LAWS2250/6250 International Law

Lecture notes

LAWS2250/6250 INTERNATIONAL LAW

LECTURE AND READING NOTES

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Nature, Actors and Sources of International Law

Introduction
- International law is commonly defined as the rules governing the legal relationship between
States. International law provides a framework for understanding what rights and duties
States have in relation to each other, and other international actors such as the United Nations.
- Nations obey for the multilateral predictability of the states’ behaviour: Harold Hongju Koh,
‘Why do Nations Obey International Law?’ (1996-97) 106 Yale Law Journal 2599

Nature of international law

- SS ‘Lotus’ Case (France v Turkey) [1927] PCIJ Ser A; No 10, 18
o International law governs relations between independent States. The rules of law
binding upon States therefore emanate from their own free will as expressed in
conventions or by usages generally accepted as expressing principles of law and
established in order to regulate the relations between these co-existing independent
communities or with a view to the achievement of common aims.
o Restrictions upon the independence of States cannot therefore be presumed.
- Arrest Warrant of 11 April 2000 (DRC v Belgium) (Judgment) [2002] ICJ Rep 3
o Is the ‘Lotus’ dictum still valid? ‘the dictum represents the high water mark of
laissez-faire in international relations, and an era that has been significantly overtaken
by other tendencies… This vertical notion of the authority of action is significantly
different from the horizontal system of international law envisaged in the ‘Lotus’
case.
- Serdar Mohammed v Ministry of Defence [2014] EWHC 1369
o Leggatt J: ‘I think it reasonable to assume that if CA3 and/or AP2 had been intended
to provide a power to detain they would have done so expressly… It is not readily to
be supposed that the parties to an international convention have agreed to establish a
power to deprive people of their liberty indirectly by implication and without saying
so in terms’.

Subjects of international law

- Oppenheim, International Law (1st ed, 1904) 18
o ‘Since the Law of Nations is based on the common consent of individual States, and
not of individual human beings, States solely and exclusively are the subjects of
international law’.
- Brownlie’s Principles of Public International Law (8th ed, 2012) 115
o ‘A subject of international law is an entity possessing international rights and
obligations and having the capacity (a) to maintain its rights by bringing international
claims; and (b) to be responsible for its breaches of obligations by being subjected to
such claims’.

Statehood
- States participation
o International law depends on the active engagement of States with each other for its
development and validation. There is no institutional structure or organisation that
can legislate for States or humanity at large, or a court that can compulsorily
adjudicate and bind litigants.
o State consent is one of the most fundamental principles of international law. The
1969 Vienna Convention on the Law of Treaties in art 34 makes it clear that ‘A treaty
does not create either obligations or rights for a third State without its consent’.
o However, the mere existence of a State, and its recognition as a State within the
international system, carries with it certain obligations. As a result, even Satates
which are often considered to be delinquent or ‘rogue’ States remain subject to
fundamental principles of the international system, including international law, and

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have been the subject of action within the UNSC to ensure their compliance with
international norms.
- States abiding international law
o Henkin is regularly cited: ‘It is probably the case that almost all nations observe
almost all principles of international law and almost all of their obligations almost all
of the time’. The international order in post 1945 UN era has been predominantly
founded upon a rule-based system encompassing a wide network of multilateral
treaties, and for a state to survive, it must be a law-abiding international citizen.
- 1933 Montevideo Convention on Rights and Duties of States
o Article 1
§ A permanent population
§ A defined territory
§ Government (stable political organisation)
§ Capacity to enter into relations with others
o Article 2
§ The federal state shall constitute a sole person in the eyes of international law
o Article 3
§ 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, to provide for its conservation and prosperity, and
consequently to organize itself as it sees fit, to legislate upon its interests,
administer its services, and to define the jurisdiction and competence of its
courts. The exercise of these rights has no other limitation than the exercise
of the rights of other states according to international law.
o Article 4
§ States are judicially equal, enjoy the same rights, and have equal capacity in
their exercise. The rights of each one do not depend upon the power which it
possesses to assure its exercise, but upon the simple fact of its existence as a
person under international law.
- Recognition
o Declaratory theory
§ ‘The recognition of a state merely signifies that the state which recognizes it
accepts the personality of the other’ – 1933 Montevideo Convention, art 6.
§ ‘The recognition of a State is not constitutive but merely declaratory’ –
Deutsch Continental Gas Gesellschaft v Polish State (1929) 5 ILR 11
o Constitutive theory
§ ‘The full international personality of rising communities… cannot be
automatic… as its ascertainment requires the prior determination of difficult
circumstances of fact and law, there must be someone to perform that task’ –
H Lauterpacht, Recognition in International Law (1948) 55\
o Practical significance
§ State & diplomatic immunity (week 5)
§ Standing in a foreign court
§ Policy influence with respect to democracy / human rights
§ Non-recognition policy (Stimson Doctrine) as sanction
- Peoples and the right to self-determination
o Should the right to self-determination be a legal factor to be taken into account in the
emergence of new States?
o This principle is recognised in the UN Charter (art 55), the 1966 International
Covenant on Civil and Political Rights (art 1), numerous UN General Assembly
resolutions on matters concerning Human Rights, the rights of peoples, and
decolonisation, and also b ICJ in the Western Sahara and the East Timor Cases.

