INTERNATIONAL LAW STDUIES

Dr. WALID ABDULRAHIM

Professor of Law

Beirut Arab University

Faculty of Law and Political Science

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Contents:

Chapter 1 1 Introductory Topics

I. Public International Law Introductory Note 1II. Definition of Public International Law 2III. Origin and Development of Public International Law 4IV. Aims and functions of Public International Law 8

Chapter 2 10 The Relationship between Public International Law and National Law and National Law  

Section 1:  The Theories Dealing with the Relations between International Law and National Law 10Section 2: The Attitude of International Law to National Law 12  Section 3: The Attitude of National Laws to International Law 12 

Chapter 3 14 Sources of Public International Law. 14

1. Treaties 152. International Customs 163. General Principles of Law 174.  Judicial Decisions 185.  Writings of legal scholars 196.  Ex aequo et bono  (Equity) 207.  Acts of International Organizations 21  

Chapter 4 23 Subjects of International Law 23

1.    States 232.    International Organizations 243.    Non-State Entities 25

(a) Members of composed States or federal States(b)  Insurgents and Belligerents(c)  National liberation movements(d) International territories

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 4.  Special case entities 27 (a) The Sovereign Order of Malta(b)  The Holy See and the Vatican City

5.  Individuals 286.  Minorities 307.  Indigenous Peoples 31

Chapter 5 32 A State as a Subject of International Law 32

Section 1:  Definition and Requirements of Statehood 32(a) A Permanent Population(b) A Defined Territory(c) A Government(d) A Capacity to Enter into Relations with Other States(e) Other Requirements

Section 2:  Fundamental Rights and Duties of a State 36A. Rights of a State(1) The Right of Independence (2) The Right of Sovereignty(3) The Right of Territorial Jurisdiction(4) The Right of Sovereign Equality(5) The Right of Self-Defense  B. Duties of a State    (1) The Duty to Refrain from the Threat or Use of Force(2) The Duty to Settle International Disputes by Peaceful Means (3) The Duty not to intervene in the Affairs of Other States(4) The Duty to Co-Operate with One Another (4) The Duty to Co-Operate with One Another

Chapter 6 40 State Territory and Territorial Sovereignty 40

Section 1:  Territorial Sovereignty 40 

Section 2:  Acquisition and losing of Territory 41 (1)  Occupation(2) Prescription (3)  Accretion(3)  Accretion(5)  Conquest and Annexation(6) Modes of losing territory

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Chapter- 7 46 State Jurisdiction under International Law 46

Section 1:  Types of State Jurisdiction 46(1)  Legislative Jurisdiction (2)  Executive Jurisdiction (3)  Judicial Jurisdiction  

Section 2:  Principles of Jurisdiction 47(1)  The Territorial Principle(2)  The Nationality Principle (3)  The Protective principle(4)  The Universality Principle

Section 3:  Immunity from Jurisdiction 51(1)  Sovereign Immunity (2)  Diplomatic Immunity(3)  Consular Immunity(4)  Immunities of International Organizations

Chapter 8 56International Recognition

Section 1:  Definition and Nature of Recognition 56

Section 2:  Types and Forms of Recognition 58                           (A)  Recognition of a State and of a Government(B)  Recognition of Belligerency(C)   De Jure and De Facto Recognition(D)  Express and Implied Recognition(E)  Conditional Recognition

Section 3:  Legal Effects of Recognition 65             (A)  International effects of recognition(B)  Internal Effects of Recognition

Chapter 9 67 Diplomatic and Consular Law 67

Section 1:  Diplomatic Mission 67A.  Members of a Mission and Classification of Heads of a Mission B.  Appointment of Heads and Diplomatic Members of the Missions Art. 8 VCODRC.  Functions of the Diplomatic Mission Art. 3 VCODRD.  Privileges and Immunities of a Diplomatic Agent Art. 31 VCODR 

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E.  Termination of a Diplomatic Mission or of the Functions of a Diplomatic      Agent

Section 2:  Consular Post 72 A.  Members of the Consular Post and Classification of the Heads of the Post B.  Appointment of a Head of the Consular Post C.  Functions of a Consular Post  D.  Privileges and Immunities of Consular Officers E.  Termination of Consular Functions 

Chapter 10 77 State Responsibility

Section 1:  The Basis and Nature of State Responsibility 77A.  The Question of “Immutability” B.  The Question of “Fault”

  Section 2:  Legal Consequences of State Responsibility 81A.  Cessation of the Wrongful Act    B.  Reparation 

Section 3:  The Implementation of State Responsibility 82  A.  Diplomatic Protection and Nationality of ClaimsB.  The Exhaustion of Local RemediesC.  Unreasonable Delay and Improper Activities of the Injured National D.  Resorting to Countermeasures     Chapter 11 87The Law of Treaties 87

Section 1:  Conclusion of Treaties 88         A. Capacity to Conclude Treaties   B.   Adoption and Authentication of the Text of Treaties C.   The Adoption of Treaties

(1) Consent by signature (2)  Consent by exchange of instruments constituting a treaty(3) Consent by ratification, acceptance or approval (4)  Consent by accession

 D.  Reservation to a Treaty 

Section 2:  Entry into Force, Registration and Depositary of Treaties 93A.  Entry into Force of Treaties B.  Registration and Depositary of Treaties

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Section 3:  Observance and Application of Treaties 94A.  Observance of Treaties B.  Application of Treaties        (1)  Non-Retroactivity of Treaties (2)  Territorial Scope of Treaties          (3)Application of Successive Treaties Related to the Same Subject Matter (4)  Treaties and Third States

Section 4:  Interpretation of Treaties 98A.  General Rules of Treaty InterpretationB.  Supplementary Means of Interpretation       C.  Interpretation of Treaties Authenticated in Two or More Languages        Section 5:  Amendment and Modification of Treaties 100A.  Amendment of Treaties  B.  Modification of Treaties 

Section 6:  Termination and Suspension of the Operation of Treaties 101A.  Termination of a Treaty B.  Suspension of the Operation of a Treaty Section 7:  Invalidity of Treaties 104A.     General Rules on Invalidity of Treaties B.  Grounds for Invalidating Treaties       C.  Consequences of Invalidity of Treaties 

Section 8:  Procedures to be followed with Respect to Invalidity, Termination, Withdrawal from, or Suspension of the Operation of a Treaty 106

Chapter 12 107The Law of the Sea 107

Section 1:  Territorial Sea 109A.  Limits of the Territorial Sea B.  Rights of the Coastal State over the Territorial SeaC.  The Right of Innocent Passage in the Territorial Sea Section 2:  Contiguous Zone 913       Section 3:  Straits Used for International Navigation 114  A.  The Right of Transit Passage in International Straits B.  The Right of Innocent Passage 

Section 4:  The Exclusive Economic Zone 116Section 5:  The Continental Shelf 117 

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Section 6:  The High Seas 119 Section 7:  Land-locked States 119Section 8:  The Area and the Authority 120Section 9:  Enclosed or Semi-Enclosed Seas 121

Chapter 13 122Peaceful Settlement of Disputes

Section 1:  Diplomatic Methods of Dispute Settlement 123 A.  NegotiationB.  EnquiryC.  Mediation, Conciliation and Good Offices 

Section 2:  Adjudicative Methods of Dispute Settlement 127

Section 3:  Institutional Methods of Dispute Settlement 129(1)  Peaceful Settlement of Dispute by the United Nations(2)  Peaceful Settlement of Dispute by Regional Organizations

Chapter 14 132Legal Regulation of the Use of Force 132

Section 1: The Rules Related to the Use of Force Before 1945 133

 Section 2: The Use of Force under the Charter of the United Nations135 A.  The Prohibition of the Use of ForceB.   The Exceptions to the Prohibition of the Use of Force(1)  The Right of Self-Defense (2)  The Use of Force by Authorization of the Security Council (3)  The Use of Force upon a Recommendation of the General Assembly          (4) The Use of Force by Peoples for Self Determination and Independence  

Chapter 15 141International Humanitarian Law 141

Section 1:  The Codification and Development of International Humanitarian Law 142

Section 2:  Sources, Scope and Content of International Humanitarian Law 145          A.  The Sources and Composition of International Humanitarian Law(1)  The Law of The Hague (2)  The Law of Geneva B.  The General Scope of International Humanitarian LawC.  The Persons Protected under International Humanitarian Law   

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1.  The Wounded and the Sick2.  Shipwrecked 3. Medical Personal               4.  Religious Personnel                 5.  Prisoners of War      6.  Civilians and Civilian Population                           7.  Other Protected PersonsD.  Objects Protected under International Humanitarian Law1)  Objects Serving Medical Purposes2.  Civilian ObjectsE. The Fundamental Protections of International Humanitarian Law

Section 3:  Execution of International Humanitarian Law 153 A.  Execution by States    B.  Protecting Powers C.  Red Cross Societies 

Chapter 16 156International Human Rights Law     1. Enforcement2. International Human Rights Law and International Humanitarian Law3. Modern Development of Human Rights4. State obligations and procedure5. Monitoring mechanisms6. Human rights treaty bodies7. Regional monitoring and enforcement mechanisms8. Universal Declaration of Human Rights

Chapter 17 167International Criminal Law 167

Section 1:  International Crimes 168   1.  The Crime of Genocide 2.  Crimes against Humanity    3.  War Crimes4.  Crimes of Aggression

 Section 2:  Prosecution of International Crimes 171 A.  Prosecution by National Courts to Prosecution by Ad Hoc International TribunalsB.  Prosecution by the International Criminal Court (ICC)

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Chapter 18 177 Introductory Topics on International Organizations I.  Genesis of International Organizations 177II. Definition and Classification of International Organizations 179(A)  Classification according to their membership:  Organizations may be(B) Classification according to their geographical location:  Organizations may be(C) Classification according to their functions and tasks:  Organizations may be classified into:(D) Classification according to the nature of their structural organization: Organizations may be:III. International Organizations as Subjects of International Law 181IV. Constituting Instruments of International Organizations 183V.  Applicable Law of International Organizations VI. Privileges and Immunities of International Organizations 184VII. Acts of International Organizations as Sources of International Law 185 VIII. The Role of International Organizations in the Development of International Law 186 

Chapter 19 188The League of Nations

I.  Origin and Founding of the League of Nations 188II. Status and Membership of the League of Nations 189III. Purposes and Principles of the League of Nations 190IV. Organizational Structure of the League of Nations 1921. The Assembly 2. The Council 3. The Secretariat V. Successes and Failures of the League of Nations

Chapter 20 196The United Nations

Section One: Introductory Topics 196I. Genesis (origin) of the United NationsII. Nature of the United NationsIII. Charter of the United NationsIV. Purposes and Principles of the United NationsV. Membership of the United NationsVI. Budget of the United Nations

Section Two: Organizational structure of the United Nations 204I. General Assembly A.  Composition and VotingB.  Functions and Powers       

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C.  Sessions 

II. Security Council A.  Composition and VotingB.  Functions and Powers    C.  Meetings 

III. Economic and Social Council A.  Composition and VotingB.  Functions and PowersC.  Sessions D.  Relations with Non-Governmental Organizations

IV. Trusteeship Council 

V. International Court of Justice A.  Parties to the ICJB.  Functions of the ICJ    C.  Jurisdiction of the ICJ   D.  Rules applied by the ICJ       E.  Decisions of the ICJF.  Composition of the ICJ 

VI. Secretariat A.  International Character of the Members of the Secretariat B.  Duties of the SecretariatC.  The Secretary General

Section Three- The Role of the United Nations in Maintaining International Peace and Security 218I. Pacific Settlement of Disputes II. Collective Enforcement ActionsA. Chapter VII of the Charter B. Uniting for Peace Resolution C. United Nations Forces 

Section Four- Other Activities of the United Nations 231I. UN Activities in Economic and Social DevelopmentII. UN Activities in Humanitarian Assistance III. UN Activities in Human Rights Field 

Chapter 21 236Introduction to Regional Organizations

The African Union (AU) 237

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I.  Origin and Founding of the AUII. Status and Membership of the AUIII. Objectives of the AUIV. Organizational Structure of the AU1.   The Assembly2.  The Executive Council3.  The African Commission4.  The Permanent Representatives' Committee5.  Peace and Security Council (PSC) 6.  Pan-African Parliament7.  Economic, Social and Cultural Council (ECOSOCC) 8.  The Court of JusticeSpecialized Technical CommitteesFinancial InstitutionsV.  Achievements of the AU

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INTERNATIONAL LAW STUDIES Public International Law

Chapter 1Introductory Topics

I. Public International Law Introductory Topics

To understand anybody of law, it is useful to understand its origins and development.  To understand international law – a body of law based largely on custom and “incremental development” – the study of its history is especially crucial.  The History of International Law will trace the development of the “Law of Nations-Jus gentium” from its roots in the ancient world forward to the modern day.  The course will focus on the development of the core concepts of international law, including sovereignty, state responsibility, jurisdiction, territoriality, and will trace the evolution of practice and thought on the fields including the bases of international obligations and the mechanisms of enforcement and international rights.  By gaining a cohesive overview of the field’s historical roots, students will be equipped with a firm grounding and framework for analysis of issues in the diverse areas of international law that they may study or in which they may practice.

The term “international law” was first used by the English philosopher Jeremy Bentham in 1780 in his treatise entitled “Introduction to the Principles of Morals and Legislation”. Since about 1840, this term replaced the older terminology “law of nations” which can be traced back to the Roman concept of “jus-gentium”. International Law is divided into two branches: Private International Law (conflict of laws as it is called in the countries of the Common Law System), and Public International Law (usually just termed International Law). Private International Law deals with those cases, within a particular legal system, in which foreign elements involve, raising questions as to the application of foreign law or the role of foreign courts. Public International Law deals, in general, with the external relations of States. 

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The main branches of Public International Lawa) International Organizations Law, b) International humanitarian Law (Law of Armed Conflict (LOAC),  it is also known as the law of war),  c) International Human Rights Law, d) International Criminal Law, e) International Environmental Law, e) The Law of the Sea.

Summary differentiation between Private International law and Public International Law.

There is a sheer difference between Private International Law and Public International law. Some points of distinction may be given as under:

1. Private International law deals with the individuals of one, two or more countries. 1. Public International law deals mainly with the relationship of states with each other (or subjects of international law).

2. The rules of Private International law are the outcome of state or state laws, 2.The rules of Public International law are the outcome of International customs, treaties and other sources.

3. It differs from state to state; 3. Public International law is same for all the states of the world.

4. It has been enacted by the legislature of the state or states. 4. It comes into force of treaties, customs, international agreements or decisions of arbitral tribunals.

5. It is more civil in nature. 5. It is both civil and criminal in nature.

6. It is enforceable by the concerned state executive. 6. It is enforceable by the adverse view of nation of the word and fear of war or breakage of diplomatic relations etc. It is this latter branch of International Law is the subject of this present book.What is Public International Law? How is it originated and developed? What is the aim it is trying to achieve?The answers to all these raised questions are dealt with in the following sections.

II. Definition of Public International LawUntil the Second World War, legal scholars found no difficulty in defining “Public International Law”, in one formation or another, as the law that governs the relations between States. This traditional definition is a reflection of the prevailing

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doctrine of the nineteenth century and the first half of the twentieth century considering that only states could be persons (subjects) of Public International Law, in the sense of enjoying international legal personality, i.e., being capable of possessing international rights and duties.

However, since the mid-twentieth century, the traditional definition has become controversial due to both the expansion of the scope of the Public International Law into new areas and the emergence of new actors, beside states, on the international scene, such as international organizations, multinational corporations, individuals and groups, including minorities and indigenous peoples. Some of these actors have acquired international legal personality, or, at least, certain rights under International Law.

In the light of this development, the traditional definition has become incomprehensive description of this law, and the change of the definition of the Public International Law has become inevitable. Public International Law has been defined as a body of legal rules which regulates or governs relations between international persons (subjects). This contemporary definition of Public International Law goes beyond the traditional one which defines this law as a body of rules governing relations between states.

Thus, the contemporary Public International Law consists of the following legal rules:(a) Legal rules of conduct which states feel themselves bound to observe in their relations with each others;(b) Legal rules related to the functioning of international organizations, their relations with each other and their relations with States and individuals; and(c) Legal rules related to individuals and non-state entities as far as the rights and duties of these subjects are the concern of the international community.

Public International Law now covers vast and complex areas of international concern, including traditional topics, such as the State, peace and security, the laws of war, the laws of treaties, the law of the sea, the law of diplomatic and consular relations, as well as new topics, such as international organizations, economy and

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development, air law and outer space activities, communications, the environment, and last but not least, human rights.The rules of Public International Law are general and universal in their nature, and are legally binding on all the persons of International Law. These rules must be distinguished from what is called international comity and what is known as international morality. A comity is a friendly gesture or courtesy exercised by one State toward another without constituting a legal obligation; an example of a comity is the flag salute at the sea. A comity helps in promoting and maintaining friendly relations among States. While not a legal rule, a comity can be widely observed and can evolve into a customary international rule or be codified as a law; an example of an international comity which was codified as a law is the exemption from customs duties of personal articles used by diplomats (codified in the Vienna Convention on Diplomatic Relations of 1961).\

Rules of International Law may meet at certain points with principles of international morality since they cannot be divorced from their moral values. However, the former rules are legal in their contents and forms, while the principles of morality are part of the discipline of ethics which is not legally binding.

III. Origin and Development of Public International LawThe foundations of Public International Law as it is understood today lie firmly in the development of political relations between the Western European States some 400 years ago. However, certain basic concepts of this Law can be traced back thousands of years ago, in relations between ancient political entities, such as of the Near East, Greece and Persia.

The structure and development of Public International Law is connected with the era of sovereign national States dealing with each other as independent entities. In this sense, therefore, the history of this Law can be regarded as beginning in the 16th Century with the emergence of independent nation-states from the ruins of the medieval Holy Roman Empire which was based on the claims to universal authority of the Pope as the spiritual, and the Emperor as the temporal, head of

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Christian nations of Europe. As this Empire disintegrated, a growing number of independent and equal States filled the gap.

The Emergence of independent and equal States subject to no temporal superior authority led to new political theories. The most prominent among these theories was the theory of Sovereignty. This theory was explicitly formulated by Jean Bodin (1530-1596) in his treatise entitled Six Livres de Republique (Six Books on the Republic) of 1576. According to Bodin, in every State there exists in an individual monarch a power called sovereignty (majestas). Sovereignty is a Republic absolute and perpetual power. It is absolute because it is indivisible; however, it is not without any limits. While such a sovereign is not bound by the laws himself instituted, he remains bound by the divine law, the law of nature, and the law of nations. Sovereignty is perpetual because it does not disappear with its holder (the sovereign). The concept of sovereign as supreme legislator, as formulated by Bodin, was in the course of time evolved into the principle which gave the State supreme power vis-à-vis other States.

The coexistence of independent sovereign States led to the development of the system of interstate relations. The need for rules regulating the intercourse between the newly emerging States in Europe stimulated these States to draw mainly upon the Roman Law and the Cannon Law (the Law of Roman-Catholic Church) for the sources of such rules. The significance of the Roman Law and the Cannon Law contribution to “the law of nations” lies not only in the development of a modern system of interstate legal relations, but also in the development of many principles of general equity and “natural law” some of which are similar to certain general principles of law recognized by civilized nations.

In the few centuries that preceded the Thirty Years War (1618-1648), the intensification of international trade, and the improvements in navigation and military techniques, and the discovery of many distant lands by the European States stimulated further development of international practices and the emergence of new conceptions of the law of nations. The intensification of trade led to the conclusion of many commercial treaties and the emergence of new practices and principles related to the law of merchant and the maritime law. Notably, the growth

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of international trade had from the 8th Century onwards led to the development of international law of merchant and, in particular, to various compilations of maritime law which gained increasing international recognition. The international customs and principles related to the law of merchant and maritime constituted part of the practices and principles of “the law of nations.”The discovery and subjugation of distant lands and peoples by European States produced numerous conflicting claims of sovereignty, jurisdiction, rights of trade and rights of navigation as well as problems of relations. All these developments urged the Europeans to resort to the Roman Law for helpful norms or analogies, and consequently led to new practices and principles.

By the 17th Century, the growing complexity of international principles, customs and treaties had given rise to their compilation and to the development of further rules governing the conduct of States in time of war and peace. The most important treatise, dealing with States’ relations in time of war and peace, of this period was “De Jure Belli Ac Pacis” (On the Law of War and Peace), published in 1625 by the Dutch jurist and diplomat Hugo Grotius (1583-1645). Hugo Grotius is recognized as the “Father of International Law”, and his treatise is generally regarded as providing the foundation of the Public International Law.

Beside Grotius, there are many jurists who contributed extensively to “the law of nations” during the 17th and the 18th centuries. Among these Spanish jurists are Francisco de Vitoria (1480-1546), Suarez (1548-1617), Italian jurist Alberico Gentili (1552-1608), the German jurist Samuel von Pufendorf (1632-1694), English Judge Richard Zouche (1590-1660), the German jurist, publicist and researcher Johann Jakob Moser (1701-1785), the German philosopher Christian Wolff (1676-1754), and the Swiss jurist Emerich de Vattel (1714-1769).

The International Law (the law of nations) further expanded in the 19th Century. This expansion was due to major events such as the expansion of the European empires, the rise of powerful States both within and outside Europe, the spread of the thought of democracy and nationalism, the Industrial Revolution, the modernization of world transport, and the influence of new inventions. All these

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events urged the international community to develop the International Law in order to accommodate such events. Consequently, International Law as a law regulating diplomatic and commercial relations between States, and the conduct of war, multiplied and intensified during the 19th Century.

The establishment of the League of Nations in 1919, following the First World War, and the establishment of the United Nations in 1945, following the Second World War, represented two significant turning points in the development of the International Law. The development was characterized by a new departure in the evolution of this Law. International Law began its evolution from being primarily a system of regulating relations between States towards becoming also a system of international cooperation.

The League of Nations was the first international organization established primarily for the purpose of maintaining international peace and security. The establishment of the International Labor Organization (ILO), affiliated with the League of Nations, in 1919 signaled the end of an era in which International Law was, with few exceptions, confined to the regulation of relations between States. The ILO was the first permanent international organization concerned with the improvement of labor conditions and social welfare at the international level. In 1921, the Permanent Court of International Justice (PCIJ) was established as the first permanent international judicial organ with an international judicial jurisdiction.

The establishment of the United Nations in 1945 led to a progressive development of International Law. During the post-United Nations’ era, the development of International Law has been influenced by two major events effected the international community. The first major event has been the expansion in the membership of the international community. New States, mostly representing non-western civilization, have joined the club of family of nations, which was previously exclusively limited to States belonging to Western Civilization. The concerns and priorities of these States have been different from those of other States; they have been occupied with the development of their political, economic and social systems. The second major event has been the massive expansion of

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international organizations for cooperation. Numerous specialized agencies of the United Nations and other international organizations, universal as well as regional, have been established. This event has confirmed the evolution International Law from its traditional nature to its contemporary nature of being a system of organized collective efforts for cooperation.

Since the establishment of the United Nations, a great number of international treaties covering all aspects of international affairs have been concluded. Law-making treaties have been contributing extensively to the rapid development of Public International Law. They have led to may important new developments in Public International Law, and greatly increased both its scope. Apart of the law-making treaties, international courts, the present International Court of Justice (ICJ), its forerunner the Permanent Court of International Justice (PCIJ), and others, have been also contributing to the development of Public International Law. Moreover, the International Law Commission created in 1947, the organs of the United Nation and its specialized agencies have been playing a significant role in developing and expanding Public International Law.

In conclusion, Public International Law has evolved from being primarily a law of coexistence, which characterized it from its birth in the early 16 th century to the mid 20th century, to a law of international organization and cooperation. Moreover, the most important characteristic of Contemporary Public International Law is the steady expansion of its scope through the inclusion of new subject matters formerly outside its sphere, and the inclusion of new participants and subjects such as international organizations and individuals.

IV. Aims of Public International LawThe initial aim of Public International Law has been to create an orderly system of international relations. However, the modern developments of this law have added another aim to it. Since the beginning of the Twentieth Century, there has been an evidence of a tendency to bring justice into the international community through ensuring justice in the relations of States and securing justice for peoples and individuals.

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The establishments of the Permanent Court of International Justice in 1921 and the International Court of Justice in 1945 have been a clear evidence of such a new aim of the Public International Law. The use of the term “justice” in the name of these international courts where disputes among States are decided and where advisory opinions are given according to Public International Law is evidence that justice has become the concern of this law, and has become one of its aims and purposes.To ensure and secure justice, and above all, to bring order to the international relations are the primary aims of the contemporary Public International Law. This law, which regulates relations between international persons, aims to create a system of order and justice for the international community. In the absence of such a system, it will be impossible for the international persons to have steady and continuous relations, and to enjoy the benefits of such relations.

Functions of International law: - Important functions which international law performs in the world justice and politics may be given as under: 1. Maintenance of peace and security, 2. Development of friendly relationship among states and other International actors, 3. Achievement of International co-corporation to solve problems. 4. To solve economic, cultural and humanitarian problems 5. To guarantee political and sovereign integrity of states beside the above functions there are a number of other functions which international law performs.

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Chapter 2 The Relationship between Public International Law and National Lawand National Law 

      Public International Law and national law (municipal law as known in the Common Law Countries) are two legal systems.   National law governs the domestic (internal) relations between the official authorities of a State and between these authorities and individuals as well as the relations between individuals themselves.  Public International Law governs primarily the relations between States.     With the rise and extension of Public International Law, a question begins to arise as to the relationship between the national law of the States and the Public International Law.  This question gives rise to many practical problems.  What is the status of the rules of Public International Law before a national court?  What is the status of the rules of national law before an international court?  Which rule does prevail in a case of conflict between the two laws?  How do rules of Public International Law take effect in the internal law of a State?   The answers to the above questions are presented in the following sections: secti on one deals with the theories dealing with the relations between International Law and national law; section two deals with the attitude of International Law to national law; and section three deals with the attitude of various national laws to International Law. Section 1:  The Theories Dealing with the Relations Between International Law and National Law      There are two major theories on the relationship between Public International Law and national law.  The first is the dualist theory. The second is the monist theory.      The dualist theory considers that International law and national law are two separate legal systems which exist independently of each other.  Each of these two systems regulates different subject matters, function on different levels, and each is dominant in its sphere. Public International Law primarily regulates the conduct of sovereign States.  National law regulates the conduct of persons within a sovereign State.  On this view, neither legal system has the power to create or alter rules of the other.  When national law provides that International Law be applied in whole or in part within the jurisdiction, this is merely an exercise of the authority of national law in the adoption or transformation of the rules of International Law into its legal system.  The national law has a supremacy over the International Law; in

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the case of a conflict between International Law and national law, a national court would apply national law.     

 The monist theory, which upholds the unity of all law, regards International Law and national law as forming part of the same legal system (order).  It argues that both laws are based upon the same premise, that of regulating the conduct and the welfare of individuals. However, it asserts the supremacy of International Law over national law even within the national sphere; in the case of a conflict between the two laws, International Law is supreme.

 It is notable that the position taken by each of these two theories is a reflection of its ideological background.  The dualist theory adheres to positivism, while the monist theory follows natural law thinking and liberal ideas of a world society.      Facing these two basic theories, a third approach is introduced.  This approach is somewhat a modification of the dualist theory.  It attempts to establish a recognized theoretical view tied to reality.  While it asserts that the two laws are of two distinct legal systems, it denies that a common field of operation exists as between International Law and national law by which one system is superior or inferior to the other.  Each law is supreme in its own sphere (field).  Just as one cannot talk in terms of the supremacy of one national law over another, but only of two distinct legal systems each operating within its own field, so International Law and national law should be treated in the same way.  Each law exists within a different juridical order.

     Because the above opposing theories, in reality, do not adequately reflect actual State practice, the scholars in each side have forced to modify their original positions in many respects, bringing them closer to each other, without, however, producing a conclusive answer on the true relationship between International Law and national law.  This fact has led some legal scholars to pay less attention to these theoretical views and to prefer a more empirical approach seeking practical solutions in a given case.   The method of solving a problem does not probe deeply into theoretical considerations, but aims at being practical and in accord with the majority of States practice and international judicial decisions.  On this view, it is more useful for us to leave the theoretical controversy aside and direct our attention to the attitude of International Law to national law and the attitude of the various national laws to International Law; these are what are discussed in the following two sections.

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 Section 2: The Attitude of International Law to National Law       International Law, in the international sphere, has a supremacy over national law.  However, this principle does not mean that national law is irrelevant or unnecessary.  International Law does not ignore national law.  National law has been used as evidence of international custom or general principles of law, which are both sources of International Law.  Moreover, International Law leaves certain questions to be decided by national law.  Examples of these questions are those related to the spheres of competence claimed by States as regards State territory, territorial sea, jurisdiction, and nationality of individuals and legal persons, or those related to obligations to protect human rights and the treatment of civilians during belligerent occupation.  Thus, the international court may have to examine national law related to these questions in order to decide whether particular acts are in breach of obligations under International Law, particularly, treaties or customary law.      A great number of treaties contain provisions referring directly to internal law or employing concepts which by implication are to be understood in the context of a particular national law.  Many treaties refer to “nationals” of the contracting parties, and the presumption is that the term means persons having that status under the internal law of one of the parties.      The international courts, including the International Court of Justice and its predecessor (PCIJ), have regarded national law as a fact that the parties may provide by means of evidence and not to be taken by the court ex officio.  Moreover in examining national law the courts have in principle regarded as binding the interpretation by national courts of their own laws.

 Section 3:The Attitude of National Laws to International Law           The attitude of national law to International Law is not that easy to summarize as the attitude of International Law to national law. This is because the laws of different States vary greatly in this respect.  However,  States are, of course, under a general obligation to act in conformity with the rules of International Law; otherwise, they will be responsible for the violations of such rules, whether committed by their legislative, executive or judicial authority.  Further, States are obliged to bring national law into conformity with their obligations under International Law; for example, treaties may require a national legislation to be

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promulgated by the States parties.  Nevertheless, International Law leaves to States the method of achieving this result.  States are free to decide how to include their international obligations into their national law and to determine which legal status these have internally.  In practice, on this issue there is no uniformity in the different national legal systems.  However, the prevailing position appears to be dualist, regarding International Law and national law as different systems requiring the incorporation (adoption, transformation and reception are other concepts used) of the international rules on the national level.     Actually, the most important issues of the attitude of national legal systems to International Law concern the status of international customary law and international treaties. On these issues, the attitude of various national legal systems varies.

     The survey of the attitudes adopted by various countries of the Common Law and Civil Law traditions leads to the following conclusions.  The first of these is that most countries accept the operation of customary rules within their own jurisdictions, providing there is no conflict with existing laws, i.e., if there is a conflict, national law is supreme; some countries allow International Law to prevail over national law at all time.  The second conclusion is that as regards treaties, in some countries, certain treaties operate internally by themselves (self-executing) while others require undergoing a process of internal legislation.  Some countries allow treaties to supersede all national laws (ordinary laws and the constitution), whether made earlier or later than the treaty, while others allow treaties to supersede only ordinary laws and only that made earlier than the treaty.  Others adopt opposite positions. 

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Chapter 3 Sources of Public International Law

        The term “sources” refer to methods or procedure by which international law is created. A distinction is made between the formal sources and material sources of law. The formal, legal and direct sources consist of the acts or thing which gives that the content its binding character as law. The material sources provide evidence of the existence. However, because it is difficult to maintain this distinction, the two meanings are used interchangeably.

     Article 38/1 of the Statute of the International Court of Justice (ICJ) states the following: 1. The Court, whose function is to decide in accordance with international law such disputes as are submitted to it, shall apply:a-  international conventions, whether general or particular, establishing rules expressly recognized by the contesting states;b-   international custom, as evidence of a general practice accepted as law;c-   the general principles of law recognized by civilized nations;d-   subject to the provisions of Article 59, judicial decisions and teaching of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law.     2.  This provision shall not prejudice the power of the Court to decide a case ex aequo et bono ((equity), if the parties agree thereto.

      This Article lists the traditional sources of Public International Law, the actual legal materials that the ICJ has to apply to international disputes.  According to this Article, these sources are of two types:  the primary sources that are represented by the international conventions, international custom and general principles of law; and the subsidiary sources that are represented by the decisions of courts and the opinions of legal scholars. Moreover, this Article lists “ex aequo et bono” (equity) as an alternative source of Public International Law applied by the Court if the parties agree thereto.  However, in addition to these traditional sources, there are contemporary sources, such as the acts of the international organizations.

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Thus, the sources of the contemporary Public International Law can be classified into seven:1-     International Treaties;2-     International customs;3-     General principles of law;4-     Judicial decisions;5-     Opinions of legal scholars;6-     Ex aequo et bono  (Equity);7-     Acts of international organizations.    In the following sections, these sources are discussed. 1. Treaties      The term “treaty” is used as a generic term embracing all kinds of international agreements which are known by a variety of different names such as, conventions, pacts, general acts, charters, statutes, declarations, covenants, protocol, as well as, the name agreements itself.  A treaty may be defined as an international agreement concluded between States in written form and governed by International Law.

     Article 38 of the Statute of ICJ indicates that international conventions (treaties), whether general or particular, establishing rules expressly recognized by the contesting states should be applied by the Court to the disputes submitted to it.  Although this Article divided treaties into two kinds, general treaties and particular treaties; it is only the first kind, the general treaties or the so-called the law-making treaties, which intended to have a universal and general application, constitute a primary source of International Law.     The particular treaties or the so called treaty-contracts are not directly a source of International Law since their application is limited only to the contracting parties which are two or small number of States, and they deal with limited affairs .    This kind of treaties does not create new rules of Public International Law, but at best, only new rules of particular or regional application. However, as a substantial number of States accept and recognize such new rules formulated in this kind of treaties as obligatory, these rules will become part of the Public International Law.  Examples of such treaties are bilateral treaties

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on commercial, and friendship relations.

     The law-making treaties constitute a primary source of International Law. Since the middle of the Nineteenth Century, there has been an astonishing development of law-making treaties.  The rapid expansion of this kind of treaties has been due to the inadequacy of customs in meeting the urgent demands arose from the changes which have been transforming the whole structure of international life. Law-making treaties have been concluded to regulate almost every aspect concerning the international community. Examples of important treaties are:  the Charter of the United Nations, the four Geneva Conventions of 1949, and the Vienna Convention on Diplomatic Relations of 1961, the International Covenant on Civil and Political Rights of 1966 and the Convention on the Law of the Sea of 1982.

  In contrast with the process of creating law through custom, treaties are a more modern, more deliberate and speedy method.  They are of growing importance in International Law.  Their role in the formation of new rules of International Law increases day after day.  Today, the law-making treaties are considered the most important primary source of Public International Law.

2. International Customs

                 Article 38 of the Statute of the ICJ refers to an international custom as evidence of a general practice accepted as law.  This definition comprises of two elements: a general practice and its acceptance as law. These two elements are necessary for the formation of customary international law.  The first element, the behavioral or objective element, requires a recurring consistent action or lack of action by States, which is indicated by such activities as official statements or conducts, legislative or administrative action, court decisions and diplomatic behaviors or correspondence.  The second element (the psychological or subjective element) entails the conviction that in similar case such a practice is required or permitted by international law.  In this sense, international customs may be defined as practices or usages which have been observed by a large number of States over a lengthy period of time and considered by them to be legally obligatory, i.e., being a law. 

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     Notably, the terms “custom” and “usage” are often used interchangeably.  Strictly speaking, there is a clear technical distinction between the two.  Usage is an international habit of action that has not received full attestation and does not reflect a legal obligation; an example of a usage is the salute at sea.  Usages may be conflicting; custom must be unified and consistent.  A usage to become a customary rule of law, it must fulfill two conditions: acceptance or recognition by a large number of States and repetition over a lengthy period of time.  A custom has a definite obligation attached to it.  Failure to follow custom results in State responsibility, and consequently entails the possibility of punishment (sanction) or of retaliation against that State.

     International custom, as Article 38 indicates, is one of the primary sources of International Law which the ICJ shall apply.  In fact, international customs constituted the bulk of the rules of International Law.  Historically, custom had played a great role in the formation of the rules of International Law.  However, since the beginning of the Twentieth Century, this role has been decreased in favor of the law-making treaties.

 3.  General Principles of Law      Article 38 of the Statute of the ICJ refers to “the general principles of law recognized by civilized nations” (all nations are now considered as civilized) as a primary source of International Law.  This source is listed the third after international conventions and international customs.  The Court shall apply the general principles of law in cases where treaties and customs provide no rules to be applied.

     Notably, there is no agreement on what the term “general principles of law” means.  Some say it means general principles of international law; others say it means general principles of national law.  Actually, there is no reason why it should not mean both; the greater expansion in the meaning of this term, the greater chance of finding rules to fill the gaps in treaty law and customary law. Indeed, international tribunals had applied general principles of law in both senses for many years before the Permanent Court of International Justice was established in 1920.

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    Nevertheless, there are various opinions as to the origin of the general principles of law.  Some regard them as being originated from the Natural Law which underlies the system of International Law and constitutes the criteria for testing the validity of the positive rules. Others regard them as stemmed from the national legal systems (Positive Law) and have been transplanted to the international level by recognition.   Whatever the meaning of the term “general principles of law” and the origin of these principles, these principles are considered to be at the foundation of any legal system, including International Law.   Actually, there is an agreement that the general principles of law do constitute a separate source of International Law.  Examples of general principles of law are the principles of consent, equality, administration of justice, good faith, reciprocity, forbidding abuse of right and res judicata.                4.  Judicial Decisions      Article 38 of the Statute of the ICJ directs the Court to apply judicial decisions as subsidiary means for the determination of rules of law.  This direction is made subject to the provisions of Article 59, which states that “the decision of the Court has no binding force except between the parties and in respect of that particular case.”  The provision of Article 59 of the Statute of the ICJ is understood to mean that the Court is not obliged to follow previous decisions.  So while, as Article 59 ascertained, the doctrine of precedent as it is known in the Common Law, whereby the decisions of certain courts must be followed by other courts, does not exist in International Law, it is still that the decisions of the international courts (PCIJ and ICJ) are quoted as authoritative decisions, and international courts have always strived to follow their previous decisions to insert certainty and uniformity within their judicial process, or at least, they have had to take previous decisions into account.      The judge of the ICJ sometimes does a little more than merely determine a law; he may establish a law.  This has occurred in many instances: the Anglo-Norwegian Fisheries case of 1951, which stated the criteria for the recognition of baseline from which to measure the territorial sea; and the Reparations case of 1949, which established the legal personality of international organizations.         The PCIJ, during its existence, gave a large number of decisions and advisory opinions on matters of international concern, thereby developing International Law.  The ICJ, the

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successor of the PCIJ, has been doing the same.      As the term “judicial decisions” referred to by Article 38 also encompasses decisions (awards) of international arbitral courts (tribunals) and the decisions of national courts, these decisions have been playing a role in the development of International Law.

     There have been many international arbitral tribunals, such as the Permanent Court of Arbitration and the various mixed-claimed tribunals, including the British-American Mixed Claims Tribunal and the Iran-US claims Tribunal.  Although these tribunals differ from the international courts in some ways, many of their decisions have been extremely significant in the development of International Law.

     The decisions of national courts of various nations have played a role the development of International Law, particularly the international customary law.  These Decisions help to form international customs.  They show what the national courts have accepted as international law and how the International Law, in the given case, is understood in that country.  Examples of such rules of law developed by, or derived from the uniform decisions of national courts are certain rules of extradition law, the rules related to State recognition, and the rules of diplomatic immunity.

     One may finally say that judicial decisions, whether international or national, have played an important part in the development of International Law.  The international customary law has largely developed from case to case, and a large number of cases have been submitted to international as well as national courts of various nations.    5.  Writings of legal scholars      Article 38 of the Statute of the ICJ includes as a subsidiary means for the determination of rules of law, “the teachings of the most qualified publicists of the various nations”. The term “teachings of publicists” means “writings”, “opinions” or “works” of legal scholars, jurists or writers.     This Article emphasizes the evidentiary value of writings of the legal scholars.  The primary function of these writings is to provide reliable evidence of the law.  Writers on International Law cannot make the law; their works are to elucidate and ascertain the principles and rules of International Law.   To be binding, the rules and principles must

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have received the consent, whether express or implied of States, who are to be bound by it.

     Historically, the writers on International Law such as Gentili, Grotius, Pufendorf and Vattel were a primary factor in the evolution of the modern International Law; they were the supreme legal authorities of the Sixteenth to Eighteenth Centuries. They determined the scope, form and content of International Law.   However, the importance of legal writings began to decline as a result of the emphasis on the state sovereignty; treaties and customs assumed the dominant position in the exposition and development of International Law.

     Nevertheless, like judicial decisions, the opinions of legal scholars can provide evidence of the existence of customary law and can help in developing new rules of law.           The opinions of legal scholars are used widely.  Arbitral tribunals and national courts make extensive use of the writings of jurists. However, the International Court of Justice makes little use of jurisprudence, and judgments contain few references; this is, primarily, because of the willingness of the Court to avoid a somewhat undesirable selection of citations.  However, many references to writers are found in the pleadings before the Court.  6.  Ex aequo et bono  (Equity)      Article 38 of the Statute of the ICJ lists ex aequo et bono as an alternative basis for a decision by the Court in place of the normally employed legal rules.  The Court can decide a case submitted to it ex aequo et bono (in justice and fairness) only if the parties agree thereto.   Ex aequo et bono is somewhat analogous to but not exactly the same as the Common Law concept of equity.  It is broader than equity and gives the Court greater power than the latter.  It allows the Court to decide a case on considerations other than legal rules, or even in contrary to these rules, if it sensed that justice can be served thereby.  Thus the term  “ex aequo et bono” means “justice and fairness” or “equity”.

     Neither the International Court of Justice nor its predecessor, the Permanent Court of International Justice, has been called upon to decide a case  ex aequo et bono, although principles of equity have been applied by these courts in some cases.  The ICJ in the North Sea Continental cases (1969) directed the delimination between the parties (West Germany, Holland and Denmark) “in accordance with equitable principles”.  The PCIJ in

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the Diversion of Water from the Meuse River case (1937) applied  principles of equity after considering them as part of the International Law which it should apply.  Moreover, international arbitral tribunals have resorted to the principles of equity in several cases.      Despite the application of the principle of equity by international courts, the existence of  “equity” as a separate and distinct source of law is highly controversial.  Some regard equity as a source of International Law, and   apply it as distinguished from law; however, they often appeal to natural law in order to strengthen their arguments. Thus to them the three terms “equity”, “justice” and “natural law” tend to merge into one another.  During the Sixteenth and Seventeenth Centuries natural law was a major source of International Law.  In the Nineteenth and Twentieth Centuries arbitrators have often been authorized to apply justice and equity as well as International Law; such authorization were more common before 1920 than they are today.     Other scholars do not recognize equity as a separate and distinct source of law; they regard the principles of equity as part of the general principles of law that are common to all national legal systems.      Whatever the position may be, it is doubtful whether equity form a source of international law.  It cannot be assumed that a judge uses equity as a source of law every time he describes a rule as equitable or just.  Strictly, “equity” cannot be a source of law; yet it may play an important role in supplementing the law or may appear as a part of judicial reasoning.  A judge or arbitrator can always use equity to interpret or fill gaps in the law, even when he has not been expressly authorized to do so.  But he may not give a decision ex aequo etbono unless he has been expressly authorized to do so.

     7.  Acts of International Organizations         The growth of international organizations since the First World War has been accompanied by suggestions that the acts of these organizations should be recognized as a source of International Law.[24] The question involved hereto is whether the decisions of the organs of these organizations can be regarded as a separate source of International Law.     Decisions of the organs of international organizations may be binding or non-binding.  An organ may be authorized to take decisions which are binding on member states; only these binding decisions are regarded as a source of the International Law.  The only clear example of binding decisions is the resolutions which the Security Council of the

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United Nations are authorized to take under Chapter Seven (VII) of the Charter of the United Nations dealing with actions related to threats to the peace, breaches of the peace, and acts of aggression.      However, there is a controversy concerns the non-binding decisions of the organs of the international organizations. Since almost all the organs of the international organizations are composed of representatives of member states and their acts are merely the acts of the states represented in these organs, they would probably constitute an evidence of customary law because they reflect the views of the state voting for them.  The obvious examples of such type of acts are the resolutions and declarations of the General Assembly of the United Nations.  When the vast majority of States, in the General Assembly, consistently vote for resolutions and declarations on a certain topic, a State practice will be established and a binding rule of customary International Law will emerge. 

Thus, these resolutions and declarations will constitute an evidence of the existence of customary International Law.  Examples of such resolutions and declarations regarded as examples of State Practice which have led to binding rules of customary International Law are: “the Resolution on Prohibition of the Use of Nuclear Weapons for War Purposes”, “the Declaration on Granting of Independence to Colonial Countries and Peoples”, “the Declaration on Permanent Sovereignty over Natural Resources” and “the Declaration of Legal Principles Governing Activities of States in the Exploration and Use of Outer Space”.            Resolutions and declarations of the General Assembly may also provide a basis for the progressive development of the International Law and the speedy adaptation of customary law to the conditions of modern life.  Moreover, in some instances, a resolution or declaration may have direct legal effects as an authoritative interpretation and application of the principles stated in the Charter of the United Nations.

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Chapter 4 Subjects of International Law

     A subject of International Law is a person (entity) who possesses international legal personality, i.e., capable of a subject of International Law is a person (entity) who possesses international legal personality, i.e., capable of possessing international rights and obligations and having the capacity to take certain types of action on the international level.  Traditionally, States have been the only subjects or persons of International Law.  However, with the establishment of international organizations, it has become necessary that a sort of international legal personality be granted to these entities.  

Thus, international organizations become subjects or persons of International Law.  Beside States and international organizations, non-States entities such as members of federal States, belligerents, insurgents, national liberation movements, and international territories are granted a sort of international legal personality.  Special international status was granted to the Holly See and the Vatican City, and the Sovereign Order of Malta. Moreover, individuals, ethnic minorities, and indigenous peoples are considered, in certain circumstances, subjects of International Law. These persons and subjects of International Law are discussed in the following.  1.    States          States are the original and major subjects of International Law.  Their legal personalities derive from the very nature and structure of the international system. All States, by virtue of the principle of sovereign equality, enjoy the same degree of international legal personality.     International Law is primarily concerned with the rights, duties and interests of States.  Normally the rules of conducts that International Law prescribes are rules which States are to observe.     Since a State is the primary concern of International Law, it is necessary to study it in a separate chapter.  Thus, the next chapter of this book is devoted to the study of a State as a subject of International Law.

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  2.    International Organizations 

      An international organization is an association of States, established by a treaty between two or more States.   Its functions transcend national boundaries.  It is for certain purposes a subject of International Law.     The appearance of international organizations from the early part of the Nineteenth Century raises a critical question of their status in the International Law.[6]  International organizations are generally considered to be subjects of International Law, as are States, even though their international legal personality is limited to possessing specific rights and duties.  Their status is determined be conventions among States and, therefore, the recognition of the international personality of an international organization is limited to signatory States of the convention creating such an organization.

     International organizations include universal all purposes organizations, universal functional organizations, and regional organizations.  Generally, the treaty creating a public international organization indicates its nature, purposes and powers.  The international legal personality of an international organization is, therefore, limited to the rights, duties, purposes and powers laid down in the treaty creating it.  The international legal personality of the United Nations, for example, is derived from the United Nations Charter, the Headquarters Agreement between the United Nations and the United States of America of 1947, and the 1946 Convention on the Principles and Immunities of the United Nations.  The attribution of an international legal personality involves the capacity to perform legal acts, to have rights and duties and to enter into relations on the international level.  Actually, the legal capacity of the United Nations was a question brought before the International Court of Justice.  In its advisory opinion in the Reparation for Injuries Case of 1949, the Court held that the United Nations was an international person, although not a State, and therefore not having the same rights and duties as a State.  The United Nations had an international personality; its functions and powers were so important that the Organization could not carry them out unless it had some degree of international

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personality. The United Nations can perform legal acts such as entering into agreements with member States and with other international organizations, concluding contracts and bringing claims before a court.  Such capacity to perform legal acts is a prerequisite of international legal personality.

     In reality, international organizations have exercised their legal capacity in a great variety of ways.  They have concluded treaties, created military forces, convened international conferences, and brought claims against States.

3.    Non-State Entities      There are certain entities, although they are not regarded as independent States, they are granted a degree of personality, a definite and limited special type of personality, under International Law.  Such entities have certain rights and duties under International Law.  They can participate in international conferences and enter into treaty relations.     However, the rights and duties of these entities in International Law are not the same as those of the States.  They have a sort of international personality.  The capacity of each of them is more limited than an independent State has since it is limited to the purpose it is existed for and the powers or functions it can an perform.  These entities fall into the following categories:

 (a) Members of composed States or federal States:[9]  The federal State has itself, of course, an international legal personality, but the controversial question is whether the component units of the he federation have the personality on the international plane.  Actually, the international personality of such ch units and its extent can only be determined in the light of the constitution of the State and State ate practice. The constitution of a federation may grant a component unit a special international personality; however such personality will not be operative on the international plane without being recognized as such by other States.  State practice has granted international personality to certain component units of the federation.  For instance, the Soviet Republics of Byelorussia and the Ukraine were admitted as members of the United Nations in 1945 and to that extent possessed international personality.  Moreover, these two Republics were members of a number of international organizations and parties to a number of treaties.  

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(b)  Insurgents and Belligerents: Insurgents are individuals who participate in an insurrection (rebellion) against their government.  Belligerents are a body of insurgents who by reason of their temporary organized government are regarded as lawful combatants conducting lawful hostilities, provided they observe the laws of war.[12]  For a long time, International Law has recognized that insurgents and belligerents may in certain circumstances, primarily dependent upon the de facto administration of specific territory, be international subjects having certain rights and duties under International Law, and may in due course be recognized as de facto governments. They can enter into valid arrangements on the international plane with States, international organizations, and other belligerents and insurgents.  They are bound by the rules of International Law with respect to the conduct of hostilities.

(c)  National liberation movements: In the course of anti-colonial actions sponsored by the United Nations and regional organizations, these organizations and the member States have conferred international legal status upon certain national liberation movements. In 1974, the General Assembly recognized the international legal status to the Angolan, Mozambican, Palestinian, and Rhodesian movements (which had been recognized as such by the Organization of African Unity (OAU) or the Arab League), and accorded them observer status in its meetings, in meetings of various organs of the United Nations, in meetings of the United Nations specialized agencies, and in conferences convened under the auspices of the United Nations.  The Security Council of the United Nations permitted the Palestine Liberation Organization (PLO) to participate in its debates with the same rights of participation as conferred upon a member State not a member of the Security Council.

     International practice has accorded the political entities recognized as national liberation movements a number of legal rights and duties.  The most significant of these rights and duties are the capacity to conclude binding international agreements with other international legal persons, the capacity to participate in the proceedings of the United Nations, and the rights and obligations of International Humanitarian Law.     (d) International territories:   The term “International territory” refers to territories placed under a variety of international legal regimes including those administered by the United Nations under the trusteeship system or special arrangements.  The Charter of the United Nations established the trusteeship system, replacing the mandate system established by the League of Nations, to enable the United Nations itself or a State to administer certain territories pending independence.  The United Nations is also able to administer territories

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in specific circumstances. In several instances, The United Nations placed certain territories under its transitional administration for a variety of purposes, such as the preparation for independence, the administration of an election, the adoption of a new constitution, the implementation of a peace settlement, and the performance of other civil functions.  Examples of such instances are Cambodia (1992-1993), Bosnia and Herzegovina (1995- ), and East Timor (1999-2002).   The territories (trust territories) placed under the trusteeship system have been accorded special status under International Law.  Their inhabitants have been granted the rights for advancement, progressive development, and self-government or independence.  Actually, all these territories have attained independence as separate States, or have joined other independent States. The territories placed by the United Nations under special systems, except Cambodia which has been already an independent State, have been also accorded special status under International Law for the purpose of assisting them in attaining their independence.        4.  Special case entitiesThere are two special case entities accorded a special unique status under International Law; they are the Sovereign Order of Malta, and the Holly See and the Vatican City. (a) The Sovereign Order of Malta:   The Sovereign Order of Malta was established during the Crusades as a military and medical association.  It ruled Rhodes from 1309 to 1522.  It was entrusted to rule Malta by the treaty with King Charles V of England in 1530.  It lost its rule of Malta in 1798.  In 1834 the Order established its headquarters in Rome as a humanitarian organization.  The Order already had international personality at the time of its taking control of Malta and even when it had to leave the island it continued to exchange diplomatic legations with most European States.  Today, the Order maintains diplomatic relations with over forty States.

