Publich Internation Law

8/18/2019 Publich Internation Law

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Public International Law Exam Notes(includes relevanttreaties)1. Nature and Development of International Law

1.1 Definition of International LawBod of le!al rules !overnin! interaction between soverei!n states (Public International Law) and

t"e ri!"ts and duties of t"e citi#ens of soverei!n states towards t"e citi#ens of ot"er soverei!n

states (Private International Law). $ince t"ere "as never been a law ma%in! bod for international

law& it "as been built up piecemeal t"rou!" accords& a!reements& c"arters& compromises&

conventions& memorandums& protocols& treaties& tribunals& understandin!s& etc. '"e statute of t"e

International ourt f *ustice (+udicial arm of t"e ,N w"ic" "as no enforcement power& and can

ad+udicate onl w"ere bot" sides a!ree to abide b its decisions) states t"e basis on w"ic" it

ad+udicates cases before it as -(a) international conventions& w"et"er !eneral or particular&

establis"in! rules expressl reco!ni#ed b t"e contestin! states (b) international custom& as

evidence of a !eneral practice accepted as law (c) t"e !eneral principles of law reco!ni#ed b

civili#ed nations.- It is not /0orld Law/ but law between consentin! soverei!n states (eac"!overnment can decide w"ic" law it will ad"ere to or not) and "as not been able to solve t"e

problems of interstate a!!ression& conflict& terrorism& and war. Despite its limited applicabilit&

"owever& it "as plaed a vital role over t"e centuries in developin! a sstem of procedures and

rules in areas (suc" as air& land& sea& outerspace& "uman ri!"ts) w"ere one state/s existence

impin!es t"at of t"e ot"ers. '"e 2eneral assembl of t"e ,N is entrusted wit" developin!

international law. 3lso called law of nations.

1.4 International Law as -Law-

no effective aut"orit to enforce

Lac%s compulsor *urisdiction

5ules of intl law suffer frm !reat uncertainit Lac% of effective sanction 6 fre7uent violations of rules of intl law

annot intervene in matters of domestic +urisdiction

8an cases "s failed to maintain order 9 peace in t"e world

1.: Basis of International Law *urisprudential '"eories

Evidence of treaties& immunities of ambassadors& usa!e of war& etc can be found in ancient E!pt&

India& t"e 2ree% 9 5oman empires present da intl owes ori!in to 2rotius a !reat *urist w"ose

wor% De *ure Belli ac Paces (1;4


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'"e t"ree basic points of 3ustin/s t"eor of law are t"at=

t"e law is command issued b t"e uncommanded commander@t"e soverei!n

suc" commands are bac%ed b t"reats and

a soverei!n is one w"o is "abituall obeed

3ustin is best %nown t"eor of le!al positivism. >e attempted to clearl separate moral rules from

-positive law.-3ustin was !reatl influenced in "is utilitarian approac" to law b *erem Bent"am. 3ustin too% a

positivist approac" to +urisprudence "e viewed t"e law as commands from a soverei!n t"at are

bac%ed b a t"reat of sanction. In determinin! /a soverei!n/& 3ustin reco!ni#ed it as one w"o societ

obes "abituall. >owever& >enr 8aine in -Earl Institutions- proved t"at in some Empires of t"e

orient t"ere is not"in! to correspond wit" -determinate superior- or soverei!n.

riticism of 3ustin/s view (prominentl b >.L.3. >art)

Airst& in man societies& it is "ard to identif a soverei!nC in 3ustin/s sense of t"e word (a difficult

3ustin "imself experienced& w"en "e was forced to describe t"e Britis" soverei!nC aw%wardl as

t"e combination of t"e in!& t"e >ouse of Lords& and all t"e electors of t"e >ouse of ommons).

3dditionall& a focus on a soverei!nC ma%es it difficult to explain t"e continuit of le!al sstems= a

new ruler will not come in wit" t"e %ind of "abit of obedienceC t"at 3ustin sets as a criterion for a

sstem/s rulema%er.

3 different criticism of 3ustin/s command t"eor is t"at a t"eor w"ic" portras law solel in terms

of power fails to distin!uis" rules of terror from forms of !overnance sufficientl +ust t"at t"e are

accepted as le!itimate (or at least as reasons for action) b t"eir own citi#ens.

>.L.3. >art revived le!al positivism in t"e middle of t"e 4t" centur (>art 1Fart/s t"eor did not tr to reduce all

le!al rules to one %ind of rule& but emp"asi#ed t"e varin! tpes and functions of le!al rules and

>art/s t"eor& !rounded partl on t"e distinction between obli!ationC and bein! obli!ed&C was

built around t"e fact t"at some participants wit"in le!al sstems acceptedC t"e le!al rules as

reasons for action& above and beond t"e fear of sanctions. >art/s "ermeneuticC approac"&

buildin! on t"e internal point of viewC of participants w"o accepted t"e le!al sstem& diver!ed

s"arpl from 3ustin/s approac" to law.

1.H odification of International Law

odification of International Law is as important as codification of an ot"er law. >owever&

codification of International Law "as some uni7ue features because it provides=

>armoni#ation and coordination of various municipal laws to uniform statues as far as

practicable

3rran!in! t"e existin! customar international law in a sstematic process

Includes all conventions& treaties& c"arters etc.'"e process of codification of International Law be!an in 1Gt" centur w"en t"e Declaration of

Paris& 1G


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8oves awa from individualit and mi!"t effect sentiments& customs and traditions etc.

0ron!doers can ta%e advanta!e of codified law because t"e come to %now of was of avoidin!

provisions of law

Disturbs citi#en ri!"ts at times

odified law is never complete. It is alwas constantl evolvin!.

1.< $anctions of International law

$anctions b $tates self "elp wit" strict compliance to ,N "arter usin! armed force in self

"elp a!ainst intl wron!ful acts not usin! armed attac% is forbidden. Principles similar to ri!"t of

private defence

ollective $anctions

"ap ?II of ,N "arter J $ecurit ouncil can ta%e neccessar action if t"reat to intl peace 9

securit

8ilitar $anctions

Economic 9 Ainancial $anctions severance of economic relations& trade

Political sanctions expulsion frm ,N 8embers"ip& suspension of ri!"ts 9 privele!es of

members"ip of ,N

$peciali#ed a!encies (IL& IP& 0>& &I') aut"ori#ed to ta%e action a!ainst errin! state

Decision of I* bindin! on parties to dispute& 3rt FH of ,N provides ot"r part ma approac"

$ecurit ouncil to ta%e action.

Public opinion 0orld public opinion w"ic" forced , 9 Arance to pull out troops from $ue# anal

in 1Fuman 5i!"ts 'reat of ?ersailles (1F1F) European ourt of >uman 5i!"ts Lawless ase De Bec%er ase bel!ium forced to c"an!e le!islation re!ardin! ri!"t of person

under detention 9 arrest

Duties of individuals

(i) No rimes a!ainst peace 9 "umanities pirates considered enem of man%ind espiona!e a

crime under intl law

(ii) 0ar riminals an be punised under intl law Nurembur! 9 'o%o tribunals propounded t"e

principle t"t intl law ma impose obli!ations directl a!ainst t"e individual e! officials of 2erman

9 *apan were tried as per t"e provisions of intl law

(iii) rime of !enocide

(iv) 3ircraft >i+ac%in!(v) %idnappin! of diplomatic personnel& etc onvention of prevention 9 punis"ment of crimes


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a!ainst internationall protected persons 1F:& onvention on 'a%in! of "osta!es& 1FF

(vi) Prevention of dru! traffic%in! Narcotics Dru!s convention& 1F:

Procedural apacit of individuals treat of versailles 1F1F ,nder European onvention fr

Protection of >uman 5i!"ts& 1F5 in case of violation of an of t"eir civil 9 political ri!"ts b $tate. In Blom

vs $weden a petition of a student alle!in! discrimination ws "eld admissible.

1. 3pproac" of Developin! ountries towards International Law

4. $ources of International Law

4.1 $tatute of t"e International ourt of *ustice& 1FH< ( 3rticle :G )

1. '"e ourt& w"ose function is to decide in accordance wit" international law suc" disputes as are

submitted to it& s"all appl=

a. international conventions& w"et"er !eneral or particular& establis"in! rules expressl

reco!ni#ed b t"e contestin! states

b. international custom& as evidence of a !eneral practice accepted as law

c. t"e !eneral principles of law reco!ni#ed b civili#ed nations

d. sub+ect to t"e provisions of 3rticle


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5ule of Int Law t"at t"e are. $o t"e basis is ustom M $anctit of ontracts essential to an

communit. Positive Norm. No unilateral deviation. 5ests on 2ood fait" Nort" 3tlantic Ais"eries

case.

'reat is Int. Le!islation.

?ienna onvention on 'reaties = Ever treat in force is bindin! and "as to be performed in !ood fait" ( 3rt 4; )

No part will attempt to +ustif its failure to perform b citin! its internal laws ( 3rt 4 )

Preamble of ,N "arter = ,N "as to establis" conditions w"ere respect for treaties and Int Law is

maintained.

3ll above point towards pacta sunt servanda

Exceptions to P$$ = = i) new state due revolt ii ) 'erritor cededKmer!ed iii) 5ebus sic stantibus =

implied clause& unc"an!ed material circumstances iv) Not an absolute principle as fails toe explain

t"e bindin! force of customar int law ( in fact it rests upon it )

( 553 )

?ienna onvention on Law of 'reaties & 1F;F =

Landmar%& Preamble& G< 3tricle& G Parts Earlier treaties still !overned b ldClaws. odifies.

Doctrines of *us o!ens& 5ebus $ic $tantibus leads to clear sstems.

3ll states are competent& includin! vassal states& except w"ere limitedK7ualified b existin!

treaties. Neutral $tates no ffensive treat for e!.

Int. r!s 'reaties N' in ?ienna scope t"e are under separate onvention adopted 1FG;.

Aree onsent is essential. Araud& orruption& oercion & Error vitiates. Error doesnOt "old if due

$tateOs own conduct or if it "ad notice (no advanta!e of own wron! )

onsent expressed b = i) $i!nature ii) Exc"an!e iii ) 5atificationKacceptanceKapproval iv) 3ccesson

v) 3n ot"er means as a!reed

AormulationKonclusion of 'reaties =

No format prescribed. 2eneral steps =

1) 3ccreditin! of Persons

4) Ne!otiationsKadoption consent of all or 4K:rds if Int onference

:) $i!natures of reps if treat not sub+ect to ratification& comes into force imm t"ereafterH) ratification = v. impstate confirms


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'reat

5at. Not retroactive !enerall. 'o be done onl w"en r7rd b t"e 'reat. 3rt 1H = 5at. Necessar

w"en a) Express consent b) Ne!. states "ave a!reed to rat. ) 5ep "as si!ned sub+ect to d) Intention

of rat. Evident durin! tal%sK ne!.