International organisations
- Definitions

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o Constitutive treaty or other instrument governed by international law.

o Its own international legal personality.
o Membership (state and other entities).

Sources of international law – Treaties

Art 38 ICJ statute. (www.icj-cij.org, C & M 53).
1. The Court … 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.

Definition of treaty
- VCLT Art 2.1(a) “Treaty” means 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.
- Governed by international law: intention to create obligations under international law
(Anthony Aust, Modern Treaty Law and Practice (2nd ed 2007) 20.
o Test is State’s intent to be bound (Qatar v Bahrain case)
- Whatever its particular designation: eg. Treaty, convention, protocol, statute, agreement,
accord, compact, covenant (C&M 132).

Two types of treaties

- Law-making treaties: ‘international legislation’
o Every state has interest in regulation of complex international activities.
- ‘Treaty contracts’ between two or a few states.
- Different issues regarding s: the Genocide Convention case (C&M 154, 157-9).

Instruments of less than treaty status

- ‘Rather than intending to create international legal rights and obligations, participants wish to
record their mutual understanding as to how they will conduct themselves; do not intent it to
be governed by international law (or any other law)’ (Aust 20, 32)
o Various terms, but mostly referred to as MOU.
o ‘Must be extremely careful’ in assessing the status of an MOU; ‘study carefully at all
the terms’. (Aust C&M 135)
o Terms: use ‘will’ instead of ‘shall’; avoid ‘agree’; ‘come into force’ instead of ‘enter
into force’ (Aust 33).
- Unilateral declarations: Nuclear Tests case (C&M 137-9)
o Declarations made by way of unilateral acts ... may have the effect of creating legal
obligations. ... When it is the intention of the State making the declaration that it
should become bound according to its terms, that intention confers on the declaration
the character of a legal undertaking, the State being thenceforth legally required to
follow a course of conduct consistent with the declaration. ... Whether a statement is
made orally or in writing makes no essential difference. ... Just as the very rule of
pacta sunt servanda in the law of treaties is based on good faith, so also is the binding
character of an international obligation assumed by unilateral declaration. Thus
interested States ... are entitled to require that the obligation thus created be respected.
o It is a binding declaration to the international community on behalf of the state.
- Three questions when applying VCLT rules to a treaty:

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§ (b) the treaty provides that only specified reservations, which do not include
the reservation in question, may be made; or
§ (c) in cases not falling under sub-paragraphs (a) and (b), the reservation is
incompatible with the object and purpose of the treaty.
- Acceptance and rejection
o Evolution of international legal rules
§ Genocide Conventions case [1951] ICJ Reports 15
• States which make a reservation to a treaty will be a party if it is
compatible with the object and purpose of the Convention, even if it
has been objected by one or more parties to the treaty but not by
others. If the reservation is incompatible, it will not be a party to the
treaty.
• Codified in VCLT Art 20.4
o VCLT Art 20.4
§ (a) acceptance by another contracting State of a reservation constitutes the
reserving State a party to the treaty …;
§ (b) an objection by another contracting State to a reservation does not
preclude the entry into force of the treaty as between the objecting and
reserving States unless a contrary intention is definitely expressed by the
objecting State; …
§ 5. … unless the treaty otherwise provides, a reservation is considered to have
been accepted by a State if it shall have raised no objection to the reservation
by the end of a period of twelve months after it was notified of the
reservation or by the date on which it expressed its consent to be bound by
the treaty, whichever is later. (NOTE: Be careful about dates)
o Legal effects of reservations and of objections to reservations (VCLT Art 21)
§ 1. A reservation established with regard to another party in accordance with
articles 19, 20 and 23:
• (a) modifies for the reserving State in its relations with that other
party the provisions of the treaty to which the reservation relates to
the extent of the reservation; and
• (b) modifies those provisions to the same extent for that other party
in its relations with the reserving State.
§ 3. When a State objecting to a reservation has not opposed the entry into
force of the treaty between itself and the reserving State, the provisions to
which the reservation relates do not apply as between the two States to the
extent of the reservation.
• When reservation excludes applicability of particular provision, no
difference between acceptance and objection to particular
reservation.
o Contractual approach
§ The traditional concept of reservations involved the proposition that no
reservation was valid unless it was accepted by all the contracting parties
without exception… This concept was directly inspired by the notion of
contract.
o Post-war flexible approach: followed in VCLT Art 19-23
§ The [Genocide] Convention[‘s] object is ... to confirm and endorse the most
elementary principles of morality. [T]he contracting States do not have any
interests of their own .. . ; they merely have a common interest, namely the
accomplishment of [the] high purposes of the convention. Consequently, in a
convention of this type one cannot speak of individual advantages or
disadvantages to States, or of the maintenance of a perfect contractual
balance between rights and duties.
• ∴ intention that as many states as possible should participate