  (b)  The Holy See and the Vatican City:  The Holy See, which is sometimes used interchangeably with the Vatican City, is the international legal person of the Roman Catholic Church, with its physical location at the Vatican City in Rome and its sovereign the Pope.  It is not a State in the normal sense of the word.  It is a unique person of International law because it combines the feature of the personality of the Holy See as a religious entity with its territorial base in the Vatican City. Apart of some one thousand Church functionaries, it has no permanent population of its own.  Its sovereign territory consists of only about one hundred acres granted it by Italy in the 1929 Lateran

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Treaty.  Nevertheless, the status of the Holy See as an international person is accepted by a number of States. Its personality approximates to a State in functions. The Holy See exchanges diplomatic representatives with other States, enters into bilateral treaties (called concordats), and is a party to many multilateral treaties.     5.  Individuals    The ultimate concern for the human being has always been the essence of International Law.  This concern was apparent in the Natural Law origin of the classical International Law.  The growth of the positivist theories of law, particularly in the Nineteenth Century, obscured this concern for the human being and emphasized the centrality and even the exclusivity of the State in International Law.      In the Twentieth Century, International Law became again concerned with individuals.  In 1907, the Hague Conventions initiated the concern in view of prisoners of war and the wounded.  During the Second World War, the trend of International Law had been towards attaching direct responsibility to individuals for crimes committed against the peace and security.  The Charter of London of 1943 issued by the Allied Powers established the individual responsibility for committing war crimes, crimes against humanities and crimes against peace.  On this basis, after the Second World War, the German leaders were brought to trial before the Nuremberg International Tribunal (1945-1946) where their guilt was established.  The Charter of the Nuremberg International Tribunal of 1945 provided specifically for individual responsibility for crimes against peace, war crimes and crimes against humanity.  

The Nuremberg International Tribunal pointed out that “international law imposes duties and liabilities upon individuals as well as upon states” and this was because “crimes against international law are committed by men, not by abstract entities, and only by punishing individuals who commit such crimes can the provisions of international law be enforced”. The principles of the Charter of the Nuremberg Tribunal and the decisions of this tribunal were affirmed by the General Assembly of the United Nations in 1946, thus making them to be part of the International Law.  The Assembly also, in 1946, stated that genocide was a crime under International Law bearing individual responsibility; and this was reaffirmed in the Genocide Convention of 1948.[34]

     Individual responsibility was also confirmed with regard to grave breaches of the Four Geneva Conventions of 1949 and the Additional Protocols I and II of 1977, which deal with armed conflicts (International Humanitarian Law).   On this basis, two specific international

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war crimes tribunals were established, one for the former Yugoslavia in 1993 and one for Rwanda in 1994, to prosecute persons responsible for the serious violations of International Humanitarian Law committed in the territory of each of these countries.     The events in the former Yugoslavia and Rwanda impelled the renewal of the international concern for the establishment of a permanent international criminal court, which had long been under consideration.  In 1998, the Rome Statute of the International Criminal Court was adopted at the United Nations Diplomatic Conference.  The Statute provides that the jurisdiction of the Court is limited to “the most serious crimes of concern of the international community as a whole”, which are the crime of genocide, crimes against humanity, war crimes and the crime of aggression, and that “[A] person who commits a crime within the jurisdiction of the Court shall be individually responsible and liable for punishment in accordance with this Statute.”          In addition, after the Second World War, International law became also concerned with individuals in the field of human rights and the fundamental freedoms.  The Charter of the United Nations started this trend in 1945 by calling upon member states to observe human rights and fundamental freedoms for individuals and peoples.  Since then, several conventions have been concluded to define human rights and fundamental freedoms which individuals and peoples are entitled to and to ensure their respect and protection.  Among these conventions are the International Covenant on Civil and Political Rights of 1966, and the International Covenant on Economic, Social and Cultural Rights of 1966.

     Although, individuals as a general rule lack standing to assert violations of the above treaties in the absence of the protest by the State of nationality, a wide range of other treaties have enabled individuals to have direct access to international courts and tribunals. Examples of such treaties are the European Convention on Human Rights of 1950, the American Convention on Human Rights of 1969, the International Convention on the Elimination of All forms of Racial Discrimination of 1966, and the Optional Protocol to the International Covenant on Civil and Political Rights of 1966.            In conclusion, we can say that Contemporary International Law has recaptured the concern for individuals, and individuals have become recognized as participants and subjects of this law.  This has occurred primarily through the evolution of Human Rights Law and Humanitarian Law coming together with the evolution of the Traditional International Law.  Individuals have a sort of legal personality under International Law;

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they are granted certain rights and subjected to certain obligations directly under International Law. International Law is applicable to relations of States with individuals and to certain interrelations of individuals themselves where such relations involve matters of international concern.

6.  Minorities      The concern of International Law, in the Twentieth Century, for individuals was accompanied by another concern for minorities. The problem of protecting national minorities in Europe confronted the League of Nations after the First World War. The League assumed its responsibilities in the field of treaty-based protection of minorities in Europe, in social matters, such as health and fair labor standards.  After the Second World War certain rights were granted to the individual members of ethnic, linguistic and cultural minorities; they were granted the right to have their identity and language respected by the State as part of the process of the development of human rights in general. 

     The rise of ethno-nationalism after the collapse of the Soviet Union in 1991 brought back the status of ethnic minorities and other groups in International Law to be an important issue concerning the international community.  Various efforts have been made on the global and regional level to improve the legal protection of minorities.  On the Global level, there is “the United Nations Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities of 1992”.  On the regional level, there are “the European Charter for Regional or Minority Languages” adopted by “the Council of Europe” in 1992, “the Framework Convention for the Protection of National Minorities” adopted by “the Council of Europe” in 1995 and the creation of “the High Commission for National Minorities” belonging to “the Conference on Security and Cooperation in Europe”.      Despite all these efforts that aimed to grant specific rights to minorities, the question remains, what legal status should be accorded to minorities in International Law?  Do minorities have international legal personality?     There is no clear answer to these questions.  Actually, the problem of minorities is very complicated because it involves political and legal dimensions related to the meaning and legal consequences of the principle of self-determination that may lead to loss of the concerned State part of its territory and its control over part of its population and to the possible outside intervention in its domestic affairs.  For this reason, it is no accident that in the development of International Law since the Second World War, the rights of minorities have been conceived as a category of human rights which are to be exercised by the individual belonging to a minority, rather than as group rights attributed to a collective entity as such.

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  7.  Indigenous Peoples       In recent years, a special issue related to a category of the so-called “indigenous peoples” has been raised. Examples of indigenous peoples are the Aborigines in Australia, the American Indians, the Eskimos and the Maori in New Zealand.  Despite the attempts by the United Nations to recognize group rights to indigenous peoples, it is still regarded as a specific category of minorities with special needs and having a particular relationship to their traditional territory.       In conclusion, we can say that minorities and indigenous peoples are not subjects of International Law in any meaningful sense of the term and that they have not achieved an international legal personality.  They may receive guarantees of certain levels of treatment under international treaties, but it does not follow that they as such have legal personality.  International Law does not attribute rights to minorities and indigenous peoples as an entity, but rather to individual members of them.    

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Chapter 5 A State as a Subject of International Law

      In general, a subject (a person) of law is an entity to whom the law provides rights and assigns obligations.  The requirements to be met for an entity to be considered a subject of International Law are the ability to have rights and obligations under International Law, the capacity to enter into relations with other subjects and to stand before international courts.  States are, in this sense, clearly subjects of International Law since they fulfill all of these requirements.     A State is the primary legal subject (person) in International Law.  A State, by evidencing a separate legal and corporate personality, fulfills the basic requirement for the entrance into the community of nations.  For an entity to be a State, it should be free from political control of another State and be free to enter into relations with other States.

     What is a State?  What are the criteria of statehood?  What are the rights and duties of a State?  The answers to these questions are dealt with in the following sections.  Section 1:  Definition and Requirements of Statehood      There is no exact definition of the term “State” in International Law. However in this law, the essential criteria for statehood are well settled.  Article 1 of the Montevideo Convention on the Rights and Duties of States of 1933 provides the following:  The state as a person of international law should possess the following qualifications:a.   a permanent population;b.   a defined territory;c.   government; andd.   capacity to enter into relations with other States.      According to this article an entity to be a person of International Law, it should fulfill the enumerated qualifications which are regarded as the essential requirements or characteristics of statehood.  However, these requirements are not exhaustive; other requirements may be relevant including sovereignty, independence, self-determination and recognition; these requirements are considered in correlation of the essential

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requirements.  All these requirements are considered below. (a) A Permanent Population     The existence of a permanent population is naturally required as an initial evidence of the existence of a State.  This requirement suggests a stable community.  Evidentially it is important, since in the absence of the physical basis for an organized community, it will be difficult to establish the existence of a State.  The size of the population, however, is not relevant since International Law does not specify the minimum number of inhabitants as a requirement of statehood.  Nevertheless, an acceptable minimum number of inhabitants is required with regard to self-determination criterion.

      (b) A Defined Territory     The requirement of a permanent population is intended to be used in association with that of territory.  What is required by a defined territory is that there must be a certain portion of land inhabited by a stable community.  A defined territory does not suggests that the territory must be fixed and the boundaries be settled since these are not essential to the existence of a State, although in fact all modern States are contained within territorial limits or boundaries.     The past practice shows that the existence of fully defined boundaries is not required and that what matters is the existence of an effective political authority having control over a particular portion of land.  In 1913, Albania was recognized as a State by a number of States even though it lacked settled boundaries, and Israel was admitted to the United Nations as a State in spite of disputes over its existence and territorial delineation.      The existence of a particular territory over which a political authority operates is essential for the existence of a State.  For this reason, the “State of Palestine” declared in November 1988 at the conference of Algiers was not legally regarded as a valid State since the Palestine Liberation Organization had have no control over any part of the territory it was claiming.      The size of the territory of a State and alterations to its extent, whether by increase or decrease, do not of themselves change the identity of that State. A state continues to exist as long as a portion of land is retained

(c) A Government     For a stable community to function reasonably effectively, it needs some sort of political organization.    It is required that an effective government be created, and this political authority must be strong enough to assert itself throughout the territory of the State without a foreign assistance.  The existence of an effective government, with some sort of centralized administrative and legislative organs, assures the internal stability of the State,

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and of its ability to fulfill its international obligations.

     However, the requirement related to the existence of an effective government having control throughout its territory although strictly applied in the past practice, it has been subjected to certain modification in modern practice.  In certain cases, the requirement of an effective government was not regarded as precondition for recognition as an independent State.  The State of Croatia and the State of Bosnia and Herzegovina were recognized as independent States by the member States of the European Community, and admitted to membership of the United Nations at a time when substantial areas of the territories of each of them, because of the civil war situations, were outside the control of each government.  In other cases, the requirement of an organized government was unnecessary or insufficient to support statehood.  Some States had arisen before government was very well organized, as for example, Burundi and Rwanda which were admitted as States to the membership of the United Nations in 1961.      Moreover, a State does not cease to exist when it is temporarily deprived of an effective government because of civil war or similar upheavals.  The long period of de facto partition of Lebanon did not hamper its continuance as a State.  The lack of a government in Somalia did not abolish the international personality of the country.  Even when all the territory of a State is occupied by the enemy in wartime, it continues to exist as in the cases of the occupation of European States by Germany in the Second World War and the occupation of Germany and Japan by the Allied powers after that war.      Nevertheless, the requirement of effective government remains strictly applied in case when part of the population of a State tries to break away to form a new State.  (d) A Capacity to Enter into Relations with Other States

     The capacity to enter into relations with other States is an attribute of the existence of an international legal personality.  A State must have recognized capacity to maintain external relations with other States.  Such capacity is essential for a sovereign State; lack of such capacity will avert the entity from being an independent State.  Capacity distinguishes States from lesser entities such as members of federation or protectorates, which do not manage their own foreign affairs, and are not recognized by other States as full-members of the international community.

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 (e) Other Requirements     Independence, sovereignty, self-determination and recognition are other requirements of statehood used either as separate criteria or in association with the above requirements.  

The concept of independence means that the State is subject to no other State.  Many jurists stress on independence as the decisive criterion of statehood.  Some consider independence the essence of a capacity to enter into relations with other States, and represented by this capacity.  Others consider it in association with the requirement of effective government; to them, if an entity has its own executive and other organs, and conducts its foreign relations through its own organs, then it is independent, and this is a prima facie evidence of statehood.      Some jurists consider sovereignty as an important criterion of statehood; even some of them use the term sovereignty as a synonym for independence.   The concept of sovereignty denotes, internally, the supreme undivided authority possessed by a State to enact and enforce its law with respect to all persons, property and events within its borders, and externally, the capacity of a State to enter into relations with other States, such as sending and receiving diplomats and engaging in treaty making, and the enjoyment of certain immunities and privileges from the jurisdiction of other States.  Sovereignty, in this regard, is the indication of the international personality of an entity seeking a status of a State in the community of nations.    Lack of sovereignty suggests that an entity is not independent and has no international legal personality, and consequently, not a State.  However, some others reject sovereignty as a criterion of statehood on the considerations that Germany after 1945, although lost considerable extent of its sovereignty, it continued to exist as a State.

      In the practice of States, the principle of self-determination has been used as a criterion modifying the requirement of effective government.  The evolution of the right of self-determination has affected the level of effectiveness a concerned government required to exercise in order to fulfill such requirement of statehood.  Therefore, a lower level of effectiveness has been accepted; this occurred particularly in decolonization situations where colonies were seeking their independence and the creation of their States.  Moreover, the principle of self-determination has been used as an additional criterion of statehood in certain circumstances, such as, in the case of Rhodesia when it unilaterally declared independence on November 11, 1965, and in the cases of the successor States of the former Yugoslavia. This additional criterion may be required in the future in cases of certain national minorities seeking independence and the creation of their States.

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      In the context of the constitutive theory of recognition, recognition has been required as an additional criterion of statehood.  The constitutive theory considers that the act of recognition constitutes or creates the new State, i.e., that the existence of a State begins with its recognition by other States.  Accordingly, it is only through recognition that a State comes into being under International Law.  The practice of States has required recognition as an additional criterion of statehood in certain instances, such as in the case of Rhodesia in 1965.  At that time, although Rhodesia might have been regarded as a State by virtue of satisfaction of all the requirements of statehood (the factual requirements) enumerated in the Montevideo Convention of 1933, its status as a State was denied because no State did recognize it. 

Section 2:  Fundamental Rights and Duties of a State      Rights and duties of a State have been the primary concern of International Law.  The formulation of a list of the so-called fundamental or basic rights and duties of a State has been a persistent preoccupation of international conferences and bodies.  The Montevideo Convention of 1933- Uruguay on December 26, 1933, on the Rights and Duties of States was the first attempt in the process of such formulation.[18] This attempt was followed by the preparation of the International Law Commission of the United Nation “the Draft Declaration on the Rights and Duties of States of 1949”, and the adoption of the General Assembly of the United Nations the Resolution 2625 of 1970 entitled the “Declaration on Principles of International Law Concerning Friendly Relations and Cooperation Among States in Accordance with the Charter of the United Nations.”  The above instruments, together with the Charter of the United Nations, provide references for fundamental rights and duties of States.     Accordingly, under International Law States are entitled to enjoy certain fundamental rights and bound by certain duties. 

A. Rights of a State         The rights of a State are those inherent rights which a State is entitled to under International law.  These rights exist by virtue of the international legal order, which is able to define the rights of its subjects.

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    Among the fundamental rights of a state are the following:      (1) The Right of Independence 

     Apart of being a requirement of statehood as mentioned previously, independence is an outstanding fundamental right of a State. Independence as defined by the Draft Declaration on the Rights and Duties of States of 1949 is the capacity of a State to provide for its own well-being and development free from the domination of other states.

     However, any political or economic dependence that may in reality exist does not affect the legal independence of the State, unless that State is formally compelled to submit to the demands of a superior State, in such a case a dependent Status is involved.      The right of independence in International Law includes a number of rights, such as, the right of territorial integrity, and the right to have an exclusive control over own domestic affairs.

     (2) The Right of Sovereignty     The right of sovereignty is a fundamental right of a State. All States must enjoy such right.  Sovereignty has twofold meaning. Firstly, sovereignty means that a State has the supreme undivided authority over its territory--this concept of sovereignty is known as territorial sovereignty.  Secondly, sovereignty means the capacity of a State to enter into relations with other States, such as sending and receiving diplomats and engaging in treaty making, and the enjoyment of certain immunities and privileges from the jurisdiction of other States--this concept is connected with the concept of international personality.

     Sovereignty has a much more restrictive meaning today than in the 18 th and 19th Centuries when, with the emergence of powerful national States, few limits on State sovereignty were accepted.  At the present time there is hardly a State has not accepted, in the interest of international community, restrictions and limitations on its freedom of action.  Actually, the exercise of sovereignty today is not absolute.  A State has subjected its sovereign powers to several limitations by virtue of treaties or decisions of international organizations of which it is a member, or by virtue of its consent.       (3) The Right of Territorial Jurisdiction      The Right of Territorial Jurisdiction is derived from the right of sovereignty.  This right entitles a State to have the absolute and exclusive authority over all persons, property and

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events within the limits of its national territory.  This authority implies jurisdiction of the State to enact the law, to enforce the law and to adjudicate persons and events within its territorial land, its internal and territorial water, and national air space.

   (4) The Right of Sovereign Equality     Sovereign equality means that all State have equal rights and duties, have the same juridical capacities and functions, and are equal members of the international community, notwithstanding differences of an economic, social, political or other nature.  Sovereign equality is mentioned in the Charter of the United Nations as the principle on which this Organization is based.       (5) The Right of Self-Defense       The right of self-defense to which a State is entitled is recognized by Customary International Law as well as Article 51 of the Charter of the United Nations.  However, this right cannot be exercised by a State unless an armed attack occurs against it and until the Security Council has taken the measures necessary to maintain international peace and security.  In invoking this right, the State must comply with the requirements of Customary Law, which are the use of peaceful procedures—if they are available, necessity and proportionality.

B. Duties of a State          In correlation to the rights of the States, there are duties binding the States.   All States are bound to observe their duties under International Law.  Non-compliance of a State with its duties constitutes a violation of International Law for which it is responsible under this Law.  Among the duties of a State are the following.      (1) The Duty to Refrain from the Threat or Use of  Force         A State is under a duty to refrain in its international relations from the threat or use of force against the territorial integrity or political independence of any State. This duty includes within its scope certain recognized duties, such as, the duty to refrain from propaganda for wars and aggression, the duty to refrain from organizing or encouraging the organization of irregular forces or armed bands for incursion into the territory of another state, the duty to refrain from organizing, assisting or participating in acts of civil strife or terrorist act in another State and the duty to refrain from forcible action which derives peoples from their rights to self-determination, freedom and independence.      However, the use of force is accepted and considered lawful under International Law only if it is exercised in case of self-defense and in accordance with the provisions of the

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Charter of the United Nations. (2) The Duty to Settle International Disputes by Peaceful Means       A State is under a duty to settle its international disputes with other States by peaceful means in such a manner that international peace, security, and justice are not endangered.  The Charter of the United Nations, in Chapter 6, provided the machinery for the fulfillment of this duty by the States. Accordingly, States must seek a just settlement of its international dispute by any of the peaceful means stated in the Charter or by any peaceful means agreed upon by them.  In case of their failure to reach a peaceful settlement by themselves, they are under a duty to comply with the actions taken by the United Nations.

(3) The Duty not to Intervene in the Affairs of Other States      A State is under a duty not to intervene, directly or indirectly, for whatever reason, in the internal or external affairs of any other State.  It constitutes a violation of International Law any use, encourage the use or threat to use of military, economic, political or any other form of intervention against a State or against its political, economic and cultural elements. (4) The Duty to Co-Operate with One Another       A State is under a duty to co-operate with other States, irrespective of the differences in their political, economic and social systems, in various spheres of international relations, in accordance with the Charter of the United Nations.  Accordingly, a State should co-operate with other States in the economic, social, cultural, educational and scientific fields, as well as, in the fields of peace and security, and human rights and freedoms. (5) The Duty of a State to Fulfill Its Obligations in Good Faith        A State is under a duty to fulfill in good faith the obligations assumed by it under the Charter of the United Nations and the International Law, including international treaties.  The concept of good faith implies that a State should perform its assumed obligations honestly, without malice and defraud, and without seeking unconscionable advantage. 

 Chapter 6 State Territory and Territorial Sovereignty

      As stated in a previous chapter dealing with a State, a territory is one of the fundamental elements of statehood.  Without a territory, an entity cannot be a State.

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[1]  The notion that a State occupies a definite portion of the earth within which it exercises, subject to the limitations of International Law, its exclusive authority to the exclusion of other States lies at the basis of International Law.[2]  The exercise of such a supreme authority by a State over its own territory is known in International Law as “territorial sovereignty”.     Notably, the concept “territorial sovereignty” is confused with the concept “jurisdiction”.  Some have used the two concepts interchangeably.  However, there is a distinction between the two concepts. Territorial sovereignty signifies ownership and possession of a territory, which entitles a State to exercise its authority and jurisdiction over the territory.  Jurisdiction justifies competence to affect peoples, properties and events within a territory.       Because “territorial sovereignty” and “jurisdiction” are two legal concepts connected to territory and can only be understood in relation to territory, therefore, in the following two sections “territorial sovereignty” and modes of acquiring territory are dealt with. While “jurisdiction” will be the subject of the next chapter. Section 1:  Territorial Sovereignty       Sovereignty in regard to a territory is known as territorial sovereignty.  Territorial Sovereignty is the right of a State to exercise over its own territory, to the exclusion of any other States, the functions of a State.[3]   It has a positive and a negative aspect.[4]  The first aspect relates to the exclusivity of the right of the State with regard to its own territory, while the second aspect refers to the obligation to protect the rights of other States.       A State exercises its territorial sovereignty within its boundary.    Boundary is an imaginary line that delineates the territorial limit of a State.[5]  Boundaries are of three dimensions.[6]  They include the State land and the maritime domain of its internal waters and territorial sea, the airspace and its subsoil. They are either natural topographical, having physical distinguishable features such as mountains, rivers or lakes, or imaginary and artificial such as lines of attitude and longitude, surveyor lines or posts.  Both types have equal legal effects and usually based upon treaties or historical title.        The sovereignty of a coastal State extends, beyond its boundaries, over its contiguous zone, over its continental shelf and over its exclusive economic zone.  Moreover, the sovereignty of State whether coastal or land-locked extends over its national vessels.  The sovereignty of a State extends also to its national aircrafts.     The right to territorial sovereignty enables a State to exercise the fullest measures

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of sovereignty powers over its land territory, large measures over its territorial waters and air space, and smaller measures over its continental shelf and adjacent area.  In addition, it enables a State to exercise sovereignty over vessels and aircrafts that fly its flag or carry its nationality, which are treated as its territory.

     Corollary to the rights generated from territorial sovereignty, there are duties imposed upon a State.  These duties involve the obligation to protect within its territory the rights of other States, together with the rights that each State may claim for its nationals in foreign territory.

     Many treaties and conventions have been concluded to regulate State sovereignty over land, sea, airspace and outer space.  Over airspace and outer space, there are the 1944 Convention on International Civil Aviation (the Chicago Convention),[7] the 1963 Treaty Banning Nuclear Weapon Tests in the Atmosphere, in Outer Space and under Water, [8] and the 1967 Treaty on Principles Governing the Activities in the Exploration and Use of Outer Space including the Moon and Other Celestial Bodies (the Outer Space Treaty).[9]     Over the sea, there is the 1982 Convention on the Law of the Sea,[10] which replaced the 1956 Conventions related to the Territorial Sea and the Contiguous Zone, the High Seas, the Continental Shelf, and Fishing and Conservation of living Resources of the High Seas.  In Addition, there is the 1959 Antarctica Treaty.[11]     Since the rights generated from the concept of territorial sovereignty can only be exercised in relation to a territory, it is necessary to know how a territory can be acquired.

Section 2:  Acquisition of Territory [12]        The international rules related to territorial sovereignty are rooted in the Roman Law provisions governing ownership and possession.  In addition, the classification of the different modes of acquiring territory is a direct descendant of the Roman rules dealing with property.[13]     Territory is the space within which the State exercises sovereign authority.  Title to territory is acquired either through the claim of land not previously owned (terra nullius) or through the transfer of title from one State to another.[14]  Title acquired in the first category is called original title, while in the second category is called derivative title.  Modes of original acquisition of territory include occupation,

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prescription and accretion.  Derivative modes include cession (voluntary or forcible), and conquest and annexation.    All these modes are dealt with in the following.  (1)  Occupation      Occupation is an original mode of acquisition by a State of a title to a territory.  It implies the establishment of sovereignty over a territory not under the authority of any other State (terra nullius) whether newly discovered or abandoned by the State formerly in control (unlikely to occur).[15]     For the title acquired through occupation to be final and valid under International Law, the presence and control of a State over the concerned territory must be effective.[16]   Effectiveness requires on the part of the Claimant State two elements: an intention or will to act as sovereign, and the adequate exercise of sovereignty.  Intention may be inferred from all the facts, although sometimes it may be formally expressed in official notifications to other States.  Adequate exercise of sovereignty must be peaceful, real, and continuous.  This element of physical assumption may be manifested by an explicit or symbolic act by legislative or administrative measures affecting the claimed territory or by treaties with other States recognizing the sovereignty of the Claimant State over the particular territory or demarcating boundaries.     Occupation was often preceded by discovery that is the realization of the existence of a particular piece of land.  In the early period of European discovery, in the Fifteenth and Sixteenth Centuries, the mere realization or sighting was sufficient to constitute title to territory.  As time passed, something more was required and this took the form of symbolic act of taking possession, whether by raising of flags or by formal declarations.   By the Eighteenth Century, the effective control came to be required together with discovery to constitute title to territory.[17]              (2) Prescription       Prescription is a mode of establishing title to territory which is subject to the sovereignty of another State (not terra nullius) through peaceful exercise of de facto sovereignty over a long period of time.[18]  It is the legitimization of a doubtful title by the passage of time and the presumed acquiescence of the former sovereignty.  It differs from occupation.  It relates to territory which has previously been under the sovereignty of another State.  However, both modes are similar since they require evidence of sovereignty acts by a State over a period of time.                              

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     A title by prescription to be valid under International Law, it is required that the length of time must be adequate, and the public and peaceful exercise of de facto sovereignty must be continuous.  The Possession of Claimant State must be public, in the sense that all interested States can be made aware of it.  It must be peaceful and uninterrupted in the sense that the former sovereign must consent to the new sovereign.  Such consent may be express or implied from all the relevant circumstances.  This means that protests of whatever means by the former sovereign may completely block any claim of prescription.     As the requirement of adequate length of time for possession is concerned, there is no consensus on this regard.  Thus, the adequacy of the length of period would be decided on a case by case basis.  All the circumstances of the case, including the nature of the territory and the absence or presence of any competing claims will be taken into consideration.

  (3)  Accretion       Accretion is a geographical process by which new land is formed mainly through natural causes and becomes attached to existing land.[19]  Examples of such a process are the creation of islands in a river mouth, the drying up or the change in the course of a boundary river, or the emerging of island after the eruption of an under-sea volcano.  When the new land comes into being within the territory of a State, it forms part of its territory, and this causes no problem.   However, in case of a drying or shifting of a boundary river, the general rule of International Law is that if the change is gradual and slight, the boundary may be shifted, but if the change is violent and excessive, the boundary stays at the same point along the original riverbed.[20]

     Where a new territory is added, mainly through natural causes, to territory already under the sovereignty of the acquiring State, the acquisition and title to this territory need no formal act or assertion on part of the acquiring State.[21]

  (4)  Cession      Cession of territory is a transfer of sovereignty from one sovereign to another.[22]  Its basis lies in the intention of the concerned parties to transfer sovereignty over the territory in question, and it rests on the principle that the right of transferring its territory is a fundamental attribute of the sovereignty of a State.  It occurs by means of

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an agreement between the ceding and the acquiring States. The cession may comprise a portion of the territory of the ceding State or the totality of its territory.  In the latter case, the ceding State disappears and merges into the acquiring State.[23]

     Cession of territory may be voluntary as a result of a purchase, an exchange, a gift, a voluntary merger, or any other voluntary manner, or it may be made under compulsion as a result of a war or any use of force against the ceding State.[24]   History provides a great number of examples of cession.[25]  Examples of voluntary cession are the United States’ purchase of Alaska from Russia in 1867, the exchange of a portion of Bessarabia by Romania to Russia in exchange for Dobrudja in 1878, the France’s gift of Venice to Italy in 1866, and the voluntary merger of the Republic of Texas into the United States in 1795.  Examples of cession as a result of a war are the cession to Germany by France of the region of Alsace- Lorraine in 1871, and the merger of Korea into Japan in 1910. (5)  Conquest and Annexation      Conquest is an act of defeating an opponent State and occupying all or part of its territory.[26]  Annexation is the extension of sovereignty over a territory by its inclusion into the State.[27]  Under traditional International Law, conquest did not of itself constitute a basis of title to the land.  It was merely a military occupation.  If followed by a formal annexation of the conquered territory, then it was called subjugation and could be considered a valid derivative title to territory.  Accordingly, conquest followed by annexation constituted a mode to transfer the title of the conquered territory to the conqueror.[28] Like compulsory cession, conquest followed by annexation would transfer territory by compulsion, but unlike cession, it involved no agreement between the concerned parties.

     While the acquisition of territory through conquest followed by annexation was an accepted mode of acquiring title to territory under traditional International Law, it is no longer legal at modern times.  The acquisition of territory through the use of force is outlawed by paragraph 4 of article 2 of the Charter of the United Nations, which obliged the member States to refrain from the use of force against the territorial integrity or political independence of any State.  This same principle is reaffirmed in the 1970 General Assembly “Declaration on Principles of International Law Concerning Friendly Relations and Co-operation among States in Accordance with the Charter of the United Nations”.[29]  This Declaration adds that the territory of a State

44

shall not be the object of acquisition by another State resulting from the threat or use of force, and that no territorial acquisition resulting from such act shall be recognized as legal.[30]

     Although today conquest is not a legal mode of acquiring title to territory, it does give the victor certain rights under International Law as regards the occupied territory, such as rights of belligerent occupation.[31]  The territory remains the legal possession of the ousted sovereign because sovereignty does not pass by conquest to the occupying State, although it may pass in certain cases where the legal status of the territory occupied is in dispute prior to the conquest.     At present times, acquisition of territory following a war would require further international action in addition to internal legislation to annex.  Such further international action would be either a treaty of cession by the former sovereign or international recognition.[32]        Modern examples of annexation following conquest are Israel’s annexation of the Golan Heights and the East Jerusalem, and Iraq’s annexation of Kuwait in 1990.  In case of the Iraqi annexation, the Security Council adopted the resolution 662 of 1990 declaring that this annexation “has no legal validity and is considered null and void”, and called upon all States not to recognize this annexation and to refrain from actions which might be interpreted as indirect recognition.[33]

(6) Modes of losing territory: Corresponding the modes of acquiring territory, there are modes of losing it.  Territory may be lost by express declaration or conduct such as a treaty of cession or acceptance of cession, by conquest, by erosion or natural geographic activities, by prescription or by abandonment,[34] loss of territory by revolution, example, in 1971 Bangladesh was born by revolution against Pakistan, Sudan vs Southern Sudan 20011.

Chapter- 7 State Jurisdiction under International Law

          State jurisdiction is the capacity of a State under International Law to prescribe and enforce the rules of law.[2]  It is derived from the State sovereignty and constitutes its vital and central feature.  It is the authority of a State over persons, property and events which are primarily within its territories (its land, its national airspace, and its

45

internal and territorial water).  This authority involves the powers to prescribe the rules of law, to enforce the prescribed rules of law and to adjudicate.  The powers related to State jurisdiction raise the question regarding the types and forms of State Jurisdiction.      State jurisdiction may extend beyond its territory over persons and things which have a national link.  This extension raises the question regarding the grounds or the principles upon which the State can assert its jurisdiction within and beyond its boundaries.     Nevertheless, there are certain persons, property and events within a State territory which are immune from its jurisdiction.  This limitation to a State jurisdiction raises a question regarding the immunity from jurisdiction. 

The answers to the above raised questions are dealt with in the following sections.     Section 1:  Types of State Jurisdiction      State jurisdiction implies the competence to prescribe rules of law, the jurisdiction to enforce the prescribed rules of law and the jurisdiction to adjudicate.[3]  Accordingly, it is of three types: legislative jurisdiction, executive jurisdiction and judicial jurisdiction. (1)  Legislative Jurisdiction         Legislative jurisdiction is the capacity of a State to prescribe rules of law (the power to legislate).[4]   A State has the supremacy to make binding laws within its territory. It has a legislative exclusivity in many areas.  This supremacy is entrusted to constitutionally recognized organs.           Although legislation is primarily enforceable within a State territory, it may extend beyond its territory in certain circumstances.  International Law, for example, accepts that a State may levy taxes against persons not within its territory as long as there is a real link between the State and the proposed taxpayer, whether it is nationality or domicile.[5]     The question of how far a court will enforce foreign legislation is a matter within the field of Private International Law (conflict of laws).  It is common practice of States that a State enforces civil laws of another State, but it is rare to enforce the penal or taxes laws of another State.     The legislative supremacy of a State within its territory is well established in

46

International Law. However, this supremacy may be challenged in cases where a State adopts laws that are contrary to the rules of International Law.[6]  In such cases, a State will be liable for a breach of International Law.   A State may also be liable for a breach of International Law if it abuses its rights to legislate for its nationals abroad.

(2)  Executive Jurisdiction          Executive jurisdiction is the capacity of a State to act and to enforce its laws within its territory.[7] Generally, since States are independent of each other and possess territorial sovereignty, they have no authority to carry out their functions on foreign territory.[8] No State has the authority to infringe the territorial sovereignty of another State.  In this sense, a State cannot enforce its laws upon foreign territory without the consent of the host State; otherwise, it will be liable for a breach of International Law. (3)  Judicial Jurisdiction           Judicial jurisdiction is the capacity of the courts of a State to try legal cases.[9]  A State has an exclusive authority to create courts and assign their jurisdiction, and to lay down the procedures to be followed.  However, in doing so, it cannot by any means alter the way in which foreign courts operate.     There are a number of principles upon which the courts of a State can claim jurisdiction.[10]  In civil matters, the principles range from the mere presence of the defendant in the territory of a State to the nationality and domicile principles.  In the criminal matters, they range from the territorial principle to the universality principle.  These principles are the subject of the following section.

Section 2:  Principles of Jurisdiction[11]         Generally, the exercise of civil jurisdiction by courts of a State has been claimed upon far wider grounds than has been the case in criminal matters.[12]  The consequent reaction by other State with this regard has been much mild.  This is partly because public opinion is far more vigorous where a person is tried in foreign territory for criminal offences than if a person is involved in a civil case.  In addition, International Law does not impose any restrictions on the jurisdiction of courts in civil matters.     In Common Law countries such as the United States and United Kingdom, the usual ground for jurisdiction in civil cases is the service of a writ upon the defendant

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within the country, even if the presence of the defendant is temporary and incidental.[13]   In Civil Law countries, the usual ground for jurisdiction is the habitual residence of the defendant in the country.[14]  In some countries such as Netherlands, Denmark and Sweden, generally courts assert their jurisdiction if the defendant possesses assets in the country; however, in matrimonial cases the commonly accepted ground for jurisdiction is the domicile or residence of the plaintiff.[15]     As far as criminal jurisdiction is concerned, the grounds or principles of jurisdiction mostly invoked by States are as follows.

(1)  The Territorial Principle[16]

      The territorial principle is derived from the concept of State sovereignty.[17]  It means that a State has the primary jurisdiction over all events taking place in its territory regardless of the nationality of the person responsible.  It is the dominant ground of jurisdiction in International Law.  All other State must respect the supremacy of the State over its territory, and consequently must not interfere neither in its internal affairs nor in its territorial jurisdiction.     The territorial jurisdiction of State extents over its land, its national airspace, its internal water, its territorial sea, its national aircrafts, and its national vessels.  It encompasses not only crimes committed on its territory but also crimes have effects within its territory.  In such a case a concurrent jurisdiction occurs, a subjective territorial jurisdiction may be exercised by the State in whose territory the crime was committed, and an objective territorial jurisdiction may be exercised by the State in whose territory the crime had its effect.[18]

     Although jurisdiction is primarily and predominantly territorial, it is not exclusive.  A State is free to confer upon other States the right to exercise certain jurisdiction within its national territory.[19]  States are free to arrange the right of each one to exercise certain jurisdiction within each national territory.  The most significant recent examples of such arrangements are: the 1991 France-United Kingdom Protocol Concerning Frontier Control and Policing, under which the frontier control laws and regulations of each State are applicable and may be enforced by its officers in the control zones of the other; the 1994 Israel-Jordan Peace Treaty, under which the Israeli criminal laws are applicable to the Israeli nationals and the activities involving only them in the specified areas under Jordan’s sovereignty, and measures can be taken in

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the areas by Israel to enforce such laws.[20]     (2)  The Nationality Principle [21]             The nationality principle implies that a State jurisdiction extends to its nationals and actions they take beyond its territory.[22]  It is based upon the notion that the link between the State and its nationals is personal one independent of location.[23]

     Criminal jurisdiction based on the nationality principle is universally accepted.  While Civil Law countries make extensive use of it, the Common Law countries use it with respect to major crimes such as murder and treason.[24]  The Common law countries, however, do not challenge the extensive use of this principle by other countries.

     A State may prosecute its nationals for crimes committed anywhere in the world; the ground of this jurisdiction is known as active nationality principle.[25]  Also, it may claim jurisdiction for crimes committed by aliens against their nationals abroad; the ground of this jurisdiction is known as passive nationality principle.[26]  This last principle has been viewed as much weaker than the territorial or active nationality principle as a basis for jurisdiction.[27]   It has been considered as a secondary basis for jurisdiction, and a matter of considerable controversy among States.  However, in recent years this principle has come to be much acceptable by the international community in the sphere of terrorist and other internationally condemned crimes.[28]

(3)  The Protective principle[29]        The protective principle implies that a State may exercise jurisdiction over an alien who commits an act outside its territory, which is deemed prejudicial to its security and interests.[30]  It is universally accepted, although there are uncertainties as to its practical extent, particularly as regard to the acts which may come within its domain.[31]  It is justified on the basis of protection of State’s vital interests, particularly when the alien commits an offence prejudicial to the State, which is not punishable under the law of the country where he resides and extradition is refused.[32]

     Although the protective principle is used as a secondary basis for jurisdiction and in a narrower sense than the territorial or the nationality principle,[33]  it can easily be abused, particularly in order to undermine the jurisdiction of other

49

States.[34]  In practice however, this principle is applied in those cases where the acts of the person which take place abroad constitute crimes against the sovereignty of the State, such as plots to through a government, treason, espionage, forging a currency, economic crimes and breaking immigration laws and regulations.[35]  This principle is often used in treaties providing for multiple jurisdictional grounds with regard to specific crimes, such as the 1979 Hostage Convention and the 1970 Hague Aircraft Hijacking Convention.[36] (4)  The Universality Principle[37]                         The universality principle, in its broad sense, implies that a State can claim jurisdiction over certain crimes committed by any person anywhere in the world, without any required connection to territory, nationality or special State interest.[38]  Before the Second World War, such universal jurisdiction has been considered as contrary to International Law by the Common Law countries, except for acts regarded as crimes in all countries, and crimes against the international community as a whole such as piracy and slave trade.     After the Second World War, universal jurisdiction has been universally recognized over certain acts considered as international crimes.  International crimes are those crimes committed against the international community as a whole or in violation of International Law and punishable under it, such as war crimes, crimes against peace and crimes against humanity.[39]  In recent years, crimes such as Hijacking of aircraft, violation of human rights and terrorism, have been added to the list of international crimes.     Today under the universality principle, each State and every State has jurisdiction over any of the international crimes committed by anyone anywhere. 

Section 3:  Immunity from Jurisdiction[40]      The concept of jurisdiction is derived from the concept of sovereignty, and is connected with the principles of equality and non-interference in domestic affairs of other States.[41]  The grounds for jurisdiction are related to the duty of a State under International Law to respect the territorial integrity and political independence of other States.[42]  Immunity from jurisdiction is grounded on this duty, and constitutes derogation from the host State jurisdiction.     Under International Law, immunity from jurisdiction is granted to certain persons,

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namely States (sovereigns) and their diplomatic and consular representatives, and international organizations.   (1)  Sovereign Immunity [43]            In International Law, sovereign immunity refers to the legal rules and principles determining the conditions under which a State may claim exemption from the jurisdiction of another State.[44]  Sovereign immunity is a creation of customary International Law and derives from the principles of independence and equality of sovereign States; since States are independent and legally equal, no State may exercise jurisdiction over another State without its consent.[45]  It is a limitation imposed by International Law upon the sovereignty of a State. 

     Although rules of sovereign immunity form part of customary International Law, today they are incorporated either in international treaties, such as the 1972 European Convention on State Immunity,[46] or in national statutes of certain States, such as the 1976 U.S Foreign Sovereign Immunities Act[47] and the 1978 U.K State Immunities Act.[48]     Historically, the head of a State (a sovereign) was associated with the State.  Originally, both of them enjoyed under customary International Law absolute immunity, in all areas of their activities, from the jurisdiction of another State.  While the head of a State continues today to enjoy such absolute immunity, even for his private activities, a State nowadays enjoys only qualified (restrictive) immunity.  Under the qualified immunity, a State enjoys immunity only in respect of its governmental acts (acts jure imperii), not in respect of its commercial acts (acts jure gestionis).[49] 

     In practice, sovereign immunity arises on two levels.[50]  The first level concerns the immunity of a State from the jurisdiction of courts of another State; courts of a State cannot adjudicate a claim against a foreign State.  The second level concerns the immunity of a State from the execution of enforcement measures undertaken by courts of another State.     Sovereign immunity covers the head of a State as well as the State itself, its government, its departments, and its agencies.  It embraces the acts of these entities, their property and assets.  This immunity may, however, be voluntarily waived by a

51

State.[51]   A State may waive its immunity from jurisdiction and consequently submits itself to the jurisdiction of a foreign court. However, such submission (waiver of jurisdictional immunity), although gives the court of a State the competence to adjudicate and enter a judgment against a foreign State, it does not authorize the execution of the court’s decision against such State.  In case of execution, another waiver is needed, namely a waiver of immunity from execution.  Waiver must be express; however, implied waiver is accepted if indicated by the circumstances.

 (2)  Diplomatic Immunity[52]          The rules of diplomatic immunity are the most accepted and uncontroversial rules of International Law.  They are essential for the maintenance and efficient conduct of relations between States.  Prior to the 1961 Vienna Convention on Diplomatic Relations, diplomatic law, especially privileges and immunities were based upon custom as well as contained in bilateral treaties and national statutes.  Nowadays, most of the modern law of diplomatic immunity is contained in the 1961 Vienna Convention on Diplomatic Relations which both codified existing customary law and established others.[53]

     Under this convention, “a diplomatic agent” (the head of the mission and any member of the diplomatic staff of the mission) enjoys complete immunity from the criminal jurisdiction of the receiving State;[54] also, he enjoys immunity from its civil and administrative jurisdiction, except in the case of real action relates to private immovable property situated within the receiving State, action related to succession matters in which he is involved as a private person, and action related to professional or commercial activity, in the receiving State, outside his official functions.[55]  No measures of execution may be forced upon him, except in the above mentioned cases.

He cannot be obliged to give evidence as a witness.  His person is inviolable.[56]  He cannot be arrested or detained.  All appropriate steps should be taken by the receiving State to protect him and prevent any attack on his person, freedom and dignity.  He is exempt from all dues and taxes, except in certain cases.[57]  The premises of the mission and the private residence of a diplomatic agent as well as their archives, documents, papers, official correspondence and other property are inviolable.[58] 

52

           A diplomatic agent enjoys immunity from the moment he enters the territory of the receiving State on proceeding to take up his post or, if already in its territory, from the moment when his appointment is notified to the Ministry for Foreign Affairs.[59]  He also enjoys such immunity when passes through or is in the territory of a third State on proceeding to take up or to return to his post, or when returning to his own country.[60]     The immunity granted to a diplomatic agent is immunity from the jurisdiction of the receiving State and not from liability.[61]  He is not immune from the jurisdiction of the sending State.  Moreover, he can be sued in the receiving state after a reasonable time elapses from the ending of his mission.    The immunity of a diplomatic agent from jurisdiction of the receiving State may be waived by the sending State.[62]  The waiver must be express.  However, such waiver of immunity from jurisdiction does not imply waiver of immunity in respect of the execution of a judgment; in such case, a separate waiver is required.  Immunity may also be waived by the diplomatic agent himself, by submitting voluntarily to the jurisdiction of the court of the receiving State.[63]     Members of the family of a diplomatic agent, if they are not nationals of the receiving State, likewise enjoy the same immunity from jurisdiction.[64]  The same immunity, with certain exceptions, is enjoyed by members of the administrative and technical staff of the mission, together with members of their families forming part of their respective households, if they are not nationals or permanent residents of the receiving State.[65]  Members of the service staff who are not nationals or permanent residents of the receiving State enjoy immunity only in respect of acts performed in the course of their official duties.[66] (3)  Consular Immunity [67]           A consular officer, like a diplomatic agent, represents his State in the receiving State.  However, unlike a diplomatic agent, he is not concerned with political relations between the two States, but with a variety of administrative functions, such as issuing visas and passports, looking after the commercial interests of his State, and assisting the nationals of his State in distress.[68]  Thus, he is not granted the same degree of immunity from jurisdiction as a diplomatic agent.     Notably nowadays, many States combine its diplomatic and consular services.  Thus, a person who acts simultaneously as a diplomat and consul enjoys diplomatic immunity.     Under the 1963 Vienna Convention on the Consular Relations[69], a consular

53

officer (the head of the consular post and any person entrusted to exercise consular functions) is immune from an arrest or detention pending trial, except in the case of a grave crime and pursuant to a decision by the competent judicial authority.[70]  He is immune from imprisonment or any other restriction on his personal freedom save in execution of a final judicial decision.  If criminal proceedings are instituted against him, he must appear before the competent authorities.   The proceedings must be conducted in a manner that respects his official position and does not hamper the exercise of consular functions, and with the minimum delay.

     A consular officer is immune from the jurisdiction of the judicial or administrative authorities of the receiving State only in respect of acts performed in the exercise of consular functions.[71]  He is exempt from all dues and taxes, except in certain cases.[72]  In addition, the consular premises, archives and documents are inviolable.[73]     A consular officer enjoys the immunities from the moment he enters the territory of the receiving State on proceeding to take up his post or, if already in its territory, from the moment when he enters on his duties.[74]  The same immunities are enjoyed by members of the family of the consular officer from the date which he enjoys his immunities.[75]                 The immunities of a consular officer may be waived by the sending State.[76]  The waiver must be express.  However, the waiver of immunity from jurisdiction for the purposes of civil or administrative proceedings does not imply waiver of immunity from the execution of a judicial decisions; in such case, a separate waiver is required.  Immunity may also be waived by the  consular officer himself, by submitting voluntarily to the jurisdiction of the court of the receiving State.[77]

  (4)  Immunities of International Organizations[78]      It is uncertain which immunities and to what extent international organizations enjoy under customary International Law; the position of this law is far from clear.[79]   Actually, immunities are granted to international organizations by treaties, or by headquarters agreements concluded with the host State where the organization is seated.     The purpose of immunity granted to international organizations is purely functional. Immunity is regarded as functionally necessary for the fulfillment of their objectives.[80]   It is not a reflection of sovereignty, as it is in case of a State, except

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only indirectly when aiming to protect the interests of the member States of the organization.[81]     Probably the most important example of treaties providing immunities to international organizations is the 1946 General Conventions on the Privileges and Immunities of the United Nations,[82]  which sets out the immunities of the United Nations and its personnel. The United Nations enjoys complete immunity from all legal process.[83]  Its premises, assets, archives and documents are inviolable.[84]  It is exempt from direct taxes and customs duties.[85]  Its staff is exempt from income tax on their salaries.[86]     The U.N Secretary General and the Assistant Secretaries General enjoy diplomatic immunity.[87]  Other staff members enjoy limited immunities, such as immunity from legal process in respect of their official acts.[88]     Representatives of member States attending the United Nations meetings are granted almost the same immunities as diplomats, except their immunity from legal process applies only to their official acts.[89]     An example of treaties providing immunities to representatives of States in international organizations is the 1975 Vienna Convention on the Representatives of States in their Relations with International Organizations of a Universal Character.[90]  This treaty applies to representatives of States in any international organizations of a universal character, irrespective of whether or not there are diplomatic relations between the sending State and the host States.     Under this treaty, the representatives of States in universal international organizations enjoy similar immunities to those provided in the 1961 Vienna Convention on Diplomatic Relations.   They enjoy immunity from criminal jurisdiction, and immunity from civil and administrative jurisdiction in all cases, save for certain exceptions.  The mission premises, archives, documents and correspondence are inviolable. 

Chapter 8 International Recognition

      International community is a living entity in the sense that it is changeable.  The identity and number of States are by no means fixed and invariable.  History produces many changes.  Old States disappear or unite with other States to form a new State, or disintegrate and split into several new States.  Former colonies attain statehood.  Even in the case of existing State, a revolution or unconstitutional event may occur and the

55

status of new government becomes a matter of concern to other States, which formerly had relations with the displaced government.  These instances raise several problems for the international community. The most important problem is the question of recognition of the new State or the new government.  Each State has to decide whether t o recognize the new State or the new government.

     Recognition involves legal consequences both internally and internationally.   If an entity is recognized as a State, it will be entitled to rights and subjected to duties that would not be relevant otherwise, and it will enjoy privileges and immunities of a foreign State, before the national courts, which would not be allowed to other entities.     What is recognition?  Why and how is it granted?  What are the types and forms of recognition?  What are the legal consequences generated from recognition?     The answers to all these questions are dealt with in the following sections.

 Section 1:  Definition and Nature of Recognition      Recognition is a discretionary unilateral act exercised by the government of a State officially acknowledging the existence of another State or government or belligerency.[2] It is one of the most difficult subjects of International Law.  It is a complicating mixture of politics and laws both national and international.  It is difficult mainly for the following three reasons.(1)  Recognition is, as the practice of States shows, much more a question of politics than of law. The act of the recognizing State is conditioned principally by the necessity of protecting its own national interests, which lie in maintaining proper relations with the new State or the new government.  However, there is an irresistible tendency of the recognizing State to use legal principles as a convenient camouflage for political decisions.  For this reason, recognition is considered to be a political act with legal consequences.(2)  In form and in substance, recognition remains primarily a unilateral diplomatic act on the part of the recognizing State.  No collective procedure for granting recognition based on established legal principles has yet been evolved by the international community.(3) There are several distinct categories of recognition.  There are the recognition of a new State, a new government and belligerency.  In addition there are de jure, de facto, conditional, implied and express recognition.  Although the same principles may be applicable to some of these types, it is still that each of them is subject to different legal principles and entails different legal consequences.

