined expenditure of the next eight states
in military expenditure ranking, including China and Russia (in 2020), its economic
superiority would appear to be waning. The question to be considered is whether
the USA should be considered simply as another ‘sovereign equal’ in international
relations and international law, or whether its singular power, both military and, to
a lesser extent, economic, necessitates a reconsideration of its position in what was,
albeit briefly, a ‘unipolar’ world. In many of the earlier chapters we have seen that
the USA does not always behave as other states tend to. This was most obvious when
we examined international law relating to the use of force, where the USA made
it clear that it was prepared to do what it thought necessary for its own security
without feeling any need to seek or enjoy international approval, even if this might
be interpreted as flouting international law. There are many other examples of where
the USA has failed to ratify (or even sign) international treaties that have received
widespread support even from its allies, the most significant example being the treaty
creating the International Criminal Court.
A body of opinion developed in the USA (particularly among the so-called neo-
conservatives) which argued that America’s unique strength and role in international
relations must be recognised and that some form of ‘exceptionalism’ (referred to
sometimes as ‘exemptionalism’) is not only desirable but inevitable. Those of that
opinion could draw upon some international law jurisprudence. In early editions of
Oppenheim’s International Law (Longman’s Green and Company, 1912, second edition)
the argument had been made that it is of the essence of international law that there
is both community of interest and a balance of power without which there can be
no international law. This position was adopted by Hans Morganthau, the prominent
international relations theorist, in the 1960s. He quoted Oppenheim as stating:
The first and principal moral [in the history of the development of the Law of Nations]
is that a Law of Nations can exist only if there be an equilibrium, a balance of power,
between the members of the Family of Nations. If the Powers cannot keep one another in
check, no rules of law will have any force, since an over-powerful State will naturally try to
act according to discretion and disobey the law. As there is not and never can be a central
political authority above the Sovereign States that could enforce the rules of the Law
of Nations, a balance of power must prevent any member of the Family of Nations from
becoming omnipotent.
Given that international law is, as Rosenne puts it, ‘a system of co-ordination, rather than
subordination’ it is dependent upon, at the very least, the formal equality of states. If one
state is in a position, or believes itself to be in a position, to act unilaterally without fear of

the consequences, the force of law might seem to have disappeared. The United States,
neo-conservatives and others argued, was, in the George W. Bush administration, in this
position. Indeed as early as 1992 in a document entitled Defence planning guidance draft
(drafted under the supervision of Paul Wolfowitz and subsequently revised by the soon-
to-be Vice President, Dick Cheney. For a summary of this document see www.pbs.org/
wgbh/pages/frontline/shows/iraq/etc/wolf.html) the idea was introduced that the USA
was now uniquely strong enough to be able to contemplate with equanimity unilateral
military action, the pre-emptive use of force and ‘the maintenance of a US nuclear
arsenal strong enough to deter the development of nuclear programmes elsewhere’. As
has been pointed out, what that document did not do was to explain how such policies
might be reconcilable with the many international agreements and obligations the USA
had voluntarily undertaken since the Second World War.
With the Project for the New American Century’s letter to then President Clinton
in 1997 arguing for unilateral action to overthrow Saddam Hussein’s regime in Iraq
regardless of a lack of unanimity among the Veto powers in the Security Council, and
signed by many who had played a part in the administration of Ronald Reagan and/
or the first Bush administration including Elliot Abrams, John Bolton, Robert Kagan,
Richard Perle, Donald Rumsfeld and Paul Wolfowitz, the Defence planning guidance draft
came into its own after the terrorist attacks on the USA on 11 September 2001. In The
national security strategy of the United States, published under the seal of the President
in September 2002, it was asserted that the United States now claimed the right of
pre-emptive action, leaving the limitations on the international use of force in the UN
Charter in utter disarray. And while claiming this right it was asserted that the ‘United
States will use this moment of opportunity to extend the benefits of freedom across
the globe. We will actively work to bring the hope of democracy, development, free
markets, and free trade to every corner of the world.’
11.3.1 American exceptionalism

Writing in 2003, Harold Hongju Koh, Dean and Professor of International Law
at Yale University, sought to analyse the content and significance of American
exceptionalism.† Before considering the relevance of this analysis some preliminary †
‘On American
comments are called for. The concept of exceptionalism seems to have two broad exceptionalism’, Stanford Law
meanings. The first, which relates to Oppenheim’s proposition that any system of Review (2003) 55, 1479.
international law requires an equilibrium between states, seems to assert that such
was the power of the United States that as a matter of fact the USA could not be a
party to international law because any consequent restraints would be simply unreal
and would have to depend for their effectiveness upon voluntary, but disadvantageous
compliance. But within this proposition are two possible conclusions. If the USA was
above and beyond international law, where would this leave lesser states? Either the
entire system falls and international law, failing to constrain the mightiest, similarly
fails to constrain any state with the power to reject constraints in any particular case
with impunity; or international law retains its distinctive character for all states but
the United States. The first interpretation really is the ‘nuclear’ interpretation. Every
principle of international law would lose its legal character and fall back into the
principles of international relations. The second suggests that lesser states continue
to be bound by pacta sunt servanda and only the USA should have impunity and
immunity. Both cases had significant implications for the United States itself.
In the first case the gain for the USA, while obvious, also carries major dangers and
difficulties. In moving from the international rule of law to power relationships
unmediated by law, it may be expected that if the USA is to persuade other states to
do its bidding, force – and the threat of force – would become a much more prominent
part of US foreign policy – in itself an option with significant cost. In the second
scenario, where only the USA would be outside of the international law regime, the
perils are hardly fewer. The hypocrisy of the greatest power exempting itself from
the rules of international law while requiring the compliance of other states is also
a dangerous position. It may be possible, at a cost, to police such a system if the USA
really believed it to be in its interests to do so. But when second-order states seek to
follow the principle espoused by the USA, then, for all its power, the position of the
USA could not regularly prevail.
The second and more limited meaning concerning exceptionalism suggests that
because of its power (and perhaps other reasons such as the US Constitution and
its federal structure) the United States either must necessarily be, or should be, in a
position to accept the rules of international law with a discretion not appropriate to
other states. Two examples are pertinent. The USA might argue that notwithstanding
the number of states that have already signed and ratified the treaty creating the
International Criminal Court, with its overtones of the acceptance of universal
jurisdiction, its own exceptional international responsibilities and powers, together
with its confidence in its own special needs and abilities mean that it must claim
exemption for itself alone. This in no sense condones war crimes or crimes against
humanity. It simply asserts that, for the USA, this is more appropriately dealt with
in its own domestic jurisdiction. Even with the Kyoto Protocol on Climate Change,
which the USA rejected, the argument might be that, given the explicit intention of
the Defence Strategy to remain the supreme power, it is inappropriate for the USA to
risk any lessening of its industrial power, regardless of environmental cost. Of course
both these examples have many arguments in favour of compliance and many of the
problems of hypocrisy remain, but some argument is perhaps maintainable.
Koh, in his analysis, distinguished four manifestations of American exceptionalism

which range from the least problematic to that deserving of the most opprobrium.
Koh seems to assume that exceptionalism is much more limited in its effect than
I have suggested. For Koh the two most difficult facets of exceptionalism concern,
first, what Louis Henkin named ‘America’s Flying Buttress mentality’.† By this Henkin †
A flying buttress was an
meant that the USA often identified with the values expressed in international human external arched support for a
rights documents, and indeed, often in fact complied with their requirements, yet large medieval building, such
was unwilling to subject itself to the critical examination processes provided in as a cathedral. It became
such Conventions. The effect was external support (like a flying buttress) but not the necessary where the internal
internal support of a pillar. In other words the USA was willing to comply (and in fact architecture was not robust
did) but would not want to recognise any external authority as having the power to enough to support the
examine and judge its conduct. One sees a parallel in the US decision to intervene building.
in Afghanistan post 9/11 without the authority of a Security Council Resolution,

notwithstanding the fact that it would almost certainly have been forthcoming.
The USA did not, and arguably still does not, want to look beyond its borders for the
authority for domestic or foreign policy choices. Koh’s view is that the result of this
was that the USA often received unnecessary condemnation, and sometimes pariah
status for appearing to align itself with other states not ratifying, or not complying
with, conventions – states with appalling human rights records.
The real problem of exceptionalism, however, according to Koh, arises when the USA
uses its power to promote a double standard by which it is proposed that ‘a different
rule should apply to itself than applies to the rest of the world’.
Recent well-known examples include such diverse issues as the International Criminal
Court, the Kyoto Protocol on Climate Change, executing juvenile offenders or persons with
mental disabilities, declining to implement orders of the International Court of Justice,
with regard to the death penalty, or claiming a Second Amendment exclusion from a
proposed global ban on the illicit transfer of small arms and light weapons. In the post 9/11
environment, further examples have proliferated: America’s attitudes toward the global
justice system, holding Taliban detainees on Guantanamo without Geneva Convention
hearings, and asserting a right to use force in pre-emptive self-defence… [p.1486]
Perhaps the first two examples – the ICC and the Kyoto Protocol – should be
distinguished from the rest because in those cases the USA did not (publicly) accept
the usefulness of either for the world as a whole or for the United States. But for the
rest the problem is not only the appearance of hypocrisy but the reality. For the USA
to ignore ICJ decisions (the only nation to have done so) and to assert that it may
continue to act in a way that is contrary to internationally accepted standards because
of its constitutional validation leaves similar arguments open to every pariah state
in the world. While the US response is that these other states do not have similar
democratic validation, this has no necessary truth.
11.3.2 The United States, radical exceptionalism and international law

