Académique Documents
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1) European Commission
The European Commission is the highest administrative body of the Union. It is independent of
national governments. Its job is to represent and uphold the interests of the EU as a whole. It
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The primary responsibility of the Council is to ensure the attainment of the objectives of the
Union through decisions and coordination of the general policies of the Member states. In this
regard it has been entrusted with the following six key responsibilities:
1. To pass European laws, jointly with the European Parliament in many policy areas.
2. To co-ordinate the broad economic policies of the member states.
3. To conclude international agreements between the EU and other countries or international
organizations.
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The E.P holds an annual session on the second Tuesday in March, and may meet in
extraordinary session at the request of a majority of its members or the request of the Council or the
Commission. It elects its President and its officers from among its members. It acts by an absolute
majority, save as otherwise provided in the Treaty on the Union.
The European Parliament has three places of work: Brussels (Belgium), Luxembourg and
Strasbourg (France). Luxembourg is home to the administrative offices (the General
Secretariat). Meetings of the whole Parliament, known as ―plenary sessions‖, take place in
Strasbourg and sometimes in Brussels. Committee meetings are also held in Brussels.
The EP was originally designed merely as an advisory body; however, its right to participate in
EU decision making process was granted to it by later treaties. Nowadays, the EP has the following
responsibilities:
1. Passing European laws, jointly with the Council in many policy areas.
2. Exercising democratic supervision over the other EU institutions, and in particular the
Commission. It discusses the annual general report submitted to it by the Commission. It has the
power to approve or reject the nomination of commissioners, and the right to censure the
Commission as a whole or any of its members.
3. Influencing the EU budget. Parliament shares with the Council authority over the EU budget
and can therefore influence EU spending. At the end of the procedure, it adopts or rejects the
budget in its entirety.
4. Vetoing the accession of a new member to the Union.
Notably, the influence of the E.P is essentially negative. It can block but rarely initiate
legislation. Its consultative opinions can be ignored. It has no power over the Council of the EU.
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In conclusion, it is not an exaggeration to say that the EU has become a fact of life on the
international stage. It has succeeded in occupying an essential and central place in Europe and in
the World.
Basically, there are two theories as to the nature, functions and effects of recognition, the
constitutive theory and the declaratory theory. The constitutive theory considers that the act of
recognition by other States creates a new State and grants it the international legal personality. 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. 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. 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.
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. 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 state. Moreover, the States practice
regarding recognition shows that States follow a middle position between these two theories.
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.
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.
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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.
Thus, the sources of the contemporary Public International Law can be classified into seven:
1- International customs;
2- Treaties;
3- General principles of law;
4- Judicial decisions;
5- Opinions of legal scholars;
6- Ex aequo et bono (Equity);
7- Acts of international organizations.
1. 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.
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
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2. 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 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, 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.
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 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.
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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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In the war between the U.S.S.R. and U.S.A. a major arena was the strategy of technology. This cold
war also involved covert conflict, through acts of espionage. Beyond the actual fighting and killing
that went on through intelligence services, the Cold War was heavily manifest in the concerns about
nuclear weapons and the wars which could be fought with them, as well as in the propaganda wars
between the United States and the USSR. It was far from clear, going through these times, that
global nuclear war would not result from the smaller arenas of conflict, giving each of them an
added degree of concern. These pressures impacted many aspects of life throughout the world, much
more so than the actual fighting going on between intelligence services.
One major hot spot of conflict was Germany, particularly Berlin. Arguably, the most vivid symbol of
the Cold War was the Berlin Wall, isolating West Berlin (the portion controlled by West Germany
and allied with France, England and the United States) from East Germany, which completely
surrounded it. Many East Germans risked death attempting to cross the defenses surrounding the
wall to reach freedom in West Berlin, and many were killed in the attempt. President Ronald
Reagan's challenge "Mr. Gorbachev, tear down this wall!" in 1988 seemed mere grandstanding, yet
the wall was torn down within two years -- not by Premier Gorbachev's order, but by the citizens of
East and West Berlin.
The cold war was waged through attempts to gain influence over intermediary countries, with
popular conception making much of spies and traitors working undercover. The Korean War, the
Vietnam War and the conflicts in Afghanistan, Grenada, Chad, Angola, Cuba and of course the
Middle East were aspects of the Cold War. The war was also fought by intelligence organizations
like the CIA (United States), MI6 (United Kingdom), Mossad (Israel), BND (West Germany),
STASI (East Germany) and the KGB (USSR).
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Corrupt governments and citizens' desire for greater personal freedom and greater individual wealth
were also major factors in the collapse of the Soviet Union and its satellite countries.
Others argue that the Soviet Union's collapse was already inevitable. There is certainly evidence that
the CIA played up Soviet military power through the 1980s.
Gorbachev's policy of Glasnost eliminated the strict censorship practiced for hundreds of years.
Glasnost stands for openness, and Soviet citizens were now allowed to speak openly about their
country's problems. Perestroika, or "restructuring," was Gorbachev's attempt to end the inefficiency
and corruption in government.
