History and nature of International Law West Bengal IIT Kharagpur Rajiv Gandhi School of Intellectual Property Law Assistant Professor Dr. Raju KD 1 KDR/IIT KGP/RGSOIPL/Labour-2008
Nov 24, 2015
History and nature of International Law
West Bengal
IIT Kharagpur
Rajiv Gandhi School of Intellectual Property Law
Assistant Professor
Dr. Raju KD
1 KDR/IIT KGP/RGSOIPL/Labour-2008
Nature of International Law Nation states not individuals.
Law within the country municipal law
Law deals with nations international law
No particular legislature to legislate.
International Court of Justice voluntary jurisdiction.
No enforceability.
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Theories John Austin command of the sovereign backed by a
sanction or punishment.
There is no unified system of enforcement.
use of force is justified in some circumstances.
There is no international force to implement any decision of the ICJ.
Consent theory.
Theory of self limitation.
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Early Closely related to western culture
European notion of sovereignty
Modern system 400 years back
Solemn treaty between the rulers of Lagosh and Umma city states situated in the area known to historians as Mesopotamia 2100 BC.
Rameses 11 of Egypt and the King of Hittites peace and brotherhood.
Many agreements by middle eastern powers.
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Early The notion of universal community.
Greek awareness.
Romans respect for law and organisations.
Jus civile to jus gentium Roman law.
Roman Law corpus juris civilis compilation of legal materials by byzantine philosophers 534 AD.
Growth of Islam.
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Middle ages Organised church
Development of ecclesiastical law
Canon law
Commercial and maritime law developments
Law merchants
Francisco Votoria Professor of Theology University of Theology (1480-1546).
Suarez (1548-1617) jesuit and Professor of Theology
Alberico Gentili (1552 1608) Northern Italy.
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Early developments Professor Vinogradoff inter municipal law
Costmary rules developed on diplomatic envoys.
Working principles developed on the basis of reasoning and analogy.
Development of canon law and later law of nature.
Grotius 1583-1645 published
De jure Nelli ac Pacis (The Law of War and Peace)
He accepted the law of nature.
Who is considered as the father of modern international law.
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Hugo Grotius, 1583 -1645 Father of International law
worked as a jurist in the Dutch Republic and laid the foundations with Francisco de Vitoria for international law, based on natural law.
Treatise De Jure Belli, Ac Pacis Libri Tres 1623-24.
Considered as the starting point for modern international law.
He opposed the closed sea concept of Portuguese.
High seas belong to all.
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Page written in
Grotius' hand from
the manuscript of
De Indis (circa
1604-05).
Treatise De Jure
Belli, Ac Pacis Libri
Tres
Treaty of Westphalia The Westphalian treaties of 1648 were a turning point
in establishing the principle of state sovereignty as a cornerstone of the international order. However the first attempts at formulating autonomous theories of international law occurred before this, in Spain, in the 16th century.
Roman Catholic theologians Francisco de Vitoria and Francisco Surez. Surez is especially notable in this regard in that he treatise on international law, de iure belli ac pacis, which dealt with the laws of war and peace.
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TREATY OF WESTPHALIA - 1648 Treaty between Roman Emperor and the King of
France.
Alabama claims Arbitration 1872.
Permanent court of Arbitration 1899 1907.
Permanent Court of International Justice 1921.
International Court of Justice 1946.
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Positivist approach Locke and Hume developed after the Treaty of
Westphalia.
Theory of sovereignty by Bodin and Hobbes.
Supreme power of states and sovereignty of states.
Both theories appear in the work of Vattel (1714-67).
He introduced equality of states in the international law.
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Dualist and monist theories Monist claimed there is no difference between the
international law and municipal law.
Dualist supports the consent theory
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History Still, in the 17th and 18th centuries, the idea of natural
law as a basis for international law remained influential, and were further expressed in the works of Samuel von Pufendorf and Christian Wolff.
in the second half of the 18th century, a shift occurs towards positivism in international law. In addition, the idea of international law as a means for maintaining international peace is challenged due to the increasing tensions between the European great powers (France, Prussia, Great-Britain, Russia and Austria).
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History At the end of the century, Immanuel Kant believes
that international law as a law that can justify war does not serve the purpose of peace anymore, and therefore argues in Perpetual Peace .
After World War I, an attempt was made to establish such a new international law of peace, of which the League of Nations was considered to be one of the cornerstones, but this attempt failed unfortunately.
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History The Charter of the United Nations (1945) in fact
reflects the fact that the traditional notion of state sovereignty remains the key concept in the law of nations.
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Modern customary law Consent theory.
consenting to an international practice is sufficient to be bound by it, without signing a treaty.
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Treaty law A customary law can be overturn by a treaty law.
Contracts between countries.
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Definition The rules of law that relating to the functioning of
international institutions or organisations, their relation with each other, their relation with states and individuals.
The rules of law relating to individuals and non-state entities, concern of international community.
Rules governing relations between states.
Columbian Pruvian Asylum Case( ICJ 1950).
Regional rules are not necessarily subordinate to international law but may be complementary or correlated to.
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Thank you
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Sources of International Law
West Bengal
IIT Kharagpur
Rajiv Gandhi School of Intellectual Property Law
Assistant Professor
Dr. Raju KD
1 KDR/IIT KGP/RGSOIPL/-2008
Sources Custom
Treaties
Decisions of judicial or arbitral tribunals
Juristic works
Decisions or determinations of the organ of international institutions.
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A.38 of ICJ statute The Court, whose function is to decide in accordance with
international law such disputes as are submitted to it, shall apply:
a. international conventions, whether general or particular, establishing rules expressly recognized by the contesting states;
b. international custom, as evidence of a general practice accepted as law;
c. the general principles of law recognized by civilized nations;
d. subject to the provisions of Article 59, judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law.
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Material source Evidence of existing rules, when proved, have the
status of generally binding rules of general application.
It is difficult to maintain the difference between formal and material source in international law.
Evidences of existing consensus among states
Decisions of the International Court of Justice
Resolutions of General Assembly
Law making multilateral treaties
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Treaties Binding force of treaties
Obligations arising from express agreement
Multilateral law making treaties to which a majority of states are parties.
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International Custom A.38 of ICJ statute defines: evidence of a general
practice accepted as law.
legal norms that have developed through the customary exchanges between states over time.
General recognition among states of a certain practice as obligatory.
Opinio juris
Usage: it is a general practice which does not reflect a legal obligation.
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Custom Customary international law is something done as a
general practice not because it is expedient or convenient, but because it is considered law, out of a sense of legal requirement (opinio juris).
Element 1: General practice.
Element 2: States do it out of a sense of legal obligation.
What constitutes state practice?
How much practice is required?
How much consistency is required?
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Requirements Duration
Consistency
Repetition
Generality of a particular practice of states
Time immemorial
A peremptory norm (also called jus cogens, Latin for "compelling law") is a fundamental principle of international law which is accepted by the international community of states as a norm from which no derogation is ever permitted.
Examples include various international crimes; a state which carries out or permits slavery, genocide, war of aggression, or crimes against humanity is always violating customary international law.
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Duration Uniformity, consistency and generality of practice
Passage of time
Complete uniformity is not required, but substantial uniformity is required.
Fisheries case, ICJ Reports 1951
ICJ refused to accept the 10 mile rule for bays.
Asylum case, ICJ Reports 1950 the customary law must be in accordance with a constant and uniform usage practiced by the states in question. regional custom.
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The Paquete Habana (1900) The Paquete Habana case relied on edicts and
agreements as far back as 1403.
The Paquete Habana and the Lola were Cuban fishing boats that were seized by the U.S. during the Spanish-American war.
The U.S. District Court said that the Navy had acted within its authority, under Federal statute.
Cubans argued violation of international law
This established rule of international law had existed to protect peaceful fishermen from wartime seizures.
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Asylum Case (1950) Haya de la Torre, Peruvian national granted asylum in
Columbian embassy in Lima.
