International Law Notes

History and nature of International LawDr. Raju KDAssistant ProfessorRajiv Gandhi School of Intellectual Property Law IIT Kharagpur

West Bengal

KDR/IIT KGP/RGSOIPL/Labour-2008

1

Nature of International Law Nation states not individuals. Law within the country municipal law

Law deals with nations international law No particular legislature to legislate. International Court of Justice voluntary jurisdiction.

No enforceability.


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Theories John Austin command of the sovereign backed by a

sanction or punishment. There is no unified system of enforcement. use of force is justified in some circumstances. There is no international force to implement any decision of the ICJ. Consent theory. Theory of self limitation.


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Early Closely related to western culture European notion of sovereignty

Modern system 400 years back Solemn treaty between the rulers of Lagosh and

Umma city states situated in the area known to historians as Mesopotamia 2100 BC. Rameses 11 of Egypt and the King of Hittites peace and brotherhood. Many agreements by middle eastern powers.KDR/IIT KGP/RGSOIPL/Labour-2008 4

Early The notion of universal community. Greek awareness.

Romans respect for law and organisations. Jus civile to jus gentium Roman law. Roman Law corpus juris civilis compilation of legal

materials by byzantine philosophers 534 AD. Growth of Islam.


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Middle ages Organised church Development of ecclesiastical law

Canon law Commercial and maritime law developments Law merchants

Francisco Votoria Professor of Theology University

of Theology (1480-1546). Suarez (1548-1617) jesuit and Professor of Theology Alberico Gentili (1552 1608) Northern Italy.KDR/IIT KGP/RGSOIPL/Labour-2008 6

Early developments Professor Vinogradoff inter municipal law Costmary rules developed on diplomatic envoys.

Working principles developed on the basis of

reasoning and analogy. Development of canon law and later law of nature. Grotius 1583-1645 published De jure Nelli ac Pacis (The Law of War and Peace) He accepted the law of nature. Who is considered as the father of modern international law.KDR/IIT KGP/RGSOIPL/Labour-2008 7

Hugo Grotius, 1583 -1645 Father of International law worked as a jurist in the Dutch Republic and laid the

foundations with Francisco de Vitoria for international law, based on natural law. Treatise De Jure Belli, Ac Pacis Libri Tres 1623-24. Considered as the starting point for modern international law. He opposed the closed sea concept of Portuguese. High seas belong to all.KDR/IIT KGP/RGSOIPL/Labour-2008 8

Page written in Grotius' hand from the manuscript of De Indis (circa 1604-05). Treatise De Jure Belli, Ac Pacis Libri Tres


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Treaty of Westphalia The Westphalian treaties of 1648 were a turning point

in establishing the principle of state sovereignty as a cornerstone of the international order. However the first attempts at formulating autonomous theories of international law occurred before this, in Spain, in the 16th century. Roman Catholic theologians Francisco de Vitoria and Francisco Surez. Surez is especially notable in this regard in that he treatise on international law, de iure belli ac pacis, which dealt with the laws of war and peace.KDR/IIT KGP/RGSOIPL/Labour-2008 10

TREATY OF WESTPHALIA - 1648 Treaty between Roman Emperor and the King of

France. Alabama claims Arbitration 1872. Permanent court of Arbitration 1899 1907. Permanent Court of International Justice 1921. International Court of Justice 1946.


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Positivist approach Locke and Hume developed after the Treaty of

Westphalia. Theory of sovereignty by Bodin and Hobbes. Supreme power of states and sovereignty of states. Both theories appear in the work of Vattel (1714-67). He introduced equality of states in the international law.


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Dualist and monist theories Monist claimed there is no difference between the

international law and municipal law. Dualist supports the consent theory


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History Still, in the 17th and 18th centuries, the idea of natural

law as a basis for international law remained influential, and were further expressed in the works of Samuel von Pufendorf and Christian Wolff. in the second half of the 18th century, a shift occurs towards positivism in international law. In addition, the idea of international law as a means for maintaining international peace is challenged due to the increasing tensions between the European great powers (France, Prussia, Great-Britain, Russia and Austria).KDR/IIT KGP/RGSOIPL/Labour-2008 14

History At the end of the century, Immanuel Kant believes

that international law as a law that can justify war does not serve the purpose of peace anymore, and therefore argues in Perpetual Peace . After World War I, an attempt was made to establish such a new international law of peace, of which the League of Nations was considered to be one of the cornerstones, but this attempt failed unfortunately.


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History The Charter of the United Nations (1945) in fact

reflects the fact that the traditional notion of state sovereignty remains the key concept in the law of nations.


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Modern customary law Consent theory. consenting to an international practice is sufficient to

be bound by it, without signing a treaty.


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Treaty law A customary law can be overturn by a treaty law. Contracts between countries.


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Definition The rules of law that relating to the functioning of

international institutions or organisations, their relation with each other, their relation with states and individuals. The rules of law relating to individuals and non-state entities, concern of international community. Rules governing relations between states. Columbian Pruvian Asylum Case( ICJ 1950). Regional rules are not necessarily subordinate to international law but may be complementary or correlated to.KDR/IIT KGP/RGSOIPL/Labour-2008 19

Thank you


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Sources of International LawDr. Raju KDAssistant ProfessorRajiv Gandhi School of Intellectual Property Law IIT Kharagpur

West Bengal

KDR/IIT KGP/RGSOIPL/-2008

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Sources Custom Treaties

Decisions of judicial or arbitral tribunals Juristic works Decisions or determinations of the organ of

international institutions.


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A.38 of ICJ statute The Court, whose function is to decide in accordance with

international law such disputes as are submitted to it, shall apply: a. international conventions, whether general or particular, establishing rules expressly recognized by the contesting states; b. international custom, as evidence of a general practice accepted as law; c. the general principles of law recognized by civilized nations; d. subject to the provisions of Article 59, judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law.KDR/IIT KGP/RGSOIPL/-2008 3

Material source Evidence of existing rules, when proved, have the

status of generally binding rules of general application. It is difficult to maintain the difference between formal and material source in international law. Evidences of existing consensus among states Decisions of the International Court of Justice Resolutions of General Assembly Law making multilateral treaties


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Treaties Binding force of treaties Obligations arising from express agreement

Multilateral law making treaties to which a majority of

states are parties.


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International Custom A.38 of ICJ statute defines: evidence of a general

practice accepted as law. legal norms that have developed through the customary exchanges between states over time. General recognition among states of a certain practice as obligatory. Opinio juris Usage: it is a general practice which does not reflect a legal obligation.KDR/IIT KGP/RGSOIPL/-2008 6

Custom Customary international law is something done as a

general practice not because it is expedient or convenient, but because it is considered law, out of a sense of legal requirement (opinio juris). Element 1: General practice. Element 2: States do it out of a sense of legal obligation. What constitutes state practice? How much practice is required? How much consistency is required?KDR/IIT KGP/RGSOIPL/-2008 7

Requirements Duration Consistency Repetition

Generality of a particular practice of states Time immemorial A peremptory norm (also called jus cogens, Latin for "compelling law")

is a fundamental principle of international law which is accepted by the international community of states as a norm from which no derogation is ever permitted. Examples include various international crimes; a state which carries out or permits slavery, genocide, war of aggression, or crimes against humanity is always violating customary international law.KDR/IIT KGP/RGSOIPL/-2008 8

Duration Uniformity, consistency and generality of practice Passage of time

Complete uniformity is not required, but substantial

uniformity is required. Fisheries case, ICJ Reports 1951 ICJ refused to accept the 10 mile rule for bays. Asylum case, ICJ Reports 1950 the customary law must be in accordance with a constant and uniform usage practiced by the states in question. regional custom.KDR/IIT KGP/RGSOIPL/-2008 9

The Paquete Habana (1900) The Paquete Habana case relied on edicts and

agreements as far back as 1403. The Paquete Habana and the Lola were Cuban fishing boats that were seized by the U.S. during the SpanishAmerican war. The U.S. District Court said that the Navy had acted within its authority, under Federal statute. Cubans argued violation of international law This established rule of international law had existed to protect peaceful fishermen from wartime seizures.KDR/IIT KGP/RGSOIPL/-2008 10

Asylum Case (1950) Haya de la Torre, Peruvian national granted asylum in

Columbian embassy in Lima. Political asylum No match between domestic law and international law Variety of conflicting and contradictory evidence shows it is not a custom. Concurrence of the major powers of that field.