( E3$I )

Purpose = 3t present& !enerall all need to be rat. 3) $tate can reexamineKreview. B) an even

wit"draw b act of NNrat. ) 3mend internal laws d) Public opinion buildKconsult ( 503P )

8ode = Per $tate procedure. President per adviceK onsent of $enate. ,P b rown on adv of

8inister concerned. India = President per advice of entral abinet

5efusal of = $tates not bound to ratif. No reason to be !iven. But for Int. peace and securit&

$ecurit ouncil pressure( 3rt :F and H1 of ,N "arter ). Bi! states less open to suc" influence. No

time period specified for rat. But interim $tate s"ould not do an act adverse to t"e

ob+ectKpurpose of treat ( 3rt 1G& ? ). $uc" ma impl breac" of treat ( 2erman interest in Polis"

upper $ilesta& 1F4G ). $o si!nin! of t"e rep itself confers some limited status to treat.

onse7uences of = nl if rat. Necessar. But can be applied to domestic municipal law onl after

rat. No ratification no bindin! b terms of t"e $tate w"o "asnOt . But still& a provision ma still fall

wit"in custom and opinion +uris and can be invo%ed

5eservations =

Important. 0"en onl part is accepted and oters re+ected b a $tate. ,nilateral 3ct w"ile

si!nin!Kratifin!Kacceptin! w"en t"e $tate purports to excludeK amend some provisions wrt itself

( 3rt 4(1)(d) ? ). No reservation after +oinin!. an be done even if t"e treat is silent on it.

3rticle 1F = Airstl & is t"e reservation valid use t"e le!alit test =

1) $"ould not be pro"ibited b treat.

4) $"ould be included in t"e reservations specified& as durin! ne!otiates itself it ma "ave become

clear t"at some will not a!ree to all provisions.

:) Is not incompatible wit" t"e ob+ectK purpose of treat

In writin!& eit"er to t"e depositor or directl to ot"ers. an be wit"drawn at an time b writin!

to ot"ers

0"en a state limits its treat obli!ations t"rou!" reservations& ot"er states part to t"at treat

"ave t"e option to accept t"ose reservations& ob+ect to t"em& or ob+ect and oppose t"em. ( 3rt 1F

4: of ?L' )

t"er $tate 3ccepts 5eservation ( or no comments implies acceptance ) =Bot" t"e reservin! state

and t"e acceptin! state are relieved of t"e reserved le!al obli!ation as concerns t"eir le!al

obli!ations to eac" ot"er . But 3cceptin! $tate still responsible to ot"er states w"o "ave no suc"

reservationK

t"er $tate b+ects ( 3rt 4(as to be done wit"in 14 mont"s of t"e reservation notification

t"er $tate ob+ects and pposes ( explicit & 3rticle 41(:) = $uc" a $tate wants to exclude t"e entrinto force of t"e w"ole treat between itself and t"e reservin! $tate '"ere are no le!al obli!ations


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under t"at treat between t"ose two state parties w"atsoever. '"at is& bot" consider t"e "ave no

treat between t"em at all.

5eservations in 8ultilateral treaties ma lead to several bilaterals of variable content not !ood.

>owever as number of si!natories increases& eac" wit" t"eir own opinions& reservations areessential to a more !eneral acceptance of t"e treat.

'reaties and '"ird $tates

Pacta 'ertis nec nocent nec prosunt = '"ird parties receive neit"er ri!"ts nor duties from contracts.

Incorporated under 3 :H of ?L' = 3 treat creates no obli!ationsKri!"ts for :rd $tate wit"out its

consent.

3n!lo Iranian il o. ( 1F


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lawful ob+ects of treaties for example.

*us o!ens and ?

3


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3pplied in =

w"en $ino Bel!ian 'reat of 1G;< was denunciated b "ina citin! c"an!ed circumstances.

Nationalit Decrees ase = Arance said establis"ment of Arenc" protectorate over 8orocco

extin!uis"es some 3n!lo Arenc" 'reaties . Britain said Arance was resortin! to 5$$.

Ais"eries *urisdiction ase 1F: = I* reco!ni#es doctrine of 5$$ as a customar rule of Int Law.

ites two necessar conditions= Pendin! obli!ations s"ould "ave been increased so muc" t"at essentiall different from t"e

ori!inal ones.

No automatic termination. nl confers a ri!"t to call for termination. If disputed must be

submitted for arbitrationK court

5efused in Aree #ones case since function law is to enforce contracts of treaties even w"en t"e

become burden some on parties

Doctrine is controversial but man times +ustified and necessar for vital interests and even survival

of nations. $"ould be clearl defined and used wit"in narrow limits.

Invalidation of 'reaties

Per 3rt H;


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a!ainst Nicara!ua )& ustomar rules can still exist and be applied b courts. Basic principles suc"

as Non ,se of Aorce& non Intervention& respect for terr inte!rit of anot"er& freedom of navi!ation

still bind as customar int law. Nort" $ea case clearl reco!ni#es existence of identical rules in

treat as well as customar law. Bot" can repeal K supersede eac" ot"er law of sea saw repeal of

four 2eneva onventions b ustomar Laws before final codification into ,NL$ 1FG4..

Essentiall bot" a!reements of sub+ects of int law. 5einforce eac" ot"er K supplement. But treat

superior if conflict ( $$ 0ibledon& 1F4:& I* )

4.1.4 International ustom

DevelopmentK Aormation of a ustom

a) ustom and ,sa!e

,sa!e are actions often repeated. '"e become a ustom if ac7uire t"e force of "abit under a

conviction t"at t"e are ri!"t and le!al. $o& custom is usa!e w"ic" "as force of law. 0"ile usa!e is

an international "abit w"ic" "as not et received t"e force of law.

ustom be!ins w"ere usa!e ends. 5epeated usa!e leads to expectations of similar be"avior in

same circumstances. But w"en t"is usa!e !ets reco!nition of various states in t"eir relations wit"

eac" ot"er so as to become ri!"t K obli!ation t"en suc" usa!e becomes ustom . bli!ation arises

from fear of enforcement before t"e courts.

,sa!e ma not lead to ustom. Aactors suc" as $tate interest& "istorical vents etc also add in.

,sa!e converts into custom due conduct of $tate at Diplomatic K Int Levels& forei!n polic

documents& speec"es& positions at for a suc" as ,N& I* . 3nd domesticall decisions in local courts&

tribunals etc.

'rue 'est is t"at "e ,sa!e must !et t"e common consent of cvilised nationsor !eneal consensus of

opinion.

Duration of less important now since comm. Aaster. ,nanimous opinion better indication.

b) ustom "as to be accepted as Law t"at is pinio *uris et Necessitatis

'"is is w"en $tates feel t"at t"e are actin! per law.

$o& acts s"ould be evidence of belief t"at practice is obli!ator b existence of law re7uirin! it

( Nort" $ea ont $"elf ase )

ustomar 5ules ma also be !enerated b treat ( Nort" $ea case )

(1) Lotus ase ( Arance vs 'ur%e )& PI*& $er. 3& No. 1 (1F4)

ollusion $"ips G 'ur%men passed awa riminal case in 'ur%e a!ainst aptain of Lotus

Arance contended +urisdiction customar rule of intl law !rantin! exclusive criminal +urisdiction to

t"e $tate t"e fla! of w"ic" a vessel is flin! court "eld no suc" customar rule was estb beco#

/opinio +uris/ cud nt be proved Even if facts b france were true t"at wud merel s"ow abstinence

and not obli!ation t"erefore no dut to abstain t"erefore eac" state could excercise +urisdictionw.r.t t"e incident Decision J no rule of intl law in r!d to collision cases to t"e effect t"t criminal

proceedin!s were exclusivel wit"in t"e +urisdiction of t"t $tate w"ose fla! t"e s"ip ws flin! 9

t"rfr eac" state cud exercise +urisdiction

omments Lotus ase demonstrates pinio *uris essential fr creation of a new customar rule of

intl law in t"e lotus case even if states "d refrained frm exercisin! +urisdiction ovr crimes

committed on "i!" seas in deference to t"e fla! states& t"e frenc" !ov ws unable to prove t"t

$tates acted in t"is manner frm a sense of le!al obli!ation +ud!ement critici#ed in so far as it

implies t"t intl law permits all it does nt forbid

Lotus case overruled b 2eneva onvention on Law of $ea& 1F


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(4) Nort" $ea ontinental $"elf ases& I* 5ep. 1F;F& p. :

oncept of pposabilit

In a dispute between two $tates& 3 and B& w"ere $tate 3 supports its case b reference to some

principle or institution& $tate B ma see% to invo%e& i.e. oppose as a!ainst $tate 3& eit"er a

particular institution or re!ime under $tate B/s domestic law& or& on a different level& t"e terms ofsome !eneral or particular convention or treat& alle!in! t"at t"is is to prevail over t"e principle or

institution relied on b $tate 3.

0"et"er t"e case of $tate 3 is or is not tenable will turn -on w"at is said to be t"e -opposabilit-

(opposabilite) in law to $tate 3 of t"e institution& re!ime& or treat set up b $tate B.

$tate B will succeed ( if no treat ) onl if t"e Domestic Law cited b it is in accord wit" Int Law.

But if $tate B is proceedin! under a treat olitbli!ation& $tate 3 "as to be a si!nator to t"at treat

for BSs claim to "old.

In t"e Nort" $ea ontinental $"elf ase& t"e 7uestion was w"et"er t"e provisions of an

international convention& namel 3rticle ; of t"e 2eneva onvention on t"e ontinental $"elf&

containin! t"e e7uidistance rule for t"e delimitation of a continental s"elf common to ad+acent

countries& were opposable to t"e 2erman Aederal 5epublic& visavis Denmar% and t"e

Net"erlands& w"ere t"e 2erman Aederal 5epublic/s case was& broadl spea%in!& t"at& in t"e absence

of an a!reed division& demarcation s"ould be carried out accordin! to e7uitable principles. '"e

point was also raised incidentall in t"e cases w"et"er& apart from 3rticle ; of t"e onvention&

unilateral acts or bilateral treaties applin! t"e e7uidistance rule to t"e delimitation of common

continental s"elves& ot"er

t"an to t"e Nort" $ea continental s"elf& were opposable to t"e 2erman Aederal 5epublic.

In t"e result& neit"er t"e provisions of 3rticle ; of t"e onvention nor unilateral acts or treaties

applin! t"e e7uidistance rule were "eld opposable.