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• not exclude because of minor reservation

• but not accept resolutions which contrary to object of convention.
o Genocide Conventions case decision codified in VCLT Art 20.4.
§ (a) acceptance by another contracting State of a reservation constitutes the
reserving State a party to the treaty …;
§ (b) an objection by another contracting State to a reservation does not
preclude the entry into force of the treaty as between the objecting and
reserving States unless a contrary intention is definitely expressed by the
objecting State; …
§ 20.5 … unless the treaty otherwise provides, a reservation is considered to
have been accepted by a State if it shall have raised no objection to the
reservation by the end of a period of twelve months after it was notified of
the reservation or by the date on which it expressed its consent to be bound
by the treaty, whichever is later. (NOTE: Be careful about dates)
o Legal effects of reservations and of objections to reservations (Art 21)
§ (1) A reservation established with regard to another party in accordance with
article 19, 20 and 23:
• (a) modifies for the reserving State in its relations with that other
party the provisions of the treaty to which the reservation relates to
the extent of the reservation; and
• (b) modifies those provisions to the same extent for that other party
in its relations with the reserving State.
§ (3) When a State objecting to a reservation has not opposed the entry into
force of the treaty between itself and the reserving State, the provisions to
which the reservation relates do not apply as between the two States to the
extent of the reservation.
• When reservation excludes applicability of particular provision, no
difference between acceptance and objection to particular
reservations.)
• When resolution places certain interpretation on particular provision:
o Treaty applies between reserving and objecting state with
exception of provision covered by reserving state’s
interpretation.
o With non-objecting state provision covered by reserving
state’s interpretation will have the scope suggested by that
reservation. (Cassese 174)
o Acceptance
§ Acceptance of reservation: modifies reciprocally the treaty to the extent of
the reservation. (Art 21.1)
§ Acceptance assumed if no objection within 12 months of notification of
reservation/entry into force of the treaty. (Art 20.5)
o Objection
§ Oppose entry into force between two states; (Art 20.4) or
§ Not oppose entry into force but provisions to which the reservation relates do
not apply. (Art 21.3)

Sources of International Law: Customary International Law

Art 38 ICJ statute. (www.icj-cij.org, C & M 53).
1. The Court … 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;

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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.

Introduction
- ICJ Statute, Art 38
o The Court… 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 teaching
of the most highly qualified publicists of the various nations, as subsidiary
means for the determination of rules of law.
- European Union Guidelines
o This guideline on promoting compliance with international humanitarian law define
customary international law as a source of international law that ‘is formed by the
practice of States, which they accept as binding upon them.
- Opinio juris
o The belief that acting in conformity with law (the psychological element).

State Practice
- Nicaragua case
o ‘Not in absolutely rigorous conformity with the rule… the Court deems it sufficient
that the conduct of States should, in general, be consistent with such [customary]
rules, and that instances of State conduct inconsistent with a given rule should
generally have been treated as breaches of a rule, not as indications of the recognition
of a new rule’.
o Unanimity not required.
o Interplay of state practice and opinio juris offers in different cases.
- Time element
o Short
§ ‘… short period of time… not necessarily a bar to the formation of new rule
of customary international law… indispensable that State practice during that
period…, should have been both extensive and virtually uniform.’ (NSCS
case).
o Long
§ ‘Sufficiently long period – consent and acquiescence of other states’
(‘general toleration’) (Fisheries case).
- Identification of customary international law (Draft conclusions provisionally adopted by ILC
Drafting Committee) 30 May 2016
o 5 Conduct of the State as State Practice
§ State practice consists of conduct of the State, whether in the exercise of its
executive, legislative, judicial or other functions.
o 6 Forms of Practice
§ 1. Practice may take a wide range of forms. It includes both physical and
verbal acts. It may, under certain circumstances, include inaction.
§ 2. Forms of State practice include, but are not limited to: diplomatic acts and
correspondence; conduct in connection with resolutions adopted by an
international organization or at an intergovernmental conference; conduct in
connection with treaties; executive conduct, including operational conduct
“on the ground”; legislative and administrative acts; and decisions of national
courts.
§ 3. There is no predetermined hierarchy among the various forms of practice.
- Examples of state practice