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Portugal v. India (1960) Customary relations between nations becoming

binding. Portugal had territory within India, and India wouldnt let the Portuguese move their military and equipments back and forth to the enclaves. India asserted the rights that England had enjoyed, and the right of passage only applied to civil activities.


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Generality of practice Complements that of consistency. Lotus case, absence of protest is not an evidence of

general acceptance. Court not accepted the continuous conduct as prima facie evidence of a legal duty and required a high standard of proof. Fisheries Jurisdiction case, United Kingdom v. Iceland: extension of a fishery zone up to 12 mile (not 10) limit is now accepted among states as a preferential rights for coastal states.KDR/IIT KGP/RGSOIPL/-2008 13

Evidence Diplomatic correspondence Policy statements

Press releases Opinions of official legal advisors Official manuals

Comments by governments on international relations International and national judicial decisions The wordings in treaties The practice of international organisations.KDR/IIT KGP/RGSOIPL/-2008 14

Uniformity Some degree of uniformity amongst state practices was

essential before a custom could come into existence. Anglo Norwegian Fisheries Case ICJ Reports 1951. Measuring the breadth of the territorial sea using straight line between projections. Insufficient uniformity of behavior.


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Opinio juris sive necessitatis. an opinion of law or necessity A general practice accepted as law.

Practice consistent with international law The burden of proof The ICJ accepts existence of an opinio juris on the

bases of evidence of a general practice. Positive evidence of recognition of the validity of the rules in question in the practice of states.


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Lotus case Lotus French ship Boz-Kourt turkish ship

Essential ingradient of obligation was lacking and the

practice remained a practice, nothing more.


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The standard of proof North Sea Continental shelf case and in Nicaragua v.

United States A new customary rule to be formed, not only must the acts concerned amount to a settled practice but they must be accompanied by the opinio juris sive necessitatis. Right of passage over Indian territory, ICJ Reorts 1960 a special right has to give affirmative proof of a sense of obligation on the part of the territorial sovereign.


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North Sea Continental Shelf Cases (1969) There are 3 ways the treaty could have become binding

customary international law: The treaty re-stated a pre-existing custom. The treatys rule crystallized customary law that had been in the process of formation. Both extensive and virtually uniform in the sense of the provision. Holland & Denmark argued that this treaty had generated a new customary law, a new norm of international law binding on everyone. The ICJ therefore held that there was no customary international law for the Dutch/Danish position. KDR/IIT KGP/RGSOIPL/-2008 19

Nicaragua v. U.S. (1986). Customary law may be a source of international law in

international disputes. It is separate from treaty law and convention law, as it must be applied even if the countries are parties to a treaty. The court held that it is no longer okay to settle disputes with force, a customary norm.


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Custom The evidence of objection must be clear and there is

probably a presumption of acceptance which is to be rebutted. Unequivocally manifested a refusal to accept the rules. If a party pleas a regional custom as a practice, the proponent must prove that it has become binding on the other member.


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4. Treaties Law making treaties Conclusions of international conferences

Resolutions of the United National General Assembly Drafts adopted by the International Law Commission The Hague Convention of Paris 1856 and 1907 on Law

of war and neutrality. Genocide Convention 1948


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Case laws North Sea Continental Shelf Cases: To what extent the

German Federal Republic was bound by the provisions of the Continental Shelf Conventions which it had signed but not ratified. 11:6 ICJ held that first 3 articles of the Convention were emergent or pre-existing customary law. Even if norms of treaty origin crystallize as new principle or rules of customary law, the customary norms retain a separate identity even if the two norms appear identical in content.KDR/IIT KGP/RGSOIPL/-2008 23

Bilateral treaties Bilateral treaties may provide evidence of customary

rules. Final Act of an intergovernmental conference adopted an agreement unanimously even though not adopted-obvious importance. E.g: the principles of international law recognised by the Charter of the Nuremberg Tribunal and Judgment of the Tribunal.


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General Principles of Law Recognised by Civilized Nations A.38(1)(c) of the statute of the ICJ. Rules and principles recognised in the domestic laws

of all recognised nations.


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Relationship between International Law and Municipal LawDr. Raju KDAssistant ProfessorRajiv Gandhi School of Intellectual Property Law IIT Kharagpur

West Bengal

KDR/IIT KGP/RGSOIPL-2008

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Treaties The term "treaty" can be used as a common generic term or

as a particular term which indicates an instrument with certain characteristics. The term "treaty" has regularly been used as a generic term embracing all instruments binding at international law concluded between international entities, regardless of their formal designation. Both the 1969 Vienna Convention confirm this generic use of the term "treaty".


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Treaty A.2(a): The 1969 Vienna Convention defines a treaty as

"an international agreement concluded between States in written form and governed by international law, whether embodied in a single instrument or in two or more related instruments and whatever its particular designation". The 1986 Vienna Convention extends the definition of treaties to include international agreements involving international organizations as parties.


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Requirements First of all, it has to be a binding instrument, which

means that the contracting parties intended to create legal rights and duties. Secondly, the instrument must be concluded by states or international organizations with treaty-making power. Thirdly, it has to be governed by international law. Finally the engagement has to be in writing.


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Treaty There are no consistent rules when state practice employs

the terms "treaty" as a title for an international instrument. Usually the term "treaty" is reserved for matters of some gravity that require more solemn agreements. Their signatures are usually sealed and they normally require ratification. Typical examples of international instruments designated as "treaties" are Peace Treaties, Border Treaties, Delimitation Treaties, Extradition Treaties and Treaties of Friendship, Commerce and Cooperation.KDR/IIT KGP/RGSOIPL-2008 5

Convention The term "convention" can have both a generic and a

specific meaning. Convention as a generic term: Art.38 (1) (a) of the Statute of the International Court of Justice refers to "international conventions, whether general or particular" as a source of law, apart from international customary rules and general principles of international law and - as a secondary source - judicial decisions and the teachings of the most highly qualified publicists.KDR/IIT KGP/RGSOIPL-2008 6

Convention This generic use of the term "convention" embraces all

international agreements, in the same way as does the generic term "treaty". Black letter law is also regularly referred to as "conventional law", in order to distinguish it from the other sources of international law, such as customary law or the general principles of international law. The generic term "convention" thus is synonymous with the generic term "treaty".


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Conventions The same holds true for instruments adopted by an

organ of an international organization (e.g. the 1951 ILO Convention concerning Equal Remuneration for Men and Women Workers for Work of Equal Value, adopted by the International Labour Conference or the 1989 Convention on the Rights of the Child, adopted by the General Assembly of the UN).


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Charter The term "charter" is used for particularly formal and

solemn instruments, such as the constituent treaty of an international organization. The term itself has an emotive content that goes back to the Magna Carta of 1215. Well-known recent examples are the Charter of the United Nations of 1945 and the Charter of the Organization of American States of 1952.


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Agreements The term "agreement" can have a generic

and a specific meaning. It also has acquired a special meaning in the law of regional economic integration. The 1969 Vienna Convention on the Law of Treaties employs the term "international agreement" in its broadest sense.KDR/IIT KGP/RGSOIPL-2008 10

Agreements "international agreements" for instruments, which do

not meet its definition of "treaty". Its Art.3 of Vienna convention refers also to "international agreements not in written form". "Agreements" are usually less formal and deal with a narrower range of subject-matter than "treaties". It is employed especially for instruments of a technical or administrative character, which are signed by the representatives of government departments, but are not subject to ratification.KDR/IIT KGP/RGSOIPL-2008 11

Choice of forum If foreign law can never apply within the forum state,

then obviously the forum cannot apply foreign choiceof law rules.


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Agreements Typical agreements deal with matters of economic,

cultural, scientific and technical cooperation. Agreements also frequently deal with financial matters, such as avoidance of double taxation, investment guarantees or financial assistance. The UN and other international organizations regularly conclude agreements with the host country to an international conference or to a session of a representative organ of the Organization.


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Protocols The term "protocol" is used for agreements less formal

than those entitled "treaty" or "convention". The term could be used to cover the following kinds of instruments: A Protocol of Signature is an instrument subsidiary to a treaty, and drawn up by the same parties. Such a Protocol deals with ancillary matters such as the interpretation of particular clauses of the treaty, those formal clauses not inserted in the treaty, or the regulation of technical matters. Ratification of the treaty will normally ipso facto involve ratification of KDR/IIT 14 such a Protocol. KGP/RGSOIPL-2008

Protocols An Optional Protocol to a Treaty is an instrument that

establishes additional rights and obligations to a treaty. The Optional Protocol to the International Covenant on Civil and Political Rights of 1966 is a well-known example.