(:) 5i!"t of Passa!e over Indian territor (8erits) (Portu!al vs India)& I* 5ep. 1F; p. ;

Issue= 5t of portu!al to send its nationals 9 militar t"rou!" t"e Indian territorT ,ntil 1F


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suspended all passa!e in 1F


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Aor e! Pacta $unt $ervanda.

an also be derived from 8unicipal Laws if universal acceptance and no conflict wit" int law. Not

automatic 0orld ourt to reco!ni#e first per above parameters

Examples =

1) 5es *udicata = once +udiciall decided& absolute bar to action wrt same claimase G G. 3dvisor pinion of I* on t"e Effect of 3wards of ompensation made b t"e ,nited

Nations 3dministrative 'ribunal & 1Fe also carries t"e obli!ations alon!wit" of

existin!a!reements. .Palestine oncsessions ase = 8 !ot some concessions from ttoman

3ut"orities for some worls done. Britain too% from Palestine but doesnOaccept t"is concession. >eld

it s"ould since suc" concessions were valid.

H) Estoppel ( preclusion )

Prea" ?i"ar case ( 1F;4 ) = No benefit from own wron!. If a part b attitudeK actions ta%es a stand

contrar to ri!"ts it is claimin! & it is precluded from suc" claim.


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() 3dvisor opinion of I* on t"e effect of 3wards of ompensation made b t"e ,nited Nations

3dministrative 'ribunal& 1F


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also expressed in man national and subnational arbitration laws& for example s. 44 of t"e

ommercial 3rbitration 3ct 1FGH (N$0).

n t"e ot"er "and& t"e constituent treat of t"e EritreaEt"iopia laims ommission explicitl

forbids t"is bod to interpret ex ae7uo et bono

4.4 t"er sources of intl law

4.4.1 5esolution of 2eneral 3ssembl

3fter ,N formed& most int law dev and codification "as been t"ru itOs or!anisations. $o v. important

source.

5esolutions of 23 are not of le!al c"aracterK not bindin!. But if adopted unanimouslK ;;.;; X

ma+orit and mentioned in man ot"er subse7uent ones it is important as !ive rise to pinio *uris.

8an cases s"ow 23 announcements can be !iven le!al effect but important to consider t"e number

of states& t"eir interest& position in t"e resolution and subse7uent positions.

23 resolutions concernin! internal wor%in! of ,N are bindin!. 3lso& an state votin! in favor of a

resolution is bound b it but for t"ose opposin! it is onl indicative of w"at could be used b t"e Int

ourt as a subsidiar means.

0estern $tates feel resolutions are one of t"e element to ma%e a customar rule& provided ot"er

practices confirm. '"ird 0orld sas since representative of Int 0ill& suc" resolutions b t"emselves

form custom and declare !eneral principles of law. $ince suc" resolutions are based upon e7uit&

welfare of all etc and "ave ma+orit basis t"e well elaborate and develop Int Law to present

needs. Aor e! self determination& self defence& no force use in int relations etc.. $ome li%e ,niv

Declaration of >uman 5i!"ts& 1FHG& Declaration on Pro"ibition Nuclear 0eapons 1F;1 & Declaration

on Permanent $overei!nt over Natural 5esources 1F;4 are clearl of law ma%in! c"aracter. '"e

can also become t"e source of ,niversal Int Law Int onvention on 3part"eid& 1F: and Int.

onvention on 2enocide etc

4.4.4 5esolution of $ecurit ouncil

3 ,nited Nations $ecurit ouncil resolution is a ,N resolution adopted b t"e fifteen members of

t"e $ecurit ouncil t"e ,N bod c"ar!ed wit" -primar responsibilit for t"e maintenance of

international peace and securit-.

'"e ,N "arter specifies (in 3rticle 4) t"at a draft resolution on nonprocedural matters is

adopted if nine or more of t"e fifteen ouncil members vote for t"e resolution& and if it is not

vetoed b an of t"e five permanent members. Draft resolutions on -procedural matters- can be

adopted on t"e basis of an affirmative vote b an nine ouncil members.

'"e five permanent members are t"e People/s 5epublic of "ina (w"ic" replaced t"e 5epublic of

"ina in 1F1)& Arance& t"e 5ussian Aederation (w"ic" replaced t"e defunct $oviet ,nion in 1FF1)

t"e ,nited in!dom& and t"e ,nited $tates.

4.4.: 3dvisor pinions of PI* and I*

(1) 3dvisor pinion of I* on t"e Le!alit of t"e '"reat or ,se of Nuclear 0eapons& :<

International Le!al 8aterials GF (1FF;)

n 1< December 1FFH t"e ,N 2eneral 3ssembl adopted resolution 3K5E$KHFK


16/80

'"e resolution& submitted to t"e ourt on 1F December 1FFH& was adopted b G states votin! in

favour& H: a!ainst& :G abstainin! and 4; not votin!.

ourt/s analsis of ille!alit of nuclear weapons

Deterrence and -t"reat-

'"e le!alit of t"e possession of nuclear weapons

Decision '"e court undertoo% seven separate votes& all of w"ic" were passed=V1:W

'"e court decided to compl wit" t"e re7uest for an advisor opinionV;W

'"e court replied t"at -'"ere is in neit"er customar nor conventional international law an

specific aut"ori#ation of t"e t"reat or use of nuclear weapons-V1HW

'"e court replied t"at -'"ere is in neit"er customar nor conventional international law an

compre"ensive and universal pro"ibition of t"e t"reat or use of nuclear weapons as suc"-V1owever& in view of t"e current state of international law& and of t"e elements

of fact at its disposal& t"e ourt cannot conclude definitivel w"et"er t"e t"reat or use of nuclear

weapons would be lawful or unlawful in an extreme circumstance of selfdefence& in w"ic" t"e ver

survival of a $tate would be at sta%e-V1GW

'"e court replied t"at -'"ere exists an obli!ation to pursue in !ood fait" and brin! to a conclusion

ne!otiations leadin! to nuclear disarmament in all its aspects under strict and effective

international control-

(11) 3dvisor pinion of I* on Namibia& I* 5ep. 1F1& p& 1;

$out"0est 3frica (3fri%aans= $uidwes3fri%a 2erman= $Ydwestafri%a) was t"e name t"at was used

for t"e modern da 5epublic of Namibia durin! t"e earlier eras w"en t"e territor was controlled b

t"e 2erman Empire and later b $out" 3frica.

2erman colon 3s a 2erman colon from 1GGH& it was %nown as 2erman $out"0est 3frica

(Deutsc"$Ydwestafri%a). 2erman "ad a difficult time administerin! t"e territor& w"ic"& owin! to

t"e 2ermans/ native polic& experienced man insurrections& especiall t"ose led b !uerilla leader

*acob 8oren!a. '"e main port& 0alvis Ba& and t"e Pen!uin islands "ad been annexed b Britain as

part of t"e ape olon in 1GG& and became part of t"e ,nion of $out" 3frica in 1F1.

3s part of t"e >eli!olandQan#ibar 'reat in 1GF& a corridor of land ta%en from t"e nort"ern border

of Bec"uanaland& extendin! as far as t"e Qambe#i river& was added to t"e colon. It was named t"e

aprivi $trip (aprivi#ipfel) after t"e 2erman "ancellor Leo von aprivi.V1W

Durin! 1F1


17/80

3frica& includin! 0alvis Ba.

,N trust territor

'"e 8andate was supposed to become a ,nited Nations 'rust 'erritor w"en Lea!ue of Nations

8andates were transferred to t"e ,nited Nations followin! t"e $econd 0orld 0ar. '"e ,nion of

$out" 3frica ob+ected to $out"0est 3frica comin! under ,N control and refused to allow t"eterritor/s transition to independence& re!ardin! it as a fift" province (even t"ou!" it was never

formall incorporated into $out" 3frica)

International law

'"ese $out" 3frican actions !ave rise to several rulin!s at t"e International ourt of *ustice& w"ic"

in 1F


18/80

(14) 3dvisor pinion of I* in 0estern $a"ara ase& I* 5ep.. 1Famra and 5io De ro and

several ot"er re!ions (8auritania& part of 3l!eria 9 part of 8ali) coloni#ed b Arance. Durin! t"e

1F;s& 8orocco succeeded in !ettin! $panis" $a"ara to be listed on t"e list of territories to be

decoloni#ed& and on December 4& 1F;;& ,nited Nations 2eneral 3ssembl 5esolution 444F called

on $pain to "old a referendum on selfdetermination in t"e re!ion.

3fter initiall resistin! all claims b 8orocco and 8auritania (w"ic" also started lain! claims to

parts of t"e re!ion)& $pain announced on 3u!ust 4& 1FH& t"at a referendum on selfdetermination

would be "eld in t"e first six mont"s of 1F< and too% a census of t"e re!ion in order to assess t"e

votin! population.

8orocco declared it cannot accept a referendum w"ic" would include an option for independence

and renewed its demands for t"e reinte!ration of t"e remainin! provinces of $a!uia el>amra and

5io de ro to t"e countr/s soverei!nt. In 8auritania& a smaller movement existed to overta%e

some amount of t"e territor& partitionin! it wit" 8orocco.

3l!erian8oroccan relations "ad been strained since 3l!eria/s independence in 1F;4& culminatin! in

t"e $and war& and a lac% of normali#ed relations. 3l!eria& after initiall supportin! 8orocco and

8auritania in t"eir demandsVcitation neededW& started in 1F< to support t"e independence of t"e

territor. '"e 3l!erian official position was t"at it supported t"e ri!"t of selfdetermination of t"e

people of t"e former $panis" colon. '"e Polisario Aront& created in 1F:& a national liberation

movement %nown as Polisario ($panis"= -Arente Popular de Liberaci[n de $a!uia el>amra 5\o de

ro- En!lis"= -Popular Aront for t"e Liberation of $a!uia el>amra and 5io de ro-) was formed in

1F: to expel t"e $paniards. '"e en!a!ed in several lowlevel acts of propert destruction& mostl

locali#ed around t"e Aosbucraa conveor belt& w"ic" exported t"e ric" p"osp"ates to t"e 3tlantic

cean.

n $eptember 1& 1FH& in! >assan II announced "is intention to brin! t"e issue to t"e I*. In

December& $pain a!reed to dela t"e referendum pendin! t"e opinion of t"e court. '"e !ave t"eir

support to I* submission on t"e !rounds t"at it be a nonbindin!& advisor opinion& rat"er t"an a

-contentious issue-& w"ere t"e rulin! would obli!e t"e interested states to act in a particular

manner.

n December 1:& t"e ,nited Nations 2eneral 3ssembl voted on submission& resultin! in ,N 2eneral

3ssembl 5esolution :4F4& affirmin! it and definin! t"e wordin! of t"e 7uestions to be submitted.