The United States and other Western nations decided to form alliances against possible Soviet
attempts to extend their sphere of influence. In April 1949 the United States signed the North
Atlantic Treaty. Members agreed that an attack on one of them would be considered an attack on all
of them. The Soviets later formed an opposing alliance known as The Warsaw Pact. Because of the
arms race many countries in the world now own nuclear weapons.
1940s
1945: February 4-11-- Yalta Conference Cold War Begins
1945: August 6 -- United States first used atomic bomb in war (A bomb was dropped on Hiroshima
+ Nagasaki)
1945: August 8 -- Russia enters war against Japan
1945: August 14 -- Japanese surrender End of World War II
1946: March -- Winston Churchill delivers "Iron Curtain" Speech
1947: March -- Truman declares active role in Greek Civil War
1947: June -- Marshall Plan is announced
1948: February -- Communist takeover in Czechoslovakia
1948: June 24 -- Berlin Blockade begins
1949: July -- NATO ratified
1949: May 12 -- Berlin Blockade ends
1949: September -- Mao Zedong, a Communist, takes control of China
1949: September -- Soviets explode first atomic bomb
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1950s
1950: February -- Joe McCarthy begins Communist witch hunt
1950: June -- Korean War begin
1951: January 12 -- Federal Civil Defense Administration established
1953: June 19 -- Rosenberg executions
1953: July -- Korean War ends
1954: March -- KGB established
1954 -- CIA helps overthrow unfriendly regimes in Iran and Guatemala
1954: July -- Vietnam split at 17th parallel
1955: May -- Warsaw Pact formed
1956: October - November -- Rebellion put down in Communist Hungary. Egypt took control of
Suez Canal; U.S. refused to help take it back.
1957: October 4 -- Sputnik launched into orbit
1958: November -- Khrushchev demands withdrawal of troops from Berlin
1959: January -- Cuba taken over by Fidel Castro
1959: September -- Khrushchev visits United States; denied access to Disneyland
1960s
1960: May -- Soviet Union reveals that U.S. spy plane was shot down over Soviet territory
1960: November -- John F. Kennedy elected President
1961: April -- Bay of Pigs invasion
1961: July -- Kennedy requests 25% spending increase for military
1961: August 13 -- Berlin border closed
1961: August 17 -- Construction of Berlin Wall begins
1962: -- U.S. involvement in Vietnam increased
1962: October -- Cuban Missile Crisis
1963: July -- Nuclear Test Ban Treaty ratified
1963: November -- President Kennedy assassinated in Dallas, Texas
1964: August -- Gulf of Tonkin incident
1965: April -- U.S. Marines sent to Dominican Republic to fight Communism
1965: July -- Announcement of dispatching of 150,000 U.S. troops to Vietnam
1968: January -- North Korea captured U.S.S. Pueblo
1968: August -- Soviet troops crush Czechoslovakian revolt
1969: July 20 -- Apollo 11 lands on the moon
1970s
1970: April -- President Nixon extends Vietnam War to Cambodia
1972: July -- SALT I signed
1973: January -- Cease fire in Vietnam between North Vietnam and United States
1973: September -- United States helps overthrow Chile government
1973: October -- Egypt and Syria attack Israel; Egypt requests Soviet aid
1974: August -- President Nixon resigns
1975: April 17 -- North Vietnam defeats South Vietnam
1979: July -- SALT II signed
1979: November -- Shah of Iran overthrown; Iranian Hostage Crisis
1980s
1983: -- President Reagan proposes Strategic Defense Initiative
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1990s
1990: March -- Lithuania becomes independent
1990: May 29 -- Boris Yeltsin elected to presidency of Russia
1990: October 3 -- Germany reunited
1991: April -- Warsaw Pact ends
1991: August -- End of Soviet Union, Cold War Ends
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; and
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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 requirements. All these requirements are considered below.
(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, 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
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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
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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.
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.
Among the fundamental rights of a state are the following:
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.
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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 Charter of the United
Nations.
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.
The subject of State responsibility has been the most difficult question of the codification work of
the International Law Commission (ILC). 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. 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
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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.
The ―Articles‖ provides that every internationally wrongful act (a delict) of a State entails
responsibility. 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. 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.
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.Any violation by a State of any obligation 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. 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. 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. Some have argued that the concept is of no legal value and cannot be justified. 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
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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 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.
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.
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. 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.
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
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.
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‖
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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. 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.
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. 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
its activities prior to its assumption of authority; this rule is reaffirmed by the ILC Articles.
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.
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
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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.
Where several States are injured by the same wrongful act, each State may separately invoke
responsibility. Where several states are responsible, the responsibility of each may be invoked.
However, responsibility can not 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. 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 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.
Although a State is under a duty to protect its nationals, it is not under a duty to provide them
with diplomatic protection. 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.
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. A State may take up the
claim of its 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. 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.
Among the political and practical considerations suggested to justify such rule are the avoidance of
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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. 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.
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. 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 Nations. Countermeasures have to be proportional to the
wrongful act. They must not violate basic human rights or the peremptory norms of International
Law.
Austin’s view: Austin and Thomes Hobbes insist that law is the command of a determinate superior
and that constantly no law can exist where there is no supreme lawgiver and no coercive
enforcement. If there is no sovereign authority then the rules could not be legal rules but rules of
moral or ethical validity.
Positive morality: Austin and his subscribers say that it is not true law but positive international
morality or rules of conduct of moral force only, for there is not supreme lawgiver and no coercive
enforcement in it. In that time Austin was rigid. International Law is not a true law but in this time
International Law is part of our law, and must be administrated by the courts of justice of
appropriate jurisdiction.
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A constantly evolving body of norms: International Law is a constantly evolving body of norms
that are commonly observed by the members of international community in their relations with each
other for providing an orderly management of international relations.
Whether International Law qualifies as law or not - choice of the definition of law: Whether or
not one wishes to attribute a legal character to the norms of International Law depends largely upon
the definition of law he chooses to accept.
This question has been matter of discussion since long whether it is law? Some writers object the use
of word ―law‖. They say that states are free from external pressure. If they consent to follow the
principles of International Law, it does not mean they are debarred from their sovereign powers. It
does not affect their sovereign powers. In the opinion of some writers law is the name of rule which
every superior issues for inferior.
This rule binds the people to prepare its structure. Its compliance would be compulsory and its
violation will result in punishment. There is no such compulsion in International Law. In
International Law there is not sovereign power that issues orders. If there is any sovereign power in
International Law, the sovereign power of the states will be lost.
There is no binding force behind it. It is not doubtful, that states observe the rules and regulations in
the compliance of international contracts with the feeling of betterment and ethics. These rules and
regulations are decided in their limits and are liable to revoke. There is no law force, which can stop
them in doing such act.
International Court of Justice is a forum where states bring their disputes for settlement but states are
no more bound to accept them and may refuse. It all depends upon them. There is no forum for its
explanation or interpretation. There is no concept of legislature in International Law for the
enactment and enforcement.
In the opinion of different writers International Law is not real law. According to Austin it has status
of positive international morality. It is a collection of emotions of people and common opinions.
DEMERITS OF INTERNATIONAL LAW: It has also some demerits as well as merits, which
make it weaker. These demerits are as follows:
1. Limited scope: In the present circumstances it seems ambiguous and of limited scope. There is no
solid organ of International Law, which can resolve the matters of states equitably. It could not
devolve person into state.
2. Ambiguous law: Some of its rules and regulations are not only uncertain but also ambiguous.
Pace of its development and promotion is deadly slow. It cannot combat with changing environment
of the society.
3. No apparent authority: There is not executive class who can enforce the laws. It lacks the force of
law, which enforces the law, and gets exercised. Only International Court of Justice exists. There is
not existence of special courts that can decide the particular disputes. International Court of Justice
cannot settle certain matters. States do not allow International Court of Justice in the settlement of
disputes. After the decision is given, there is no such power that may get it enforced.
4. No administration power: There is no administrative power behind it that can get its decisions
enforced.
5. Little enactment: It has little room of enactment. Mostly matters such as excise, intercourse
between two or more states, taxes, and market etc. are excluded from its scope.
6. Non interference: International Law does not intervene in the matters, which takes place in any
member state.
7. Uncertainty about facts: There may be a genuine uncertainty about the facts. For instance, before
one who decide whether United States participation in the Vietnam fighting is legal or illegal, has to
decide whether the National Liberation Front (Viet-cong) in South Vietnam represents spontaneous
internal revolt or whether it represents subversion from North Vietnam.
8. Uncertainty about law: There may be a genuine uncertainty about the law. For instance, some
states think it is lawful to nationalize foreign property without compensation, others disagree. When
dispute arises between a state in the first group and a state in the second group, each will be
convinced that it is in the right, and it is impossible to predict how an international Court would
decide the case.
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It is weaker law in the eyes of J. G. Starke. Another writer says that it is not only a weaker law but it
contains mostly on customary law.
Despite the existence of International Court of Justice many hurdles came in its development. This
law does not resolve the disputes.
How it can grow: Following are the some suggestions, which can determine its pace:
1. Rules and regulations of this law should be revised and taken into writing.
2. It should be given the form and shape as the ordinary law of the state.
3. It should be formed globally.
4. It should be developed through courts.
Many activities are being taken place in this regard. Conferences and other important treaties are
playing an important role in its growth. Changing political environment and expertise are trying in
changing the International Law. Also courts are playing important role for its development.
Present day International Law: Austin‘s views however rigid for his time are not true of present day
International Law. In 20th century a great mass of ―international legislation‖ has come into
existence as a result of law making treaties and conventions.
Procedure for formulating rules: The procedure for formulating the rules of international legislation
is practically as settled if not as sufficient as any state legislative procedure.
Conclusion: International Law is law but a weak one, the cumulative evidence against the position
taken by Austin and his followers should not bind us to the fact that International Law is a weak
law.
Its enforcement devices: It is obvious that there are gaps and ambiguities in the law, that its
enforcement devices are often inadequate and it has not succeeded in eliminating the use of force in
international relations.
There is no world legislature, no international police, and no international Court with compulsory
jurisdiction.
In thirteenth century B. C. a contract took place between Egyptian King Pharaoh and Syrian King
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Greek period: Greek nation was reluctant to maintain relationship with non-Greeks. They were
habitant to make slaves others. They had thought that only Greeks are born to be rulers. In words of
Aristotle, ―nature has created non-Greeks only for to be slaves.‖ States either democratic or imperial
had mutual relationship and rules and regulations among them. Mostly matters were decided with
arbitration. They were not remain civilized but became cruel during war. War was not started
without declaration. Religious places were not destroyed. Killed/deceased people were buried.
Prisoners of War were exchanged. They had formed Greek union of nations. In that age treaties
were made. Such like states may enjoy peace and prosperity.
Roman period: Till 753 B. C. states were not too big. International Law was clarified till 3rd century
B. C. after the evaluation of big state founded. Relations were developed with Persia while making
the treaties with others. Roman were taken into consideration the principles set out by that former
states and they provided the legal protection. They made a treaty for common defence of states.
Non-member states could not enjoy such facility. War was formerly declared. Treaties were taken
into consideration without which existence was impossible. Principles they had formed played an
important role in International Law even today.
Jews’ period: Jews were considered superior themselves than others. They had superior standard
than others. They had treated other inferiors. That‘s why they did not contributed in the
development of International Law. They were severe enemy of many nations. During the peacetime
they had not good moral character. They had bad treatment for others during warfare. They were
killed children and aged people. They had good relationship with alien friends. They had respect for
diplomatic representatives. Their national law was applied in the territory of subjugated (beaten)
country. Agreements were made at the end of war.
Indian period: Historic period of India begins since thousand years‘ back. Age of Raja Geet is
supposed with Alexander the Great. Brahmans, Khashtari, Waish, and Jain were also Hindus. They
had mutual co-operation. They had good relations among themselves. Agreements were made in
that age.
First period: First period of International Law is started right from the beginning of human history
and ends at formation of Roman empire. In this period there was respect of same race and same
religion. For the achievement of peace, ambassadors were sent. They had certain immunities. They
were not treated enemy but friend and had better relations. Romans applied rules relating with peace
and war. War was ceased upon the peace and friendship. Tradition of internationalism became
ceased after the fall of Roman Empire. Geographic boundaries were not defined. They were united
upon common race. Kings were the rulers over certain territories. Same principles of International
Law had been developed in this age.
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Roman Empire: Second era was started with the creation of Roman state. It was spreaded over the
large part of the world. Need for the importance of International Law became end. Off and on any
incident took place which showed the importance of International Law. According to the law of
Rome, agreements were made and protected. In the failure to become friend, they were made slaves.
Christian influence: Christian religion gone to Italy. It became official religion of Italy State. This
era eliminated the question of International Law. Continuous crusades were started. They treated
Muslims their great enemy. Their revenge passions grown up after the concurrence over Bait-ul-
Maqdas of Muslims. Christian priests declared all the agreements prohibited with Muslims from
religious point of view. The crusades were remaining in operation till long. Despite of the fact,
agreements were made. In that age, there was also trend toward International Law.
Islamic influence: After the dawn of Islam, complete change took place. Infidels started harassment
to HazratMuhammad . In these circumstances they migrated from Makka to Madina. They founded
state, which became first Islamic State over the global map (Atlas). They fought many wars.
Muslims were martyred and concurred. Moral values were taken into consideration. Killing of
women, children, and aged people, if they remain peaceful, transgression of limits, devastation of
crops, destruction of buildings and houses, ruin of gardens, killing of animals, and arson of public
places became prohibited. Weaker people were remitted. Muslims were spreaded over from east to
west.
Hazrat Muhammad said in his Tradition, ―O people you are followers of one Allah and are progeny
of Adam. The best among you is who refrains from evils‖. All the Muslims are brothers. An Islamic
state act upon the light of Quran. They do not discriminate, the matters of the world and hereafter.
Islam has made all the principles. Islam is code of life and teaches us in all spheres of life. Islam has
also clarified the International Law. Western writers have negated the importance of Islam in the
development of International Law. The period of Muslims was so brilliant.
Third period: There was a long war between king and church. German king created a big state. In
an agreement Pope took over the matters of religion and secular matter left for king. Despite of this
agreement the war period remains continue. In fifteenth century Pope became weaker. In
seventeenth century many small states came into existence that made mutual treaties. Despite of war
many contracts and peace pacts took place.
INTERNATIONAL LAW: International Law is the law, which governs the relations among states
and other international legal persons. The sources of International Law are customs grown up
among states and lawmaking treaties concluded by them. International Law regulates relations
between states.
International Law is a law not above but between sovereign states and it therefore a weaker law.
Municipal law: Municipal law is the law of a state, which governs the domestic affairs of the state.
The sources of Municipal Law are customs grown up within the boundaries of the state concerned
and statutes enacted by the law giving authority.
Municipal Law regulates relations between the individuals under the sway (influence) of a state and
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Relationship between International Law and municipal law: There are certain questions which
come before international lawyer whether what are nice considerations between international and
municipal law. The most important practical problem of more immediate concern to municipal
courts are as to what extent may courts give effect International Law in municipal courts both where
such rules are, and where they are not in conflict with municipal law. It is a practical problem,
which requires consideration of the practice of states.
It is the practice of national courts that the relationship of international law to municipal law is of
fundamental importance which means that to what extent they are interrelated with each other, or
where they conflicts which will be preferred or the system are to oppose or to coordinate with each
other.
Theories in this respect: There are two theories as to relation between International Law and
municipal law, i.e., dualism and monism.
State law is conditioned by the fundamental principle or rule that state legislation has to obey, while
International Law is conditioned by the principle ―pactasuntservanda‖. It means that agreements
between states are to be respected.
International Law binds individuals and entities other than states. B section is something misleading
to the extent of the superior state in International Law. Superior has definitely dominant role in
International Law despite the common will of the states.
State law is based upon the principle and norm, which sates legislation, has to be obeyed. In
International Law main principle is agreements between states that are to be respected. Thus the two
systems are entirely different. This theory not only has received support from positivists but non-
positivists writers and jurists. State law mainly is consisted on judge made law and the statutes
passed by legislature whereas International Law is comprised on the customary rules and treaties
among the states.
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If it is generally accepted that International Law is a true law then there is no doubt to deny that the
two systems constitute part of that unity.
Kelson’s view: In the view of Kelson and other monist writers, there cannot be any escape from the
position that the two systems, because they are both systems of legal rules, are interrelated parts of
one legal structure.
MORTENSON V PETERS: In this case High Court of Scotland gave effect to a municipal law
against the International Law but the state was under obligation to conform the International Law,
therefore, the executive in fact demolished the judgement in order to make Britain‘s behavior
conform with her international obligation.
QUESTION OF PRIORITY: Monists are somewhat divided on this point whereas dualists assert
that the two systems are not to supersede, but to coordinate with each other, therefore, there arises
no conflict between the two.
Practice as to priority - case before International Tribunal: When the case in which conflict arises
between International Law and municipal law before an International Tribunal, the practice is to
prefer the International Law over the municipal law.
Practice as to priority - case before Municipal Court: Where conflict arises in a case before a
municipal Court (except where the state has adopted the International Law to supersede, by
constitution or law), the municipal law is preferred.
“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 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 will deal with the prosecution
and punishment of international crimes by national courts as well as by international tribunals.
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.
―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. 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;
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(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;
(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‖). They may be committed in the course of either international or
internal armed conflicts. 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.
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(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.
(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.
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, territorial integrity or political independence of
another state, or in any other manner inconsistent with the Charter of the United Nations.
Accordingly, ―war of aggression‖ is a crime against International Law which gives rise to
international responsibility. Crimes of aggression comprise the following:
(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.
Traditionally, individuals have been subject to the exclusive jurisdiction of the State on whose
territory they live. 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. 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.
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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.
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.
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 international crimes.
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.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 hocinternational 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.
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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. The ICC is established as a judicial organ
of universal jurisdictional reach; thus, it is potentially able to respond to violations occurring
anywhere. Its seat is established at The Hague in the Netherlands.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. Its jurisdiction and functioning
are governed by the provisions of its Statute.
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.
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
The ICC is complementary to the national criminal jurisdictions. 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
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.
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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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.
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.
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J. G. Starke: The term ―extradition‖ denotes the process whereby one state surrenders to another
state at its request a person accused or convicted of a criminal offence committed against the laws of
the requesting state, such requesting state being confined to try the alleged offender.
A criminal may take refuge in a state which has no jurisdiction to try him, or in a state which is
unable or unwilling to try him because all the evidence and witnesses are abroad. To meet this
problem, International Law has evolved the practice of extradition, individuals are extradited, i.e.,
handed over, by one state to another state, in order that they may be tried in the latter state for
offences against its laws. Extradition also includes the surrender of convicted criminals who have
escaped before completing their punishment.
Object of extradition: Since extradition is the delivery of an accused or convicted individual to the
state on whose territory he is alleged to have committed, or to have been convicted of, a crime, by
the state on whose territory he happens for the time to be. The object of extradition can be any
individual, whether he is a subject of the prosecuting state, or of the state which is required to
extradite him, or of a third state.
Extradition in the absence of an extradition treaty: Following rules govern extradition in the
absence of extradition treaty:
Reciprocity or courtesy: In the absence of a treaty or statute, the grant of extradition depended
purely on reciprocity or courtesy. No government is understood to be bound by positive law of
nations to deliver up criminals and fugitives from justice who have sought an asylum within its
limits.
COMMON RULES: Following are the common rules, which govern the extradition in absence of
an extradition treaty:
1. Extraditable persons: There is uniformity of state practice to the effect that the requesting state
may obtain the surrender of its own nationals or nationals of a third state. But most states usually
refuse the extradition of their own nationals who have taken refuge in their territory, although as
between states who observe absolute reciprocity of treatment in this regard, requests for surrender
are sometimes acceded to.
2. Extraditable crimes: Serious crimes generally, states extraditing only for serious crimes, and there
is an obvious advantage in thus limiting the list of extradition crime since the procedure is so
cumbrous (huge, heavy) and expensive.
3. Special principle: This means that an extradited person cannot be tried for a crime other than that
for which he was extradited, until he has been given a chance to leave the country to which he was
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Exempted offences: As a general rule, the following offences are not subject to extradition
proceedings:
(1) Political crimes.
(2) Military offences, for example, desertion (escape).
(3) Religious offences.
5. Principle of specialty: This principle means that the requesting state is under a duty not to punish
the offender for any other offence than that for which he was extradited. This principle is approved
by the Supreme Court of the United States. In Great Britain its application is a little uncertain.
6. Rule of double criminality: As regards the character of the crime, most states follow the rule of
―double criminality‖, i.e., that it is a condition of extradition that the crime is punishable according
to the law both of the states of asylum and of the requesting state.
7. Reasonable prima facie evidence: There must be reasonable prima facie evidence of the guilt of
the accused.
J. G. Starke: “Intervention‖ means something more than mere interference and much stronger
than mediation (reflection) or diplomatic suggestion. To fall within the terms of their prohibition, it
must be dictatorial interference, in opposition to the will of the particular state affected.
Quincy Wright: Quincy Wright‘s view is that ―intervention‖ may be diplomatic as well as military.
A diplomatic community of threatening tone, implying possible use of military measures may
constitute intervention.
Kinds of intervention: There are three different kinds of intervention, which are as follows:
1. Internal intervention: It is the interference by one state between disputing sections of the
community in another state either for protection of the legitimate government or the insurgents
(rebel).
2. External intervention: It is the intervention by one state in the relations generally of the hostile
relations of other states. It is, in other words, an intervention in the foreign affairs of another state.
3. Punitive intervention: It is a punitive measures falling short of war and it in the nature of a
reprisal (revenge) for an injury suffered at the hands of another state.
When intervention can be permitted - general rule: General rule is that intervention is not allowed
under International Law. Use of force by one state against another state, is always unlawful.
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Article 2 of the Charter of the United Nations clearly condemns intervention when it provides that
all members shall refrain in their relations from the threat or use of force against the territorial
integrity or political independence of any state.
Exceptional cases: There are, however, exceptional cases in which a state has at International Law a
legitimate right of intervention.
State servitude (slavery) - J. G. Starke: Stake defines an international servitude as ―an exceptional
restriction imposed by treaty on the territorial sovereignty of a particular state whereby the territory
of that state is put under conditions or restrictions serving the interest of another state.‖
M. P. Tandon: It is a right whereby the territory of one state is made liable to permanent use by
another state for some specified purpose. For example, by agreement a state may be obliged to allow
the passage of troops of a neighboring state or may be prevented to fortify its frontiers in the interest
of the neighboring state.
L. Oppenheim: International servitude is that exceptional restrictions through which a state may
exercise certain rights over the territory of another state. State servitudes are those exceptional
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Rights in rem: The right arising out of servitude is one in rem. It follows that the servitude remains
in force whatever happens to the territory of the state bound by the servitude, for example, if it be
annexed or merged in another state.
Object of state servitude: The object of state servitude is always the whole or a part of the territory
of the state the territorial supremacy of which is restricted by any such servitude.
Subjects of state servitude: Subjects of the state servitude are states only and exclusively, since state
servitude can exist between states only.
Kinds of servitude: Oppenheim mentions four kinds of servitude, which are as follows:
1. Military servitude: Military servitude is a servitude acquired for military purposes, such as, the
right to keep troops in foreign territory or to send an armed forces through foreign territory.
2. Economic servitude: Economic servitude is a servitude which is acquired for the purpose of
commercial interests, traffic, and intercourse in general, such as the right of fisheries in foreign
territorial waters, or to enjoy the advantages of a free zone for custom purpose, to built a railway-line
on foreign territory.
3. Positive servitude: Positive servitude means that a state has to perform certain acts on the
territory of another state. For example,
(1) Building and operating a railway in a certain territory.
(2) Construction of a customhouse.
(3) Having fishery rights in the territorial waters of another state.
(4) Lay down telegraph cable through foreign territory and such like.
4. Negative servitude: Negative servitude connotes that the state is bound by the servitude must
refrain from doing something on that territory or abstain from exercising its territorial rights in some
ways. For instance, it may permit a state to demand that a neighboring state shall not fortify its
frontiers or increase its naval on land armament beyond a certain limit.
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It is inspired by a feeling for humanity and is centered on the protection of human being in time of
war (armed conflicts). It seeks to mitigate the effects 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.
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. 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.
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.
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. 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.
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.
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‖.
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
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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‖; and the ―1929 Geneva Convention
Relative to the Treatment of Prisoners of War‖.
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. 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.
The four 1949 Geneva Conventions deal respectively with the 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.
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Protocol I deals with the protection of victims of international armed conflicts. 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. 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.
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
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.
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. Medical purposes include
the search for, the collection, transport and treatment of the wounded and sick.
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.[
“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. 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 exclusively to medical transportation
and under the control of a competent authority of a party to the conflict.
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
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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 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
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SECTION 1:
THE CODIFICATION AND DEVELOPMENT OF INTERNATIONAL ENVIRONMENTAL LAW
Since the mid-1960s, the need to protect the environment resulting from the increase in the level
of understanding of the dangers facing the earth‘s environment has instigated an effort, by
governments and by the United Nations as well as by non-governmental organizations, to invoke
legal protection of the environment both at domestic and international levels.
At the domestic level, most countries have promulgated environmental legislation to that end. At
the international level, the United Nations initiated in 1972 the long international process for the
codification and development of international environmental law as a separate new branch of
International Law.
Although the United Nations had convened some conferences addressing environmental issue
before 1972. For instance, the 1949 ―United Nations Scientific Conference on the Conservation and
Utilization of Resources‖ which focused on exchanging experience in resources use and
conservation techniques, and the 1968 ―UNESCO Conference of Experts on the Scientific Basis for
Rational Use and Conservation of the Resources of the Biosphere‖ which addressed the issues with
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This Conference focused mainly on protecting ―the human environment.‖ It resulted in the
adoption of four major initiatives concerning the normative, institutional, programmatic, and
financial aspects of the environment at the international level. The first initiative was the adoption
of ―the Stockholm Declaration‖, which intended to inspire and guide the peoples of the world in the
preservation and enhancement of the human environment. The second initiative was the agreement
to establish a new institution within the United Nations, which is ―the United Nations
Environmental Programme‖ (UNEP). The third initiative was the adoption of ―the Action Plan‖
for the development of environmental policy which to be administered by the UNEP.
Since 1972 Stockholm Conference, there has been a remarkable proliferation of international
instruments concerning various environmental problems. These involve air pollution, marine
pollution, global warming and ozone depletion, the dangers of nuclear and other extra-hazardous
substances, Antarctica, and threatened wildlife species.
In the same year after the 1972 Stockholm Conference, the United Nations General Assembly
established ―the United Nations Environmental Programme‖ (UNEP) as a subsidiary organ to deal
with environmental issues. The UNEP is based in Nairobi, Kenya, and consists of a Governing
Council of fifty-eight members elected by the G.A. This organ has contributed extensively to the
development of International Environmental Law.
It has been behind the conclusion of a number of conventions, such as ―the 1985 Vienna Convention
for the Protection of the Ozone Layer‖ which imposes on States a few concrete obligations related
to the protection of human health and the environment, and ―the 1987 Montreal Protocol on
Substances that Deplete the Ozone Layer‖which aims at reducing and eventually eliminating
consumption and production of a range of ozone-depleting substances.
In 1989, ―the Basel Convention on the Control of the Transboundary Movements of Hazardous
Wastes and their Disposal‖ was concluded. In 1991 ―the Convention on Environmental Impact
Assessment in a Transboundary Contest‖, was concluded. In 1992 ―the Helsinki Convention on the
Protection and Use of Transboundary Watercourses and Lakes‖ and ―the Helsinki Convention on
the Transboundary Effect of Industrial Accidents‖ were conclude. Moreover, after the 1972, the
General Assembly of the United Nations has adopted a number of resolutions concerning the
environment.
The process of the development of International Environmental Law was culminated in ―the
United Nations Conference on Environmental and Development‖ (UNCED) which was held in Rio
de Janeiro in June 1992. The Conference was held to reconcile worldwide economic development
with protection of the environment. The Earth Summit, as this Conference is known, was the
largest gathering of world leaders in history, with 117 heads of state and representatives of 178
nations in all attending. By means of treaties and other documents signed at the conference, most of
the world's nations nominally committed themselves to the pursuit of economic development in
ways that would protect the Earth's environment and non-renewable resources.
This Statement of Principles aims at preserving the world's rapidly vanishing tropical rainforests. It
recommends that nations monitor and assess the impact of development on their forest resources
and take steps to limit the damage done to them.
In addition, the Rio de Janeiro Conference of 1992 established ―the Inter- Agency Committee on
Sustainable Development‖ in order to improve co-operation between the various United Nations
organs and agencies concerned with this issue. In the same year, ―the Commission on Sustainable
Development‖ (CSD) was established by the General Assembly and ―the Economic and Social
Council of the United Nations‖ in order to follow up the 1992 Rio de Janeiro Conference, and to
keep under review the implementation of its instruments.
Since the 1992 Rio de Janeiro Conference, several international instruments, whether universal or
regional, dealing with various environmental issues have been adopted.The instruments deal with
issues such as trans-boundary pollution, marine environment and pollution, nuclear safety and
damage, desertification, Hazardous wastes, and watercourses, rivers and lakes. Among these
instruments, there is ―the 1997 Kyoto Protocol to the United Nations Framework Convention on
Climate Change‖.
It is important to mention that in 1994 the Global Environmental Facility, which was established
earlier, was transformed into a permanent financial mechanism to award grants and funds to
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SECTION 2:
THE MAJOR EMERGENT PRINCIPLES OF INTERNATIONAL ENVIRONMENTAL LAW
The emergent principles and rules of International Environmental Law are laid down in the various
environmental instruments, conventions as well as non-binding statements, declarations and
resolutions, which have been adopted in the last thirty-three years. These principles and rules
accords rights and obligations to individuals, peoples and States with respect to global environment
and sustainable development. Although not all these principles and rules are binding, the non-
binding ones may constitute an evidence of the tendency of international community with regard to
such subjects. The most significant emergent principles and rules of environment and sustainable
development are the following:
(1) The Human Environmental Right: This principle accords all persons the right to a secure,
healthy and ecologically sound environment. It provides that every person has the fundamental right
to freedom, equality and adequate conditions of life, in an environment of a quality that permits a
life of dignity and well-being.
(2) The Principle of Sustainable Development: This principle considers human beings to be at
the center of concerns for sustainable development. It provides that the right to development must be
fulfilled so as to equitably meet developmental and environmental needs of present and future
generations.
(3) The Right to Development: This principle accords each State the right to development, and
the sovereign right to exploit its own resources pursuant to its own environment and developmental
policies. It provides that environmental protection should not outweigh the need of a State for
economic development. It also provides that economic and social development is essential for
ensuring a favorable living and working environment for human being and for creating conditions
on earth that are necessary for the improvement of the quality of life.
(4) The Principle of Integration of Environmental Protection and Development: This principle
provides that environmental protection should constitute an integral part of the development process
and cannot be considered in isolation from it.
(5) The Principle of Environment Protection and Precaution: This principle requires all states
to take all the precautionary measures according to their capabilities in order to protect the
environment. States should take precautionary measures to prevent or minimize environmental
degradation. They should minimize in an economically efficient manner harmful environmental
impacts. They should endeavor to limit and, as far as possible, gradually reduce and prevent air
pollution, including long-range trans-boundary air pollution.
(6) The Principle of Co-operation: This principle provides that international matters concerning
the protection and improvement of the environment should be handled in a co-operative spirit. It
requires States to co-operate in a spirit of global partnership to conserve, protect and restore the
health and integrity of the Earth‘s ecosystem; and to develop policies and strategies by means of
exchanges of information and consultation and to exchange information to combat generally the
discharge of air pollution.
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(7) The Principle of State Responsibility for Damages to the Environment: This principle
imposes upon the States the responsibility to ensure that activities within their jurisdiction or control
do not cause damage to the environment of other States or areas beyond the limits of national
jurisdiction. States are liable for any damage caused by their breach of their obligations. Such
liability is absolute; States are liable for any adverse effects irrespective of fault.
(8) The Polluter-Pays Principle (the Civil Liability Principle): This principle entails that the
polluter should, in principle, bear the costs of pollution.
(9) The Principle of Notification and Consultation: This principle requires a State immediately
to notify other States of any natural disasters or other emergencies that likely to produce sudden
harmful effects on the environment of those States. States should provide prior and timely
notification and relevant information to potentially affected States on activities that may have a
significant adverse transboundary environmental effect and shall consult with those States at an
early stage and in good faith.
(10) Environmental Impact Assessment (EIA) Principle: This principle involves a procedure for
evaluation the likely impact of a proposed activity on the environment. The object of the assessment
is to provide decision-makers with information about possible environmental effects when deciding
whether to authorize the activity to proceed. Under this principle States are required to establish an
environmental assessment procedure that permits public participation and the preparation of
environmental impact assessment documentations.
(11) Environmental Monitoring Principle: This principle involves a process whereby States
observe, measure, evaluate and analyze, by recognized scientific methods, the risks or effects of
pollution or environmental harm. Unlike EIA, monitoring is generally undertaken after the project
has begun; its object is to check initial EIA prediction and determine whether measures are needed
in order to abate or avoid pollution or environmental harm.
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
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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 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.
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:
(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 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.
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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.
D. Reservation to a Treaty
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 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
State‖.
The 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
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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
Under the Vienna Convention on the Law of Treaties, the application of treaties is subject to the
following rules:
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
The Latin principle ―pactatertiisnecnocentnecprosunt‖, 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.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.
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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
favoremtertii). 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.
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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
(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).
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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 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.
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.
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.
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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.
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1. The Assembly
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 meetings of the Assembly required
to be decided by a majority of the Members of the League represented at the meeting.
2. The Council
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
The Secretariat was the administrative organ of the League (acting as the civil service for the
League). It was located in Geneva, Switzerland. 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.
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Other Bodies
The Permanent Court of International Justice and several other agencies and 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 theInternational Court of
Justice. The Health Organization was restructured as the World Health Organization.
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.
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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, 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.
Traditionally, diplomatic relations have been conducted through ambassadors and 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.
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
th
17 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
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Under the 1961 Vienna Convention on Diplomatic Relations, members of the diplomatic mission
are the following:
(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, 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.
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; in such case, he should be
recalled and his functions should be terminated.
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:
i. 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.
ii. an action related to succession in which he is involved as executor, administrator, heir or legatee
as a private person and not on behalf of the sending State;
iii. 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.
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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 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
(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.
The institution of consular post is much older than that of diplomatic mission. The 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. 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.
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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 between the
concerned states.
B. Appointment of a Head of the Consular Post
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.
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.
(5) Issuing passports and travel documents to nationals of the sending State, and giving visas to
persons wishing to travel to that State.
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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.
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 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.
(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; or
ii. 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.
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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.
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.
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