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   Basically, there are two theories as to the nature, functions and effects of recognition, the constitutive theory and the declaratory theory.[3]  The constitutive theory considers that the act of recognition by other States creates a new State and grants it the international legal personality.[4] This implies that the new State is established as an international person by virtue of the will and consent of already existing States.   In case of a new government, it is the recognition that grants it the status at the international level.     The Constitutive theory is opposed by the declaratory theory.  According to the declaratory theory, recognition has no legal effects; statehood or the status of a new government exists as such prior to and independently of recognition.[5] The existence of a State or a new government is a question of pure fact.  The act of recognition is merely a formal acknowledgement of established facts.  When an entity satisfies the requirements of a State objectively, it is a State with all international rights and duties, and other States must treat it as such.     Historically, the constitutive theory has its merits.[6]  During the Nineteenth Century, International Law was regarded as applying mainly between States with European civilization. Other countries were admitted as States to this community only if they were recognized by those member States. Even today, recognition can sometimes have a constitutive effect, although State practice is not always consistent.  When the establishment of a new State or government is in violation of International Law, this State or government is often regarded as having no legal existence until it is recognized.     However, the prevailing view today is that recognition is declaratory and does not create a State.[7] This view was laid down in the Montevideo Convention on the Rights and Duties of States of 1933.  Article 3 of this Convention provides that “The political existence of the state is independent of recognition by the other states.  Even before recognition the state has the right to defend its integrity and independence”.

     Actually, the two theories are of little assistance in explaining recognition or determining the status of non-recognized entities in practice.[8]  In addition, the practical differences between these two theories are not significant.  Under the declaratory theory, the decision whether an entity satisfies the criteria of statehood is left to other States, and the granting formal recognition to another State, which is a unilateral act, is left to the political discretion of States.  On the other hand, the significance of the constitutive theory has diminished because of the obligation imposed on States to treat an entity that satisfies the criteria of statehood as a

57

state.  Moreover, the States practice regarding recognition shows that States follow a middle position between these two theories.      Section 2:  Types and Forms of Recognition                                  There are several distinct categories of recognition. There are recognition of a new State, recognition of a new government and recognition of belligerency.  In addition there are different entities to be recognized.   Recognition itself may take different forms.  Recognition may be de jure or de facto.   Recognition may be express or implied.  It may be conditional.

A)  Recognition of a State and of a Government[9]

        When a new State comes into existence, other States are confronted with the question whether or not to recognize it. Recognition implies a willingness of the recognizing State to deal with the new state as a member of the international community. To grant recognition to a new entity, the entity must satisfy the basic requirements of statehood, which have been discussed in the previous chapter.  The first example of State recognition in the history of nations was the recognition in 1648 by Spain of the United Netherlands.[10]     Recognition of a State defines its membership in the world community, and consequently supports its claim as an international person.  It allows the recognized State to exercise the rights and duties of a State under International Law.[11] Recognition of a new State automatically involves recognition of its government, although the latter may be recognized only de facto.

     

Recognition of a new government is quite different from the recognition of a new State,[12] although in principle most of the considerations whether legal or political apply equally to both types of recognition.  As far as a State is concerned, the satisfaction of basic requirements of statehood is examined by the recognizing State before granting its recognition to the new State.  Recognition of a new government requires its satisfaction of certain conditions such as effectiveness and independence.  Notably, the existence of an effective and independent government is the essence of statehood.  By recognizing a government, the recognizing State accepts

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to deal with this government as the governing authority of the State and grant it the legal consequences of such status in terms of privileges and immunities within its domestic legal system.  In both these types of recognition, we should not forget the great role played by political considerations in the decision whether or not to grant recognition.

     The granting or refusal of recognition of a government has no effect on the recognition of a State itself.  Recognition of a State affects its legal personality, whether creating or acknowledging it, while recognition of a government affects its status as the governing authority, not the State.  A subsequent government may not be recognized, even though the recognition of a State is permanent as regard to its existence and its status as a legal person under International Law.  If the government of a State is changed in accordance to constitutional processes, no problem of recognition arises as long as the new government is firmly in power and secures stability in the country.  In this case, recognition by other States is purely a matter of formality.  The problem of recognition of a new government arises in cases when changes occur as a result of an unconstitutional practice or a revolution.  The recognition of the revolutionary government is a serious problem and the decision thereon is made with great care.  On this matter, no definite legal principles are established and the practice of States is inconsistent and confused.  However, certain rules have been recognized to cover recognition of illegal changes in government.[13]  Such rules imply the acceptance of the realities of the transfer of power and suggest that once a new government effectively controls the country and that this seemed likely to continue, recognition should not be withheld.

 (B)  Recognition of Belligerency[14]

      Belligerency exists when a portion of the State’s territory and population is under the de facto control of insurgents seeking either to establish a separate State or to overthrow the existing government.  To be recognized as belligerents, the insurgents must have a political organization able to exercise such control and maintain some degree of popular support, and conduct themselves according to the laws of war.  Accordingly, recognition of belligerency is a formal acknowledgement by third-party States of the existence of a state of war between the State’s central government

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and a portion of that State.  This implies that the recognizing State recognizes that a revolt within another State has attained such a magnitude as to constitute in fact a state of war, entitling the revolutionists or insurgents to the benefit, and imposing upon them the obligations, of the laws of war.  Two conditions should exist before a third-party State grant belligerent recognition, the insurgency has progressed to a state of general war and the effects of this war have gone beyond the borders of the State to affect other States.  By this recognition, the insurrectionary movement is elevated to the status of a quasi-international person having certain rights and duties under International Law. This sort of international personality is both nonpermanent and particular.  It is nonpermanent, because the insurrection may fail.  It is particular, because it exists only for the recognizing States.          Recognition of belligerency was accorded during most of civil wars of the Nineteenth Century, such as the revolts of the Spanish-American colonies and the American Civil War, and during most of the wars of independence of the Twentieth Century.     To grant recognition of belligerency, the recognizing State is always dictated by the primary motive, which is to protect and promote its national interests.  The recognizing State may intend either to get the status of neutrality between the belligerent parties or to support the legitimacy of the insurrection.  (C)   De Jure and De Facto Recognition[15]      The practice of States draws a distinction between de jure and de facto recognition. This distinction usually arises in the case of governments since States can normally be recognized only de jure, although there have been few cases of recognizing States de facto. For example, Indonesia was recognized de facto by several States while it was fighting for independence against Netherlands during 1945-1949.[16]     De jure recognition means that according to the recognizing State the recognized State or government fulfils the requirements laid down by International Law.  De facto recognition means that in the opinion of the recognizing State, with all due reservations for the future, the recognized State or government provisionally and temporarily fulfils the above requirements in fact.  As such, de facto recognition is provisional and temporary and could be withdrawn at any future date, although it is usually followed by de jure recognition.  Notably, the terms de jure and de facto describe the government, not the act of recognition.   Choosing the type of recognition to be granted, the recognizing State is always occupied by political

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realities and considerations as well as its national interests.     De facto recognition of a government implies that there is a doubt as to the permanence and viability of the concerned government. De facto recognition involves a hesitant position by the recognizing State, an attitude of wait and see, which is usually followed by de jure recognition when the recognizing State accepts that the effective control exerted by the government in question is permanent and firmly established and there is no legal basis for withholding the de jure recognition.     De facto recognition may be a preface stage to the de jure recognition, particularly in cases of governments coming into power by unconstitutional processes.  In such a case, de facto recognition is a non-committal act whereby the recognizing State acknowledges that there is a de facto government possessing in fact the powers of sovereignty, but such possession may be illegal, unstable or nonpermanent.  

At a later stage when the need for reservations no longer exists because the permanence of the de facto government is completely assured, de jure recognition is formally granted.  For example, United Kingdom recognized the Soviet government first de facto in 1921 and later de jure in 1924.[17]  During the Spanish Civil War (1936-1939), United Kingdom granted recognition to the two rival parties, de jure recognition to the Republican government and de facto recognition to General Franco’s government that gradually took over the country and its recognition turned into de jure.[18] During 1988-1991, most States recognized the two rival governments in Lebanon de facto until the ending of the insurrection led by General Aoun, and then the government of Salim Al Huss was accorded de jure recognition.     When recognition is granted by an express statement, it should always be regarded as de jure recognition, unless the recognizing State provides otherwise.  When recognition is implied, there will often be uncertainty as to the intention of the recognizing State whether granting de jure or de facto recognition.     Choosing the type of recognition to be granted, the recognizing State is occupied mostly with political realities and considerations as well as own national interests, and to a lesser degree with legal considerations. A statement that a government is recognized as de facto may, on one hand, involve a purely political judgment, involving either a reluctant or cautious acceptance of an effective government, lawfully established according to International Law, or an unwarranted acceptance of it as a de jure government.  It may, on the other hand, be intended to be or to include a legal determination of the existence of an effective government, but with reservations as to its viability and permanence.  It may, of course, happen that the legal and

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political considerations for caution coincide.  The distinction between these two types of recognition is insubstantial, since it is a question of intention, not of a legal matter.  However, it is considered that de jure recognition is irrevocable while de facto recognition can be withdrawn.  Actually, in the political sense recognition of either type can always be withdrawn, while in the legal sense it cannot be unless a change of circumstances warrants such withdrawal.      Whatever the basis for the distinction between de jure and de facto recognition, the effects of the two types are mostly the same. Nevertheless, there are certain important differences between these two types, which are:[19] (a)        Only the de jure recognized State or government can claim to receive property locally situated in the territory of the recognizing State.(b)       Only the de jure recognized State or government can represent the old State for the purposes of State succession or with regard of espousing any claim of its national for injury done by the recognizing State in breach of International Law.(c)        The representatives of the de facto recognized state or government may not be entitled to full diplomatic immunities and privileges.      Whatever the type of recognition, once given may in certain circumstances be withdrawn.  Actually, this is more easily done with regard to de facto recognition than to de jure recognition, because of the nature of the former one, which is temporary.  De facto recognition is intended to be a preliminary acceptance of political realities and may be withdrawn in accordance with a change in political conditions.  When a de facto government loses its effective control over the country, the reason for recognition disappears and it may be withdrawn.  De jure recognition, on the other hand, because it is intended to be generally a definitive act, it is more difficult to be withdrawn.  When a government recognized de jure is overthrown, a new situation arises and the question of recognizing a new government will have to be faced.  In such instance, the withdrawal of recognition of the overthrown government is assumed; it does not have to be expressed. Withdrawal of recognition of one government without recognizing a successor is a possibility.  This approach, for example, was adopted by the United Kingdom and France with regard to Colombia in 1979.[20]     Withdrawal of recognition remains possible in other circumstances.  The loss of one of the required criteria of statehood will result in the withdrawal of recognition of a State.  Recognition of belligerency will naturally terminate with the end of the state of

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belligerency.     Because recognition is essentially a political act, no matter how circumscribed or conditioned by the law, a State has a discretionary power to determine whether a particular situation justifies a withdrawal of recognition and to take such action if it serves its national interests.     Notably, we must not confuse the withdrawal of recognition with the rupture in the diplomatic relations.  In the practice of States, the usual method of expressing disapproval with the actions of other governments is to break diplomatic relations, since this method does not entail the legal consequences and the problems that the withdrawal of recognition would produce.  (D)  Express and Implied Recognition[21]        Recognition is essentially a matter of intention.[22]  It is founded upon the will and intention of a State.[23]   It may be express or implied.[24]  The mode by which recognition is accomplished is of no special significance.  It is essential, however, that the act constituting recognition must give a clear indication of the intention either to deal with the new State as such, or to accept the new government as the effective government of the State and to maintain relation with it, or  to recognize in case of insurgents that they are entitled to belligerent rights. Express recognition indicates the acknowledgment of the recognized State by a formal declaration.  In the practice of States, this formal declaration may happen by either a formal announcement of recognition, a personal message from the head of a State or the minister of foreign affairs, a diplomatic note, or a treaty of recognition. 

     Recognition needs not to be express.  It may be implied in certain circumstances.[25]  There are circumstances in which it may be possible to declare that in acting in a certain manner, one State does by implication recognize another State or government. However, because of this possibility, States may make an express declaration to the effect that a particular action involving another State is by no means to be regarded as inferring any recognition.  This position, for example, was maintained by Arab States with regard to Israel.[26]     Implied recognition is recognition of a State or a government through actions other than official declarations or actions intended to grant recognition. The required actions for implied recognition must be unequivocal, leaving no doubt of the intention of the State performing them to recognize the State or government and to deal with it as such.  There is a variety of actions undertaken by a State in regard to an unrecognized

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State or government.  Some actions are conclusively regarded implying recognition, while others are not. Included in the first category are the official congratulatory statements upon independence, the formal establishment of diplomatic relations and the conclusion of a bilateral treaty.[27]  The actions that do not conclusively imply recognition are the participation in multilateral treaty, the membership in international institutions, the common participation in international conference, the maintenance of informal and unofficial contacts, the initiation of negotiations with an unrecognized state, and the making of claims against an unrecognized State.[28].

 (E)  Conditional Recognition[29]               The political character of recognition is manifested in what is termed conditional recognition.  Sometimes States are recognized subject to certain conditions, generally the fulfillment of certain obligations.  Examples of such conditions are: the respect and the guarantee of the rights of ethnics, national groups and minorities; the respect of religious freedoms; and the respect of the rule of law, democracy and human rights.[30]     The failure to fulfill the obligations does not annul the recognition, as once given it cannot be withdrawn.[31]  The status obtained by the recognized State from the act of recognition cannot be withdrawn.  The recognized State will be guilty of a breach of International Law, and this will allow the recognizing State to severe diplomatic relations as a form of sanction.[32]   However, the conditional recognition of a State or government in process of emerging is probably revocable. 

  Section 3:  Legal Effects of Recognition                   Although recognition is essentially a political act, it is one that entails important legal consequences.  Recognition involves legal effects both in the international level and in the domestic level.   If an entity is recognized as a State, it will be entitled to rights and subjected to duties that would not be relevant otherwise, and it will enjoy privileges and immunities of a foreign State before the national courts of other States, which would not be allowed to other entities.     What are the effects of recognition?  Are there effects for non-recognition?   The

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Answers to these two questions are dealt with in the following sub-sections. (A)  International effects of recognition[33]      Apart of all the theoretical arguments involving the constitutive and declaratory theories, it is accepted that recognition of a State or government is a legal acknowledgement of factual situations.[34]  Recognition entails the recognized State the enjoyment of rights and the subjecting to duties prescribed in International Law for States (these rights and duties are discussed in the previous chapter).     Recognition of a State by another State does not lead to any obligation to establish diplomatic relations or any other specific links between them.  Nor does the termination of diplomatic relations automatically lead to withdrawal of recognition. These remain a matter of political discretion. [35]     It should not be assumed that non-recognition of a State or government would deprive that entity rights and duties under International law.[36]  It is well established in International Law that the political existence of a State is independent of recognition by other States, and thus an unrecognized State must be deemed subject to the rules of International Law.  Unrecognized State is entitled to enjoy certain rights and be subject to many duties.  It has the rights to defend its integrity and independence, to provide for its conservation and prosperity and consequently to organize itself as it sees fit.  The exercise of these rights by unrecognized State has no other limitation than the exercise of the rights of other States according to International Law.  Moreover, unrecognized State is subject to most of the rules of International Law, such as those related to the law of wars, and is bound by its agreements.     Non-recognition, with its consequent absence of diplomatic relations, may affect the unrecognized State in asserting its rights against unrecognizing States, or before their national courts. However, non-recognition will not affect the existence of such rights, nor its duties, under International Law.[37]             (B)  Internal Effects of Recognition[38]      Recognition entails the recognized State the rights to enjoy privileges and immunities of a foreign State before the national courts, which would not be allowed to other entities.  However, because recognition is essentially a political act reserved to the executive branch of government, the judiciary branch must accept the discretion of the executive branch and give effect to its decisions.[39]  The national courts can only accept and enforce the legal consequences that flow from the act of recognition.  They

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can accept the rights of a foreign government to sue, to be granted immunities or to claim other rights of a governmental nature.  They can give effect to the legislative and executive acts of the recognized State.  In the case of non-recognition, national courts will not accept such rights.  In this context, recognition is constitutive, because the act of recognition itself creates the legal effects within the domestic jurisdiction of a State.[40]

Chapter 9 Diplomatic and Consular Law

       Rules regulating the various aspect of diplomatic relations are the result of centuries of States practice.  They constitute one of the earliest expressions of International Law. Whenever in history there have been independent States coexisting, special customs have developed on how the representatives of one State would be treated by other State.[1]     Traditionally, diplomatic relations have been conducted through ambassadors and

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their staffs.   However, with the growth of trade and commercial transactions the office of consul was established.     Today, diplomats and consuls perform useful functions in the host states.  They provide permanent presence in host States, pursue friendly relations between their States and the host States, and promote the various interests of their States in the host states.      Because of the important roles played by diplomats and consuls in   international relations, it is necessary to treat this subject in the following two sections.  Thus, section one is devoted to diplomatic mission, while section two is devoted to consular post.  Section 1:  Diplomatic Mission [2]       Today, all States are represented in foreign States by diplomatic representatives.  These diplomatic representations are of a permanent nature, although representatives are changeable.     The emergence of permanent as distinct from temporary diplomatic missions is dated back to the 17th Century.  Rules related to rights, duties, privileges and immunities of diplomatic representatives were developed through customs in the 18th Century.  In the early 19th Century, some common understandings on the rules were reached to at the Congress of Vienna of 1815.  Developments of diplomatic rules have continued since that date.  The new and the most extensive codification of the diplomatic law was achieved in 1961 by the conclusion of the Vienna Convention on Diplomatic Relations.[3]  This Convention both codified existing rules and established others.  It laid down rules related to classes of heads of a diplomatic mission, members of a mission, appointment and reception of the head of a mission, functions of a mission, the privileges and immunities of a mission and its members, the duties of the members of a mission, the duties of the receiving State, and the termination of the mission.  It provided that matters not regulated by the Convention continue to be governed by the rules of customary International Law.  In the following, all these rules are dealt with.

 A.  Members of a Mission and Classification of Heads of a Mission [4]      Under the 1961 Vienna Convention on Diplomatic Relations, members of the diplomatic mission are the following Art. 1 VCODR:

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(1)     The head of the mission:  The person who is charged by the sending State with the duty of acting in that capacity.(2)      Members of the diplomatic staff: The members who have diplomatic rank.(3)      Members of the administrative and technical staff:  The members who are employed in the administrative and technical service of the mission.(4)     Members of service staff:  The members who are employed in the domestic service of the mission.     The Convention divided Heads of diplomatic missions into three classes, Art.14 VCODR, namely: (1)     Ambassadors accredited to Heads of States.(2)     Special envoys and ministers accredited to Heads of States.(3)     Charges d’affaires accredited to Ministers for Foreign Affairs.     The class to which the head of a mission is assigned is a matter of agreement between the concerned States.  Except as concerns precedence and etiquette, there is no differentiation between heads of a mission by reason of their class.  However, heads of missions are to take precedence in their respective classes in the order of the date and time of taking up their functions. B.  Appointment of Heads and Diplomatic Members of the Missions Art. 8 VCODR      Under the Convention, the appointment of a diplomatic agent (the head of the diplomatic mission or any member of the diplomatic staff) is subject to the agreement of the receiving States which has the right to refuse the appointment of any particular person without being obliged to give reasons.  Because of the possibility of refusing the proposed person, it is the practice of States that the sending State usually notifies the receiving State of the name of the person proposed to be appointed a diplomatic agent.  When the receiving State gives its consent to the proposed person, then the sending State can proceed with the formal appointment of the diplomat and accredit him.   Accreditation is done by furnishing the head of the mission or any member of the diplomatic staff with certain official papers known as “letter of credence” or credentials.  The credentials of the head of a mission are presented to the Head of the receiving State in a ceremonial reception.

     It is still, however, that the receiving state can at any time without obliged to explain its decision to notify the sending State that a particular diplomat is persona non grata (Latin: an unwelcome person. A diplomat who is no longer welcome

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to the government to which he is accredited Article 9 VCODR); in such case, he should be recalled and his functions should be terminated.  C.  Functions of the Diplomatic Mission Art. 3 VCODR      The functions of a diplomatic mission as stated by the Convention consist among other things of: (1)  representing the sending State in the receiving State;(2)  protecting in the receiving State the interests of the sending state and its nationals, within the limits permitted by International Law;(3)  negotiating with the Government of the receiving State;(4)  ascertaining by all lawful means conditions and developments in the receiving State, and reporting thereon to the Government of the sending State;(5)  promoting friendly relations between the sending State and the receiving State, and developing their economic, cultural and scientific relations.         In addition to these functions, the diplomatic mission can perform consular functions since nothing in the Convention prevents it from performing such functions.  D.  Privileges and Immunities of a Diplomatic Agent Art. 31 VCODR [7]          The Convention grants the head of the diplomatic mission and members of the diplomatic staff of the mission as well as members of their families certain privileges and immunities from jurisdiction of the receiving State.  It has been the practice that an ambassador to a certain State submits to the Ministry for Foreign Affairs of that State a list containing the names of members of the diplomatic mission with their positions, ranks and functions, and the names of persons who should be granted full or limited immunity.

     The most important privileges and immunities granted to a diplomatic agent (the head of the mission and members of diplomatic staff) are: (1)    A complete immunity from the criminal jurisdiction of the receiving State;(2) Immunity from the civil and administrative jurisdiction of the receiving state, except in the case of:a) a real action related to private immovable property situated in the territory of the receiving state, unless he holds it on behalf of the sending State for the purpose of the mission.

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b). an action related to succession in which he is involved as executor, administrator, heir or legatee (a person or organization receiving a gift of an object or money under the terms of the will of a person who has died). as a private person and not on behalf of the sending State;c). an action related to any professional or commercial activity exercised by him in the receiving State outside his official functions.(3)    The inviolability of his person.(4)    Exemption from all dues and taxes, personal or real, national, regional or municipal in the receiving state, except indirect taxes, taxes and dues on private immovable, dues on inheritance, dues and taxes on private income, and charges levied for specific services rendered;(5)    Freedom of communication for official purposes;(6)    The right to move freely in the territory of the receiving State.(7)    The inviolability of his private residence.(8)    The inviolability of his papers, correspondence and property      The above privileges and immunities are enjoyed by a diplomatic agent from the moment he enters the territory of the receiving State on proceeding to take up his post or, if already in its territory, from the moment when his appointment is notified to the Ministry for Foreign Affairs.  He also enjoys such privileges and immunities when passes through or is in the territory of a third State on proceeding to take up or to return to his post or when returning to his own country.     The immunity from jurisdiction granted to a diplomatic agent is immunity from the jurisdiction of the receiving State and not from liability.  He is not immune from the jurisdiction of the sending State.  Moreover, he can be sued in the receiving state after a reasonable time elapses from the ending of his mission.

    The immunity of a diplomatic agent from jurisdiction of the receiving State may be waived by the sending State.  The waiver must be express.  However, such waiver of immunity from jurisdiction does not imply waiver of immunity in respect of the execution of a judgment; in such case, a separate waiver is required.  Immunity may also be waived by the diplomatic agent himself, by submitting voluntarily to the jurisdiction of the court of the receiving State.     Members of the family of a diplomatic agent, if they are not nationals of the receiving State, likewise enjoy the same privileges and immunities.  The same

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privileges and immunities, with certain exceptions, is enjoyed by members of the administrative and technical staff of the mission, together with members of their families forming part of their respective households, if they are not nationals or permanent residents of the receiving State.  Members of the service staff who are not nationals or permanent residents of the receiving State enjoy immunity from jurisdiction only in respect of acts performed in the course of their official duties.      As regard the mission itself, the Convention makes its premises, achieves, documents, correspondence and diplomatic bag inviolable. Moreover, it grants the premises of the mission, their furniture and other property thereon, and the means of transport of the mission the immunity from search, requisition, attachment or execution.  The premises of the mission are also exempt from all national, regional or municipal dues and taxes, other than such as represent payment for specific services rendered. E.  Termination of a Diplomatic Mission or of the Functions of a Diplomatic      Agent Art. 43 VCDR.      A diplomatic mission or the functions of a diplomatic agent may be terminated permanently or temporary by various means and for various reasons, some are stated in the Convention and others are established by States practice.  Among these means and reasons are the following: (1)       Breaking off the diplomatic relations between the sending and the receiving States because of a war or any other reason.(2)       A recall of the diplomatic agent by his sending State upon its initiative, or at the request of the receiving State.(3)       A notification by the sending State to the receiving State that the functions of the mission or the diplomatic agent has come to its end.

(4)       A notification by the receiving State that the diplomatic agent is a persona non grata.(5)       Resignation of the diplomatic agent.(6)       Death of the diplomatic agent.

 Section 2:  Consular Post        The institution of consular post is much older than that of diplomatic mission.  The

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modern system of consular post is dated back to the 16th Century.  The 1963 Vienna Convention on Consular Relations is the law governing consular representation.[10]  A consular officer (any person, including the head of the consular post, entrusted with the capacity to exercise consular functions) like a diplomatic agent, represents his State in the receiving State.  However, unlike a diplomatic agent, he is not concerned with political relations between the two States, but with a variety of administrative functions, such as issuing visas and passports, looking after the commercial interests of his State, and assisting the nationals of his State in distress.

     In the following, the rules governing consular relations, namely members of the consular post, classification of the head of the post, the appointment of consular officers, functions of the consular post, privileges and immunities of consular officers, and the termination of post, are dealt with.  A.  Members of the Consular Post and Classification of the Heads of the Post  [11]      The members of the consular post as stated by the 1963 Vienna Convention are: (1)     The head of the post:  The person charged by the sending State with the duty of acting in that capacity.(2)     Consular officers, other than the head of the consular post:  Persons entrusted to exercise consular functions.(3)     Consular employees: Persons employed in the administrative and technical service of a consular post.(4)     Members of the service staff: Persons employed in the domestic service of the consular post.(5)     Members of the private staff:  Persons employed exclusively on the private service of members of the consular post.

      The heads of a consular post are divided into four classes, namely: (1)     Consuls-General.(2)     Consuls.(3)     Vice-Consuls.(4)     Consular agents.      The class to which a head of a consular post is assigned is a matter of agreement

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between the concerned states.

 B.  Appointment of a Head of the Consular Post [12]      The head of a consular post is appointed by the sending State and is admitted to exercise his functions by the receiving State.  The sending State normally notify the appointment of a consul to the receiving State which has the right either to issue an “exequatur” or refuse to issue it without obliged to give reasons.  The exequatur is a written official recognition and authorization of the consul.  If the receiving State has no objection against the appointment, the exequatur is issued.  Normally, a consul does not take his post until receiving an exequatur.  If subsequently, an objection is raised, the receiving State may notify the appointing State that the consul is no longer acceptable.  Then the appointing State must recall him, if it does not, the receiving State may withdraw the exequatur. Furthermore, a receiving State may notify the sending State that any member of the consular post is not acceptable. C.  Functions of a Consular Post [13]      Consular post is different from diplomatic mission in its functions.  While diplomatic mission is concerned with political relations between the two States, the consular post exercises a variety of administrative functions. Furthermore, while there is only one diplomatic mission in a State, there can be more than one consulate in one State.  

The major functions of consular posts are: (1)  Protecting the interests of the sending State and its nationals in the receiving State.(2)  Furthering the development of commercial, economic, cultural and scientific relations between the sending State and the receiving State.(3) Promoting friendly relations between the sending State and the receiving State.(4) Reporting to the sending State on the conditions and developments of the commercial, economic, cultural and scientific life of the receiving State, and giving such information to interested persons.

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(5) Issuing passports and travel documents to nationals of the sending State, and giving visas to persons wishing to travel to that State.(6) Helping and assisting nationals of the sending State, safeguarding their interests in certain cases, and representing or arranging for their representation before the courts and other authorities of the receiving State.(7) Transmitting judicial and extra-judicial documents to the receiving State.(8) Exercising a supervision and inspection powers over vessels and aircrafts having the nationality of the sending State, and over the crews of these vessels and aircrafts. (9) Acting as notary and civil registrar, and performing certain functions of administrative nature.         A consular post can perform other functions entrusted to it by the sending State which are not prohibited by the laws and regulations of the receiving State, not objected by the receiving State, or referred to in the international agreements in force between the sending state and the receiving State.

 D.  Privileges and Immunities of Consular Officers [14]     Nowadays, many States combine its diplomatic and consular services together.  Thus, a person who acts simultaneously as a diplomatic agent and a consular officer enjoys the diplomatic privileges and immunities under the 1961 Vienna Convention on Diplomatic Relations.  If the consular functions are exercised by the consular post, then the consular officer enjoys the consular privileges and immunities under the 1963 Vienna Convention on the Consular Relations.         Under the 1963 Vienna Convention on the Consular Relations, consular posts, members of a consular post (consular officers and employees), members of their families and members of their private staff enjoy certain privileges and immunities.  These privileges and immunities are less than what diplomatic mission and diplomatic agents are entitled to.  The most important privileges and immunities are the following: (1)          A consular officer (the head of the consular post and any person entrusted to exercise consular functions) is immune from an arrest or detention pending trial, except in the case of a grave crime and pursuant to a decision by the competent judicial authority.  He is immune from imprisonment or any other restrictions on his personal freedom save in execution of a final judicial decision.  If criminal proceedings are instituted against him, he must appear before the competent

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authorities.   The proceedings must be conducted in a manner that respects his official position and does not hamper the exercise of consular functions, and with the minimum delay.(2)          A consular officer and a consular employee (any person employed in the administrative or technical service of the consular post) are immune from the jurisdiction of the judicial or administrative authorities of the receiving State only in respect of acts performed in exercise of consular functions.  However, they do not enjoy such immunity in respect of a civil action either:i.       Arising out of a contract concluded by them not as agents of the sending State; orii.      Brought by third party for damages arising from an accident in the receiving State caused by vehicle, vessels or aircraft.(3)          A consular officer and a consular employee and members of their families forming part of their households are exempt from all dues and taxes, except on certain specified cases.(4)          A member of the consular post (the head of the post, any person entrusted to exercise consular functions, any person employed in administrative or technical service of the post and in the domestic service of the post) is under no obligation to give evidence concerning matters connected with the exercise of his functions or to produce official correspondence and documents related thereto.  He is also entitled to decline to give evidence as expert witness with regard to the law of the sending state.(5)          A member of the consular post enjoys the freedom of communication for official purposes.(6)          A member of the consular post enjoys the right to move freely in the territory of the receiving State.(7)          The archives, documents, official correspondence and consular bag are inviolable at any time and whenever they may be.

(8)          The premises of the consular post and the private residences of members of the consular post are inviolable.  They are, also, exempt from all taxes and dues other than such as represent payment for specific services.       The above privileges and immunities are enjoyed by the member of the consular post from the moment he enters the territory of the receiving State on proceeding to take up his post or, if already in its territory, from the moment when he enters on his duties.  The same privileges and immunities are enjoyed by members of the families of the members of the consular post.

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     The privileges and immunities of the consular post may be waived by the sending State.  The waiver must be express and be communicated to the receiving State in writing.  However, the waiver of immunity from jurisdiction for the purposes of civil or administrative proceedings does not imply waiver of immunity from the execution of a judicial decisions; in such case, a separate waiver is required.  Immunity may also be waived by the member of the consular post himself, by submitting voluntarily to the jurisdiction of the court of the receiving State.

  E.  Termination of a Consular Functions [15]      The consular functions may be terminated by various ways and reasons.  Among these ways and reasons are the following: (1)      A recall of the member of the consular post by his appointing State upon its initiative, or at the request of the receiving State.(2)      A notification by the appointing State to the receiving State that the functions of the post or any of its members are terminated.(3)      The withdrawal of the exequatur by the receiving State.(4)      Resignation of the member of the consular post.(5)      Death of the member of the consular post.(6)      The breaking off relations between the sending and receiving States, such as in case of a war.

Chapter 10 State Responsibility

     State responsibility is one of the fundamental principles of International Law.  It arises out of the international legal system and the principles of State sovereignty and equality of States. It implies that if a State commits an internationally wrongful (unlawful) act against another State, it will be internationally responsible for reparation.[2]  

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     The subject of State responsibility has been the most difficult question of the codification work of the International Law Commission (ILC).[3]  The ILC has been working extensively on this subject.  In 1975, the ILC initiated its work on the draft articles concerning State responsibility.  The Articles on the State Responsibility was finally adopted by the ILC on August 9, 2001.[4]  The General Assembly adopted the resolution 83/56 of December 12, 2001, taking note of “the International Law Commission’s Articles on the State Responsibility” and recommending it to the member States of the United Nations.  The ILC Articles, in addition to the State practice and the decisions of international tribunals (the case law) on the subject, constitute the international law of State responsibility.                The law of State responsibility is concerned with the nature of the State responsibility, the legal consequences resulted from, and the implementation of such responsibility. Section 1:  The Basis and Nature of State Responsibility      State responsibility is founded on three basic elements.[5]  The first element is the existence of an international legal obligation in force between the concerned States.  The second is the occurrence of a wrongful act or the omission of an act in violation of such an obligation, which is imputable to the State.  The third is that loss or damage has resulted from such wrongful act or omission.  These three elements are the requirements of establishing the responsibility of the State, which have been made in a number of leading international legal cases and reiterated by the ILC “Articles”.[6]  The “Articles” provides that every internationally wrongful act (a delict) of a State entails responsibility.[7]  It defines internationally wrongful act as a conduct consisting of an action or omission attributable to the State under International Law and constitutes a breach of an international obligation of the State.[8]  A breach of an international obligation is defined as an act which is not in conformity with what is required of the State by that obligation, regardless of its origin or character.[9]     Responsibility is the necessary corollary of a right.  All rights of an international character involve international responsibility.     International Law does not distinguish between contractual (conventional) and tortious responsibility. International responsibility relates both to breaches of treaty and to other breaches of legal duty.[10]  Any violation by a State of any obligation

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of whatever origin or character gives rise to State responsibility and consequently to the duty of reparation.  Reparation therefore is the indispensable complement of a failure of a State to apply any of its obligations.     State responsibility only arises when the act or omission which constitutes a breach of legal obligation is imputable (attributable) to a State.[11]  It may be founded on “fault” or “no fault” concept.  Notably, it is important to mention here that a State is responsible for wrongful acts which constitute international delicts, not international crimes.  Because of the controversy concerning State responsibility for international crimes, the ILC Articles does not mention international crimes.  However, the ILC Draft Articles made a distinction between international crimes and international delicts. The Draft Articles provided that an international wrongful act resulting from the breach of an international obligation which was essential for the protection of fundamental interests of the international community and which was recognized as a crime by that community constituted an international crime; examples of such international crimes were aggression, colonial domination, slavery, genocide, apartheid and massive pollution of the atmosphere. [12]  All other international wrongful acts constituted international delicts.

     While it is apparent that a State is responsible for international delicts, it is not clear that it is responsible for international crimes.  The question of State criminal responsibility has been highly controversial.[13]  Some have argued that the concept is of no legal value and cannot be justified.[14]  Others have argued that since 1945 the attitude towards certain crimes committed by State has altered so as to bring them within the scope of International Law.  They have pointed to three specific changes that have occurred since 1945 to justify States responsibility for international crimes.[15]  The first change has been the development of the concept of peremptory norms of International Law (jus cogens) as a set of principles from which no derogation is allowed.  The second change is the establishment of individual criminal responsibility directly under International Law.  Finally, the Charter of the United Nations and its provisions concerning the enforcement action which may be taken against a State in case of committing a threat to or breaches of the peace or act of aggression.  In the light of these changes, the ILC, in its Draft Articles, adopted the approach of including international crimes by States within the scope of International Law.  However, because of the

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controversy concerning this question, the ILC omitted any mention of international crimes of States in its Articles as finally approved.  The “Articles” provides that States are under a duty to co-operate to bring an end, through lawful means, any serious breach by a State of an obligation arising under a peremptory norm of International law and not to recognize as lawful any such situation.[16]    

 A.  The Question of “Immutability”       A State is responsible (liable) only for its own acts or omissions.  A State is identified with its “government” which includes the executive, the legislature and the judiciary, and includes central authorities as well as local authorities.[17]

     It is established by the case law that a State is liable for the conducts of any of its organs.  This established rule is reiterated by the ILC “Articles”.  The ILC “Articles” provides that the conduct of any State organ (including any person or entity) having that status under the internal law of that State, whether that organ belongs to the constituent, legislative, executive, judicial or other authority, whether its functions are of an international or an internal character, and whether it holds a superior or a subordinate position in the organization of the State, shall be considered as an act of the State concerned under International Law, provided that organ was acting in that capacity in the case in question.[18]   

The conduct of an organ of a territorial governmental entity within a State shall also be considered as an act of that State under International law, provided that organ was acting in that capacity in the case in question.[19]  The conduct of an organ of an entity which is not part of the formal structure of the State or the territorial governmental entity, but which is empowered by the internal law of that state to exercise elements of governmental authorities, shall also be considered as an act of the State under International Law, provided that organ was acting in that capacity in the case in question.[20]

     It is also established that a State is liable for the acts of its officials if those acts are imputable (attributable) to the State. This rule depends on the link that exists between the State and the person or persons committing the wrongful act or omission.  The State as a moral legal entity, in reality acts through authorized officials.  It is not liable under International Law for all acts of its officials; it is

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liable only for acts of its officials that are imputable to it.  Imputability is a legal notion which assimilates the acts or omissions of the State officials to the State itself and which renders the State liable for damages to persons or properties resulting from such acts.[21]

     The question of “immutability”, however, creates problems when officials exceed or disobey their instructions.  Because the evading of liability by a State in such a case will be unjust, it is established that a State is liable for the acts of its officials, even when they exceed or disobey their instructions, if those officials are acting with “apparent authority” or if they are abusing “powers” or “facilities” placed at their disposal by the State.[22]  The ILC “Articles” reiterates such a rule by providing that the conduct of any organ of a State, having acted in that capacity, shall be considered as an act of the State under International Law even if such organ exceeded its competence according to internal law or disobeyed instructions concerning its authority.[23]

     With regard of wrongful acts committed by private persons, in principle, a State is not responsible for such acts.  However, it is established by case law and reaffirmed by the ILC Articles that a State is responsible for acts of private persons if those persons are acting on behalf of that state, on its instructions, under its control, or exercising elements of governmental authority in the absence of governmental officials and under circumstances which justify them in assuming such authority.[24]  It is also responsible for acts of private persons if such acts are accompanied by some act or omission on part of the State, for which it is liable.  Such act or omission by the State may take one of the following forms: encouraging the person to perform such act, failing to take reasonable care to prevent the person from performing such act, failure to punish the person, obtaining some benefit from the act of the person, or express ratification of the person’s act.[25]     With regard of actions of rioters or rebels causing loss or damage to a foreign State or its nationals, the general principle is that the State is not liable for such actions if it has acted in good faith and without negligence.[26]  However, in such a case, the State is under a duty to show due diligence.  Nevertheless, when the rebellion movement succeeds in establishing the new government of a State or a new State in part of the territory of the pre-existing State, it will be held responsible for

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its activities prior to its assumption of authority; this rule is reaffirmed by the ILC Articles.[27]   

 B.  The Question of “Fault”                      There are two theories used as foundations for State responsibility: the “risk” theory and the “fault” theory.[28]  The “risk” theory is based upon the principle of objective responsibility which maintains that the liability of the State is strict.  Once a wrongful act causing damage has been committed by a State official or organ, that State will be responsible under International Law to the injured State irrespective of its intention.  In contrast, the “fault” theory is based upon the principle of subjective responsibility which requires the establishment of an element of intention, fault or negligence on the part of the State official or organ before rendering the State liable for any damage.     There is no agreement in the International Law on the question of the basis of State responsibility.  The relevant cases and the opinions of legal scholars are divided on this question.  However, the majority of cases and opinions tend towards the “risk” theory of responsibility.[29]

Section 2:  Legal Consequences of State Responsibility                           A State is responsible for its international wrongful act. This responsibility entails certain legal consequences on that State.  The first consequence is the cessation of the wrongful act, and the second is the reparation.

A.  Cessation of the Wrongful Act         The first legal consequence of State responsibility under International law is that the wrongdoing State is obliged to cease the wrongful act, if it is continuing, and to offer appropriate assurances and guarantees on non- repetition.[30] B.  Reparation        The second legal consequence resulting from State responsibility for international wrongful act is that the wrongdoing state is under a duty to remedy its acts.  The injured State is entitled for full reparation in form of restitution in kind, compensation and satisfaction, either singly or in combination.[31]  The wrongdoing State cannot employ its internal law to avoid providing full reparation.     Restitution in kind means that the wrongdoing State has to re-establish the

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situation that existed before the committing of the wrongful act.  It can be provided if it is not materially impossible, not involving breach of an obligation arising from a peremptory norm of general International Law, not involving a burden out of all proportion to the benefit which the injured State would gain from obtaining restitution in kind instead of compensation, or not seriously jeopardize the political independence or economic stability of the wrongdoing state.[32]     If restitution in kind is not available, compensation for the damage caused must be paid.[33]  Monetary compensation covers any financially assessable damage suffered by the injured state, and may include interest, and may include, in certain circumstances, loss of profits.[34]  It may be paid for both material and non-material (moral) damage.[35]

     Satisfaction is the third form of reparation.  It is a remedy which is appropriate in cases of moral damage and non-monetary compensation.  It may take the forms of an official apology, a nominal damage, the punishment of the guilty officials or the acknowledgement of the wrongful character of an act.[36] Section 3:  The Implementation of State Responsibility           A State is entitled to invoke the responsibility of another State if the obligation breached is owed to it individually or to a group of States, including it, or to the international community as a whole.[37]  A State other than an injured State may invoke the responsibility of another State if either the obligation is owned to a group of States including it, and is established for the protection of a collective interest of the group, or the obligation breached is owed to the international community as a whole.[38]  In such cases, a State may demand the cessation of the wrongful act, assurances and guarantees of non-repetition, satisfaction, as well as reparation.  These doctrines are reaffirmed in the ILC Articles.    Where several States are injured by the same wrongful act, each State may separately invoke responsibility.[39] Where several states are responsible, the responsibility of each may be invoked.[40]     However, responsibility cannot be invoked if the injured State has validly waived the claim, or it has caused, by reason of its conducts, in the lapse of the claim.[41]  Any waiver needs to be explicit and clear.       An injured State may seek to settle its claim peacefully through any of the peaceful means, or it may take countermeasures against the wrongdoing State.  In a

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case of an injury affecting its national, the State may provide him with diplomatic protection.     A State may present an international claim against the wrongdoing State before an international tribunal.  However, a State has to establish its qualifications for bringing the claim and the validity of the claim itself before the merits of the claim can be addressed. Where a claim is brought before an international tribunal, objections may be raised against its admissibility.  The first is an objection to the jurisdiction of the tribunal; if successful, it will stop all proceedings in the case.  Other objections are the nationality of the claimant, the non-exhaustion of local remedies, and the undue delay in presenting the claim. A.  Diplomatic Protection and Nationality of Claims     The doctrine of state responsibility with regard to injuries to nationals is based upon the attribution to one State of the wrongful act or the omission and the capacity of the other State to adopt the claim of its injured national.[42]  Nationality is the link between the individual and his State as regards particular benefits and obligations.  It is also the link between the individual and the benefits of International law.  Although International Law is now tending to grant certain rights to individuals apart of the intervention of the State, the basic rule remains that in a State-oriented world, it is only through the State the individual may obtain the full range of benefits available under International Law, and nationality is the key.[43]

     Although a State is under a duty to protect its nationals, it is not under a duty to provide them with diplomatic protection.[44] A State may provide diplomatic protection to its nationals.  Diplomatic protection consists of resorting to diplomatic action or other means of peaceful settlement by a State adopting in its own rights the cause of its nationals in respect of an injury to any of its national arising from an internationally wrongful act of another State.  Such diplomatic protection is not a right of the national concerned, but a right of the State which may or may not choose to exercise.[45]     The diplomatic protection is the result of the historical reluctance to permit individuals the right in International Law to bring claims against foreign States, for reasons related to the principles of state sovereignty and non-intervention in domestic affairs of a State.  The exercise of diplomatic protection is not regarded as intervention contrary to International Law.[46]  A State may take up the claim of its

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national against another state before an international tribunal.  Once a State does this, the claim then becomes that of the state, not of the injured individuals.  Thus, the State may waive its claim, but the individual cannot.                In International law, the normal and important function of nationality is to establish the legal interest of a State when its national suffers injury or loss caused by another State.  The subject matter of the claim is the individual and his property, and the claim is that of the State.  If the plaintiff State cannot establish the nationality of the claim, the claim will be inadmissible because of the absence of the legal interest of the claimant.  The “nationality of the claim” principle is well established in customary International Law.  However, there are certain exceptions to the principle of the nationality of the claim.  Examples of such exceptions are the right of protection of an alien seaman on a ship flying the flag of the protecting State, an alien in the service of the armed forces of a claimant State, and stateless person or refuge who at the dates of the injury and presentation of the claim is lawfully and habitually resident in that state.     The nationality must exist at the date of the injury, and should continue until at least the date of the formal presentation of the claim.[47]  Where an individual possesses dual or multiple nationalities, any State of which he is a national may adopt his claim against a third State.  Where a case involves more than one State of nationality, the State with which he has the more effective connection may adopt his claim against the other State.  As far as a moral legal person (such as a corporation) is concerned, there must be some tangible link between it and the State adopting its claim.[48]

 B.  The Exhaustion of Local Remedies[49]           It is established in the customary International Law that before international proceedings are instituted or claims or representations made, the remedies provided by the local State should have been exhausted.[50]   This rule implies that an injured individual must exhaust remedies in the courts of the defendant State before an international claim can be brought on his behalf.  It is a rule which is justified by political and practical considerations, not by any logical necessity deriving from the International Law.[51]  Among the political and practical considerations suggested

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to justify such rule are the avoidance of resorting to diplomatic protection in small and insignificant claims, and the greater suitability and convenience of local courts as forums for claims of individuals.[52]  This rule is reaffirmed in the ILC Articles which provides that the responsibility of a State may not be invoked if the claim is one to which the rule of exhaustion of local remedies applies and any available and effective local remedy has not been exhausted.[53]  The exhaustion of local remedies rule does not apply where one State has been guilty of a direct breach of International Law causing direct injury to another State.[54]  It applies to cases of diplomatic protection where a State claims injury to its nationals, and when effective remedies are available in the wrongdoing State.  A claim will not be admissible in the International Law unless the natural or legal foreign person concerned has exhausted the legal effective remedies available to him locally in the defendant State.                                 C.  Unreasonable Delay and Improper Activities of the Injured National                      A claim by a State against another State will not be admissible if it is presented after an unreasonable delay by the claimant State.[55] It may be inadmissible if the injured national has suffered injury as a result of his improper activities.  However, in such a case, the injury suffered by the national must be roughly proportional to his improper activities.[56] D.  Resorting to Countermeasures                                                                                           An injured State may seek to settle its claim peacefully through any of the peaceful means, or it may take countermeasures against the wrongdoing State.[57]  Countermeasures are acts of retaliation which are traditionally known as “reprisal”.  They may be in a form non-compliance of the injured State with its legal obligations towards the wrongdoing State, or unilateral coercive actions taken by the injured State against the wrongdoing State.   Such measures are a type of self help utilized in order to induce the wrongdoing State to discontinue its wrongful act and to provide reparation.     Today, there are certain legal limits to countermeasures.  The most important limit is the prohibition of the armed retaliations because of the general prohibition of the use of force provided in Article 2(4) of the Charter of the United

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Nations.  Countermeasures have to be proportional to the wrongful act.  They must not violate basic human rights or the peremptory norms of International Law.

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Chapter 11The Law of Treaties

       A treaty is a written international agreement concluded between States or other persons of International Law and governed by International Law, whether embodied in a single instrument or in two or more related instruments and whatever its particular designation.  In English, the term ‘treaty” is used as a generic term embracing all kinds of international agreements in written form.  In addition to the term “treaty”, many other terms are used, such as “accord”, “act”, “arrangement”, “charter”, “covenant”, “convention”, “declaration”, “general act”, “pact”, “protocol”, “statute”, as well as the term “agreement” itself.  Whatever the appellation of the agreement, it does not affect its validity under International Law.

     Treaties can be traced back as far as the early-recorded history of Mankind.  Evidence for their existence has been found throughout the history. Treaties have been the major legal instruments for regulating relations between States.  States concluded treaties in every conceivable subject.  Ten of thousands treaties have been registered with the United Nations since 1946.  Until 1980, treaties had been governed by international customary law.  In 1969, the Vienna Convention on the Law of Treaties was signed, codifying and developing existing customary rules; it came into force in 1980.

   The 1969 Vienna Convention on the Law of Treaties defines “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.”  It further provides that it “does not apply to international agreements concluded between States and other subjects of international law or between such other subjects of international law, or to international agreements not in written form”.  These provisions exclude agreements between states which are governed by other than International Law, agreements between States and international organizations or between international organizations, and oral agreements.  The reason for the exclusion of these types of international agreements is to avoid complication and complexity if they are included in a single convention with written agreements between States, since the

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rules governing them differ in certain aspects from the rules governing written agreements between States.   A special convention applicable to agreements between states and international organizations, or between international organizations, namely “the Convention on the Law of Treaties between States and International Organizations or between International Organizations”, was signed in 1986.  However, this Convention has not yet entered into force.    The following sections are devoted to the rules applicable to the written agreements between States as provided by the 1969 Vienna Convention on the Law of Treaties.   However, the rules provided by this Convention are not inclusive; other rules existed under customary international law continue to govern questions not regulated by the Convention.

 Section 1:  Conclusion of Treaties Art. 2 VCLT              Treaties may be concluded by States in any manner they wish.  There are no obligatory prescribed forms or procedures to be followed.  Negotiating, formulating, signing and adopting a treaty are subject to the intention and consent of the contracting States. However, the 1969 Convention on the Law of Treaties provides general rules applicable to the conclusion of treaties, rules regarding the capacity and the competent persons to conclude treaties, the adoption and authentication of the text of treaties, and the adoption of treaties.

        A.  The Capacity to Conclude Treaties Art. 6(s)      Under the Convention, every State possesses capacity to conclude treaties.  Since States are represented by persons, the Convention provides rules to ensure that persons representing States have the power to adopt or authenticate the text of a treaty, or to express the consent of the State bound by a treaty.  Such persons must produce what is known as “full powers”.  “Full powers” refers to the document issued by the competent authority of the concerned State certifying that the persons represent it.  This requirement is necessary to ensure the States parties to the treaty that they are dealing with the competent persons.  However, there are certain persons who need not to produce the “full powers”.  These persons are: Art,7. (1)    Heads of States, heads of governments and the ministers for foreign affairs, for the purpose of performing all acts related to the conclusion of a treaty;(2)     Heads of diplomatic missions, for the purpose of adopting the text of a treaty

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between their States;(3)     Representatives accredited by States to an international conference or to international organization or one of its organs, for the purpose of adopting the text of a treaty in that conference, organization or organ.     B.   Adoption and Authentication of the Text of Treaties Art. 9(s)      Once a draft of a treaty has been agreed upon by the competent persons, several stages need to be followed before it becomes legally binding.  First, the text of the treaty has to be adopted.  The adoption of the text of a treaty implies that the form and content of the text of the proposed treaty are settled.  It takes place by the consent of all the States participating in its drawing up, except the adoption at an international conference, which takes place by the vote of two-third of the States present and voting, unless by the same majority they decide to apply a different rule.  The adoption of the text of a treaty does not mean that the participating States have expressed consent to be bound by the treaty, or that the treaty has been adopted.     Second, the text of a treaty has to be authenticated.  Authentication is a procedural step whereby the text of the treaty is established as correct and genuine, and not subject to alteration.  It is necessary to enable the States parties to the treaty to know definitively its content so that there will be no confusion as to its exact terms.  The authentication of the text of a treaty takes place according to the procedure provided in the text or agreed upon by the States participating in its drawing up.  Failing such procedure, authentication may take place by the signature, signature ad referendum or initiating by the representatives of the participating States.  C.   The Adoption of  Treaties      A treaty has to be adopted by the participating States to become binding upon them.  States adopt a treaty by giving their consent to it.  The consent of the States parties to a treaty is an essential factor because States are bound only by their consent.  The consent may be expressed by signature, exchange of instruments constituting a treaty, ratification, acceptance, approval or accession, or by any other means if so agreed.