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Declarations The

term "declaration" is used for various international instruments. However, declarations are not always legally binding. The term is often deliberately chosen to indicate that the parties do not intend to create binding obligations but merely want to declare certain aspirations. An example is the 1992 Rio Declaration. The 1948 Universal Declaration of Human Rights is intended to create legal obligations.KDR/IIT KGP/RGSOIPL-2008 16

Declarations Declarations that are intended to have binding effects

could be classified as follows: declaration can be a treaty in the proper sense. (a) A significant example is the Joint Declaration between the United Kingdom and China on the Question of Hong Kong of 1984. (b) An interpretative declaration is an instrument that is annexed to a treaty with the goal of interpreting or explaining the provisions of the latter. (c) A declaration can also be an informal agreement with respect to a matter of minor importance.KDR/IIT KGP/RGSOIPL-2008 17

MoU A memorandum of understanding is an international

instrument of a less formal kind. It often sets out operational arrangements under a framework international agreement. It is also used for the regulation of technical or detailed matters. It is typically in the form of a single instrument and does not require ratification.


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MoU They are entered into either by States or International

Organizations. The United Nations usually concludes memoranda of understanding with Member States in order to organize its peacekeeping operations or to arrange UN Conferences. The United Nations also concludes memoranda of understanding on cooperation with other international organizations.


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Public vs. Municipal Conflict between international law and municipal law the

dualist assumes the municipal law prevail at municipal level. Hersch Lauterpacht exponent of monism International law is also concerned with the conduct and welfare of individuals. Kelsen monist monism is scientifically established if international and municipal law are part of same system of norms.


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Dualism Subject of state law are individuals Subjects of international law are states

Juridical origins are different Sources of municipal law is the will of the state International law is the common will of states.

State law is conditioned by fundamental principles International law is conditioned by pacta sunt servand


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Monism Considered all unit as single unit Science of law is a unified field of knowledge.

International law and state law are both part of a

universal body of rules.


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Kelsen Kelsen does not support the primacy of international

law over municipal law. Monist naturalist theory provision of a universal basic norm. They work in different spheres. Never come into conflict Rousseau characterizing international law as a law of co-ordination which does not provide for automatic abrogation of internal rules in conflict with obligations on the international plane.KDR/IIT KGP/RGSOIPL-2008 23

Int.n. law vs. Municipal law A state cannot plead provisions of its own law or

deficiencies in that law in answer to a claim against for an alleged breach of its obligations under international law. (Free Zones case) 1932, PCIJ. Municipal law cannot prevail over a treaty law. (GrecoBulgarian Communities case, 1930, PCIJ.


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Position of individual Imposes duties on individuals in case of certain cases International Military Tribunal at Nuremberg.

Plea of acts in accordance with municipal law is not

entertained. International tribunals has to examine municipal law relating to expropriation, fishing limits, nationality, guardianship and welfare of infants to see whether it is against treaty or customary law. Public orderKDR/IIT KGP/RGSOIPL-2008 25

Harmonization Infusion of international legal principles into the

municipal legal system. Adaptation to local laws. Transformation theory transformation into state law. International law as promises and Municipal laws as commands


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Thank you


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Recognition of StatesDr. Raju KDAssistant ProfessorRajiv Gandhi School of Intellectual Property Law IIT Kharagpur

West Bengal


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States No definition as such Statehood is a question of fact and not law

Article 1 of the Montevideo Convention on Rights and

Duties of States provides: State under international law should possess the following qualifications. 1. a permanent population 2. a definite territory 3. government 4. capacity to enter into relations with the other states.KDR/IIT KGP/RGSOIPL-2008 2

Montevideo Convention 1933 On the rights and Duties of States signed by

the United States and certain Latin American countries. Fixed territory is not essential. Consistency in the nature of territory State must have a capacity to enter into relations with the other states. Kelsen: it is purely a technical notion expressing the fact that a certain body of legal rules bids a certain group of individuals living within a defined territorial area. KDR/IIT KGP/RGSOIPL-2008 3

Law Requirement of a legal system is a primary condition

of statehood. Legal system juridically valid Madzimbamuto v. Lardner Bruke, [1969] 1 AC 645. PC held that unilateral declaration of independence of 11 November 1965 and subsequent legislation was illegal. UN role in declaring a statehood. State as a creation of natural law.KDR/IIT KGP/RGSOIPL-2008 4

Basic rights Sovereignty over its subjects and affairs. Independence and equality of states.

Territorial jurisdiction Self-defence Duties:

Not resorting to war. Carrying out treaty obligation in good faith. Not intervening in affairs of other states


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Powers Power to control its own domestic affairs Power to admit and expel aliens

Privileges of its diplomatic envoys Exclusive jurisdiction over crimes committed within its

territory. Savarkar case 1911 Corfu Channel case - 1949 Eichmann case - 1961 Rainbow warrior - 1986KDR/IIT KGP/RGSOIPL-2008 6

Statehood Sovereignty Membership of international organisations

Identity and continuity of States


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Recognition of States It is a mere declaration or acknowledgement of an

existing state of law and fact. Question of policy rather than law Unilateral diplomatic act on the part of one or more states. Recognition of states and recognition of governments. Estarda doctrine - 1930-Foreign Minister of Mexico No definite definition.


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Definition Institute of International Law: The free act by witch one or more states acknowledge

the existence on a definite territory of a human society politically organised, independent of any other existing states, and capable of observing the obligations of international law, and by which they manifest therefore their intention to consider it a member of the international community.KDR/IIT KGP/RGSOIPL-2008 9

Definitions Oppenheim: if the new state fulfils the conditions of

Statehood required by International law. New states: the nascent community possesses the requirement of statehood.


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Theories Constitutive theory act of recognition alone which

creates statehood. Declaratory theory or evidentiary theory act of recognition is merely a forma acknowledgement of an established situation of fact. 1949-80 recognition of China No right of recognition in the Draft Declaration on the rights and Duties of States ILC- 1949.


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Constitutive theory (Hegel) The act of recognition alone which creates statehood

or which clothes a new government become an authority or status in the international sphere. Mere act of recognition is sufficient to create statehood. Openheim, Kelsen, Lauterpacht and Holand: Recognition is indispensable to the full enjoyment of rights which it connotes.


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Declaratory theory The authority of government exist even before

recognition. Recognition is merely a formal acknowledgement of an already existing fact. Formal declaration of an existing fact. Hall, Wagner, Pitt Cobbet are the exponents of declaratory theory of recognition. The purpose of recognition is declaratory not of constitutive?KDR/IIT KGP/RGSOIPL-2008 13

Implied recognition Intention to establish formal relations with the new

state or new governments. Occasions for conclusively implying recognition: Formal signature of a bilateral treaty between states. Formal initiation of diplomatic relations Issue of a consular facility Common participation in a multilateral treaty Participation in an international conference Initiation of negotiations between recognizing and recognised states.KDR/IIT KGP/RGSOIPL-2008 14

Conditional recognition The Berlin Congress 1878 Failure to fulfill does not annul the recognition.

The recognised state may guilty of a breach of

international law. Sever diplomatic relations Sanctions Recognition cannot be withdrawn.


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Collective recognition Membership in the UN A.3-4 of UN Charter. Conditions of Membership in the United Nations, ICJ

1948, 57. Statehood as a primary qualification for the admission to the UN. 1991-EU Guidelines for the recognition of states. Respect for the provisions of UN Guarantees for the rights of ethnic and national groups and minorities.KDR/IIT KGP/RGSOIPL-2008 16

EC treaty Respect for frontiers Acceptance of commitments with regard to

disarmament and nuclear non-proliferation as well as security and regional stability. Regional disputes should be resolved by arbitration.


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Recognition of governments 1977 US avoiding recognition of governments. 1980 UK- Secretary of State for Foreign Affairs UK

is no longer going to recognise governments 1988 Australia no recognition to governments


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Withdrawal of recognition The de jure recognition once granted is irrevocable. The withdrawal of diplomatic relations does not mean

withdrawal of recognition.