Within the USA, under the George W. Bush regime legal thinking, there were even
some who were prepared to argue that in fact international law was not really law at
all. This is hardly a new perspective. Indeed in 1889 under the heading ‘International
Law’ the Encyclopaedia Britannica’s entry read:
International Law is the name now generally given to the rules of conduct accepted as
binding [between themselves] by the nations – or at all events the civilised nations – of
the world. International law as a whole is capable of being very differently interpreted
according to the point of view from which it is regarded, and its rules vary infinitely in
point of certainty and acceptance. According to the ideas of the leading school of jurists
it is an impropriety to speak of these rules as being laws; they are merely moral principles,
– positive, it is true, in the sense that they are recognised in fact, but destitute of the
sanctioning force which is the distinguishing quality of law. [Vol XIII, p.190]
One influential holder of these views is John Bolton, sometime US Ambassador to the
United Nations in the Bush administration and appointed by President Trump to the
post of Assistant to the President for National Security Affairs (US National Security
Advisor) in the Executive Office of the President (beginning his tenure in April 2018 and
concluding that tenure when he was dismissed in September 2019). But whereas the
1889 author had the grace to add that the problem with that proposition is that it may
‘unduly depreciate the actual force and effect of the system as a whole’, John Bolton
would accept no such qualification. For him the legal positivism of the Austinian kind
(understanding law to be defined as commands from a sovereign backed by the threat
or use of coercion, sanctions or force) is an obvious truth with significant implications
for international ‘law’ and its influence on US policies generally and on the attitudes of
the US administration to human rights in particular.
Bolton’s attack on international law was comprehensive. It was an attack on both

treaty law and customary international law, along with the other usually claimed
sources of international law as found in Article 38 of the Statute of the International
Court of Justice of 1945.
As you will by now be aware, almost all international lawyers and all state governments
are in agreement that at the heart of international law is the crucial principle of pacta
sunt servanda. Acceptance of this principle is one immediate means of distinguishing
international law from international relations. It is because it is a legal principle that it is
generally accepted uncritically. This, however, does not mean that a state will invariably
comply with the principle, just as in domestic jurisdiction not all will obey all laws. Two
points need to be made. The fact of occasional non-compliance in the domestic realm
does not negate the law. The same is true internationally. Second, internationally even
if there is no direct sanction, the act of breaking treaty obligations will rarely be cost
free, though it may be nothing more than a level of opprobrium from other states, or a
hesitancy upon their part to enter into future international legal relations. Universally
accepted though this is, Bolton disputed it. When Bolton claimed in 1997 that, regardless
of the UN Charter, the USA was not bound to pay its dues the response from Robert F.
Turner of the University of Virginia Law School was as follows:
How do we know that international treaty commitments are legally binding? Because
every single one of the 185 [now more] states that are members of the United Nations, and
every one of the few states that are not, acknowledge that fact. Article 26 of the Vienna
Convention on the Law of Treaties recognises the fundamental and historic principle of
pacta sunt servanda: ‘Every treaty in force is binding upon the parties to it and must be
performed by them in good faith’.
To be sure, like some of our own citizens, members of the international community of
states do on occasions violate their legal obligations. But when they do, they never assert
that treaty commitments are merely non-binding ‘political’ undertakings. Stalin, Hitler,
Kim Il Sung, Gadhafi and Saddam Hussein all either denied the allegations against them,
pretended that their acts of flagrant international aggression were really in ‘self-defence’
to a prior attack by their victims, or proffered some other legal basis for their conduct.
Not one of them asserted that treaties ‘were not binding’, because they realised that no
country would accept such a patently spurious assertion – it simply would not pass the
straight-face test.
[Quoted in Murphy, J. The United States and the rule of law in international affairs.
(Cambridge: Cambridge University Press, 2004) [ISBN 9780521529686] p.11.]
Why then did Bolton want to argue that treaties are not legally binding upon the USA
and what would be the implications? There are two aspects to his arguments here. The
first is concerned with the status of treaties in the international world, and the second
with the status of treaties within the domestic jurisdiction of the USA. Internationally it
is the lack of sanction which persuaded Bolton that the obligation to comply can only
be moral or political (neither to be underestimated but, he said, not to be confused
with the legal). If one accepts his premise that it is only the threat or use of sanctions
which makes an obligation legal then his argument is irrefutable. Few would accept
the premise. Legality is not in essence necessarily linked with sanction or punishment.
Rather most lawyers would accept that the legal quality arises from the universal
acceptance of the legal aspect. This is not as circular as it sounds. It is because of the
acceptance of the legal quality of pacta sunt servanda that overwhelmingly most
states, almost all of the time, accept their treaty obligations automatically, and only
very rarely subject them to unilateral reconsideration. Bolton attempted to avoid
this argument by emphasising that his position does not mean that the USA should
not ordinarily comply with its treaty obligations, only that it need not do so. With this
position the debate might seem to be purely semantic, arising from his understanding
of the term ‘legal’. It is more than that simply because by avoiding using the term
‘legal’ Bolton hoped both to elevate the US right to ignore treaties, and to downgrade
the need for compliance.
Bolton effectively admitted this intention when, having observed that ‘In the rest
of the world, international law and its “binding” obligations are taken for granted’,
he goes on to observe of US citizens, ‘When somebody says “That’s the law”, our
inclination is to abide by that law. Thus if “international law” is justifiably deemed
“law”, Americans will act accordingly.’ (Bolton, J. ‘Should we take global governance
seriously?’ (2000) 1 Chicago Journal of International Law 205).
On the other hand, if it is not law, it is important to understand that our flexibility and
our policy options are not as limited as some would have us believe. It follows inexorably,
therefore, that the rhetorical persuasiveness of the word ‘law’ is critically important.
It is manifest, then, and admitted that the argument he made was driven by the end
he wished to achieve – the return of international law to the political world.
If his arguments about the international obligations arising from treaties were
specious, what of customary international law? For Bolton ‘customary international
law’ deserved, at the least, inverted commas expressing incredulity. Of course debates
over customary international law are familiar and continuing and there are problems in
defining when customary international law comes into existence, there are difficulties
in proving opinio juris, there are problems with the position of ‘the persistent objector’,
and there are problems with flexibility and malleability. Such nice jurisprudential
questions had no place in Bolton’s mind. He denied the very existence of customary
law. For him ‘Practice is practice, and custom is custom; neither one is law’.
Again this extraordinarily extreme position is driven by the conclusion which Bolton
sought, namely the view that the USA is not, and should not be, constrained in
its policy decisions or conduct by any customary international law whether in its
international relations or domestically. Internationally, Bolton’s view is that the USA
must pursue its own path. If this path should coincide with what other states regard
as customary international law, that is well and good, but it is coincidence, not
compliance.
As with treaty law, any recognition of customary international law has both
international and domestic significance and implications. This is particularly true in
the area of human rights. Bolton’s fear was that through means other than internal
democratic approval, changes in standards created by ‘the international community’
might affect the USA. Thus internally he feared, for instance, that US courts could
(though he approved the fact that they have generally not) look to developing
international customary law in determining whether the US death penalty might
constitute cruel or unusual punishment. Internationally the effect might be to incur
international legal condemnation for acts seen by the US administration as necessary
for its own security or interests.
It might be thought that these views are so extreme that they tell us little about the
USA in what was, briefly, arguably a ‘unipolar’ world. In fact they were effectively
proffered as a justification enabling the USA to choose to remain outside of the
international legal regime. And not only was John Bolton the holder of an important
US post, constantly concerned with international law, but his position probably
represented that of the majority of the Bush administration. Furthermore he was not
without friends in the academic community. Let us take but one of many possible
examples, Professor Michael Glennon of the Fletcher School of Diplomacy. His concern
with the state of international law predated the events of September 2001, and he
would regard these events as simply reinforcing his earlier arguments. In a book
published in 2001 he had directed his attention to the intervention in Kosovo in
particular and the question of the use of force in general. The title of his book, Limits
of law, prerogatives of power: Interventionism after Kosovo, summarises its content
remarkably accurately. Glennon’s argument was that it is no longer proper, sensible or
accurate to speak of the Charter of the United Nations as bringing legal control over
the use of force in international relations. His conclusion began thus:
With the close of the twentieth century, the most ambitious of international experiments,
the effort to subordinate the use of force to the rule of law, almost came to an end – the
victim of a breakdown in the consensus among member states concerning the most
basic of issues: the scope of state sovereignty. Never a true legalist order, the use-of-force
regime of the UN Charter finally succumbed to massive global disagreement pitting North
against South and East against West over when armed intervention in states’ internal
affairs was permissible. [p.207]
He went on to conclude that such had been the extent of the violation of Charter rules
that it made little sense to speak any more of a legal regime.
Could it be argued, however, that, with the passage of time and the Trump presidency
at an end, the arguments most clearly articulated by John Bolton are no longer
relevant? This seems unlikely as these arguments have been relevant not only to
Republican administrations but also, if to a lesser extent, to Democrat presidencies. It
remains important to recognise the force of the Bolton position.
Activity 11.2
How might it be possible to refute the arguments of those who argue for American
exceptionalism?
Summary
Arguments have sometimes been made that the entire international law regime was
called into question by the fact of a ‘unipolar’ world with but one super power. This
was partly because no other state or states had the power to constrain the USA, and
partly because international law can only move away from the criterion of power
by consent. If the USA elects to ignore international law it sometimes seems able to
reformulate the rules in a way that reflects its own interests. Nevertheless it can be
argued that, able though it may be to ignore international law, for the USA to do so
risks destroying the whole regime to the detriment of all.
1. Provide examples of where the USA has seemed to be consciously and wilfully
breaking or ignoring international law. Are they significant and, if so, how and
why?
2. Does the USA have any interest in maintaining an international legal regime?