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 (1) Consent by signature       A State may be regarded as consented to a treaty by signature when the treaty provides that signature shall have that effect, when it is established that the negotiating States were agreed that signature should have that effect, or when the intention of the State to give that effect to the signature appears from the full powers of its representatives or was expressed during the negotiation.  Signing the treaty means officially affixing the names of the representatives of the contracting States.     The act of signature is usually a formal event.  Often in important treaties, heads of States formally affix their signatures in a ceremony. Usually in multilateral conventions, the representatives of the participating States sign the treaties during a special closing session held for that reason. (2)  Consent by exchange of instruments constituting a treaty         A State may be regarded as consented to a treaty by an exchange of instruments constituting a treaty when the treaty provides that the exchange of such instrument has that effect, or when it is established that the States were agreed that the exchange of the instrument should have that effect.  Nowadays, often each State signs an instrument constituting a treaty and sends it to the other State (or States) for its signature. (3) Consent by ratification, acceptance or approval Art.14.      The signing of the treaty by the representative of a State is either a means of expressing the final consent of the State to be bound by the treaty, or an expression of provisional consent subject to ratification, acceptance or approval.  The effect of signature depends upon the terms of the treaty, the agreement of the negotiating States or their intention.  If the treaty is subject to ratification (acceptance or approval), then it does not become binding until it is ratified by competent authority of contracting State, namely the head of the State.  Ratification by the competent authority of the contracting State is a step well established historically to ensure that the representative of the State did not exceed his powers or instructions with regard to the conclusion of the treaty.  It allows a State to examine the provisions of a treaty before undertaking formal obligations.  Moreover, it enables a State, in the period between signature and ratification, to pass the required legislation or to obtain the required approval.  The question of how a state ratifies treaties is a matter for its internal law alone.  The rules related to ratification vary from State to State. 

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          The consent of a state to be bound by a treaty is expressed by ratification (acceptance or approval) when the treaty provides for such consent to be expressed by means of ratification, when it is established that the negotiating states were agreed that ratification should be required, when the representatives of the State has signed the treaty subject to ratification, or when the intention of the States to sign the treaty subject to ratification appears from the full powers of its representative or was expressed during the negotiation.      Ratification occurs when instruments of ratification are exchanged between the contracting States, or are deposited with the depositary.  In the case of multilateral treaty, it usually provides that the instruments of ratification should be deposited with the State or the international organization that is appointed by the treaty to act as the depositary. (4)  Consent by accession Art. 15      In addition to signature and ratification, a State may become a party bound by a treaty by accession.   Accession is a formal acceptance of a treaty by a State which did not participate in negotiating and signing it.  It is possible if the treaty provides that consent to it may be expressed by accession, if it is established that the negotiating States were agreed that consent may be expressed by accession, or if all the States parties to the treaty have subsequently agreed that consent may be expressed by accession.  Accession has the same effects as signature and ratification combined.  It is the practice in the modern times that certain treaties remain open for accession by particular States for some periods.  D.  Reservation to a Treaty Art. 19(s)      It is well established in the practice of States that a State has a capacity, when becoming a party to a treaty, to accept most of the provisions of a treaty or to object, for whatever reasons, to particular provisions of a treaty. This capacity is reiterated by the Vienna Convention on the Law of Treaties which states that a State may, when signing, ratifying, accepting, approving or acceding to a treaty, formulate a reservation unless the reservation is either prohibited by the treaty or incompatible with its object and purpose, or the treaty permits only specified reservations.  A reservation is defined by this Convention as “a unilateral statement, however phrased or named, by a State, when signing, ratifying, accepting, approving or

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acceding to a treaty, whereby it purports to exclude or modify the legal effects of certain provisions of the treaty in their application to that StateThe effect of a reservation depends on whether it is accepted or rejected by the other parties to a treaty, and this matter differs whether a treaty is bilateral or multilateral one.  A reservation to a bilateral treaty presents no problem since it constitutes a counteroffer which may reopen the negotiation between the two parties concerning the terms of the treaty; and unless the reservation is accepted by the other party, no treaty will be concluded.   However, a reservation to a multilateral treaty causes a problem because it may be accepted by some parties and rejected by others.  In such a case, the Convention on the Law of Treaties provides that a reservation expressly authorized by a treaty does not require any subsequent acceptance by the other contracting States unless the treaty so provides, and that when it appears from the limited number of the negotiating States and the object and purpose of a treaty that the application of the treaty in its entirety between all the parties is an essential condition of the consent of each one to be bound by the treaty, a reservation requires acceptance by all the parties.     The Convention requires that a reservation, an express acceptance of a reservation and an objection to a treaty be formulated in writing and communicated to the contracting States and other States entitled to become parties to the treaty.  However, an acceptance of a reservation by a State may be implied if it has raised no objection to the reservation by the end of a period of twelve months after it was notified of the reservation or by the date on which it expressed its consent to be bound by the treaty, whichever is later.  An objection by another contracting State to a reservation does not preclude the entry into force of the treaty as between the objecting and reserving States, unless a contrary intention is definitely expressed by the objecting State.     Unless the treaty provides otherwise, a reservation or an objection to a reservation may be withdrawn at any time.  In case of the withdrawal of a reservation the consent of a State which has accepted the reservation is not required for its withdrawal.  It is required that the withdrawal of a reservation or of an objection to a reservation be formulated in writing.  Unless the treaty provides otherwise, or it is agreed otherwise, the withdrawal of a reservation or of an objection to a reservation becomes operative only when notice of it has been received by the concerned State.       

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      A reservation established with regard to another party modifies for the reserving State in its relations with that other party the provisions of the treaty to which the reservation relates to the extent of the reservation, and modifies those provisions to the same extent for that other party in its relations with the reserving State.  However, the reservation does not modify the provisions of the treaty for the other parties to the treaty inter se, i.e. in their relations with each other.  Section 2:  Entry into Force, Registration and Depositary of Treaties

     The Convention provides rules applicable to the entry into force of treaties as well as rules applicable to registration and depositary of treaties. A.  Entry into Force of Treaties Art. 24(s)      According to the Vienna Convention on the Law of Treaties, a treaty enters into force in such a manner and upon such date as it may provide or as the negotiating States may agree.  In the absence of any such provisions or agreement, a treaty enters into force as soon as consent to be bound by that treaty has been established for all the negotiating States.  When the consent of a State to be bound by a treaty is established on a date after the treaty has come into force, the treaty enters into force for that State on that date, unless the treaty provides otherwise.

     Normally, treaties specify that they will enter into force upon a certain fixed date or after a determined period following the last ratification.  Multilateral treaties, usually, provide for entry into force upon ratification by a specified number of States.  However, even when the minimum required number of ratifications is reached, the treaty enters into force only between those States that have ratified it; it does not enter into force for other States until they have also ratified it.  The Vienna Convention on the Law of Treaties, for example, provides that it will come into force on the thirtieth day following the date of deposit of the thirty-fifth instrument of ratification or accession.[17]  Moreover, it provides that for each State ratifying or acceding to the Convention after the deposit of the thirty-fifth instrument of ratification or accession, the Convention shall enter into force on the thirtieth day after deposit by such State of its instrument of ratification or accession.     Nevertheless, a treaty or a part of it may be applied provisionally pending its

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entry into force if the treaty itself so provides, or the negotiating States have in some other manner so agreed.   But, unless the treaty provides otherwise or the negotiating States have agreed otherwise, the provisional application of a treaty or a part of it with respect to a State shall be terminated if that State notifies the other States between which the treaty is being applied provisionally of its intention not to become a party to the treaty.  B.  Registration and Depositary of Treaties Art. 76 (s)      After the entry of a treaty into force, the Vienna Convention requires that the treaty to be transmitted to the Secretariat of the United Nations for registration or filling and recording, as the case may be, and for publication. This requirement follows the one provided for by the Charter of the United Nations.  Article 102 of the Charter provides that every treaty and every international agreement entered into by any Member of the United Nations must, as soon as possible, be registered with the Secretariat and published by it.  Under this article, non-registered treaty or agreement remains valid but the parties to it may not invoke it before any organ of the United Nations, including the International Court of Justice.  This requirement is intended to prevent States from entering into secret treaties and in general to ensure publicity for treaties.     Treaties, nowadays, are registered with the Secretariat of the United Nations which then publishes them in the United Nations Treaty Series (UNTS).  The UNTS provides a useful source of reference for the conclusion and contents of treaties.      In addition, the Vienna Convention on the Law of Treaties requires the designation of depositary of a treaty.  This designation may be made by the negotiating States, either in the treaty itself or in some other manner.  The depositary may be one State or more States, an international organization or the chief administrative officer of the organization. 

 The depositary has functions of considerable importance relating to: keeping custody of the original text of the treaty, any instruments, notifications and communications related to the treaty; giving certified copies of the treaty and transmitting them to the concerned States; receiving any signatures, instruments, notifications and communications related to the treaty; and informing the States

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parties to the treaty about the entry into force of the treaty.  Notably,    the United Nations Secretariat plays a significant role as depositary of multilateral treaties.  Section 3:  Observance and Application of Treaties Art. 26 (s)      Once treaties enter into force, they must be observed and applied by the parties.  Observance and application of treaties are subject to certain established principles and rules.

 A.  Observance of Treaties       The Latin principle “Pacta Sunt Servanda”, which means that treaties shall be observed, is the Fundamental principle of the customary law of treaties and the very foundation of International Law.  This principle is included in the Preamble and Article 26 of the 1969 Vienna Convention on the Law of Treaties, which states that “[e]very treaty in force is binding upon the parties to it and must be performed by them in good faith.”  Another long-standing principle of customary international law included in Article 27 of the Convention is that “[a] party may not invoke the provisions of its internal law as justification for its failure to perform a treaty.”     According to these two principles, the parties to a treaty are under a duty to observe the treaty in good faith, and a duty not to invoke its internal law as justification for failure to perform the treaty. B.  Application of Treaties Art. 28(s)             Under the Vienna Convention on the Law of Treaties, the application of treaties is subject to the following rules: (1)  Non-Retroactivity of Treaties Art.4.      The Vienna Convention provides that the provisions of a treaty, unless a different intention appears from the treaty or is otherwise established, do not bind a party to it in relation to any act or fact which took place or any situation which ceased to exist before the date of the entry into force of the treaty with regard to that party.  The general rule here is that a treaty does not operate retroactively; any fact, action or situation must be assessed in the light of the rules of law that are contemporary with it, not of the provisions of the subsequent treaty, unless a contrary agreement so provides.

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(2)  Territorial Scope of Treaties                 The Vienna Convention provides that unless a different intention appears from the treaty or is otherwise established, a treaty is binding upon each party in respect to its entire territory.  This is a general rule, but it is possible for a State to stipulate that the treaty will apply only to part of its territory. (3)Application of Successive Treaties Related to the Same Subject Matter       Sometimes, it happens that a party to a treaty subsequently enters into another treaty related to the same subject matter, and that the provisions of the two treaties are inconsistent; or it happens that the other party or parties to the second treaty may or may not also be parties to the first treaty.  These situations raise certain problems which need to be resolved.  Article 30 of the Vienna Convention lays down the rules which constitute the general guide to be followed in resolving such problems.  It is still possible, however, for the parties themselves to resolve the raised problems by their mutual agreement.     Under Article 30, the rights and obligations of States parties to successive treaties related to the same subject-matter shall be determined in accordance with the following rules: a)    When a treaty specifies that it is subject to, or that it is not to be considered as incompatible with, an earlier or later treaty, the provisions of that other treaty prevail.b)     When all the parties to the earlier treaty are parties also to the later treaty but the earlier treaty is not terminated or suspended in operation, the earlier treaty applies only to the extent that its provisions are compatible with those of the later treaty.c)     When the parties to the later treaty do not include all the parties to the earlier one:i.     as between States parties to both treaties, the earlier treaty applies only to the extent that its provisions are compatible with those of the later treaty;ii.   as between a State party to both treaties and a State party to only one of the treaties, the treaty to which both States are parties governs their mutual rights and obligations.                                                       

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     In case of treaties concerning the same subject-matter and having incompatible provisions, the presumption is that the later treaty prevails over the earlier treaty.  A treaty may provide expressly that it is to prevail over subsequent incompatible treaties; this is the case of Article 103 of the Charter of the United Nations which stipulates that “[i]n the event of a conflict between the obligations of the Members of the United Nations under the present Charter and their obligations under any other international agreement, their obligations under the present Charter shall prevail.”  Furthermore, a particular treaty prevails over other treaties if it includes peremptory norms of general international law (jus cogens), i.e. norms accepted and recognized by the international community of States as a whole as norms from which no derogation is permitted and which can be modified only by subsequent norms of general international law having the same character.                         (4)  Treaties and Third States Art. 34(s).       The Latin principle “pacta tertiis nec nocent nec prosunt”, which means that a treaty creates neither right nor obligation for third States (not parties to the treaty) without their consent, is a general principle which constitutes part of the customary international law.[24]  The reasons for this principle can be found in the fundamental principles of the sovereignty and independence of States, which contemplate that States must consent to rules before they can be bound by them.  This principle is codified in article 34 of the 1969 Vienna Convention on the Law of Treaties as a general rule corollary of the principle of consent and of the sovereignty and independence of States.  However, this Convention states certain exceptions to this general rule.

     First, the Convention provides that an obligation may arise for a third State from a provision of a treaty if the parties to the treaty intend the provisions of the treaty to be the means of establishing the obligation, and the third State expressly accepts that obligation in writing.  In such a case, the obligation may be revoked or modified only with the consent of the parties to the treaty and of the third States, unless it is established that they have agreed otherwise.

     Second, the Convention provides that a right may arise for a third State from the provision of a treaty if the parties to the treaty intend the provision to accord that right either to the third State, or to a group of States to which it belongs, or to all

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States, and the third State assents thereto, unless the treaty provides otherwise.  In such a case, the right may not be revoked or modified by the parties to the treaty if it is established that the right has not been intended to be revoked or modified without the consent of the third State.  In exercising such a right the third State is required to comply with the conditions for its exercise provided for in the treaty or established in conformity with the treaty.  

Third, the Convention provides that a rule of a treaty may become binding upon a third State if it becomes a part of customary international law.     An example of a treaty imposes obligation upon non-party State is the 1815 agreement concerning the neutralization of Switzerland. The apparent examples of rules which are binding upon third States as customary international law are the rules of the 1899 and 1907 Hague Conventions concerning land warfare, and the principles stated in Article 2 of the Charter of the United Nations, especially those related to the peaceful settlement of disputes and the prohibition of resorting to threat or use of force.  As far as rights conferred upon third States by a treaty are concerned, there are many treaties containing provisions in favor of third States (pactum in favorem tertii). Examples of such treaties are the 1919 Treaty of Versailles which contains provisions in favor of Denmark and Switzerland, and the 1888 Constantinople Convention which contains provisions guaranteeing freedom of passage for ships through the Suez Canal.      Section 4:  Interpretation of Treaties Art. 31 (s).       Interpretation of treaties is the most frequent focus of disputes arising with regard to treaties.  Because language is not a perfect means for expressing legal rules, ambiguities and uncertainties in treaty-texts are common phenomena.  Thus interpretation of treaties has been a major task in International Law.  Obviously the parties to a treaty have competence to interpret a treaty, but other entities may perform such a task.  The treaty itself may confer competence on an ad hoc tribunal, an international organ, or the International Court of Justice (ICJ).  The Charter of the United Nations is interpreted by the organs of the United Nations, which may request advisory opinions from the International Court of Justice (ICJ).     Interpretation of treaties is a rational process of clarifying and elucidating

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(explaining) the meaning of unclear and ambiguous treaty provisions. Its purpose is to ascertain in good faith the intention of the parties.  It is governed by numerous principles and rules developed by international tribunals, publicists, organs of international organizations and diplomatic practice.  Though, there is no coherent and mandatory system of rules of treaty interpretation in International Law.

     The 1969 Vienna Convention on the Law of Treaties, however, lays down certain fundamental rules and guidelines for treaty interpretation.  It contains specific provisions concerning general rules of treaty interpretation, supplementary means of interpretation, and interpretation of treaties authenticated in two or more languages.[26]

A.  General Rules of  Treaty Interpretation [27]                  The first general rule for treaty interpretation provided by the Vienna Convention is that “[a] treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose.”[28]   This rule is the textual approach of treaty interpretation.     The context of a treaty for the purpose of interpretation comprises, in addition to its text, including its preamble and annexes, any agreement and instrument related to it and made in connection with its conclusion.  Together with the context of a treaty, should be taken into account any subsequent agreement between the parties regarding the interpretation of the treaty or the application of its provisions, any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation, and any relevant rules of International Law applicable in relations between the parties.      The second general rule for treaty interpretation provided by the Convention is that “[a] special meaning shall be given to a term if it is established that the parties so intended.”[29]  This is the “intention of the parties” approach of treaty interpretation.     However, there are other established approaches of treaty interpretation not provided for in the Vienna Convention on the Law of Treaties.  Among these approaches is “the principle of effectiveness” which involves the interpretation of the terms of a treaty in a way that will render the treaty most effective and

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useful.  This principle is of particular importance in the interpretation of multilateral treaties establishing international organizations. B.  Supplementary Means of Interpretation             The Vienna Convention provides that “[r]recourse may be had to supplementary means of interpretation, including the preparatory work of the treaty and the circumstances of its conclusion”, when the meaning resulting from the application of the above general rules needs to be confirmed, or when the interpretation according to the said general rules leaves the meaning ambiguous or obscure, or leads to a manifestly absurd or unreasonable result.

C.  Interpretation of Treaties Authenticated in Two or More Languages             In case of a treaty authenticated in two or more languages, as often happens with multilateral treaties, the Vienna Convention provides that when a comparison of the authentic texts discloses a difference of meaning which the application of the provided general rules and supplementary means of interpretation does not remove, “the meaning which best reconciles the texts, having regard to the object and purpose of the treaty, shall be adopted.”[33]   Nevertheless, the Convention provides that the treaty may provide or the parties may agree that, in such a case, a particular text shall prevail.         Section 5:  Amendment and Modification of Treaties Art. 39(s)      Although amendment and modification of treaties are two processes share a common aim which is an alteration or revision of a treaty, they are two separate processes accomplished by different manners and subject to different rules and conditions.  Amendment relates to a formal alteration or revision of certain treaty provisions or the treaty as a whole, affecting all the parties to that treaty.  Modification relates to an alteration or revision of certain treaty provisions as between particular parties only.  Thus the 1969 Vienna Convention on the Law of Treaties deals with these two processes in separate articles. A.  Amendment of Treaties  

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      The Vienna Convention refers to three manners to accomplish amendments to treaties.  The first manner is that a treaty may be amended by agreement between the parties.  In such a manner, the rules described by the Vienna Convention which are related to the conclusion and entry into force of a treaty will be applied.     The second manner is that a treaty may be amended in accordance with the procedure laid down in the treaty itself.  Multilateral treaties, particularly those establishing international organizations, normally provide detailed procedure for amendments.  The Charter of the United Nations, for example, lays down in Articles 108 and 109 the procedure for its amendments and revision.  Under these Articles such amendments or revision shall take effect when adopted and ratified by two-thirds of the members of the United Nations, including all the permanent members of the Security Council.

     The third manner is that a treaty may be amended in accordance with the basic rules of procedure described by the Vienna Convention.  The Vienna Convention specifies that any proposed amendment must to be notified to all contracting States.  All contracting States shall have the right to participate in the decision as to the action to be taken in regard to such proposal, and in the negotiation and conclusion of any agreement for the amendment of the treaty.  Every State entitled to become a party to the treaty is also entitled to become a party to the treaty as amended.  The amendment will not bind any State already a party to the original treaty which is not a party to the amending agreement.  Any State which becomes a party to the treaty after the entry into force of the amending agreement, unless it intends otherwise, is considered as a party to the treaty as amended in relation to parties bound by the amending agreement, and as a party to the unamended treaty in relation to any party to the treaty not bound by the amending agreement.

B.  Modification of Treaties       The Vienna Convention provides that two or more of the parties to a multilateral treaty may conclude an agreement to modify the treaty as between themselves alone if one of two conditions is fulfilled.  The first condition, if “the possibility of such a modification is provided for by the treaty.”[36]  The second condition, if “the modification in question is not prohibited by the treaty” and provided it “does not affect the enjoyment by the other parties of their rights under the treaty or the performance of their obligation, and “does not relate to a provision, derogation from

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which is incompatible with the effective execution of the object and purposes of the treaty as a whole.”  The Vienna Convention requires, however, that unless in the first mentioned case or if the treaty provides otherwise, the parties in question must notify the other parties of their intention to conclude the agreement and of the modification to the treaty.  Section 6:  Termination and Suspension of the Operation of Treaties Art. 42(s).       Despite the general rule that “[e]very treaty in force is binding upon the parties to it and must be performed by them in good faith,” the Vienna Convention provides that a treaty may be terminated, denounced, withdrawn from or suspended.  The Convention provides that the termination of a treaty, its denunciation, the withdrawal of a party or the suspension of its operation “may take place only as a result of the application of the provisions of the treaty or of the present Convention.”  The applicable rules to such instances, provided by the Convention are as such:

 A.  Termination of a Treaty       Termination of a treaty means the end of the operation of a treaty, resulting in depriving all the parties of all the rights, and in releasing them from performing further obligations, under the treaty.  Under the Vienna Convention termination of a treaty or the withdrawal of a party may take place either in conformity with the provisions of the treaty, or at any time by consent of all the parties after consultation with the other contracting States.  Actually, most of the modern treaties contain provisions for their termination or for the withdrawal of a party.   A treaty may provide that it shall come to an end automatically after a certain time, or at the occurrence of a particular event.  A treaty may give a party a right to withdraw from it after giving a certain period of notice.     Where a treaty does not contain any provision regarding its termination and does not provide for denunciation or withdrawal, it will not be subject to the denunciation or withdrawal, unless it is established that the parties intended to admit such a possibility, or such a right is implied by the nature of the treaty.  In such cases, however, a party must give at least twelve months’ notice of its intention to denounce or withdraw from the treaty.

     The Convention specifies the reasons for terminating a treaty.  

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  First, a treaty may be terminated by the conclusion of a later treaty related to the same subject-matter, if it appears that the matter is to be governed by that treaty or the provisions of the later treaty are so far incompatible with those of the earlier one that the two treaties are not capable of being applied at the same time.   Second, a treaty may be terminated as a consequence of its breach.  A material breach of a treaty which consists in either a repudiation of the treaty not permitted by the Vienna Convention or the violation of a provision essential to the accomplishment of the object or purpose of the treaty entitles the other parties to terminate the treaty.   Third, a treaty may be terminated by the impossibility of performance resulting from the permanent disappearance or destruction of an object indispensable for the execution of the treaty.    Forth, a treaty may be terminated when a fundamental change of circumstances occurs with regard to those existing at the time of the conclusion of that treaty.   Fifth, a treaty may be terminated by reason of the severance of diplomatic or consular relations between parties to the treaty.  However, such event does not affect the legal relations established between the parties except in so far as the existence of diplomatic or consular relations is indispensable for the application of the treaty.  Finally, if a new peremptory norm of general international law emerges, any existing treaty which is in conflict with that norm terminates.     As regard the consequences of termination of a treaty, the Convention provides that unless the treaty provides otherwise or the parties agree otherwise, the termination of a treaty releases the parties from any further obligation to perform the treaty; however, it does not affect any right, obligation or legal situation of the parties created through the execution of the treaty prior to its termination. B.  Suspension of the Operation of a Treaty         Suspension of the operation of a treaty means the making of a treaty temporary inoperative in regard to either all or a particular party. Under the Vienna Convention, suspension of the operation of a treaty, like termination, may take place either according to the provisions of the treaty or at any time by consent of all the parties.  Two or more parties to a multilateral treaty may conclude an agreement to suspend the operation of provisions of the treaty, temporary and as between themselves alone if “the possibility of such a suspension is provided for by the treaty,”  or “the suspension in question is not prohibited by the treaty” and provided

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it “does not affect the enjoyment by the other parties of their rights under the treaty or the performance of their obligation,” and “is not incompatible with the object and purposes of the treaty.[42]  However, unless the treaty provides otherwise, the parties in question must notify the other parties of their intention to conclude the agreement and of those provisions of the treaty the operation of which they intend to suspend. Treaties sometimes provide for the possibility of suspension of the entire treaty or some of its provisions in particular circumstances.

     Under the Convention, a treaty may be suspended by the following circumstances:  1) the conclusion of a later treaty related to the same subject matter, if it appears from the later treaty or otherwise established that such was the intention of the parties; 2) a material breach of a treaty which consists in either a repudiation of the treaty not permitted by the Vienna Convention or the violation of a provision essential to the accomplishment of the object or purpose of the treaty; 3) the temporary impossibility of performing a treaty; or 4) a fundamental change of circumstances occurs with regard to those existing at the time of the conclusion of that treaty.                              Suspension of the operation of a treaty releases the parties from any further obligation to perform the treaty during the period of suspension; however, it does not affect any right, obligation or legal situation of the parties created through the execution of the treaty prior to its suspension.   Section 7:  Invalidity of Treaties Art. 46(s).      Invalidity of a treaty means nullity of a treaty or its particular provisions because of the existence or absence of certain circumstances or conditions affecting its legal status.  Customary international law does not provide clear and acceptable rules governing validity or invalidity of treaties.  The 1969 Vienna Convention on the Law of Treaties, however, provides some general rules on this matter.  This Convention describes rules governing invalidity of treaties in general, grounds for invalidity of treaties, and consequences of the invalidity of treaties. A.     General Rules on Invalidity of Treaties 

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      The Vienna Convention on the Law of Treaties provides that “[t]he validity of a treaty or the consent of a State to be bound by a treaty may be impeached only through the application of the present Convention.”  Under the Convention, a ground for invalidating (as well as for terminating, withdrawal from or suspending the operation of a treaty) may be invoked only with respect to the whole treaty, except where the ground relates solely to particular clauses which are separable and unessential, or relates to a material breach of a treaty by one of the parties.  A State cannot invoke a ground for invalidating (as well as for terminating, withdrawal from or suspending the operation of a treaty) if, after becoming aware of the fact, it expressly agreed that the treaty is valid or remains in force, or it, by reason of its conduct, may be considered as having acquiesced in the validity of the treaty or in its continuance in force or in operation.

     B.  Grounds for Invalidating Treaties             The Vienna Convention specifies the following grounds for invalidating treaties: 1)     Manifest violation of a provision of fundamental importance of State’s internal law regarding competence to conclude treaties:  A violation is manifest “if it would be objectively evident to any State conducting itself in the matter in accordance with normal practice and in good faith.” 2)     Lack of the State’s representative appropriate full powers. 3)     Excess of authority by the representative:  Such an excess will be a ground to invalidate a treaty if the specific restriction imposed by the State upon its representative to express its consent to be bound by the treaty was notified to the other negotiating States prior to his expressing such consent.  4)     Error:  A State may invoke an error in a treaty as invalidating its consent to be bound by the treaty if the error relates to a fact or situation mistakenly assumed by that State to exist at the time when the treaty was concluded, and that fact or situation forms an essential basis of its consent to be bound by the treaty.  If the State in question contributed by its own conduct to the error or if it was put on notice of a possible error, it is not allowed to invoke such an error as a ground for invalidating its consent. An error relating only to the wording of the text of a treaty does not affect its validity.5)     Fraud:  A State may invoke the fraud as invalidating its consent to be bound by the treaty if it has been induced to conclude that treaty by the fraudulent conduct of

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another negotiating State.6)     Corruption of a representative of a State:  A State may invoke the corruption of its representative as invalidating its consent to be bound by the treaty if the expression of its consent has been procured through the corruption of its representative directly or indirectly by another negotiating State.7)     Coercion of a representative of a State:  Acts or threats directed personally against a representative of a State as an individual in order to procure the expression of a State’s consent to be bound by a treaty render such expression of consent without any legal effect.8)     Coercion of a State by the threat or use of force:  A treaty is void if its conclusion has been procured by the threat or use of force in violation of the principles of International Law embodied in the Charter of the United Nations.9)     Conflict of the treaty with an existing and emerging peremptory norm of general International Law (Jus Cogens):  A treaty is void if, at the time of its conclusion, it conflicts with a peremptory norm of general International Law.  If a new peremptory norm of general International Law emerges, any existing treaty conflicting with that norm becomes void and terminated.                    C.  Consequences of Invalidity of Treaties      The consequences of invalidity of treaties vary according to the nature of the ground of invalidity.  The Vienna Convention makes a distinction between void and voidable treaties. In cases of lack of full powers, coercion of a representative, coercion of a State and conflict with an existing and emerging of peremptory norm of general international law, the treaty is void, which means that the expression of consent of the State to be bound by the treaty is without any legal effect from the beginning (ab initio).  In cases of violation of the internal law of the State, excess authority by the representative, error, fraud, and corruption of the representative, the treaty is probably voidable rather than void; the treaty is valid until the State claims that it is invalid.  The State may invoke the ground to invalidate the treaty.  However, this right may be lost for the following reasons:

(a) if after becoming aware of the fact, the concerned State expressly agreed that the treaty is valid or remains in force or it, by reason of its conduct, may be considered as having acquiesced in the validity of the treaty or in its continuance in force or in operation; or

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(b) if the concerned State contributed by its own conduct to the error or was put on notice of a possible error.     The Convention provides that an invalid treaty is void and without any legal effect.  If acts have nevertheless been performed in reliance on such a treaty, each party may require any other party to establish as far as possible in their mutual relations the position that would have existed if the acts had not been performed.  Acts performed in good faith before the invalidity was invoked are not rendered unlawful by reason only of invalidity of the treaty.  Section 8:  Procedures to be Followed with Respect to Invalidity, Termination, Withdrawal from, or Suspension of the Operation of a Treaty             The Vienna Convention provides that a party invoking a ground to invalidate a treaty, terminate it, withdraw from it or suspend its operation, must notify, in writing, the other parties of its claim and give them time to make objections before it takes any action.  If after the expiry of a period which shall not be less than three months from the receipt of the notification, no objection has been raised by any party, the party making the notification may carry out the measures it has proposed.  If, however, objection has been raised by any party, the parties must seek a solution through the peaceful means indicated in Article 33 of the Charter of the United Nations.     If no solution is reached within twelve months, the dispute is to be submitted to a special conciliation commission set up under an annex to the Convention or, in cases of dispute involving peremptory norms of general International Law to be submitted to the International Court of Justice (ICJ).

Chapter 12The Law of the Sea

  Introduction

     The Law of the Sea is that part of Public International Law that regulates the rights and duties of States, and possibly other subjects of International Law, with regard to the use and utilization of the seas in time of peace.[2]  In this sense, the

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Law of the Sea is distinguished from the private maritime law, which regulates the rights and obligations of private persons with regard to maritime matters, such as the carriage of goods and maritime insurance.     Although some rules of the Law of the Sea can be traced to medieval private compilations governing primarily maritime rights and obligations of merchants and ship-owners in the Mediterranean, the Law of the Sea developed as part of the Law of Nations in the Seventeenth Century with the emergence of the modern national State system.[3]  The classical publicists drew on Roman Law and dealt with the matters of this subject in the natural law tradition.  The best known publication, among the early writings on this subject, is the 1609 Hugo Grotius’ pamphlet “Mar Liberum” (Freedom of the Sea).      By the Nineteenth Century, as customary rules gradually produced a body of law based on State practice and consensus, the Law of the Sea, like other areas of Public International Law, developed into a system of customary principles and rules governing the rights and duties of States, mostly in the territorial sea and the high seas.     During the Nineteenth Century and the period before the Second World War, several unsuccessful attempts were made to codify the customary law of the sea.  After the Second World War, several conferences were held for the objective of codifying the various aspects of the Law of the Sea.  The first conference was the First United Nations Conference on the Law of the Sea (UNCLOS I), known as the 1958 Geneva Conference on the Law of the Sea, which led to the conclusion of four conventions: (1) The Convention on the Territorial Sea and Contiguous Zone; (2) The Convention on the High Seas;[5] (3) The Convention on the Continental Shelf;[6] and (4) The Convention on Fishing and Conservation of the Living Resources of the High Seas.[7]  An Optional Protocol on the Compulsory Settlement of Dispute was signed. [8]   The 1958 Geneva Conference on the Law of the Sea constitutes the first major codification of the Law of the Sea.  Most of the provisions of the first two conventions, and some of the provisions of the Convention on the Continental Shelf, are a codification of customary law; while the others are a mixture of codification and progressive development of International Law as understood by the International Law Commission (ILC).  Thus, although the conventions are binding only on States parties to them, many of their provisions can be used as evidence of customary law against States not parties to them.[9]  All these four conventions are

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still in force, but for a limited number of States; the United States of America is among those States since it has not yet ratified the 1982 Convention on the Law of the Sea.     The 1958 Geneva Conference failed to reach agreement on some questions, particularly on the width of the territorial sea and rights of coastal States in the areas of the high sea adjacent to their territorial seas.  To deal with such questions, the Second United Nations Conference on the Law of the Sea (UNCLOS II), which is known as the 1960 Geneva Convention on the Law of the Sea, was convened; but this Conference failed to achieve its objectives.[10] This reason, in addition to the dissatisfaction of some States with various rules laid down in the 1958 Convention and the technological, economic and political developments since its conclusion, led to the convene of the Third United Nations Conference on the Law of the Sea, 1973-1982 (UNCLOS III).  This Conference led to the conclusion of the United Nations Convention of the Law of the Sea on December, 1982, which entered into force on November 16, 1994.[11]     The 1982 Convention on the Law of the Sea constitutes a comprehensive codification and development of contemporary international law governing the Sea in time of peace.  Some of the provisions of the 1982 Convention codify the existing customary international law of the sea; this is particularly true of those provisions which repeat those of the four 1958 Conventions which codified customary law. Almost all the provisions of the four 1958 Conventions are repeated, modified or replaced by the 1982 Convention.  But many of the provisions of the 1982 Convention depart from the existing customary law; and those provisions do not represent existing law on the Sea for States not parties to the 1982 Convention; they, however, indicate the directions in which the law may develop in the future.  All States are prima facie bound by the customary rules, while only the parties to a particular convention will be bound by the new rules contained therein.

     The 1982 Convention prevails over the four 1958 Conventions as among the States parties to it.  It deals with most of the issues related to the Sea.  Among these issues are: (1)     Territorial Sea and Contiguous Zone;(2)     Straits Used for International Navigation;(3)     Archipelagic States;

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(4)     Exclusive Economic Zone;(5)     Continental Shelf;(6)     High Seas;(7)     Regime of Islands;(8)     Enclosed or Semi-Enclosed Seas;(9)     Rights of Access of Land-Locked States to and from the Sea and Freedom of Transit;(10)   The Area;(11)   Protection and Preservation of the Marine Environment;(12)   Marine Scientific Research;(13)   Development and Transfer of Marine Technology; and(14)   Settlement of Disputes.

     In the following sections, most of the questions related to the above issues as provided by the 1982 Convention are discussed. Section 1:  Territorial Sea [12]      The 1982 Convention on the Law of the Sea declares that the sovereignty of a coastal State extends, beyond its land territory and internal waters to an adjacent belt of sea, described as the territorial sea.  Accordingly, the territorial sea, which is also known as territorial water, is a belt of sea adjacent to the coast of a State over which a coastal State exercises its sovereignty.  The Convention provides that this sovereignty extends also to the air space over the territorial sea as well as to its bed and subsoil.  However, the exercise by a coastal State of such sovereignty over its territorial sea is subject to the rules and limitations provided for in the said Convention and in the International Law.

A.  Limits of the Territorial Sea [13]                      The Convention adopts the twelve-mile limit as a breadth of the territorial sea.  It provides that every State has the right to establish the breadth of its territorial sea up to a limit not exceeding 12 nautical miles, measured from baselines determined by a normal baseline or/and straight baselines method;  the coastal State may determine baselines in turn by any of these two methods to suit different conditions. The baseline is the line from which the breadth of the territorial sea and other coastal State zone, such as contiguous zone, exclusive economic zone or exclusive fishing

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zone, is measured.  The baseline forms the boundary between the internal waters on the landward side of the coastal State and its territorial sea on its seaward side.  Waters on the landward side of the baseline of the territorial sea form part of the internal waters of the State, over which the State has an absolute sovereignty.  The outer limit of the territorial sea is the line every point of which is at a distance from the nearest point of the baseline equal to the breadth of the territorial sea.      The normal baseline for measuring the breadth of the territorial sea is the low-water line (the line on the shore reached by the sea at low tide) along the coast as marked on larger-scale charts officially recognized by the coastal State.  The method of straight baselines joining appropriate points may be employed in drawing the baseline from which the breadth of the territorial sea is measured if the coastline is deeply indented and cut into.  However, this method may not be applied by a State in such a manner as to cut off the territorial sea of another State from the high seas or an exclusive economic zone.  This method is also employed in a case of a river flowing directly into the sea or of a bay.  In a case of a river, the baseline shall be a straight line across the mouth of the river between points on the low-water line of its banks.  In a case of a bay, if the distance between the low-water marks of the natural entrance points of a bay does not exceed 24 nautical miles, a closing line may be drawn between these two low-marks, and the waters enclosed thereby shall be considered as internal waters.  Where the distance between the low-water marks of the natural entrance points of a bay exceeds 24 nautical miles, a straight baseline of 24 nautical miles shall be drawn within the bay in such a manner as to enclose the maximum area of water that is possible with a line of that length, and the enclosed waters shall be considered as internal water; however, this rule does not apply to so-called “historic bay”.     For the purpose of delimiting the territorial sea, the outermost permanent harbor works which form an integral part of the harbor system are regarded as forming part of the coast; but off-shore installations and artificial islands shall are not considered as permanent harbor works.  Roadsteads which are normally used for loading, unloading and anchoring of ships, and which are situated wholly or partly outside the outer limit of the territorial sea, are included in the territorial sea.             Where the coasts of two States are opposite or adjacent to each other, neither of

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the two States is entitled, failing agreement between them to the contrary, extend its territorial sea beyond the median line every point of which is equidistant from the nearest points on the baselines from which the breadth of the territorial seas of the two States is measured.  This rule, however, does not apply where it is necessary by reason of historic title or other special circumstances to delimit the territorial seas of the two States in a different way. B.  Rights of the Coastal State over the Territorial Sea [14]                        As the 1982 Convention provides, the sovereignty of the coastal State extends to its territorial sea as well as to the air-space over its territorial sea, its bed and subsoil.  In this regard the coastal State enjoys the following:(1)     The exclusive right to fish, and to exploit the resources of the seabed and subsoil of its territorial sea.(2)     The exclusive right in the air-space over its territorial sea to the exclusion of other States. Foreign aircrafts, unlike ships, have no right of innocent fly in the air-space over the territorial sea of a State.(3)     The right to enact laws and regulations, in conformity with the 1982 Convention and other rules of International Law, particularly in respect of navigation, health, customs, immigration and preservation of the environment.(4)     The right to take the necessary steps in its territorial Sea to prevent passage which is not innocent.(5)     The exercise of criminal jurisdiction on board of a foreign ship (arresting any person or conducting any investigation in connection with any crime committed on board of the foreign ship) in the following cases: if the consequences of the crime extend to it; if the crime is of a kind to disturb the peace of the country or the good order of its territorial sea; if the assistance of the local authorities has been requested; if the measures are necessary for the suppression of illicit traffic in narcotic drugs; or after leaving its internal water.(6)     The exercise of civil jurisdiction in relation to a foreign ship (levy execution against or arrest the ship for the purpose of any civil proceedings) in respect of obligations or liabilities assumed or incurred by the ship itself in the course or for the purpose of its voyage through its waters, or in respect of any civil proceedings against a foreign ship after leaving its internal waters.

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 C.  The Right of Innocent Passage in the Territorial Sea [15]              Under the 1982, the sovereignty of a coastal State over its territorial is subject to an important limitation, which is the right of innocent passage enjoyed by ships (merchant ships, governmental ships and warships) of all States, whether coastal or landlocked, over the territorial sea of the coastal State.  Passage means navigation through the territorial sea for the purpose of traversing that sea without entering internal waters or calling at a roadstead or port facility outside internal waters, or proceeding to or from internal waters or a call at such roadstead or port facility.  Passage must be continuous and expeditious; however, it may include stopping and anchoring in so far as they are incidental to ordinary navigation or are rendered necessary by force majeure or distress or for the purpose of rendering assistance to persons, ships or aircraft in danger or distress.  Passage must take place in conformity with the 1982 Convention and with other rules of International Law.  Passage must be innocent; it is innocent so long as it is not prejudicial to the peace, good order or security of the coastal State.     The right of innocent passage is also exists in internal waters where the establishment of a baseline in accordance with the straight baselines method provided by the 1982 Convention has the effect of enclosing as internal water areas which had not previously been considered as such.        The right of innocent passage is also enjoyed by submarines and other underwater vehicles.  However, it is required that they navigate on the surface and show their flag.

     The 1982 Conventions provides that the coastal State must not hamper the innocent passage of foreign ships through its territorial seas except in accordance with the Convention.  The Coastal State, in the application of the Convention or of any laws or regulations adopted in conformity with it, must not impose requirements aiming at denying or impairing the right of innocent passage, or discriminate on form or in fact against the ships of any State or against ships carrying cargoes to, from or on behalf of any State.   It must give appropriate publicity to any danger to navigation, of which it has knowledge, within its territorial sea.  It must not levy any charges upon foreign ships by reason only of their passage through its territorial sea; charges may be levied as payment only for specific services rendered to the ship.

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     The coastal State is under a duty not to exercise its criminal jurisdiction on foreign ship passing through it territorial sea, except in the cases specified by the Convention (mentioned above).  It is also under a duty not to exercise civil jurisdiction in relation to a foreign ship or a person on its board, except in the cases specified by the Convention (mentioned above).  Notably, the warships and other government ships operated for non-commercial purposes are immune from any jurisdiction; however the coastal State, in a case of failure of any of these ships from complying with its laws and regulations, may order it to leave its territorial Sea immediately.        Against these duties, the coastal State entitled to certain rights in respect of the right of innocent passage granted to foreign ships. The coastal State may adopt laws and regulations, in conformity with the provisions of the Convention and other rules of International Law, related to innocent passage through its territorial sea, with which the foreign ships must comply.  It may suspend temporarily in specified areas of its territorial sea the innocent passage of foreign ships for security reasons.

  Section 2:  Contiguous Zone [16]      Contiguous zone is a maritime zone adjacent to the territorial sea of the coastal State over which that State, as provided by the 1982 Convention, may exercise the control necessary to prevent infringement of its customs, fiscal, immigration or sanitary laws and regulations within its territory or territorial sea and to punish infringement of these laws and regulations committed within its territory and territorial sea.  According to the said Convention, the contiguous zone may not extend beyond 24 nautical miles from the baseline from which the breadth of the territorial sea is measured.     It follows from the provision of the 1982 Convention related to the contiguous zone that the rights of the coastal State over the contiguous zone do not amount to sovereignty.  The coastal State may only exercise jurisdictional powers for the reasons specified by the Convention. Still other States have rights over these zones similar to those exercisable over the high seas except as they are qualified by the existence of jurisdictional zones.  Moreover, these zones are not automatically belonging to coastal States as in the case of territorial sea; they must be specifically claimed by the State.  

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Section 3:  Straits Used for International Navigation [17]              A strait is a narrow natural sea passage connecting two large areas of the sea.  The 1982 Convention defines international straits as straits used for international navigation either between one part of the high seas or an exclusive economic zone and another part of the high seas or an exclusive economic zone, or between a part of the high seas or an exclusive economic zone and the territorial sea of a foreign State; and it specifies a special regime of passage applicable to these international straits.  This regime of passage, however does not apply to a strait used for international navigation if there exists through the strait a route through the high seas or through an exclusive economic zone of similar convenience with respect to navigational and hydrographical characteristics; in such routes, others provisions of the 1982 Convention, including those related to the freedom of navigation and over-flight, apply.    The regime of passage specified by the Convention, as the Convention provides, does not affect the legal status of the waters forming such straits or the exercise by the States bordering the straits of their sovereignty or jurisdiction over such waters and their air space, bed and subsoil; however, such sovereignty or jurisdiction of the bordering State is exercised subject to this regime and other rules of International Law.  Moreover, this regime does not affect: any area of internal waters within a strait, except where the establishment of a baseline in accordance with the straight baselines method has the effect of enclosing as internal waters which had not previously considered as such; the legal status of the waters beyond the territorial seas of States bordering straits as exclusive economic zones or high seas; or the legal regime of straits in which passage is regulated in whole or in part by long-standing international convention in force specifically related to such straits (For example, the Turkish  Straits of the Bosphorus and the Dardanelles which are regulated by the Montreux Convention of 1936).     The regime of passage in international straits specified in the Convention includes the right of transit passage and the right of innocent passage. A.  The Right of Transit Passage in International Straits [18]      The right of transit passage is granted to all ships and aircrafts with respect of international straits used for international navigation between one part of the high seas or an exclusive economic zone and another part of the high seas or an exclusive

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economic zone.  This right means the exercise of the freedom of navigation and over-flight solely for the purpose of continuous and expeditious transit of the international straits defined above.  However, the requirement of continuous and expeditious transit does not preclude passage through the strait for the purpose of entering, leaving or returning from a State bordering the strait, subject to the conditions of entry to that State. Moreover, any activity which is not an exercise of the right of transit passage through a strait remains subject to the other applicable provisions of the Convention.     The Convention lists an exception to the right of transit passage through international straits defined above.  It provides that if the strait is formed by an island of a State bordering the strait and its mainland and if there exists seaward of the island a route through the high seas or through an exclusive economic zone of similar convenience with respect to navigational and hydrographical characteristics, transit passage shall not apply; in such a strait, the right of innocent passage applies.     In exercising the right of transit passage, ships and aircraft must, mainly: observe the relevant provisions of the Convention, the relevant international regulations; comply with the laws and regulations adopted by the States bordering the straits in conformity with the Convention; refrain from any threat or use of force against the sovereignty, territorial integrity or political independence of States bordering the strait; and refrain any activities other than those incidental to their normal modes of continuous and expeditious transit unless rendered necessary by force majeure or by distress.  During transit passage, foreign ships, including marine scientific research and hydrographic survey ships must not carry out any research or survey activities without the prior authorization of the States bordering straits.     The Convention entitles the States bordering straits the right to adopt laws and regulations related to transit passage through straits in respect of safety of navigation and marine traffic, pollution, fishing, and loading or unloading of commodity, currency or persons. However, such laws and regulations must not discriminate in form or in fact among foreign ships, or hamper or impair the right of transit passage, and must be given due publicity.     The States bordering straits are under a duty not to hamper transit passage and to give appropriate publicity to any danger to navigation or over-flight within or over the strait of which they have knowledge.  Moreover, they must not suspend transit passage for whatever reason.

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 B.  The Right of Innocent Passage [19]            According to the Convention, the regime of innocent passage applies to straits used for international navigation, particularly those excluded from the application of the regime of transit passage (a strait formed by an island of a State bordering the strait and its mainland where there exists seaward of the island a route through the high seas or through an exclusive economic zone of similar convenience with respect to navigational and hydrographical characteristics), or those connect a part of the high seas or an exclusive economic zone and the territorial sea of a foreign State.     The right of innocent passage granted to ships and aircraft in these straits are governed by the provisions of the Convention related to the right of innocent passage in the territorial sea, except that no suspension of innocent passage through such straits is permitted, for whatever reason.                           Section 4:  The Exclusive Economic Zone [20]               The 1982 Convention provides that the exclusive economic zone is an area beyond and adjacent to the territorial sea, subject to the specific legal regime established by the Convention.  The exclusive economic zone, as the Convention provides, should not extend beyond 200 nautical miles from the baselines from which the breadth of the territorial sea is measured.  In this zone, the Convention establishes sovereign rights and jurisdiction for the coastal States, as well as, rights and freedoms for other States.     Under the Convention, the coastal State has, in the exclusive economic zone, sovereign rights for the purpose of exploring and exploiting, conserving and managing the natural resources, whether living or non-living, of the waters superjacent to the sea-bed and of the sea-bed and its subsoil, and with regard to other activities for the economic exploitation and exploration of the zone, such as the production of energy from the water, current and winds.  The coastal State also has the jurisdiction with regard to: the establishment and use of artificial islands, installations and structures; marine scientific research; and the protection and preservation of the marine environment.  In exercising its rights and performing its duties under the Convention in the exclusive economic zone, the coastal State should have due regard to the rights and duties of other States and should act in a manner compatible with the provisions of the Convention.

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     All States, whether coastal or land-locked States, enjoy, subject to the relevant provisions of the Convention, the high seas freedom of navigation, over-flight and of laying of submarine cables and pipelines in the exclusive economic zone.  In exercising their rights and performing their duties under the Convention in the exclusive economic zone, States should have due regard to the rights and duties of the coastal State and should comply with the laws and regulations adopted by the coastal State in accordance with the provisions of the Convention and other compatible rules of International Law.     The Conventions provides that in cases of conflict over rights or jurisdiction of the coastal State or of other States within the exclusive economic zone, the conflict should be resolved on the basis of equity and in the light of all the relevant circumstances.  As regarding the delimitation of the exclusive economic zone between States with opposite or adjacent coasts, the Convention provides that it should be effected by agreement on the basis of International Law; if no agreement can be reached within a reasonable period of time, the States concerned should resort to the procedures of settlement of disputes provided for in the Convention.

    Section 5:  The Continental Shelf [21]                           The 1982 Convention defines the continental shelf of the coastal State as “the sea-bed and subsoil of the submarine area that extend beyond its territorial sea throughout the natural prolongation of its land territory to the outer edge of the continental margin, or to a distance of 200 nautical miles from the baselines from which the breadth of the territorial sea is measured where the outer edge of the continental margin does not extend to that distance”.[22]  Where the continental margin extends beyond 200 miles, the Convention provides that the continental shelf should not extend more than 350 nautical miles from the baselines or 100 nautical miles from the 2500 meter depth. The continental margin, as the Convention provides, comprises the submerged prolongation of land mass of the coastal State, and consists of the sea-bed and subsoil of the shelf, the slope and the rise; it, however, does not include the deep ocean floor with its oceanic ridges or the subsoil thereof.     As regarding the delimitation of the continental shelf between States with opposite or adjacent coasts, the Convention provides that it should be effected by

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agreement on the basis of International Law; if no agreement can be reached within a reasonable period of time, the States concerned should resort to the procedures of settlement of disputes provided for in the Convention.

     In the continental shelf, the Convention establishes sovereign rights for the coastal States and rights and freedoms for other States, as well as, imposes duties on them. The coastal State may exercise over the continental shelf sovereign rights for the purpose of exploring it and exploiting its natural resources.  Such rights are exclusive in the sense that if the coastal State does not explore the continental shelf or exploit its natural resources, no one may undertake these activities without the express consent of the coastal State.  The coastal State has the exclusive right to construct and to authorize and regulate the construction, operating and use of artificial islands, installations and structures on the continental shelf, as well as, to authorize and regulate drilling on the continental shelf for all purposes.  It has the right to establish reasonable safety zones around its installations to a limit of 500 meters, which must be respected by ships of all States.