Political asylum
No match between domestic law and international law
Variety of conflicting and contradictory evidence shows it is not a custom.
Concurrence of the major powers of that field.
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Portugal v. India (1960) Customary relations between nations becoming
binding.
Portugal had territory within India, and India wouldnt let the Portuguese move their military and equipments back and forth to the enclaves.
India asserted the rights that England had enjoyed, and the right of passage only applied to civil activities.
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Generality of practice Complements that of consistency.
Lotus case, absence of protest is not an evidence of general acceptance.
Court not accepted the continuous conduct as prima facie evidence of a legal duty and required a high standard of proof.
Fisheries Jurisdiction case, United Kingdom v. Iceland: extension of a fishery zone up to 12 mile (not 10) limit is now accepted among states as a preferential rights for coastal states.
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Evidence Diplomatic correspondence
Policy statements
Press releases
Opinions of official legal advisors
Official manuals
Comments by governments on international relations
International and national judicial decisions
The wordings in treaties
The practice of international organisations.
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Uniformity Some degree of uniformity amongst state practices was
essential before a custom could come into existence.
Anglo Norwegian Fisheries Case ICJ Reports 1951.
Measuring the breadth of the territorial sea using straight line between projections.
Insufficient uniformity of behavior.
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Opinio juris sive necessitatis. an opinion of law or necessity
A general practice accepted as law.
Practice consistent with international law
The burden of proof
The ICJ accepts existence of an opinio juris on the bases of evidence of a general practice.
Positive evidence of recognition of the validity of the rules in question in the practice of states.
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Lotus case Lotus French ship
Boz-Kourt turkish ship
Essential ingradient of obligation was lacking and the practice remained a practice, nothing more.
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The standard of proof North Sea Continental shelf case and in Nicaragua v.
United States
A new customary rule to be formed, not only must the acts concerned amount to a settled practice but they must be accompanied by the opinio juris sive necessitatis.
Right of passage over Indian territory, ICJ Reorts 1960 a special right has to give affirmative proof of a sense of obligation on the part of the territorial sovereign.
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North Sea Continental Shelf Cases (1969)
There are 3 ways the treaty could have become binding customary international law:
The treaty re-stated a pre-existing custom.
The treatys rule crystallized customary law that had been in the process of formation.
Both extensive and virtually uniform in the sense of the provision.
Holland & Denmark argued that this treaty had generated a new customary law, a new norm of international law binding on everyone.
The ICJ therefore held that there was no customary international law for the Dutch/Danish position.
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Nicaragua v. U.S. (1986). Customary law may be a source of international law in
international disputes.
It is separate from treaty law and convention law, as it must be applied even if the countries are parties to a treaty.
The court held that it is no longer okay to settle disputes with force, a customary norm.
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Custom The evidence of objection must be clear and there is
probably a presumption of acceptance which is to be rebutted.
Unequivocally manifested a refusal to accept the rules.
If a party pleas a regional custom as a practice, the proponent must prove that it has become binding on the other member.
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4. Treaties Law making treaties
Conclusions of international conferences
Resolutions of the United National General Assembly
Drafts adopted by the International Law Commission
The Hague Convention of Paris 1856 and 1907 on Law of war and neutrality.
Genocide Convention 1948
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Case laws North Sea Continental Shelf Cases: To what extent the
German Federal Republic was bound by the provisions of the Continental Shelf Conventions which it had signed but not ratified.
11:6 ICJ held that first 3 articles of the Convention were emergent or pre-existing customary law.
Even if norms of treaty origin crystallize as new principle or rules of customary law, the customary norms retain a separate identity even if the two norms appear identical in content.
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Bilateral treaties Bilateral treaties may provide evidence of customary
rules.
Final Act of an intergovernmental conference adopted an agreement unanimously even though not adopted-obvious importance.
E.g: the principles of international law recognised by the Charter of the Nuremberg Tribunal and Judgment of the Tribunal.
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General Principles of Law Recognised by Civilized Nations
A.38(1)(c) of the statute of the ICJ.
Rules and principles recognised in the domestic laws of all recognised nations.
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Thank you
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Relationship between International Law and Municipal Law
West Bengal
IIT Kharagpur
Rajiv Gandhi School of Intellectual Property Law
Assistant Professor
Dr. Raju KD
1 KDR/IIT KGP/RGSOIPL-2008
Treaties The term "treaty" can be used as a common generic term or
as a particular term which indicates an instrument with certain characteristics.
The term "treaty" has regularly been used as a generic term embracing all instruments binding at international law concluded between international entities, regardless of their formal designation.
Both the 1969 Vienna Convention confirm this generic use of the term "treaty".
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Treaty A.2(a): The 1969 Vienna Convention defines a treaty as
"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".
The 1986 Vienna Convention extends the definition of treaties to include international agreements involving international organizations as parties.
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Requirements First of all, it has to be a binding instrument, which
means that the contracting parties intended to create legal rights and duties.
Secondly, the instrument must be concluded by states or international organizations with treaty-making power.
Thirdly, it has to be governed by international law. Finally the engagement has to be in writing.
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Treaty There are no consistent rules when state practice employs
the terms "treaty" as a title for an international instrument.
Usually the term "treaty" is reserved for matters of some gravity that require more solemn agreements.
Their signatures are usually sealed and they normally require ratification.
Typical examples of international instruments designated as "treaties" are Peace Treaties, Border Treaties, Delimitation Treaties, Extradition Treaties and Treaties of Friendship, Commerce and Cooperation.
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Convention The term "convention" can have both a generic and a
specific meaning.
Convention as a generic term: Art.38 (1) (a) of the Statute of the International Court of Justice refers to "international conventions, whether general or particular" as a source of law, apart from international customary rules and general principles of international law and - as a secondary source - judicial decisions and the teachings of the most highly qualified publicists.
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Convention This generic use of the term "convention" embraces all
international agreements, in the same way as does the generic term "treaty".
Black letter law is also regularly referred to as "conventional law", in order to distinguish it from the other sources of international law, such as customary law or the general principles of international law.
The generic term "convention" thus is synonymous with the generic term "treaty".
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Conventions The same holds true for instruments adopted by an
organ of an international organization (e.g. the 1951 ILO Convention concerning Equal Remuneration for Men and Women Workers for Work of Equal Value, adopted by the International Labour Conference or the 1989 Convention on the Rights of the Child, adopted by the General Assembly of the UN).
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Charter The term "charter" is used for particularly formal and
solemn instruments, such as the constituent treaty of an international organization.
The term itself has an emotive content that goes back to the Magna Carta of 1215. Well-known recent examples are the Charter of the United Nations of 1945 and the Charter of the Organization of American States of 1952.
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Agreements The term "agreement" can have a generic
and a specific meaning.
It also has acquired a special meaning in the law of regional economic integration.
The 1969 Vienna Convention on the Law of Treaties employs the term "international agreement" in its broadest sense.
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Agreements "international agreements" for instruments, which do
not meet its definition of "treaty".
Its Art.3 of Vienna convention refers also to "international agreements not in written form".
"Agreements" are usually less formal and deal with a narrower range of subject-matter than "treaties".
It is employed especially for instruments of a technical or administrative character, which are signed by the representatives of government departments, but are not subject to ratification.
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Choice of forum If foreign law can never apply within the forum state,
then obviously the forum cannot apply foreign choice-of law rules.
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Agreements Typical agreements deal with matters of economic,
cultural, scientific and technical cooperation. Agreements also frequently deal with financial matters, such as avoidance of double taxation, investment guarantees or financial assistance.
The UN and other international organizations regularly conclude agreements with the host country to an international conference or to a session of a representative organ of the Organization.
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Protocols The term "protocol" is used for agreements less formal
than those entitled "treaty" or "convention". The term could be used to cover the following kinds of instruments:
A Protocol of Signature is an instrument subsidiary to a treaty, and drawn up by the same parties. Such a Protocol deals with ancillary matters such as the interpretation of particular clauses of the treaty, those formal clauses not inserted in the treaty, or the regulation of technical matters. Ratification of the treaty will normally ipso facto involve ratification of such a Protocol. KDR/IIT KGP/RGSOIPL-2008 14
Protocols An Optional Protocol to a Treaty is an instrument that
establishes additional rights and obligations to a treaty.