u understand that the relationship between law and power does not necessarily
coincide in international law as it does in domestic law
u be aware of the significance of the present ‘power disparity’ state of the
contemporary world
u recognise that some within the United States are willing to argue that
international law is in no real sense law and that this has foreign policy
implications
u explain US legitimations of the use of force.
Recommended additional reading

¢ Bolton, J. The room where it happened: a White House memoir. (New York: Simon &
Schuster, 2020) [ISBN 9781982148034].
¢ Ignatieff, M. (ed.) American exceptionalism and human rights. (Princeton, NJ:

Princeton University Press, 2005) [ISBN 9780691116488].
¢ Murphy, J. The United States and the rule of law in international affairs.
¢ Glennon, M. ‘The UN Security Council in a unipolar world’, Virginia Journal of

International Law (2003) 44, 91.
¢ Mansell, W. ‘Goodbye to all that? The rule of law, international law, the United
States, and the use of force’, Journal of Law and Society (2004) 31, 433.
¢ Mansell, W. and E. Haslam ‘John Bolton and the United States’ retreat from
international law’, Social & Legal Studies (2005) 14, 461.
11.4 The case of Israel and international law
Core text
¢ Mansell and Openshaw, Section 9.4 ‘The case of Israel and international law’.
11.4.1 Israel’s nuclear policy

In a time of unprecedented proliferation of things nuclear (including nuclear
weapons) and now a response which is forceful if belated, as we see in the cases of
North Korea and Iran, the position of Israel is remarkable. India and Pakistan have
recently acquired nuclear weapons, North Korea also seems to have done so and Iran
is suspected by the United States (and Israel) of being in the development phase.
The position of India and Pakistan now seems to be regarded by the international
community as a fait accompli and attempts to sanction them for their nuclear
weapon development have effectively been abandoned. North Korea and Iran have
been informed, implicitly and explicitly, that the acquisition of nuclear weapons is
unacceptable and will lead to action to prevent or destroy. Throughout all of this,
however, Israel has possessed nuclear weapons and the means for their deployment
with very little disapprobation expressed by its powerful friends.
An overwhelming number of states of the world (currently 191) are party to the Nuclear
Non-Proliferation Treaty of 1968 (NPT), which entered into force in March 1970. The NPT
acknowledged the reality that by 1 January 1967, five states (the current veto powers
of the Security Council) had conducted nuclear weapons tests and they were defined
as ‘existing nuclear weapons states’. Article 1 of the NPT provided these five states with
particular obligations not to transfer these weapons or to assist in their acquisition by
other states. They were also obliged to pursue nuclear disarmament (Article 6). Other
states were able to join or accede to the NPT and their obligations were to not receive
or seek to acquire nuclear weapons and to accept safeguards (verification of non-
acquisition and/or development) from the International Atomic Energy Agency (IAEA).
The reward for such states was access to nuclear energy technology for ‘peaceful’
purposes. Neither Pakistan nor India is a party to the treaty while North Korea, which
was a party, declared its withdrawal in 1993 and 1994 from the IAEA (but whether it did
so within the terms of the treaty is questionable). Its withdrawal, initially suspended,
was reactivated in 2003. Iran has been a party since 1970. Both North Korea and Iran
have incurred the wrath of the USA for what it regards as breaches of treaty obligations
and both the USA and Israel have stated that force might be necessary to prevent Iran
from completing the development of nuclear weapons. As mentioned in Section 6.5,
President Trump withdrew from the multilateral pact concluded in 2015 between
Iran and the USA, Russia, China, the UK, France, Germany and the European Union.
Known as the Joint Comprehensive Plan of Action (JCPA), the agreement placed various
restrictions on Iran’s nuclear programme (in an attempt to prevent it from developing
nuclear weapons) in return for the lifting of economic sanctions against the country.
As a result of the American withdrawal, Iran threatened to withdraw from the NPT,
although it has not yet done so – and may not, should the Biden administration return
to the JCPA.
In an interview in January 2005 the Israeli defence minister, Shaul Mofaz, who in the
past had stated that Israel had operational plans in place for a (pre-emptive) strike
against Iranian nuclear facilities, argued that the USA should take such steps. Seymour
Hersh, an American investigative journalist, had previously reported that the USA
already had special forces in Iran scouting out its nuclear facilities.
How different is the case of Israel. By the time of the NPT, to which Israel is not a party,
there is strong evidence that it already had, or was on the point of developing, a
small number of nuclear weapons. Production was located at Israel’s nuclear facility
in Dimona, in the Negev Desert south of Jerusalem. Hersh argues convincingly that
Israel’s nuclear developments were made with major co-operation and collaboration
with France, beginning even before the Suez war of 1956. It is clear that in the earliest
days of the state of Israel a number of significant Israelis were convinced that nuclear
weapons would be crucial in providing a guarantee in a hostile world. The Chairman
of the Israel Atomic Energy Commission (Ernst David Bergmann), which was formed
in 1952, had long advocated an Israeli nuclear bomb as being crucial in ensuring ‘that
we shall never again be led as lambs to the slaughter’. Ben Gurion, the most powerful
Israeli at that time, similarly laid emphasis upon the security ‘the bomb’ would bring.
The role of the USA in the Israeli development of nuclear weapons is neither clear nor
consistent. Certainly all the initial development was with France, and Israel was at pains
to hide its plans and actions from the USA. When the USA became suspicious of the
activities of Dimona, Israel carefully misled any who asked questions, and even went
to the lengths of substantial subterfuge when Dimona was visited. On occasions even
the President of the USA was simply lied to, as when Shimon Peres told John F. Kennedy
in April 1963 in answer to a direct question: ‘I can tell you forthrightly that we will not
introduce atomic weapons into the region. We certainly won’t be the first to do so. We
have no interest in that. On the contrary, our interest is in de-escalating the armament
tension, even in total disarmament.’ Kennedy did his best to ensure that that was the
case, but his efforts were ineffectual. Finally, when in 1963 it became clear that both
France and Israel were in at least the preliminary stages of bomb manufacture the USA
seems to have been persuaded to take what was seen as a ‘pragmatic’ approach. This
primarily meant not seeking explicit answers to explicit questions.
While subsequent US presidents differed in the detail of what they did, none was
prepared to publicly state what increasingly became public knowledge. Indeed
when Israel co-operated with apartheid South Africa to test a nuclear device in the
Indian Ocean, the Carter administration (probably the presidency most concerned to
encourage non-proliferation) took steps to ensure that the event received minimal
publicity. Even when the Israeli nuclear technician, Mordechai Vanunu, provided the
British Sunday Times with descriptions and photographs of Israeli nuclear warheads
– information which suggested to informed observers that Israel was in possession
of between 100 and 200 nuclear devices – disinterested publication, particularly
in the United States, was limited. Israel has never been placed under pressure to
accede to the NPT by the USA or its allies, nor yet to agree to inspections from the
IAEA. Furthermore, ‘for many years [the US] Congress has made it clear to the Nuclear
Regulatory Commission and other responsible parties that they did not want to have
anything revealed in an open hearing related to Israel’s nuclear capability’.
In brief, then, Israel’s position with regard to nuclear weapons is unique. It has been
determined both to possess a large arsenal of nuclear weapons and to refuse either to
admit to their existence or to tolerate inspection. Yet ironically it is this position which
arguably persuaded such states as Iraq and Iran of the need for reciprocity. There is
evidence too that Israel has in the past even contemplated the use of nuclear devices
(in 1973). While not everyone would share Israel Shahak’s thesis that the possession
of nuclear weapons is intended to make Israel not merely defensively secure, but also
secure as the regional power in the Middle East, it is clear that such ‘defensive’ ability
has implications beyond defence.
It is scarcely surprising, then, that the IAEA Director-General, Mohamed El Baradei,