     The Convention provides that the rights of the Coastal State over the continental shelf do not depend on occupation or any express proclamation, and do not affect the legal status of the superjacent waters or of the air above those waters.  In exercising its rights over the continental shelf, the convention requires from the coastal State not to infringe or result in any unjustifiable interference with navigation and other rights and freedoms of other States as provided for in the Convention (such as the laying or maintenance of cables or pipelines).  Moreover, the Convention imposes upon the coastal State to pay to the International Sea-Bed Authority annual payments or contributions in kind in respect of the exploitation of the nonliving resources of the continental shelf beyond 200 miles; such payments or contributions shall be distributed by the Authority to the States parties to the Convention, on the basis of equitable sharing criteria, taking into account the interests and needs of developing States, particularly the least developed and the land-locked among them.         Under the Convention, all States are entitled to lay cables and pipelines on the continental shelf, in accordance with the relevant provisions of the Convention.  Section 6:  The High Seas [23]    

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      The 1982 Convention defines the high seas as “all parts of the sea that are not included in the exclusive economic zone, in the territorial sea or in the internal waters of a State, or in the archipelagic waters of an archipelagic State.”  Under the Convention the high seas are open to all States, whether coastal or landlocked, and that the freedom of the high seas is exercised under the conditions laid down by the Convention and other rules of International Law.  Such a freedom comprises inter alia the freedom of navigation, over-flight, the laying of submarine cables and pipelines, the construction of artificial islands and other installation permitted under International Law, fishing, and the conduct of scientific research.  These freedoms must be exercised by all States with due regard for the interests of other States in their exercise of the freedom of the high seas, and also with due regard for the rights under the Convention concerning activities in the International Sea- Bed Area.

     Moreover, the high seas shall be reserved for peaceful purposes.  No State may purport to subject any part of the high seas to its sovereignty.  Every State, whether coastal or land-locked, has the right to sail ships flying its flag on the high sea, to exercise its jurisdiction in civil and penal matters, and to exercise control in administrative, technical and social matters over them.  Section 7:  Land-locked States [24]              “Land-locked State” means a State which has no sea-coast.  The 1982 Convention provides that land-locked States have the right of access to and from the sea for the purpose of exercising the rights provided for in the Convention including those related to the freedom of the high seas and the common heritage of mankind, the right of innocent passage in the territorial sea of coastal States, the right of transit and innocent passage in international straits, and the right of laying submarine cables and pipelines in the continental shelf.  To this end, the land-lock States enjoy freedom of transit through the territory of transit States by all means of transport.  “Transit State” means a State, with or without a sea-coast, situated between a land-locked State and the sea, through whose territory traffic in transit passes.     The Convention provides that terms and modalities for exercising freedom of transit shall be agreed between the land-locked States and transit States through bilateral, sub-regional or regional agreements. For the convenience of traffic in

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transit, free zones or other customs facilities may be provided at the ports of entry and exit in the transit States, by agreement between those States and the land-locked States.  Traffic in transit shall not be subject to any customs duties, taxes or other charges except charges levied for specific services rendered in connection with such traffic.  Transit States shall take all appropriate measures to avoid delays or other difficulties of a technical nature in traffic in transit.  In the exercise of their full sovereignty over their territory, transit States shall have the right to take all measures necessary to ensure that the rights and facilities provided for in the Convention for land-locked States shall in no way infringe their legitimate interests.

  Section 8:  The Area and the Authority [25]                            The “Area” as defined by the 1982 Convention means the sea-bed and ocean floor and subsoil thereof, beyond the limits of national jurisdiction.[26]  Under the Convention, the Area and its resources (solid, liquid or gaseous mineral) are deemed to be the common heritage of mankind and no sovereign or other rights may be recognized.  However, minerals recovered from the Area only in accordance with the Convention are alienable.  Activities in the Area are to be carried out for the benefit of mankind as a whole by or on behalf of “the International Seabed Authority” established under the Convention.[27] The Authority is to provide for the equitable sharing of such benefits.     The Area shall be open to use exclusively for peaceful purposes by all States, whether coastal or land-locked, without discrimination and without prejudice to the provisions of the Convention.  Marine scientific research in the Area shall be carried out, by or on behave of the Authority, exclusively for peaceful purposes and for the benefits of mankind as a whole in accordance with the Convention.       The International Seabed Authority (the Authority) is the autonomous organization which the States parties to the 1982 Convention have agreed to establish in order to organize and control activities in the Area, particularly to administer the resources of the Area.  All States parties to the Convention are ipso facto members of the Authority.  The Authority became fully operational in June 1996.  The seat of the Authority is in Jamaica; it may establish such regional centers or offices as it deems necessary for the exercise of its functions.       The Authority may exercise the powers and functions which are expressly conferred upon it by the Convention, and such incidental powers, consistent with the

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Convention, as are implicit in and necessary for the exercise of those powers and functions with respect to activities in the Area.  It consists of the principal organs, which are the Assembly, the Council and the Secretariat, the Enterprise, and certain subsidiary organs.  Section 9:  Enclosed or Semi-Enclosed Seas [28]                                        Enclosed and semi-enclosed seas as defined by the 1982 Convention means a gulf, basin or sea surrounded by two or more States and connected to another sea or the ocean by narrow outlet or consisting entirely or primarily of the territorial seas and exclusive economic zones of two or more coastal States.  The Convention requires the States bordering an enclosed or semi-enclosed sea to co-operate with each other in the exercise of their rights and in the performance of their duties under the Convention.  To this end these States are required to endeavor, directly or through an appropriate regional organization to co-ordinate: the management, conservation, exploration and exploitation of living resources of the sea; the implementation of their rights and duties with respect to the protection and preservation of the marine environment; their scientific research policies and undertake where appropriate joint programmes of scientific research in the area.  These States are also required to invite, as appropriate, other interested States or international organizations to co-operate with them Actually, there are more than twenty marine areas which can be regarded as enclosed or semi-enclosed seas according to the criteria specified by the 1982 Convention.  Among these areas are the Baltic Sea, the Black Sea, the Caribbean Sea, the East China Sea, the Mediterranean Sea, the Red Sea, the South China Sea, the Gulf of Mexico, the Gulf of Oman, and the Arabian Gulf.  In international practice, co-operation among the States bordering enclosed or semi-enclosed seas has been taken in matters such as conservation of the living resources and marine pollution prevention and control. e subject of State responsibility has been the most difficult question of the codification work of the International Law Commission (ILC).[3]  The ILC has been working extensively on this subject.  In 1975, the ILC initiated its work on the draft articles concerning State responsibility.  The Articles on the State Responsibility was finally adopted by the ILC on August 9, 2001.[4]  The General Assembly adopted.

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Chapter 13Peaceful Settlement of Disputes

          Historically, International Law has been regarded by the international community as a means to ensure the establishment and preservation of world peace and security.  The maintenance of international peace and security has always been the major purpose of the International Law.    It was the basic objective behind the creation of the League of Nations in 1919 and the United Nations in 1945.     Since the direct cause of war and violence is always a dispute between States, it is therefore in the interest of peace and security that disputes should be settled.  Methods and procedures for the peaceful (pacific) settlement of disputes have been made available in the International Law.

     States have concluded a great number of multilateral treaties aiming at the peaceful settlement of their disputes and differences.  The most important treaties are the 1899 Hague Convention for the Pacific Settlement of International Disputes which was revised by the Second Hague Peace Conference in 1907,[2] and the 1928 General Act for the Pacific Settlement of Disputes which was concluded under the auspices of the League of Nations.[3]  Furthermore, there are regional agreements, such as the 1948 American Treaty on Pacific Settlement (Bogotá Pact),[4] the 1957 European Convention for the Peaceful Settlement of Disputes,[5] and the 1964 Protocol of the Commission of Mediation and Arbitration of the Organization of African Unity.[6]  In addition to such general treaties on dispute settlement, there are many bilateral and multilateral agreements which include specific clauses related to dispute settlement.     The Charter of the United Nations devotes Chapter VI to the methods and procedures for the pacific settlement of disputes. Paragraph 1 of Article 33 of the Charter states the methods for the pacific settlement of disputes as the following: negotiation, enquiry, mediation, conciliation, arbitration, judicial settlement, and resort to regional agencies or arrangements.  This paragraph obliges States parties to any dispute, the continuance of which is likely to endanger the maintenance of international peace and security, to seek a solution by any of the listed methods or other peaceful means of their own choice.  

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The methods of peaceful settlement of disputes fall into three categories: diplomatic, adjudicative, and institutional methods. Diplomatic methods involve attempts to settle disputes either by the parties themselves or with the help of other entities.  Adjudicative methods involve the settlement of disputes by tribunals, either judicial or arbitral.  Institutional methods involve the resort to either the United Nations or regional organizations for settlement of disputes.

 Section 1:  Diplomatic Methods of Dispute Settlement                      Diplomatic methods of dispute settlement are negotiation, enquiry, mediation, conciliation, and good offices. A.  Negotiation [7]      “Negotiation” is the oldest, most common, and the simplest methods of settling international disputes.  It is recognized by the great majority of treaties of pacific settlement as the first step towards the settlement of international disputes.  Most of the treaties make a failure to settle a dispute by negotiation a condition precedent to compulsory arbitration or judicial settlement.  It is, therefore, not surprising that negotiation comes first in the list of means of pacific settlement of disputes stipulated in Article 33(1) of the Charter of the United Nations.     Negotiation consists of discussions between the concerned parties with a view to understand the opposing positions and opinions and reconcile the differences.  It is very suited to the clarification and elucidation of the opposing contentions.  It is the most satisfactory means to settle disputes since it is a voluntary bilateral and self-help means; the parties are directly engaged in the process; intervention by any third party in the process is not necessary.     Negotiations, however, do not always succeed in reaching solutions to disputes or differences between the parties.  Thus, third parties interventions are needed to help the parties in reaching a settlement to their disputes and differences; here comes the importance of the other diplomatic methods of dispute settlement.

B.  Enquiry [8] 

               One of the common obstacles preventing the successful settlement of a

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dispute by negotiation is the difficulty of ascertaining the facts which have given rise to the differences between the disputants.  Most international disputes involve an inability or unwillingness of the parties to agree on points of facts.   Herein lays the significance of the procedure of inquiry as a means of pacific settlement of disputes.     Many bilateral agreements have been concluded under which fact-finding commissions have been set up for the task of reporting to the parties concerned on the disputed facts.  In addition, the procedure of inquiry has found expression in treaties for the pacific settlement of disputes.     The two Hague Conventions of 1899 and 1907 established commissions of inquiry as formal institutions for the pacific settlement of international disputes.[9]  They provided a permanent panel of names from which the parties could select the commissioners.  The task of a commission of inquiry was to facilitate the solution of disputes by elucidating the facts by means of an impartial and conscientious investigation.  The report of a commission was to be limited to fact-finding and was not expected to include any proposal for the settlement of the dispute in question.     With the establishment of the League of Nations, the means of inquiry took on a new significance.  Inquiry and conciliation were viewed as integral parts of a single process for bringing about a pacific settlement to a dispute.[10]  It is in the light of this background that the Charter of the United Nations specifically lists “enquiry” as one of the methods of pacific settlement of international disputes.     Enquiry as a separate method of dispute settlement has fallen out of favor.  It has been used as part of other methods of dispute settlement.  Its purpose is to produce an impartial finding of disputed facts and thus to prepare the way for settlement of dispute by other peaceful methods.  The parties are not obliged to accept the findings of the enquiry; however, they always do accept them.     The utilization of enquiry has been evident in the practice of international organizations, such as the United Nations and its specialized agencies.  Enquiry has been used as part of other methods of dispute settlement in the context of general fact-finding.

           C.  Mediation, Conciliation and Good Offices [11]             Mediation, conciliation and good offices are three methods of peaceful

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settlement of disputes by which third parties seek to assist the parties to a dispute in reaching a settlement.  All involve the intervention of a supposedly disinterested individual, State, commission, or organization to help the parties.  When the parties are unwilling to negotiate, or fail to negotiate effectively, assistance by a third party through its mediation, conciliation, or good offices may be necessary to help in procuring a settlement.  This assistance may be requested by one or both of the parties, or it may be voluntarily offered by a third party.     Although there is no distinction in the general features of mediation, conciliation, and good offices, a theoretical and practical distinction can be made among them according to the degree of third party participation, and the extent to which the disputants are obliged to accept the outcomes of the procedures.     Mediation is a process through which an outside party (third party) endeavors to bring the disputants together and assists them in reaching a settlement.  The third party offers his assistance to the parties to a dispute. The consent of the disputants is not necessarily required initially, but no mediation proceedings can be commenced without their consent.  The mediator actively and directly participates in the settlement itself.  He does not content himself with making negotiations possible and undisturbed.  He is expected to offer concrete proposals for a solution and a settlement of substantive issues related to a dispute.  However, his proposals represent nothing more than recommendations.  They have no binding force on either disputant.  The parties to a dispute are free to accept or reject his proposals.

     Conciliation is a process of settling a dispute by referring it to a specially constituted organ whose task is to elucidate the facts and suggest proposals for a settlement to the parties concerned.  However, the proposals of conciliation, like the proposals of mediators, have no binding force on the parties who are free to accept or reject them.  As in the case of mediation, conciliators may meet with the parties either jointly or separately.  The procedures of conciliation are generally instituted by the parties who agree to refer their dispute to an already established organ, commission or a single conciliator, which is set up on a permanent basis or ad hoc basis; third parties cannot take the initiative on their own.  The conciliators are appointed by the parties to a dispute.  They can be appointed on the basis of their official functions or as individuals in their personal capacity.     Conciliation is described by some as a combination of enquiry and

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mediation.  The conciliator investigates the facts of the dispute and suggests the terms of the settlement.  But conciliation differs from enquiry in that the main objective of the latter is the elucidation of the facts in order to enable the parties through their own accord to settle their dispute; whereas the main objective of conciliation is to propose a solution to a dispute and to win the acceptance of the parties to such solution.  Also, conciliation differs from mediation in that it is more formal and less flexible than mediation; if a mediator’s proposal is not accepted, he can present new proposals, whereas a conciliator usually present a single report.        When the parties to a dispute reach the point of not being able to solve it by negotiation, or the point where they have broken off diplomatic relations, but they are convinced that a settlement is important to them, the utilization of the technique of good offices may be helpful.  Good offices may be utilized only with the agreement or the consent of both disputants.  A third party attempts to bring the disputants together in order to make it possible for them to find an appropriate settlement to their differences through their negotiations.  In this regard, the function of the third party is to act as a go-between, transmitting messages and suggestions in an effort to create or restore a suitable atmosphere for the parties to agree to negotiate or resume negotiation.  When the negotiations start, the functions of the good offices come to an end.  The procedure of good offices, in contrast to mediation, has a limited function which is simply bringing the disputants together.   In mediation, the mediator takes an active part in the negotiations between the disputants and may even suggest terms of settlement to the disputants.  Method of good offices consists of various kinds of action aiming to encourage negotiations between the parties to a dispute.  Also, in contrast to the case of mediation or conciliation, the profferer of good offices does not meet with the disputants jointly but separately with each of them.  Seldom, if ever, the profferer attends joint meetings between the parties to a dispute.  Normally, the role of the profferer of good offices terminates when the parties agree to negotiate, or to resume negotiation. However, the profferer may be invited by the parties to be present during the negotiations.  As in case of mediation, an offer of good offices may be rejected by either or both parties to a dispute.     The use of mediation, conciliation, and good offices has a long history.  These methods have been the subject of many bilateral and multilateral treaties.  However, with the establishment of the League of Nations, permanent organs were set up to

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perform the functions of these methods of pacific settlement of disputes.  In this context, the Charter of the United Nations lists in Article 33(1) mediation and conciliation, but not good offices, as methods of pacific settlement available to the parties to any dispute. Notably, in the practice of the United Nations, the terms “mediation”, “conciliation”, and “good offices” have been used with considerable looseness, flexibility and little regard to the distinctions which exist between them.Mediation and conciliation have both advantages and disadvantages as compared to other methods of dispute settlement.  They are more flexible than arbitration or judicial settlement.  They leave more room for the wishes of the disputants and the initiatives of the third party.  The disputants remain in control of the outcome.  Their proceedings can be conducted in secret.  However, there are disadvantages to mediation and conciliation.  Their proceedings cannot be started and be effective without the consent, cooperation, and goodwill of the disputants.  The proposed settlement is no more than a recommendation with any binding force upon the disputants. Section 2:  Adjudicative Methods of Dispute Settlement [12]                     The major disadvantage of the diplomatic methods of dispute settlement is that the parties to them are under no legal obligation to accept the proposals of settlement suggested to them.  Thus, the adjudicative methods of dispute settlement are preferable because they provide the issuance of binding decisions, rather than mere recommendations as in cases of diplomatic methods.  It is this binding force of the decisions rendered at the end of the adjudicative methods that distinguishes these methods from other methods of dispute settlement.     Adjudicative methods of dispute settlement consist of two types of procedures, “arbitration” and “judicial settlement”.  Arbitration and judicial settlement are two methods involve the determination of differences between States through legal decisions of tribunals. Whereas in case of judicial settlement the decision is made by an established court, permanent (such as the International Court of Justice) or ad hoc, in case of arbitration it is made by a single arbitrator or arbitral tribunal.  The major characteristic of these two methods is that a judicial decision or an award is binding on the parties and must be carried out in good faith.

     It is not until the establishment of the League of Nations that the terms

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“arbitration” and “judicial settlement” became distinguished. Under the Covenant of the League “judicial settlement” meant settlement by the Permanent Court of Justice (PCIJ), whereas “arbitration” meant settlement by other tribunals.  This same distinction is carried over by the Charter of the United Nations, but with the International Court of Justice (ICJ) substituting for the Permanent Court of International Justice (PCIJ).

     Arbitration was defined in the 1899 Hague Convention for the Pacific Settlement of Disputes as “the settlement of differences between states by judges of their choice and on the basis of respect for law”;[13] this same definition was repeated in the 1907 Hague Convention.[14]  The procedures of arbitration grew to some extent out of the processes of diplomatic settlement and represented an advance towards a developed international legal order.     Arbitration is considered the most effective and equitable means of dispute settlement. It combines elements of both diplomatic and judicial procedures.  However, it is much more flexible than judicial settlement.  It gives the parties to a dispute the choices to appoint the arbitrators, to designate the seat of the tribunal, and to specify the procedures to be followed and the law to be applied by the tribunal.  Moreover, the arbitration proceedings can be kept confidential.

     Arbitration cannot be initiated without the agreement of the parties to a dispute. An agreement of arbitration may be concluded for settling a particular dispute, or a series of disputes that have arisen between the parties.  It may be in the form of a general treaty of arbitration.     The usual pattern in arbitration agreement as regards the appointment of arbitrators is that each of the two parties has to appoint one arbitrator or more, and the appointed arbitrators have to appoint the arbitrator, who is known as an “umpire”.  Usually, the arbitral tribunal consists of three arbitrators, who can decide by majority vote.  The parties may agree to refer their dispute to a single arbitrator, who may be a foreign head of a State or government, or a distinguished individual.     Judicial settlement is a settlement of dispute between States by an international tribunal in accordance with the rules of International Law.  The international character of the tribunal is in both its organization and its jurisdiction.  International tribunals include permanent tribunals, such as the International Court of Justice (ICJ), the International Tribunal for the law of the Sea (ITLOS), the European Court

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of Justice, the European Court of Human Rights and the Inter-American Court of Human rights, and include ad hoc tribunals, such as the United Nations Tribunal in Libya.     The ICJ is the most important international tribunal, because of its both prestige and jurisdiction.  It is the principal judicial organ of the United Nations.  All members of the United Nations are ipso facto parties to the Statute of the Court. The judges of the ICJ are appointed by the United Nations, not by the parties to a dispute.  The ICJ has to apply the rules and principles of International Law, which are enumerated in Article 38 of the Statute of the Court; the parties have no choice in specifying the rules to be applied by the Court.  The jurisdiction of the Court includes all disputes between States concerning the interpretation of a treaty, any question of International Law, and the existence of any fact constituting breach of international obligations, and the nature or extent of the reparation to be made for the breach of an international obligation.

     The Charter of the United Nations refers to “arbitration” and “judicial settlement” in Article 33(1) as two methods among other methods of pacific settlement that States are encouraged to utilize in seeking a solution to their international disputes.  It is also provides in Article 36(3) a guidance to the Security Council requiring it “to take into consideration that legal disputes should as a general rule be referred by the parties to the International Court of Justice”.  Despite this provision, the Charter does not impose on members of the United Nations the obligation to submit any dispute, even legal one, to the Court.  Moreover, the Charter provides that nothing in it “shall prevent Members of the United Nations from entrusting the solution of their differences to other tribunals by virtue of agreements already in existence or which may be concluded in the future”.[15]

Section 3:  Institutional Methods of Dispute Settlement      Institutional methods of dispute settlement involve the resort to international organizations for settlement of international disputes. These methods have come into existence with the creation of the international organizations.  The most eminent organizations, which provide mechanisms for settling dispute between their member States, are the United Nations and the regional organizations, such as the European Union, the Organization of American States, the Arab league and the African Union. 

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(1)  Peaceful Settlement of Dispute by the United Nations: [16]      The Settlement of international disputes is one of the most important roles of the United Nations.  The Charter of the United Nations stipulates that it is the task of the United Nations “to bring about by peaceful means, and in conformity with the principles of justice and international law, adjustment or settlement of international disputes or situations which might lead to a breach of the peace.”[17]  To this end, the Charter provides a system for the pacific settlement or adjustment of international disputes or situations under which the wide competence of the United Nations in this matter is established, and the corresponding obligations of the members of the United Nations are imposed.  This system is delineated mainly in Chapter VI of the Charter.

     Chapter VI of the Charter contains the United Nations mechanism for the pacific settlement of disputes.  Article 33 obliges the parties to a dispute, the continuance of which is likely to endanger the maintenance of international peace and security, to settle such a dispute by any of the enumerated peaceful means therein, or by any peaceful means of their choice.  When the parties fail to observe their obligations or their efforts are not successful, the United Nations will intervene to consider the dispute and give its recommendations on the matters.  The Security Council is given the primary responsibility in this regard.[18]  It is entitled to intervene either on its own initiative, upon invitation of any member of the United Nations, upon invitation by the General Assembly, or upon a complaint of a party to a dispute.[19]  The Security Council may follow three courses of action.  First, it may call upon the parties to a dispute to settle their dispute by any of the peaceful means listed in Article 33(1).[20]  Second, it may recommend to the parties appropriate procedures or method of settlement.[21]  Third, it may recommend terms of settlement, as it may consider appropriate.[22]     Although under the Charter the Security Council is given the primary role for maintaining international peace and security, the General assembly is not excluded from doing so.  Under Articles 11, 12 and 14, the General Assembly may discuss and make recommendations for procedures or methods of adjustment, or for terms of settlement, with regard to any dispute or situation brought before it.  The disputes or situations may be brought before the General Assembly by the Security Council, any member of the United Nations, or any State party to such dispute.[23] 

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      (2)  Peaceful Settlement of Dispute by Regional Organizations: [24]     Article 33(1) of the Charter of the United Nations requires the parties to any dispute, the continuance of which is likely to endanger the maintenance of international peace and security, to seek, first of all, a solution by any of the peaceful methods enumerated therein. Among these enumerated methods is the “resort to regional arrangements or agencies”.     Article 52 of the Charter recognizes the right of the members of the United Nations to establish regional arrangements or agencies “for dealing with such matters related to the maintenance of international peace and security”.   Paragraph 2 of this Article requires the member States that are members of regional arrangements or agencies to “make every effort to achieve pacific settlement of local disputes through such regional arrangements or by such regional agencies before referring them to the Security Council.     It seems that the obligation imposed upon the member States by Article 52(2) is consistent with their obligation under Article 33(1). However, paragraph 1 of Article 52 imposes two explicit limitations with regard to the utilization of regional arrangements and agencies.  First, it requires that the matters dealt with must be “appropriate for regional action”.  Second, it requires that the “arrangements or agencies and their activities are consistent with the Purposes and Principles of the United Nations”.  Moreover, a third explicit limitation is imposed by Article 54 which requires that the Security Council should “at all times be kept fully informed of activities undertaken or in contemplation under regional arrangements or by regional agencies for the maintenance of international peace and security”.  No similar explicit limitations are imposed with regard to the utilization of other procedures for pacific settlement.     Article 52 is not only confined to legitimizing regional arrangements or agencies and imposing an obligation upon the member States, but goes beyond such legitimization and obligation by pacing a duty on the Security Council itself.  Paragraph 3 of this Article requires the Security Council to “encourage the development of pacific settlement of local disputes through such regional arrangements or by such regional agencies either on the initiative of the states concerned or by reference from the Security Council”.         This provision is in harmony with the general approach of the Charter related to the

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pacific settlement of disputes which requires the parties themselves to seek a solution to their dispute by any peaceful means of their own choice, and that the Council should give every opportunity to the parties to do so.  If the parties have referred their local dispute to the Security Council before making any effort to achieve a settlement through the regional arrangements or agencies, then the Council is under a duty to remind them of their obligation, or to refer such dispute at its own initiative to such arrangements or agencies, the legal consequences resulted from, and the implementation of such responsibility.

Chapter 14Legal regulation of the Use of Force

     The term “law of war” refers to both the rules governing the resort to force (ius ad bellum) and the rules governing the actual conduct of force (ius in bello) in International Law.[2]  Because each of these two types of rules governs different subject matters, it is reasonable to deal with them separately.  Therefore, this chapter is devoted to deal with the rules governing the resort to force (ius ad bellum); while the next chapter entitled “International Humanitarian Law” is devoted to deal with the rules governing the actual conduct of force (ius in bello).

     The rules governing the resort to force form a central element within International Law. These rules together with other principles such as territorial sovereignty, independence and equality of States provide the framework for the international order.[3]  While a domestic system prescribes the monopoly on the use of force by a State, through its governmental institutions, in order to enable the State to preserve its authority and maintain its control within its territory, the International Law seeks to minimize and regulate the use of force by States in their international relations in order to preserve and maintain peace and security in the world community.[4]            The position of International Law towards the use of force by States has not been the same throughout the history.  Because of this fact, in the following sections we will deal with the use of force, first, before 1945, the establishment of the United Nations, and second, under the Charter of the United Nations.

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 Section 1: The Rules Related to the Use of Force Before 1945                                  “War” is the apparent manifestation of the use of force by States.  It is a status or condition of armed hostility between States.  It comes into existence either by a formal declaration or by acts of armed force between States without a formal declaration.     Early in History, war was resorted to for various reasons and causes without any distinction, and was conducted without any limitation and control.  The distinction between “just war” (bellum justum) and “unjust war” (bellum injustum) arose as a consequence of the Christianization of the Roman Empire and the abandonment by Christians of pacifism.[5]  The doctrine of “just war” was founded on the belief that force could be used if it complied with the divine will.  Just war was to be employed as the ultimate sanction for the m aintenance of an orderly society.  St Augustine (354-430) defined the just war in terms of avenging of injuries suffered where the guilty party had refused to make reparation.[6]  War was to be employed to punish wrongs and restore the peaceful status quo, nothing further. Aggression was unjust.  The resort to force should be strictly controlled.  St Thomas Aquinas in the Thirteenth Century went a further step in the definition of just war by declaring that war could be justified provided it was waged by sovereign authority, it was accompanied by just cause, i.e. the punishment of wrongdoers, and it was supported by the right intentions on the part of the belligerents.[7]

     The teachings of the Christian theologians on distinguishing between just war and unjust war were eventually adopted by the early classical writers on “the law of nations”, such as Alberico Gentili (1552-1608) and his successor Hugo Grotius (1583-1645).[8] However, all of these writers took a different approach on this question in the light of the rise of the European nation-states and eventually modified the doctrine of just war.  The doctrine became linked with the sovereignty of States, and it was approached in the light of wars between Christian States, each side being convinced of the justice of its cause.[9]  

The early writers on the law of nations approached the doctrine of just war from a purely subjective point of view, admitting the possibility of both sides having a just cause and believing in being in the right even though one of them might have been

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objectively wrong.[10]  Thus, the doctrine of just war could not be objectively applied to determine whether or not a war was just, and consequently the distinction between just war and unjust war never became part of the law of nations.[11]  Eventually, in the Eighteenth Century, the distinction was virtually abandoned by the law of nations.[12]        The doctrine of the just war that arose with the increasing power of Christianity declined with the outbreak of the inter-Christian religious wars and the establishment of an order of secular national sovereign States in Europe.[13]                  In the Nineteenth Century, war in the practice of the European States was often represented as a last resort, as a means of dispute settlement.[14]  The resort to war was regarded as an attribute of statehood.  War was a legal state of affairs in International Law.   It was to be justified if it was fought for the defense of certain vital interests.   Each State remained the sole judge of its vital interests. Vital interests constituted a source for political justifications and excuses used for propaganda purposes, not a legal criterion of the legality of war.  There also existed other methods of employing force that fell short of war, such as reprisals and blockades.[15]     The international jurists of the Nineteenth Century abandoned emphases on the legality of war (jus ad bellum), and concentrated on the legality of the conducts of war (jus in bello).[16]  Therefore during this century, a series of regulatory conditions and limitations on the conducts of war, or of force in general, were recognized under International Law in order to minimize the resort to war, or at least to restrict its application.[17]  There also existed legal consequences resulting from the exercise of the right to resort to war.

     The unprecedented suffering of the First World War caused a revolutionary change in the attitudes towards war.[18]  The doctrine of just war was revived after this war.  The creation of the League of Nations in 1919 constituted an effort by the world community to rebuild international affairs upon the basis of a general international institution which would oversee the conducts of the States to ensure that aggression could not happen again.  The Covenant of the League of Nations, although it did not prohibit the resort to war altogether, it introduced a different attitude, than that existed previously, to the question of war in International Law.  

The Covenant set up procedures designated to restrict the resort to war to tolerable

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levels.  It declared that members of the League agreed that they would submit their disputes, which likely to lead to a rupture, either to arbitration or judicial settlement, or to inquiry by the Council of the League.[19]  The members also agreed that in no case they would resort to war until the elapse of three months after the award by the arbitrators or the judicial decisions, or the report by the Council.[20]   During the years following the creation of the League of Nations, various efforts were made to fill the gap in the League system, which is to transform the partial prohibition of war into total prohibition of war.[21]  These efforts resulted in the conclusion of the General Treaty for the Renunciation of War in 1928 (known as the Kellogg-Briand Pact or Pact of Paris).[22]  The parties to this multilateral treaty condemned recourse to war for the solution of international controversies, agreed to renounce war as an instrument of national policy in their relation with one another, and agreed to settle all disputes or conflicts only by pacific means.  This trend was adopted by the Charter of the United Nations in 1945.

 Section 2: The Use of Force under the Charter of the United Nations      The Charter of the United Nations establishes a fundamental distinction between legal and illegal resort to force.  By this, it has, in a way, revived in International Law the old distinction between just and unjust war.  Moreover, it goes further than the position of the classical international law towards the use of force.  While the classical international law did not place any restriction on the right of States to use force and to go to war, the Charter of the United Nations provides provisions aiming to control the use of force, on one hand prohibiting the use of force, and on the other hand permitting the use of force in exceptional cases. A.  The Prohibition of the Use of Force      The preamble of the Charter of the United Nations starts with the determination of the peoples of the United Nations to save succeeding generations from the scourge of war, and their willingness to practice tolerance and live together in peace with one another as good neighbors, and not to use armed force except in the common interest.  To this end Article 2(4) of the Charter provides:            All members shall refrain in their international relations from the threat or use

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of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.      This article formulates the principle of the prohibition of the use of force in International Law, by imposing upon the States members of the United Nations the basic obligation to refrain from the threat or use of force in their international relations.  The provision of this article, which marks the general acceptance of the prohibition of the use of force in international relations, is of universal validity.  The principle of prohibition of the use of force bounds the States members of the United Nations and the United Nations itself, as well as, the few States which are not members of this international organization since it is a principle of customary international law.  Article 2(4) mentions the use of force not the resort to war; by this, it intends to include in the prohibition all sorts of hostilities, short of war, in which States may be engaged.   It prohibits not only the use of force but also the threat of force.     The prohibition of the threat or use of force in international relations against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations, as stated in Article 2(4), is reinforced by other provisions of the Charter, particularly paragraph 3 of the same article.  Article 2(3) imposes upon States the obligation to “settle their international disputes by peaceful means in such a manner that international peace and security, and justice, are not endangered.” Furthermore, this prohibition is elaborated as a principle of International Law in the 1970 General Assembly “Declaration on Principles of International Law Concerning Friendly relations and Co-Operation among States in According with the Charter of the United Nations.”[23]

     The 1970 Declaration on Principles of International Law provides that the threat or use of force constitutes a violation of International Law and the Charter of the United Nations and should not be employed as a means of settling international issues.  It declares that a war of aggression constitutes a crime against peace, for which there is responsibility under International Law.  It lists systematically the obligations of States in this regard.  Every State has to refrain from propaganda for wars of aggression.  It has to refrain from the threat or use of force to violate the existing international boundaries of another State, or the international lines of

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demarcation. It has to refrain from acts of reprisal involving the use of force.  It has to refrain from any forcible action which deprives peoples of their right to self-determination, freedom and independence.  It has to refrain from organizing, instigating, assisting or participating in acts of civil strife or terrorist acts in another state, or acquiescing in organized activities within its territory directed towards the commission of such acts.            The Declaration provides that the territory of a State shall not be the object of military occupation or acquisition by another State resulting from the threat or use of force, and that such territorial acquisition shall not be recognized as legal.     The Declaration obliges all States to comply in good faith with their obligations under the generally recognized principles and rules of International Law with respect to the maintenance of international peace and security, and to make the United Nations security system based upon the Charter more effective.     The Declaration, however, provides that its provisions shall not construed as enlarging or diminishing in any way the scope of the provisions of the Charter concerning cases in which the use of force is lawful.  By this provision, the Declaration reaffirms the exceptions to the principle of the prohibition provided for in the Charter of the United Nations. B.   The Exceptions to the Prohibition of the Use of Force      The Charter of the United Nations formulates two exceptions to the principle of the prohibition of the use of force in international relations.  The first exception is the use of force in a case of exercising the right of individual or collective self-defense under Article 51. The second exception is the use of force by authorization of the Security Council of the United Nations under Chapter VII.     The 1950 General Assembly “Uniting for Peace” Resolution formulates a third exception to the principle of the prohibition of the use of force, which is the use of force upon a recommendation of the General Assembly.[24]  A fourth exception is formulated by the 1974 General Assembly Resolution on “the Definition of Aggression”[25] which entitles the people forcibly deprived of the right to self-determination, or under colonial domination or alien subjugation, to struggle to achieve their objectives in self determination and independence.[26] (1)  The Right of Self-Defense [27]    

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       Article 51 of the Charter of the United Nations provides:        Nothing in the present Charter shall impair the inherent right of individual         or collective self-defense if an armed attack occurs against a Member of the               United Nations, until the Security Council has taken the measures necessary           to maintain international peace and security. Measures taken by Members in           the exercise of this right of self-defense shall be immediately reported to the           Security Council and shall not in any way affect the authority and           responsibility of the Security Council under the present Charter to take at any           time such action as it deems necessary in order to maintain or restore           International peace and security.     This article formulates the major exception to the prohibition of the use of force in international relations.  It indicates that the right of individual and collective self-defense, which existed under customary international law, is reserved to the extent it is qualified therein and elsewhere in the Charter of the United Nations.     The right of self-defense, as formulated by the Charter, is a subject of an extensive controversy as regards its precise extent.  Does Article 51 clarify or qualify the right of self-defense which exists in the customary international law?  Is the anticipatory (preventive or pre-emptive) self-defense included within the meaning of the right of self-defense formulated in Article 51?  What is the meaning of the term “armed attack”?     There are two conflicting interpretations of the right of self-defense formulated in Article 51 of the Charter of the United Nations, namely the restrictive view and the broad (extensive) view.  The restrictive view indicates that all use of force is illegal except in the exercise of the right of self-defense if and only if an armed attack occurs.[28]  This means that the right of self-defense does not exist against an action which does not constitute an armed attack, whatever the nature and extent of such action.  Moreover, this implies that anticipatory (preventive or pre-emptive) self-defense is not permitted under Article 51 of the Charter of the United Nations.  The argument for this view is that the principle of effectiveness requires a restrictive interpretation of Article 51.  Such interpretation is consistent with Article 2(4) of the Charter which intends only to clarify the prohibition on the use of force and not to qualify it.   It is also consistent with the view that Article 51 is intended to modify the right of self-defense which has existed in customary international law; Article 51 qualifies the existing right of self-defense.      The broad (extensive) view indicates that the use of force in self-defense is

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excluded from the scope of Article 2(4).[29]  The right of self-defense, which has existed as an inherent and natural right in customary international law, is over and above the specific provisions of Article 51 which refer only to the case where an armed attack has occurred.  The right of self-defense is allowed against an armed attack as well as against any other hostile action short of an armed attack.  This implies that anticipatory self-defense comes within the meaning of Article 51, which does not intend to impair the scope of the inherent right of self-defense existing in customary international law.  Accordingly, the protection of nationals abroad, the protection of property situated abroad, an attack against an individual-national abroad, the war against terrorism, or the existence of weapon of mass destruction in a given State, may justify the exercise of the right of self-defense.       Whatever the view concerning the right of self-defense, it is well recognized that for the exercise of this right customary international law requires three basic legal requirements:  the use of peaceful procedures--if they are available, necessity and proportionality.[30] These three requirements represent three central elements which must be complied with under customary international law in order to invoke self-defense lawfully against illegally initiated force.     Self-defense is justified only when the necessity for action is instant, overwhelming, and leaves no choice of means and no moment for deliberation.[31]  Acts done in self-defense must not be unreasonable or excessive, since the acts justified by a necessity of self-defense must be limited to that necessity and kept within it.[32]  Proportionality in coercion requires that the responding coercion be limited in intensity and magnitude to what is reasonably necessary promptly to secure the permissible objectives of self-defense.[33]    Article 51 of the Charter seems to demand a higher degree of necessity than the customary international law.  Under this article, the right of self-defense does not exist against any form of action which does not constitute “armed attack”.[34]  Self-defense is justified against an actual danger, something that has taken place, not against a threat of use of force.  Nothing less than “armed attack” shall constitute a justifying act for the exercise of the right of self-defense.  So “preventive war” is prohibited under this article.[35]     Article 51 adds a forth requirement to the three requirements of customary international law for justifying the exercise of self-defense.  It requires the Member State to report immediately the measures taken in the exercise of the right of self-

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defense to the Security Council, and to stop its action when the Security Council takes the necessary measures in this regard.     In conclusion, the Charter recognizes the right of member States, acting individually or collectively, to declare war against an aggressor and to take military action against him until the Security Council takes the measures necessary to maintain international peace and security.

(2)  The Use of Force by Authorization of the Security Council       The second exception to the prohibition of the use of force in international relations is formulated in Article 42 of Chapter VII of the Charter of the United Nations.  Article 42 provides that the Security Council may take such coercive military action by air, sea, or land forces as may be necessary to maintain or restore international peace and security.  Such action may include demonstrations, blockades, and other operations by air, sea, or land forces of Members of the United Nations.  This means that the Security Council has the power to order or authorize e the use of force or, in traditional terminology, the resort to war.  However, the Council is required to fellow the procedures provided for in Chapter VII of the Charter of the United Nations.  (3)  The Use of Force upon a Recommendation of the General Assembly                The “Uniting for Peace” Resolution, adopted by the General Assembly on November 3, 1950, grants the General Assembly of the United Nations the power to act in place of the Security Council if the latter fails to discharge its primary responsibility in maintaining international peace and security.  Under this resolution, the General Assembly may do by recommendations anything that the Security Council can do by decisions under Chapter VII.  The Assembly can make appropriate recommendations to members for collective measures, including the use of armed force, if the Council in any case where there appears to be a threat to the peace, breach of the peace or act of aggression fails to exercise its responsibility, because of the lack of unanimity of its permanent members. (4) The Use of Force by Peoples for Self Determination and Independence         Article 7 of the 1974 General Assembly Resolution on “the Definition of Aggression” grants the peoples forcibly deprived of their right of self-determination, freedom and independence, particularly peoples under colonial and racist regime or

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other forms of alien domination, the right to struggle for the purpose of achieving their self determination, freedom and independence.  This implies that those peoples can use armed force in their struggle, and this is a forth exception to the principle of prohibition of the use of force in international relations.

Chapter 15

International Humanitarian Law     The rules of “Law of War”, dealt with in the previous chapter, which govern the resort to force in international relations (ius ad bellum), are intended to prohibit, or at least to restrict, the resort to war (armed force) in international relations.  However, because it is not possible to fully prevent war (the use of armed force), attempts have been made to regulate the conducts of war in order to mitigate its extent.  The attempts have succeeded in establishing rules to govern the actual conducts of war (ius in bello).  These rules, to some legal scholars, are part of the Law of War, thus they are referred to as rules related to “Law of War”.   However, to others they form a separate law known as “International Humanitarian Law”.     Because the prevailing view considers “International Humanitarian Law” to be a separate law, it is reasonable to deal with this law in a separate chapter. Thus, the present chapter is endeavored to the study of “International Humanitarian Law” (called also “Law of Armed Conflicts”).     As it has been apparent that prevention of war has not been possible, it has been

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apparent that the rules formulated in “International Humanitarian Law” would not be effective without attaching responsibilities in cases of their violations, and without having a mechanism to prosecute violators. Thus, “International Criminal Law” has come into existence, as a derivative of “International Humanitarian Law”.     “International Humanitarian Law” is the subject of this chapter, while “International Criminal Law” is the subject of the previous chapter.      “International Humanitarian Law” (called also “Law of Armed Conflicts”) is that branch of International Law which regulates the conduct of armed conflicts (war).[2]  It is inspired by a feeling for humanity and is centered on the protection of human being in time of war (armed conflicts).[3]  It seeks to mitigate the effect of armed conflicts by limiting the choice of means and methods of conducting military operations and providing protections to persons and civilian objects during armed conflicts.[4]     International Humanitarian Law compiles those rules of International Law which aim to protect persons, victims of the evils of armed conflicts, as well as, by extension, objects not directly serving military purposes.[5]  In this sense, it is apparent that there is a relation between International Humanitarian Law and the Law of Human Rights because both laws aim to guarantee to persons the enjoyment of rights and freedom and to protect them from evils.[6]   However, there is an essential difference between these two laws since International Humanitarian Law applies only in time of armed conflicts, while Law of Humanitarian rights applies in all time.[7]        How does “International Humanitarian Law” emerge and develop?  What are its sources, scope and content?  How is it executed? These are the questions, which are answered in the following.

Section 1:  The Codification and Development of International Humanitarian Law      To protect man against the evils of war and cruel treatments is not a new idea.  It goes back to the dawn of history.[8]  In a distant past, some military leaders used to order their troops to spare the lives of enemy prisoners (soldiers and civilians) and to treat them well. Often upon the termination of war, the belligerent parties used to agree to exchange the prisoners in their hands.  Throughout the history, such practices and likewise gradually evolved into a body of customary rules regulating the conduct of war.

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     Because the scope and content of the customary rules related to the conduct of war were somewhat vague and uncertain, a movement was initiated during the Nineteenth Century to embody such rules in binding international instruments.[9]  In 1864, mainly as a result of the pioneering effort of the Swiss businessman Henry Dunant, a diplomatic conference convened in Geneva by invitation of the Swiss Government for the purpose of codifying certain rules which would guarantee a better treatment of the wounded and facilitate the work of the medical personnel in the field of land-war.  On August 22, 1864, the conference adopted the “Convention for the Amelioration of the Condition of the Wounded in Armies in the Field”.[10]

     The most important principles introduced by the 1864 Geneva Convention were:  The neutrality of ambulances and military hospitals, as such, they are protected and respected by the belligerents as long as they accommodate wounded and sick; hospitals, ambulances and evacuation parties would be distinguished by a uniform flag or armlet bearing “a red cross on a white ground”; the exemption of hospital and ambulance personnel from being captured or being the target of fire; wounded and sick combatants should be collected and cared for; and civilians coming to the assistance of the wounded should be respected.[11]  This Convention was accepted by all the then independent States.     The 1864 Geneva Convention was the first modest step in the process of codifying rules of International Humanitarian Law.  This step was followed by many other steps, before the “International Humanitarian Law” reached its present scope and content.[12]     In 1868, the “Declaration of St Petersburg” came to prohibit the use of explosive or flammable bullets.[13]  This Declaration, in fact, added strength to the principle of the Law of War concerning the obligation of the belligerents to limit the use of force in meeting a legitimate military objective.      At the Hague Peace Conferences of 1899 and 1907, a series of conventions were adopted, codifying the law of war.[14]  The Conventions were intended to set legal limits to means and methods of land and naval warfare; such legal limits still form the basis of the existing rules.  The Conventions emphasized that belligerents remained subject to the “Law of Nations.”  They contained rules concerning the treatment of prisoners of war; the conduct of military operations, particularly in regard of means of injuring the enemy, sieges and bombardments, and occupied territory; and the rights and duties of neutral States. Moreover, One of these

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Conventions, namely the “1907 Hague Convention for the Adaptation to Maritime Warfare of the Principles of Geneva Convention” (the Tenth 1907 Hague Convention) expanded the protection of the 1906 Geneva Convention to the victims of war at sea.[15]     The 1864 Geneva Convention was revised twice, before and after the First World War, in order to adapt its provisions to new realities.[16]  The first revision took place in 1906. The major achievement of the “1906 Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armies in the Field”[17] was the development of the provisions for application of the principles formulated in the 1864 Convention, taking into account the changes in the world, particularly the growing development of the means of destruction, in order to make such principles more effective.  The second revision was made in 1929, taking into account the experiences of the First World War, particularly those related to the treatment of the wounded, the sick, and the prisoners of war.  Two Conventions were concluded in 1929:  the “1929 Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armies in the Field”;[18] and the “1929 Geneva Convention Relative to the Treatment of Prisoners of War”.[19] The two Conventions made important improvements to the old provisions of the Law of Geneva.   They formulated a clear and complete set of rules and principles on capture and captivity of prisoners of war, and on the treatment of the wounded and the sick.  They introduced the ban on reprisals against the prisoners of war, and the principle that application of the rules of the Convention would be open to international scrutiny.  Notably, in this 1929 Diplomatic Conference, the “red crescent” was recognized as the symbol of Muslim countries in place of the “red cross”.

     The atrocities of the Second World War provided the incentive for major revision and further development of the law of Geneva.  In 1949 a diplomatic conference was convened in Geneva at the instigation of the International Committee of the Red Cross (ICRC) and by invitation of the Swiss Government for such purposes.[20]  The 1949 Geneva Conference led to the conclusion of four Conventions; three Conventions substituting the three Conventions in force, namely the Tenth 1907 Hague Convention and the two 1929 Geneva Conventions; and the Convention on the protection of civilian persons in time of war, which was the innovation of this Conference.[21] The four 1949 Geneva Conventions deal respectively with the

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amelioration of the condition of the wounded and sick members of the armed forces in the field, the amelioration of the condition of the wounded, sick and shipwrecked members of the armed forces at sea, the treatment of prisoners of war, and the protection of civilian persons in time of war.[22]     In 1977, two Additional Protocols to the 1949 Conventions were adopted at the closing of the 1974-1977 “Conference on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts” which was held in Geneva at the invitation of the Swiss Government.[23]  Protocol I deals with the protection of victims of international armed conflicts. [24]  It develops in detail the rules of Geneva Conventions and The Hague Conventions concerning the methods and means of warfare.  Protocol II deals with the protection of victims of internal armed victims.[25]  It develops and supplements the rules of the 1949 Geneva Conventions concerning the non-international armed conflicts.       In addition to the 1949 Geneva Conventions and the 1977 Additional Protocols, several conventions related to the protection of persons and objects in time of war, and related to the prohibition of certain weapons, were adopted in the years after 1949.[26]  Among these conventions are:  The 1954 Convention for the Protection of Cultural Property in the Event of Armed Conflict; the 1972 Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological (Biological) and Toxin Weapons and Their destruction; the 1980 Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons Which May be Deemed to Excessively Injurious or to Have Indiscriminate Effects; and the Chemical Weapons Treaty of 1993. Section 2:  Sources, Scope and Content of International Humanitarian Law          A.  The Sources and Composition of International Humanitarian Law      All the conventions mentioned above could constitute the sources of the International Humanitarian law. The codification of the rules of International Humanitarian Law shows that this law consists of two branches:  the Law of Geneva and the Law of The Hague.  While the Law of Geneva has a precisely defined subject area, which is the protection of persons against abuse of force, the Law of The Hague covers all the other problems of the law of war. 

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(1)  The Law of The Hague     The Law of The Hague consists of the several Conventions adopted at the Hague Peace Conferences of 1899 and 1907.[27] The Hague Conventions regulates various aspects of the laws of war and neutrality.  Almost all these conventions are still in force, although many of their provision have been overtaken by the modern conditions of warfare.   The conventions regulates matters such as the opening of hostilities, the laws and customs of war on land, the rights and duties of neutral powers and persons in case of war on land, the status of enemy merchant ships at the outbreak of hostilities, the conversions of merchant ships into warships, the laying of automatic submarine contact mines, bombardment by naval force in time of war, capture in naval war, and rights and duties of neutral powers in naval war. (2)  The Law of Geneva      The Law of Geneva consists of four conventions of 1949 and two additional protocols of 1977.[28]  The conventions are:-         The First Geneva Convention of 1949:  Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field.-         The Second Geneva Convention of 1949:  Geneva Convention for the Amelioration of the Condition of the Wounded, Sick and Shipwrecked Members of Armed Forces at Sea.-         The Third Geneva Convention of 1949:  Geneva Convention relative to the Treatment of Prisoners of War.-         The Fourth Geneva Convention of 1949:  Geneva Convention relative to the Protection of Civilian Persons in Time of War.      The additional protocols to the Geneva conventions are:-         Protocol I:  Protocol Additional to the Geneva Conventions of 12 August 1949, and Related to the Protection of Victims of International Armed Conflicts.-         Protocol II:  Protocol Additional to the Geneva Conventions of 12 August 1949, and Related to the Protection of Victims of Non-International Armed Conflicts.