The Optional Protocol to the International Covenant on Civil and Political Rights of 1966 is a well-known example.
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Declarations The term "declaration" is used for various
international instruments. However, declarations are not always legally binding.
The term is often deliberately chosen to indicate that the parties do not intend to create binding obligations but merely want to declare certain aspirations.
An example is the 1992 Rio Declaration.
The 1948 Universal Declaration of Human Rights is intended to create legal obligations.
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Declarations Declarations that are intended to have binding effects
could be classified as follows:
declaration can be a treaty in the proper sense.
(a) A significant example is the Joint Declaration between the United Kingdom and China on the Question of Hong Kong of 1984.
(b) An interpretative declaration is an instrument that is annexed to a treaty with the goal of interpreting or explaining the provisions of the latter.
(c) A declaration can also be an informal agreement with respect to a matter of minor importance.
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MoU A memorandum of understanding is an international
instrument of a less formal kind.
It often sets out operational arrangements under a framework international agreement.
It is also used for the regulation of technical or detailed matters.
It is typically in the form of a single instrument and does not require ratification.
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MoU They are entered into either by States or International
Organizations.
The United Nations usually concludes memoranda of understanding with Member States in order to organize its peacekeeping operations or to arrange UN Conferences.
The United Nations also concludes memoranda of understanding on cooperation with other international organizations.
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Public vs. Municipal Conflict between international law and municipal law the
dualist assumes the municipal law prevail at municipal level.
Hersch Lauterpacht exponent of monism
International law is also concerned with the conduct and welfare of individuals.
Kelsen monist monism is scientifically established if international and municipal law are part of same system of norms.
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Dualism Subject of state law are individuals
Subjects of international law are states
Juridical origins are different
Sources of municipal law is the will of the state
International law is the common will of states.
State law is conditioned by fundamental principles
International law is conditioned by pacta sunt servand
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Monism Considered all unit as single unit
Science of law is a unified field of knowledge.
International law and state law are both part of a universal body of rules.
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Kelsen Kelsen does not support the primacy of international
law over municipal law.
Monist naturalist theory provision of a universal basic norm.
They work in different spheres.
Never come into conflict
Rousseau characterizing international law as a law of co-ordination which does not provide for automatic abrogation of internal rules in conflict with obligations on the international plane.
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Int.n. law vs. Municipal law A state cannot plead provisions of its own law or
deficiencies in that law in answer to a claim against for an alleged breach of its obligations under international law. (Free Zones case) 1932, PCIJ.
Municipal law cannot prevail over a treaty law. (Greco-Bulgarian Communities case, 1930, PCIJ.
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Position of individual Imposes duties on individuals in case of certain cases
International Military Tribunal at Nuremberg.
Plea of acts in accordance with municipal law is not entertained.
International tribunals has to examine municipal law relating to expropriation, fishing limits, nationality, guardianship and welfare of infants to see whether it is against treaty or customary law.
Public order
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Harmonization Infusion of international legal principles into the
municipal legal system.
Adaptation to local laws.
Transformation theory transformation into state law.
International law as promises and
Municipal laws as commands
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Thank you
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Recognition of States
West Bengal
IIT Kharagpur
Rajiv Gandhi School of Intellectual Property Law
Assistant Professor
Dr. Raju KD
1 KDR/IIT KGP/RGSOIPL-2008
States No definition as such
Statehood is a question of fact and not law
Article 1 of the Montevideo Convention on Rights and Duties of States provides: State under international law should possess the following qualifications.
1. a permanent population
2. a definite territory
3. government
4. capacity to enter into relations with the other states.
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Montevideo Convention 1933 On the rights and Duties of States signed by
the United States and certain Latin American countries.
Fixed territory is not essential.
Consistency in the nature of territory
State must have a capacity to enter into relations with the other states.
Kelsen: it is purely a technical notion expressing the fact that a certain body of legal rules bids a certain group of individuals living within a defined territorial area.
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Law Requirement of a legal system is a primary condition
of statehood.
Legal system juridically valid
Madzimbamuto v. Lardner Bruke, [1969] 1 AC 645.
PC held that unilateral declaration of independence of 11 November 1965 and subsequent legislation was illegal.
UN role in declaring a statehood.
State as a creation of natural law.
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Basic rights Sovereignty over its subjects and affairs.
Independence and equality of states.
Territorial jurisdiction
Self-defence
Duties:
Not resorting to war.
Carrying out treaty obligation in good faith.
Not intervening in affairs of other states
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Powers Power to control its own domestic affairs
Power to admit and expel aliens
Privileges of its diplomatic envoys
Exclusive jurisdiction over crimes committed within its territory.
Savarkar case 1911
Corfu Channel case - 1949
Eichmann case - 1961
Rainbow warrior - 1986
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Statehood Sovereignty
Membership of international organisations
Identity and continuity of States
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Recognition of States It is a mere declaration or acknowledgement of an
existing state of law and fact.
Question of policy rather than law
Unilateral diplomatic act on the part of one or more states.
Recognition of states and recognition of governments.
Estarda doctrine - 1930-Foreign Minister of Mexico
No definite definition.
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Definition Institute of International Law:
The free act by witch one or more states acknowledge the existence on a definite territory of a human society politically organised,
independent of any other existing states,
and capable of observing the obligations of international law,
and by which they manifest therefore their intention to consider it a member of the international community.
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Definitions Oppenheim: if the new state fulfils the conditions of
Statehood required by International law.
New states: the nascent community possesses the requirement of statehood.
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Theories Constitutive theory act of recognition alone which
creates statehood.
Declaratory theory or evidentiary theory act of recognition is merely a forma acknowledgement of an established situation of fact.
1949-80 recognition of China
No right of recognition in the Draft Declaration on the rights and Duties of States ILC- 1949.
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Constitutive theory (Hegel) The act of recognition alone which creates statehood
or which clothes a new government become an authority or status in the international sphere.
Mere act of recognition is sufficient to create statehood.
Openheim, Kelsen, Lauterpacht and Holand:
Recognition is indispensable to the full enjoyment of rights which it connotes.
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Declaratory theory The authority of government exist even before
recognition.
Recognition is merely a formal acknowledgement of an already existing fact.
Formal declaration of an existing fact.
Hall, Wagner, Pitt Cobbet are the exponents of declaratory theory of recognition.
The purpose of recognition is declaratory not of constitutive?
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Implied recognition Intention to establish formal relations with the new
state or new governments.
Occasions for conclusively implying recognition:
Formal signature of a bilateral treaty between states.
Formal initiation of diplomatic relations
Issue of a consular facility
Common participation in a multilateral treaty
Participation in an international conference
Initiation of negotiations between recognizing and recognised states.
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Conditional recognition The Berlin Congress 1878
Failure to fulfill does not annul the recognition.
The recognised state may guilty of a breach of international law.
Sever diplomatic relations
Sanctions
Recognition cannot be withdrawn.
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Collective recognition Membership in the UN A.3-4 of UN Charter.
Conditions of Membership in the United Nations, ICJ 1948, 57.
Statehood as a primary qualification for the admission to the UN.
1991-EU Guidelines for the recognition of states.
Respect for the provisions of UN
Guarantees for the rights of ethnic and national groups and minorities.
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EC treaty Respect for frontiers
Acceptance of commitments with regard to disarmament and nuclear non-proliferation as well as security and regional stability.
Regional disputes should be resolved by arbitration.
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Recognition of governments 1977 US avoiding recognition of governments.
1980 UK- Secretary of State for Foreign Affairs UK is no longer going to recognise governments
1988 Australia no recognition to governments
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Withdrawal of recognition The de jure recognition once granted is irrevocable.
The withdrawal of diplomatic relations does not mean withdrawal of recognition.