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forces, and after failing to provide the sum demanded, was taken away, stripped and
put to death. Mexico attempted to avoid liability.
o Dr Verzijl in the France Mexico Mixed Claims Commission held that the State
responsibility must be interpreted in the light of the doctrine of the ‘responsabilité
objective’.
o ‘According to that doctrine international responsibility might be incurred by a State
notwithstanding the absence of any fault on its side, seeing that a State was
responsible for all acts committed by its officers or organs constituting delinquencies
from the point of view of the law of nations, regardless of whether the officers or
organs in question have acted within the limit of their competence or have exceeded
it’.
- Subjective theory: Corfu Channel Case (United Kingdom v Albania) [1949] ICJ Report 4
o Two British warships were substantially damaged and deaths of sailors were incurred
while those ships were passing through the Corfu Channel, by mines that were laid.
o The Court held that laying the minefield could not have been accomplished without
the knowledge of the Albanian Government.
o ‘The obligations incumbent upon the Albanian authorities consisted in notifying, for
the benefit of shipping in general, the existence of a minefield in Albanian territorial
waters and in warning the approaching British warships of the imminent danger to
which the minefield exposed them. Such obligations are based on certain general and
well-recognized principles…’
- Objective responsibility excluding the mental factors such as intention.
o Cf Different standards of care (fault, negligence, due diligence etc) in primary rules:
‘Establishing these is a matter for the interpretation and application of the primary
rules engaged in the given case (Commentaries p 82)
- Time factor: the breach must be established of an obligation which was binding upon the state
at the time the act or omission occurred (Art 13).
- The violation of a State’s territory may also constitute an international wrong, and such a
violation need not even be a deliberate act: Cosmos 954 Claim
o Soviet satellite crashed and scattered radioactive wreckage over northern Canada.
- State to state damage: Trail Smelter Case
o Canadian factory produced toxic smoke that adversely affected American orchardists
just to the south in the Columbia River Valley. The arbitral tribunal held that there
was responsibility for damage a State allowed to spread beyond its borders.

Attribution
- State organs (Art 4) or those empowered by the law of that State (Art 5) are responsible for
the act of their official even if the official’s act exceeded its authority or contravened
instructions (Art 7).
- Also, conduct carried out by a group in fact exercising elements of governmental authority or
by an insurrectional group (if becomes a new government later) would also be considered as
an act of that state (Art 9-10).
- Even in cases where the person responsible for a wrongful act is a private individual or
unknown, the act will be attributable to the state if:
o The person was acting under the authority or control of the state (Art 8);
o The state acknowledged and adopted the act as its own (Art 11);
o Cf the state failed to take appropriate action (omission).
- Attribution by State Control
o In Nicaragua, the question was whether the conduct of the Contras was attributable to
the US.
§ ‘United States participation, even if preponderant or decisive, in the
financing, organising, training, supplying and equipping of the contras, the
selection of its military or paramilitary targets, and the planning of the whole
of its operation, is still sufficient in itself,… For this conduct to give rise to
legal responsibility of the United States, it would in principle have to be