      

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B.  The General Scope of International Humanitarian Law        All The Hague Conventions and the 1906 Geneva Convention include the general participation clause (clause si omnes) which states that the provisions of the Conventions shall be binding on the contracting parties only in case of hostilities between two or more of them and that those provisions shall cease to be binding if one of the belligerent powers is not a signatory to the Convention.[29]  Such a clause was generally accepted before the First World War.[30]

     However, the four 1949 Geneva Conventions specifically rejected such a clause. They state that the conventions shall be respected in all circumstances, and shall apply to all cases of declared war or any other armed conflict which may arise between two or more of the contracting parties, and that even if one of the powers in conflict is not a party to the Conventions, the powers who are parties to the Conventions shall remain bound by them in their mutual relations, and they shall furthermore be bound by the Conventions in relation to the said power, if the latter accepts and applies the provisions thereof.[31]  Furthermore, they provide that neutral powers shall apply by analogy the provisions of the Conventions to the concerned persons received or interned in their territory.[32]     The Geneva Conventions expands their application to cases not involving armed conflict and cases of non-international armed conflict.  They state that they apply to all cases of partial and total occupation of the territory of the contracting party even if the said occupation meets with no armed resistance.[33] They also apply to cases of armed conflict not of an international character occurring in the territory of one of the contracting parties; in such cases, each party to the conflict shall be bound to apply, as a minimum the specified provisions of the Conventions which guarantee to the victims of this type of armed conflict at least the minimum protection.[34]  This position of the Geneva Conventions regarding the non-international armed conflict occurring in the territory of a contracting party constitutes derogation from the traditional principle of International Law concerning the application of a convention only between the contracting parties (sovereign States); such a position is reaffirmed in the 1977 Protocol II.     Protocol II provides that it apply to armed conflicts not covered by Protocol I, and to armed conflicts taken place in the territory of a contracting party between its armed forces and dissident armed forces or other organized armed groups which, under responsible command, exercise such control over a part of its territory as to

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enable them to carry out sustained and concerted military operations and to implement this Protocol.[35]  In this sense, Protocol II does not apply to situations of internal disturbances and tensions, such as riots, isolated and sporadic acts of violence and other acts of similar nature, as not being armed conflicts.[36]     The 1977 Protocol I extends the application of the 1949 Geneva Conventions to include wars of national liberation.  It provides that it apply to cases of armed conflicts in which peoples are fighting against colonial domination, alien domination and racist regimes in the exercise of their right of self determination in accordance with the Charter of the United Nations and the 1970 “Declaration on Principles of International Law….”[37]     It is thus apparent from the above developments that the scope of International Humanitarian Law was gradually enlarged.  Today this Law applies to all circumstances: in cases of armed conflicts involving contracting parties as well as non-contracting parties; in cases involving States as well as certain entities other than States; in cases of international armed conflicts and wars of national liberation as well as non-international armed conflicts (internal armed conflicts).  This trend can be interpreted as modifying certain traditional concepts of International Law, particularly those related to the subjects of the Law.     Notably, International Humanitarian Law recognizes two different categories of armed conflicts, international armed conflicts and non-internal armed conflicts.  International armed conflicts (known as Wars) are those involve two or more States; wars of national liberation are considered international armed conflicts.  Non-international (internal) armed conflicts (usually known as civil wars) are those warlike hostilities which occur in the territory of a single State.  C.  The Persons Protected under International Humanitarian Law         The main aim of International Humanitarian Law is to protect persons, victims of the evils of armed conflicts.  To this end, this Law formulates a set of protections to be provided to certain categories of persons who are called “protected persons”.  Protected persons are those who, at a given moment and in any manner whatsoever, find themselves, in case of a conflict or occupation, in the hands of a party to the conflict or occupation power of which they are not nationals.[38]  The protected persons to whom the protections of International Humanitarian Law apply are the following:

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 1.  The Wounded and the Sick      Wounded and sick are persons, whether military or civilian, who because of trauma, disease or other physical or mental disorder or disability, are in need of medical assistance or care and who refrain from any act of hostility.[39]  They also include maternity cases, newborn babies and other persons who may be in need of immediate medical assistance or care, such as expectant mothers, and who refrain from any act of hostility.[40]        2.  Shipwrecked       Shipwrecked are persons, whether military or civilian, who are in peril at sea or in other waters as a result of misfortune affecting them or the vessel or aircraft carrying them and who refrain from any act of hostility.[41] 3. Medical Personal                    Medical personal are those persons, whether military or civilian, assigned, whether permanently or temporary, by a party to the conflict, exclusively to the medical purposes or to the administration of medical units or the operation or administration of medical transports.[42]  Medical purposes include the search for, the collection, transport and treatment of the wounded and sick.[43] Medical personnel also include: the medical personnel of national Red Cross (Red Crescent) societies and other national voluntary aid societies duly organized and authorized by a party to a conflict; the medical personnel of a neutral or of other State which is not a party to that conflict, or of a recognized and authorized aid society of such a State; and the medical personnel of an impartial international humanitarian organization.[44]     “Medical units” means establishments and other units, whether military or civilian, organized for medical purposes, namely the search for, collection, transportation, diagnosis or treatments of the wounded, sick and shipwrecked or for the prevention of disease.[45]  This term includes hospitals and the likes, and various medical centers.     “Medical transports” means any means of transportation, such as vehicles, ships and aircrafts, whether military or civilian, permanent or temporary, assigned

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exclusively to medical transportation and under the control of a competent authority of a party to the conflict.[46]     4.  Religious Personnel                       Religious personnel are military or civilian persons, such as chaplains, who are exclusively engaged in the work of their ministry and attached to the armed forces, medical units, medical transports, or civil defense organization of a party to the conflict.[47]   They also include:  those assigned by a neutral or other State which are not a party to that conflict, or by a recognized and authorized aid society of such a State; and those assigned by an impartial international humanitarian organization.[48] 5.  Prisoners of War            Prisoners of war are combatants who have fallen into the hands of the enemy, the adverse party to the conflict.[49]  Combatants are members of the armed forces of a party to a conflict other than medical and religious personnel.[50]  The armed forces of a party to a conflict consist of all organized armed forces, groups and units (militias or volunteer corps forming part of such armed forces) which are under a command responsible to that party for the conduct of its subordinates.[51]  Combatants also include members of other militias and members of other volunteer corps, including those of organized resistance movements, belonging to a party to the conflicts and operating in or outside their own territory, provided that such groups fulfill the conditions specified in the Third Geneva Convention, which are: 1) They are commanded by a person responsible for his subordinates; 2) They have a fixed distinctive sign recognizable at a distance; 3) They carry arms openly; and 4) They conduct their operations in accordance with the laws and customs of war.[52] 6.  Civilians and Civilian Population                                 Civilians mean persons who are not members of the armed forces of a party to the conflict, and not members of other militias and members of other volunteer corps, referred to them as combatants.[53] The civilian population comprises all

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persons who are civilians.[54]

  Among civilians, women and children (under fifteen years of age) are granted special status in International Humanitarian Law, and consequently special protections.[55] 7.  Other Protected Persons      There are certain categories of persons who have not appeared in situations of armed conflicts until quite recently.  Although they are included within the meaning of civilians, they need special attention because they are exposed, in case of armed conflict, to extreme danger.  These persons are the personnel of civilian defense organizations, and the journalists; Protocol I includes them within the protection of the International Humanitarian Law.[56] D.  Objects Protected under International Humanitarian Law      The aim of International Humanitarian Law is not limited to the protection of persons only, but it is, by extension, aim to protect objects not directly serving military purposes.  The objects to which, the protections of this Law apply are the following: 1)  Objects Serving Medical Purposes      All objects serving medical purposes, whether civilian or military, are protected under International Humanitarian Law.  These objects include: fixed or mobile medical establishments such as hospitals, the likes, centers and units; and medical transports such as vehicles, trains, ships and aircraft. 2.  Civilian Objects      Civilian objects are those which are not used for any military purposes or objectives.[57]  In addition, they are objects not used for medical purposes; otherwise, they will be included within the meaning of medical objects. Civilian objects include:-         Objects which are indispensable to the survival of the civilian population,

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such as foodstuffs, crops, livestock, and drinking water installations and supplies.[58] -         Civilian houses, schools and places of work.[59]-         Undefended localities.[60]-         Objects which constitute the cultural or spiritual heritage of peoples, such as historic monuments, works of arts, and places of worship.[61]-         Works or installations containing dangerous forces, namely dams, dykes and nuclear electrical generating stations.[62]-         Natural environment.[63]-         Neutral and demilitarized zones.[64]         

        E. The Fundamental Protections of International Humanitarian Law         The aim of International Humanitarian Law is to protect the human being and safeguard his dignity in time of armed conflicts.  To this end, a multitude of rules regulating the conduct of States in armed conflicts, and which constitute the protections and guarantees to persons in time of armed conflicts, are formulated in this Law.  These rules are of two types: injunctions, requiring the parties to the dispute thereto to act, and prohibitions, requiring the parties to abstain from acting.     The rules formulated in International Humanitarian Law do not come from a vacuum; they are inspired by other principles and rules expressly stated in other instruments of International Law or clearly implied from thereof, or are derived from the customary international law.  The principles of the Law of Human Rights, such as the principle of inviolability, the principle of non-discrimination and the principle of security, inspire many rules and principles formulated in International Humanitarian Law.  The principles of Human Law corollary to the Law of War, such as the principle of military necessity and the principles of limitation are also behind the rules and principles of International Humanitarian Law.  The principle of neutrality provides the inspiration to the rules of International Humanitarian Law, particularly those related to the immunity and protection of the medical personnel and facilities.     The most important fundamental rules and principles formulated in International Humanitarian Law, which constitute protections and guarantees to persons under

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this Law, are the following: 1.       Persons taking no active part in hostilities, including members of armed forces who have laid down their arms and those placed hors de combat (out of combat) by sickness, wound, detention, or any other cause, shall in all circumstances be protected and treated humanely, without any adverse distinction founded on race, color, religion or faith, sex, wealth, or any other similar criteria.  Their lives, and their physical and moral integrity shall be respected. Women shall be especially protected against any attack on their honour, in particular against rape, enforced prostitution, or any form of indecent assaults.2.       The wounded, sick and shipwrecked shall be collected, cared for, and protected by the party to the conflict who has them in its power.3.       Medical personnel, establishments, transports and materials are protected.  The emblems of the Red Cross and the Red Crescent are the signs of such protection and must be respected.4.       It is forbidden to kill or injure an enemy who surrenders or who is out of combat.  Captured combatants and civilians under the authority of an adverse party are entitled to respect for their lives, dignity, personal rights and convictions.    They shall at all times be humanely treated.  They shall be protected against all acts of violence and reprisals.  They shall have the rights to correspond with their families and receive relief.5.       Every person shall be entitled to benefit from the fundamental judicial guarantees.  No one shall be responsible for an act he has not committed.  No one shall be subjected to physical or mental torture, corporal punishment or cruel or degrading treatment.

6.       Individual or mass forcible transfer, as well as deportations of persons from occupied territory to other territory are prohibited regardless of their motive.

7.       Civilians and civilian population shall enjoy general protection against dangers from military operations.  They shall not be the object of attack.  Acts or threats of violence to spread terror among the civilian population are prohibited. Indiscriminate attacks are prohibited.  Reprisals are prohibited.8.       Civilian objects shall not be the object of attack or reprisals. 9.       Parties to a conflict and members of their armed forces do not have an

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unlimited choice of methods and means of warfare. They are prohibited from employing weapons or methods of warfare of the nature to cause unnecessary losses or excessive suffering.10.  Parties to a conflict shall at all times distinguish between combatants and civilian population in order to spare the civilian population.   Attacks shall be directed solely against military objectives.  Section 3:  Execution of International Humanitarian Law      The rules of International Humanitarian Law, like any of other laws, are meaningless if they are not executed.  Since these rules constitute obligations imposed upon sovereign States, States have to execute its obligations.  In executing its obligations, the State will be fulfilling its obligations under International Law, and consequently serving its own interests.  Any breach of its obligations under International Law, the State will subject itself to sanctions.  Sanctions will be applied against the State and individuals. The subject of individual criminal responsibility under International Law will not be dealt with in the present chapter, but in the next chapter.     International Humanitarian Law requires each State to execute its obligations under it in all circumstances, in time of peace and in the event of armed conflict.   In addition, it attributes to the protecting powers (States) and substitute organizations such as the Red Cross societies, the authority to aid and assists in the execution of its rules. A.  Execution by States         In all the Conventions and Protocols of International Humanitarian Law, States undertake to respect and ensure respect for them in all circumstances.[65]  States shall, therefore, take without delay all the necessary measures for the execution of their obligations under them.[66]  They also shall give orders and instruction to ensure observance of them, and shall supervise their execution.[67]       States undertake, in time of peace as in time of war, to disseminate the Texts of the conventions as widely as possible in their respective countries.[68] They undertake to include the study thereof in their military programmes and civil instructions, so that the principles thereof may become known to the entire population, in particular to the armed fighting forces, the medical personnel and the

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chaplains.[69]     States undertake to enact any legislation necessary to provide effective penal sanctions for persons committing, or ordering to be committed, any of the grave breaches of the Conventions defined thereof.[70]  Each State is under the obligation to search for persons alleged to have committed, or to have ordered to be committed, such breaches, and shall bring such persons, regardless of their nationality, before its own courts.[71]  It may also, if it prefers, and in accordance with the provisions of its own legislation, hand such persons over for trail to another State concerned, provided such State has made out a prima facie case.[72]     Each State is under the obligation to take measures necessary for the suppression of all acts contrary to the provisions of the Conventions other than the grave breaches defined thereof.[73] B.  Protecting Powers            During an armed conflict, the execution of the provisions of the Conventions and the Additional Protocols should be ensured, to a certain extent, with the aid of the protecting powers entrusted to safeguard the interests of the parties to the conflict.  The first obligation of a party to the conflict after the outbreak of armed conflict is to appoint a protecting power.[74]  “Protecting power” means a neutral or other State not a party to the conflict which has been designed by a party to the dispute and accepted by the adverse party and has agreed to carry out the humanitarian functions assigned to a protecting power under the Conventions and the Additional Protocols which aim to ensure protection and assistance to the victims of armed conflicts.[75]  In performing their functions, the protecting powers also help in the implementation of International Humanitarian Law. 

C.  Red Cross Societies                    The protecting powers may be substituted by the International Committee of the Red Cross (ICRC) or other impartial humanitarian organizations which offer all guarantees of impartiality and efficacy.[76]  In addition to the humanitarian functions which the ICRC can perform in place of the protecting powers, it is granted a sort of right of initiative in humanitarian activities.  Among the numerous functions which the ICRC can perform are the rights to visit all places where

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prisoners of war or civilian internees are kept, and to interview these protected persons without witnesses, personally or through an interpreter.  Humanitarian functions can also be carried out by National Red Cross or Red Crescent Societies, and by other duly recognized and authorized charitable associations.

Chapter 16International Human Rights Law

International human rights law, which applies at all times including during

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situations of emergency and conflict, sets out the basic protections that all individuals are entitled to. It is the duty of states to respect, ensure and fulfill these rights.

International human rights law is the body of international law intended to promote and protect human rights at the international and domestic levels.

As a form of international law, international human rights law is primarily made up of treaty law - legally binding agreements between State parties - and customary international law - rules of law derived from the consistent practice of States. While international treaties and customary law form the mainstay of international human rights law, other instruments, such as declarations, guidelines and principles adopted at the international level contribute to its understanding, implementation and development.

1. Enforcement

Enforcement of international human rights law can occur at either a domestic or an international level. States that ratify human rights treaties commit to respecting, protecting and fulfilling those rights, and ensuring that their domestic law is compatible with international standards. When domestic law fails to provide a remedy for human rights abuses, injured parties may be able to resort to international mechanisms for remedy.

2. International Human Rights Law and International Humanitarian Law 

International human rights law is closely related to, but distinct from international humanitarian law. They are complimentary since the substantive norms they contain are often similar or related. However, international human rights law applies at all times, including during situations of emergency and conflict. International humanitarian law is a legal regime that only applies to armed conflicts, including occupation, when both legal regimes apply in tandem.

3. Modern Development of Human Rights

Modern international human rights law has developed since the drafting of the

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United Nations Universal Declaration of Human Rights (UDHR), in December 1948. Drafted as ‘a common standard of achievement for all peoples and nations', the Declaration spells out civil, political, economic, social and cultural rights that all human beings are entitled to. It has been widely accepted as providing the fundamental norms of human rights that everyone should respect and protect.

The UDHR, together with the International Covenant on Civil and Political Rights (ICCPR) and its two Optional Protocols, and the International Covenant on Economic, Social and Cultural Rights (ICESCR), form the International Bill of Human Rights.

Since 1945, a series of international human rights treaties and other instruments (documents) have been adopted, conferring legal form on inherent human rights and further developing the body of international human rights. These include:

The Convention on the Prevention and Punishment of the Crime of Genocide (CPCG);

The Convention Relating to the Status of Refugees (CSR);

The Convention on the Elimination of All Forms of Racial Discrimination (CERD);

The Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW);

The United Nations Convention Against Torture (CAT);

The Convention on the Rights of the Child (CRC);

The International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families (ICRMW);

The Convention on the Rights of Persons with Disabilities (CRPD);

The International Convention for the Protection of All Persons from Enforced Disappearance (ICCPED).

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In addition to the International Bill of Rights and the core human rights treaties listed above, there are many other universal instruments relating to human rights. A non-exhaustive selection can be found here.

4. State obligations and procedure

International human rights law prescribes obligations which states are bound to respect. Through ratification of international human rights treaties, governments undertake to put into place domestic measures and legislation compatible with their treaty obligations. By becoming parties to international treaties, states assume obligations and duties under international law to respect, protect and fulfill human rights. 

The obligation to respect means that states must refrain from interfering with or curtailing (decreasing) the enjoyment of human rights. The obligation to protect requires states to protect individuals and groups against human rights abuses. The obligation to fulfill means that states must take positive action to facilitate the enjoyment of basic human rights.

5. Monitoring mechanisms

In order to monitor the compliance of states with their obligations, the United Nations system has created mechanisms that examine state parties' compliance with the specific treaty obligations. These mechanisms include the Human Rights Council and bodies created under the international human rights treaties that consist of independent experts. The majority of these bodies receive secretariat support from the Office of the High Commissioner for Human Rights (OHCHR). Similar mechanisms do not exist for the monitoring of compliance with international humanitarian law. 

The Human Rights Council is composed of 47 elected United Nations Member States, empowered to prevent abuses, inequity and discrimination, protect the most vulnerable, and expose the perpetrators of human rights violations. The Council established Special Procedures (or mechanisms) to address either specific country situations or thematic issues across the globe. Special Procedures are either an individual –a special rapporteur or representative, or independent expert—or a

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working group. They are prominent, independent experts working on a voluntary basis and are appointed by the Human Rights Council. There are currently 30 thematic mandates and eight country mandates. All report to the Human Rights Council on their findings and recommendations.

6. Human rights treaty bodiesThere are currently ten human rights treaty bodies - committees of independent experts - created in accordance with the provisions of the treaty that they monitor. Nine of these treaty bodies monitor implementation of the core international human rights treaties while the tenth treaty body, the Subcommittee on Prevention of Torture, established under the Optional Protocol to the Convention against Torture, monitors places of detention in state parties to the Optional Protocol.

Additionally, there are several other United Nations bodies which are concerned with the promotion and protection of human rights.

7. Regional monitoring and enforcement mechanismsBeyond the UN system, there are regional systems of international human rights law that complement national and international human rights law by protecting and promoting human rights in specific areas of the world. There are three key regional human rights instruments: the African Charter on Human and Peoples' Rights; The American Convention on Human Rights; and the European Convention on Human Rights.

8. The Universal Declaration of Human RightsThe Universal Declaration of Human Rights (UDHR) is a milestone document in the history of human rights. Drafted by representatives with different legal and cultural backgrounds from all regions of the world, the Declaration was proclaimed by the United Nations General Assembly in Paris on 10 December 1948 (General Assembly resolution 217 A) as a common standard of achievements for all peoples and all nations. It sets out, for the first time, fundamental human rights to be universally protected and it has been translated into over 500 languages.

Preamble

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Whereas recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world,

Whereas disregard and contempt for human rights have resulted in barbarous acts which have outraged the conscience of mankind, and the advent of a world in which human beings

shall enjoy freedom of speech and belief and freedom from fear and want has been proclaimed as the highest aspiration of the common people,

Whereas it is essential, if man is not to be compelled to have recourse, as a last resort, to rebellion against tyranny and oppression, that human rights should be protected by the rule of law,

Whereas it is essential to promote the development of friendly relations between nations,

Whereas the peoples of the United Nations have in the Charter reaffirmed their faith in fundamental human rights, in the dignity and worth of the human person and in the equal rights of men and women and have determined to promote social progress and better standards of life in larger freedom,

Whereas Member States have pledged themselves to achieve, in co-operation with the United Nations, the promotion of universal respect for and observance of human rights and fundamental freedoms,

Whereas a common understanding of these rights and freedoms is of the greatest importance for the full realization of this pledge,

Now, Therefore THE GENERAL ASSEMBLY proclaims THIS UNIVERSAL DECLARATION OF HUMAN RIGHTS as a common standard of achievement for all peoples and all nations, to the end that every individual and every organ of society, keeping this Declaration constantly in mind, shall strive by teaching and education to promote respect for these rights and freedoms and by progressive

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measures, national and international, to secure their universal and effective recognition and observance, both among the peoples of Member States themselves and among the peoples of territories under their jurisdiction. 

Article 1. All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood.

Article 2. Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. Furthermore, no distinction shall be made on the basis of the political, jurisdictional or international status of the country or territory to which a person belongs, whether it be independent, trust, non-self-governing or under any other limitation of sovereignty.

Article 3. Everyone has the right to life, liberty and security of person.

Article 4.No one shall be held in slavery or servitude; slavery and the slave trade shall be prohibited in all their forms.

Article 5. No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.

Article 6. Everyone has the right to recognition everywhere as a person before the law.

Article 7. All are equal before the law and are entitled without any discrimination to equal protection of the law. All are entitled to equal protection against any discrimination

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in violation of this Declaration and against any incitement to such discrimination.

Article 8. Everyone has the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted him by the constitution or by law.

Article 9. No one shall be subjected to arbitrary arrest, detention or exile.

Article 10. Everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations and of any criminal charge against him.

Article 11. (1) Everyone charged with a penal offence has the right to be presumed innocent until proved guilty according to law in a public trial at which he has had all the guarantees necessary for his defence.(2) No one shall be held guilty of any penal offence on account of any act or omission which did not constitute a penal offence, under national or international law, at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the penal offence was committed.

Article 12. No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks.

Article 13.(1) Everyone has the right to freedom of movement and residence within the borders of each state.(2) Everyone has the right to leave any country, including his own, and to return to his country.

Article 14.

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(1) Everyone has the right to seek and to enjoy in other countries asylum from persecution.(2) This right may not be invoked in the case of prosecutions genuinely arising from non-political crimes or from acts contrary to the purposes and principles of the United Nations.

Article 15.(1) Everyone has the right to a nationality.(2) No one shall be arbitrarily deprived of his nationality nor denied the right to change his nationality.

Article 16. (1) Men and women of full age, without any limitation due to race, nationality or religion, have the right to marry and to found a family. They are entitled to equal rights as to marriage, during marriage and at its dissolution.(2) Marriage shall be entered into only with the free and full consent of the intending spouses.(3) The family is the natural and fundamental group unit of society and is entitled to protection by society and the State.

Article 17. (1) Everyone has the right to own property alone as well as in association with others.(2) No one shall be arbitrarily deprived of his property.

Article 18. Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief in teaching, practice, worship and observance.

Article 19. Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and

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impart information and ideas through any media and regardless of frontiers.

Article 20. (1) Everyone has the right to freedom of peaceful assembly and association.(2) No one may be compelled to belong to an association.

Article 21. (1) Everyone has the right to take part in the government of his country, directly or through freely chosen representatives.(2) Everyone has the right of equal access to public service in his country.(3) The will of the people shall be the basis of the authority of government; this will shall be expressed in periodic and genuine elections which shall be by universal and equal suffrage and shall be held by secret vote or by equivalent free voting procedures.

Article 22. Everyone, as a member of society, has the right to social security and is entitled to realization, through national effort and international co-operation and in accordance with the organization and resources of each State, of the economic, social and cultural rights indispensable for his dignity and the free development of his personality.

Article 23.(1) Everyone has the right to work, to free choice of employment, to just and favourable conditions of work and to protection against unemployment.(2) Everyone, without any discrimination, has the right to equal pay for equal work.(3) Everyone who works has the right to just and favourable remuneration ensuring for himself and his family an existence worthy of human dignity, and supplemented, if necessary, by other means of social protection.(4) Everyone has the right to form and to join trade unions for the protection of his interests.

Article 24.

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Everyone has the right to rest and leisure, including reasonable limitation of working hours and periodic holidays with pay.

Article 25. (1) Everyone has the right to a standard of living adequate for the health and well-being of himself and of his family, including food, clothing, housing and medical care and necessary social services, and the right to security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond his control.(2) Motherhood and childhood are entitled to special care and assistance. All children, whether born in or out of wedlock, shall enjoy the same social protection.

Article 26.(1) Everyone has the right to education. Education shall be free, at least in the elementary and fundamental stages. Elementary education shall be compulsory. Technical and professional education shall be made generally available and higher education shall be equally accessible to all on the basis of merit.(2) Education shall be directed to the full development of the human personality and to the strengthening of respect for human rights and fundamental freedoms. It shall promote understanding, tolerance and friendship among all nations, racial or religious groups, and shall further the activities of the United Nations for the maintenance of peace.(3) Parents have a prior right to choose the kind of education that shall be given to their children.

Article 27. (1) Everyone has the right freely to participate in the cultural life of the community, to enjoy the arts and to share in scientific advancement and its benefits.(2) Everyone has the right to the protection of the moral and material interests

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resulting from any scientific, literary or artistic production of which he is the author.

Article 28. Everyone is entitled to a social and international order in which the rights and freedoms set forth in this Declaration can be fully realized.

Article 29.(1) Everyone has duties to the community in which alone the free and full development of his personality is possible.(2) In the exercise of his rights and freedoms, everyone shall be subject only to such limitations as are determined by law solely for the purpose of securing due recognition and respect for the rights and freedoms of others and of meeting the just requirements of morality, public order and the general welfare in a democratic society.(3) These rights and freedoms may in no case be exercised contrary to the purposes and principles of the United Nations.

Article 30.Nothing in this Declaration may be interpreted as implying for any State, group or person any right to engage in any activity or to perform any act aimed at the destruction of any of the rights and freedoms set forth herein.

Chapter 17

International Criminal Law

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          International Criminal Law is a body of international rules which, on one hand, prescribes international crimes and imposes upon States the obligation to prosecute and punish at least some of these crimes, and, on the other hand,  regulates international proceedings for prosecuting and trying persons accused of such crimes.[2]  It is a relatively new branch of Public International Law.  Its rules have come into being by gradual accretion.  It consists of two parts, “substantive criminal law” and “procedural criminal law”.[3] “Substantive criminal law” is the set of rules indicating what acts constitute international crimes, as well as on what conditions States may and must, under International Law, prosecute or bring to trail persons accused of one of these crimes.  “Procedural criminal law” is the set of rules regulating the various stages of international trials for the prosecution of accused criminals.            The substantive and procedural rules of International Criminal Law are found, mainly, in the various treaties of the International Humanitarian Law, and in various statutes of international criminal tribunals.  Examples of the relevant treaties of International Humanitarian Law are:  the 1899 and 1907 Hague Conventions,[4] the four 1949 Geneva Conventions,[5] the two 1977 Additional Protocols to the Geneva Conventions,[6] the various treaties prohibiting the use of certain weapons, and the various treaties related to certain international crimes such as the 1948 Convention on Genocide,[7] the 1984 Convention against Torture,[8] and the various treaties on terrorism.  Examples of the statutes of various international criminal tribunals are: the 1945 Statute of the International Military Tribunal for the Major War Criminals at Nuremberg (IMT), the 1946 Statute of the International Military Tribunal for the Far East (IMTFE), the 1993 Statute of the International Criminal Tribunal for the former Yugoslavia (ICTY), the 1994 Statute of the International Criminal Tribunal for Rwanda (ICTR), and the 1998 Statute of the International Criminal Court (ICC).     International Criminal Law has established individual responsibility, with criminal sanctions, for non-observance of the rules of International Humanitarian Law.  This responsibility applies to each individual, who must answer for his conduct, even when acting on orders from a superior.  A superior is liable to criminal prosecution.  The Head of State may have to answer for his actions.         The rules of the International Criminal Law will be the subject of the following sections:  The first section will deal with international crimes; and the second section

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will deal with the prosecution and punishment of international crimes by national courts as well as by international tribunals.  Section 1:  International Crimes         International crimes are breaches of international rules entailing the personal criminal liability of individuals concerned. [9]  They are crimes of concern to international community as a whole.  The list of international crimes, acts which are prohibited under International Law and which makes their authors criminally liable, has come into being by gradual accretion.[10]  Traditionally, in the Seventeenth to the Nineteenth Centuries, piracy was considered an international crime.  Apart of this traditional crime, initially, in late Nineteenth Century only war crimes were considered international crimes and were punishable.[11]  It is only since the Second World War that new categories of international crimes have developed.[12]  The 1945 Statute of the International Military Tribunal for the Major War Criminals at Nuremberg (IMT) and the 1946 Statutes of the International Military Tribunal for the Far East (IMTFE) added new classes of international crimes to “war crimes”, namely “crimes against humanity” and “crimes against peace”.  “Crime of genocide”, which was considered as a special subcategory of crimes against humanity, became an autonomous class of crime in 1948, when the General Assembly of the United Nations adopted the Genocide Convention.[13]  “Wars of aggression”, which were one of the subcategories of the broad category of “crimes against peace”, themselves became a category of international crimes replacing what was known as “crimes against peace” when the G.A adopted its Resolution on the Definition of Aggression in 1974.[14]   Recently, acts of international terrorism have been added as a distinct international crime.     The contemporary list of international crimes is formulated in the 1998 Rome Statute of the International Criminal Court (ICC). Article 5 of the Statute lists the international crimes over which the Court has a jurisdiction as the following:  (1) The crime of genocide; (2) Crimes against humanity; (3) War crimes; and (4) The Crime of aggression.

 1.  The Crime of Genocide

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      “Genocide” is the intentional killing, destruction, or extermination of groups or members of a group as such.[15]   The ICC Statute defines “genocide” to mean any of the following acts committed with intend to destroy, in whole or in part, a national, ethnical, racial or religious group:[16] (a)     Killing members of the group;(b)    Causing serious bodily or mental harm to members of the group;(c)     Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;(d)    Imposing measures intended to prevent birth within the group; and(e)     Forcibly transferring children of the group to another group.                                2.  Crimes against Humanity          “Crimes against humanity” are odious offenses that constitute a serious attack on human dignity or a grave humiliation or degradation of one or more human beings, committed as part of either of a governmental policy, or of a widespread or systematic practice of atrocities tolerated, condoned, or acquiesced in by a government or a de facto authority.[17]  The acts which constitute such crimes are prohibited and punishable, whether they are committed in time of war or peace.[18]  The victims of such crimes may be civilians or enemy combatants.[19]     The ICC defines “crime against humanity” to mean any of the following acts when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack:[20]

 (a)     Murder;(b)    Extermination;(c)     Enslavement;(d)    Deportation or forcible transfer of population;(e)     Imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of International law;(f)      Torture;(g)     Rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity;

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(h)    Persecution against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, gender, or other grounds;(i)       Enforced disappearance of persons;(j)       The crimes of apartheid; and(k)     Other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health.    3.  War Crimes

      War crimes are serious violations of customary or treaty rules belonging to International Humanitarian Law or the Law of War (the body of substantive rules comprising “the Law of the Hague” and “the law of Geneva”).[21]  They may be committed in the course of either international or internal armed conflicts.[22]  They may be committed by military personnel against enemy servicemen or civilians, or by civilians against members of the enemy armed forces or enemy civilians.[23]     The ICC Statute provides that the Court shall have jurisdiction in respect of war crimes in particular when committed as a part of a plan or policy or as part of a large-scale commission of such crimes.[24]  According to this Statute, “War crimes” means: (a)     Grave breaches of the 1949 Geneva Conventions, namely any of the acts against protected persons or property such as willful killing, torture or inhumane treatment, unlawful deportation or transfer or unlawful confinement, taking hostages, and extensive destruction and appropriation of property not justified by military necessary.[25](b)     Serious violations of the laws and customs applicable in international armed conflicts or in armed conflicts not of international character, within the established framework of International Law, namely such as acts committed against the life and dignity of persons; intentionally directing attacks against civilians, civilian population, civilian objects, or against personnel, installations, material, units or vehicles involved in humanitarian assistance; killing or wounded a surrendering combatant; or employing prohibited weapons.[26]

 4.  Crimes of Aggression      The 1974 General Assembly Resolution on the Definition of Aggression provides that aggression is the use of force by a State against the sovereignty,

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territorial integrity or political independence of another state, or in any other manner inconsistent with the Charter of the United Nations.[27] Accordingly, “war of aggression” is a crime against International Law which gives rise to international responsibility.  Crimes of aggression comprise the following:[28] (a)        The invasion of or the attack by the armed forces of a State on the territory of another State, any military occupation, or any annexation by force of the territory or part of the territory of another State;(b)       Bombardment, or use of any weapon , by the armed forces of a State, against the territory of another State;(c)        Blockade of the ports or coast of a State by the armed forces of another State;(d)       Attack by the armed forces of a State on the land, sea, or air forces of another State;(e)        The sending by or on behalf of a State of armed bands, group, irregulars, or mercenaries, which carry out acts of armed force against another States.           Section 2:  Prosecution of  International Crimes      The Prosecution of individuals committing international crimes has undergone a significant development throughout History; prosecution exclusively by national courts to possible prosecution by international courts, whether ad hoc or permanent.  A.  Prosecution by  National Courts to Prosecution by Ad Hoc International Tribunals         Traditionally, individuals have been subject to the exclusive jurisdiction of the State on whose territory they live.[29] Their Violations of international rules were prosecuted and punished by the competent authority of the State where the acts of violations had been committed.  However, such prosecution and punishment were not possible unless the State was authorized to do so under its own national law, and it was willing to proceed.[30]  If no prosecution and punishment had happened, then the State, victim of the violation or of which the victim had its nationality, was entitled to international claim against the delinquent State, which had either to punish the perpetrators or pay compensation.  In such case, what was involved was

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the responsibility of the State.  State responsibility was founded on its failure to prosecute and punish the perpetrators.[31]  Notably, it is necessary to mention that if a wrongful act had been committed by a State official in his official capacity, he was entitled abroad to immunity form jurisdiction (prosecution and punishment).[32]     However, few exceptions to the above tradition existed.  One of the exceptions was “piracy”, a practice which was widespread in the Seventeenth and Eighteenth Centuries. “Piracy” was considered an international crime.  “Pirates” were regarded as enemies of humanity because they hampered the freedom of the high sea and infringed private property.  So all States were empowered to search for, prosecute and punish pirates, regardless of the nationality of the victims and of whether the prosecuting State had been affected by piracy.[33]

     Another exception was “war crimes”, which gradually emerged as international crimes in the second half of the Nineteenth Century.[34]  Traditionally such crimes were defined as violations of the laws of warfare committed by combatants in wars (international armed conflicts).  Individuals acting as State officials, chiefly low-ranking members of the armed forces, could be prosecuted and punished for violations of the laws of warfare.  They could be prosecuted and punished, not only by their own States, but also by the enemy State. Actually, the exceptional character of war warranted this deviation from the traditional rule, namely the immunity of State’s officials from the jurisdiction of foreign States.  For many years adversary States prosecuted and punished the alleged perpetrators of war crimes on the basis of the principle of “passive nationality” (the nationality of the victim), which entitles a State to exercise jurisdiction over crimes committed against its nationals.[35]

     After the First World War, the Allied Powers prosecuted and punished those guilty of war crimes either on the basis of the principle of territoriality that entitles the State to exercise jurisdiction over crimes committed on its territory, or on the basis of passive nationality; in this later basis it was sufficient for the victim to have the nationality of any of the Allied Powers.[36]

     The creation of the International Military Tribunal for the Major War Criminals (IMT) and the International Military Tribunal for the Far East (IMTFE) in 1945 and 1946 respectively, and the subsequent trails at Nuremburg and Tokyo of the German and Japanese war criminals, marked a crucial turning point with regard to

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international crimes.[37]  Two new categories of international crimes were emerged: crimes against peace and crimes against humanity.  State senior officials, high ranking military officers, politicians and high ranking administrators, who were until 1945 protected by State sovereignty, became personally responsible for their wrongdoings.  They could be prosecuted by international tribunals as well as by foreign States who could also punish them.     With the adoption of the Geneva Conventions in 1949, further important advances occurred as regards international criminal law.[38] New groups of war crimes were added, namely “grave breaches of the Geneva Conventions”.  An advanced system for repressing violations by States was set up.  The principle of universality of jurisdiction was laid down, according to which a contracting State could prosecute an accused person held in its custody regardless of his nationality, of the nationality of the victim, and of the place where the alleged violations had been committed.    With the adoption of the Protocol II Additional to the 1949 Geneva Conventions in 1977, and the creation of the two ad hoc international tribunals, the International Criminal Tribunal for the former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR) in 1993 and 1994 respectively, a significant evolution of International Criminal Law took place.  The notion of war crimes was extended to include serious violations of international humanitarian rules governing internal armed conflicts. Violators of these rules could be prosecuted by international tribunals.      A further significant evolution of International Criminal Law finally took place with the adoption of the Statute of the International Criminal Court (ICC) in 1998.  The ICC was established as the permanent international court for international criminal justice, and complementary to national courts.  An almost comprehensive list of international crimes was formulated.  

     The apparent feature of International Criminal Law today is the possibility of prosecution of international crimes by national courts as well as by international tribunals, whether ad hoc tribunals or the International Criminal Court  (ICC).  In the following subsection, we will deal with the prosecution by the ICC. B.  Prosecution by the International Criminal Court (ICC) 

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     The attempts to establish a permanent international criminal court for the prosecution of individuals committing international crimes succeeded when on 17 July 1998 the Statute of the International Criminal Court (ICC) was signed at Rome.[39]  The ICC is established as a judicial organ of universal jurisdictional reach; thus, it is potentially able to respond to violations occurring anywhere.[40]  Its seat is established at The Hague in the Netherlands.[41] Its relationship with the United Nations shall be governed by the agreement approved by the Assembly of States Parties to its Statute and thereafter concluded by the president of the ICC on its behalf.[42]  Its jurisdiction and functioning are governed by the provisions of its Statute.[43]     The Statute of the ICC provides that the Court shall have international legal personality, and that it shall also have such legal capacity as may be necessary for the exercise of its functions and the fulfillment of its purposes.  The court may exercise its functions and powers, as provided in its statute, on the territory of any state party and, by special agreement, on the territory of any other State.[44]       According to the Statute of the ICC, the Court is a permanent criminal court that has the power to exercise jurisdiction over persons committing the most serious crimes of concern to the international community as a whole, namely (a) The crimes of genocide; (b) Crimes against humanity; (c) War crimes; and (d) The crime of aggression.[45]  The ICC is complementary to the national criminal jurisdictions.[46]  National courts enjoy priority in the exercise of jurisdiction over persons committing international crimes except under special circumstances, when the ICC is entitled to take over and assert its jurisdiction.  The ICC is barred from exercising its jurisdiction over crimes whenever a national court assets its jurisdiction over the same crime and (1) under its national law the State has jurisdiction, (2) the case is being duly investigated or prosecuted by its authorities or these authorities decided, in a proper manner, not to prosecute the person concerned, and (3) the case is not of sufficient gravity to justify action by the ICC.[47]  In addition, the ICC may not prosecute a person whom already been convicted of or acquitted for the same crimes, if the trail was fair and proper.[48]

     Nevertheless, the ICC is authorized to exercise its jurisdiction over a crime even if a case concerning that crime is pending before national authorities, and thus to override national criminal jurisdiction, whenever:

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(1) the State is unable or unwilling to carry out the investigation or prosecution the person concerned, and (2) the case is of sufficient gravity to justify the exercise of the ICC jurisdiction.[49]  A State is “unable” when, because of a total or partial collapse of its judicial system, it is not in a position to detain the accused person, or to carry out criminal proceedings.[50]  A State may be considered as “unwilling” when: (1) in fact the national authorities have undertaken proceedings for the purpose of shielding the concerned person from criminal responsibility, (2) there has been an unjustified delay in the proceedings showing that in fact the authorities do not intend to bring the concerned person to justice, or (3) the proceedings are not being conducted independently or impartially or in any case in a manner showing the intend to bring the person to justice.[51]     The ICC may exercise its jurisdiction with respect of any international crimes if such a crime is referred to the Prosecutor of the ICC by a State Party to the Statute, or by the security Council acting under Chapter VII of the Charter of the United Nations, or if the Prosecutor has initiated an investigation in respect of such a crime.[52]  A State Party may refer to the Prosecutor a situation in which one or more crimes within the jurisdiction of the Court appear to have been committed requesting the Prosecutor to investigate the situation for the purpose of determining whether one or more specific persons should be charged with the commission of such crimes. The Prosecutor may initiate investigation based on information on crimes within the jurisdiction of the Court.     According to the Statute of the ICC, the Court has a jurisdiction over natural persons who commit crimes within its jurisdiction.[53] A person shall be criminally responsible and liable for punishment for a crime within the jurisdiction of the Court if that person: commits such a crime; orders, solicits or induce the commission of such a crime; facilitating the commission of such a crime; contributing in any way to the commission or attempted commission of such a crime; or attempts to commit such a crime.     Criminal responsibility and liability under the Statute of the ICC shall be applied to all persons without any distinction based on official capacity.[54]  In particular, official capacity as a Head of State or Government, a member of a Government or parliament, an elected representatives or a government official shall in no case exempt a person from criminal responsibility under the Statute, nor shall it, in and of itself, constitute a ground for reduction of sentence.  Immunities or special

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procedural rules which may attach to the official capacity of a person, whether under national or International Law, shall not bar the Court from exercising its jurisdiction over such a person.

      According to its Statute, the ICC may impose the following penalties:(a) Imprisonment for a specified number of years, which may not exceed a maximum of 30 years; or (b) A term of life imprisonment.[55]  In addition to imprisonment, the Court may order: (a) A fine; or (b) A forfeiture of proceeds, property and assets derived directly or indirectly from that crime.[56]

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Chapter 18Introductory Topics on International Organizations

 I.  Genesis of International Organizations          The formation of international organizations has been a notable feature of the international relations since 1945.  Perhaps the most feature of international scene today, in comparison with a century ago, is the proliferation of international organizations of all types. This growth has responded in part to the need for maintaining international peace and security, and in a greater part to the pressing demands of nations for cooperation in the economic, social and technical fields.

   The League of Nations was the first universal comprehensive organizations formed by the international community of nations.  It was created in 1919, after the First World War.   This creation marked a turning point in the evolution of world affairs.  Until the creation of the League of Nations, world affairs were to a large extent influenced by the periodic international conferences that were held in Europe. The system of conferences dealing with problems that concerned two or more states had dominated the European affairs during the nineteenth century.  

Although the Peace Conference of Westphalia of 1648, which ended the Thirty-Year War (religious war) in Europe, was the first conference held in Europe, the Congress of Vienna of 1815 initiated the era of international conferences and multilateral treaties.  The Congress of Vienna, which terminated the Napoleonic Wars, was a significant turning point because it marked the first systematic attempt to regulate international affairs by means of regular international conferences.  The system of Congress of Vienna lasted for a century and institutionalized not only the balance of power approach to international relations and politics, but also a semi-formal

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international order.      The concept of international conference was introduced as a form of extended diplomacy because the diplomatic contacts were unable alone to cope completely with the complexities of international affairs.  International conferences and diplomatic contacts were used by European nations during the nineteenth century as forms of cooperation to introduce or promote their political and economic relations, and to face world issues.  In many cases, conferences resulted in international treaties or formal peace.  European nations held several conferences in the nineteenth century, the major conferences were:  the Paris Conference of 1856, the Berlin Gathering of 1871 and the Berlin conference of 1878 which dealt with the questions of the Balkans; and the Berlin Conferences of 1884 and of 1885 which dealt with the European interests in Africa.

     During the course of time, conferences proved that they were inadequate to fulfill the objectives they were intended to achieve.  A conference could only be convened at the initiative of one or more states involved, usually following international crises.  Only invited states could attend.  An invited state involved might refuse to attend.  Decisions could not be taken except by unanimous agreements. These factors severely restricted the use and effectiveness of conferences as methods of state cooperation.  However, conferences constituted an important prelude to the establishment of international institutions.     In the nineteenth century, several inter-governmental institutions were also established covering transportation, communications, health and economic cooperation.  Examples of such institutions were the commission of the Rhine (1831), the Commission of the Danube (1856), the International Telegraphic Union (1865) and the Universal Postal Union (1874).  Such international institutions were not comprehensive ones, but functional ones joining together governmental departments or administrations for specific purposes.  They were created by multilateral treaties.  The powers entrusted to them varied, but most of them performed important administrative and legislative functions.  They combined permanent bureaus or secretariats and periodic conferences.  Their decisions could be taken by majority vote.  These features constituted a step forward in state cooperation since they enable the institutions to overcome the weaknesses of conferences, particularly the principle of unanimity.     The nineteenth century also witnessed the creation of several international non-

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governmental institutions dealing with specific matters.  Examples of such institutions were the International Committee of the Red Cross (founded in 1863) and the International Law Association (founded in 1873).  Such private institutions created the machinery for regular meetings and many established permanent secretariats.  The works of these institutions were, and remain, of considerable value in influencing governmental activities and stimulating world action in specific matters of international concern.         The establishment of international institutions in the nineteenth century was significant since they paved the way for international organizations of the twentieth century.  The innovation of the twentieth century was the creation of universal comprehensive organizations, such as the League of Nations and the United Nations.     Just as the First World War had led to the establishment of the League of Nations, the Second World War led to the establishment of the United Nations. In these two cases, States developed ways for maintaining international peace and security and for cooperations between nations.   These two organizations laid the foundation for the system of international organizations.      Today, the United Nations forms the key-stone of the system of international organizations.  Affiliated with the United Nations are the specialized agencies.  Beside these organizations, there are many regional organizations of various types and forms, in Europe, in America, in Asia, in Africa, and in the Pacific.

 II. Definition and Classification of International Organizations

      International organizations are either intergovernmental organizations, known as public international organizations, or nongovernmental organizations (NGOs), known as private international organizations.[2]  Intergovernmental organization is different from nongovernmental organization; while the first is set up by agreement between states, the second is set up by individuals.     However, the term “international organization” is usually used to describe an organization established by agreement between two or more States.  In this sense, international organization may be defined as an association of states, established by a treaty between two or more states, it has international character and scope, its functions transcend national boundaries, and it is a subject of International Law.

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     Today, there are some 500 international organizations of various types.   The organizations can be classified under the following criteria: (A)  Classification according to their membership:  Organizations may be:

1.     Organization with open membership:  These organizations are universal (global) in their membership.  Their membership is open to all states.  The United Nations (UN) is the most important global organization; other examples are the specialized agencies affiliated with the United Nations, and the World Trade Organization.2.     Organizations with restricted membership:  Organizations of this type may be: (a) Regional organizations of which membership is restricted to states who belong to a particular continent or geographical region; examples are the European Union EU), the Organization of American States(OAS), the League of Arab States, and the Association of South East Asian Nations (ASEAN). (b) Organizations with membership based on religious, cultural, or historical link; examples are the Organization of Islamic Conference, La Francophonie, the Commonwealth of Nations, and the Commonwealth of Independent States. (B) Classification according to their geographical location:  Organizations may be:       1. Global (universal) organizations:  Organizations of the type mentioned above [(A) 1].2. Regional organizations:  Organizations of the type mentioned above [(A) 2 (a)].

 (C) Classification according to their functions and tasks:  Organizations may be classified into:1.     Organizations of (a) general purposes or, (b) particular (specific) purposes.  Examples of general purposes organizations are the United Nations, the European Union, the Arab League, and the Organization of American States.  Examples of particular purposes organizations are the specialized agencies of the United Nations, the World Trade Organization (WTO), the North Atlantic Treaty Organization (NATO), and the Organization of Petroleum Exporting Countries (OPEC).2.     Organizations of (a) political purposes, such as the UN, the EU, the Arab

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League; (b) economic (trade and financial) purposes, such as the WTO, the World Bank Group, The International Monetary Fund (IMF), and the OPEC;  (c) social purposes, such as the United Nations Educational, Scientific and Cultural Organization (UNESCO), the International Labour Organization (ILO), and the Food and Agriculture Organization (FAO); (d) technical purposes, such as the International Civil Aviation Organization (ICAO), the Universal Postal Organization (UPU), and the International Telecommunication Union (ITU), (e) Judicial purposes, such as the International Criminal Court; and (f) military purposes (defense alliances), such as the NATO, and the dissolved Warsaw Pact.

  (D) Classification according to the nature of their structural organization: Organizations may be:1.     Traditional organizations:  This type of organizations is in essence based on inter-governmental cooperation of states which retain control of the decision-making process and finance of the organization; all the existing organizations, except the EU, are of this type.2.     Supranational organization:  In this type of organizations, the      transfer of sovereignty from the member states to the organization is extensive as to the scope and nature of delegated powers.  The supranational organization is characterized mainly by the following elements: its organs are composed of persons who are not government representatives, its decisions can be taken by majority vote, its decisions have binding force on the member states, as well as, have direct effect on persons within them.[3]  The only example of such a type of organizations is the European Union which sufficiently meets all the requirements of a supranational organization. 

III. International Organizations as Subjects of International Law [4]        When we say that an entity is a legal person, or that it is a subject of the law, we mean that it has a capacity to enter into legal relations and to have legal rights and duties.  In this sense, a subject of International Law is an entity who possesses international legal personality, i.e., capable of possessing rights and obligations and having the capacity to take certain types of action on the international level.  Traditionally, states have been the only subjects or persons of International Law.  While states have remained the predominant persons of International Law, the

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position has changed since the mid-twentieth century. With the establishment of international organizations, it has become necessary that a sort of international legal personality be granted to these entities.  Thus, international organizations have acquired some degree of international legal personality, and have become subjects or persons of International Law (as well as individuals, groups and companies).

     The problem of including international organizations in the international legal system is reflected in the very concept of legal personality, the central issues of which have been primarily related to the capacity to conclude international agreements, to bring claims arising from the violations of International Law, and to enjoy privileges and immunities from national jurisdictions.

     The leading judicial authority on the legal personality of international organizations is the advisory opinion of the International Court of Justice (ICJ) in the Reparation for Injuries Case of 1949. [5]  The case arose out of the murder of the United Nations mediator in Palestine Count Bernadotte by Zionist terrorists in 1948.  The United Nations considered that Israel had been negligent in failing to prevent or punish the murderers, and wished to make a claim for compensation under International Law against Israel.  However, it was uncertain whether the United Nations had the legal capacity to make such a claim.  The United Nations requested the opinion of the Court on this problem.  In its opinion, the ICJ held that the United Nations was an international person, although not a state, and therefore not having the same rights and duties of a state. The United Nations had an international personality; its functions and powers were so important that the Organization could not carry out them unless it had some degree of international personality.  The United Nations could perform legal acts such as entering into agreements with member states and with other international organizations, concluding contracts and bringing claims before the Court.  Such capacity to perform legal acts is a prerequisite of international legal personality.     International organizations are generally considered to be subjects of International Law, as are states, even though their international legal personality is limited to possessing specific rights and duties.  Their status is determined be conventions among states and, therefore, the recognition of the international personality of an international organization is limited to signatory states of the

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convention creating such an organization.     Generally, the treaty creating an international organization indicates its nature, status, purposes and powers.  The international legal personality of an international organization is, therefore, limited to the rights, duties, purposes and powers laid down in the treaty creating it.  The international legal personality of the United Nations, for example, is derived from the United Nations Charter, the Headquarters Agreement between the United Nations and the United States of America of 1947, and the 1946 Convention on the Principles and Immunities of the United Nations.[6]  The attribution of an international legal personality involves the capacity to perform legal acts, to have rights and duties and to enter into relations on the international level.  In reality, international organizations have exercised their legal capacity in a great variety of ways.  They have concluded treaties, created military forces, convened international conferences, and brought claims against States.     The legal personality acquired by international organizations necessarily imports consequences as to international responsibility, both to and by the organization.  When an infringement occurs, the organization can call upon the responsible state to remedy its default, and to obtain from the state reparation for the damage caused by the default.  Thus, the organization has the capacity to claim adequate reparation for the damage suffered by its or by its agents.  Whereas the right of a state to assert a claim on behalf of a victim is based on the link of nationality, in the case of an international organization, the necessary link relates to the requirements of the organization and therefore the fact that the victim was acting on behalf of the organization in exercising one of its functions.  The organization possesses a right of functional protection in respect of its agents.[7]       Just as a state can be held responsible for injury to an organization, so can the organization be held responsible for injury to a state, when the injury arises out of a breach by the organization of an international obligation deriving from a treaty provision or principle of International Law.  The question of responsibility has particularly arisen in the context of United Nations peacekeeping operations and liability for the activities for the members of such forces.  In such cases, the United Nations has accepted responsibility and offered compensation for wrongful acts.    IV. Constituting Instruments of International Organizations [8]      International organizations are created by states by formal decisions laid down in constituting instruments. These constituting instruments create international

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organizations as well as define their nature, status, purposes, functions and powers.  In this sense, such instruments have a dual nature, conventional and constitutional nature. They are multilateral treaties establishing principles, rights and obligations binding on states parties.  They are also treaties of a particular type since their object is to create new subjects of international law endowed with certain autonomy, to which the parties entrust the tasks of realizing common goals.[9]       Such constituting instruments fall within the framework of the international law of treaties.  They are to be interpreted and applied according to International Law.