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Types of recognition De jure recognition the state formally recognised

fulfils the requirements laid down by international law for effective participation in international community. De facto provisionally and temporally and with all due reservations for the future. Soviet Government was recognised de facto in 1921 and de jure recognition was given by Britain in 1924.


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De facto Doubt about the long term

De jure Recognizing fully the effective

validity of the government. De facto recognition does not itself include the exchange of diplomatic relations. Transaction entered between states on the basis of de facto recognition cannot be repudiated by the subsequent govenrment.

control permanently. Only a de jure government can claim the property in a recognizing state.


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De facto recognition A "de facto" recognition is derived from actions and

contacts between two states if they enter into a relationship on a political level. The following acts shall inter alia be considered acts of this nature: a) diplomatic activities by representatives of the states involved in connection with tasks between states, relationships etc.; b) statements of a state on politically relevant issues and problems of the other state such as statement on mutual delimitation; c) recognition and official endorsement with a visa of passports issued by the other state as traveling documents.KDR/IIT KGP/RGSOIPL-2008

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De jure v. De facto If there is a conflict between the interests of de jure

government and de facto government the rights of de facto government will prevail. Bank of Ethiopia v. National Bank of Egypt and Liguori. Arantazu Mendi case


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Thank you


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STATE SUCCESSION

KDR/RGSOIPL/2008

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I NTERNATIONAL CONVENTIONS

1) Treaties: the Vienna Convention on Succession of States in Respect of Treaties, 1978 (Vienna I);

2) State property, State debt and State archives: the Vienna Convention on Succession of States in Respect of State Property Archives and Debts, 1983 (Vienna II);

KDR/RGSOIPL/2008

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STATE SUCCESSION

Approximately 100 new States emerged with the end of decolonization.

Germany reunified, while the Soviet Union, Yugoslavia and Czechoslovakia dissolved.the transfer of one State to another is usually described as State Succession Vienna I and II - state that succession is "the replacement of one State by another in the responsibility for the international relations of a territory.

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BY

SECESSION

Singapore Malaysia 1965 Bangladesh Pakistan 1971 Eritrea - Ethiopia 1993 East Timor Indonesia 2002 14 states from the former USSR

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D ISSOLUTION H APSBURGEMPIRE

First Word War Yugoslavia and Czechoslovakia Second World War Socialist Republic of Yugoslavia Yugoslavia successor to Serbia.

End of cold war Bosnia, Herzegovina, Croatia, Macedonia, Serbia and Montenegro.

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MERGER

1958 Egypt and Syria United Arab Republic dissolved in 1961. 1976 North Vietnam and South Viet Nam Socialist Republic of Viet Nam. 1990 North Yemen and South Yemen Republic of Yemen. Absorption 1990 - unification of Germany no new state is formed.

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TABULA RASA : T HE C LEAN S LATE D OCTRINE

The option of simply denying State succession to treaties, known as the tabula rasa or clean slate doctrine and re-inventing international law after each case of State succession has never been adopted or openly defended in recent State practice. The clean slate thesis appears to have emerged in the late nineteenth century.there can be no transfer of rights or obligations between the old and the new state. main argument in favor of the clean slate doctrine is that treaties are generally burdensome restrictions to sovereignty and that a new State should be free to reconsider the Predecessor State's treaties.

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U NIVERSAL S UCCESSION : T HE C ONTINUITY T HEORY

The continuation theory of state succession is an anti-thesis to the clean-slate theory of membership.

Under the continuity theory, rights and duties may still pass to States that have lost extensive portions of their territories and/or have undergone radical changes in government as long as they are considered to have inherited the essential legal identity of the former member.The universal successor assumes the whole of the legal clothing of the person to whom he succeeds; steps, as it were, into his shoes.

He takes over his rights and liabilities of every kind; his property ,the debts and other obligations (such as rights of action for damages for breach of contract) owing to him, and the debts and obligations which he owes.KDR/RGSOIPL/2008

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SUCCESSION

How far the new state is bound by the treaties and contracts entered by its predecessor.

Continuity of legal personalitySession, annexation or merger

Recognition and responsibilityAll international rights and duties will devolve upon the new sate.

KDR/RGSOIPL/2008

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SUCCESSION

Succession of states was defined as the replacement of one state by another in the responsibility for the international relations of territory. (1978 & 1983 Convention). international obligations passes to the successor state. Sovereignty of a lessee state over particular territory reverts to the lessor state.

1997 China resumes sovereignty over Hong Kong.

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SUCCESSION

International Convention on Succession of States in Respect of Treaties 1978.

Vienna Convention of 1983 on Succession of State Property, Archives and Debts.Change of sovereignty over territory.

Passing of rights and obligations upon external changes of sovereignty over territory.The passing of rights and obligations upon internal changes of sovereignty, irrespective of territorial changes.

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PASSING OF RIGHTS ANDOBLIGATIONS

Passing of territory to another state. One state divided into many states. New states from colonial states

KDR/RGSOIPL/2008

13

T REATY

RELATIONS

Vienna convention on Succession of States in respect of treaties, 1978. entered into force - 1996

A.15- treaties of the predecessor state are to be in force in relation to the territory thus passingTreaties of the successor state are to be in force in respect of the territory thus passing, unless it appears from the treaty or is otherwise established that the application of the treaty to that territory would be incompatible with the object and purpose of the treaty or would radically change the conditions for its operations.

KDR/RGSOIPL/2008

14

S TATE P RACTICE

A new state does not succeed automatically to a treaty if the subject matter is closely linked to the relations of the predecessor state with the other party or parties. Example include political treaties such as treaties of alliance or defence. In case of absorption all treaties entered into by the absorbed state will either simply lapse or the absorbing state will extend to the absorbed state. A.31 of the 1978 Convention A successor state will be bound on human right treaties.

KDR/RGSOIPL/2008

15

C ONTRACTUAL OBLIGATIONS

The relevant treaties will continue in force. Free choice doctrine Damages for unliquidated damages wont exist If there is any unjust enrichment to the predecessor or successor state the right and corresponding obligations may survive.

KDR/RGSOIPL/2008

16

SUCCESSION

West Rand Central Gold Mining Co v. R, [1905] 2 KB 391.

Extinction of rights by conquest or annexation, the successor state has the right to decide whether to submit to the contractual rights. If any concessionary agreement will extinct with the transition.Unless the successor state renews it.

KDR/RGSOIPL/2008

17

P UBLIC

DEBTS

Taking the burden with the benefits No obligation accrues for a successor state in respect of a public debt incurred for a purpose hostile to the successor state or for the benefit of some other state. If a country is divided into many countries the debt become divided among the successors. Ottoman Debt Arbitration, 1925.

Proportionate benefitKDR/RGSOIPL/2008

18

DEBTS

Vienna Convention on Succession of States in Respect of State Property, Archives and Debts, 1983. NOT IN FORCE

Usually all disputes has to be settled by agreements.the successor State acquires the whole property of the predecessor State or States.

Equitable proportion is to pass to the successor state.A.37 if the successor state is a newly independent state, no debt will pass unless the agreement otherwise agrees.

KDR/RGSOIPL/2008

19

P ROPERTY & A RCHIVES

Those States should receive not only the whole property of the predecessor State situated in the territory of the new State, but also property having belonged to the territory of the successor State and situated outside it and having become property of the predecessor State during the period of dependence.If no agreement was concluded, in the case of cession the successor State should receive the part of the archives necessary for an efficient administration of the acquired territory, as well all the documents relating fully or mostly to the ceded territory.KDR/RGSOIPL/2008

20

A RCHIVES

AND DEBT

in the case of the unification of States the successor State acquire all the archives of the predecessor State.

Archive includes documents, photographs, films, cultural heritage etc.The Convention did not refer to any classification of debts.

the criterion generally adopted by the Convention was that the debt passes to the successor State in an equitable proportion.The exception was the situation of the newly independent States, for which no debts pass to them, unless an agreement provides otherwise, provided that this agreement does not infringe the principle of sovereignty of peoples over wealth and natural resources (Article 38).KDR/RGSOIPL/2008

21

A SSETS &

DEBT

Similar solutions were applied in cases of secession and dismemberment of the predecessor State (Art.40 and 41) - the debt should be divided into proportional shares.