observed when addressing a meeting in Israel in 2004 that he was ‘constantly
questioned about Israel’s refusal to sign the Non-Proliferation Treaty that would put
its nuclear facilities under IAEA supervision’. He said, ‘this perceived double standard is
leading to an erosion of the legitimacy of the NPT in the Arab world’.
Three final points arising from Israel’s nuclear policies need to be mentioned for their
international law implications. Israel’s insistence that it should remain the only state
in the region with nuclear capability led of course to one manifestation of its policy
of pre-emptive use of force. Saddam Hussein’s Iraqi government had, with French
help and French design, built a light water nuclear materials testing reactor known as
Osirak (or to the Iraqis as Tammuz 1). The Israelis doubted Iraqi claims that the reactor
was for peaceful purposes, although it was under IAEA supervision and had been
regularly inspected. It was destroyed by an Israeli air strike in June 1981. Secondly, of
course, the kidnapping, drugging and returning to Israel of the informant Mordechai
Vanunu was hardly consistent with Italian sovereignty (Vanunu was seized in Rome).
Thirdly, when the Iranian nuclear scientist, Mohsen Fakhrizadeh, was assassinated in
Iran in November 2020 (almost certainly executed by Israel), he joined at least four
others who were certainly killed by Israel in Iran in 2010 and 2011.
In a related matter, although Israel has signed the Chemical Weapons Convention of
1993 (administered by the Organisation for the Prohibition of Chemical Weapons),
it has never ratified the treaty that has no fewer than 192 state parties. While Syria
acceded to the treaty in 2013, only Egypt, North Korea and South Sudan (and the
Occupied Territories) remain outside.
11.4.2 Israeli land acquisition, occupation and annexation

This section is concerned only with territory which was brought under Israeli control
after the 1967 war. This is not because there is no controversy over territory not
allocated to an Israeli state by UN Resolution but acquired in the 1948 war but rather
because the prospect of any Palestinian state recovering any land beyond the pre-1967
borders seems remote and probably unrealistic. It should, however, be mentioned
that Israel is the only state in the world not to have a defined and bounded territory,
which does lead to continuing debate even within Israel. Thus the territory which
falls for consideration is East Jerusalem, the Golan Heights, the West Bank and (until
comparatively recently) Gaza.
At first sight, international law concerning the acquisition of territory seems

deceptively clear and straightforward. The UN Charter provides:
All Members shall refrain in their international relations from the threat or use of force
against the territorial integrity or political independence of any state, or in any other
manner inconsistent with the Purposes of the United Nations.
In turn this proscription of the use of force has been inferred to have the effect that
where use of force does occur, contrary to Article 2(4), any consequent territorial
gain would be unlawful and, while it might amount to an occupation, could not lead
to a transfer of sovereignty. Furthermore, although Article 51 does allow self-defence
this is for the limited purpose of repelling aggression. Seemingly, then, when a state
acting in self-defence occupies territory, it cannot then acquire sovereignty over that
territory. And Security Council Resolution 242, passed in the aftermath of the 1967
war, stressed the inadmissibility of the acquisition of territory by war. In addition the
1970 Declaration of Principles of International Law, annexed to UN General Assembly
Resolution 2625, provides that:
The territory of a state shall not be the object of acquisition by another state resulting
from the threat or use of force. No territorial acquisition resulting from the threat or use of
force shall be recognised as legal.
The immediate inference might therefore be that Israel could never acquire
territory permanently that it had conquered in 1967. This position is certainly held by
governments of the overwhelming majority of states in the UN, and it was re-stated
explicitly in Security Council Resolution 2334 of 2016 (by 14 votes in favour with the
USA abstaining). But it is not, as we shall see, one which goes unchallenged either
explicitly (as in the case of Israel) or implicitly (as in the case of the USA).
Of the now territories which remain occupied since 1967, two – East Jerusalem and the
Golan Heights – are distinct in the claims Israel has made over them. Although East
Jerusalem had been an integral part of the East Bank within Jordan, conquest steps
were quickly taken by the Israeli government with a view to ensuring that it became
effectively not merely occupied territory but Israeli territory. On the very day of the
conquest the then Defence Minister, Moshe Dayan, visited the Jerusalem Western Wall,
proclaimed that Jerusalem had been ‘liberated’ and stated, ‘We have united Jerusalem,
the divided capital of Israel. We have returned to the holiest of our Holy Places, never
to part from it again’. West Jerusalem had been declared by the Israeli Knesset to be
Israel’s capital city in 1950, while in the same year Jordan had formally incorporated
the West Bank (together with East Jerusalem) into Jordan. Jordan’s assertion of
sovereignty however was qualified by the parliament, stating that it acted ‘without
prejudicing the final settlement of Palestine’s just case within the sphere of national
aspirations, inter-Arab co-operation and international justice’.
In 1967 the 1950 declaration of the status of West Jerusalem as Israel’s capital was
effectively amended to extend Israel’s jurisdiction over East Jerusalem, not as an area
of occupation but as an integral part of Israeli Jerusalem. Very quickly some 6,000
Palestinians were evicted from the Old City in order to create an open space before the
Western Wall. When the UN General Assembly called upon Israel to ‘rescind all measures
taken [and] to desist forthwith from taking any action which would alter the status of
Jerusalem’, Israel responded by confiscating significant quantities of Palestinian land in
East Jerusalem (some 450 acres in the first three years of occupation).
Worse still for the Palestinians, whereas the municipal boundaries of East Jerusalem as
administered before 1967 included 6.5 square kilometres, Israel added an additional 70
square kilometres to the land it purported effectively to annexe. The annexation was
made formal by the Israeli government on 30 July 1980 in a declaration that Jerusalem
was the ‘eternal undivided capital’ of Israel. Condemnation of the declaration came
quickly from the UN Security Council. Within a month a Resolution was passed declaring
that ‘all legislative and administrative measures and actions taken by Israel, the
occupying power, which have altered or purport to alter the character and status of the
Holy City of Jerusalem…are null and void and must be rescinded forthwith’. Remarkably
the Resolution was passed by 14 votes to zero with the United States abstaining.
Nevertheless the assertion of annexation was never withdrawn and from 1967 Israel
has determinedly promoted the policy of settling Jewish people within its defined
Jerusalem municipal borders. Much land owned by Palestinians has been confiscated
and expropriated and, perhaps most significantly of all, Israel has always refused to
allow the sovereignty of its defined Jerusalem to be a part of any peace negotiations.
Until December 2017, the view taken by the international community was that the
final status of Jerusalem could be decided only in a final negotiated settlement. This
issue has now been complicated by the decision of President Trump to move the US
Embassy from Tel Aviv to Jerusalem, thus effectively granting recognition of Jerusalem
as the legitimate capital of the state of Israel. The move, overwhelmingly condemned
by the international community, took place in May 2018. In response, the Palestinian
government has commenced proceedings against the USA in the International Court
of Justice, arguing that in doing so, the USA breached its international obligations –
Relocation of the United States Embassy to Jerusalem (Palestine v United States of America)
www.icj-cij.org/en/case/176 Questions of jurisdiction and admissibility will require
initial consideration.
The other territory occupied after the 1967 war which Israel has purported to annexe
is the Golan Heights captured from Syria. The purported annexation took place in the
Israeli Knesset in December 1981. The motives for this action were twofold. The first
was that the area ‘annexed’ had important security and strategic significance and
between 1948 and 1967 had been used as a base from which to shell Israel. This was
contrary to the Israel-Syria Armistice Agreement made after the 1948 conflict but the
Commission which oversaw the implementation of the Agreement reported many
violations by each side. Indeed Moshe Dayan himself once observed that the shelling
was most often a response to Israeli provocations in the demilitarised zone. The second
impetus towards annexation concerned the water resources of the region. In an area
of some 1,860 square kilometres the Golan contains some 80 springs, the head waters
of the Jordan River together with tributaries and the Masada Lake. The annexation was
rationalised partly in defence terms and partly (by Menachim Begin) by suggesting
that the original drawers of boundaries were arbitrary in their defined borders and this
should be seen as a rectification.
Here again the response of the United Nations and the international community was
immediate and ineffective. Security Council Resolution 497 made all the appropriate
noises. It reaffirmed the inadmissibility of the acquisition of territory by force, it
stated that Israel’s attempt to incorporate the Syrian Golan Heights was null and void
and without international legal effect, it confirmed the continuing relevance of the
Geneva Convention and resolved, in the event of non-compliance, to meet again to
consider taking appropriate measures. The non-compliance led to a further meeting
of the Security Council and the consideration of a draft resolution calling upon all
states to take steps to ensure compliance with Resolution 497. Significantly but not
unexpectedly the proposed resolution was vetoed by the USA.
In the period of occupation since 1967 the Golan Heights have also been the object
of Israeli settlement and by 2015 there were 34 settlements with more than 20,000
settlers claiming a reconnection to a Jewish legacy in the region. At the time of the
1967 war, many of the Syrian inhabitants fled and have not been permitted to return.
Building work is continuing, with the Syrian civil war, and there seems to be no
immediate prospect of compliance with clear international law. Remarkably, on 25
March 2019, by way of a presidential proclamation, President Trump recognised the
Golan Heights as a part of Israel. In November 2019, the USA went rather further and
declared that Israeli settlements on occupied Palestinian land are ‘not necessarily
illegal’. While this pronouncement is a dramatic reversal of traditional US acceptance of
international law, it also has the potential to disrupt one of the basic principles of post-
1945 international law, which clearly proscribes the acquisition of territory by force. The
implications for the status of territory annexed by Russia are yet to be examined.
Israel’s actions as exemplified above are explicitly contrary to international law.