  V.  Applicable Law of International Organizations [10]      Since the constituting instruments of international organizations fall within the framework of International Law, accordingly, as a general rule, the applicable or “proper” law of international organizations is the International Law.  In addition, an organization may enter into treaty relationship with a particular state, for example, a headquarters agreement.  In such a case, such relationship will also be governed by International Law.      However, the applicable law in particular circumstances may be national law. When an organization enters into private transactions such as contracting for equipments and services, or purchasing or leasing land, these transactions will normally be subject to the appropriate national law.  Tortious liability as between the organization and a private person will generally be subject to national law.     The internal law of the organization governs its internal affairs and matters such as employment relations, the establishment and functioning of subsidiary organs, and the management of administrative services.  The Internal law of an organization, which includes its constituting instrument, regulations, norms and contractual arrangements, may in fact be considered as a special and particular part of International Law, since it is founded upon the constituting instrument of the organization that draws its validity and applicability from the rules of International Law.                    VI. Privileges and Immunities of International Organizations[11]

      It is uncertain which immunities and to what extent international organizations enjoy under customary International Law; the position of this law is far from clear.

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[12]   Actually, immunities are granted to international organizations by treaties, or by headquarters agreements concluded with the host State where the organization is seated.     The purpose of immunity granted to international organizations is purely functional. Immunity is regarded as functionally necessary for the fulfillment of their objectives.[13]   It is not a reflection of sovereignty, as it is in case of a state, except only indirectly when aiming to protect the interests of the member states of the organization.[14]     Probably the most important example of treaties providing immunities to international organizations is the 1946 General Conventions on the Privileges and Immunities of the United Nations,[15]  which sets out the immunities of the United Nations and its personnel. The United Nations enjoys complete immunity from all legal process.[16]  Its premises, assets, archives and documents are inviolable.[17]  It is exempt from direct taxes and customs duties.[18]  Its staff is exempt from income tax on their salaries.[19]     The U.N Secretary General and the Assistant Secretaries General enjoy diplomatic immunity.[20]  Other staff members enjoy limited immunities, such as immunity from legal process in respect of their official acts.[21]     Representatives of member States attending the United Nations meetings are granted almost the same immunities as diplomats, except their immunity from legal process applies only to their official acts.[22]     An example of treaties providing immunities to representatives of states in international organizations is the 1975 Vienna Convention on the Representatives of States in their Relations with International Organizations of a Universal Character.[23]  This treaty applies to representatives of states in any international organizations of a universal character, irrespective of whether or not there are diplomatic relations between the sending State and the host States.  Under this treaty, the representatives of States in universal international organizations enjoy similar immunities to those provided in the 1961 Vienna Convention on Diplomatic Relations.   They enjoy immunity from criminal jurisdiction, and immunity from civil and administrative jurisdiction in all cases, save for certain exceptions. The mission premises, archives, documents and correspondence are inviolable.                 VII. Acts of International Organizations as Sources of International Law [24]              The growth of international organizations since the First World War has been

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accompanied by suggestions that the acts of these organizations should be recognized as a source of International Law.[25] The question involved hereto is whether the decisions of the organs of these organizations can be regarded as a separate source of International Law.     Decisions of the organs of international organizations may be binding or non-binding.  An organ may be authorized to take decisions which are binding on member states; only these binding decisions are regarded as a source of the International Law.  The only clear example of binding decisions is the resolutions which the Security Council of the United Nations are authorized to take under Chapter Seven (VII) of the Charter of the United Nations dealing with actions related to threats to the peace, breaches of the peace, and acts of aggression.[26]

     However, there is a controversy concerns the non-binding decisions of the organs of the international organizations. Since almost all the organs of the international organizations are composed of representatives of member states and their acts are merely the acts of the states represented in these organs, they would probably constitute an evidence of customary law because they reflect the views of the state voting for them.[27]  The obvious examples of such type of acts are the resolutions and declarations of the General Assembly of the United Nations.  When the vast majority of States, in the General Assembly, consistently vote for resolutions and declarations on a certain topic, a state practice will be established and a binding rule of customary International Law will emerge.[28] Thus, these resolutions and declarations will constitute an evidence of the existence of customary International Law.  Examples of such resolutions and declarations regarded as examples of State Practice which have led to binding rules of customary International Law are: “the Resolution on Prohibition of the Use of Nuclear Weapons for War Purposes”, “the Declaration on Granting of Independence to Colonial Countries and Peoples”, “the Declaration on Permanent Sovereignty over Natural Resources” and “the Declaration of Legal Principles Governing Activities of States in the Exploration and Use of Outer Space”.[29]         Resolutions and declarations of the General Assembly may also provide a basis for the progressive development of the International Law and the speedy adaptation of customary law to the conditions of modern life.[30]  Moreover, in some instances, a resolution or declaration may have direct legal effects as an authoritative interpretation and application of the principles stated in the Charter of the United

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Nations.[31]  VIII. The Role of International Organizations in the Development of International Law [32]      The establishment of the League of Nations in 1919, following the First World War, and the establishment of the United Nations in 1945, following the Second World War, represented two significant turning points in the development of the International Law.  The development was characterized by a new departure in the evolution of this Law.  International Law began its evolution from being primarily a system of regulating relations between states towards becoming also a system of international cooperation.     The League of Nations was the first international organization established primarily for the purpose of maintaining international peace and security. The establishment of the International Labor Organization (ILO), affiliated with the League of Nations, in 1919 signaled the end of an era in which International Law was, with few exceptions, confined to the regulation of relations between states.[33]  The ILO was the first permanent international organization concerned with the improvement of labor conditions and social welfare at the international level.  In 1921, the Permanent Court of International Justice (PCIJ) was established as the first permanent international judicial organ with an international judicial jurisdiction.     The establishment of the United Nations in 1945 led to a progressive development of International Law.  During the post-United Nations’ era, the development of International Law has been influenced by two major events effected the international community.[34] The first major event has been the expansion in the membership of the international community.  New States, mostly representing non-western civilization, have joined the club of family of nations, which was previously exclusively limited to states belonging to Western Civilization.  The concerns and priorities of these states have been different from those of other states; they have been occupied with the development of their political, economic and social systems.  The second major event has been the massive expansion of international organizations for cooperation.  Numerous specialized agencies of the United Nations and other international organizations, universal as well as regional, have been established.   This event has confirmed the evolution International Law from its traditional nature to its contemporary nature of being a system of organized collective efforts for cooperation.

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     Since the establishment of the United Nations, a great number of international treaties covering all aspects of international affaires have been concluded.   Law-making treaties have been contributing extensively to the rapid development of Public International Law. They have led to may important new developments in Public International Law, and greatly increased its scope.  Apart of the law-making treaties, international courts, the present International Court of Justice (ICJ), its forerunner the Permanent Court of International Justice (PCIJ), and others, have been also contributing to the development of Public International Law.  Moreover, the International Law Commission created in 1947, the organs of the United Nations and its specialized agencies have been playing a significant role in developing and expanding Public International Law.

Chapter 19The League of Nations

I.  Origin and Founding of the League of Nations

     The League of Nations was established at the initiative of the victorious Allied Powers after the Paris Peace Conference of 1919 that ended the First World War.  The need to establish an international association for the preservation of peace had been felt during the First World War.  During the war, influential groups in the United States and Britain had urged the creation of such a body.  The U.S. President Woodrow Wilson strongly favored the idea as a means of preventing another destructive world war.  In his Fourteen Points summarizing Allied aims in the First World War, President Wilson presented a plan for a general association of nations to guarantee political independence and territorial integrity to all nations.[2]       The Paris Peace Conference accepted the proposal to create the League of Nations on January 25, 1919.  The Covenant of the League of Nations was drafted by a special commission on which President Wilson was a member.  President Wilson was the impetus behind the creation of the League of Nations.  His plan

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formed the basis of the Covenant of the League of Nations.  The Covenant was formulated as Part I of the Treaty of Versailles which ended the First World War and which was signed on June 28, 1919; accordingly, the League of Nations was established.   The League Covenant embodied the principles of collective security (joint action by League members against an aggressor), arbitration of international disputes, reduction of armaments, and open diplomacy.     The League was established for major purposes which were to promote international cooperation and to achieve international peace and security.  Its establishment as an organization for international cooperation, constituted a fundamental shift from the old philosophy of European relations.  The diplomatic philosophy behind the establishment of League came to replace the old philosophy, growing out of the Congress of Vienna (1815), which was built on shifting alliances among nation-states, and balance of power maintained by strong armies and secret agreements.  Under the new philosophy, the League meant to be a government of governments, with the role of settling disputes between nations in an open and legalist forum.

II. Status and Membership of the League of Nations     The League of Nations was an intergovernmental organization established to promote international cooperation and to achieve international peace and security.[3]  It was the first of this kind ever established by mankind.  It existed from 1920 to 1946.     The League held its first meeting in London on 10 January 1920.  Its first action was to ratify the Treaty of Versailles, officially ending the First World War.  The headquarters of the League moved to Geneva on November 1, 1920, where the first general assembly of the League was held on November 15, 1920 with representatives from 41 nations in attendance.  Its last meeting was held on April 8, 1946; at that time the league was superseded by the United Nations (UN).    The original members of the League of Nations were those of the signatories named in the Annex to the Covenant and also such of those other states named in the Annex as would accede without reservation to the Covenant.[4]  Initially, the Covenant of the League of Nations was signed by 44 states, including 31 states which had taken part in the war on the side of the Allied Powers or joined them during the war (neutral and enemy nations had been initially excluded).  Despite

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President Wilson's efforts to establish and promote the League, for which he was awarded the Nobel Peace Prize in 1919, the United States neither ratified the Covenant nor joined the League due to opposition from isolationists in the U.S. Senate.     Moreover, the Covenant provided that any fully self-governing State, Dominion or Colony not named in the Annex might become a Member of the League if its admission was agreed to by two-thirds of the Assembly, provided that it would give effective guarantees of its sincere intention to observe its international obligations, and would accept such regulations as might be prescribed by the League in regard to its military, naval and air forces and armaments.[5]The Covenant provided that any Member of the League might, after two years' notice of its intention so to do, withdraw from the League, provided that all its international obligations and all its obligations under this Covenant had been fulfilled at the time of its withdrawal.[6]   It also provided that any member who had violated any provisions of the Covenant might be declared to be no longer a member of the League by a vote of the Council concurred in by the representatives of all other members of the League represented thereon.[7]     The League of Nations had 42 founding members excluding United States of America which did not join the League, although American diplomats encouraged the league's activities and attended its meetings unofficially. 16 of founding members left or withdrew from the League; Yugoslavia was the only founding member to leave the League and return to it later and remained until the end.  In the founding year six other states joined, only two of them remained members until the end.  In later years 15 more states joined, three of them did not stay until the end.  Egypt was the last state to join in 1937.  The Union of Soviet Socialist Republics was expelled from the league five years after it joined on December 14, 1939.  Iraq was the only member of the League that was under its mandate; it became a member in 1932.  In conclusion, during the League’s 26 years, a total of 63 nations joined the League; 28 were members for the entire period.

 III. Purposes and Principles of the League of NationsIn the preamble of the Covenant, the contracting parties agreed on the principles through which they could promote international cooperation and achieve international peace and security which constituted the main purpose of the League of Nations.  The agreed principles were:

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1.     The acceptance of obligations not to resort to war,2.     The prescription of open, just and honorable relations between nations,3.     The firm establishment of the understandings of international law as the actual rule of conduct among Governments, and4.     The maintenance of justice and the respect for all treaty obligations in the dealings of organized peoples with one another.    Moreover, in the articles of the Covenant, the Members elaborated on their major undertakings:[8]1.     The Members recognized that the maintenance of peace required the reduction of national armaments to the lowest point consistent with national safety and the enforcement by common action of international obligations.  In this regard they entrusted the Council with the power to formulate plans for such reduction. Such plans would be subject to reconsideration and revision at least every ten years.

2.     The Members undertook to respect and preserve as against external aggression the territorial integrity and existing political independence of all Members of the League.  In case of any such aggression or in case of any threat or danger of such aggression the Council should advise upon the means by which this obligation should be fulfilled.

3.     The Members agreed that any war or threat of war, whether immediately affecting any of the Members of the League or not, should be declared a matter of concern to the whole League, and the League should take any action that might be deemed wise and effectual to safeguard the peace of nations. In case any such emergency should arise the Secretary General should on the request of any Member of the League forthwith summon a meeting of the Council.4.     The Members agreed to submit any dispute between them either to arbitration or judicial settlement or to enquiry by the Council, and they agreed in no case to resort to war until three months after the award by the arbitrators or the judicial decision, or the report by the Council. In any case the award of the arbitrators or the judicial decision required to be made within a reasonable time, and the report of the Council shall be made within six months after the submission of the dispute.5.     The Members agreed to carry out in full good faith any award or decision that might be rendered, and that they would not resort to war against a Member of the League which complied therewith.  In the event of any failure to carry out such an

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award or decision, the Council was required to propose what steps should be taken to give effect thereto.     In addition, subject to and in accordance with the provisions of international conventions existing or hereafter to be agreed upon, the Members of the League undertook:[9]1.     To secure and maintain fair and humane conditions of Labour for men, women, and children, both in their own countries and in all countries to which their commercial and industrial relations extend, and for that purpose would establish and maintain the necessary international organizations;2.     To secure just treatment of the native inhabitants of territories under their control;3.     To entrust the League with the general supervision over the execution of agreements with regard to the traffic in women and children, and the traffic in opium and other dangerous drugs;4.     To entrust the League with the general supervision of the trade in arms and ammunition with the countries in which the control of this traffic is necessary in the common interest;5.     To make provision to secure and maintain freedom of communications and of transit and equitable treatment for the commerce of all Members of the League. In this connection, the special necessities of the regions devastated during the war of 1914-1918 shall be borne in mind;6.     To take steps in matters of international concern for the prevention and control of disease.  IV. Organizational Structure of the League of Nations        The League consisted of three principal organs, namely the Secretariat, the Council and the Assembly,[10] and many agencies and commissions.

 1. The Assembly [11]     The Assembly consisted of Representatives of the Members of the League.  Each member state had one vote. The Assembly held its sessions once a year in September.  The Assembly had the authority to deal at its meetings with any matter within the sphere of action of the League or affecting the peace of the world.         Decisions of the Assembly on important matters required the agreement of all the Members of the League represented at the meeting.   All matters of procedure at

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meetings of the Assembly required to be decided by a majority of the Members of the League represented at the meeting. 2. The Council [12]     The League Council had the authority to deal with any matter within the sphere of action of the League or affecting the peace of the world.  The Council began with four permanent members (Great Britain, France, Italy, Japan) and four non-permanent members elected by the Assembly every three years. The first four non-permanent members were Belgium, Brazil, Greece and Spain. United States was meant to be the fifth permanent member, but the United States Senate voted on March 19, 1920 against the ratification of the Treaty of Versailles, so the fifth permanent seat was taken by China. Germany joined the League and became a sixth permanent member of the Council on September 8, 1926, taking the Council to a total of fifteen members. With the departure of Germany and Japan from the League, their places were taken by new non-permanent members.     The Council met in ordinary sessions four times a year, and in extraordinary sessions when required.  In total, 107 public sessions were held between 1920 and 1939.  Decisions of the Council on important matters required the agreement of all the Members of the Council represented at the meeting (a unanimous vote by the Council), while decisions on matters of procedure required a majority of the Members represented at the meeting.

 3. The Secretariat [13]    The Secretariat was the administrative organ of the League (acting as the civil service for the League).  It was located in Geneva, Switzerland.[14]  It was headed by the Secretary General.  The staff of the League's secretariat was responsible for preparing the agenda for the Council and the Assembly and publishing reports of the meetings and other routine matters.   The General Secretary wrote annual reports on the work of the League.    Over the life of the League from 1920–1946, the three Secretaries General were: Sir James Eric Drummond (U.K.) (1920-1933);Joseph Avenol (France) (1933-1940); Seán Lester (Ireland) (1940-1946). Other Bodies     The Permanent Court of International Justice and several other agencies and

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commissions were created by the League of Nations to deal with pressing international problems. The agencies and commissions were: the Disarmament Commission, the Health Organization, the International Labour Organization, the Mandates Commission, the Permanent Central Opium Board, the Commission for Refugees, and the Slavery Commission. While the League itself generally failed to achieve its mission, several of its agencies and commissions succeeded in their respective missions.     Several of these institutions were transferred to the United Nations (UN) after the Second World War. The International Labour Organization was brought into affiliation with the UN.  The Permanent Court of International Justice became a UN institution as the International Court of Justice.  The Health Organization was restructured as the World Health Organization. V. Successes and Failures of the League of Nations     The League of Nations was the first intergovernmental organization for cooperation among nations.  It provided a focal point for intergovernmental organizations and also for the growing network of nongovernmental agencies.  It significant successes were the establishment of the Permanent Court of International Justice and many international agencies and commissions dealing with various matters of international concern.

     In the field of international peace and security, the League succeeded in settling minor international disputes, and experienced no serious challenges to its authority.  Example of such miner disputes were: the dispute between Sweden and Finland over Land Islands; the border dispute between Albania and Yugoslavia; the dispute between Germany and Poland over Upper Silesia; the dispute between the League and Poland over Memel; the dispute between Greece and Bulgaria; the dispute between France and Germany over Saar; and the dispute between Iraq and Turkey over Mosul.    However, the League generally failed in its mission to achieve disarmament, prevent war, settle major disputes through diplomacy, and improve global welfare.  It failed to settle the disputes over Cieszyn (between Poland and Czechoslovakia), Vilna (between Poland and Lithuania), Ruhr (between France and Belgium on one side and Germany on the other side), and the island of Corfu (between Italy and Greece).  It also failed to prevent the Japanese invasion of

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Manchurian (China) in 1931, the Chaco War between Bolivia and Paraguay in 1932, the Italian invasion of Abyssinia in 1935, and the Spanish Civil War in 1936.  Above all, it failed to prevent Axis rearmament which constituted a major event led to the outbreak of the Second World War.     The League also worked to combat international trade in opium and sexual slavery and helped alleviate the plight of refugees, particularly in Turkey during the 1920s.      The failure of the League of Nations in achieving its objectives was the result of the following:(1) The League lacked an armed force of its own.   It depended on the Great Powers to enforce its resolutions, which they were reluctant to do.  Its two most important members, the United Kingdom and France, were reluctant to use sanctions, particularly to resort to military action on behalf of the League.(2)  The economic sanctions, which were the most severe measures the League could decide short of military actions, were difficult to enforce and had no great impact on the sanctioned state, because it could simply trade with states outside the League.(3)  The Council of the League was required to adopt its resolutions by a unanimous vote of its nine members (later fifteen members), so conclusive and effective action was difficult, if not impossible to be taken.  It was also slow on coming to its decisions.  Some decisions also required unanimous consent of the Assembly of the League, i.e., the agreement by all members of the League.    (4)  The representation at the League was a problem.  Although the League was intended to encompass all nations, many never joined, or their time as members of the league were short.  The League was seriously weakened by the non-adherence of the United States of America; the U.S. Congress failed to ratify the Treaty of Versailles (containing the Covenant).  The League also further weakened when the three permanent members of the Council, Germany, Italy and Japan, left in the 1930s.[15](5)  Most members of the League were occupied with the protection of their own national interests rather than the fulfillment of their commitments to the League and its objectives.         With the outbreak of Second World War, it was clear that the League of Nations had failed in its purpose which was to avoid any future world war. During the war,

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the League ceased its activities; neither the League's Assembly nor Council was able or willing to meet, and its secretariat in Geneva was reduced to a skeleton staff, with many offices moving to North America.     After the failure of the League of Nations to prevent war, nations of the world decided to create a new body to fulfill the League's role, but to take it further. This body was to be the United Nations (UN).  At a meeting of the Assembly in 1946, the League dissolved itself and transferred its services, mandates, and property to the UN.  Many League bodies, for instance the International Labor Organization, continued to function and eventually became affiliated with the UN. 

Chapter 20The United Nations

                  The United Nations (UN) is an international organization.  It is a global association of governments facilitating cooperation in international, international security, economic development, and social progress.   It was founded in 1945 by 51 states, replacing the League of Nations; as of 2019 it consists of 193 member states.  The creation of the United Nations Organization represents the second major effort (the creation of the League of Nations was the first effort) in the twentieth century for the purpose of maintaining international peace and security through a

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general international organization of states.     How and when was the United Nations created?  What is its nature?  For what purposes was it created?  What are its principles?  How is it structured?  How can it maintain international peace and security, its primary purpose?  How has it evolved since its creation?     The answers to all the above questions are dealt with in the following four chapters.  Chapter one deals with the genesis of the United Nations, its Charter, its purposes and principles, its membership, and its budget.  Chapter two deals with the organizational structure of the United Nations.  Chapter three deals with the role of the United Nations in the maintenance of international peace and security. Chapter four deals with the other activities of the United Nations.

Section One: Introductory Topics   I. Genesis (origin) of the United Nations [2]

     The name "United Nations" was coined (invented) by United States President Franklin D. Roosevelt during the Second World War.  It was first used in the “Declaration by the United Nations” of January 1, 1942, when representatives of 26 nations pledged their Governments to continue fighting together against the Axis powers during the Second World War.  Thereafter, the Allies used the name "United Nations Fighting Forces" to refer to their alliance.

     The idea to create an international organization was elaborated in declarations signed at the wartime allied conferences in Moscow, Cairo and Tehran in 1943.  From August to October 1944, representatives of France, the Republic of China, the United Kingdom, the United States, and the Soviet Union met to elaborate the plans for the creation of a United Nations organization at the Dumbarton Oaks Estate in Washington, DC.  Those and later talks produced proposals outlining the purposes of the organization, its membership and organs, and arrangements to maintain international peace and security and international economic and social cooperation. These proposals were discussed and debated by governments and citizens worldwide.        On April 25, 1945, the United Nations Conference on International Organizations began in San Francisco.[3]  The 50 nations represented at the

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conference signed the Charter of the United Nations on 26 June 1945.  Poland, which was not represented at the conference, signed the Charter two month later.  The United Nations Organization officially came into existence on October 24, 1945, after the Charter had been ratified by the five permanent members of the Security Council, Republic of China, France, the Soviet Union, United Kingdom, and the United States,  and by a majority of the other 46 signatories.  United Nations Day is celebrated on 24 October each year. II. Nature of the United Nations     To understand the United Nations one must understand its nature.  The ideal of an international organization such as the United Nations has intrigued far-seeking thinkers and dreamers for many centuries.  The theories and conceptions of these thinkers and dreamers provided the bases for the international organizations.     Three broad schools of thought can be suggested for the purpose of understanding the nature of the United Nations.  These three schools can be called the rationalist, the revolutionist, and the realist.[4]     The rationalists insist on the need for a new plan for the international relation.  They reject the bankrupt practices and objectives of the old diplomacy.  They argue that the rationale for a political body that has the right to enforce law and order at the domestic level is the same for a world political body that has the right to enforce law and order at the international level.  That which exists at the domestic level needs to be created in international society, the society of sovereign states, for the purpose of transforming that society into a true community of nations where world-wide peace and order prevail.  An international political body could provide the framework for the realization of order for the benefit of all mankind.

     U.S President Woodrow Wilson, a rationalist, envisioned the organization as “not a balance of power, but a community of power; not organized rivalries but an organized common peace.”[5]  To him, organized common peace should be supported by collective mechanisms for the pacific settlement of disputes and by general and comprehensive disarmament for the purpose of depriving states of the means with which to wage war and aggression.

     Rationalist thought is imbued with a sense of purposes: “To save successive

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generations from the scourge of war; to secure equal political rights (national self-determination) and equal economic opportunities (the welfare state); and to substitute right for might through the institution of the rule of law which will give protection to the powerless against the powerful.”[6]

     Believing in the historical progress, the rationalists assure that the “United Nations is moving slowly but surely in the direction of a fully-fledged world authority, with the acceleration of an ever-widening range of executive responsibilities, especially in the peace-keeping field, and the assimilation of procedures which … constitute a form of parliamentary diplomacy”.[7]

      Like the rationalists, the revolutionists insist on the process of historical progress.  However, there are important differences between the two.  On one hand, the rationalists’ goal is “an international millennium, that is, a millennium in which sovereign states will continue to exist, even though they will coexist not in a state of near anarchy but in an effectively functioning world community.”[8]  On the other hand, the revolutionists’ goal is “to rebuild, not merely to repair, the existing world order, the institutions of which may need to be demolished to clear the site for the rebuilding.  In that rebuilding there may be little place for traditional notions of sovereignty.”[9] Finally, the realists insist on the “real nature of things”.  Their starting point is the observed behaviors of states.  Their approach is dominated by the “ubiquity of the struggle for power, regardless of time and place and political ideology, or form of government.”[10] Relying on this approach, they believe that the world’s institutions are caught up in this struggle.  They argue that in this international arena of states struggling for powers, world order is necessary and needed as a countervailing power.  They view world order as “a function of a balance of power checking and restraining the overweening ambitions of the powerful.”[11]  For them the task of the world institution is to “add stability to the balance and to facilitate the adjustment of shifting power relationships without resort to large-scale or unlimited war.”[12]  The United Nations is viewed as providing “a convenient point of diplomatic contact, especially in times of crisis, which may enable statesmen to assess each other’s intentions more accurately and to appreciate better the risks a particular policy may involve.”[13]

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     Relying on the philosophical bases created by these schools of thought, the member states of the United Nations perceive the nature of this international organization in different ways.  The United Nations is conceived as “static conference machinery” for resolving conflicts of interests and ideologies with a view to peaceful coexistence.[14]  According to this view, the United Nations is the forum through which sovereign states despite their rivalries and competition achieve peaceful coexistence.  In contrast to this view, the United Nations is conceived as “dynamic instrument of governments” through which the governments, jointly and for common purposes, seek reconciliation to develop forms of executive action, undertaken on behalf of all members, aiming at forestalling and resolving conflicts by appropriate diplomatic or political means.[15]  According to this view, the “dynamic instrument” concept is but the starting point on the path to increasingly effective forms of active international cooperation in the future; the road to this future is open.     To the International Court of Justice the United Nations is neither a state nor a super-state.[16]  To it the legal nature of the United Nations is more akin to a confederation of states than it is to a federation.[17]     The concept of “is” and “ought to be” regarding the United Nations have confused the statesmen as well as the thinkers.  Everyone has been trying to give his own view.[18]  The United Nations is a meeting place for international discussion.  It is a place where the world statesmen meet each other.  It is merely a group of institutions provided with procedures and powers for accomplishing objectives.  It is an instrument of cooperation.  It is a loose association for occasional specific joint action, in regard to which each of its members remain on the whole free to participate or not.  It is a club which makes joint action easier if wanted.   The most realistic view regarding the nature of the United Nations is the one conceives the Organization not a world government but an organization of sovereign states, and not an entity apart from its members but an entity reflects the world context in which it operates: its diversity, its imperfections, its many centers of powers and initiatives, its competing values, its worldly compound of mobility and tragedy.[19]  This view gives a veracious and realistic picture about the United Nations.  The United Nations is a reflection of the international scene.  Its nature should be conceived in regard to what it “is” in reality rather that what it “ought to

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be”.  Until the time when member states get together to choose and decide what the United Nations ought to be, the nature of the United nations remains a subject of confusion.  The United Nations remains a loose association of conflicting states in an international theater, where each state seeks to further its own interests through every possible means, legal or illegal, or even through exploiting this Organization for its own selfish purposes.      From the legal point of view, the United Nations is a legal person under International Law (a subject of International Law).[20]  The United Nations can perform legal acts such as entering into agreements with member States and with other international organizations, concluding contracts and bringing claims before the Court.     The international legal personality of the United Nations is derived from the United Nations Charter, the Headquarters Agreement between the United Nations and the United States of America of 1947, and the 1946 Convention on the Principles and Immunities of the United Nations.  The attribution of an international legal personality involves the capacity to perform legal acts, to have rights and duties and to enter into relations on the international level.

     The United Nations enjoys in the territory of each of its member states such legal capacity as may be necessary for the exercise of its functions and the fulfillment of its purposes.[21]  It also enjoys such privileges and immunities as are necessary for the fulfillment of its purposes.[22]  Officials of the United Nations (the Secretary General and the Staff) and representatives of member states similarly enjoy such privileges and immunities as are necessary for the independent exercise of their functions in connection with the Organization.[23]         In reality, the United Nations has exercised its legal capacity in a great variety of ways.  It has concluded treaties, created military forces, convened international conferences, and brought claims against States.

    III. Charter of the United Nations

     On June 26, 1945, the Charter of the United Nations was signed at San Francisco (USA).  The Charter was a product of the joint evolutionary efforts and developments of many minds extending back over many centuries for the goal of

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establishing a world organization that would do away with wars and contribute to lasting security and peace on planet earth.[24]  The United Nations Organization created by the Charter represents the second major effort in the twentieth century for the purpose of maintaining international peace and security through a general international organization of states.

     The United Nations Charter is the constituting instrument of the Organization, establishing the United Nations organs and procedures, and setting out the rights and obligations of Member States.  It is an international treaty, codifying the major principles of international law, from the sovereign equality of states to the prohibition of the use of force in international relations to the basic human rights to which all women and men are entitled.[25]     The Charter opens with a Preamble, and includes 19 chapters, mainly on: United Nations purposes and principles; membership; organs; pacific settlement of disputes; actions with respect to threats to peace, breach of the peace and acts of aggression; regional arrangement; international economic and social cooperation; and amendments to the Charter.

     The Preamble of the Charter expresses the ideals and common aims of all the peoples whose Governments joined together to form the United Nations.  It starts with the solemn statement of ends (purposes or aims) by the peoples of the United Nations.  The peoples of the United Nations determined to save succeeding generations from the scourge of war, to reaffirm faith in fundamental human rights, to establish conditions under which justice and respect for the obligations arising from treaties and other sources of international law can be maintained, and to promote social progress and better standards of life in larger freedom.     The statement of ends by the peoples of the United Nations is followed by their statement of means (courses of conduct) to attain these ends.  The peoples of the United Nations determined to practice tolerance and live together with one another as good neighbors, to unite strength to maintain international peace and security, to ensure that armed force shall not be used save in the common interest, and to employ international machinery for the promotion of the economic and social advancement of all peoples.     The Preamble ends with the resolution by the peoples of the United Nations to combine their efforts to accomplish the listed aims, and accordingly have agreed to

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the Charter of the United Nations and to establish an international organization to be known as the United Nations.

IV. Purposes and Principles of the United Nations                 The United Nations is essentially an association of states that, through an international treaty, has chosen to accomplish specific aims and purposes.  These purposes, the common ends, which the United Nations, a center for harmonizing the actions of nations, has to attain, are stated in the preamble and Article 1 of its Charter.  The purposes of the United Nations are: [26]1.     To maintain international peace and security;2.     To develop friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples;3.     To cooperate in solving international economic, social, cultural and humanitarian problems and in promoting respect for human rights and fundamental freedoms;4.     To be a center for harmonizing the actions of nations in attaining these common ends.     The United Nations and its Members, in pursuit of the Purposes of the United Nations, stated in Article 2 of the Charter the principles to be followed by the Organization and its Members in pursuit of the purposes stated in Article 1.  The principles are:[27]1.     The United Nations is based on the sovereign equality of all its Members.2.     All Members are to fulfill in good faith their obligations under the Charter.3.     All Members are to settle their international disputes by peaceful means in such a manner that international peace and security, and justice, are not endangered.4.     All Members are to refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.5.     All Members are to give the United Nations every assistance in any action it takes in accordance with the Charter, and to refrain from giving assistance to any state against which the United Nations is taking preventive or enforcement action.6.     The Organization is to ensure that states which are not Members of the United Nations act in accordance with these Principles so far as may be necessary for the maintenance of international peace and security.7.     The United Nations and its Members are not to intervene in matters which are

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essentially within the domestic jurisdiction of any state.     It seems that the maintenance of international peace and security which was the basic reason for the creation of the United Nations as an international organization represents the primary purpose of this Organization.  The maintenance of international peace and security is the prerequisite to any other purposes of the United Nations; without it no friendly relations, no international cooperation, and no harmonization of nation’s actions could be achieved.  Its location, heading the list of the United Nations’ purposes, makes it prevailing over the other purposes.     Because of the importance of international peace and security, the founders of the United Nations insisted upon it and emphasized it in the Preamble and in the articles of the Charter of the United Nations.  They made it the primary purpose of the United Nations, and to this end they stated all the possible principles and courses of conduct which are to be followed to attain it. V. Membership of the United Nations     The Charter of the United Nations, after determining the original members of the United Nation, defines the conditions and the procedures for the admission of a new member to the United Nations, and the conditions and procedures for the suspension or expulsion of a member from the United Nations.  The original members of the United Nations, as determined by the Charter, are the states (51 states) which participated in the United Nations Conference on International Organization at San Francisco in 1945, and which signed its Charter. [28]  Membership to the United Nations is open to all other peace-loving states which accept the obligations contained in the Charter and, in the judgment of the Organization, are able and willing to carry out these obligations.[29]  The admission of any such state to membership in the United Nations takes effect by a decision of the General Assembly upon the recommendation of the Security Council.[30]

     A member of the United Nations against which a preventive or enforcement action has been taken by the Security Council may be suspended from the exercise of the rights and privileges of membership by the General Assembly upon the recommendation of the Security Council; the exercise of these rights and privileges may be restored by the Security Council.[31]  Moreover, a member which has persistently violated the principles contained in the Charter may be expelled from the Organization by a decision of the General Assembly upon a recommendation of

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the Security Council.[32]  No such action (suspension or expulsion) has ever been taken.     As of 2006 the United Nations consists of 191 member states, including virtually all internationally-recognized independent nations, except the Vatican City (which has declined membership), Palestine (whose status is still one of a de facto state, and has not yet legal declared statehood), Niue (whose foreign affairs are dealt with by the New Zealand Government) and the Republic of China (whose membership was superseded by the People's Republic of China in 1971).  Palestine and the Vatican City both have permanent observer missions to the U.N. VI. Budget of the United Nations     The regular budget of the United Nations (excluding its programmes) is approved by the General Assembly for a two-year period. The budget is initially submitted by the Secretary General and reviewed by the Advisory Committee on Administrative and Budgetary Questions.  The main source of the funds for the regular budget is the contributions of member states, which are assessed on a scale approved by the Assembly on the recommendation of the Committee on Contributions.[33]  The fundamental criterion on which the scale of assessments is based is the ability of states to pay.  This is determined by considering their relative shares of total gross national product, adjusted to take into account a number of factors, including their per capita incomes.     In addition to the regular budget, member states are also assessed, in accordance with the modified version of the basic scale, for the costs of the United Nations peacekeeping operations around the world.  With Regard to the United Nations operational programmes, the bulk of the resources for their finance are provided on a voluntary basis.  Contributions are provided by governments, and also by individuals. Section TwoOrganizational Structure of the United Nations         The Charter of the United Nations established six principal organs of the United Nations, namely the General Assembly, the Security Council, the Economic and Social Council, the Trusteeship Council, the International Court of Justice, and the Secretariat.  The United Nations family, however, is much larger; it encompasses 15

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agencies and several programmes and bodies.

 I. General Assembly [34]         The General Assembly (G.A) of the United Nations is the main deliberative organ of the Organization.  It is a forum where states put forward their ideas and debate issues.

 A.  Composition and Voting     The General Assembly is composed of representatives of the members of the United Nations; it is made up of all 191 member states.[35]  Each member of the General Assembly has one vote.[36]     The General Assembly can discuss and make recommendations on any issue covered by the U.N Charter.  The recommendations are not binding and the Assembly has no authority to enforce them, however, they carry the weight of world opinion, as well as the moral authority of the world community.     Decisions of the General Assembly on important questions, such as those on peace and security, admission of new members, election of members to other U.N organs, suspension or expulsion of a member, and budget, require a two-thirds majority.[37]  Decisions on other questions are made by a majority of the members present and voting.[38]

 B.  Functions and Powers            Under the Charter, the functions and powers of the General Assembly include: [39]1.     To consider and make recommendations on the principles of cooperation in the maintenance of international peace and security, including the principles governing disarmament and arms regulation.2.     To discuss any question relating to international peace and security and, except where a dispute or situation is being discussed by the Security Council, to make recommendations on it.3.     To discuss and, with the same above exception, make recommendations on any question within the scope of the Charter or affecting the powers and functions of any organ of the United Nations.4.     To initiate studies and make recommendations to promote international

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political cooperation, the development and codification of international law, the realization of human rights and fundamental freedoms for all, and international collaboration in economic, social, cultural, educational and health fields.5.     To make recommendations for the peaceful settlement of any situation, regardless of origin, which might impair friendly relations among nations.6.     To receive and consider reports from the Security Council and other United Nations organs.7.     To consider and approve the United Nations budget and to apportion the contributions among members.8.     To elect the non-permanent members of the Security Council, the members of the Economic and Social Council and those members of the Trusteeship Council that are elected; to elect jointly with the Security Council the Judges of the International Court of Justice; and, on the recommendation of the Security Council, to appoint the Secretary-General.     The “Uniting for Peace” Resolution adopted by the General Assembly in 1950 provides an additional function to the General Assembly.[40]  The General Assembly is granted the power to act in place of the Security Council if the latter fails to discharge its primary responsibility in maintaining international peace and security.  Under this resolution, the General Assembly may do by recommendations anything that the Security Council can do by decisions under Chapter VII.  The Assembly can make appropriate recommendations to members for collective measures, including the use of armed force, if the Council in any case where there appears to be a threat to the peace, breach of the peace or act of aggression fails to exercise its responsibility, because of the lack of unanimity of its permanent members. C.  Sessions [41]

     The General Assembly meets in regular annual sessions.  Its regular session usually begins each year on the third Tuesday in September.  At the start of each regular session, the Assembly elects its new President, its 21 Vice-Presidents and the Chairpersons of the Assembly's six main committees.  To ensure equitable geographical representation, the presidency of the Assembly rotates each year among five groups of states: African, Asian, Eastern European, Latin American, and Western European and other states.

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     In addition to its regular sessions, the Assembly may meet in special sessions at the request of the Security Council, of a majority of member states, or of one member if the majority of members concur.  It may meets in emergency special session under the “Uniting for Peace” Resolution.  Emergency special sessions may be called within 24 hours of a request by the Security Council on the vote of any nine Council members, or by a majority of the United Nations members, or by one member if the majority of members concur.     At the beginning of each regular session, the General Assembly holds a general debate, often addressed by heads of state and government, in which member states express their views on a wide range of international matters.   Issues are then discussed by the Assembly.  Some issues are considered only in the Assembly’s plenary meetings, while others are allocated to one of the Assembly’s six main committees:- First Committee (Disarmament and International Security).- Second Committee (Economic and Financial).- Third Committee (Social, Humanitarian and Cultural).- Fourth Committee (Special Political and Decolonization).- Fifth Committee (Administrative and Budgetary).- Sixth Committee (Legal).     All issues are voted on through resolutions passed in plenary meetings, usually towards the end of the regular session, after the committees have completed their consideration of them and submitted draft resolutions to the plenary Assembly.  Voting in Committees is by a simple majority.  In plenary meetings, resolutions may be adopted by acclamation, without objection or without a vote, or the vote may be recorded or taken by roll-call.  While the decisions of the Assembly have no legally binding force for governments, they carry the weight of world opinion, as well as the moral authority of the world community.     The work of the United Nations year-round derives largely from the decisions of the General Assembly.  That work is carried out:- By committees and other bodies established by the Assembly to study and report on specific issues, such as disarmament, peacekeeping, development and human rights.- In international conferences called for by the Assembly. - By the Secretariat of the United Nations, the Secretary General and his staff of international civil servants.

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II. Security Council [42]         The Security Council (S.C) of the United Nations is the most important organ in the Organization.  It has primary responsibility for the maintenance of international peace and security.

 A.  Composition and Voting [43]

     The Security Council is composed of 15 members: 5 permanent members, namely China, France, the Russian Federation, the United Kingdom and the United States; and 10 non-permanent members elected by the General Assembly for two-year terms.[44]     Each member of the Council has one vote.[45]  Decisions of the Council on procedural matters are made by an affirmative vote of at least 9 of the 15 members.[46]  Decisions on all other matters (substantive matters) are made by an affirmative vote of nine members including the concurring votes of the five permanent members.[47]  This is the rule of “Great Power Unanimity”, often referred to as the “veto” power.  If a permanent member does not agree with a decision, it can cast a negative vote, and this act has power of veto.[48]  If a permanent does not support a decision but does not wish to block it through a veto, it may abstain from voting.  The Charter provides an exception to the unanimity requirement on substantive matters.  Whenever a member of the United Nations is a party to a dispute, the continuance of which is likely to endanger the maintenance of international peace and security, that member shall abstain from voting on decisions arising under Chapter VI of the Charter (Pacific Settlement of Disputes).  This exception has been explained on the ground that nobody shall be judge in his own case.     The decisions of the Security Council are binding on all member states of the United Nations, because under the Charter, these members agree to accept and carry out the decisions of the Security Council.[49]  The Security Council alone has the power to take decisions which member states are obliged under the Charter to carry out, while other organs of the United Nations make recommendations which have no binding force on member states of the United Nations.

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 B.  Functions and Powers         Under the Charter of the United Nations, the functions and powers of the Security Council are:[50]1.  To maintain international peace and security in accordance with the principles and purposes of the United Nations.  In this respect it can:(a)  investigate any dispute, or situation which may lead to international friction or give rise to a dispute.(b) recommend methods of adjusting any dispute or terms of settlement.(c)  determine the existence of a threat to the peace or act of aggression and to  recommend what action should be taken.(d) call on members to apply economic sanctions and other measures not involving the use of force to prevent or stop aggression.(e)  take military action against an aggressor.2. To formulate plans for the establishment of a system to regulate armaments.3.  To recommend the admission of new Members.4.  To exercise the trusteeship functions of the United Nations in "strategic areas".5.  To recommend to the General Assembly the appointment of the Secretary General and, together with the Assembly, to elect the Judges of the International Court of Justice.6.  To recommend to the General Assembly the suspension or expulsion of a member state from the United Nations. C.  Meetings [51]

     The Security Council is organized in a way to be able to function continuously.  The representatives of its members must be present at all time at the United Nations Headquarters.  The Security Council may meet elsewhere than at Headquarters; in 1972, it held a session in Addis Ababa, Ethiopia, and the following year it met in Panama City.     The Security Council holds periodic meetings at which each of its members may, if it so desires, be represented by a member of its government or by a designated

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representative.  Periodic meetings are held twice a year, at such times determined by the Council.     The Council holds meetings at the call of its president at any time he deems necessary, at the request of any of its members, at the request of any member of the United Nations[52], at the request of the General Assembly,[53] or at the request of the Secretary General.[54]     Any member of the United Nations which is not a member of the Security Council may participate, without vote, in the discussion of any question brought before the Council whenever the latter considers that the interests of that member are specifically affected.[55] Any member of the United Nations which is not a member of the Security Council or any state which is not a member of the United Nations, if it is a party to a dispute under consideration by the Security Council, shall be invited to participate, without vote, in the discussion relating to the dispute.[56]  The participation of a non- member of the United Nations will be according to the rules and conditions determined by the Security Council.

III. Economic and Social Council [57]

         The Economic and Social Council (ECOSOC) is the principal organ of the United Nations which coordinates the economic and social work of the United Nations and the specialized agencies and institutions, known as the United Nations family organizations. A.  Composition and Voting

     The Economic and Social Council of the United Nations is composed of 54 members elected by the General Assembly for three-year terms. [58]  Membership on the Council are allotted based on geographical representation; fourteen allocated to African States, eleven to Asian States, six to Eastern European States, ten to Latin American and Caribbean States, and thirteen to Western European and other States.     Each member has one vote.[59]  Decisions of the Economic and Social Council are made by a majority of the members present and voting.[60] B.  Functions and Powers

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     The functions and powers of the Economic and Social Council are:[61]1.To serve as the central forum for the discussion of international economic and social issues, and for the formation of policy recommendations on those issues addressed to member states of the United Nations and to the United Nations itself or any of its family.2.To make or initiate studies and reports and make recommendations on international economic, social, cultural, educational, health and related matters. 3. To promote respect for, and observance of, human rights and fundamental freedoms.4.     To call international conferences and prepare draft conventions for submission to the General Assembly.5.     To coordinate the activities of the specialized agencies, through consultations with and recommendations to them, and through recommendations to the General Assembly and member states of the United Nations.6.     To perform services, approved by the General Assembly, for members of the United Nations and, on request, for the specialized agencies.7.     To consult with non-governmental organizations concerned with matters with which the Council deals.

 C.  Sessions [62]      The Economic and Social Council generally holds one five-week long substantive session each year, alternating between New York and Geneva.  The session includes a high-level special meeting, attended by ministers and high officials, to discuss major economic and social issues.  The Council also holds at least two organizational sessions each year in New York.     The year-round work of the Economic and Social Council is carried out in its subsidiary bodies, commissions and committees, which meet at regular intervals and report back to the Council.  The subsidiary system of the Council includes:   Nine functional commissions, which are deliberative bodies whose role is to consider and make recommendations on issues in their areas of responsibilities and expertise.        Five regional commissions (for Africa, Asia and the Pacific, Europe, Latin America and the Caribbean, and Western Asia) whose role is to initiate measures and promote the economic development of each region and strengthening the economic relations of the countries in that region, both among themselves and with

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other countries of the world.[63]        Four standing committees: for Programme and Coordination, on Human Settlement, on Non-Governmental Organizations, and on Negotiations with International Agencies.        A number of expert bodies on subject such as development planning, natural resources, and economic, social and cultural rights.        The executive committees and boards of various United Nations bodies such as United Nations Children’s Fund, Office of the United Nations High Commissioner for Refugees, United Nations Development Programme, and World Food Programme.       D.  Relations with Non-Governmental Organizations     The Charter of the United Nations authorizes the Economic and Social Council to consult with non-governmental organizations (NGOs) concerned with matters within its competence.[64]  Over 1,500 NGOs have consultative status with the Economic and Social Council.  NGOs with consultative status may send observers to attend the meetings of the Council and its subsidiary bodies.  Because NGOs possess special experience and technical knowledge of value to the Council’s work, they may express their views to the Council. They may submit written statements relevant to the Council’s work.  They may also consult with the United Nations Secretariat on matters of mutual concern.     Over the years, the relationship between the United Nations and the NGOs with consultative status has developed significantly. Increasingly, NGOs act as partners consulted on policy and programme matters, and as valuable links to civil society.  NGOs around the world are increasing in number.  They are working daily with the United Nations to help achieve the objectives of this Organization.

  IV. Trusteeship Council [65]        The Trusteeship Council is one of the principal organs of the United Nations.  It is entrusted to supervise the administration of Trust Territories placed under the Trusteeship System.  The Trusteeship System was established under the Charter of the United Nations, replacing the Mandate System established under the Covenant of the League of Nations, to promote the advancement of the inhabitants of the 11 original trust Territories and their progress towards self-government or independence.[66] The Trusteeship Council is composed of the five permanent

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members of the Security Council, namely China, France, the Russian Federation, the United Kingdom and the United States.     The Charter of the United Nations authorizes the Trusteeship Council:  to examine and discuss reports from the Administrating Authority on the political, economic and educational advancement of the peoples of Trust Territories; to examine petitions from the Territories; and to undertake special missions to the Territories.     The objective of the Trusteeship Council has been fulfilled.  All the trust Territories have attained self-government or independence, either as separate states or by joining neighboring independence countries.  The Trusteeship Council by amending its rules of procedure will now meet as and where occasion may require. V. International Court of Justice [67]         The International Court of Justice (ICJ), whose seat is at The Hague (Netherlands), is the principal judicial organ of the United Nations.[68]  Its Statute is an integral part of the United Nations Charter.[69] A.  Parties to the ICJ       The ICJ is open to the parties to its Statute, which automatically includes all members of the United Nations. [70]  A state which is not a member of the United Nations may become a party to the Statute of  the ICJ, as is the case for Switzerland, on conditions determined in each case by the General Assembly on the recommendation of the Security Council.[71]  The Court is not open to private individuals. B.  Functions of the ICJ         The ICJ has two functions:  Judiciary and advisory functions.1.     Judiciary Function:[72]  The Court has the power to settle legal disputes between states; only states can be parties in cases before the Court.[73]  All states which are parties to the ICJ Statute can be parties to cases before the Court.  Other states can refer cases to the Court under conditions determined by the Security Council.2.     Advisory Function:[74]  The Court has the power to give advisory opinions on any legal questions.  Both the General Assembly and the Security Council can request the Court to give advisory opinions on legal questions.  Other organs of the

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United Nations and specialized agencies, when authorized by the General Assembly, can request advisory opinions of the Court on legal questions within the scope of their activities. C.  Jurisdiction of the ICJ        The jurisdiction of the ICJ covers: (1) All cases which states refer to it; (2) All matters provided for in the Charter of the United Nations; and (3) All matters provided for in treaties or conventions in force.[75]     The Court is competent to entertain a dispute only if the States concerned have accepted its jurisdiction in one or more of the following ways:[76](1)  By the conclusion between them of a special agreement to submit the dispute to the Court.(2)  By signing a treaty or convention which provides for referral to the Court.  Usually a treaty or a convention includes a jurisdictional clause, i.e., a provision providing that in the event of any dispute over its interpretation or application, one of them may refer the dispute to the Court.  Several hundred treaties or conventions contain such a clause.(3)  By making a declaration accepting the compulsory jurisdiction of the Court in the event of a dispute with another State having made a similar declaration.  The Statute of the Court provides that the states parties to the Statute may at any time declare that they recognize as compulsory ipso facto and without special agreement, in relation to any other state accepting the same obligation, the jurisdiction of the Court in all legal disputes concerning: (a) the interpretation of a treaty; (b) any question of international law; (c) the existence of any fact which, if established, would constitute a breach of an international obligation; (d) the nature or extent of the reparation to be made for the breach of an international obligation.  Such a declaration may exclude certain classes of cases.    The Statute provides that in case of doubt as to whether the Court has jurisdiction, it is the Court itself which decides.[77] D.  Rules applied by the ICJ            In accordance with Article 38 of its Statute, the Court, in deciding disputes submitted to it, applies:(1)  International conventions, whether general or particular, establishing rules expressly recognized by the contesting states;

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(2)  International customs, as evidence of a general practice accepted as law;(3)  The general principles of law recognized by civilized nations;(4)  Judicial decisions and the teachings of the most highly qualified publicists of various nations, as subsidiary means for the determination of rules of law;     The Court may decide a case ex aequo et bono (on the basis of equity), if the parties agree thereto.