The primary rule with regard to the allocation of assets (including archives) and debts in succession situations is that the relevant parties should settle issues by agreement. the first principle applicable to State succession is that the successor States should consult with each other and agree a settlement of all questions relating to succession.States does not as such affect the rights and obligations of creditors. Art. 40 of Vienna II provides that where part of a state separates to from another state, unless otherwise agreed, the state debt of the predecessor state passes to the successor state in an equitable proportion taking into account in particular the property, rights and interests which pass to the successor state in relation to that debt. KDR/RGSOIPL/2008

22

CLAIMS

the successor state has a right to take up fiscal claims belonging to the former state, including the right to collect taxes due.

In practice municipal courts will enforce obligations of the predecessor state against the successor only when the latter has recognized them. Local debts clearly pass under customary international law to the successor State.Similarly, localized debts, being closely attached to the territory to which the succession relates, also pass to the successor state in conformity with the same territorial principle.KDR/RGSOIPL/2008

23

TORT

The successor state is not bound to respect an unliquidated claim for damages in tort.

Hawalian claims, AJIL 20, 1926.Brown Claim, 19 AJIL 1925.

KDR/RGSOIPL/2008

24

M EMBERSHIP OF I NT.N.O RG

A new state will not succeed to membership of the UN or other international organisations.

India and Pakistan India continued Pakistan as a new state has to apply for Membership of the UN. Russia continued to be the member of UN after the dissolution of USSR.

KDR/RGSOIPL/2008

25

N ATIONALITY OF N ATURAL P ERSONS

As a result of succession no national of the successor state becomes stateless.

UN draft guidelines

KDR/RGSOIPL/2008

State ResponsibilityDr. Raju KDAssistant Professor of LawRajiv Gandhi School of Intellectual Property Law IIT Kharagpur

West Bengal


1

State responsibility The law of responsibility is concerned with the

incidence and consequences of illegal acts, and particularly the payment of compensation for loss caused Ian Brownlie


2

Spanish Zone of Morocco claims, 1923 J. Huber: Responsibility is the necessary corollary of a right. All

rights of an international character involve international responsibility. Responsibility results in the duty to make reparation if the obligation in question is not met.


3

Chorzow Factory, PCIJ, 1927 it is a principle of international law that the breach of

an engagement involves an obligation to make reparation in an adequate form. Reparation therefore is the indispensable complement of a failure to apply a convention and there is no necessity for this to be stated in the convention itself.


4

Chorzow Factory, 1928 It is a principle of international law, and even a general

conception of law, that any breach of an engagement involves an obligation to make reparation.


5

State responsibility State responsibility for internationally wrongful acts. State acts in breach of international law.

State cannot evade international obligation under

municipal law. International criminal responsibility. Crime of apartheid Racial discrimination State responsibility in nuclear experiments


6

Component state Responsibility of component state is imputed or

attributed to the federal state, in the same way as the conduct of its federal organs, Federal state is vicariously liable for the conduct of a component state.


7

1974 ILC Report The principle that the state is responsible for acts and

omissions of organs of territorial governmental entities, such as municipalities, provinces and regions, has long been unequivocally recognised in international judicial decisions and the practice of States.


8

Defense to state responsibility Coercion by another state to commit a wrongful act. Consent by the affected state.

Countermeasures recognised by international law. Force majeure contributing to the unlawful act.


9

Breach of treaty If any treaty provision is broken responsibility follows. PCIJ in Chorzow Factory (Indemnity), (1928) PCIJ Ser

A, No.17, p.29. any breach of an engagement involves an obligation to make reparation. The compensation or punishment may be in accordance with the illegality and seriousness of the act committed. Rainbow Warrior case KDR/IIT KGP/RGSOIPL/-2008 10

Rainbow Warrior On 10 July 1985 an undercover operation conducted by

the French military security service (DGSE) sank the British-registered Greenpeace ship Rainbow Warrior berthed in Auckland Harbour. The Greenpeace ship was planning to disrupt French Nuclear tests on the islands of French Polynesia. New Zealand subsequently caught and convicted several members of the French secret forces.


11

Rainbow warrior France initially offered an official apology and

acknowledgement of breach of international law. Additionally, the UN secretary-general awarded New Zealand 7 million USD. This is in addition to compensation which France paid to the family of the only victim of the mission and to Greenpeace (settled privately).


12

Contracts Excluded from international law purview Specifically provides international law as the

governing law?


13

Liability for expropriations Concessions

regarding mining, manufacturing, transportation, utilities and communications. Anglo Iranian Oil Co Case ICJ 1952. (UKThe Anglo Iranian Oil company case.docx v. Iran) The UN Resolution on Permanent Sovereignty over Natural Resources, 1962.


14

General Assembly resolution 1803 (XVII) of 14 December 1962, "Permanent sovereignty over natural resources" Nationalization, expropriation or requisitioning shall be based on

grounds or reasons of public utility, security or the national interest which are recognized as overriding purely individual or private interests, both domestic and foreign. In such cases, the owner shall be paid appropriate compensation in accordance with the rules in force in the State taking such measures in the exercise of its sovereignty and in accordance with international law. In any case where the question of compensation gives rise to a controversy, the national jurisdiction of the State taking such measures shall be exhausted. However, upon agreement by sovereign States and other parties concerned, settlement of the dispute should be made through arbitration or international adjudication.KDR/IIT KGP/RGSOIPL/-2008 15

Expropriation of foreign private propertybe for a public purpose in accordance with a declared national policy. 2. Not discriminate between aliens and citizens, or between different foreign nationalities. 3. Not involve the commission of an unjustified irregularity. 4. Be accompanied by the payment of appropriate compensation.1.


16

Standard of reparation Restitutio in integrum monetary equivalent. Damnum emergens market value of assets

Lucrum cessans loss of expected profits


17

Calvo clause Argentinian jurist Calvo Legal disputes arising out of the contract shall be

referred to the municipal courts of the state granting the concession or grants. Oust the jurisdiction of the international arbitral tribunals. North American Dredging Co Case


18

Hull Formula A number of developed countries endorsed the Hull formula, first

articulated by the United States Secretary of State Cordell Hull in response to Mexicos nationalisation of American petroleum companies in 1936. Hull claimed that international law requires

prompt, adequate

compensation for the expropriation of foreign investments. Developing countries supported the Calvo doctrine during the 1960s and 1970s as reflected in major United Nations General Assembly resolutions. In 1962, the General Assembly adopted its Resolution on Permanent Sovereignty over Natural resources which affirmed the right to nationalise foreign owned property and required only appropriate compensation.KDR/IIT KGP/RGSOIPL/-2008 19

and effective

Debts Lord Palmerstons theory 1848 intervene

diplomatically and even resort to military intervention against defaulting debtor state. The Drago doctrine Argentinian Minister 1902 non use of military force Included in the Hague Convention of 1907 Employment of Force for the Recovery of Contract Debts non use of force.


20

Person or property Immutability 1. conduct of the state organ or official in breach of an

obligation defined in a rule of international law. 2. That breach would be attributed to the state.


21

Conditions for state responsibility 1. state organ r official is guilty of the relevant act with

state authority. 2. state responsible at international law if the person exceeds authority impute liability on the state. Youmans case Mexican troops exceeded orders and killed Americans. 3. Under municipal law there is no authority imputation will fail.


22

Protection of citizens abroad Denial of justice Chattin Claim (1927) US-Mexico

Exhaustion of local remedies is a condition precedent.


23

Fault theory One state is not responsible to another state for

unlawful acts committed by its agents unless such acts are committed willfully and maliciously or with culpable negligence. Jessie British American Claims Arbitral Tribunal in 1921. any government is responsible to other governments for errors in judgment of its officials purporting to act within the scope of their duties and vested with power to enforce their demands.KDR/IIT KGP/RGSOIPL/-2008 24

Claims Presence of malice or culpable negligence is not a

condition precedent of state responsibility. A state can bring claims if one of its subjects has sustained unlawful injury for which another state is responsible. Mavrommatis Palestine Concessions Case, 1924, PCIJ once a State has taken up a case on behalf of one of its subjects before an international tribunal, in the eyes of the latter the State is the sole claimant.