KDR/IIT KGP/RGSOIPL-2008 19
Types of recognition De jure recognition the state formally recognised
fulfils the requirements laid down by international law for effective participation in international community.
De facto provisionally and temporally and with all due reservations for the future.
Soviet Government was recognised de facto in 1921 and de jure recognition was given by Britain in 1924.
KDR/IIT KGP/RGSOIPL-2008 20
De facto De jure
Doubt about the long term validity of the government.
De facto recognition does not itself include the exchange of diplomatic relations.
Transaction entered between states on the basis of de facto recognition cannot be repudiated by the subsequent govenrment.
Recognizing fully the effective control permanently.
Only a de jure government can claim the property in a recognizing state.
KDR/IIT KGP/RGSOIPL-2008 21
De facto recognition A "de facto" recognition is derived from actions and
contacts between two states if they enter into a relationship on a political level. The following acts shall inter alia be considered acts of this nature:
a) diplomatic activities by representatives of the states involved in connection with tasks between states, relationships etc.;
b) statements of a state on politically relevant issues and problems of the other state such as statement on mutual delimitation;
c) recognition and official endorsement with a visa of passports issued by the other state as traveling documents.
KDR/IIT KGP/RGSOIPL-2008 22
De jure v. De facto If there is a conflict between the interests of de jure
government and de facto government the rights of de facto government will prevail.
Bank of Ethiopia v. National Bank of Egypt and Liguori.
Arantazu Mendi case
KDR/IIT KGP/RGSOIPL-2008 23
Thank you
KDR/IIT KGP/RGSOIPL-2008 24
STATE SUCCESSION
1 KDR/RGSOIPL/2008
INTERNATIONAL CONVENTIONS
1) Treaties: the Vienna Convention on Succession of States in Respect of Treaties, 1978 (Vienna I);
2) State property, State debt and State archives: the Vienna Convention on Succession of States in Respect of State Property Archives and Debts, 1983 (Vienna II);
2
KDR/RGSOIPL/2008
STATE SUCCESSION
Approximately 100 new States emerged with the end of decolonization.
Germany reunified, while the Soviet Union, Yugoslavia and Czechoslovakia dissolved.
the transfer of one State to another is usually described as State Succession
Vienna I and II - state that succession is "the replacement of one State by another in the responsibility for the international relations of a territory.
3
KDR/RGSOIPL/2008
BY SECESSION
Singapore Malaysia 1965
Bangladesh Pakistan 1971
Eritrea - Ethiopia 1993
East Timor Indonesia 2002
14 states from the former USSR
4
KDR/RGSOIPL/2008
DISSOLUTION HAPSBURG EMPIRE
First Word War Yugoslavia and Czechoslovakia
Second World War Socialist Republic of Yugoslavia
Yugoslavia successor to Serbia.
End of cold war Bosnia, Herzegovina, Croatia, Macedonia, Serbia and Montenegro.
5
KDR/RGSOIPL/2008
MERGER
1958 Egypt and Syria United Arab Republic dissolved in 1961.
1976 North Vietnam and South Viet Nam Socialist Republic of Viet Nam.
1990 North Yemen and South Yemen Republic of Yemen.
Absorption 1990 - unification of Germany no new state is formed.
6
KDR/RGSOIPL/2008
TABULA RASA: THE CLEAN SLATE DOCTRINE
The option of simply denying State succession to treaties, known as the tabula rasa or clean slate doctrine and re-inventing international law after each case of State succession has never been adopted or openly defended in recent State practice.
The clean slate thesis appears to have emerged in the late nineteenth century.
there can be no transfer of rights or obligations between the old and the new state.
main argument in favor of the clean slate doctrine is that treaties are generally burdensome restrictions to sovereignty and that a new State should be free to reconsider the Predecessor State's treaties.
7
KDR/RGSOIPL/2008
UNIVERSAL SUCCESSION: THE CONTINUITY
THEORY
The continuation theory of state succession is an anti-thesis to the clean-slate theory of membership.
Under the continuity theory, rights and duties may still pass to States that have lost extensive portions of their territories and/or have undergone radical changes in government as long as they are considered to have inherited the essential legal identity of the former member.
The universal successor assumes the whole of the legal clothing of the person to whom he succeeds; steps, as it were, into his shoes.
He takes over his rights and liabilities of every kind; his property ,the debts and other obligations (such as rights of action for damages for breach of contract) owing to him, and the debts and obligations which he owes.
8
KDR/RGSOIPL/2008
SUCCESSION
How far the new state is bound by the treaties and contracts entered by its predecessor.
Continuity of legal personality
Session, annexation or merger
Recognition and responsibility
All international rights and duties will devolve upon the new sate.
9
KDR/RGSOIPL/2008
SUCCESSION
Succession of states was defined as the replacement of one state by another in the responsibility for the international relations of territory. (1978 & 1983 Convention).
international obligations passes to the successor state.
Sovereignty of a lessee state over particular territory reverts to the lessor state.
1997 China resumes sovereignty over Hong Kong.
10
KDR/RGSOIPL/2008
SUCCESSION
International Convention on Succession of States in Respect of Treaties 1978.
Vienna Convention of 1983 on Succession of State Property, Archives and Debts.
Change of sovereignty over territory.
Passing of rights and obligations upon external changes of sovereignty over territory.
The passing of rights and obligations upon internal changes of sovereignty, irrespective of territorial changes.
11
KDR/RGSOIPL/2008
PASSING OF RIGHTS AND
OBLIGATIONS
Passing of territory to another state.
One state divided into many states.
New states from colonial states
12
KDR/RGSOIPL/2008
TREATY RELATIONS
Vienna convention on Succession of States in respect of treaties, 1978. entered into force - 1996
A.15- treaties of the predecessor state are to be in force in relation to the territory thus passing
Treaties of the successor state are to be in force in respect of the territory thus passing, unless it appears from the treaty or is otherwise established that the application of the treaty to that territory would be incompatible with the object and purpose of the treaty or would radically change the conditions for its operations.
13
KDR/RGSOIPL/2008
STATE PRACTICE
A new state does not succeed automatically to a treaty if the subject matter is closely linked to the relations of the predecessor state with the other party or parties. Example include political treaties such as treaties of alliance or defence.
In case of absorption all treaties entered into by the absorbed state will either simply lapse or the absorbing state will extend to the absorbed state.
A.31 of the 1978 Convention
A successor state will be bound on human right treaties.
14
KDR/RGSOIPL/2008
CONTRACTUAL OBLIGATIONS
The relevant treaties will continue in force.
Free choice doctrine
Damages for unliquidated damages wont exist
If there is any unjust enrichment to the predecessor or successor state the right and corresponding obligations may survive.
15
KDR/RGSOIPL/2008
SUCCESSION
West Rand Central Gold Mining Co v. R, [1905] 2 KB 391.
Extinction of rights by conquest or annexation, the successor state has the right to decide whether to submit to the contractual rights.
If any concessionary agreement will extinct with the transition.
Unless the successor state renews it.
16
KDR/RGSOIPL/2008
PUBLIC DEBTS
Taking the burden with the benefits
No obligation accrues for a successor state in respect of a public debt incurred for a purpose hostile to the successor state or for the benefit of some other state.
If a country is divided into many countries the debt become divided among the successors.
Ottoman Debt Arbitration, 1925.
Proportionate benefit
17
KDR/RGSOIPL/2008
DEBTS
Vienna Convention on Succession of States in Respect of State Property, Archives and Debts, 1983. NOT IN FORCE
Usually all disputes has to be settled by agreements.
the successor State acquires the whole property of the predecessor State or States.
Equitable proportion is to pass to the successor state.
A.37 if the successor state is a newly independent state, no debt will pass unless the agreement otherwise agrees.
18
KDR/RGSOIPL/2008
PROPERTY & ARCHIVES
Those States should receive not only the whole property of the predecessor State situated in the territory of the new State, but also property having belonged to the territory of the successor State and situated outside it and having become property of the predecessor State during the period of dependence.