3l!eria was amon! t"e nations votin! in favor& and several '"ird 0orld nations abstained.

$ubmission

,N 2eneral 3ssembl 5esolution :4F4V4W re7uested t"at t"e International ourt !ive an advisor

opinion on t"e followin! 7uestions=

=I. 0as 0estern $a"ara (5\o de ro and $a%iet El >amra) at t"e time of coloni#ation b $pain a

territor belon!in! to no one (terra nullius)T

3nd& s"ould t"e ma+orit opinion be -no-& t"e followin! would be addressed=

=II. 0"at were t"e le!al ties between t"is territor and t"e in!dom of 8orocco and t"e8auritanian entitT


19/80

In t"e meantime& 8orocco and 8auritania +ointl a!reed to not contest t"e issue of partition or

soverei!nt. n *anuar 1;& 1Fassan II and $pain. 3l!eria& 8auritania&

8orocco& and $pain were all !iven permission to present evidence at t"e "earin!s (t"e Polisario was

loc%ed out as onl internationall reco!ni#ed states "ave a ri!"t to spea% 3l!eria lar!el

represented t"e $a"rawis). 'wentseven sessions were "eld in *une and *ul before t"e ourt

called t"e proceedin!s final.

'"e ar!uments presented b 8orocco and 8auritania were essentiall similar= t"at eit"er one "ad a

soverei!n ri!"t over t"e territor. In t"e case of 8orocco& t"e %in!dom of 8orocco claimed t"e

alle!iance of a variet of tribes in surroundin! territor. '"e modern 8oroccan monarc" is derived

from t"is %in!domVcitation neededW. In t"e case of 8auritania& t"ere was no clearl defined state

t"at existed at t"e time. Instead& 8auritania ar!ued t"at a similar entit existed w"ic" t"e called

-bilad "in!uetti-. $pain ar!ued a!ainst 8oroccan soverei!nt& citin! t"e relations"ip t"at $panis"

explorers and coloni#ers "ad establis"ed wit" t"e sultan& none of w"ic" ever reco!ni#ed "is

aut"orit over t"e re!ion. 3l!eria also defended t"e position t"at t"e $a"rawis were a distinct

peopleVcitation neededW& and not under t"e sub+ection of 8orocco or 8auritania.

'"e pinion

n ctober 1


20/80

'"e court delivered its advisor opinion on 44 *ul 41 b a vote of 1 to H& it declared t"at -t"e

declaration of independence of t"e 1 Aebruar 4G did not violate !eneral international law

because international law contains no /pro"ibition on declarations of independence/.-V4W '"ere were

man reactions to t"e decision& wit" most countries t"at alread reco!nise osovo "ailin! t"e

decision and sain! it was -uni7ue- and does not set a precedent w"ile most countries t"at do not

reco!nise osovo said t"e would not be doin! so as t"e rulin! could set a precedent of endorsin!secession in ot"er places.

5ulin!

n 44 *ul 41& t"e court ruled t"at osovo/s declaration of independence was not in violation of

international law.V11


21/80

Ever state decides for itself& accordin! to its le!al traditions. International law onl re7uires t"at

its rules are respected& and states are free to decide on t"e manner in w"ic" t"e want to respect

t"ese rules and ma%e t"em bindin! on its citi#ens and a!encies. But t"e are alwas accountable if

t"e fail to adapt t"eir national le!al sstem in a wa t"at t"e can respect international law.

'"e problem of lex posteriorCIn dualist systems, international law must be translated into national law, and

existing national law that contradicts international law must be "translated

away". It must be modifed or eliminated in order to conorm to international law.

However, the need or translation in dualist system causes a problem with regard

to

tional laws voted ater the act o translation. In a monist sstem& a national law t"at is

voted after an international law "as been accepted and t"at contradicts t"e international law&

becomes automaticall null and void at t"e moment it is voted. '"e international rule continues to

prevail. In a dualist sstem& "owever& t"e ori!inal international law "as been translated into

national law if all went well but t"is national law can t"en be overridden b anot"er nationallaw on t"e principle of -lex posterior dero!at le!i priori-& t"e later law replaces t"e earlier one.

'"is means t"at t"e countr willin!l or unwillin!l violates international law. 3 dualist sstem

re7uires continuous screenin! of all subse7uent national law for possible incompatibilit wit"

earlier international law.

3.2 ractice o !tates

India#dualist$, re%uires ratifcation o intl law & treaties ' intl rules are considered

in customary laws but incase o con(ict between national & intl law the national

law prevails #)ustice *hinnappa +eddy in -ramophone *ompany o India td vs

/irendra /ahadur andey$ ' 0irective principles 1rticle does ac4nowledge intl

law 9 does direct India to strive to implement +ust "onorable intl laws dut of t"e $tate to appl

t"em in ma%in! laws but Directive Principles cannot be enforced in a court of +ustice

,(dualist)& In t"e ,nited in!dom& t"e common law reco!nises customar international law as a

direct source of rules in municipal law.V1W

>owever& t"e law adopts a SdualistO stance in respect of treaties^& includin! "uman ri!"ts treaties=

t"e "ave no direct effect in national law in t"e absence of le!islation to transform t"em into rules

of t"e municipal le!al order. '"is dualism is 7ualified b t"e fact t"at courts will often use treaties

as aids in decidin! 7uestions of municipal law& albeit not as a source of law in t"eir own ri!"t.

,$3(8ixed monodualist)

'"e ,nited $tates of 3merica "as a -mixed- monistdualist sstem international law applies directl

in ,$ courts in some instances but not ot"ers. ,$ onstitution& art. ?I& does indeed sa t"at treaties

are part of t"e $upreme Law of t"e Land& as su!!ested b t"e 7uote above "owever& its $upreme

ourt& as late as t"e recent case of 8edell\n v. 'exas&VW "as restated t"at some treaties are not

-selfexecutin!.- $uc" treaties must be implemented b statute before t"eir provisions ma be

!iven effect b national and subnational courts. $imilarl wit" re!ard to customar international

law& its $upreme ourt stated& in t"e case of t"e Pac7uete >abana (1F)& t"at -international law is

part of our law.- >owever& it also said t"at international law would not be applied if t"ere is a

controllin! le!islative& executive& or +udicial act to t"e contrar. 2eneral rule is t"t if conflict btw

treat 9 national law w"ic" ever is on a later date will prevail.

(1H) In 5e Berubari ,nion No. (I)& 3I5 1F; $ GH


22/80

in Berubari ,nion ase No 1 it ws "eld t"t an a!reement involvin! cessation of part of Indian

territor to Pa%istan re7uired amendment to t"e onstitution "ence le!islative enactment is

neccessar.

(1


23/80

t"e $tate of 'amil Nadu $t to implement t"ese sc"emes exp met frm EPA(env pro fund)

(viii) losure orders fr tanneries to reopen wit" pollution control devices failin! to compl J

permanent closure

(ix) Direct $P& oll& D8& D of said districts to close tanneries wit" imm effct w"o fail to obtain

consent frm board

(x) 2ovt rder no new industries in pro"ibited area old industries to be reviewed b aut" 9relocated

(xi) standards stipuated b t"e Board re!ardin! total dissolved solids ('D$) and approved b t"e

NEE5I s"all be operative all tanneries situated in 'N to compl '"e 7ualit of ambient waters

"as to be maintained t"rou!" t"e standards stipulated b t"e Board.

(4) ?is"a%a vs $tate of 5a+& 3I5 1FF $ :11= ; $ 4H1r

$ used articles of onvention to Eliminate all forms of Discrimination a!ainst 0omen to la down

!uidelines bindin! as law till t"e time re7uired le!islations was not in place

(41) 2aurav *ain vs ,oI 9 rs& 3I5 1FF $ :41

(44) I' vs P.?.3.L ulanda!an "ettiar (4H) ; $ 4:<

Issues in frnt of $ (man ot"r issues covered b >)

(a) 0"et"er t"e 8alasian income cannot be sub+ected to tax in India in t"e basis of t"e a!reement

of avoidance of double taxation entered into between 2overnment of India and 2overnment of

8alasia T

(b) 0"et"er t"e capital !ains s"ould be taxable onl in t"e countr in w"ic" t"e assets are situatedT

'reat provisions prevail over local provisions

'"e 3pex ourt in I' v. P ? 3 L ulanda!an "ettiar (4H) 1:'3ZH; in t"e context of a person

maintainin! residence in India as well as 8alasia and derivin! business incomes in 8alasia& "eld

t"at a liabilit to tax arisin! under t"e provisions of section H and < of t"e Income tax 3ct& 1F;1

w"ic" provide for taxation of !lobal income of an assessee c"ar!eable to tax& t"ere under& is

sub+ect to t"e provisions of an a!reement entered into between "e entral 2overnment and t"e

2overnment of a forei!n countr for avoidance of double taxation as envisa!ed under section F .

$uc" an a!reement will act as an exception to or modification of section H and


24/80

H.1 Basis of International 5esponsibilit

'"e laws of state responsibilit are t"e principles !overnin! w"en and "ow a state is "eld

responsible for a breac" of an international obli!ation. 5at"er t"an set fort" an particular

obli!ations& t"e rules of state responsibilit determine& in !eneral& w"en an obli!ation "as been

breac"ed and t"e le!al conse7uences of t"at violation. In t"is wa t"e are -secondar- rules t"at

address basic issues of responsibilit and remedies available for breac" of -primar- or substantiverules of international law& suc" as wit" respect to t"e use of armed force. Because of t"is

!eneralit& t"e rules can be studied independentl of t"e primar rules of obli!ation. '"e

establis"

(1) t"e conditions for an act to 7ualif as internationall wron!ful&

(4) t"e circumstances under w"ic" actions of officials& private individuals and ot"er entities ma be

attributed to t"e state&

(:) !eneral defences to liabilit and (H) t"e conse7uences of liabilit.

,ntil recentl& t"e t"eor of t"e law of state responsibilit was not well developed. '"e position

"as now c"an!ed& wit" t"e adoption of t"e Draft 3rticles on t"e 5esponsibilit of $tates for

Internationall 0ron!ful 3cts (-Draft 3rticles-) b t"e International Law ommission (IL) in 3u!ust

41.V1W '"e Draft 3rticles are a combination of codification and pro!ressive development. '"e

"ave alread been cited b t"e International ourt of *usticeV4W and "ave !enerall been well

received.

3lt"ou!" t"e articles are !eneral in covera!e& t"e do not necessaril appl in all cases. Particular

treat re!imes& suc" as t"e 2eneral 3!reement on 'ariffs and 'rade and t"e European onvention

on >uman 5i!"ts& "ave establis"ed t"eir own special rules of responsibilit.