25

Corporations Nationality of claims canon nationality of the

company. Barcelona Traction (Belgium v. Spain) Only the national of the company (Canada) can initiate any claim. Belgium claim on behalf of its citizens fail. Real and effective nationality is the criteria Cf Florence Strunsky Merge Case (1955). Artificial personality in corporations - only nationality is criteria.KDR/IIT KGP/RGSOIPL/-2008 26

Damages Material damage or pecuniary loss. Nicaragua Case


27

Thank you


28

Diplomatic ImmunitiesDr. Raju KDAssistant Professor of LawRajiv Gandhi School of Intellectual Property Law IIT Kharagpur

West Bengal


1

Developments English Diplomatic Privileges Act of 1708 Congress of Vienna 1815

Regulation of Vienna Vienna Convention on Diplomatic Relations 1961. 183 state parties

extra ordinary Ambassadors on temporary mission Title of Plenipotentiary Envoy Extraordinary and Minister Plenipotentiary


2

Missions A.2 of the Vienna Convention mutual consent of

states. No right of establishment of missions Consent of both states are necessary. Usually embassies 53 states High Commissions all common wealth countries.


3

Formalities Letters de Credence to be issued Letters

of full powers relating to particular negotiations or specific instructions to be submitted to the accredited state. In order to avoid conflict the appointment of a particular person as envoy must ascertain beforehand whether that person will be persona grata. Once the ascent is obtained, proceed with appointment.KDR/IIT KGP/RGSOIPL/-2008 4

Functions of missions A.(1) - (a) representing the sending State in the receiving State; (b) protecting in the receiving State the interests of the sending

State and of its nationals, within the limits permitted by international law; (c) negotiating with the Government of the receiving State; (d) ascertaining by all lawful means conditions and developments in the receiving State, and reporting thereon to the Government of the sending State; (e) promoting friendly relations between the sending State and the receiving State, and developing their economic, cultural and scientific relations.KDR/IIT KGP/RGSOIPL/-2008 5

Mission All buildings, land, irrespective of ownership Residence of head of mission and staff.

The Diplomatic and Consular Premises Act 1987

requires the consent of the British Government before acquiring property. Receiving state must facilitate the acquisition and accommodation of the staff. S.25 full facilities telephone line, permits etc.


6

Persona non grata A.9 unqualified power on the receiving state to

remove any member of the mission. Not acceptable. The receiving state will refuse to recognise him as a member of the mission. No longer enjoy privileges and immunities No reason for demanding recall


7

Foreign territory Part of the territory of receiving state Buying or leasing be under the local law.

A.22 premises of the mission are inviolable Agents of the receiving state cannot enter the mission

without the consent. Police intrusion is violation of inviolability the remedy is only personal non-grata or serving diplomatic relations.


8

Movement A.26 freedom of movement within the receiving

state. Freedom of communication A.27(1) inviolability of official communication All correspondence relating to mission and its functions.


9

Diplomatic bag Any bag for communication or any equipment. Even a container can be termed as diplomatic bag but

not the vehicle itself. A.27(4) Specific external mark Label + official stamp A.27(4) - stipulates the bag should only contain diplomatic documents or articles intended for official use. Use of the bag for sending drugs, arms or explosives are abuse of the Convention.KDR/IIT KGP/RGSOIPL/-2008 10

Rights and privileges Article 20-41 of the Vienna Convention Representative theory

Ex - territoriality no more accepted R v. Turnbull, ex p Petroff, (1971) 17 FLR 438. Throwing explosives in USSR Embassy in Canberra.

Held Embassy is not a part of the foreign territory

and the accused could be prosecuted for such alleged offences against local law.


11

Foreign territory A.31 of the Vienna Convention of 1963 No entry without consent

Consent assumed in case of fire or prompt protective

action. 1948 - Kasenkina Case lady jumped through the window of Soviet consular office.


12

Protection A.22 of Vienna Convention US Diplomatic and Consular Staff in Tehran, ICJ 1980,

3. ICJ held that it the host state to protect the premises, staff and archives of the mission against any attack. A.25 full facilities for a mission to perform its functions. A.26 freedom of movement and travel of mission personnel (except in prohibited areas).KDR/IIT KGP/RGSOIPL/-2008 13

Protection 1984 Firing from Libyan Peoples Bureau in London

at demonstrators outside the Bureau killing one women police officer. Recall of the staff. A.34 and 36 exemption from all dues and taxes. A.27 freedom of communication for official purposes. Exception from social security provisions


14

Protection of diplomats UN Convention on the Prevention and Punishment of

Crimes against Internationally Protected Persons including Diplomatic Agents 1973. Protection against him and family members. Murder, kidnapping or other attack upon person Violent attack on official premises or private accommodation. Transport,


15

Personal inviolability Arrest or detention Keep freedom and dignity (A.29)

Duty to take all appropriate steps to prevent any attack

on diplomatic persons. Inviolability to the residence of the head of mission. Private residence of diplomatic agent enjoys same inviolability.


16

Diplomatic immunity Criminal jurisdiction Civil and administrative matters

The immunity can be waived only by the sending state

[A.32(2] Social security exemption Exemption from taxation Property tax exemption on reciprocal basis. Exemption from income tax Customs duties and inspectionKDR/IIT KGP/RGSOIPL/-2008 17

Family The immunities are extended to the family of a diplomatic

agent forming part of his house hold. A. 37(1). Spouse and children Unmarried couples Wife is not immune from civil and administrative jurisdiction. A.37(2) Administrative and technical staff are immune. Staff only in respect of acts performed in the course of duties.


18

Termination of diplomatic mission Recall of envoy Lettre de Recreance Notification by the sending state to the receiving state

that the envoy function has come to an end. Request by the receiving state that the envoy be recalled. No explanation is required A.9 of the Vienna Convention. War between two states


19

End of Diplomatic mission Envoy has been declared as persona non grata. Expiration of the letter of credence.


20

Consuls The title Consul is used for the official representatives

of the government of one state in the territory of another, normally acting to assist and protect the citizens of the consul's own country, and to facilitate trade and friendship between the people of the country to whom he or she is accredited and the country of which he or she is a representative. Thus, while there is but one ambassador representing a nation's head of state to another, and his or her duties revolve around diplomatic relations between the two countries.KDR/IIT KGP/RGSOIPL/-2008 21

Consuls Vienna Convention on Consular Relations, 1963. Consuls

Vice-consuls Consular agents


22

Ambassador - Consul An ambassador is the A consul is the

foreign diplomatic representative of a nation who is authorized to handle political negotiations between his or her country and the country where the ambassador has been assigned.KDR/IIT KGP/RGSOIPL/-2008

commercial agent of a nation, who is empowered only to engage in business transactions, and not political matters in the country where he or she is stationed.

23

Powers The powers of an In general, a consul is

ambassador are specified in his or her credentials, or documents of introduction, which the ambassador submits to the foreign government.

authorized to safeguard the legal rights and property interests of the citizens of his or her country and to appear in court to ascertain that the laws of the nation where he or she is assigned are administered impartially to all of the ambassador's compatriots.24


Immunity The

development of harmonious international relations and protection against arrest, harassment, or other unjustified actions taken against diplomatic representatives. Such an agent is immune from criminal liability in the nation in which he or she serves, but the commission of a crime may result in a recall request to the ambassador's country.


25

Immunities In addition, a diplomatic agent is immune from civil

lawsuits, except for actions involving estates, when he or she is the executor, administrator, or beneficiary; actions concerning real property held by the diplomatic agent for personal, not official functions; and actions relating to professional or business activities that are beyond the scope of diplomatic duties. A diplomatic agent is not required to testify as a witness; and the family members living in the agent's household enjoy the same immunities.KDR/IIT KGP/RGSOIPL/-2008 26

Immunity No full immunity to consular agents According to bilateral treaty

Not subject to local proceedings unless their

government assents to the proceedings. Right of free communication Inviolability of official papers and archives Right to be released on bail when accused Limited exemption of taxation and dues.


27

Special missions Convention on Special Missions 1969 States for common interest

Freedom of movement and communication necessary

for the function of the mission No immunity from action for damages in case of accidents of vehicles Permanent missions to international organisations Permanent observer missions Delegations to international missionsKDR/IIT KGP/RGSOIPL/-2008 28

Vienna Convention 1975 Convention on the Representation of States in their

Relations with International Organisations of a Universal Character.


29

India Diplomatic Immunities Privileges Act, 1964.