The result has been that the many states that support Palestinian rights of self-
determination are less persuaded of the neutrality of international law than would be
the case if there were real (if formal) sovereign equality. The future of international law
as a legal system rather than as an aspect of international relations depends upon its
acceptance as a system in which the rule of law operates.
Finally, the ICJ’s Advisory Opinion of 2004 considering the Legal Consequences of the
Construction of a Wall in the Occupied Palestine Territory, should be remembered. (See
Chapter 8, Section 8.4.2.) While of course this Opinion does not directly bind any state, it
is the clearest possible rejection of any legal annexation of territory acquired by force.
Activity 11.3
What are the implications for international law of unconditional US support for
Israeli settlements, nuclear policy and occupation?
Summary
The lack of Security Council condemnation of Israeli actions that are clearly contrary
to international law has diminished the positive role for peace and security which that
body might play. Although Israel’s nuclear policy has never been declared unlawful,
this in itself might encourage those who feel threatened by it to take steps to counter
it. Policies of territorial acquisition and annexation, while not accepted by the
international community have avoided Security Council condemnation only through
the use of the US veto.
Recommended additional reading

¢ Bergman, R. Rise and kill first: the secret history of Israel’s targeted assassinations.
(New York: Random House, 2018) [ISBN 9781473694712].
¢ Hersh, S. The Samson Option: Israel, America and the bomb. (London: Faber, 1991)
[ISBN 9780571166190].
¢ Polakov-Suransky, S. The unspoken alliance: Israel’s secret relationship with

apartheid South Africa. (New York: Pantheon Books, 2010) [ISBN 9780375425462].
¢ Quigley, J. The case for Palestine: an international law perspective. (Durham, NC:
Duke University Press, 2005) [ISBN 9780822335399].
¢ Shahak, I. Open secrets: Israeli nuclear and foreign policies. (London: Pluto Press,
1997) [ISBN 9780745311517].
¢ Zunes, S. Tinderbox: US Middle East policy and the roots of terrorism. (London: Zed
Books, 2003) [ISBN 9781842772591].
Do you think that Iran’s efforts to obtain nuclear power (and possibly arms) are
contrary to its obligations under the Non-Proliferation Treaty?

u understand the significance of the ability of Israel to flout international law
because of its relationship with the USA
u appreciate the effect of such protection upon the perception of international law
by other states
u draw some conclusions about the relationship between power, justice and
international law
u formulate a critical position appreciating both the strengths and weaknesses of
the contemporary international law regime.

Question 1 What case may be made for American exceptionalism? Can it be refuted?
Question 2 Consider the significance of the inability of the Security Council to ever
condemn Israeli actions even when clearly contrary to international law.

Question 1 This question is best approached by recognising that there are two
separate cases to be made. The first is based upon the factual reality. In fact the USA
has sufficient power for there to be clear limitations upon the amount of coercion
towards compliance with international law by the international community.
Nevertheless it must be recognised that this will not be true for all situations at all
times. Strength of opinion, particularly from the allies of the USA, does affect US policy
both directly and indirectly (through influence on public opinion). The present debate
concerning torture and ‘extraordinary rendition’ is of relevance.
In the alternative a case can be made that theoretically because the USA is the only
military superpower (although not in capacity for nuclear destruction) there is none of
the balance in international relations upon which international law depends. Michael
Glennon’s work reflects this point of view. This theory might suggest that at least at the
moment it is only the USA that is entitled to a one-vote veto in the Security Council.
Finally it would be appropriate to consider the wider implications (not least for
the USA) of exceptionalism. Refutation could come by showing that in spite of its
power there have been many situations in which the USA has relied heavily upon
international law when its power proved irrelevant. The Teheran Hostages Case would
be one example.
Question 2 This question requires an outline of Israel’s many infractions of