If no agreement was concluded, in the case of cession the successor State should receive the part of the archives necessary for an efficient administration of the acquired territory, as well all the documents relating fully or mostly to the ceded territory.
19
KDR/RGSOIPL/2008
ARCHIVES AND DEBT
in the case of the unification of States the successor State acquire all the archives of the predecessor State.
Archive includes documents, photographs, films, cultural heritage etc.
The Convention did not refer to any classification of debts.
the criterion generally adopted by the Convention was that the debt passes to the successor State in an equitable proportion.
The exception was the situation of the newly independent States, for which no debts pass to them, unless an agreement provides otherwise, provided that this agreement does not infringe the principle of sovereignty of peoples over wealth and natural resources (Article 38).
20
KDR/RGSOIPL/2008
ASSETS & DEBT
Similar solutions were applied in cases of secession and dismemberment of the predecessor State (Art.40 and 41) - the debt should be divided into proportional shares.
The primary rule with regard to the allocation of assets (including archives) and debts in succession situations is that the relevant parties should settle issues by agreement.
the first principle applicable to State succession is that the successor States should consult with each other and agree a settlement of all questions relating to succession.
States does not as such affect the rights and obligations of creditors. Art. 40 of Vienna II provides that where part of a state separates to from another state, unless otherwise agreed, the state debt of the predecessor state passes to the successor state in an equitable proportion taking into account in particular the property, rights and interests which pass to the successor state in relation to that debt.
21
KDR/RGSOIPL/2008
CLAIMS
the successor state has a right to take up fiscal claims belonging to the former state, including the right to collect taxes due.
In practice municipal courts will enforce obligations of the predecessor state against the successor only when the latter has recognized them.
Local debts clearly pass under customary international law to the successor State.
Similarly, localized debts, being closely attached to the territory to which the succession relates, also pass to the successor state in conformity with the same territorial principle.
22
KDR/RGSOIPL/2008
TORT
The successor state is not bound to respect an unliquidated claim for damages in tort.
Hawalian claims, AJIL 20, 1926.
Brown Claim, 19 AJIL 1925.
23
KDR/RGSOIPL/2008
MEMBERSHIP OF INT.N.ORG
A new state will not succeed to membership of the UN or other international organisations.
India and Pakistan India continued Pakistan as a new state has to apply for Membership of the UN.
Russia continued to be the member of UN after the dissolution of USSR.
24
KDR/RGSOIPL/2008
NATIONALITY OF NATURAL
PERSONS
As a result of succession no national of the successor state becomes stateless.
UN draft guidelines
25
KDR/RGSOIPL/2008
State Responsibility
West Bengal
IIT Kharagpur
Rajiv Gandhi School of Intellectual Property Law
Assistant Professor of Law
Dr. Raju KD
1 KDR/IIT KGP/RGSOIPL/-2008
State responsibility The law of responsibility is concerned with the
incidence and consequences of illegal acts, and particularly the payment of compensation for loss caused Ian Brownlie
KDR/IIT KGP/RGSOIPL/-2008 2
Spanish Zone of Morocco claims, 1923 J. Huber:
Responsibility is the necessary corollary of a right. All rights of an international character involve international responsibility. Responsibility results in the duty to make reparation if the obligation in question is not met.
KDR/IIT KGP/RGSOIPL/-2008 3
Chorzow Factory, PCIJ, 1927 it is a principle of international law that the breach of
an engagement involves an obligation to make reparation in an adequate form. Reparation therefore is the indispensable complement of a failure to apply a convention and there is no necessity for this to be stated in the convention itself.
KDR/IIT KGP/RGSOIPL/-2008 4
Chorzow Factory, 1928 It is a principle of international law, and even a general
conception of law, that any breach of an engagement involves an obligation to make reparation.
KDR/IIT KGP/RGSOIPL/-2008 5
State responsibility State responsibility for internationally wrongful acts.
State acts in breach of international law.
State cannot evade international obligation under municipal law.
International criminal responsibility.
Crime of apartheid
Racial discrimination
State responsibility in nuclear experiments
KDR/IIT KGP/RGSOIPL/-2008 6
Component state Responsibility of component state is imputed or
attributed to the federal state, in the same way as the conduct of its federal organs,
Federal state is vicariously liable for the conduct of a component state.
KDR/IIT KGP/RGSOIPL/-2008 7
1974 ILC Report The principle that the state is responsible for acts and
omissions of organs of territorial governmental entities, such as municipalities, provinces and regions, has long been unequivocally recognised in international judicial decisions and the practice of States.
KDR/IIT KGP/RGSOIPL/-2008 8
Defense to state responsibility Coercion by another state to commit a wrongful act.
Consent by the affected state.
Countermeasures recognised by international law.
Force majeure contributing to the unlawful act.
KDR/IIT KGP/RGSOIPL/-2008 9
Breach of treaty If any treaty provision is broken responsibility follows.
PCIJ in Chorzow Factory (Indemnity), (1928) PCIJ Ser A, No.17, p.29.
any breach of an engagement involves an obligation to make reparation.
The compensation or punishment may be in accordance with the illegality and seriousness of the act committed.
Rainbow Warrior case -
KDR/IIT KGP/RGSOIPL/-2008 10
Rainbow Warrior On 10 July 1985 an undercover operation conducted by
the French military security service (DGSE) sank the British-registered Greenpeace ship Rainbow Warrior berthed in Auckland Harbour.
The Greenpeace ship was planning to disrupt French Nuclear tests on the islands of French Polynesia. New Zealand subsequently caught and convicted several members of the French secret forces.
KDR/IIT KGP/RGSOIPL/-2008 11
Rainbow warrior France initially offered an official apology and
acknowledgement of breach of international law.
Additionally, the UN secretary-general awarded New Zealand 7 million USD. This is in addition to compensation which France paid to the family of the only victim of the mission and to Greenpeace (settled privately).
KDR/IIT KGP/RGSOIPL/-2008 12
Contracts Excluded from international law purview
Specifically provides international law as the governing law?
KDR/IIT KGP/RGSOIPL/-2008 13
Liability for expropriations Concessions regarding mining, manufacturing,
transportation, utilities and communications.
Anglo Iranian Oil Co Case ICJ 1952. (UKThe Anglo Iranian Oil company case.docx v. Iran)
The UN Resolution on Permanent Sovereignty over Natural Resources, 1962.
KDR/IIT KGP/RGSOIPL/-2008 14
General Assembly resolution 1803 (XVII) of 14 December 1962, "Permanent sovereignty over natural resources"
Nationalization, expropriation or requisitioning shall be based on grounds or reasons of public utility, security or the national interest which are recognized as overriding purely individual or private interests, both domestic and foreign.
In such cases, the owner shall be paid appropriate compensation in accordance with the rules in force in the State taking such measures in the exercise of its sovereignty and in accordance with international law.
In any case where the question of compensation gives rise to a controversy, the national jurisdiction of the State taking such measures shall be exhausted.
However, upon agreement by sovereign States and other parties concerned, settlement of the dispute should be made through arbitration or international adjudication.
KDR/IIT KGP/RGSOIPL/-2008 15
Expropriation of foreign private property 1. be for a public purpose in accordance with a declared
national policy.
2. Not discriminate between aliens and citizens, or between different foreign nationalities.
3. Not involve the commission of an unjustified irregularity.
4. Be accompanied by the payment of appropriate compensation.
KDR/IIT KGP/RGSOIPL/-2008 16
Standard of reparation Restitutio in integrum monetary equivalent.
Damnum emergens market value of assets
Lucrum cessans loss of expected profits
KDR/IIT KGP/RGSOIPL/-2008 17
Calvo clause Argentinian jurist Calvo
Legal disputes arising out of the contract shall be referred to the municipal courts of the state granting the concession or grants.
Oust the jurisdiction of the international arbitral tribunals.
North American Dredging Co Case
KDR/IIT KGP/RGSOIPL/-2008 18
Hull Formula A number of developed countries endorsed the Hull formula, first
articulated by the United States Secretary of State Cordell Hull in response to Mexicos nationalisation of American petroleum companies in 1936.