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proved that that State had effective control of the military or paramilitary
operations in the course of which the alleged violations were committed’.
o Bosnian Genocide Case [2007] ICJ Rep 43, para 400
§ Effective control: ‘the State’s instructions were given, in respect of each
operation in which the alleged violations occurred, not generally in respect of
the overall actions taken by the persons or group of persons’.
o Youman’s Claim (1926) 4 RIAA 110 (United States – Mexican General Claims
Commission)
§ Youmans, an American citizen, together with two other American work
colleagues, was killed at the hands of a mob in 1880 in Mexico. Mexican
troops failed to protect, rather fired on the house and killed Youmans.
§ ‘There could be no liability whatever for such misdeeds if the view were
taken that any acts committed by soldiers in contravention of instructions
must always be considered as personal acts’.
§ The Commission made an award that Mexico was to pay to the US
Government a compensation.
o Yeager v Islamic Republic of Iran (1987) 82 ILR 179 (Iran – United States Claims
Tribunal)
§ The actions of the ‘revolutionary guards’ in forcing the expulsion of a US
citizen was attributable to the Iranian Government.
o Union Bridge Company Claim (1924) 6 RIAA 138
§ A British railways official unintentionally appropriated materials for the
construction of a bridge under the mistaken impression the materials
belonged to the enemy.
§ ‘The consignment of material to Bloemfontein was a wrongful interference
with neutral property. It was certainly within the scope of Mr Harrison’s duty
as railway storekeeper to forward material by rail, and he did so under
instructions which fix liability on His Britannic Majesty’s Government’.
§ ‘The liability is not affected by either the fact that he did so under a mistake
as to the character and ownership of the material or that it was a time of
pressure and confusion caused by war, or by the fact, which, on the evidence,
must be admitted, that there was no intention on the part of the British
authorities to appropriate the material in question’.
o A federal State will be bound by the conduct of its constituent part, even if the central
government has no control over the relevant activity: Toonen Case.
- Attribution by adoption
o In Tehran Hostage Case, the first question was: did the approval of the act amount to
the act of adoption?
§ ‘In the view of the Court, however, it would be going too far to interpret such
general declarations of the Ayatollah Khomeini to the people or students of
Iran as amounting to an authorization from the State to undertake the specific
operation of invading and seizing the United States Embassy’.
o In Tehran Hostage Case, the second question was: did the subsequent endorsement of
the situation amount to the act of adoption?
§ ‘‘The policy thus announced by the Ayatollah Khomeini, of maintaining the
occupation of the Embassy [refusal to order to put an end to the situation and
issuing a decree etc]… was complied with by other Iranian authorities and
endorsed by them… The result of that policy was fundamentally to transform
the legal nature of the situation created by the occupation of the Embassy and
the detention of its diplomatic and consular staff as hostages. The approval
given to these facts by the Ayatollah Khomeini and other organs of the
Iranian State, and the decision to perpetuate them, translated continuing
occupation of the Embassy and detention of the hostages into acts of that
State’:
o SR Articles Commentaries, 123

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§ The mere acknowledgement of the factual existence of conduct or expression

of verbal approval of it does not necessarily involve any assumption of
responsibility.
- Omission
o United States Diplomatic and Consular Staff in Tehran (USA v Iran) [1980 ICJ Rep 3
§ ‘The Iranian Government failed altogether to take any ‘appropriate steps’ to
protect the premises, staff and archives of the United States’ mission against
attack by the militants… the failure of the Iranian Government to take such
steps was due to more than mere negligence or lack of appropriate means’.
o Corfu Channel Case (UK v Albania) (Merits) [1949] ICJ Rep 4
§ ‘The laying of the minefield which caused the explosions… could not have
been accomplished without knowledge of the Albanian Government’.

Entitlement to making claim

- The responsibility of a state may not be invoked if:
o (a) The claim is not brought in accordance with any applicable rule relating to the
nationality of claims;
o (b) The claim is one to which the rule of exhaustion of local remedies applies and any
available and effective local remedy has not been exhausted.
- Nationality of claim
o Principle: individuals are not empowered to bring a claim or commence judicial
proceedings against a foreign state on the international law plane. But, sovereign
states can take up the case on behalf of the individual if there is sufficient bond of
nationality between the state and the individual (diplomatic protection).
o Question of nationality = the reserved domain of a state’s jurisdiction: Nationality
Decrees in Tunis and Morocco [1923] PCIJ Rep Ser B No 4.
- Exhaustion of local remedies
o Principle: before a state asserts the right of diplomatic protection on behalf of its
victim national, local remedies must be exhausted by the victim.
o Examples
§ A judicial proceedings pending: Interhandel (Switzerland v US) (Preliminary
Objections) [1959] ICJ Rep 6
§ Failure to call a witness whose evidence is essential: Ambatielos Claim
(Greece v UK) 12 RIASA 83

Circumstances precluding wrongfulness

- Principles
o Provide justification or excuse for non-performance of the obligation (exoneration
from the responsibility).
o The obligation continues and is not terminated.
o Do not excuse breach of peremptory norms (jus cogens) (Art 26).
o Resumption of performance of obligations (Art 27).
- Articles
o Consent (Art 20).
o Self-Defence (Art 21).
o Countermeasures (Art 22; 49-54).
o Force Majeure (Art 23)
§ Cf impossibility of performance (Art 61 of VCLT).
o Distress (Art 24).
o Necessity (Art 25).
- Cases
o Gabcikovo Nagymaros Project [1997] ICJ Rep 7
§ Necessity: ‘According to the Commission, the state of necessity can only be
invoked under certain study defined conditions which must be cumulatively

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