 E.  Decisions of the ICJ

     The decision of the ICJ has no binding force except between the parties and in respect of that particular case.[78]  The judgment is final and without appeal.[79]  Each member of the United Nations must comply with the decision of the Court in any case to which it is a party. [80]  If any party to a case fails to perform the obligations incumbent upon it under a judgment rendered by the Court, the other party may have recourse to the Security Council, which may, if it deems necessary, make recommendations or decide upon measures to be taken to give effect to the judgment.[81]

 F.  Composition of the ICJ [82]

     The Court is composed of 15 judges elected by the General Assembly and Security Council, voting independently.  The judges are chosen on the basis of their qualifications, not on their nationality.  They must possess the qualifications required in their respective countries for appointment to the highest judicial offices, or be jurists of recognized competence in international law.   In choosing them, care is taken to ensure that the principal legal systems of the world are represented, and that no two judges be nationals of the same state. The judges are elected for a nine-year term, and may be re-elected.  Elections are held every three years for one-third of the seats, and retiring judges may be re-elected.  When the Court does not include a judge possessing the nationality of a State party to a case, that State may appoint a person to sit as a judge ad hoc for the purpose of the case.  The judges do not represent their governments but are independent magistrates.  They take oath to exercise their powers impartially and conscientiously.  They cannot engage in any

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other occupation during their term of office.     The Court elects its President and Vice-President for three years; they may be re-elected.  It appoints its Registrar.     The Court normally sits in plenary session, but it may form smaller units called chambers, composed of three or more judges. Judgments given by chambers are considered as rendered by the full Court.

  

VI. Secretariat [83]         The Secretariat of the United Nations is the administrative organ of the Organization.  It is composed of the Secretary General and the staff appointed by the Secretary General.  The Secretary General is at the head of the Secretariat.  The staff of the Secretariat work at the United Nations Headquarters in New York and all over the world.  About 8,900 persons from 170 countries make up the Secretariat staff.  A.  International Character of the Members of the Secretariat [84]

       The Secretary General and the staff of the Secretariat are international civil servants.  They answer to the United Nations alone for their activities.  They must refrain from any action which may reflect on their position as international officials responsible only to the Organization.  They take oath not to seek or receive instructions from any government or outside authority.  They enjoy such privileges and immunities as are necessary for independent exercise of their functions in connection with the Organization.  Member states of the United Nations undertake to respect the exclusively international character of the responsibilities of the Secretary General and the staff and not to seek to influence them in the discharge of their responsibilities.

B.  Duties of the Secretariat

     The Secretariat carries out the diverse day-to-day work of the Organization.  It

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services the other principal organs of the United Nations and administers the programmes and policies laid down by them.  The duties carried out by the Secretariat are as varied as the issues dealt with the United Nations. These include, for example: administering peacekeeping operations, mediating international disputes, surveying economic and social trends and problems, preparing studies on subjects of international concern, organizing international conferences on issues of international concern, monitoring the extent to which the decisions of the United Nations organs are being carried out, interpreting speeches and translating documents into the Organization’s official languages,[85] and providing information about the work of the United Nations.          C.  The Secretary General

     The Secretary General as described by the Charter is the chief administrative officer of the United Nations.[86]  He is appointed by the General Assembly upon the recommendation of the Security Council for a five-year, renewable term.   However, he is much more than the chief administrative officer of the United Nations.  He is an international diplomat, activist, conciliator and advocate.  He stands before the international community as the very emblem of the United Nations.  His task involves great imagination and creative actions.        The Secretary General is responsible for the administration of the Secretariat of the United Nations, and the appointment of its staff.[87] He speaks for, and represents the will of the international community.  He brings to the attention of the Security Council any matter which appears to threaten international peace and security.[88]  He performs such other functions as are entrusted to him by the Security Council, the General Assembly and the other principal organs of the United Nations.[89]  He offers his good offices or mediates (he, his senior staff or a person designated by him) to prevent or settle international disputes.  He issues an annual report on the work of the United Nations which appraises its activities and outlines future priorities.  Each Secretary General also defines his tasks by taking into consideration the contemporary demands required from the United Nations.     The work of the Secretary General entails continuous daily consultations with world leaders and other individuals, attendance at sessions of various bodies of the United Nations, and worldwide travel as part of the overall effort to improve the

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state of international affairs.     The present Secretary General of the United Nations, and the eighth occupant of the post, is Mr. Ban Ki Moon of Korea, who took office in January 2007.  The previous Secretaries General were: Kofi Annan of Ghana (January 1997-December 2006), Boutros Boutros-Ghali of Egypt (January 1992-December 1996), Javier Perez de Cuellar of Peru (January 1982-December 1991), Kurt Waldheim of Austria (January 1972-December 1981), U Thant of Burma (November 1961-December 1971), Dag Hammarskjöld of Sweden (April 1953-September 1961), and Trygve Lie of Norway (February 1946-November 1952).                                   

Section Three- The Role of the United Nations in Maintaining International Peace and Security      The maintenance of international peace and security represents the primary purpose behind the establishment of the United Nations. It reflects the intentions and desires of its founders who sought to establish an international organization for achieving this end.  It is a prerequisite to any other purpose of the United Nations.  Without it no friendly relations, no international cooperation, and no harmonization of nation’s actions could be achieved.     Because of the importance of international peace and security, the founders of the United Nations insisted on it and emphasized it in the preamble and the Charter of the Organization.  They stated all the possible principles, methods and procedures which are to be followed to attain this end.     The theme “we are going to create a collective security system, and this time we are going to make it work,” dominated the entire process of planning and formulating the United Nations Charter.[91]  The Charter provided a system for the pacific settlement or adjustment of disputes, and the use of collective measures in threat to or breaches of peace and acts of aggression.     The first method provided by the system is that of seeking peaceful settlement or adjustment of disputes and situation by peaceful means listed in the Charter.  The second method is that of taking collective actions (measures) of a coercive nature for the prevention and removal of threats to the peace and for the suppression of acts of aggression and other breaches of the peace.  Through these two methods delineated

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in Chapter VI entitled “Pacific Settlement of Disputes” and Chapter VII entitled “Actions with Respect to Threats to the Peace, Breaches of the Peace, and Acts of Aggression” of the Charter, the United Nations primarily exercises its role in maintaining international peace and security. I. Pacific Settlement of Disputes [92]                Chapter VI of the Charter of the United Nations contains the procedures for the pacific settlement of disputes.  Article 33 obliges the parties to a dispute, “the continuance of which is likely to endanger the maintenance of international peace and security,” to seek a solution by “negotiation, enquiry, mediation, conciliation, arbitration, judicial settlement, resort to regional agencies or arrangement, or other peaceful means of their own choice.”[93]  Under this Article, any party to any dispute which is likely to endanger the maintenance of international peace and security is obligated to seek, first of all, a settlement by the traditional peaceful procedures already established in international law.     In the contemplation of the Charter, the first recourse of nations in dispute should be to any of the peaceful methods, in a manner that international peace and security, and justice, are not endangered.  This position is justified, first, on the grounds that it will relieve the United Nations of the burden of handling too large number of controversies and, on the second, that it will minimize the interference of the United Nations in the affairs of sovereign states.[94]

    However, should the parties to a dispute fail to observe their obligation under Article 33 or their attempts be unsuccessful, the United Nations would intervene to consider the matters and to give its recommendations and decisions under the Charter.  The Security Council is given the primary responsibility regarding peace and security.  Whatever the action taken by the parties, they cannot prejudice the right of the Security Council to intervene by investigation or recommendation of appropriate procedures or methods of adjustment or settlement of any dispute which is likely to endanger international peace and security.  The Security Council is entitled to intervene either by its own initiative,[95] upon invitation of any member of the United Nations,[96] upon a call of attention by the General Assembly,[97] upon a call of attention by the Secretary General,[98] or upon a complaint of a party to a dispute.[99]

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  To discharge its duty for maintaining international peace and security, the Security Council may follow three courses of action. Firstly, the Security Council may call upon the parties to a dispute, the continuance of which is likely to endanger the maintenance of international peace and security, to settle their dispute by any of the peaceful means listed in Article 33(1).[100]  Secondly, it may, in case of a dispute of the nature referred to in Article 33, recommend “appropriate procedures or methods of adjustment.”[101]  Thirdly, it may recommend “terms of settlement as it may consider appropriate.”[102]              Although under the Charter the Security Council is given the primary role for maintaining international peace and security, the General Assembly is not excluded from doing so.  The General Assembly may call the attention of the Security Council to situations which are likely to endanger the maintenance of international peace and security.[103]  It may discuss any question relating to the maintenance of international peace and security, and may make recommendations with regard to any dispute or situation to the concerned states or to the Security Council or to both.[104]  It may recommend measures for the peaceful adjustment of any situation, regardless of origin, which it deems likely to impair the general welfare or friendly relations among nations.[105]  Questions, disputes or situations may be brought before the General Assembly by the Security Council,[106] by any member of the United Nations,[107] or by any state which is a party to a dispute.[108]

     However, the General Assembly is prevented from making any recommendation with regard to any dispute or situation while the Security Council is exercising its function in respect of it, unless the Council so requests.[109]  This is a limitation imposed on the authority the General Assembly in making recommendations relating to the maintenance of international peace and security.

     In practice with regard to the pacific settlement of disputes (or “peacemaking” as it may be known),[110] the United Nations has provided various means through which conflicts, disputes, and situations are contained and resolved.[111]  The Security Council has applied all the available diplomatic techniques in various international disputes, in addition to open debate and behind-the scenes discussion and lobbying.  It has called upon the parties to a dispute to resort to any peaceful

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means of their own choice to settle their disputes.  It has recommended to the parties specific appropriate procedures or methods of adjustment.  It has recommended to the parties ways to resolve their disputes, or terms of settlement.[112]  It has dispatched special envoys or missions for specific tasks, such as investigation, fact finding, negotiation or reconciliation.  It has requested the Secretary General to assist the parties in reaching a settlement to their disputes; the impartiality of the Secretary General is one of the United Nations’ assets.  

The Secretary General has taken diplomatic initiatives to encourage and maintain the momentum of negotiations.  He has used his “good offices” for mediating, or to exercise “preventive diplomacy”, that is, to take actions in order to prevent dispute from arising, to resolve them before they escalate into conflicts or to limit the spread of conflicts when they occur.  In many instances, the Secretary General has been instructed to avert threats to peace or to secure peace agreements.

     To foster the maintenance of peace, the General Assembly has held special or emergency special sessions on issues such as disarmament, and the question of Palestine.  Over years, it has helped promote peaceful relations among nations by adopting declarations on peace, the peaceful settlement of disputes and international cooperation.  It has established investigatory organs to examine matters under consideration by it, and to report back to it.  It has established subsidiary organs for observation, mediation, conciliation and good offices.       Under Chapter VI relating the pacific settlement of disputes and other articles of the Charter of the United Nations, the Security Council and the General Assembly may exercise their role in maintaining international peace and security by discussions, investigations and recommendations.  But the possibility remains that pacific settlement may fail to resolve the disputes which may become so serious as to constitute threats to or breaches of the peace or acts of aggression.  In such cases, the United Nations may intervene by taking collective actions of coercive nature for the prevention and removal of the consequences of such disputes.      

II. Collective Enforcement Actions     The method of using collective enforcement (coercive) actions by the United

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Nations is provided by Chapter VII of the Charter and the provisions of the “Uniting for Peace” Resolution.[113]

  A. Chapter VII of the Charter [114]     Chapter VII authorizes the Security Council to deal with threat to the peace, breach of the peace, or act of aggression, and to take collective enforcement actions (measures) in order to maintain or restore international peace and security.  The Security Council, under article 39, the first article of Chapter VII, is given a wide discretion in determining “the existence of any threat to the peace, breach of the peace, or act of aggression”, and to “make recommendations”, or to “decide what measures shall be taken in accordance with Articles 41 and 42, to maintain or restore international peace and security.”  Such a determination under Article 39 is an essential pre-condition to the operation of Chapter VII of the Charter; the Security Council cannot exercise its powers under this Chapter, particularly Articles 41 and 42, without such a determination made expressly or implicitly.[115]

     Before exercising its most far-reaching powers under Articles 41 and 42, the Security Council, under Article 40, may call upon the parties concerned to comply with such provisional measures as it deems necessary or desirable in order to prevent an aggravation of the situation, provided that such provisional measures shall be without prejudice to the rights, causes, or position of the parties concerned. Such provisional measures may include a demand that all parties concerned cease fire or withdraw their forces behind specified truce lines.     In case of failure of the parties or any of them to comply with the provisional measures, or the provisional measures are inappropriate, the Security Council may proceed to recommend or decide measures under Articles 41 and 42.  Under Article 41, the Security Council may decide to take measures not involving the use of armed force to give effect to its decisions, and may call upon the members of the United Nations to apply such measures.  These measures may include complete or partial interruption of economic relations, means of transportation, means of communication, and the severance of diplomatic relations.     Should the measures of Article 41 be inadequate or have proved inadequate, the Security Council may decide to take measures under Articles 42.  The Security Council may take armed action by air, sea, or land forces as may be necessary to maintain or restore international peace and security.[116]  This action may include

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demonstrations, blockade, and other operations by air, sea, or land forces of members of the United Nations.

     To assist the Security Council in planning for the application of armed forces, It is required the establishment of a “Military Staff Committee” consisting of the Chiefs of Staff of the permanent members of the Security Council or their representatives.[117]   This Committee is responsible under the Security Council for the strategic direction and command of any armed forces placed at the disposal of the Security Council; this Committee ceased its operation in 1948.[118]

     To give assurance that effective forces will be at the disposal of the Security Council, all members of the United Nations undertake, under Article 43 of the Charter, to make available to the Security Council, on its call and in accordance with a special agreement or agreements, armed forces, assistance, and facilities, including rights of passage, necessary for the purpose of maintaining international peace and security; no such special agreements under Article 43 have ever concluded between the United nations and its member states. Members are also required to make available national air-force contingents for combined international enforcement action; no such contingents have been ever made available.[119]

     To assure the effectiveness of the enforcement action decided by the Security Council, members of the United Nations are required to join in affording mutual assistance in carrying out such measures.[120]  Moreover, the action required to carry out the decisions of the Security Council for the maintenance of international peace and security must be taken by all the members of the United Nations or by some of them, as the security Council may determine.[121]  All the members of the United Nations are bound by the decisions of the Security Council under Chapter VII of the Charter.     In practice, the Security Council has exercised its powers under Chapter VII of the Charter.  It has decided on collective enforcement measures to maintain or restore international peace and security.[122]  Such measures have ranged from economic and diplomatic sanctions to military actions.     The Security Council has resorted to economic sanctions as enforcement measures to maintain or restore international peace and security.  Economic sanctions have taken many forms, ranging from specific trade ban to full

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embargoes.  Such sanctions were imposed, for example, against South Africa’s apartheid regime in 1977, Iraq in 1990, the Former Yugoslavia in 1991, and Libya in 1992.     The Security Council has authorized the use of military forces, for peace-keeping and peace-enforcing actions, to maintain or restore international peace and security.   Peace-enforcing (Enforcement) actions were authorized against North Korea in 1950 and Iraq in 1991. Peace-keeping forces have been established in many instances, for example, in Palestine (1948), in the Congo (1960), in Cyprus (1964), in Lebanon 1978, in Bosnia and Herzegovina (1995).[123]         Although Chapter VII of the Charter which empowers the Security Council to decide collective enforcement measures for the purpose of maintaining peace and security does not empower the General Assembly with such authority, this organ can exercise such authority under the provisions of the “Uniting for Peace” Resolution. B. Uniting for Peace Resolution [124]     The Uniting for Peace Resolutions grants the General Assembly the powers to act in place of the Security Council if the latter fails, because of the lack of unanimity of its permanent members, to discharge its primary responsibility in maintaining international peace and security in any case where there appears to be a threat to the peace, breach of the peace or act of aggression.[125]  Under this Resolution, the General Assembly may do by recommendations anything the Security Council may do by decisions under chapter VII of the Charter.  The Assembly may consider the matter immediately and recommend to members collective measures, including in case of a breach of peace or act of aggression the use of armed forces deemed necessary for the maintenance or restoration of international peace and security.[126]     To ensure that the General Assembly could act promptly and effectively, the Uniting for Peace Resolution provides a procedure for calling of an emergency special session of the Assembly.  The Assembly may meet in an emergency special session within twenty-four hours upon the request of any nine members of the Council, by the majority of members of the United Nations, or by one member if the majority of members concur.[127]     Under the Uniting for Peace Resolution, the General Assembly asserts its right to act in the same manner that the Security council can act under Chapter VII of the Charter, but only when the Council fails to act.  The Assembly may make a

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determination of the kind referred to in Article 39, and may recommend collective measures to be undertaken in case of threat to the peace, breach of the peace, or act of aggression.  It should be noted that this right granted to the Assembly is not intended to be a substitute for the Council’s responsibility for the maintenance of international peace and security, but rather a supplement.[128]     The General Assembly had its first experience with the Uniting for Peace Resolution on February 1, 1951, after the Soviet Union’s veto blocked the Security Council from taking any action against the intervention of the People’s Republic of China in Korea.  The Assembly exercised its authority by adopting a resolution determining that the Chinese intervention in Korea constituted an act of aggression, and calling upon the Chinese Government to cease hostilities and to withdraw from Korea.[129]  After the failure of the Chinese Government to comply with the above resolution, the Assembly adopted another resolution recommending the employment of economic sanctions against the Chinese Government and the North Korean authorities.[130]

     The Uniting for Peace Resolution was again implemented during the 1956 Middle East Crisis.  The General Assembly assumed its responsibility for maintaining international peace and security after the failure of the Security Council to discharge its duty because of the veto power used by the United Kingdom and France.  In its emergency special session opened on November 1, 1956, the general Assembly adopted a series of resolutions.  In the first resolution, it urged the parties to comply with certain provisional measures, including the cease-fire, the withdrawal of forces and the full observance of armistices agreements, and the reopening of the Suez Canal and the restoration of secure freedom of navigation.[131]  Also, it recommended that all members of the United Nations refrain from introducing military goods in the area of hostilities and from any acts which would delay or prevent the implementation of its resolution. In the last resolution, the Assembly decided the establishment of the United Nations Emergency Force for the task of implementing the measures provided for in its first resolution.[132]     Regarding the Israeli annexation of the occupied Syrian Golan Heights, the failure of the Security Council to take any action against Israel, because of the United States’ veto, led to the transfer of the matter to the General Assembly under the Uniting for Peace Resolution.[133]  On February 6, 1982, the General Assembly adopted a resolution calling on all its members to apply economic and diplomatic

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sanctions against Israel on a voluntary basis, and laying the groundwork for the possible expulsion of Israel from the United Nations.[134]

     The practice of the General Assembly demonstrates that this organ can, under the Uniting for Peace Resolution, do by recommendations anything the Security Council can do by decisions under Chapter VII of the Charter.  The Assembly can make a determination, call for provisional measures, and recommend economic, diplomatic and military measures similar to those which the Security Council can take under Articles 39, 40, 41, and 42 of the Charter.  However, the recommendations of the General Assembly under the Uniting for Peace Resolution do not have the legal force and effect that the Council’s decisions have.  Such recommendations are not legally binding upon members of the United Nations.  They do not legally commit members to action.  However, although this might be the case, it might logically be expected that a resolution by the Assembly that has broad support and to which the great majority of members of the United Nations have committed themselves to the extent of voting for it, would receive as favorable a response in terms of compliance as a resolution by the Security Council.[135] 

C. United Nations Forces [136]

     The use of military forces by the United Nations for the purpose of maintaining and restoring international peace and security represents the effective measures which may be employed by the Organization under the system of collective actions.  On many occasions, the United Nations has established international military forces.[137] The constitutional bases for the establishment of each of these forces have been different.  The tasks which these forces have been required to perform have ranged from a mere policing action to an enforcing action.  The composition, size and command have varied.  The relations of the forces with and within states have been diverse.

     The constitutional bases for the establishment of United Nations forces are found in the Charter of the United Nations and the Uniting for Peace Resolution.  Under the Charter, the Security Council may, in the last resort, take armed action involving the establishment of international forces for the purpose of enforcing its decisions

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for ending a threat to the peace, breach of the peace, or act of aggression. Articles 29, 39, 40, 41 and 42 provide possible constitutional bases for the establishment of United Nations military forces by the Security Council in order to maintain or restore international peace and security.  Article 29 authorizes the Security Council to establish such subsidiary organs as it deems necessary for the performance of its functions; the establishment of United Nations forces is coming within this scope of authority.  United Nations forces may be established as collective measures authorized to be taken by the Security Council under Articles 39, 40, 41 and 42 of Chapter VII.     With regard of the General Assembly, the Uniting for Peace Resolution provides a constitutional basis for the establishment of United Nations forces by the General Assembly.  Further constitutional bases may be found in Articles 10, 11, 14, and 22 of the Charter of the United Nations.  Under Articles 10, 11, and 14, the General Assembly may establish United Nations forces for the task of implementing its recommendations with regard to any question, situation or dispute, for the purpose of maintaining international peace and security. Article 22 authorizes the general Assembly to establish such subsidiary organs as it deems necessary for the performance of its functions; the establishment of United Nations forces are coming within this scope of authority.

     The United Nations forces have performed various functions and tasks in accordance to the circumstances of each case.  The functions and tasks of the United Nations forces have ranged from a peace-enforcing nature to a peace-keeping nature.[138]  The United Nations peace-keeping forces have been entrusted to perform peace-building functions in addition to the peace-keeping functions. Peace-building functions are functions aiming to support environments and structures which strengthen and consolidate peace and security; areas of activity include military security, civil law and order, judicial-building or reform, human rights, political progress (referendums and elections),[139] administration, health, education, reconstruction, social development and economic development.  The United Nations peace-keeping forces are increasingly charged with functions related to peace-building, in addition to those related to the maintenance of peace and security.  Generally, they are charged to maintain ceasefires and separate forces, to prevent the recurrence of war and violence, to implement comprehensive

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settlement, and to protect or facilitate humanitarian operations and activities.  It seems that there is no limit on the functions which the United Nations forces can perform.  Future conflicts are likely to present new and complex challenges to the international community, to which it will respond.  Effective responses to these challenges will require courageous and imaginative courses of action to be taken, and new means and tools for peace and security to be utilized.            Over the years the United Nations forces have been entrusted with the following missions:  to repel   an aggressor or aggressors by using full military actions by air, sea and land; [140] to secure or supervise cease-fire, truce and  armistice agreements; to control frontiers;  to secure the withdrawal of armed forces and personnel of the conflicting parties; to maintain a buffer zone between the conflicting parties; to participate in mine clearance; to assist in the exchange of prisoners of war; to ensure the release of political prisoners or detainees; to assist in and secure safe return of refugees and displaced inhabitants; to establish and maintain safe zones or protected areas; to implement or assist in the implementation of peace agreements; to disarm or disband (or to assist in or supervise the disarming or disbanding) armed groups; to collect, storage or destruction of weapons; to establish and maintain law and order (security and stability); to restore peace and achieving national reconciliation; to prevent the occurrence of civil war; to maintain the territorial integrity and independence of a state; to assist legitimate governments in returning or maintaining their effective authority over their territory or in specific areas; to support transitional governments; to provide humanitarian protection; to coordinate, facilitate and protect humanitarian relief operations; to secure vital infrastructures; to establish or maintain the functioning of civil service facilities; to prepare, hold, or monitoring free referendums or elections; to administer a country, a territory or a specific zone; to provide technical assistance for institutional building, such as the building of law enforcement institutions and judicial organizations; to perform certain civil administrative functions; to secure or monitor the respect of human rights and fundamental freedoms; to assist in the development and economic reconstruction of a particular territory.

     In the practice of the United Nations, the structure, composition, size and command of the United Nations forces have varied in accordance to the circumstances of each case, and the tasks and functions they have been requested to perform.[141]  The United Nations forces have been composed of national

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contingents voluntarily provided by member states of the United Nations.  Their size ranged from several observers to thousands and hundreds of thousands of persons.[142]  The strategic and political controls over the forces have been for the United Nations (the Security Council, the General Assembly or the Secretary General).  The direct operational responsibility and day-to-day administration of a force have been entrusted to the commander of the force.  The commander has operated under the instruction and guidance of the United Nations.  Since the United Nations forces have been composed of national contingents from the contributing states, each of these contingents has been placed under the command of its own national commanding officers who have been under the control of the United Nations.  The chain of command has run directly from the commander of the force to the commanding officers of each national contingent.  A force has been subject to orders and instructions only from its commander and, through him, from the United Nations.  The officers of the contingents have to receive their instructions and directions from the commander of the force, advised and assisted by his staff.  The commanding offices of the units have been responsible to the commander of the force for the proper functioning and discipline of their personnel.

     The United Nations has established its international forces on the basis of voluntary contribution of its member states.  The contributing states have entered into negotiations with the Secretary General acting on behalf of the United Nations, and have concluded agreements with him.  They have provided contingents to serve under the control of the United Nations, and its political and strategic direction in the field.  However, a contributing state has retained the right to withdraw all its contingents or a particular unit or to replace the national commanders of its units, after a notice to the United Nations of its decision.  Nevertheless, it has been required that any change in the contingents must have been made in consultation between the contributing states and the commander of the United Nations forces. The national contingents have retained their separate national identities and organizational units. The national commanders have retained direct responsibility for national contingents serving under them. Although the national commanders have the right to communicate with their governments, they have had to receive instructions from the United Nations through the commander of the United Nations forces, not from their governments.  In this context, the United Nations have been regarded international forces representing the interests of the United Nations (the

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international community), not the national interests of contributing states.  This has been the main principle upon which the relationship between the contributing states and the United Nations forces has been based.     The practice of the United Nations has demonstrated that the consent of the host states on whose territory the United Nations forces have operated has been a pre-condition for the presence of these forces.[143]  The consent of the host states has been required in every action taken by the United Nations.  It has been required for the entry, stationing and remaining of the forces.  With regard to the questions of the composition, functions of the force, and the contributing states, the position has been that the view of the host state has been one of the determined elements to be considered, although the United Nations has had the sole and complete freedom of decision on these questions.     The United Nations, on many occasions, has performed different functions, and played various roles.  Its forces have constituted an executive action on behalf of the United Nations for the purpose of maintaining international peace and security.  Although in most of the crises, the United Nations has succeeded in preventing further fighting between the parties, it has not succeeded in finding solutions, or in reaching lasting peace to most of these cries.  It has failed to respond to major crises, prevent wars and violence, or repel aggression.  Its efforts in urging and encouraging parties to settle their differences peacefully have not been successful in most cases brought before it.  Its efforts to enforce world law, peace and order have not been effective or successful.        The experience of the United Nations in maintaining international peace and security cannot be viewed with complete satisfaction. This imperfection raises a serious question regarding the effectiveness of the United Nations system for maintaining international peace and security.  Apart from all the arguments in this respect, the United Nations present system for maintaining international peace and security through the use of military forces constitutes the better system that has ever been established by the international community.  It is not clear that the situation in the international stage would have been better if the United Nations system had been differently constructed.  The present United Nations system provides effective means and processes which may be employed by the international community for the maintenance and restoration of international peace and security.  The defect is not related only to the system, but primarily to the unwillingness of certain members

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of the United Nations to make it work.  International peace and security is entirely dependent upon the willingness of the member states of the United Nations to cooperate toward this end.  Until they are willing to comply with international law and order, this system cannot operate effectively.

     The effectiveness of using forces by the United Nations to achieve its objectives has been adversely affected by the primary weakness of the United Nations which lies within the divisions among its members, particularly the super powers, the permanent members of the Security Council.  The Security Council, which is entrusted with the primary responsibility for maintaining peace and security, is dominated by policies and interests of its permanent members.  Its decisions reflect such one-sided interests.  Partiality and double standard is the name of the game played by the super powers.  The members of the United Nations, including the super powers, have failed to cooperate together in times of crises.  They have failed to agree on important issues, and to make full use of the United Nations resources available for solving major international disputes.  They have failed to agree on peaceful solutions or adjustments of major world crises.  They have failed to conclude agreements, under Article 43 of the Charter and Section C of the Uniting for Peace Resolution, making available to the United Nations the forces and facilities for the full discharge of its responsibility.  The super powers failed to cooperate together within the Military Staff Committee provided for in Article 47 of the Charter, thus this Committee ceased to operate in 1948.     The absence of special agreements under Article 43 of the Charter and the lack of cooperation between the members of the United Nations, particularly the permanent members of the Security Council, constitute two major factors which have primarily contributed to the ineffectiveness of the United Nations system relating to the maintenance of international peace and security, and to the dissatisfaction with the work of the Organization.     To override the problems facing the international community, it is necessary to have a comprehensive and genuine prospect for international peace and security.  Peace and security should be universal value-goals which must be produced, promoted and shared in a manner whereby everyone can enjoy them.  Security must include not only freedom from war and threats of war, but also full opportunity to preserve, promote and share all values of mankind by peaceful non-coercive means.  Peace must include the conditions of peace and the reduction

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of the severe frustrations which drive nations or peoples to war.  Peace and security must be a dynamic and continuous world process for the realization of freedom, justice and progress on a world-wide scale.  They must facilitate the necessary environment for creative changes in the general interest of mankind to take place.

     The realization of such comprehensive and genuine peace and security requires the existence of a comprehensive and genuine international organization, a world decision-making process.  The United Nations can be such an organization.  It is one of the most hopeful factors on the world horizon.  It is, with the extent of its experience, suitable to be the comprehensive world decision-making process that will be dedicated to regulating the processes of public order of the world community.  First, however, series of amendments to the Charter of the United Nations must be made to transform this Organization into the required comprehensive and genuine international organization.                                    Section Four- Other Activities of the United Nations

      The maintenance of international peace and security is the primary, but not the only purpose of the United Nations.  The United Nations is also entrusted to achieve international cooperation in the economic, social, cultural and humanitarian field, as well as to promote and encourage the respect for human rights and for fundamental freedoms for all. [144]  The activities of the United Nations in achieving these ends are dealt with in the following.

 I. UN Activities in Economic and Social Development [145]

         The second major function of the United Nations is to promote economic and social development worldwide.  The vast majority of the resources available to the United Nations are devoted to economic development,  social development and sustainable development of its member states.  The United Nations engages in a large number of activities, and sponsors a large number of agencies to meet this goal.  Guiding the United Nations work is the conviction that lasting international peace and security are possible only if the economic and social well-being of people everywhere is assured.  The United Nations’ Economic and Social

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Council (ECOSOC) oversees these activities.     The efforts of the United Nations in this respect have profoundly affected the lives and well-being of millions of people throughout the world.   Many of the economic and social transformations that have taken place globally in the last six decades have been significantly affected in their direction and shape by the work of the United Nations.  The United Nations has been the global forum for debating on economic and social issues, and for solving the many international problems.  It also has been the global consensus-building center for setting priorities and goals (on issues such as advancement of women, human rights, environment protection and governance) for international cooperation to assist countries in their development efforts and to foster a supportive global economic environment. 

     The United Nations system works in a variety of ways to promote its economic and social aims.  It formulates policies, advises governments in their development plans, sets international norms and standards, and mobilizes funds, to carry out programs for development.      The United Nations operates through its many programs and its special agencies to promote economic development and provide assistance and technical expertise to developing countries.  The United Nations Economic and Social Council (ECOSOC) is the principal organ coordinating the economic and social work of the United Nations and its operational arms.  One of the United Nations programs is the United Nations Conference on Trade and Development (UNCTAD), which helps negotiate international trade agreements that stabilize prices and promote trade with developing countries. Other program is the United Nations Development Program (UNDP), which coordinates all UN efforts in developing nations. UNDP has thousands of projects operating around the world.  It is the world’s largest international agency providing development assistance on technical issues.  Others programs and specialized agencies work to promote and develop areas such as international trade, agriculture, industry, labor, transport and communications, telecommunications, science and technology, poverty, hunger, health, education, culture, drug control, crime prevention, and environment. 

     The United Nations also helps finance development through the International Bank for Reconstruction and Development (IBRD), commonly known as the World Bank.  The IBRD helps developing nations get funding for projects.  It grants loans

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to member countries to finance specific projects and this in turn encourages foreign investments.  A related agency, the International Monetary Fund (IMF) promotes international cooperation on monetary issues.  The IMF encourages a stable, orderly pattern of monetary exchange rates between nations.

 II. UN Activities in Humanitarian Assistance [146]

          The United Nations is a major provider of emergency relief and longer-term assistance responding to natural and man-made disasters that are beyond the capacity of national authorities alone.  Assistance includes food, shelter, medical supplies and logistical support.  The United Nations is also a catalyst for action by governments and relief agencies, and an advocate on behalf of people struck by emergencies.      The United Nations responds to natural and man-made disasters on two fronts.[147] On one hand it seeks to bring immediate relief to the victims, primarily through its operational agencies.  On the other hand, it seeks effective strategies to prevent emergencies from arising in the first place.     When disaster strikes, the United Nations and its agencies rush to deliver humanitarian assistance.  The United Nations has become increasingly involved in providing humanitarian assistance to people in need.  All too frequently, the humanitarian crises to which the United Nations responds are caused by international conflict.[148]  The United Nations can also respond to humanitarian crises caused by natural disasters such as floods or hurricanes.[149]  Agencies such as the Office of the United Nations High Commissioner for Refugees (UNHCR) and the World Food Program (WFP) can mobilize international assistance in a short time frame to respond to a crisis. [150]

     To prevent disaster, the United Nations seeks to reduce the vulnerability of societies to disaster, and to address their man-made causes.  United Nations Agencies and programs are increasing their capacity in the area of early warning for disaster-prevention.  They assist disaster-prone countries in developing contingency planning and other preparedness measures.  Conflict prevention strategies address the root causes of war in a comprehensive manner.  They foster security, economic growth, good governance and respect for human rights which are the best protection against disaster, whether natural or man-made.

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     Increasingly, United Nations agencies work with nongovernmental organizations (NGOs) which provide relief and assistance, as well as with the aid agencies of governments, to coordinate a global response to humanitarian crises.

III. UN Activities in Human Rights Field [151]

      One of the great achievements of the United Nations is the creation of a comprehensive body of human rights law, which provides a universal and internationally protected code of human rights.  Not only has the United Nations defined a broad range of internationally accepted rights, including civil, political, economic, social and cultural rights, it has also established mechanisms to promote and protect these rights and to assist governments in carrying out their responsibilities.    On 10 December 1948, three years after the establishment of the United Nations, the General Assembly adopted the “Universal Declaration of Human Rights,” which spells out basic civil, cultural, economic, political and social rights that all persons in every country should enjoy.  This Declaration with the Charter of the United Nations constitutes the foundations of the human rights law. Since then, this Declaration has served as the inspiration for tens conventions and declarations which have been concluded under the auspices of the United Nations on a wide range of issues.   In 1966 the “International Covenant on Civil and Political Rights” and the “International Covenant on Economic, Social and Cultural Rights” were adopted (entered into force in 1976).  These two conventions take the rights of the Universal Declaration a step further by translating these rights into legally binding commitments and setting up bodies to monitor the compliance of state parties.  A large majority of the world’s countries are parties to these Covenants.  During the last six decades, other conventions have been concluded dealing with matters such as punishment of crime of genocide, status of refugees, elimination of all forms of racial discrimination including discrimination against women, torture and other inhuman or degrading treatment or punishment, rights of child, and rights of all migrant workers and members of their families.     In addition to conventions, the United Nations has adopted many declarations including standards and principles relating to the protection of certain human rights; these declarations have no binding force since they are not treaties (conventions).  These declarations deal with maters such as: rights of religion and

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belief; rights of persons belonging to national or ethnic, religious and linguistic minorities; and treatment of prisoners.            Although, virtually every United Nations organ and specialized agency is involved to some degree in the field of human rights and fundamental freedoms, the major United Nations body working to promote and protect human rights is the “High Commission for Human Rights” which was created in 1993 (the successor of the “United Nations Commission on Human Rights” created in 1946).   The major task of the Commission is to strengthen the coordination and impact of the United Nations human rights activities.  The commissioner oversees all the United Nations human rights programs, works to prevent human rights violations, and investigates human rights abuses.  It also has the power to publicize abuses taking place in any country, but does not have the authority to stop them.     One of the United Nations most visible recent activities regarding human rights has been the creation of special war crimes tribunals to prosecute those responsible for atrocities committed during the civil wars in the former Yugoslavia, Rwanda, and Sierra Leone.  These tribunals, established by the Security Council in 1993, 1994, and 2002, respectively, operate independently of the United Nations.  The United Nations also played an important role in the creation of the International Criminal Court (ICC) to prosecute war criminals, although the ICC is not a UN organ.     In conclusion, the role and scope of the United Nations in promoting and protecting human rights continue to expand.  Through its international machinery, the United Nations works on several fronts: as global conscience, as lawmaker, as monitor, as nerve-center, as researcher, as forum of appeal, as fact-finder, and as discreet diplomat.  

Chapter 21Introduction to Regional Organizations

      The world has witnessed, since the end of the Second World War, a proliferation of regional organizations of various types and forms. Regional organizations are international associations link together geographically and ideologically related states. Many factors have contributed to the creation of such organizations.  The

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Cold War, the failure of the Security Council of the United Nations in performing its primary responsibilities in maintaining international peace and security, the eagerness of the newly independent states to cooperate together for common interests, the desire of states for economic cooperation,  all stimulated Organization and the Warsaw Pact, or general cooperation organization such as the League of Arab States, the Organization of African Unity (transformed into African Union), and the Organization of American States, or economic cooperation such as the European Communities[1] (thereafter transformed into the European Union).

     Today, there are many regional organizations of various types and forms in Europe, the Americas, Asia, Africa, and the Pacific.  In the following, the main and the most important organizations are mentioned.  In Europe, there are the European Union (EU), the Council of Europe (COE)[2], the Western European Union (WEU)[3], the Organization for Cooperation and Security in Europe (OCSE)[4], the North Atlantic Treaty Organization (NATO)[5], and the Commonwealth of Independent States (CIS)[6]. In the American continent, there is the Organization of American states (OAS). In Africa, there is the African Union (AU). In Asia, there is the Association of South East Asian Nations (ASEAN).[7] Related to the Arab World, there are the League of Arab States, and the Cooperation Council for the Arab States of the Gulf (GCC).  Related to the Islamic World, there is the Organization of the Islamic Conference (OIC).

The African Union (AU)

I.  Origin and Founding of the AU

     The African Union (AU), founded in July 2002, is the successor

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organization to the Organization of African Unity (OAU).[2]  The OAU was founded on May 25, 1963 as an organization of African nations.[3]  The main objectives of the OAU were, inter alia,  to rid the continent of the remaining remnants of colonization and apartheid; to promote unity and solidarity among African States; to coordinate and intensify cooperation for development; to safeguard the sovereignty and territorial integrity of Member States and to promote international cooperation within the framework of the United Nations.  At the time of the OAU founding, African leaders disagreed about what kind of organization it should be.  Some leaders pushed for the creation of a central government that would unite all of Africa under one authority.  However, many of the nations had just recently gained independence from colonial rule and their leaders opposed the idea.  The leaders eventually reached a compromise but in so doing created an organization that is controlled by its member nations, leaving it with little power to act on its own.  Nonetheless, the organization has helped strengthen ties among African nations and settle disputes.  But it has also faced many problems that have undermined its ability to achieve its goals.

African Blocs before OAU foundedSoon after achieving independence, a number of African states expressed a growing desire for more unity within the continent. Not everyone was agreed on how this unity could be achieved, however, and two opinionated groups emerged in this respect:

1. The Casablanca bloc, led by Kwame Nkrumah of Ghana, wanted a federation of all African countries. Aside from Ghana, it comprised also Algeria, Guinea, Morocco, Egypt, Mali and Libya. Founded in 1961, its members were described as "progressive states", African Unity Square (Place de l'Unité Africaine) in Casablanca.The Casablanca Group, sometimes known as the 'Casablanca bloc', was a short-lived, informal association of African states with a shared vision of the future of Africa and of Pan-Africanism in the early 1960s. The group was composed of seven states led by radical, left-wing leaders largely from North Africa - Algeria, Egypt, Ghana, Guinea, Libya, Mali, and Morocco. The

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conflict and eventual compromise between the Casablanca Group and the Monrovia Group lead to the establishment of the Organisation of African Unity.The group first met in 1961 in the Moroccan port city of Casablanca, hence the alliance's name. This conference brought together some of the continent's most prominent statesman like Jamal Abdel-Nasser of Egypt, Kwame Nkrumah of Ghana and Sékou Touré of Guinea.What united them was a belief in the need for African political unification or federation. They believed that only significant, deep integration, as has since occurred in Europe through the European Union, would enable Africa to defeat colonialism, achieve peace, foster cultural dialogue, increase the continent's geopolitical influence and promote economic development. In other words, they believed in the transfer of many powers from national governments to a supranational, pan-African authority. Nkrumah even argued for the establishment of a pan-African army which could be deployed to fight colonialism or white minority rule across the continent. His famous Pan-Africanist slogan was 'Africa Must Unite!.

However, the Casablanca Group was ultimately unsuccessful. Most other African leaders did not support such radical change. The ideas of its rival, the so-called Monrovia Group - which also believed in Pan-Africanism but not at the expense of nationalism and independent statehood - prevailed. In 1963, the Organisation of African Unity (OAU) was established. All the members of both the Casablanca and Monrovia groups joined, putting their differences to one side. The OAU, now the African Union, has only achieved limited integration and unity of its member states. It is a reflection of the values of the Monrovia Group and a repudiation of the ideas of the Casablanca Group.As well as disagreeing on the nature of African unity, the groups also took up conflicting positions on the then conflicts in Algeria and Congo. While the Casablanca Group's members pledged to support the Front de Liberation Nationale in its efforts fighting for Algerian independence from France, the Monrovia Group backed their enemies, the French.

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2. The Monrovian bloc, led by Senghor of Senegal, felt that unity should be achieved gradually, through economic cooperation. It did not support the notion of a political federation. Its other members were Nigeria, Liberia, Ethiopia and most of the former French colonies.Some of the initial discussions took place at Sanniquellie, Liberia. The dispute was eventually resolved when Ethiopian emperor Haile Selassie I invited the two groups to Addis Ababa, where the OAU and its headquarters were subsequently established. The Charter of the Organisation was signed by 32 independent African states.The Monrovia Group, sometimes known as the 'Monrovia bloc', was a short-lived, informal association of African states with a shared vision of the future of Africa and of Pan-Africanism in the early 1960s. Its members believed that Africa's independent states should co-operate and exist in harmony, but without political federation and deep integration as supported by its main rival, the so-called Casablanca Group. In 1963, the two groups united to establish a formal, continent-wide organisation, the Organisation for African Unity.The alliance first met in Monrovia, the capital of Liberia, one of its leading countries. Other members included Nigeria and most of Francophone Africa, including Senegal and Cameroon. Their approach was more moderate and less radical than that of the Casablanca Group. Its leaders stressed the importance of Africa's newly independent states retaining their autonomy and strengthening their own bureaucracies, militaries and economies. They promoted nationalism, the creed that each nation of Africa should be self-governing, over Pan-Africanism, the belief that the whole continent should seek ever closer union and integration of their politics, society, economy and so on.The Monrovia Group's ideas ultimately prevailed. In 1963, states from both groups joined to create the Organisation of African Unity (OAU). Its Charter places the principles of independent statehood, non-interference and national sovereignty at its heart. The OAU's pursuit of integration was minimal and its opposition to continental federation unequivocal. The OAU,

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like its successor the African Union (AU), is a reflection of the more nationalist values of the Monrovia Group and a repudiation of the more supra-national ideas of the Casablanca Group.The idea of creating the AU was revived in the mid-1990s under the leadership of Libyan head of state Muammar al-Gaddafi: the heads of state and government of the OAU issued the Sirte Declaration (named after Sirte, in Libya) on 9 September 1999, calling for the establishment of an African Union. The Declaration was followed by summits at Lomé in 2000, when the Constitutive Act of the African Union was adopted, and at Lusaka in 2001, when the plan for the implementation of the African Union was adopted. During the same period, the initiative for the establishment of the New Partnership for Africa's Development (NEPAD), was also established.The African Union was launched in Durban on 9 July 2002, by its first chairperson, South African Thabo Mbeki, at the first session of the Assembly of the African Union. The second session of the Assembly was in Maputo in 2003, and the third session in Addis Ababa on 6 July 2004.

     African countries, in their quest for unity, economic and social development under the banner of the OAU, have taken various initiatives and made substantial progress in many areas which paved the way for the establishment of the AU.  In July 1999, the Assembly of the OAU decided to convene an extraordinary session to accelerate the process of economic and political integration in the continent.   The extraordinary session of the OAU was convened at the Sirte (Libya) in September 1999 where the Heads of State and Governments of the OAU issued the Sirte Declaration calling for the establishment of an African Union, for the objectives, inter alia, to accelerate the process of integration in the continent to enable it play its rightful role in the global economy while addressing multifaceted (complexes) social, economic and political problems compounded as they are by certain negative aspects of globalization.  Since then, three Summits were held leading to the official launching of the African Union in July 2002:

 The Lome (Togo) Summit (2000) adopted the Constitutive Act of the

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Union.

 The Lusaka (Zambia) Summit (2001) drew the road map for the implementation of the AU.

 The Durban (South Africa) Summit (July 2002) launched the AU and convened the 1st Assembly of the Heads of States of the African Union.

     The launching of the African Union (AU) in July 2002 at the Durban Summit can be considered as an event of great magnitude in the institutional evolution of the African continent. 

 II. Status and Membership of the AU

     The AU is a regional organization within the framework of Chapter VIII of the Charter of the United Nations.  It is modeled after the European Union (EU), to be Africa's premier institution and principal organization for the promotion of accelerated socio-economic integration of the continent, which will lead to greater unity and solidarity between African countries and peoples.  It is based on the common vision of a united and strong Africa and on the need to build a partnership between governments and all segments of civil society, in particular women, youth and the private sector, in order to strengthen solidarity and cohesion amongst the peoples of Africa.  As a continental organization, the AU focuses on the promotion of peace, security and stability on the continent as a prerequisite for the implementation of the development and integration agenda of the Union.

  The African Union has 54 member states, including almost all of the nations of the continent; the Kingdom of Morocco withdrew from the Union in objection to the membership of the Sahrawi Arab Democratic Republic. 

The headquarters of the Union, as of its predecessor, is in Addis Ababa, Ethiopia.

 III. Objectives of the AU

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The AU is founded for the following objectives:[4] 1.  To achieve greater unity and solidarity between the African countries and the peoples of Africa; 2.     To defend the sovereignty, territorial integrity and independence of its Member States; 3.     To accelerate the political and socio-economic integration of the continent; 4.     To promote and defend African common positions on issues of interest to the continent and its peoples; 5.     To encourage international cooperation, taking due account of the Charter of the United Nations and the Universal Declaration of Human Rights; 6.     To promote peace, security, and stability on the continent; 7.     To promote democratic principles and institutions, popular participation and good governance; 8.     To promote and protect human and peoples' rights in accordance with the African Charter on Human and Peoples' Rights and other relevant human rights instruments; 9.     To establish the necessary conditions which enable the continent to play its rightful role in the global economy and in international negotiations; 10.            To promote sustainable development at the economic, social and cultural levels as well as the integration of African economies; 11.            To promote co-operation in all fields of human activity to raise the living standards of African peoples; 12.            To coordinate and harmonize the policies between the existing and future Regional Economic Communities for the gradual attainment of the objectives of the Union; 13.            To advance the development of the continent by promoting research in all fields, in particular in science and technology; 14.            To work with relevant international partners in the eradication of preventable diseases and the promotion of good health on the continent.

 IV. Organizational Structure of the AU      The AU consists of the following main organs:[5]

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 1.   The Assembly [6]

     The Assembly is composed of Heads of State and Government of member states, or their duly accredited representatives.  It is the supreme organ of the Union.  It is the most important decision-making organ of the Union.  It meets once a year.  It makes its decisions by consensus or by a two-third majority.

  2.  The Executive Council [7]

     The Executive Council is composed of ministers designated by the Governments of Members States.  It is accountable to the Assembly.  It prepares materials for the Assembly to discuss and approve.

  3.  The African Commission [8]

     The Commission is composed of ten commissioners (the Chairperson, the Deputy Chairperson, eight Commissioners and Staff members); each Commissioner shall be responsible for a portfolio.  As the secretariat of the Union, the Commission is responsible for the administrative issues and coordination of the Union activities and meetings.  It is the key organ playing a central role in the day-to-day management of the African Union. Among others, it represents the Union and defends its interests; elaborates draft common positions of the Union; prepares strategic plans and studies for the consideration of the Executive Council; elaborates, promotes, coordinates and harmonizes the programmes and policies of the Union; ensures the mainstreaming of gender in all programmes and activities of the Union.

 4.  The Permanent Representatives' Committee [9]

     The Permanent Representatives’ Committee is composed of Permanent Representatives of Member States accredited to the Union.  It is charged with

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the responsibility of preparing the work of the Executive Council.

 5.  Peace and Security Council (PSC)

     By decision AHG/Dec 160 (xxxvii) of the Summit of Lusaka, July 2001, a decision was made for the creation within the African Union of the Peace and Security Council (PSC).  The Protocol establishing the PSC is in the process of ratification.  The PSC will have 15 members. 

It will be responsible for monitoring and intervening in conflicts.  It will have an African force at its disposal.

6.  Pan-African Parliament [10]

     The Pan-African Parliament will be composed of elected representatives from the five regions of Africa.  It is the organ which will ensure the full participation of African peoples in governance, development and economic integration of the Continent. The protocol relating to the composition, powers, functions and organization of the Pan-African Parliament has been signed by Member States and is in the process of ratification.

7.  Economic, Social and Cultural Council (ECOSOCC)

     The Economic, Social and Cultural Council is an advisory organ.  It will be composed of different social and professional groups of the Member States of the Union. The statutes determining the functions, powers, composition and organization of the Economic, Social and Cultural Council have been prepared and will be submitted to next summit.

8.  The Court of Justice [12]

     The Court of Justice of the Union shall be established.  The statutes defining the composition and functions of the Court of Justice have been prepared and will be submitted to the next Assembly.  The Court will rule on human rights abuses in Africa.

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     Beside the above main organs, many specialized technical committees and financial institutions are established or to be established.

 Specialized Technical Committees [13]

     The following Specialized Technical Committees are meant to address sectoral issues and are at Ministerial Level:

The Committee on Rural Economy and Agricultural Matters; The Committee on Monetary and Financial Affairs; The Committee on Trade, Customs and Immigration Matters; The Committee on Industry, Science and Technology, Energy, Natural

Resources and Environment; The Committee on Transport, Communications and Tourism; The Committee on Health, Labour and Social Affairs; and The Committee on Education, Culture and Human Resources.

 Financial Institutions [14]

The African Central bank The African Monetary Fund The African Investment Bank

V.  Achievements of the AU

     Since its establishment in July 2002, the AU has been primarily occupied with the transition from OAU to AU.   Progress has been made in the preparation and adoption of legal instruments for launching its various organs and institutions.  However, much more are to be done for finalizing the structure of the Union before it become able to perform its objectives.

  Meanwhile, the AU has had to face many problems (some are inherited from its predecessor, the OAU), from the Aids epidemic, poverty and civil wars to divisions, disputes and wars among its members.  Many attempts, in

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this regard, have been made by the Union.  Yet, we have to wait and see.  Time will reveal the failures or successes of such attempts.  

    

Anyway, let’s believe, with the leaders of the African nations, that the AU will be better than the OAU in establishing a common economic market and political union across the entire continent, and that through the AU Africa will play a more prominent role in the global economy and overcome some of the negative effects of globalization. 

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