(4H) orfu "annel ase& I* 5ep. 1FHF& p. H

I* did nt express an opinion on ri!"t of passa!e of wars"ips t"rou!" territorial sea. It limited its

observations to t"e case of /straits/ "owever some +ud!es in t"eir dissentin! views made obsrvtns

on t"e issue of innocent passa!e of wars"ips. *ud!e 3lvare# felt t"t since war "d been outlawed in

t"e ,N "arter& t"e mission of wars"ips can onl be to secure t"e le!itimate defence of countries

to w"ic" t"e belon!. *ud!e rlov ar!ued t"t t"r ws no ri!"t of innocent passa!e t"rou!"

territorial sea. *ud!e 3#evedo said t"t position of wars"ips in respect of passa!e ws different frm

t"t of merc"ant s"ips.

Intl Law ommission "d proposed t"t a $tate mi!"t ma%e innocent passa!e of wars"ips sub+ect to

prior aut"orisation or notification& but t"e $tate s"ld normall !rant innocent passa!e. In 1FGF ,$ 9

,$$5 made an important +t stmnt t"t /3ll s"ips& incl wars"ips& en+o t"e ri!"t of innocent passa!e

t"rou!" t"e territorial sea in accordance wit" intl law& fr w"ic" neit"er prior notification nor

aut"orisation is re7uired/. >owever its a +t stmnt made b two states 9 nt bindin! on ot"r states.

(4


25/80

t"e complaint from t"e court in $eptember 1FF4 (under t"e later& postA$LN& !overnment of ?ioleta

"amorro)& followin! a repeal of t"e law re7uirin! t"e countr to see% compensation.V:W

'"e ourt found in its verdict t"at t"e ,nited $tates was -in breac" of its obli!ations under

customar international law not to use force a!ainst anot"er $tate-& -not to intervene in its affairs-&

-not to violate its soverei!nt-& -not to interrupt peaceful maritime commerce-& and -in breac" ofits obli!ations under 3rticle ZIZ of t"e 'reat of Ariends"ip& ommerce and Navi!ation between t"e

Parties si!ned at 8ana!ua on 41 *anuar 1Fowever Part II of t"e Draft ode(ontent of t"e Intl 5esp of a $tate) mentions dama!e as le!al

conse7uences of an internationall wron!ful act. 3rt :1 provides t"t resp $tate is under an

obli!ation to ma%e full reparation fr t"e in+ur caused b suc" an act. In+ur includes an dama!e

w"tr material or moral caused b suc" act.

H.4.4 Aault '"eor

Principle of sub+ective resp emp"asised an element of intentional or ne!li!ent conduct on part of

t"e person concerned is neccessar before "is $tate can be rendered liable fr an in+ur caused

t"is view "olds t"t presence of malice or culpable ne!li!ence is a condition precedent. In orfu

"annel case court ws concerned wit" 3lbania/s %nowld!e of t"e lain! of mines 9 t"e 7uestion of

prima facie resp fr an unlawful act committed wit"in t"e territor of t"e $tate concerned &irrespective of attribution. ourt did not reac" its conclusion b an en7uir into t"e mental state of

individual or!an or a!ent of t"e albanian !ovt.

Diff to base $tate/s liabilit on fault orfu "annel case >ome 8issionar $ociet laim& tribunal

noted t"t it ws estb in inl law t"t no !ovt ws resp fr t"e acts of rebels w"r it itself ws !uilt of no

breac" of !ood fait" or of no ne!li!ence in suppressin! t"e revolt.

H.4.: 3bsolute Liabilit and 5is% '"eor

Establis"es t"e liabilit of $tates arisin! out of t"e performance of certain activities w"ic" are

lawful but create serious ris%s& suc" as spatial 9 nuclear activities. >owever principle of ris% is not

applied as a !eneral principle of responsibilit but in circumstances 9 conditions w"ic" are clearldefined in intl conventions. E! t"e principle of strict liabilit finds application in t"e onvention on


26/80

Intl Liabilit fr Dama!e aused b $pace b+ects& 1F1 ,nder it a launc"in! $tate is absolutel

liable to pa compensation fr dama!e caused b its space ob+ects on t"e surface of t"e eart" or to

aircrafts in fli!"t. 3 series of treaties "ave establis"ed a re!ime of strict liabilit fr in+urious

conse7uences arisin! out of peaceful uses of nuclear ener!.

H.: '"e 3ct of $tate (5ules of 3ttribution)

Imposin! upon t"e $tate absolute liabilit w"rever an official is involved encoura!es t"t $tate to

exercise !rGr control over its various depts and reps. 3lso stimulates moves towrds complin! wit"

ob+ective stds of conduct in intl relations.

Imp to note t"t $t is nt resp under intl law fr all acts perfrmed b its nationals if an En!lis"man

were to attac% 9 in+ure a frenc"man on "olida in London& t"e , wud nt be "eld liable fr t"e

in+ur caused unless t"e offender were a policeman or a soldier in ,. 3 $t is resp onl fr acts of its

servnts t"t r imputable or attributable to it imputabilit is t"e le!al fiction w"ic" assimilates t"e

actions or omisions of $t officials to t"e $tate itself 9 w"ic" renders t"e $tate liable fr dama!e

resultin! to t"e propert or person of an alien.

_ouman/s case 8exican militia ordered to protect 3merican citi#ens instead +oin t"e riot in w"ic"

t"e 3mericans were %illed 8exican 2ovt ws "eld liable even t"ou!" t"e defaultin! soldiers

disobeed t"e orders of t"eir superiors

Incase act is completel ultra vires (beond le!al capacit of t"e official involved) no attribution of

liabilit arises. 0"en an incumbent $tate a!enc commits an ultra vires act it cannot be said to

"ave acted on be"alf of t"e $tate But a $tate ma become resp fr t"e wron!s if suc" wron!s were

made possible b t"e omission or default of some ot"er official or $tate or!an w"ic" could "ave

prevented t"e occurence of t"e offence. $tate ma incur an indirect resp arisin! out of an ultra

vires act.

(4;) La2rand ase (2erman vs ,$3) I* 5eports 41& p. H;;

'"e La2rand case was a le!al action "eard before t"e International ourt of *ustice (I*) w"ic"

concerned t"e ?ienna onvention on onsular 5elations. In t"e case t"e I* found t"at its own

temporar court orders were le!all bindin! and t"at t"e ri!"ts contained in t"e convention could

not be denied b t"e application of domestic le!al procedures.

2erman Nationals La 2rand bros armed robber J ban% one man %illed& woman seriousl in+ured

arrested tried sentenced to deat" no consular assistance acc to ?ienna onvention s"ld "v

been informed of t"eir ri!"t to consular assistance later on contacted t"e 2erman consulate

appealed t"eir sentences ar!ued in court t"at t"e were nt informed of consular assistance

federal court re+ected t"eir ar!uments on !rnds of procedural default issue cannot be raised in

federal court unless t"e "ave been raised in $tate

Bac%!round

n *anuar & 1FG4& brot"ers arl and 0alter Bern"ard La2rand bun!led an armed ban% robber in

8arana& 3ri#ona& ,nited $tates& %illin! a man and severel in+urin! a woman in t"e process. '"e

were subse7uentl c"ar!ed and convicted of murder and sentenced to deat". '"e La2rands were

2erman nationals& "avin! been born in 2erman. 0"ile t"e "ad bot" lived in t"e ,nited $tates

since t"e were four and five& respectivel& neit"er "ad ac7uired ,.$. citi#ens"ip. 3s forei!ners t"e

La2rands s"ould "ave been informed of t"eir ri!"t to consular assistance& under t"e ?ienna

onvention& from t"eir state of nationalit& 2erman. >owever t"e 3ri#ona aut"orities failed to do

t"is even after t"e became aware t"at t"e La2rands were 2erman nationals. '"e La2rand

brot"ers later contacted t"e 2erman consulate of t"eir own accord& "avin! learned of t"eir ri!"t toconsular assistance. '"e appealed t"eir sentences and convictions on t"e !rounds t"at t"e were


27/80

not informed of t"eir ri!"t to consular assistance& and t"at wit" consular assistance t"e mi!"t

"ave been able to mount a better defense. '"e federal courts re+ected t"eir ar!ument on !rounds

of procedural default& w"ic" provides t"at issues cannot be raised in federal court appeals unless

t"e "ave first been raised in state courts.

Diplomatic efforts& includin! pleas b 2erman ambassador *Yr!en "robo! and 2erman 8ember ofParliament laudia 5ot"& and t"e recommendation of 3ri#ona/s clemenc board& failed to swa

3ri#ona 2overnor *ane Dee >ull& w"o insisted t"at t"e executions be carried out.V1W arl La2rand

was subse7uentl executed b t"e state of 3ri#ona on Aebruar 4H& 1FFF& b let"al in+ection. 0alter

La2rand was t"en executed 8arc" :& 1FFF& b let"al !as.V4W

'"e case

2erman t"en initiated le!al action in t"e International ourt of *ustice a!ainst t"e ,nited $tates

re!ardin! 0alter La2rand. >ours before 0alter La2rand was due to be executed& 2erman applied

for t"e ourt to !rant a provisional court order& re7uirin! t"e ,nited $tates to dela t"e execution

of 0alter La2rand& w"ic" t"e court !ranted.

2erman t"en initiated action in t"e ,.$. $upreme ourt for enforcement of t"e provisional order.

In its +ud!ment&V:W t"e ,.$. $upreme ourt "eld t"at it lac%ed +urisdiction wit" respect to

2erman/s complaint a!ainst 3ri#ona due to t"e elevent" amendment of t"e ,.$. constitution&

w"ic" pro"ibits federal courts from "earin! lawsuits of forei!n states a!ainst a ,.$. state. 0it"

respect to 2erman/s case a!ainst t"e ,nited $tates& it "eld t"at t"e doctrine of procedural default

was not incompatible wit" t"e ?ienna onvention& and t"at even if procedural default did conflict

wit" t"e ?ienna onvention it "ad been overruled b later federal law@t"e 3ntiterrorism and

Effective Deat" Penalt 3ct of 1FF;& w"ic" explicitl le!islated t"e doctrine of procedural default.

($ubse7uent federal le!islation overrides prior selfexecutin! treat provisions& 0"itne v.

5obertson& 14H ,.$. 1F (1GGG)).