international law and their seriousness. It requires some familiarity with the
law relating to territorial acquisition, occupation obligations under Geneva IV,
international humanitarian law and the law of self-defence. The ICJ’s decision
concerning the ‘security fence’ is relevant, as are the dissents from majority positions.
At this point it is appropriate to consider the disillusionment with the Security Council
of those who have attempted to promote the cause of Palestinian self-determination.
Comparisons between the votes in the General Assembly and the votes in the Security
Council would be helpful.
Feedback to activities
Contents
Chapter 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 217
Chapter 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 217
Chapter 4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 218
Chapter 5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 219
Chapter 6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 220
Chapter 7 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 221
Chapter 8 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 223
Chapter 9 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 223
Chapter 10 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 225
Chapter 11 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 226
Public international law Feedback to activities page 217
Chapter 2
Activity 2.1
This requires a consideration and synthesising of the readings. International law is
first and foremost the means by which the relations between nations are regulated.
But because international law usually depends upon the consent of those it governs,
international law is not identical to domestic law. Rather international law is said to be
a horizontally organised system rather than a system where the rules come down from
legislatures. Although states are the main subjects of international law this does not
preclude other bodies, or even individuals, from being subjects for some purposes.
Activity 2.2
Describing the differences is straightforward. To account for them is less easy. The
differences derive from the fact that the international system does not mirror the
organisation of a state. Because the relationship of the subjects of international law is
usually one of formal sovereign equality, a majority has no power to promulgate rules
for the minority. In addition, there is no equivalent of a domestic constitution and
hence no division of powers.
Activity 2.3
The short answer is that there has never been the international will between states
to create or accept a supra-national authority. World governance would be a move
away from the current distribution of power and so would be resisted by the powerful
states. It would also be impossible to encompass the world’s cultural diversity.
Although it can be argued that international law is universally applicable, this does not
mean that it is universally enforceable, or even – sometimes – appropriate.
Activity 2.4
It is perhaps ironic that such consequences as there are, are difficult to understand for
those imbued with Western law. But the consequence is suspicion of international law
on the part of some non-Western nations and their people. After all, it is international
law that upholds the legal obligations of the poorest nations to repay international
debt. A further consequence has been a move towards cooperation not framed in
legal terms.
Activity 2.5
International law is a different way of understanding issues that arise in international
relations. It has been described as a distinctive ‘mode of discourse’ by which is meant
that it functions by selecting facts which allow a ‘judicialisation’ of issues. The art of
international law lies in selecting legally relevant facts, which often will not be those
of most relevance in the eyes of the parties. International law can be seen as one of the
tools of international relations.
Chapter 3
Activity 3.1
Article 38 of the Statute of the International Court of Justice is apparently restricted in
its application, being directed only to that court. However (possibly because there is
no other authoritative statement) Article 38 is generally accepted as a starting point
in the definition of sources. Because of a lack of agreement it is difficult to clarify the
sources of international law. In addition, of course, there is no body with the power to
lay down such a definition.
Activity 3.2
This would seem to be a statement that is largely but not entirely true. Unanimity
or something approaching it in a General Assembly Resolution might have the same
effect. It can also be argued that most treaties, rather than creating law, create
obligations which the law will enforce.
Activity 3.3
Peremptory norms have developed as a response to views that some international
conduct should simply be outlawed and no exceptions should be contemplated. This
might have developed in part as a reaction to apartheid and in part as a reaction to
the Holocaust. It might also be argued that less powerful states have an interest in re-
asserting the strength of sovereignty to prevent intervention by the powerful.
Activity 3.4
Complications that arise, although significant, are manageable. They arise from
the fact that if many parties have different reservations, each party is likely to have
different obligations to those parties with a different reservation. This arises from the
fact that each reservation has a reciprocal effect upon obligation. The registering of
treaties and reservations makes this transparent however.
Activity 3.5
In brief, the problems arise from the method of creation (not very clear), the method
of identification and the method of application. Some use of ICJ decisions will suggest
that the decision as to whether or not customary law is in existence may be a political
rather than legal one. It is also difficult to isolate opinio juris.
Activity 3.6
The international law regime is not a complete one. Treaty and custom alone cannot
answer all the questions that arise in unique cases. Therefore it is essential to have
some rules that allow the application of widely accepted general law and even equity.
The debate, however, over the identification of law from other sources has meant that
they are used more rarely than might be expected.
Activity 3.7
The development of the category of ‘soft’ law almost certainly arose because parties
to agreements did not wish to create legal relations but did wish to give undertakings
of good faith – although these were to be unenforceable. Often agreements are to
‘promote’ or ‘work to achieve’ particular goals. Such agreements also avoid leaving
arbitration or supervision to bodies beyond the parties themselves.
Chapter 4
Activity 4.1
The readings should have provided the answer here. Sovereignty is concerned with
statehood, of which it is a central attribute. In essence it is the power each state
possesses as a state. Primarily this includes the power to govern all those within the
state’s borders. It used to be theorised that sovereignty brought absolute power to
a state regime over its inhabitants, but this was never entirely true because of inter-
state relations. Since the creation of the United Nations, at least theoretically every
state is constrained by fundamental norms of human rights and by the international
agreements to which it is a party. Sovereign equality is a central proposition in
international law but it is of limited significance – primarily before judicial bodies.
Activity 4.2
When in the 19th century states were the only subjects of international law, the entire
concept of international law was significantly different from the situation today.
In particular (as observed in Chapter 2) international law tended to be descriptive
of how nations conducted their international relations. The normative element of
how nations ought to conduct themselves was much less obvious than it is now.
The tradition of the primacy of states is maintained in the ICJ where only states
have standing unless an advisory opinion is being sought. Only states could and can
enter into treaties subject to the Vienna Convention on the Law of Treaties. Finally, if
states were to be the only international law subjects, individuals could not be held
responsible under international law for international crimes.
Activity 4.3
Legal personality in international law may be defined as that status which provides
standing or identity allowing an individual or body to be a subject, at least for
some purposes, of international law. Only states are said to have full standing,
intergovernmental bodies rather less because they have no standing before the ICJ,
and individuals even less because their personality provides status only in human
rights matters.
Activity 4.4
The development of the status of the individual in international law came about
due to a number of factors. First, domestic law had proved inadequate to deal with
those who committed what were accepted as international crimes. Following the
atrocities committed by the Axis powers in the Second World War, the victorious
Allies (led in this by Stalin and initially opposed by Churchill) formed the International
Military Tribunal which asserted a right to try individuals charged with international
crimes. Second, this was a time when the concept of individual human rights became
prominent. If these were to be protected on an individual basis, individuals necessarily
had to have some status in international law. It should be added that this emphasis
upon the rights of the individual was not treated with universal approval and the so-
called communist states in particular regarded the protection of individual rights as
incompatible with the rights of the people as a whole, and with the rights of the state.
Activity 4.5
Sovereignty and personality are interrelated in that both are dynamic concepts,
changing in a way made necessary because of political and social change. In particular
the right theoretically inherent in sovereignty – that of absolute control of a state’s
territory – came to be constrained by international law which made the protection
of individual human rights a superior principle to sovereignty. In turn this protection
of human rights altered the status of individuals in international law and redefined
legal personality. Similarly, as state sovereignty is constrained by treaties into which a
state has voluntarily entered, so too have intergovernmental bodies created by such
treaties come to have personality for many international law purposes.
Chapter 5
Activity 5.1
This distinction reflects the difference between the theoretical absolute power of a
state within its borders, and the reality of the confines of power. The absolute power
(of course in fact greatly constrained by political and even treaty realities) allows
the sovereign legislature to pass any enactment it wishes over any matter wherever.
There is no power to strike down such a duly passed law (subject only to the internal
constitutional rules). On the other hand, problems of enforcing such an expression of
absolute power may well be insuperable. And international law has developed rules
relating to the exercise of jurisdiction which limits what can lawfully be done. It is
necessary to observe that the more powerful a state, the more it will be able to assert
extra-territorial jurisdiction.
Activity 5.2
The concept of jurisdiction is intimately related to the concept of the power of a state.
It has power (jurisdiction) over its territory, and power over its nationals, although
it may only be able to exercise the latter if the national is within the territory. Such
jurisdiction is uncontroversial, as is what is known as the protective principle. This
allows the claim of jurisdiction relating to acts committed outside the territory of the
state but intended to harm the interests of the state. There is international acceptance
that jurisdiction may be claimed in these circumstances. Beyond these categories
there are other occasions when jurisdiction is claimed but the acceptance of these is
not universal. In other claims of jurisdiction the strength and success of the claim will
often depend upon the power of the state making the claim.
Activity 5.3
What distinguishes the non-controversial bases for jurisdiction from the controversial
seems to relate to the closeness of the relationship between the act done and the
state claiming jurisdiction. Thus with jurisdictional claims resting upon territory,
nationality or under the protective principle where the act beyond the borders is
harmful to the state asserting jurisdiction, there is little dispute. On the other hand,
where the state asserting jurisdiction has little or no direct connection with the act,
the claim is more tenuous. Although it might be thought that universal jurisdiction
would be an exception to this principle, as it is concerned with the enemies of all,
most states have not asserted universal jurisdiction and neither have their courts.
With regard to the ‘effects’ doctrine and passive personality jurisdiction it seems
that only states of significant power will be inclined to assert such jurisdiction, in the
expectation that their power will prevent extensive or effective criticism.
Activity 5.4
Immunity from jurisdiction has its roots in the very foundations of international
relations. International comity dictated that reciprocal benefits and privileges be
granted to ensure the avoidance of conflict. State immunity recognised that equals
could neither command nor adjudicate upon each other, except with consent.
Nevertheless such broad immunity became problematic as states became more
and more involved with commerce. For a significant period of history even these
activities carried immunity but this both disappointed those against whom states
claimed immunity, and probably dissuaded contractual relations with states unless
some redress in the event of breach was provided. A consideration of Trendtex is
relevant to show how the English court managed to follow a Privy Council decision,
inconsistent with prevailing House of Lords doctrine. Finally the State Immunity Act,
1978 brought the law of the UK into line with prevailing European opinion and defined
and restricted the immunity. The primary effect was to make clear that activities which
were primarily commercial in nature would no longer attract immunity.
Chapter 6
Activity 6.1
This activity is aimed at testing your familiarity with the Vienna Convention. It is
reasonable to note at the outset that the exact status of particular articles of the
Convention – that is whether they simply codify existing customary international law,
or whether they go further but have been accepted as now stating the customary law
that has developed, or whether they are innovative and so binding only on parties to
the Convention, remains contentious. It is however clear in the case of most important
provisions. Thus Articles 60, 61 and 62 have been accepted as codification. Articles
relating to reservations are not pure codification as there were matters of contention
in customary international law which the Treaty aims to clarify. Those relating to
coercion are probably not simply codification although customary international
law had been developing towards this position. Under Article 53 a treaty is void if
it conflicts with an existing rule of jus cogens and Article 64 provides that a Treaty
becomes void if it conflicts with an emerging rule of jus cogens. These provisions are
the matter of disagreement between states as to their status.
Activity 6.2
At first sight the concept of treaty reservations seems incompatible with the
agreement necessary for a treaty. Parties not wholly in agreement are able to have
treaty relations. This has largely been a pragmatic solution to a practical problem
allowing reservations to enable a number of states to be voluntarily bound by at least
some of the central provisions of the treaty if such reservations are compatible with
the treaty’s object. It is always possible to draft a treaty not permitting reservations if
this is thought to be necessary. A reservation never enables one party to be bound to
any other except reciprocally.
Activity 6.3
Peremptory norms have developed as a response to views that some international
conduct should simply be outlawed and no exceptions should be contemplated and
no derogation possible. Nevertheless, while the proscription of slavery or apartheid or
genocide are clearly peremptory norms, some other rules receive less agreement and
there is often disagreement among developed and less-developed states as to which
norms should be given that status. Of particular concern to some states (especially the
USA) is the acceptance by the ICJ that the prohibition on the threat or use of force has
achieved this status. Self-determination and the sovereign equality of states are also
controversial peremptory norms.
Activity 6.4
No feedback provided.
Activity 6.5
As interpreted by both the ICJ and most international lawyers, the basic legal
principle of pacta sunt servanda must be maintained even if this leads to manifest
hardship. Parties to treaties have time for reflection and negotiation, while coercion
will invalidate a treaty. Thus it seems right that willing parties to treaties should
be able to rely on performance. Furthermore it is because of the binding nature of
treaties that international law has such power as it does. Nevertheless the position
is not quite as clear as this would indicate. If applied strictly it will mean that new
democratic regimes will be bound by the treaties entered into by their undemocratic
predecessors. The rule also suggests that it is inappropriate for what turn out to be
hard bargains to be escaped from. Although this is common sense, in international law
it is perhaps less obvious than it might seem.
Activity 6.6
Here you need to understand why Hungary felt aggrieved by the decision. (So too did
Slovakia but that is not relevant here.) In particular Hungary might argue that what
had fundamentally changed was not the facts, but knowledge of the facts, and that
this effectively meant that the treaty obligations became impossible to perform. This
was because with new environmental knowledge it became clear that environmental
protection as envisaged in the Treaty simply could not be complied with. Additionally
the state that had entered into the agreement had a non-democratic government and
it does not seem appropriate to regard this fact as irrelevant. Might it not be better
if states entering into agreements with non-democratic states were forced to take
the chance of invalidity of treaty in the event of the coming to power of a democratic
government – at least unless it could be shown that the treaty was arguably in the
interest of the people of the newly democratic state? Is there not room for a wider
interpretation of Articles 60, 61 and 62 than is provided for by the ICJ?
Chapter 7
Activity 7.1
It is difficult to imagine that those who devised the mandate system that was
directed towards self-government (even if in the unforeseeable future) foresaw that
decolonisation would be an inevitable result. Indeed the colonies of the victorious
allies of the First World War were explicitly excluded at this time from international
concern. Nevertheless once the principle of progress towards self-government
was accepted for some states it was difficult to argue that it should not apply to
all. Perhaps the attempts of European colonial powers to exclude their colonies
from UN scrutiny suggested how coercive this argument had become. It should
not be forgotten, however, that most of the impetus for independence came from
the colonies themselves and not simply in UN discussion. Regardless of whether it
was accepted that decolonisation was a right, many colonies would have achieved
independence by force.
Activity 7.2
While general answers can be given, it should be added that each act of decolonisation
and self-determination was unique with different histories and relationships with
the colonial power. The self-determination and independence of Asian colonies was
also significantly different from that of African colonies. Similarly the difference in
the consequences of self-determination and independence for each new state was
marked.
Nevertheless, at least for African states it is possible to say that they often came to
independence within colonial boundaries which were inappropriate for settled
statehood. It can also be asserted that often the colonial powers had done less
than they might to educate the indigenous population for self-government. In
addition, very often colonial investments continued to pay dividends to the colonial
shareholders and the right of economic self-determination was difficult to achieve.
A further general problem lay in the world trading regime, which tended to operate
against the interests of producers of primary resources. Lastly, less help was provided
to counter the under-development that arose from colonisation than could have been
expected, in spite of the efforts made through international law.
Activity 7.3
There were always problems associated with declaring the right to self-determination
a human right. It was difficult to know who the holders of the right were and it was
hard to define who was obliged to grant the right. What could not be doubted was the
purpose of including the right in the Covenants. This was to stress the centrality of the
cause of decolonisation to the majority of UN members.
With the completion of the process of decolonisation, however, and with general
acceptance that secession was unrelated to a right to self-determination, the
proclaimed human right seems to be redundant. The exception to this assertion,
however, is probably to be found in the unfulfilled claim to economic self-
determination. Attempts continue to be made to assert this and related claims
(particularly the right to development) as human rights, no doubt for reasons of
rhetoric.
Activity 7.4
The significance of recognition is that it is an indication of the recognising state’s
willingness to treat the recognised state as a state. The academic question is whether
without such recognition a state may be said to exist notwithstanding. The answer
is probably a qualified ‘Yes’. It is not uncommon for states to be recognised by only a
limited number of states. Taiwan, for instance, is recognised by only 23 generally very
small states and does not exist as an independent state in the eyes of most states or
in the view of the United Nations. The correct position is probably that unrecognised
entities do not exist as states for those who withhold recognition, but do for those
who do. Reference should also be made to the distinction between recognition de
facto, and recognition de jure.
Activity 7.5
This requires consideration of the changes to the law of the sea since the Second
World War. It seems to be demonstrably true whether one thinks of the territorial
sea, the continental shelf, the EEZ or even the deep sea bed. Those states with
coastlines have been legitimated in their acquisition of new property rights. Attempts
to distribute such property rights more equitably have largely been defeated. It is
important to be able to explain the essence of the new regime and to show how little
it has in common with the concept of ‘the common heritage of mankind’. Altruism in
the division of the spoils is conspicuous only by its absence.
Chapter 8
Activity 8.1
This required a description and consideration of the form and structure of the ICJ. It is
open to criticism because its history suggests that it is a male dominated institution in
which the judges are selected in a way which predisposes a particular legal ideology.
In spite of the emphasis upon internationalism it can be argued that the Court remains
imbued with European legal thinking (though not everyone would see this as a
defect). The geographical distribution of judges is also questionable, especially the
factual reservation of places for each permanent member of the Security Council. The
exodus from the Court of two members whose minority views disagreed significantly
with the majority in the Threat or Use of Nuclear Weapons Case is also important. Finally,
because of the opacity of the process by which judges are actually chosen it is difficult
to feel confident in the process.
Activity 8.2
Nicaragua v USA highlights and exemplifies several features of international judicial
adjudication. It is important for its discussion of reciprocity in the terms in which
the ICJ’s compulsory jurisdiction is accepted. It is important in its discussion of the
relationship between customary international law and treaty law. Most importantly it
considers the meaning of the prohibition on the threat or use of force in international
law, the inherent right of self-defence and the principle of non-intervention.
Unfortunately, just as importantly it demonstrates the limitations of judicial power in
the face of an intransigent and powerful state. This in turn emphasises the need for
state consent if judgments are to be effective.
Activity 8.3
No doubt when the Charter and the Statute of the International Court were drafted
it was envisaged that it would be important, particularly for the institutions of the
United Nations, to be able to obtain legal opinions that would clarify legal questions
that might arise as to the scope of their duties and obligations. This was also true with
regard to the scope of the rights, duties and obligations of states given to them in
the Charter. Such a narrow interpretation of legal questions that might arise did not
survive for long. It became clear that such purely legal questions, as for instance were
addressed in the Certain Expenses Case, were much less common than legal questions
with obvious political overtones and implications. But the Court has held that the
mere fact that there are political aspects to the question asked does not mean that
it should not be answered. Even if the effects of such judgments are less than the
Court might hope, it has to be remembered that advisory opinions are not binding
but do carry considerable influence. It may be argued that even if this is the extent of
the effect of a decision, it is of relevance to the body requesting the opinion. Even in
the Palestinian Wall Case the effect has been that no-one seriously argues that Israel’s
wall building is anything other than illegal. In the longer term this may prove to be
important.
Chapter 9
Activity 9.1
The Hague Peace Conferences have remained of significance after more than one
hundred years. The Conventions that were produced at the Conferences moved
towards defining the rules that belligerents must follow in the course of hostilities.
They were also concerned with the pacific settlement of international disputes and
with limiting the acceptable methods of warfare. Thus, for instance, they prohibit the
use of projectiles that disperse asphyxiating gas, and bullets that expand or flatten
easily. In addition the Conferences formulated the so-called Martens clause, which is
also to be found in a slightly different form in the Geneva Conventions. This provision
lays down the principle that in cases not covered specifically by the Conventions there
is nevertheless an underlying principle of international law to the effect that during
and after hostilities actions will only be lawful if they are in accord with the principles
of humanity and ‘the dictates of public conscience’.
The Hague Conventions either initially reflected, or have since come to be a part of,
customary international law.
Activity 9.2
The Charter of the United Nations is arguably both a logical development of
international law concerning the use of force and also a dramatic change and
development. Its proscription of force in international relations follows upon the
League of Nations’ emphasis upon pacific settlement and more directly still from the
Kellogg–Briand Pact of 1928 which had renounced war as an instrument of foreign
policy. Nevertheless in proscribing reprisals, for instance, and in limiting even the right
of self-defence to what is necessary until the Security Council may be briefed, the
Charter is a radical departure from earlier law.
Activity 9.3
This activity is intended to let you think critically about the so-called inherent right of
self-defence in international law. Article 51 of the Charter seems eminently reasonable
– obviously states that are the subject of an armed attack should have the right to
retaliate in self-defence. Obvious though it seems, however, there are real problems.
In the 1930s Czechoslovakia, Poland, Belgium and France all had an undoubted right
of self-defence against German aggression. The right was of little use in the face of
superior military strength and/or organisation. Thus to have the right of self-defence
is not the same as having the ability to respond to or defend against an armed attack.
The first conclusion, then, is that for the right to be meaningful the attacked state
must either have strength, or strong friends. Iraq was powerless to respond to the
US-led invasion.
The other facet of this is that just as the ability to defend is limited to states with
sufficient strength, so too if a state is in this position it will often claim a right of self-
defence in the most doubtful circumstances. It is particularly difficult to find authority
in the Charter for such acts of self-defence as the UK’s response to Argentina’s invasion
of the Falkland Islands/Malvinas where the significant delay should, under the Charter
provisions, have enabled reference to the Security Council. The same point may be
made about other actions by both the USA and Israel.
Activity 9.4
A first point to be made here is that when Article 51 was drafted it did not contemplate
the rise in acts of international terror that might seem to demand a military rather
than police response. Consequently to be appropriate it requires a generous
interpretation. This it received when the Security Council reacted to the terrorist
attack upon the US World Trade Center in 2001. The Resolution passed the following
day (Resolution 1368) explicitly observed the ‘inherent right of individual or collective
self-defence in accordance with the Charter’, thus arguably implicitly accepting that
the right extended to such acts. The USA did not in fact claim a right of self-defence
when planning its attack upon the Taliban regime in Afghanistan, until the Taliban
had effectively refused to co-operate in the bringing to justice of the perpetrators,
organisers and sponsors of the attack. Although there seems little doubt that the USA
would respond in the future to any terrorist attack where any government is believed
to have been complicit, arguably such a response in terms of self-defence will be
limited to situations where state responsibility may reasonably be attributed.
One further problem arises. The USA in particular (but also Israel) has made it clear
that it interprets Article 51 as justifying pre-emptive strikes against those who are
believed to be in the process of organising, planning or preparing such attacks. It is
doubtful that many such situations would or could amount to an ‘armed attack’ within
the meaning of Article 51. Few states would accept this interpretation.
Activity 9.5
The conclusion that you reach in answer to this question is less important than the
reasoning that leads to it. It requires a consideration of why the world has been so
slow to identify any right of humanitarian intervention. This stems from cynicism
about the motives for intervention, apprehension of unintended consequences,
and fear of casualties. Furthermore situations of egregious breaches of human rights
obligations where the Security Council cannot be persuaded to act will usually be
rare unless the interests of one permanent member are threatened (as was the case
in Kosovo). In such circumstances, if the General Assembly is of the view that action
is necessary and there is a majority of both permanent and other Security Council
members favouring action it might be regarded as illegal but moral. The Kosovan
intervention was not by a single state but by NATO.
Nevertheless those who opposed the intervention in the absence of a Security