Hull claimed that international law requires prompt, adequate and effective compensation for the expropriation of foreign investments. Developing countries supported the Calvo
doctrine during the 1960s and 1970s as reflected in major United Nations General Assembly resolutions. In 1962, the General Assembly adopted its Resolution on Permanent Sovereignty over Natural resources which affirmed the right to nationalise foreign owned property and required only appropriate compensation.
KDR/IIT KGP/RGSOIPL/-2008 19
Debts Lord Palmerstons theory 1848 intervene
diplomatically and even resort to military intervention against defaulting debtor state.
The Drago doctrine Argentinian Minister 1902 non use of military force
Included in the Hague Convention of 1907 Employment of Force for the Recovery of Contract Debts non use of force.
KDR/IIT KGP/RGSOIPL/-2008 20
Person or property Immutability
1. conduct of the state organ or official in breach of an obligation defined in a rule of international law.
2. That breach would be attributed to the state.
KDR/IIT KGP/RGSOIPL/-2008 21
Conditions for state responsibility 1. state organ r official is guilty of the relevant act with
state authority.
2. state responsible at international law if the person exceeds authority impute liability on the state.
Youmans case Mexican troops exceeded orders and killed Americans.
3. Under municipal law there is no authority imputation will fail.
KDR/IIT KGP/RGSOIPL/-2008 22
Protection of citizens abroad Denial of justice
Chattin Claim (1927) US-Mexico
Exhaustion of local remedies is a condition precedent.
KDR/IIT KGP/RGSOIPL/-2008 23
Fault theory One state is not responsible to another state for
unlawful acts committed by its agents unless such acts are committed willfully and maliciously or with culpable negligence.
Jessie British American Claims Arbitral Tribunal in 1921.
any government is responsible to other governments for errors in judgment of its officials purporting to act within the scope of their duties and vested with power to enforce their demands.
KDR/IIT KGP/RGSOIPL/-2008 24
Claims Presence of malice or culpable negligence is not a
condition precedent of state responsibility.
A state can bring claims if one of its subjects has sustained unlawful injury for which another state is responsible.
Mavrommatis Palestine Concessions Case, 1924, PCIJ 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 the sole claimant.
KDR/IIT KGP/RGSOIPL/-2008 25
Corporations Nationality of claims canon nationality of the
company.
Barcelona Traction (Belgium v. Spain)
Only the national of the company (Canada) can initiate any claim.
Belgium claim on behalf of its citizens fail.
Real and effective nationality is the criteria Cf Florence Strunsky Merge Case (1955).
Artificial personality in corporations - only nationality is criteria.
KDR/IIT KGP/RGSOIPL/-2008 26
Damages Material damage or pecuniary loss.
Nicaragua Case
KDR/IIT KGP/RGSOIPL/-2008 27
Thank you
KDR/IIT KGP/RGSOIPL/-2008 28
Diplomatic Immunities
West Bengal
IIT Kharagpur
Rajiv Gandhi School of Intellectual Property Law
Assistant Professor of Law
Dr. Raju KD
1 KDR/IIT KGP/RGSOIPL/-2008
Developments English Diplomatic Privileges Act of 1708
Congress of Vienna 1815
Regulation of Vienna
Vienna Convention on Diplomatic Relations 1961.
183 state parties
extra ordinary Ambassadors on temporary mission
Title of Plenipotentiary
Envoy Extraordinary and Minister Plenipotentiary
KDR/IIT KGP/RGSOIPL/-2008 2
Missions A.2 of the Vienna Convention mutual consent of
states.
No right of establishment of missions
Consent of both states are necessary.
Usually embassies
53 states High Commissions all common wealth countries.
KDR/IIT KGP/RGSOIPL/-2008 3
Formalities Letters de Credence to be issued
Letters of full powers relating to particular negotiations or specific instructions to be submitted to the accredited state.
In order to avoid conflict the appointment of a particular person as envoy must ascertain beforehand whether that person will be persona grata.
Once the ascent is obtained, proceed with appointment.
KDR/IIT KGP/RGSOIPL/-2008 4
Functions of missions A.(1) - (a) representing the sending State in the receiving State;
(b) protecting in the receiving State the interests of the sending State and of its nationals, within the limits permitted by international law;
(c) negotiating with the Government of the receiving State;
(d) ascertaining by all lawful means conditions and developments in the receiving State, and reporting thereon to the Government of the sending State;
(e) promoting friendly relations between the sending State and the receiving State, and developing their economic, cultural and scientific relations.
KDR/IIT KGP/RGSOIPL/-2008 5
Mission All buildings, land, irrespective of ownership
Residence of head of mission and staff.
The Diplomatic and Consular Premises Act 1987 requires the consent of the British Government before acquiring property.
Receiving state must facilitate the acquisition and accommodation of the staff.
S.25 full facilities telephone line, permits etc.
KDR/IIT KGP/RGSOIPL/-2008 6
Persona non grata A.9 unqualified power on the receiving state to
remove any member of the mission.
Not acceptable.
The receiving state will refuse to recognise him as a member of the mission.
No longer enjoy privileges and immunities
No reason for demanding recall
KDR/IIT KGP/RGSOIPL/-2008 7
Foreign territory Part of the territory of receiving state
Buying or leasing be under the local law.
A.22 premises of the mission are inviolable
Agents of the receiving state cannot enter the mission without the consent.
Police intrusion is violation of inviolability
the remedy is only personal non-grata or serving diplomatic relations.
KDR/IIT KGP/RGSOIPL/-2008 8
Movement A.26 freedom of movement within the receiving
state.
Freedom of communication
A.27(1) inviolability of official communication
All correspondence relating to mission and its functions.
KDR/IIT KGP/RGSOIPL/-2008 9
Diplomatic bag Any bag for communication or any equipment.
Even a container can be termed as diplomatic bag but not the vehicle itself.
A.27(4) Specific external mark
Label + official stamp
A.27(4) - stipulates the bag should only contain diplomatic documents or articles intended for official use.
Use of the bag for sending drugs, arms or explosives are abuse of the Convention.
KDR/IIT KGP/RGSOIPL/-2008 10
Rights and privileges Article 20-41 of the Vienna Convention
Representative theory
Ex - territoriality no more accepted
R v. Turnbull, ex p Petroff, (1971) 17 FLR 438.
Throwing explosives in USSR Embassy in Canberra.
Held Embassy is not a part of the foreign territory and the accused could be prosecuted for such alleged offences against local law.
KDR/IIT KGP/RGSOIPL/-2008 11
Foreign territory A.31 of the Vienna Convention of 1963
No entry without consent
Consent assumed in case of fire or prompt protective action.
1948 - Kasenkina Case lady jumped through the window of Soviet consular office.
KDR/IIT KGP/RGSOIPL/-2008 12
Protection A.22 of Vienna Convention
US Diplomatic and Consular Staff in Tehran, ICJ 1980, 3.
ICJ held that it the host state to protect the premises, staff and archives of the mission against any attack.
A.25 full facilities for a mission to perform its functions.
A.26 freedom of movement and travel of mission personnel (except in prohibited areas).
KDR/IIT KGP/RGSOIPL/-2008 13
Protection 1984 Firing from Libyan Peoples Bureau in London
at demonstrators outside the Bureau killing one women police officer.
Recall of the staff.
A.34 and 36 exemption from all dues and taxes.
A.27 freedom of communication for official purposes.
Exception from social security provisions
KDR/IIT KGP/RGSOIPL/-2008 14
Protection of diplomats UN Convention on the Prevention and Punishment of
Crimes against Internationally Protected Persons including Diplomatic Agents 1973.
Protection against him and family members.
Murder, kidnapping or other attack upon person
Violent attack on official premises or private accommodation.
Transport,
KDR/IIT KGP/RGSOIPL/-2008 15
Personal inviolability Arrest or detention
Keep freedom and dignity (A.29)
Duty to take all appropriate steps to prevent any attack on diplomatic persons.