'"e ,.$. $olicitor 2eneral sent a letter to t"e $upreme ourt& as part of t"ese proceedin!s& ar!uin!

t"at provisional measures of t"e International ourt of *ustice are not le!all bindin!. '"e ,nited

$tates Department of $tate also conveed t"e I*/s provisional measure to t"e 2overnor of 3ri#ona

wit"out comment. '"e 3ri#ona clemenc board recommended a sta to t"e !overnor& on t"e basis

of t"e pendin! I* case but t"e !overnor of 3ri#ona i!nored t"e recommendation and 0alter

La2rand was executed on 8arc" :& 1FFF. 3s of 41 t"is is t"e last use of let"al !as in t"e ,.$.&

alt"ou!" five states still permit its use in varin! circumstances.

2erman t"en modified its complaint in t"e case before t"e I*& alle!in! furt"ermore t"at t"e ,.$.

violated international law b failin! to implement t"e provisional measures. In opposition to t"e

2erman submissions& t"e ,nited $tates ar!ued t"at t"e ?ienna onvention did not !rant ri!"ts to

individuals& onl to states t"at t"e convention was meant to be exercised sub+ect to t"e laws ofeac" state part& w"ic" in t"e case of t"e ,nited $tates meant sub+ect to t"e doctrine of

procedural default and t"at 2erman was see%in! to turn t"e I* into an international court of

criminal appeal.

I* decision

n *une 4& 41& t"e I*& re+ectin! all of t"e ,nited $tates/ ar!uments& ruled in favor of 2erman.

'"e I* "eld t"at t"e ?ienna onvention on onsular 5elations of 4H 3pril 1F;: (?ienna onvention)

!ranted ri!"ts to individuals on t"e basis of its plain meanin!& and t"at domestic laws could not

limit t"e ri!"ts of t"e accused under t"e convention& but onl specif t"e means b w"ic" t"ose

ri!"ts were to be exercised. '"e I* also found t"at its own provisional measures were le!all

bindin!. '"e nature of provisional measures "as been a sub+ect of !reat dispute in internationallawVcitation neededW t"e En!lis" text of t"e $tatute of t"e International ourt of *ustice implies


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t"e are not bindin!& w"ile t"e Arenc" text implies t"at t"e are. Aaced wit" a contradiction

between two e7uall aut"entic texts of t"e statute& t"e court considered w"ic" interpretation

better served t"e ob+ects and purposes of t"e statute& and "ence found t"at t"e are bindin!. '"is

was t"e first time in t"e court/s "istor it "ad ruled as suc".

'"e court also found t"at t"e ,nited $tates violated t"e ?ienna onvention t"rou!" its applicationof procedural default. '"e court was at pains to point out t"at it was not passin! +ud!ment on t"e

doctrine itself& but onl its application to cases involvin! t"e ?ienna onvention.

(4) ase concernin! 3vena and ot"er 8exican Nationals (8exico vs ,$3) I* 5eports 4H& p.14

8exico v. ,nited $tates of 3merica& formall 3vena and t"er 8exican Nationals& was a case before

t"e International ourt of *ustice (I*) of t"e ,nited Nations. It was decided on :1 8arc" 4H&

findin! t"at t"e ,nited $tates "ad breac"ed its obli!ations under t"e ?ienna onvention on

onsular 5elations in not allowin! representation from 8exico to meet wit" 8exican citi#ens

arrested and imprisoned for crimes in t"e ,nited $tates.

3n order indicatin! provisional measures in t"e case of 8r. *os` Ernesto 8edell\n 5o+as was entered

on 1; *ul 4G& and on 1F *anuar 4F t"e I* found t"at t"e ,nited $tates breac"ed its

obli!ations under t"e 1; *ul order& but also t"at t"e $tatute of t"e International ourt of *ustice

-does not allow it to consider possible violations of t"e *ud!ment w"ic" it is called upon to

interpret.

H.H International rimes and Delicts

Internationall wron!ful acts= 3ccordin! to t"e Draft 3rticles& an internationall wron!ful act must=

be attributable to t"e state under international law and

constitute a breac" of an international obli!ation of t"e state.V1W

3n internationall wron!ful act w"ic" results from t"e breac" b a $tate of an international

obli!ation so essential for t"e protection of fundamental interests of t"e international communit

t"at its breac" is reco!ni#ed as a crime b t"at communit as a w"ole constitutes an international

crime. n t"e basis of t"e rules of international law in force& an international crime ma result&

inter alia& from=

(a) a serious breac" of an international obli!ation of essential importance for t"e maintenance of

international peace and securit& suc" as t"at pro"ibitin! a!!ression

(b) a serious breac" of an international obli!ation of essential importance for safe!uardin! t"e ri!"t

of selfdetermination of peoples& suc" as t"at pro"ibitin! t"e establis"ment or maintenance b

force of colonial domination

(c) a serious breac" on a widespread scale of an international obli!ation of essential importance for

safe!uardin! t"e "uman bein!& suc" as t"ose pro"ibitin! slaver& !enocide and apart"eid

(d) a serious breac" of an international obli!ation of essential importance for t"e safe!uardin! andpreservation of t"e "uman environment& suc" as t"ose pro"ibitin! massive pollution of t"e

atmosp"ere or of t"e seas.

H. 3n internationall wron!ful act w"ic" is not an international crime in accordance wit"

para!rap" 4 constitutes an international delict.

H.< Aorms of 5eparation (reparation is replenis"ment of a previousl inflicted loss b t"e criminal to

t"e victim)

H.


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state responsibilit. In t"is sense& restitution is one of t"e forms t"rou!" w"ic" a state ma

disc"ar!e its obli!ation to provide reparation for t"e "arm caused b its wron!ful acts. 8ore

precisel& t"e term is used& in international practice& in at least two senses. In t"e strict sense& it

si!nifies t"e return of unlawfull ta%en propert to t"e ori!inal owner. In t"e broad sense&

restitution (or& in its Latin version& restitutio in inte!rum) is t"e reestablis"ment& as far as

possible& of t"e situation t"at existed before a wron!ful act was committed.

3 broad consensus exists amon! t"e international communit preferrin! restitution over ot"er forms

of reparation under international law. '"is view is in line wit" t"e essential !oal of reparation&

w"ic"& accordin! to t"e Permanent ourt of International *ustice/s "oldin! in its famous "or#[w

Aactor decision (1F4G)& -must& so far as possible& wipe out all t"e conse7uences of t"e ille!al act

and reestablis" t"e situation w"ic" would& in all probabilit& "ave existed if t"at act "ad not been

committed.-

It follows t"at restitution"ic" most closel conforms to t"at !oals to be preferred over

compensation and ot"er forms of reparation w"enever possible& unless t"e in+ured part renounces

it. '"is primac of restitution "as been embedded in t"e articles on t"e responsibilit of states for

internationall wron!ful acts& adopted on second readin! b t"e ,nited Nations International Law

ommission (41). Even advocates of t"is primac& "owever& reco!ni#e t"at it is not unconditional&

and t"e accept t"at compensation s"ould be preferred at least w"en providin! restitution would&

in a situation involvin! two states& put a burden on t"e responsible state t"at is out of all

proportion to t"e correspondin! benefit for t"e in+ured state.

5estitution for 2ross >uman 5i!"ts ?iolations 3mountin! to 2enocide and rimes 3!ainst >umanit

3lt"ou!" t"ere is no reason for excludin! t"e primac of restitution wit" re!ard to !ross violations

of "uman ri!"ts& its usefulness ma be limited& in practice& b t"e specific tpe of "arm caused b

t"ese %inds of wron!s. In effect& !enocide and crimes a!ainst "umanit cause "arm& first and

foremost& to immaterial and uni7ue interests& suc" as di!nit& personal inte!rit& and libert. '"ese

cannot be restored to t"eir ori!inal status once t"e are impaired.

5estitution is most suitable and appropriate wit" re!ard to violations of propert ri!"ts& suc" as

ille!al or arbitrar expropriations. >owever& t"is does not mean t"at t"e role of restitution wit"

re!ard to crimes a!ainst "umanit is onl mar!inal. In fact& t"e most invasive attac%s on propert

are often lin%ed wit" !ross "uman ri!"ts violations. 2enocide& for instance& ma be accompanied b

t"e destruction of "ouses and t"e pilla!e of !oods. Aurt"ermore& t"e destruction& plunderin!& and

pilla!e of private propert can b t"emselves amount to crimes a!ainst "umanit or war crimes.

'"is ma occur& for example& w"en t"e dispossession or destruction is ac"ieved t"rou!" blatant

discriminator measures& or wit" t"e intent of persecutin! a !roup or a collectivit& or w"en it is

-committed b pressure of mass terror.- >owever& a number of practical and political factors ma

"inder t"e concrete possibilit for t"e victims to !et t"eir propert bac%. '"is is particularl true

wit" re!ard to two tpes of "i!"l politici#ed restitution claims= t"ose related to "istoricalin+ustices and t"ose connected wit" armed conflicts.

'"e former tpe of claim relates to serious impairments of "uman ri!"ts committed in a distant

past& at a time w"en t"e possibl did not even constitute a breac" of t"e existin! law. '"e

specificit of t"ese claims lies in t"e fact t"at t"e are ar!uabl based on moral !rounds& rat"er

t"an on t"e le!al responsibilit of t"e state involved. '"is is one of t"e reasons w" t"is tpe of

claim is !enerall dealt wit" in t"e framewor% of political settlements& rat"er t"an in t"e courts.

'"e "u!e lapse of time passed since t"e occurrence of t"e in+ur poses an additional ma+or

obstacle for restitution in t"ese cases. Properties are often destroed or no lon!er identifiable&

t"eir economical destination ma be irreversibl c"an!ed& or t"e ma "ave been transferred to

t"ird parties actin! in !ood fait". ,nder t"ese circumstances& restitution of full owners"ip is often

a virtuall impossible option. '"is situation is well illustrated b land restitution claims put forwardb indi!enous communities for "istorical dispossessions.


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5estitution claims connected wit" armed conflicts are complicated b t"e fact t"at t"e

dispossessions often ta%e place in con+unction wit" et"nic cleansin! and land occupation wit" a

view to annexation. >ere& restitution ma still be materiall possible but politicall unrealistic&

particularl w"en it would mean t"e return of "u!e numbers of forcibl displaced persons to

territories t"at "ave passed under t"e control of t"e same !roup w"o forced t"em to flee. In t"is

context& propert restitution can "ardl be seen as an absolute !oal but needs to be reconciledwit" ot"er& concurrin! !oals& to be settled in t"e framewor% of political ne!otiation.

5estitution in t"e Aramewor% of International& 'reatBased *udicial 8ec"anisms for t"e Protection

of >uman 5i!"ts

'"e substantive dut to provide reparations is reinforced in t"e context of +udicial mec"anisms of

protection& w"ere international courts are vested wit" t"e power to ad+udicate bot" on t"e merits

of alle!ations and on remedies. '"e potential of remedies& "owever& ma be partl frustrated b

t"e courts t"emselves ifn t"e basis of a restrictive interpretation of t"eir remedial powers timid&

lowprofile approac" to reparation is ta%en. 3 7uite restrictive approac" is adopted& for instance&

b t"e European ourt of >uman 5i!"ts& w"ic" is !enerall reluctant to order specific remedies.