Council Resolution took the view that it threatened sovereignty, aggravated existing
tensions and necessitated long term involvement. Although attempts to condemn
the intervention were unsuccessful, this cannot be said to have legitimated the action
retrospectively.
Chapter 10
Activity 10.1
Human rights are said to derive their authenticity from the fact that they are universal
and belong to every individual simply from the fact of his or her ‘humanity’. This can be
seen as related to ideas of natural law but expressed in secular terms. Philosophically
there are problems with this idea and many argue that the very idea of human rights
itself is a concept that has arisen in a particular time and in a particular place. The
questionable nature of universality can be demonstrated by the reaction of different
states to different provisions in the UDHR, and particularly to those concerned with
economic rights.
On the other hand, some have argued that such arguments are unnecessary, and that
the authority of the concept derives from the agreement of so many states at various
post-UN times that human rights are universal and indivisible. Thus they may be both
universal (by agreement) and yet relative in that they are not ‘natural’.
Activity 10.2
Although one can make an argument for the universality of human rights it is difficult
to overlook the fact that different states and at different times have supported
different human rights. This is most clearly demonstrated by the distinction
between civil and political rights and economic, social and cultural rights. While they
receive equal prominence in the UDHR they receive very different protection in the
International Covenants. It is probably correct to state that the economic, social and
cultural rights in the UDHR are no longer accepted as ‘rights’ by many states in the
world. Additionally the emphasis placed upon the different claimed rights has varied
as the rhetorical power of the associated arguments has waxed and waned.
Activity 10.3
As it says, CEDAW is committed to combating discrimination against women. The
crucial provisions to this end are Article 2 with its general commitment to this aim,
and Article 16, which is directly aimed at eliminating discrimination with regard to
marriage. Amazingly more than 180 states have ratified, but many of those who have
done so have felt unable to support Article 2 and/or Article 16 wholeheartedly. This is
hardly surprising but it is disappointing. The fact is that many states have marriage
customs that consistently reinforce ideas of women’s inferiority, particularly in
marriage and in the family. Often these views will be grounded in religious belief. Many
states seem to have ratified the Convention with motives other than the elimination of
discrimination against women.
Activity 10.4
This statement is probably unfortunately true. Nevertheless the homogeneity of the
original states ratifying the ECHR should not be over-emphasised. Probably what most
of them did share however was a functioning domestic court system that enjoyed
a fair measure of support from citizens. This cannot be said of many of the new
entrants into the Council of Europe. Instead, so diverse are the ethnic, language and
ideological heritages that it is immensely difficult for any international court to be
both empathetic to difference but consistent in human rights rulings. It may be that
in due course the 46 nations will have to form regional alliances with human rights
courts answerable to Strasbourg.
Activity 10.5
It is becoming increasingly clear that the European Court of Human Rights will not
be able to cope with the level of communications it faces at present. Historically
the number of petitions was restricted in that not every state granted the right of
individual petition and also the Court had made it clear that it would not generally
review the decision of a domestic court where that court had sought in good faith
to apply the provisions of the Convention. Such an attitude to domestic courts is
no longer reasonable given the very poor records of some states newly accepted as
members of the Council of Europe. It is probable that one reason for the much more
restricted role of the Inter-American Court is that many domestic courts in Central and
South America have no consistent record of defending civil liberties and the rule of law.
Chapter 11
Activity 11.1
Sovereign equality may have a number of different meanings, some more significant
than others. The first point is the formal equality that reflects that of individuals in
domestic legal systems under the rule of law. It is seen most clearly in legal disputes
and particularly those that come before the ICJ. The second relates to the principle
in the UN Charter by which each state enjoys equal voting strength in the General
Assembly (and in other international organisations with the same provision). The
third, which is more contentious, relates to the status of an independent state entitled
to rely upon non-interference in its domestic jurisdiction.
Activity 11.2
See the Advice on answering the questions for Sample examination question 1.
Activity 11.3
The problem faced by the USA in these situations is the charge of hypocrisy with the
USA proclaiming rights of democracy and freedom and even an emerging right to
democratic governance but not extending these rights to the Palestinian people.
Further, it may be argued that in supporting policies that are clearly contrary to
international law, the entire international legal regime is threatened because it is seen
to be so ineffectual. Allowing a client state to flout international law without sanction
disables those who might wish to criticise Russian actions in Chechnya, or the actions
of other states against their own minorities. Furthermore, arguably, by adopting some
of Israel’s unlawful tactics, such as targeted assassinations outside of national territory,
reprisals and even torture, fundamental principles of international humanitarian law
are put at risk.
Public international law page 227
Notes
Notes
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Public international