30

Thank you


31

Territorial Jurisdiction & sovereigntyDr. Raju KDAssistant ProfessorRajiv Gandhi School of Intellectual Property Law IIT Kharagpur

West Bengal


1

State Settled population Definite territory

Capacity to enter into legal relations


2

State territory Essential element of statehood is the occupation of a

territorial area. It includes geographical area of earths surface over which supreme and exclusive sovereignty of a state extends. It not only includes the surface of earth, territorial waters and air space over the territorial land and water, subsoil and underneath. Territory is a fundamental concept of international law.KDR/IIT KGP/RGSOIPL-2008 3

Kelsen Defined state territory as: a space within which the acts of the state, and

specially its coercive acts, are allowed by general international law to be carried out, a space within which the acts of a state may legally be performed.


4

Sovereignty : Max Huber Arbitrator in Island of Palmas Arbitration sovereignty in the relation between states signifies

independence. Independence in regard to a portion of the globe is the right to exercise therein, to the exclusion of any other state, the function of a State.


5

Acquisition of territory Cession Occupation

Annexation Prescription conquest

Accretion Acquiescence, recognition and estoppel Plebiscite.


6

Modes of Acquisition Cession: Transfer from one state to another, usually by

treaty. May be voluntary by a treaty. If any treaty is concluded by use of force or threat is void. Violation of UN charter and A.52 of the Vienna Convention of 1969. Voluntary session sale of Alaska by Russia to US in 1867. Exchange of Heligoland for Zanzibar by Germany and Great Britain in 1860. Island of Palmas case US-HollandAll sovereign rights ceded transfer of sovereignty.

Occupation Occupation of terra nullius: Never belonged to anyone, or Abandoned (intentionally, not just through neglect)

Occupied (with intent)when place under effective control Look at nature of territory Does anyone else claim it

Annexation display of effective control and authority. Occupation and annexation are based on an act of

effective apprehension of territory.


8

Occupation Eastern Greenland Case PCIJ Two elements required

1. an intention or will to act as sovereign. 2. the adequate exercise or display of sovereignty. Dispute by Norway and Denmark Denmark proved

these criteria. Physical assumption of control is necessary. Minquiers and Ecrehos Case ICJ actual exercise of state function.KDR/IIT KGP/RGSOIPL-2008 9

Continuity Island of Palmas Arbitration: Mere act of discovery by one state without more is not

sufficient to confer a title by occupation. Continuous and peaceful display of authority can confer title. Theory of continuity. Claim of North pole and South pole.


10

Annexation Two circumstances: Where the territory annexed has been conquered or

subjugated by the annexing state. Where the territory annexed is in a position of virtual subordination to the annexing state at the time the latters intention of annexation is declared. Annexation of Korea by Japan in 1910. By force against the UN charter, not recognised by other states.KDR/IIT KGP/RGSOIPL-2008 11

Modes of Acquisition Prescription Immemorial exercise of sovereignty or de facto

exercise of sovereignty for a long period of time. Belonged to another state Control with intent Probably requires other state to agree

Operations of Nature Adjudication: mainly limited to drawing line

Conquest Use of force legal or illegal. A.2(4) of the UN Charter prohibits use of force against

any state. Occupation doesnt transfer sovereignty. Conquest of Garmany by Allies in 1945. S.C. resolution inadmissibility of force for acquisition of territory. S.C. Reslution 662 Iraqi annexation of Kuwait illegal.KDR/IIT KGP/RGSOIPL-2008 13

Accretion Accretion addition to a portion of territory. New territory is added through natural causes.

Alluvial deposition Sudden and abrupt transfer of soil. River side depositions


14

Modes of Acquisition Conquest: An aggressor cannot acquire territory by

conquest [Stimson Doctrine] How about the state attacked??? Does not apply to civil wars

Acquiescence, recognition, and Estoppel Acquiescence requires express statement Recognition by third parties Estoppel requires detriment

Acquiescence The common law doctrine of estoppel by

acquiescence is applied when one party gives legal notice to a second party of a fact or claim, and the second party fails to challenge or refute that claim within a reasonable time. The second party is said to have acquiesced to the claim, and is estopped from later challenging it, or making a counterclaim. The doctrine is similar to, and often applied with, estoppel by laches.


16

Modes of Acquisition Political Arguments: evidence of presumption of

effective occupation Geographical contiguity Historical continuity Self-determination

Minor Rights Condominium: agree to joint sovereignty Lease

Modes of Acquisition Servitudes: territory belonging to one made to serve

the interests of another Run with the land, change of sovereign do not affect

Loss of territorial sovereignty Dereliction: abandonment of all rights Revolt: cession of territory


19

Sovereignty over air space First World War: airspace over open sea and over

unappropriated territory was absolutely free. A. 1 of the Paris Convention of 1919 for the Regulation of aerial Navigation, whereby the parties recognised that every state has complete and exclusive sovereignty over the air space above its territory and territorial waters. freedom of innocent passage Havana Convention on Commercial Aviation - 1928KDR/IIT KGP/RGSOIPL-2008 20

Boundaries Boundary is not only merely a line in a borderland. Rann of Kutch Arbitration between India and Pakistan

1965. Pakistan claimed that Rann had always been a part of Kutch territory. India claimed effective authority. India won most of the claims and the boundary was fixed on the Northern edge of the Rann. Read: The Rann of Kutch J. Gillis Wetter The American Journal of International Law, Vol. 65, No. 2 (Apr., 1971), pp. 346-357.KDR/IIT KGP/RGSOIPL-2008 21

Rivers Passing through one state. More than one state. Freedom of navigation: At the time of peace only. Countries through which the river passes have the right of

passage. Freedom of passage is without any limitation. Treaty of Paris 1814 Vienna congress: 1815 Peace Treaties 1919-1920.KDR/IIT KGP/RGSOIPL-2008 22

Rivers 1930 League of Nations convention 1956 Bangkok Convention

1960 Geneva Convention Lake Lanoux Arbitration France Spain There was no duty on a riparian state under customary

international law to consult, or obtain the prior agreement of a co-riparian, as a condition precedent of its right to begin new river works, although in carrying out the project it must take into account, an a reasonable manner interest of co-reparian.KDR/IIT KGP/RGSOIPL-2008 23

Thank you


24

TreatiesDr. Raju KDAssistant Professor of LawRajiv Gandhi School of Intellectual Property Law IIT Kharagpur

West Bengal


1

Objective the maintenance of international peace and security,

the development of friendly relations and the achievement of co-operation among nations,


2

Developments International Law Commission draft articles 1966. Vienna Convention on Law of the Treaties 85 Articles

and an Annex. Convention entered into force in 1980. Source of law codification of existing laws on treaties Namibia case (A.O) ICJ held that the rules laid down by the Vienna Convention. Concerning termination of a treaty relationship on account of breach may in may respects be considered as a codification of the existing customary law on the subject. KDR/IIT KGP/RGSOIPL/-2008 3

Applicability It does not deal with: 1. treaties between states and organizations or between

two organizations 2. questions of state succession 3. the effect of war on treaties.


4

International conventions Vienna Convention of the Law of the Treaties, 1969 Entered into force in 1980.

Deals only with treaties between states Art. 1.


5

Definition S.2. "treaty" means an international agreement

concluded between States with an intention to create legal obligations in written form and governed by international law, whether embodied in a single instrument or in two or more related instruments and whatever its particular designation; "ratification", "acceptance", "approval" and "accession" mean in each case the international act so named whereby a State establishes on the international plane its consent to be bound by a treaty;KDR/IIT KGP/RGSOIPL/-2008 6

Treaties The object of a treaty is to impose binding obligations

on the states who are parties to it. Based on the maxim pacta sunt servanda Two or more states establish or seek to establish a relationship between themselves governed by international law.


7

Examples Heads of sovereign states Inter governmental form technical or non-political

agreements. Ministers of the countries. Inter state form drafted expressly or impliedly as an agreement between states. Inter departmental agreement. Political heads of the countries. Even a treaty need not be in the form of writing.KDR/IIT KGP/RGSOIPL/-2008 8

Different forms 1. Convention 2. Protocol

3. Agreement 4. Arrangement 5. process-verbal

6. statute 7. covenant 8. Declaration 9. exchange of notes.KDR/IIT KGP/RGSOIPL/-2008 9

Conventions Proper formal instrument of a multilateral character. Standard formal instruments of a multilateral

character. Instruments adopted by international organisations like ILO or ICAO.


10

Protocols Less formal than a treaty or convention. An instrument subsidiary to convention

Ancillary matters such as the interpretation of

particular clauses. Ancillary instrument to a convention. A supplementary treaty.