>owever& it seems to be more audacious w"en it comes to infrin!ements of propert ri!"ts. '"e

court "as occasionall ordered states to return unlawfull sei#ed properties to t"e former owners&

t"us affirmin! t"e primac of restitution. '"e fact remains& "owever& t"at even in propert cases&

t"e court is not alwas prepared to order reparation to ta%e place on t"e basis of restitution.

'"e Inter3merican ourt of >uman 5i!"ts& en+oin! broader remedial powers t"an its European

counterpart& "anded down a landmar% +ud!ment in 41 in t"e 3was 'in!ni case. '"e ourt found

t"at Nicara!ua "ad violated t"e ri!"ts to propert and +udicial protection of t"e members of t"e

8aa!na ($umo) communit of 3was 'in!ni& an indi!enous communit located on t"e forested area

of Nicara!ua/s aribbean coastal re!ion. Aor reparation& t"e ourt ordered t"e !overnment to ta%e

various measures to reco!ni#e& protect& and enforce t"e communit/s "istorical title on its ancestral

land and resources. 3lt"ou!" restitution was not an issue as suc"& t"e decision s"ows t"e potential

of "uman ri!"ts mec"anisms in cases of lar!escale operations of dispossession t"at affect w"ole

communities.

H.


31/80

H.


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a!ue

Peace onference (1F) in t"e form adopted as t"e Porter onvention on t"e Limitation of t"e

Emploment of Aorce for t"e 5ecover of ontract Debts. 3lt"ou!" t"e ,nited $tates opposed

European intervention in t"e 3mericas& it reserved for itself t"e ri!"t& fre7uentl used& to intervene

wit" armed force in an Latin3merican state w"ere conditions seemed to menace ,.$. interests.

Le!alit of t"e clause in 7uestion man cases null 9 void Nort" 3mercia Dred!in! ompan ase

alvo clause ws "eld to be bindin on t"e claimant(alien) to be !overned b 8exican laws& sub+ect

to t"e condition t"t it cud nt ta%e frm "im /"is ri!"t to appl to "is own 2ovt fr protection if "is

resort to t"e 8exican tribunals or ot"er aut"orities available to "im resulted in a denial or dela of

+ustice as t"t term is used in intl law.

3ccordin! to $tar%e its ille!al 9 void to t"e extent it attempts to waive in !eneral t"e soverei!n

ri!"t of a $tate to protect its citi#ens or w"ere it purports to bind t"e claimant/s !ovt nt to

intervene in respect of clear violation of International Law

H.;.4 Position of $"are"olders and Nationalit of orporation

(4G) Barcelona 'raction& Li!"t and Power o. Ltd. ase & I* 5ep 1F;H& p. ;

B'LP incorp in anada 9 ws operatin! in spain. GGX s"are"olders were Bel!ian certain restriction

appld b $pain seriousl in+ured t"e compan In t"e ees of t"e law t"e compan ws of anadiannationalit& t"ou!" a ma+orit of t"e s"are"olders affected were Bel!ian nationals. Bel!ian !ovt

espoused t"e cause of its citi#ens as s"are"olders of t"e compan. I* bsrvd 9 "eld as follows =

(i) In municipal le!al sstem !enerall a compan(w"ose capital is represented b s"ares) en+os a

separate 9 independent corporate personalit visavis its s"are"olders. $o lon! as t"e compan is

in existence& a s"are"older "as no ri!"t to corporate assets. It is to rules !enerall accepted b

municipal le!al sstems 9 nt to municipal law of a particular $tate& t"t intl law refers

(ii) 8ere fact t"at dama!e sustained b bot" compan 9 s"are"olders does nt mean bot" are

entitled to compensation. 0"ile in case of compna t"eir ri!"ts are infrin!ed& in t"e case of t"e

s"are"olders& t"eir interests are affected. Latter must loo% to compan to institute appropriate

action.

(iii) $"ares of compan w"ose activit is intl are widel scattered 9 fre7 c"an!e "ands t"usadoption of t"e t"eor of diplomatic protection of s"are"olders as suc" b openin! door to


33/80

competin! diplomatic claims& cud create confusion 9 insecurit in intl economic relations t"rfr

onl t"e national state of a compan concerned ws entitled to exercise diplomatic proceedin!s fr

t"e purpose of see%in! redress fr t"e wron! done to t"e compan.

(iv) 0"en wron! done to compan wron!doer nt liable to s"are"olders& t"rfr $panis" state ws nt

liable to t"e Bel!ian s"are"olders t"e situation wud be different if t"e act complained of is aimed

at t"e direct ri!"ts to an declared dividend& ri!"t to attend 9 vote in !eneral meetin!s& ri!"t tos"are residual assets of t"e compan on li7uidation. In suc" cases $tate of nationalit of an

individual s"are"older must intervene in "is favor& re!ardless of t"e compan/s nationalit.

(v) In allocatin! corporate entities to $tates& intl law is based but onl to limited extent on an

analo! wit" t"e rules !overnin! t"e nationalit of individuals t"e traditional rule attributes t"e

ri!"t of diplomatic protection of a corporate entit to t"e $tate under t"e laws of w"ic" it is

incorporated and in w"ose territor it "as re!istered office. It "s been t"e practice of some $tates

to !ive a compan incorporated under t"eir law diplomatic protection solel w"en it "s its seat or

m!mnt or center of control in t"eir territor or w"en a ma+orit of or a substantial portion of

s"ares "as been owned b national of t"e $tate concerned. >owever t"is test of !eniuine

connection "s not found !eneral acceptance

In prsnt case Barcelona 'raction/s lin%s wit" anada are manifold. Besides bein! incorporated in

anada 9 "avin! its re!istered office t"ere& its board meetin!s were "eld in anada fr man ears

in fact anadian nationalit of t"e compan "s rcvd !eneral reco!nition. 3s anada "s nt espoused

t"e cause Bel!ium "s no locus standi to espouse& befr t"e I*& t"e claim of Bel!ium nationals

s"are"olders in t"e compan

H.;.: Nationalit b naturalisation

Naturali#ation (or naturalisation) is t"e ac7uisition of citi#ens"ip and nationalit b somebod w"o

was not a citi#en of t"at countr at t"e time of birt".

In !eneral& basic re7uirements for naturali#ation are t"at t"e applicant "old a le!al status as a full

time resident for a minimum period of time and t"at t"e applicant promise to obe and up"old t"at

countr/s laws& to w"ic" an oat" or pled!e of alle!iance is sometimes added. $ome countries also

re7uire t"at a naturali#ed national must renounce an ot"er citi#ens"ip t"at t"e currentl "old&

forbiddin! dual citi#ens"ip& but w"et"er t"is renunciation actuall causes loss of t"e person/s

ori!inal citi#ens"ip will a!ain depend on t"e laws of t"e countries involved.

Nationalit is traditionall based eit"er on +us soli (-ri!"t of t"e territor-) or on +us san!uinis (-ri!"t

of blood-)& alt"ou!" it now usuall mixes bot". 0"atever t"e case& t"e massive increase in

population flux due to !lobali#ation and t"e s"arp increase in t"e numbers of refu!ees followin!

0orld 0ar I created an important class of nonciti#ens called stateless persons. In some rare cases&

procedures of mass naturali#ation were passed. 3s naturali#ation laws were created to deal wit"t"e rare case of people separated from t"eir nation state because t"e lived abroad (expatriates)&

western democracies were not read to naturali#e t"e massive influx of stateless people w"ic"

followed massive denationali#ations and t"e expulsion of et"nic minorities from newl created

nation states in t"e first part of t"e 4t" centur& but t"e also counted t"e (mostl aristocratic)

5ussians w"o "ad escaped t"e 1F1 ctober 5evolution and t"e war communism period& and t"en

t"e $panis" refu!ees. 3s >anna" 3rendt pointed out& internment camps became t"e -onl nation- of

suc" stateless people& since t"e were often considered -undesirable- and were stuc% in an ille!al

situation (t"eir countr "ad expelled t"em or deprived t"em of t"eir nationalit& w"ile t"e "adn/t

been naturali#ed& t"us livin! in a +udicial no man/s land).

3fter 0orld 0ar II& t"e increase in international mi!rations created a new cate!or of refu!ees&most of t"em economic refu!ees. Aor economic& political& "umanitarian and pra!matic reasons&


34/80

man states passed laws allowin! a person to ac7uire t"eir citi#ens"ip after birt" (suc" as b

marria!e to a national +us matrimonii or b "avin! ancestors w"o are nationals of t"at countr)&

in order to reduce t"e scope of t"is cate!or. >owever& in some countries t"is sstem still maintains

a lar!e part of t"e immi!rated population in an ille!al status& albeit some massive re!ulari#ations

(in $pain b *os` Luis Qapatero/s !overnment and in Ital b Berlusconi/s !overnment).

3 state "s ri!"t to protect its citi#ens abroad& it is entitled to intervene diplomaticall to lod!e a

claim fr decision befr an intl tribunal a!ainst ini+uries suffered b its sub+ects.

nce a state "s ta%en up a case on be"alf of one of its sub+ects befr an intl tribunal& t"en in t"e

ees of t"e latter& t"e state is t"e sole claimant . In+ured sub+ects ri!"t is to claim t"rou!"t t"e

$tate. $ome writers "old t"t $tates can proceed wit" t"e laim even t"ou!" t"e individual waives

it.

(4F) Nottebo"m (Liec"tenstein vs 2uatemala) ase& I* 5ep. 1Fambur!& 2erman& possessed 2erman citi#ens"ip.

3lt"ou!" "e lived in 2uatemala from 1F< until 1FH: "e never became a citi#en of 2uatemala. n

ctober F& 1F:F& Nottebo"m applied to become a naturali#ed citi#en of Liec"tenstein. '"e

application was approved under exceptional circumstances and "e became a citi#en of

Liec"tenstein. >e t"en returned to 2uatemala on "is Liec"tenstein passport and informed t"e local

!overnment of "is c"an!e of nationalit. 0"en "e tried to return to 2uatemala once a!ain in 1FH:

"e was refused entr as an enem alien since t"e 2uatemalan aut"orities did not reco!nise "is

naturalisation and re!arded "im as still 2erman. It "as been su!!ested t"at t"e timin! of t"e event

was due to t"e recent entr of t"e ,$ and 2uatemala into t"e $econd 0orld 0ar.