Inviolability to the residence of the head of mission.
Private residence of diplomatic agent enjoys same inviolability.
KDR/IIT KGP/RGSOIPL/-2008 16
Diplomatic immunity Criminal jurisdiction
Civil and administrative matters
The immunity can be waived only by the sending state [A.32(2]
Social security exemption
Exemption from taxation
Property tax exemption on reciprocal basis.
Exemption from income tax
Customs duties and inspection
KDR/IIT KGP/RGSOIPL/-2008 17
Family The immunities are extended to the family of a diplomatic
agent forming part of his house hold. A. 37(1).
Spouse and children
Unmarried couples
Wife is not immune from civil and administrative jurisdiction.
A.37(2) Administrative and technical staff are immune.
Staff only in respect of acts performed in the course of duties.
KDR/IIT KGP/RGSOIPL/-2008 18
Termination of diplomatic mission Recall of envoy Lettre de Recreance
Notification by the sending state to the receiving state that the envoy function has come to an end.
Request by the receiving state that the envoy be recalled.
No explanation is required A.9 of the Vienna Convention.
War between two states
KDR/IIT KGP/RGSOIPL/-2008 19
End of Diplomatic mission Envoy has been declared as persona non grata.
Expiration of the letter of credence.
KDR/IIT KGP/RGSOIPL/-2008 20
Consuls The title Consul is used for the official representatives
of the government of one state in the territory of another, normally acting to assist and protect the citizens of the consul's own country, and to facilitate trade and friendship between the people of the country to whom he or she is accredited and the country of which he or she is a representative.
Thus, while there is but one ambassador representing a nation's head of state to another, and his or her duties revolve around diplomatic relations between the two countries.
KDR/IIT KGP/RGSOIPL/-2008 21
Consuls Vienna Convention on Consular Relations, 1963.
Consuls
Vice-consuls
Consular agents
KDR/IIT KGP/RGSOIPL/-2008 22
Ambassador - Consul An ambassador is the
foreign diplomatic representative of a nation who is authorized to handle political negotiations between his or her country and the country where the ambassador has been assigned.
A consul is the commercial agent of a nation, who is empowered only to engage in business transactions, and not political matters in the country where he or she is stationed.
KDR/IIT KGP/RGSOIPL/-2008 23
Powers The powers of an
ambassador are specified in his or her credentials, or documents of introduction, which the ambassador submits to the foreign government.
In general, a consul is authorized to safeguard the legal rights and property interests of the citizens of his or her country and to appear in court to ascertain that the laws of the nation where he or she is assigned are administered impartially to all of the ambassador's compatriots.
KDR/IIT KGP/RGSOIPL/-2008 24
Immunity The development of harmonious international
relations and protection against arrest, harassment, or other unjustified actions taken against diplomatic representatives.
Such an agent is immune from criminal liability in the nation in which he or she serves, but the commission of a crime may result in a recall request to the ambassador's country.
KDR/IIT KGP/RGSOIPL/-2008 25
Immunities In addition, a diplomatic agent is immune from civil
lawsuits, except for actions involving estates, when he or she is the executor, administrator, or beneficiary; actions concerning real property held by the diplomatic agent for personal, not official functions; and actions relating to professional or business activities that are beyond the scope of diplomatic duties.
A diplomatic agent is not required to testify as a witness; and the family members living in the agent's household enjoy the same immunities.
KDR/IIT KGP/RGSOIPL/-2008 26
Immunity No full immunity to consular agents
According to bilateral treaty
Not subject to local proceedings unless their government assents to the proceedings.
Right of free communication
Inviolability of official papers and archives
Right to be released on bail when accused
Limited exemption of taxation and dues.
KDR/IIT KGP/RGSOIPL/-2008 27
Special missions Convention on Special Missions 1969
States for common interest
Freedom of movement and communication necessary for the function of the mission
No immunity from action for damages in case of accidents of vehicles
Permanent missions to international organisations
Permanent observer missions
Delegations to international missions
KDR/IIT KGP/RGSOIPL/-2008 28
Vienna Convention 1975 Convention on the Representation of States in their
Relations with International Organisations of a Universal Character.
KDR/IIT KGP/RGSOIPL/-2008 29
India Diplomatic Immunities Privileges Act, 1964.
KDR/IIT KGP/RGSOIPL/-2008 30
Thank you
KDR/IIT KGP/RGSOIPL/-2008 31
Territorial Jurisdiction & sovereignty
West Bengal
IIT Kharagpur
Rajiv Gandhi School of Intellectual Property Law
Assistant Professor
Dr. Raju KD
1 KDR/IIT KGP/RGSOIPL-2008
State Settled population
Definite territory
Capacity to enter into legal relations
KDR/IIT KGP/RGSOIPL-2008 2
State territory Essential element of statehood is the occupation of a
territorial area.
It includes geographical area of earths surface over which supreme and exclusive sovereignty of a state extends.
It not only includes the surface of earth, territorial waters and air space over the territorial land and water, subsoil and underneath.
Territory is a fundamental concept of international law.
KDR/IIT KGP/RGSOIPL-2008 3
Kelsen Defined state territory as:
a space within which the acts of the state, and specially its coercive acts, are allowed by general international law to be carried out, a space within which the acts of a state may legally be performed.
KDR/IIT KGP/RGSOIPL-2008 4
Sovereignty : Max Huber Arbitrator in Island of Palmas Arbitration
sovereignty in the relation between states signifies independence.
Independence in regard to a portion of the globe is the right to exercise therein, to the exclusion of any other state, the function of a State.
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Acquisition of territory Cession
Occupation
Annexation
Prescription
conquest
Accretion
Acquiescence, recognition and estoppel
Plebiscite.
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Modes of Acquisition Cession: Transfer from one state to another, usually by
treaty.
May be voluntary by a treaty.
If any treaty is concluded by use of force or threat is void.
Violation of UN charter and A.52 of the Vienna Convention of 1969.
Voluntary session sale of Alaska by Russia to US in 1867.
Exchange of Heligoland for Zanzibar by Germany and Great Britain in 1860.
Island of Palmas case US-Holland-
All sovereign rights ceded transfer of sovereignty.
Occupation Occupation of terra nullius:
Never belonged to anyone, or
Abandoned (intentionally, not just through neglect) Occupied (with intent)when place under effective control
Look at nature of territory
Does anyone else claim it
Annexation display of effective control and authority.
Occupation and annexation are based on an act of effective apprehension of territory.
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Occupation Eastern Greenland Case PCIJ
Two elements required
1. an intention or will to act as sovereign.
2. the adequate exercise or display of sovereignty.
Dispute by Norway and Denmark Denmark proved these criteria.
Physical assumption of control is necessary.
Minquiers and Ecrehos Case ICJ actual exercise of state function.
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Continuity Island of Palmas Arbitration:
Mere act of discovery by one state without more is not sufficient to confer a title by occupation.
Continuous and peaceful display of authority can confer title.
Theory of continuity.
Claim of North pole and South pole.
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Annexation Two circumstances:
Where the territory annexed has been conquered or subjugated by the annexing state.
Where the territory annexed is in a position of virtual subordination to the annexing state at the time the latters intention of annexation is declared.
Annexation of Korea by Japan in 1910.
By force against the UN charter, not recognised by other states.
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Modes of Acquisition Prescription
Immemorial exercise of sovereignty or de facto exercise of sovereignty for a long period of time.
Belonged to another state
Control with intent
Probably requires other state to agree
Operations of Nature
Adjudication: mainly limited to drawing line
Conquest Use of force legal or illegal.
A.2(4) of the UN Charter prohibits use of force against any state.
Occupation doesnt transfer sovereignty.
Conquest of Garmany by Allies in 1945.
S.C. resolution inadmissibility of force for acquisition of territory.
S.C. Reslution 662 Iraqi annexation of Kuwait illegal.
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Accretion Accretion addition to a portion of territory.
New territory is added through natural causes.
Alluvial deposition
Sudden and abrupt transfer of soil.
River side depositions
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Modes of Acquisition Conquest: An aggressor cannot acquire territory by
conquest [Stimson Doctrine]
How about the state attacked???
Does not apply to civil wars
Acquiescence, recognition, and Estoppel
Acquiescence requires express statement
Recognition by third parties
Estoppel requires detriment
Acquiescence The common law doctrine of estoppel by
acquiescence is applied when one party gives legal notice to a second party of a fact or claim, and the second party fails to challenge or refute that claim within a reasonable time. The second party is said to have acquiesced to the claim, and is estopped from later challenging it, or making a counterclaim. The doctrine is similar to, and often applied with, estoppel by laches.
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Modes of Acquisition Political Arguments: evidence of presumption of
effective occupation
Geographical contiguity
Historical continuity
Self-determination
Minor Rights
Condominium: agree to joint sovereignty
Lease
Modes of Acquisition Servitudes: territory belonging to one made to serve
the interests of another
Run with the land, change of sovereign do not affect
Loss of territorial sovereignty Dereliction: abandonment of all rights
Revolt: cession of territory
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Sovereignty over air space First World War: airspace over open sea and over
unappropriated territory was absolutely free.
A. 1 of the Paris Convention of 1919 for the Regulation of aerial Navigation, whereby the parties recognised that every state has complete and exclusive sovereignty over the air space above its territory and territorial waters.
freedom of innocent passage
Havana Convention on Commercial Aviation - 1928
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Boundaries Boundary is not only merely a line in a borderland.
Rann of Kutch Arbitration between India and Pakistan 1965.
Pakistan claimed that Rann had always been a part of Kutch territory.
India claimed effective authority.
India won most of the claims and the boundary was fixed on the Northern edge of the Rann.
Read: The Rann of Kutch J. Gillis Wetter The American Journal of International Law, Vol. 65, No. 2 (Apr., 1971), pp. 346-357.
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Rivers Passing through one state.
More than one state.
Freedom of navigation:
At the time of peace only.
Countries through which the river passes have the right of passage.
Freedom of passage is without any limitation.
Treaty of Paris 1814
Vienna congress: 1815
Peace Treaties 1919-1920.
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Rivers 1930 League of Nations convention
1956 Bangkok Convention
1960 Geneva Convention
Lake Lanoux Arbitration France Spain
There was no duty on a riparian state under customary international law to consult, or obtain the prior agreement of a co-riparian, as a condition precedent of its right to begin new river works, although in carrying out the project it must take into account, an a reasonable manner interest of co-reparian.
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Thank you
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Treaties
West Bengal
IIT Kharagpur
Rajiv Gandhi School of Intellectual Property Law
Assistant Professor of Law
Dr. Raju KD
1 KDR/IIT KGP/RGSOIPL/-2008
Objective the maintenance of international peace and security,
the development of friendly relations and the achievement of co-operation among nations,
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Developments International Law Commission draft articles 1966.
Vienna Convention on Law of the Treaties 85 Articles and an Annex.
Convention entered into force in 1980.
Source of law codification of existing laws on treaties Namibia case (A.O) ICJ held that
the rules laid down by the Vienna Convention. Concerning termination of a treaty relationship on account of breach may in may respects be considered as a codification of the existing customary law on the subject.
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Applicability It does not deal with:
1. treaties between states and organizations or between two organizations
2. questions of state succession
3. the effect of war on treaties.
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International conventions Vienna Convention of the Law of the Treaties, 1969
Entered into force in 1980.
Deals only with treaties between states Art. 1.
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Definition S.2. "treaty" means an international agreement
concluded between States with an intention to create legal obligations 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;
"ratification", "acceptance", "approval" and "accession" mean in each case the international act so named whereby a State establishes on the international plane its consent to be bound by a treaty;
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Treaties The object of a treaty is to impose binding obligations
on the states who are parties to it.
Based on the maxim pacta sunt servanda
Two or more states establish or seek to establish a relationship between themselves governed by international law.
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Examples Heads of sovereign states
Inter governmental form technical or non-political agreements.
Ministers of the countries.
Inter state form drafted expressly or impliedly as an agreement between states.
Inter departmental agreement.
Political heads of the countries.
Even a treaty need not be in the form of writing.
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Different forms 1. Convention
2. Protocol
3. Agreement
4. Arrangement
5. process-verbal
6. statute
7. covenant
8. Declaration
9. exchange of notes.
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Conventions Proper formal instrument of a multilateral character.
Standard formal instruments of a multilateral character.
Instruments adopted by international organisations like ILO or ICAO.
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Protocols Less formal than a treaty or convention.
An instrument subsidiary to convention
Ancillary matters such as the interpretation of particular clauses.
Ancillary instrument to a convention.
A supplementary treaty.
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Agreement Less formal
Fewer parties
Technical or administrative character only.
Signed by representatives of governments.
Not subject to ratification.
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Process Verbal Summary of the proceedings and conclusions of a
diplomatic conference.
Minor alteration to a convention.
Not subject to ratification.
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Statute Collection of constituent rules relating to the
functioning of an international institution.
Statute of the ICJ.
Collection of rules laid down by international agreement.
An accessory instrument to a convention setting out certain regulations to be applied.
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Covenant Engagements of fundamental importance.
United Nations Covenant on Civil and Political Rights.
Covenant on Economic, Social and Cultural Rights, 1966.
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Declaration Joint declaration, 19 December 1984 between UK and
China on the revision of Hong Kong to Chinese by 1997.
An informal instrument appended to a treaty or convention interpreting or explaining the provisions of the latter.
Minor importance.
Resolution in a diplomatic conference.
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Modus vivendi Is an instrument recording an international agreement
of a temporary or provisional nature intended to be replaced by an arrangement of a more permanent and detailed character.
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Exchange of notes Informal method.
Through diplomatic route or military representatives.
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Practices and entry into force 1. Accreditation of negotiators
2. Negotiations and adoption.
3. Authentication, signature and exchange of instruments.
4. Ratification.
5. Accessions and adhesions
6. Entry into force
7. Registration and publication
8. Application and enforcement
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Credentials First step to appoint negotiators.
Power to attend and negotiate with other states.
Power to sign is not required for negotiations.
The power to negotiate signed by the head of the state or Minister of Foreign Affairs is known as Full Powers or Pleins Pouvoirs.
The sending for negotiations with Full Powers A.7.1(b).
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Negotiation and adoption Either through discussions in case of bilateral treaties.
Multilateral diplomatic conferences.
Different committees were constituted like steering committees and drafting committees.
The Conference appoints a prominent member as Rapporteur.
A.9(2) vote of two thirds of the states present and voting.
Even can be adopted by consensus.
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Authentication, signature and exchange of instruments
Once the final draft is agreed upon it will be made public for sometime.
Signature is effected at a formal closing session.
It should be authenticated by a resolution.
Heads of the states may sign.
1919- Woodrow Wilson Treaty of Versailles.
1972 US USSR Anti-ballistic Missile System.
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Open for signature Common practice to open the convention for signature
by certain states.
Generally this period does not exceed 9 months.
After expiry of the date no signature
Signature, without reservation
Signature subject to later acceptance
Acceptance simpliciter.
Signature subject to reservation.
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Exchange of instruments Exchange by representatives.
Result: parties becomes bound by the treaty Vienna convention Art. 13.
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Ratification Signed treaty will be send to respective governments
for approval.
Ratification is the approval by the head of the state.
A. 2(1)(b) - 'ratification', 'acceptance', 'approval' and 'accession' mean in each case the international act so named whereby a State establishes on the international plane its consent to be bound by a treaty;
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Object of ratification Opportunity to re-examine the instrument before
undertaking any obligations.
Enable the state to pass any domestic legislation or parliament approval in between signature and ratification.
In international law there is neither a legal nor a moral duty to ratify a treaty.
Obligation not to defeat the object and purpose of a treaty - A.18 of the Convent