11

Agreement Less formal Fewer parties

Technical or administrative character only. Signed by representatives of governments. Not subject to ratification.


12

Process Verbal Summary of the proceedings and conclusions of a

diplomatic conference. Minor alteration to a convention. Not subject to ratification.


13

Statute Collection of constituent rules relating to the

functioning of an international institution. Statute of the ICJ. Collection of rules laid down by international agreement. An accessory instrument to a convention setting out certain regulations to be applied.


14

Covenant Engagements of fundamental importance. United Nations Covenant on Civil and Political Rights.

Covenant on Economic, Social and Cultural Rights,

1966.


15

Declaration Joint declaration, 19 December 1984 between UK and

China on the revision of Hong Kong to Chinese by 1997. An informal instrument appended to a treaty or convention interpreting or explaining the provisions of the latter. Minor importance. Resolution in a diplomatic conference.


16

Modus vivendi Is an instrument recording an international agreement

of a temporary or provisional nature intended to be replaced by an arrangement of a more permanent and detailed character.


17

Exchange of notes Informal method. Through diplomatic route or military representatives.


18

Practices and entry into force 1. Accreditation of negotiators 2. Negotiations and adoption.

3. Authentication, signature and exchange of

instruments. 4. Ratification. 5. Accessions and adhesions 6. Entry into force 7. Registration and publication 8. Application and enforcementKDR/IIT KGP/RGSOIPL/-2008 19

Credentials First step to appoint negotiators. Power to attend and negotiate with other states.

Power to sign is not required for negotiations. The power to negotiate signed by the head of the state

or Minister of Foreign Affairs is known as Full Powers or Pleins Pouvoirs. The sending for negotiations with Full Powers A.7.1(b).


20

Negotiation and adoption Either through discussions in case of bilateral treaties. Multilateral diplomatic conferences.

Different committees were constituted like steering

committees and drafting committees. The Conference appoints a prominent member as Rapporteur. A.9(2) vote of two thirds of the states present and voting. Even can be adopted by consensus.KDR/IIT KGP/RGSOIPL/-2008 21

Authentication, signature and exchange of instruments Once the final draft is agreed upon it will be made

public for sometime. Signature is effected at a formal closing session. It should be authenticated by a resolution. Heads of the states may sign. 1919- Woodrow Wilson Treaty of Versailles. 1972 US USSR Anti-ballistic Missile System.


22

Open for signature Common practice to open the convention for signature

by certain states. Generally this period does not exceed 9 months. After expiry of the date no signature Signature, without reservation Signature subject to later acceptance Acceptance simpliciter. Signature subject to reservation.


23

Exchange of instruments Exchange by representatives. Result: parties becomes bound by the treaty Vienna

convention Art. 13.


24

Ratification Signed treaty will be send to respective governments

for approval. Ratification is the approval by the head of the state. A. 2(1)(b) - 'ratification', 'acceptance', 'approval' and 'accession' mean in each case the international act so named whereby a State establishes on the international plane its consent to be bound by a treaty;


25

Object of ratification Opportunity to re-examine the instrument before

undertaking any obligations. Enable the state to pass any domestic legislation or parliament approval in between signature and ratification. In international law there is neither a legal nor a moral duty to ratify a treaty. Obligation not to defeat the object and purpose of a treaty - A.18 of the Convention.KDR/IIT KGP/RGSOIPL/-2008 26

S.18 A State is obliged to refrain from acts which would defeat

the object and purpose of a treaty when: (a) it has signed the treaty or has exchanged instruments constituting the treaty subject to ratification, acceptance or approval, until it shall have made its intention clear not to become a party to the treaty; or (b) it has expressed its consent to be bound by the treaty, pending the entry into force of the treaty and provided that such entry into force is not unduly delayed.


27

Exchange or deposit of ratifications After exchange it should be deposited or exchanged

between the parties. Notice of ratification is necessary. Bilateral treaties exchange Multilateral deposit with authorised authority


28

Accessions and adhesions A state not signed the treaty can accede or adhere to it. Accede full treaty without any reservation.

Adhere acceptance of part of a treaty. Accession after prescribed ratifications. Same form as of ratifications accessions.


29

Entry into force, Registration According to the provisions of the treaty A.24. Deposit of prescribed number of ratifications.


30

A.102 of UN Charter 1. Every treaty and every international agreement

entered into by any Member of the United Nations after the present Charter comes into force shall as soon as possible be registered with the Secretariat and published by it. 2. No party to any such treaty or international agreement which has not been registered in accordance with the provisions of paragraph 1 of this Article may invoke that treaty or agreement before any organ of the United Nations.KDR/IIT KGP/RGSOIPL/-2008 31

Registration It means that, non registered treaties cannot be

challenged in ICJ. The treaty will be published by the UN Treaty Series


32

Application and enforcement Incorporation in the municipal law of state parties. Provisional application provisions.


33

A.253 of the Constitution of India Notwithstanding anything in the foregoing provisions of this Chapter, Parliament has power

to make any law for the whole or any part of the territory of India for implementing any treaty, agreement or convention with any other country or countries or any decision made at any international conference, association or other body.


34

Reservation Certain provisions of the treaty do not bind it, or apply

with modifications. This can be effected by: 1. Express provision in the treaty itself 2. By agreement between the contracting states; 3. By a reservation duly made


35

Ratifications S.2(1) (d) 'reservation' means a unilateral statement,

however phrased or named, made by a State, when signing, ratifying, accepting, approving or acceding to a treaty, whereby it purports to exclude or to modify the legal effect of certain provisions of the treaty in their application to that State;


36

Reservation 17(1): Without prejudice to articles 19 to 23, the consent

of a State to be bound by part of a treaty is effective only if the treaty so permits or the other contracting States so agree. 2. The consent of a State to be bound by a treaty which permits a choice between differing provisions is effective only if it is made clear to which of the provisions the consent relates.


37

Sovereignty Reservation as an incident of sovereignty and perfect

equality of states. It applies to relations with other parties. Assent of other states party to the treaty are necessary. Reservations are made as a Protocol of Signature. A.23 - Objections to the reservation must be in writing and communicated to other members.


38

Effect of reservation If the reservation is incompatible with the convention,

it may legitimately consider that the reserving state is not a party thereto. If a state is not ratified a treaty dont have the right to object to a reservation.


39

ICJ advisory opinion Reservations to Genocide Convention, ICJ Reports

(1951), 15. a state which has madea reservation which has been objected to by one or more of the parties to the Convention but not by others, can be regarded as being a party to the Convention if the reservation is compatible with the object and purpose of the convention.


40

Amendment of treaties Altering the provisions of treaties by revision,

amendment, and modification. A.39 amended by agreement of the parties.


41

Invalidity of treaties 1. treaty making incapacity A.46 representative exceeded their treaty making

power. A.47 if the restriction and power of the representative is not notified to other members prior, no invalidity. 2. Error ground for invalidity error of fact or situation. Not error of law.KDR/IIT KGP/RGSOIPL/-2008 42

Invalidity 3. A.49 - fraud fraudulent conduct of negotiating

state. No precedents A. 50 - Procured through corruption of its representative. A. 51-52 coercion coercion of representative. Use of force in violation of the principles of international law. Conflict with norms of Jus CogensKDR/IIT KGP/RGSOIPL/-2008 43

Thank you


44

Law of the SeaDr. Raju KDAssistant ProfessorRajiv Gandhi School of Intellectual Property Law IIT Kharagpur

West Bengal


1

The oceans are the very foundation of human life... The ocean is vast, covering 140 million square miles,

some 72 per cent of the earth's surface. most of the world's people live no more than 200 miles from the sea and relate closely to it. The oceans had long been subject to the freedom of-the-seas doctrine - a principle put forth in the seventeenth century essentially limiting national rights and jurisdiction over the oceans to a narrow belt of sea surrounding a nation's coastline.


2

Grotius 1. no ocean can be the property of a nation because it is

impossible for any nation effectively to take it into possession by occupation. Nature does not give a right to anybody to appropriate things that may be used by everybody and are exhaustible open sea is a res gentium or res extra commercium.


3

History The dispute over who controls the oceans

probably dates back to the days when the Egyptians first plied the Mediterranean in papyrus rafts. Over the years and centuries, countries large and small, possessing vast ocean-going fleets or small fishing flotillas, husbanding rich fishing grounds close to shore or eyeing distan

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