>e was later extradited to t"e ,$ w"ere "e was "eld at an internment camp until t"e end of t"e

war. 3ll "is possessions in 2uatemala were confiscated. 3fter "is release& "e lived out t"e rest of "is

life in Liec"tenstein.

Bac%!round of t"e I* case

'"e 2overnment of Liec"tenstein !ranted Nottebo"m protection a!ainst un+ust treatment b t"e

!overnment of 2uatemala and petitioned t"e International ourt of *ustice. >owever& t"e

!overnment of 2uatemala ar!ued t"at Nottebo"m did not !ain Liec"tenstein citi#ens"ip for t"e

purposes of international law. '"e court a!reed and t"us stopped t"e case from continuin!. $o t"e

courts decided t"at in t"is case t"e would decline t"e offer.

Decision

3lt"ou!" t"e ourt stated t"at it is t"e soverei!n ri!"t of all states to determine its own citi#ens

and criteria for becomin! one in municipal law& suc" a process would "ave to be scrutini#ed on t"e

international plane w"ere t"e 7uestion is of diplomatic protection. '"e ourt up"eld t"e principle

of effective nationalit& (t"e Nottebo"m principle) w"ere t"e national must prove a meanin!ful

connection to t"e state in 7uestion. '"is principle was previousl applied onl in cases of dual

nationalit to determine w"ic" nationalit s"ould be used in a !iven case. >owever Nottebo"m "ad

forfeited "is 2erman nationalit and t"us onl "ad t"e nationalit of Liec"tenstein. '"e 7uestion

arises& w"o t"en "ad t"e power to !rant Nottebo"m diplomatic protectionT

'"e Nottebo"m case was subse7uentl cited in man definitions of nationalit.


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'"e conduct of an or!an placed at t"e disposal of a $tate b anot"er $tate s"all be considered an

act of t"e former $tate under international law if t"e or!an is actin! in t"e exercise of elements of

t"e !overnmental aut"orit of t"e $tate at w"ose disposal it is placed.

3rticle = Excess of aut"orit or contravention of instructions

'"e conduct of an or!an of a $tate or of a person or entit empowered to exercise elements of t"e!overnmental aut"orit s"all be considered an act of t"e $tate under international law if t"e or!an&

person or entit acts in t"at capacit& even if it exceeds its aut"orit or contravenes instructions.

3rticle G= onduct directed or controlled b a $tate

'"e conduct of a person or !roup of persons s"all be considered an act of a $tate under

international law if t"e person or !roup of persons is in fact actin! on t"e instructions of& or under

t"e direction or control of& t"at $tate in carrin! out t"e conduct.

3rticle F= onduct carried out in t"e absence or default of t"e official aut"orities

'"e conduct of a person or !roup of persons s"all be considered an act of a $tate under

international law if t"e person or !roup of persons is in fact exercisin! elements of t"e

!overnmental aut"orit in t"e absence or default of t"e official aut"orities and in circumstances

suc" as to call for t"e exercise of t"ose elements of aut"orit.

3rticle 1= onduct of an insurrectional or ot"er movement

1. '"e conduct of an insurrectional movement w"ic" becomes t"e new 2overnment of a $tate s"all

be considered an act of t"at $tate under international law.

4. '"e conduct of a movement& insurrectional or ot"er& w"ic" succeeds in establis"in! a new $tate

in part of t"e territor of a preexistin! $tate or in a territor under its administration s"all be

considered an act of t"e new $tate under international law.

:. '"is article is wit"out pre+udice to t"e attribution to a $tate of an conduct& "owever related to

t"at of t"e movement concerned& w"ic" is to be considered an act of t"at $tate b virtue of

articles H to F.

3rticle 11= onduct ac%nowled!ed and adopted b a $tate as its own

onduct w"ic" is not attributable to a $tate under t"e precedin! articles s"all nevert"eless be

considered an act of t"at $tate under international law if and to t"e extent t"at t"e $tate

ac%nowled!es and adopts t"e conduct in 7uestion as its own.

>3P'E5 III= B5E3> A 3N IN'E5N3'IN3L BLI23'IN

3rticle 14= Existence of a breac" of an international obli!ation

'"ere is a breac" of an international obli!ation b a $tate w"en an act of t"at $tate is not in

conformit wit" w"at is re7uired of it b t"at obli!ation& re!ardless of its ori!in or c"aracter.

3rticle 1:= International obli!ation in force for a $tate

3n act of a $tate does not constitute a breac" of an international obli!ation unless t"e $tate is

bound b t"e obli!ation in 7uestion at t"e time t"e act occurs.

3rticle 1H= Extension in time of t"e breac" of an international obli!ation

1. '"e breac" of an international obli!ation b an act of a $tate not "avin! a continuin! c"aracter

occurs at t"e moment w"en t"e act is performed& even if its effects continue.

4. '"e breac" of an international obli!ation b an act of a $tate "avin! a continuin! c"aracter

extends over t"e entire period durin! w"ic" t"e act continues and remains not in conformit wit"

t"e international obli!ation.:. '"e breac" of an international obli!ation re7uirin! a $tate to prevent a !iven event occurs w"en


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t"e event occurs and extends over t"e entire period durin! w"ic" t"e event continues and remains

not in conformit wit" t"at obli!ation.

3rticle 13P'E5 I?= 5E$PN$IBILI'_ A 3 $'3'E IN NNE'IN 0I'> '>E 3' A 3N'>E5 $'3'E

3rticle 1;= 3id or assistance in t"e commission of an internationall wron!ful act

3 $tate w"ic" aids or assists anot"er $tate in t"e commission of an internationall wron!ful act b

t"e latter is internationall responsible for doin! so if=

t"at $tate does so wit" %nowled!e of t"e circumstances of t"e internationall wron!ful act and

t"e act would be internationall wron!ful if committed b t"at $tate.

3rticle 1= Direction and control exercised over t"e commission of an internationall wron!ful act

3 $tate w"ic" directs and controls anot"er $tate in t"e commission of an internationall wron!ful

act b t"e latter is internationall responsible for t"at act if=

t"at $tate does so wit" %nowled!e of t"e circumstances of t"e internationall wron!ful act and

t"e act would be internationall wron!ful if committed b t"at $tate.

3rticle 1G= oercion of anot"er $tate

3 $tate w"ic" coerces anot"er $tate to commit an act is internationall responsible for t"at act if=

t"e act would& but for t"e coercion& be an internationall wron!ful act of t"e coerced $tate and

t"e coercin! $tate does so wit" %nowled!e of t"e circumstances of t"e act.

3rticle 1F= Effect of t"is c"apter

'"is c"apter is wit"out pre+udice to t"e international responsibilit& under ot"er provisions of t"ese

articles& of t"e $tate w"ic" commits t"e act in 7uestion& or of an ot"er $tate.

>3P'E5 ?= I5,8$'3NE$ P5EL,DIN2 05N2A,LNE$$

3rticle 4= onsent

?alid consent b a $tate to t"e commission of a !iven act b anot"er $tate precludes t"e

wron!fulness of t"at act in relation to t"e former $tate to t"e extent t"at t"e act remains wit"in

t"e limits of t"at consent.

3rticle 41= $elfdefence

'"e wron!fulness of an act of a $tate is precluded if t"e act constitutes a lawful measure of self

defence ta%en in conformit wit" t"e "arter of t"e ,nited Nations.

3rticle 44= ountermeasures in respect of an internationall wron!ful act

'"e wron!fulness of an act of a $tate not in conformit wit" an international obli!ation towards

anot"er $tate is precluded if and to t"e extent t"at t"e act constitutes a countermeasure ta%en

a!ainst t"e latter $tate in accordance wit" c"apter II of part t"ree.

3rticle 4:= Aorce ma+eure1. '"e wron!fulness of an act of a $tate not in conformit wit" an international obli!ation of t"at


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$tate is precluded if t"e act is due to force ma+eure& t"at is t"e occurrence of an irresistible force

or of an unforeseen event& beond t"e control of t"e $tate& ma%in! it materiall impossible in t"e

circumstances to perform t"e obli!ation.

4. Para!rap" 1 does not appl if=

t"e situation of force ma+eure is due& eit"er alone or in combination wit" ot"er factors& to t"e

(a) conduct of t"e $tate invo%in! it or(b) t"e $tate "as assumed t"e ris% of t"at situation occurrin!.

3rticle 4H= Distress

1. '"e wron!fulness of an act of a $tate not in conformit wit" an international obli!ation of t"at

$tate is precluded if t"e aut"or of t"e act in 7uestion "as no ot"er reasonable wa& in a situation of

distress& of savin! t"e aut"orOs life or t"e lives of ot"er persons entrusted to t"e aut"orOs care.

4. Para!rap" 1 does not appl if= t"e situation of distress is due& eit"er alone or in combination

wit" ot"er factors& to t"e conduct of

(a) t"e $tate invo%in! it or

(b) t"e act in 7uestion is li%el to create a comparable or !reater peril.

3rticle 4


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continued dut of t"e responsible $tate to perform t"e obli!ation breac"ed.

3rticle := essation and nonrepetition

'"e $tate responsible for t"e internationall wron!ful act is under an obli!ation=

to cease t"at act& if it is continuin!

to offer appropriate assurances and !uarantees of nonrepetition& if circumstances so re7uire.

3rticle :1= 5eparation

1. '"e responsible $tate is under an obli!ation to ma%e full reparation for t"e in+ur caused b t"e

internationall wron!ful act.

4. In+ur includes an dama!e& w"et"er material or moral& caused b t"e internationall wron!ful

act of a $tate.

3rticle :4= Irrelevance of internal law

'"e responsible $tate ma not rel on t"e provisions of its internal law as +ustification for failure to

compl wit" its obli!ations under t"is part.

3rticle ::= $cope of international obli!ations set out in t"is part

1. '"e obli!ations of t"e responsible $tate set out in t"is part ma be owed to anot"er $tate& to

several $tates& or to t"e international communit as a w"ole& dependin! in particular on t"e

c"aracter and content of t"e international obli!ation and on t"e circumstances of t"e breac".

4. '"is part is wit"out pre+udice to an ri!"t& arisin! from t"e international responsibilit of a

$tate& w"ic" ma accrue directl to an person or entit ot"er t"an a $tate.

>3P'E5 II= 5EP353'IN A5 IN*,5_

3rticle :H= Aorms of reparation

Aull reparation for t"e in+ur caused b t"e internationall wron!ful act s"all ta%e t"e form of

restitution& compensation and satisfaction& eit"er sin!l or in combination& in accordance wit" t"e

provisions of t"is c"apter.

3rticle :


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t"e responsible $tate.

3rticle :G= Interest

1. Interest on an principal sum due under t"is c"apter s"all be paable w"en necessar in order to

ensure full reparation. '"e interest rate an

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