Published by: University of London

2 The distinctive nature of international law . . . . . . . . . . . . . . . 15

3 The sources and method of international law . . . . . . . . . . . . . . 31

4 The dynamic quality of international law . . . . . . . . . . . . . . . . 43

5 Jurisdiction in international law . . . . . . . . . . . . . . . . . . . . . 57

6 The law of treaties . . . . . . . . . . . . . . . . . . . . . . . . . . . . 77

7 Self-determination and territory in international law . . . . . . . . . . 95

8 The peaceful settlement of disputes in international law . . . . . . . 119

9 Use of force in international law . . . . . . . . . . . . . . . . . . . . 139

10 Human rights in international law . . . . . . . . . . . . . . . . . . . 169

11 International law in the 2020s . . . . . . . . . . . . . . . . . . . . . 197

Feedback to activities . . . . . . . . . . . . . . . . . . . . . . . . . . . 215

Courses on which this module is offered

Notional study time

MODULE PURPOSE AND OVERVIEW

LEARNING OUTCOMES: KNOWLEDGE

1. An appreciation of the significant differences and similarities of international law

2. An understanding of the methodology and procedures of international law and the

LEARNING OUTCOMES: SKILLS

4. Apply their knowledge to analyse complex legal questions and problems;

5. Critique a range of legal materials and arguments;

6. Conduct complex research exercises and use research evidence appropriately to

BENCHMARK FOR LEARNING OUTCOMES

(b) The sources of public international law

(c) International law and municipal law

An understanding will be provided of the place and effect of international law in

(d) International personality. States, international organisations and others

Much of international law is concerned with standing in international law. Whereas

(e) Legal criteria of statehood

Although this might, to a lay person, seem unproblematic, consideration of

(f) Principles of state jurisdiction, together with immunities

(g) Human rights and international criminal law

(i) The law of treaties

(j) Law of the sea

LEARNING AND TEACHING

The Laws Virtual Learning Environment

u a module page with news and updates;

u a complete version of the module guide;

u past examination papers and reports;

The Online Library

u the professional legal databases LexisLibrary and Westlaw;

u cases and up-to-date statutes;

u key academic law journals;

u links to important websites.

¢ Mansell, W. and K. Openshaw International law: a critical introduction. (Oxford:

¢ Wallace, R. and O. Martin-Ortega International law. (London: Sweet & Maxwell,

Summative assessment is through a three hour and fifteen minute unseen

¢ Hart core documents on international law 2022–23 (Bloomsbury).

1.1 The aims and objectives of the module . . . . . . . . . . . . . . . . . . 3

1.2 Studying international law . . . . . . . . . . . . . . . . . . . . . . . . 3

1.3 Outline structure of this module guide . . . . . . . . . . . . . . . . . . 5

1.4 A suggested approach to study . . . . . . . . . . . . . . . . . . . . . . 7

1.5 The examination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

1.6 Useful websites . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

1.1 The aims and objectives of the module

u the relationship between international law and international relations

u the relationship between international law and European history

The aims of the module may similarly be summarised: