complete summary from "Textbook on International Law" Dixon M., Sintesi del corso di Diritto Internazionale Pubblico

Scarica complete summary from "Textbook on International Law" Dixon M. e più Sintesi del corso in PDF di Diritto Internazionale Pubblico solo su Docsity! CHAPTER 1: THE NATURE OF INTERNATIONAL LAW For as long as it has existed, international law has been derided or disregarded by many jurists and legal commentators, not always because of their own ideology or the political imperatives of the states of which they are nationals. They have questioned, first, the existence of any set of rules governing inter-state relations; second, its entitlement to be called ‘law’; and, third, its effectiveness in controlling states and other international actors in ‘real life’ situations. Some argue that the perception has been that international law is failing in one of its primary purposes – the maintenance of an ordered community where the weak are protected from arbitrary action by the strong. These critics come from the scarcity of legal content and the content itself that should be less prescriptive and more permissive. Arguing that international law is an actual legal system, one of the major claims is related to the failure that the international law represents, but it does not necessarily follow that international law should be dismissed as a system of law because there are international actors that seem determined to ignore it. Since international law sometimes falls short of these ‘standards’, it is argued that it cannot be regarded as ‘true’ law. International law, at least as originally conceived, is different than the national one. It is concerned with the rights and duties of the states themselves. States are legal equals and there’s no relation of superiority and the legal system which regulates their actions between themselves must reflect this. Such a legal system must facilitate the interaction of these legal equals rather than control or compel them in a poor imitation of the control and compulsion that national law exerts over its subjects. Of course, as international law develops and matures it may come to encompass the legal relations of non- state entities, such as ‘peoples’, territories, international organisations (governmental and non- governmental), individuals or multinational companies, and it must then develop institutions and procedures which imitate in part the functions of the institutions of national legal systems. - International law comprises a system of rules and principles that govern the international relations between sovereign states and other institutional subjects of international law such as the United Nations, the Arab League and the African Union. Rules of international law cover almost every facet of inter-state and international activity. - International law is the vital mechanism without which an interdependent world could not function. In this sense, international law facilitates the functioning of the international community, of which we are all a part and on which we all depend. - Modern international law also seeks to control states by inhibiting or directing their conduct both in their relations with other states (e.g. the law prohibiting the use of armed force to settle disputes) and in relation to individuals, both individuals of other states (e.g. issues concerning the exercise of criminal jurisdiction) and its own nationals It is also important to realise that the practice of international law is intrinsically bound up with diplomacy, politics and the conduct of foreign relations. The existence of international rules as a system of law The most cogent argument for the existence of international law as a system of law is that members of the international community recognise that there exists a body of rules binding upon them as law. States believe international law exists. How then do we know that states believe that there is a set of rules binding on them as law? What evidence is there of this ‘law habit’? 1. International law is practised on a daily basis in the Foreign Offices, national courts and other governmental organs of states, as well as in international organisations such as the United Nations and the Organisation of American States. 2. It is a fact of the utmost significance that states – still the most important of the subjects of international law – do not claim that they are above the law or that international law does not bind them. This is powerful evidence that states follow rules of international law as a matter of obligation, not simply as a matter of choice or morality. If this were not so, there would be no need for states to justify their action in legal terms when they departed from a legal norm. 3. Further convincing evidence of the existence of international law is that the overwhelming majority of international legal rules are consistently obeyed. There are of course some failures as the genocide of Kurds but they’re not representative of the whole. 4. It is a function of all legal systems to resolve disputed questions of fact and law. International law has to do this and, because it has only a limited number of developed legal institutions, it sometimes fails. That, however, is no reason to doubt its validity as a system of law. The potential for widespread harm beyond those engaging in the unlawful activity is something which national law does not have to deal with. With such a reality, it may be that the best way to regulate state conduct is to proceed on the basis of a system of law that is voluntarily accepted and voluntarily enforced. This does not mean that international law forfeits the right to be called law – because it still obliges states to do certain things. It means, rather, that it is not the same kind of law as national law. The enforcement of international law Many jurists claim that the hallmark of a system of law is that its rules are capable of being enforced against malefactors. Consequently, one of the most frequent arguments used against international law is that it is not ‘true’ law because it is not generally enforceable. This raises two issues. First, as a matter of principle, does the existence of any system of law depend on the chances of effective enforcement? Secondly, is it true that international law is not enforceable or effective? In international law the fact that rules come into being in the manner accepted and recognised by states as authoritative (see the ‘sources of law’ in Chapter 2) is enough to ensure that ‘law’ exists. If international law is regarded as a system of ‘law’, it is axiomatic that all states are under a legal obligation to abide by its rules, in fact there’s a list of procedures to guarantee the enforcement. 1. The Security Council Most legal systems provide for the use of forceful sanctions or penalties against malefactors. Under the Charter of the United Nations, the Security Council may take ‘enforcement action’ against a state when it poses a threat to the peace, or has committed an act of aggression or breach of the peace (Art. 39 and Chapter VII UN Charter). Enforcement action is authorised by resolution of the Council and may comprise - military action - economic sanctions - other kind: political, diplomatic, social The security has political and legal limitations, and its powers are exercised in response to a breach of the peace, threat to the peace or act of aggression and they are not specifically intended to meet the non-fulfilment of general legal obligations. Constitutionally, the powers of the Council are designed primarily to preserve the peace rather than to enforce the law. 2. Loss of legal rights and privileges Another method of enforcing legal obligations is to ensure that any violation of law results in the loss of corresponding legal rights and privileges. For example, if State A violates the terms of a commercial treaty with State B, the latter may be entitled to rescind the whole treaty or suspend performance of the obligations it owes to State A. In almost complete contrast to the consensual approach is the theory of international law based on natural law doctrines or ‘the law of nature’. This presupposes an ideal system of law, founded on the nature of man as a reasonable being. Thus, rules of law are derived from the dictates of nature as a matter of human reason. International law is said to derive its binding force from the application of ‘the law of nature’ to the methods of law creation used by states. Natural law can be contrasted with positive (consensual) law, the latter being based on the actual practice of states while the former is based on objectively correct moral principles. ‘natural law’ may be a good descriptive label for such concepts as equity, justice and reasonableness which have been incorporated in substantive rules of law, such as those dealing with the continental shelf, human rights, war crimes and rules of jus cogens. 4. Ubi societas, ibi jus It may be that the juridical origin of international law lies in practical necessity. It can be argued that ‘law’ is the hallmark of any political community which exists for the common good. Law is necessary for the society to function and, because it is necessary, it is ex hypothesi binding. Therefore, because international society is a community of interacting and interdependent states, it also needs rules governing its life. These are the rules of international law which provide a set of stable, orderly and predictable principles by which the society can operate. CHAPTER 2: THE SOURCES OF INTERNATIONAL LAW Every legal system must have reasonable clear sources of law, that are law creating and law identifying. The starting point to define which are the sources of international law is the art.38 of the Statute of the International Court of Justice. The Court, whose function is to decide in accordance with international law such disputes as are submitted to it, shall apply, (1) (a) international conventions, whether general or particular, establishing rules expressly recognised by the contesting States; (b) international custom, as evidence of a general practice accepted as law; (c) the general principles of law recognised by civilised 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 a subsidiary means for the determination of rules of law. (2) This provision shall not prejudice the power of the Court to decide a case ex aequo et bono, if the parties agree thereto. (vuol dire secondo equità, ovverosia che l'organo giudicante ha la possibilità di disapplicare le norme esistenti e decidere in base alla sua coscienza) This doesn’t provide a list of the matters that the Court considers when determining the rights and the duties of the states. Moreover, it doesn’t involve a hierarchy of sources. The focus is on States, but it is given importance also to non-state actors, and the sources are not completely well-provided. In a broader discussion we’d say that the ICJ is reluctant to accept that certain sources of law or types of obligation are excluded from its determination of a dispute concerning international law – Case Concerning Oil Platforms (Islamic Republic of Iran v United States of America) (2003) – and it is likely that such an exclusion would have to be clearly and unequivocally expressed before it was accepted. Formal and Material sources Procedures and methods by which rules become legally binding are sources of law. There are two kinds of sources: 1. Formal, a process by which a legal rule come into existence (custom). Its function is to create the law, it’s law creating. In international law, ‘custom’ is a formal source of law as it is one way legal rules can be created. 2.Material, the substance and content of legal obligations, its function is to identify the substance of obligations which later become law. State practice, the practice of international organisations, the practice of non-state actors, judicial decisions, the writings of jurists and General Assembly resolutions are all material sources for they indicate what a state’s obligations actually are, rather than the method by which those obligations became legally binding. Material and evidentiary law sources 1. Material: describes solely the function it performs 2. Evidentiary: is the content of legal obligations that bind states. Evidentiary sources of international law, such as state activity, diplomatic memoranda, statements of government representatives in international organisations and the actual text of treaties, tell us the precise content of the legal obligations which bind states. In a sense, evidentiary sources are the most important ‘sources’ of international law for they tell us exactly what a state or other international legal person can or cannot do. Nevertheless, there’s nothing profund in the distinction between the two. a. INTERNATIONAL TREATIES (CONVENTIONS) - Are the only way through which States create international law consciously. - They can either be bilateral and multilateral - It’s really difficult to change a treaty after it’s created - Only contractive states can ask to respect a performance according to the Treaty, but the situation is different in multilateral treaties - Treaties can modify and both be involved in custom. - They are formed after long negotiations - It is a bargain between legal equals - International treaties are the most important source of law - They are usually respected by both parties - They are voluntary, no state can be bound to a treaty without specific consent. - Once a state has signified its consent to a treaty, it is bound by its terms vis- à-vis all other parties to that treaty. A state is not bound by a treaty to which it is a party in its relations with a state which is not a party to that treaty. - When a treaty codifies existing customary law, the substance of the obligations may be binding on all states, because (i) those states that are parties to the treaty are bound by the treaty in the normal way (rule II); and (ii) states that are not parties to the treaty cannot be said to be bound by it (rule I), but because the treaty codifies existing customary law, these states are bound by the same obligations as expressed in the treaty, only this time because they are rooted in customary law. - Many multilateral Treaties are a mix of progress development and codification of law. LAW OR OBLIGATIONS: The fact that only parties to treaties are bound by them has given rise to a debate about whether treaties create law or whether they impose obligations which ‘the law’ says must be carried out. The debate is often expressed in terms of a distinction between ‘contract treaties’ and ‘law-making treaties’. But since the Treaty binds all its parts that give consent to it, rather, the issue is whether all treaties are ‘contracts’ and impose obligations, or all treaties are ‘law-making’ and create international law.  As contracts As national contracts create specific obligations which ‘the law’ says must be fulfilled, so international treaties create specific obligations which international law says must be fulfilled. Furthermore, the ‘law’ which requires treaties to be obeyed is itself a rule of customary international law and is expressed by the maxim pacta sunt servanda. Consequently, according to this view the only ‘law’ involved in a treaty is the customary law that says that states must fulfil their treaty obligations. All of the specific matters detailed in the treaty are not law, but legal obligations. Treaties are a material source of law.  As a source of law The reason why treaties are described as a source of obligation rather than as a source of law is in an attempt to explain why treaties are binding. Allegedly, the answer is that ‘customary law says they are’. Yet, even if this is true, this is not a complete or convincing answer. In practice, a ‘treaty contract’ or bilateral treaty will terminate either when the particular object for which it was entered into has been achieved or if other unforeseen circumstances intervene. A ‘law-making’ or multilateral treaty, on the other hand, may be intended to endure and lay down rules for the conduct of states for the indefinite future. It might give rise to general customary law for all states In other words, the distinction between the various types of treaty is not one of legal effect but one of purpose and aim, and this is the only reason why we might like to describe some treaties as contracts and some as law-making. b. CUSTOM A great part of the rules that govern the states comes from here. Custom is an ongoing process, since it helps to the law to develop in line with the time. The elements of customary law prove that it evolved from the practice of States, and elements of it derive from decisions at the court. - State practice: actual activity, statements, national legislation, international organisations’ practice. Consistency of practice: constant uniformed law, “settled practice”. The behaviour of a state has to be consistent and substantial. Generality of practice: to be uniform must be general, which means significant to a certain number of states.  Some states are directly affected by a law and their practice is more relevant, their practice is given more weight  Initial and sustained objection will prevent a state being bound by a customary rule. This is where the “PERSISENT OBJECTOR” plays a role. If a state objects from the beginning to the insertion of an international custom it can be excluded from it, but if this state gives up, then it has to respect it (ex.: nautical miles).  Local custom is encompassed as well as general custom is. Local customary law may exist where a practice has developed between two or more states, both or all of whom recognise the practice as binding. Duration of practice: there isn’t a pre-designed time guideline. We can think about it when we talk about Crimea. - Opinio iuris: it is the belief of a State that a certain behaviour is a law. The problem related to this concept is that if all the States don’t consider it as a law, then it’s not. There’s also the need to prove a certain manifestation of this belief or behaviour. But the frequency isn’t a sufficient requirement to establish it, and many different levels of opinion iuris might be recognised by the court. How does customary law changes? It’s rare for the rules to be abandoned or changed in “prima facie”. If so, opinio iuris has a “pivotal role”. 1. If I agree to the violation of a customary law, then after I don’t have the right to put myself against it. 2. It is difficult to prove that a certain rule of IUS COGENS it has been changed from the contrary practice of a State. The relationship between customary and Treaty law A second, less helpful, use of the term ‘soft law’ is as a description of those values, guidelines, ideas and proposals that may develop into rules of international law but have not yet done so. This is not really law at all, soft or otherwise, but is another name for principles de lege ferenda, or principles which could become normative in the future. CHAPTER 3: THE LAW OF TREATIES Treaties are one of the most important – if not the most important – sources of international law. They are the only way in which states may create binding legal obligations in a deliberate and conscious manner. The law of treaties is the name given to that body of international law which deals with the procedural and substantive rules governing the use of treaties as a source of international law. Although the analogy is far from perfect, the law of treaties is similar to those rules of national law which lay down the requirements for the creation and operation of contracts or trusts. The law of treaties covers a wide variety of matters. There are rules dealing with entry into force, termination, interpretation, reservations (being exceptions to specific obligations in a treaty) and the relationship of treaty law to custom. In reality, however, the treaty is the vehicle through which much of the business of international law is conducted and it is in the interests of every state that there should exist a comprehensive, certain and stable legal code regulating their operation. This need for certainty and clarity is the primary reason why the International Law Commission has made great efforts to produce a code of treaty law that itself can be formalised in a multilateral treaty. Thus, much of the law of treaties is itself to be found in treaty form, supported by custom. What is a treaty - Generally, a ‘treaty’ can be regarded as a legally binding agreement deliberately created by, and between, two or more subjects of international law who are recognised as having treaty-making capacity. - A treaty is an instrument governed by international law and, once it enters into force, the parties thereto have legally binding obligations in international law. In this sense, a treaty creates rights and obligations distinct from those arising under the national law of any state. - Obviously, the great majority of treaties will be made between states, but there are many examples of other international persons – such as international organisations – entering into treaty arrangements either with states or with each other. - Treaties are, then, legally binding agreements, governed by international law, made between those international legal persons recognised as having treaty-making capacity. - There are no obligatory formal requirements which must be satisfied before a ‘treaty’ can come into existence, although the Vienna Convention on the Law of Treaties 1969 applies only to treaties in written form (see Art. 2 VC 1969). Under general international law, treaties can be oral, in a single written instrument or in several written instruments. Similarly, a treaty may arise from the deliberations of an international conference, from direct bilateral negotiations or informal governmental discussions, from an ‘exchange of notes’ or an ‘exchange of letters’ or any other means which the parties choose. - In order to create a valid and binding agreement, the parties to the treaty need not provide each other with a counter-promise or benefit. A treaty can create obligations or rights for one party only. Acts lacking an intention to create legal relations It is obvious that states and other subjects of international law will interact on the international plane in a variety of situations. Not all of these activities, whether they result in ‘agreements’ or not, can be regarded as giving rise to ‘treaties’. For a treaty to come into existence, it is clear that the parties must have intended to create rights or duties binding under international law, judged objectively. This is a vital precondition to the formation of treaties, bearing in mind that international law does not stipulate any set form for their creation. Other ‘non-treaty’ circumstances giving rise to legally binding obligations The following examples illustrate how states may assume obligations in international law in circumstances that can easily be confused with the creation of a treaty, but which in reality involve legally distinct situations. 1. Declarations under Article 36(2) of the Statute of the ICJ As will be seen, the consensual bond created by deposit of declarations has full legal effect and creates legally binding obligations between all states making such declarations, irrespective of the sequence in which they are made. These obiter dicta in the Nicaragua Case seem to suggest that declarations under the optional system are to be regarded as treaties in international law, or at least as ‘treaty-like’. That, however, ignores the fact that such declarations are unilateral acts, unlike treaties which are bilateral or multilateral. Moreover, if the essence of a treaty is that it is a legally binding instrument, created between two subjects of international law, then clearly these unilateral and voluntary obligations cannot be included. In the final analysis, a binding treaty is essentially compulsory, in that an unlawful termination may give rise to liability to another state. A binding declaration remains voluntary in the sense that it can be unilaterally terminated according to its terms without international responsibility, irrespective of the wishes of any other state. 2. Unilateral statements One question of some importance in international law is whether the unilateral pronouncements of a state can result in binding international obligations. Court confirmed that unilateral statements of states can become legally binding in appropriate circumstances. If it is the intention of the state when making a unilateral declaration that it should become binding, this is enough to confer upon it the character of a legal obligation. 3. Legally binding acts in national law Not all legally binding agreements entered into by states (or other international legal persons) can be regarded as treaties. States usually are competent to act as legal persons in the national law of other countries and they may enter into a variety of legal relationships that have nothing to do with international law. 4. Acts giving rise to customary law It is clear from the earlier discussion that states may engage in a variety of activities which do not actually create legally binding obligations at international law, let alone amount to a treaty. 5. Formal Acts of international organisations In special cases, a formal act or decision of an international organisation may give rise to binding international law for the persons to whom the act or decision is addressed. The Vienna Convention on the Law of Treaties 1969 The work undertaken by the International Law Commission that led to the adoption of The Vienna Convention on the Law of Treaties 1969 is one of the Commission’s most important contributions to the development of international law. The Convention was adopted by the Vienna Conference in 1969, but it did not enter into force until January 1980. This is perhaps surprising given the importance of the law of treaties in international law, but it does reflect the fact that this Convention is quite comprehensive in scope and that it deals with a number of controversial issues. A number of the provisions of the Convention are deliberately open-ended and flexible and may give way to different rules where such are expressed in the treaty to which the Convention is said to apply. On the whole the Convention is to be warmly welcomed as a reasonably successful attempt to clarify an area of international law that is vital to the operation of the entire legal system. Definitions and exclusions The Vienna Convention does not apply to all international treaties. It is made clear in Arts 1 and 2 that the Convention applies only to treaties between states and only to treaties ‘in written form... governed by international law’. This last exclusion (‘governed by international law’) is largely superfluous for, as discussed previously, a legal instrument cannot properly be regarded as a ‘treaty’ in the first place unless it operates under international law. However, treaties between states and other international persons, or between those persons alone, are excluded from the scope of this Convention, as are oral treaties. As with all treaties, the Vienna Convention only regulates the legal relations of those states that are parties to it. In this sense, the law of treaties as spelt out in the Vienna Convention applies only to the legal relations between states under a treaty concluded after the Convention came into force and where those states are also parties to the Convention. (a) The Convention itself preserves the operation of customary international law. (b) There are clearly certain areas of the Convention which were intended to be a codification of existing customary international law or which have now achieved that status. (c) Sir Ian Sinclair also identifies a number of Convention Articles that the International Law Commission regarded as matters for progressive development rather than codification. Authority to conclude treaties It is a matter for the national law of each state to decide which government official or entity is competent to enter in to international treaties on its behalf. The scope of legal obligation The Vienna Convention deals quite comprehensively with the scope of the legal obligation that a state accepts when it expresses its consent to be bound by a treaty and that treaty has entered into force. Again, these matters are essentially procedural in that they tell us how the substance of the treaty obligation is to be applied in a particular case. However, there are some rules having more substantive effect, as with the doctrine of jus cogens. The customary rule ‘Every treaty in force is binding in good faith upon the parties to it and must be performed by them in good faith’. This is the rule pacta sunt servanda, which expresses the essential binding quality of treaties and without which it would be impossible to operate a system of treaty law. The rule itself is also a rule of customary law. Reservations In the negotiations leading to a bilateral treaty, the two participating states may disagree over the precise terms of the treaty that is to bind them. If this is the case, they may renegotiate the treaty in order to reach a compromise or abandon the attempt altogether. In multilateral treaties, however, it is too much to expect that all the negotiating states will agree on every provision and it is unlikely that all differences can be resolved through changes of emphasis or substance in the proposed draft. Therefore, international law recognises that states may be able to become parties to treaties without accepting all the provisions thereof. This is achieved by means of ‘reservations’ to the treaty, and their validity and effect are dealt with at some length in the Vienna Convention. Importantly, so-called ‘interpretative declarations’, whereby a state makes a declaration concerning some aspect of the treaty at the time of its signature etc., are not reservations for the purposes of the Convention. The Convention provides as follows: (a) Under Art. 19, a state has liberty to make reservations to a multilateral treaty unless all reservations are prohibited, or the specific attempted reservation is prohibited, or the specific attempted reservation is incompatible with the object and purpose of the treaty. (b) Under Art. 20(1), a reservation expressly authorised by the treaty does not require acceptance by any other party (unless otherwise provided). The reserving state is a party to the treaty and its obligations are modified according to the terms of the reservation in its relations with all other parties. 1. Monism The monist theory supposes that international law and national law are simply two components of a single body of knowledge called ‘law’. ‘Law’ is seen as a single entity of which the ‘national’ and ‘international’ versions are merely particular manifestations. Thus, both sets of rules operate in the same sphere of influence and are concerned with the same subject matter. Moreover, because they operate concurrently over the same subject matter, there may be a conflict between the two systems: international law may require one result and the provisions of national law another. If this happens in a concrete case, international law is said to prevail. As an example, if the international law of human rights stipulates that no person may be imprisoned without trial, under the monist theory a national court would be obliged (rather than have a choice whether) to give effect to this even though a clear rule of national law said otherwise. International law is said to control or override national law because the latter cannot be trusted to protect individuals and, more often than not, because it is used to persecute them. 2. Dualism Dualism denies that international law and national law operate in the same sphere, although it does accept that they deal with the same subject matter. For dualists, international law regulates the relations between states whereas national law regulates the rights and obligations of individuals within states. International law deals with that subject matter on the international plane whereas national law deals with the subject matter internally. Consequently, if an individual is denied a right in a national court which is guaranteed under international law, the national court will apply the national law. Likewise, action by a state that might be unlawful under international law may nevertheless attract validity and protection in national law if there is a clear rule of national law to that effect – for example, in the UK, Jones v Saudi Arabia permits state immunity for alleged acts of torture, even though torture is unlawful under international law. The effect of such a doctrine is that a government may be behaving perfectly lawfully within its own territory, even though it is behaving unlawfully under international law and may incur international responsibility. National law before international courts and tribunals In this section, we shall examine the circumstances in which national law may be an issue before international courts and tribunals. National law and international obligations It is clear that a state cannot plead the provisions of its national law as a valid reason for violating international law. In essence, then, when a binding international obligation exists for a state, it must fulfil that obligation irrespective of whether its national law permits it to do so or forbids it from doing so. Indeed, this logic is at the heart of human rights obligations for the very point is that international human rights standards may engage responsibility for a state precisely because its national law permits it to do, or not to do, something which then contravenes an internationally protected human right. If a change in national law is required in order that a state may fulfil its international obligations, then the state is under an international duty to make that change or otherwise mitigate its international responsibility. If, however, a state does not make the necessary changes in its domestic law, it does not incur international responsibility simply because it has failed to bring its national law ‘into line’ with its international obligations. International responsibility arises only when the state fails, in a concrete case, to fulfil its international obligations. National law may give more rights to an individual than international law permits, again engaging the state in international responsibility if the state then permits the enforcement of those rights. Defining concepts for use in international law Although an international tribunal will normally be required to settle a dispute between two states according to international law, it may be able to do so only by reference to concepts defined in the national law of either party. For example, if an international court is asked to determine whether State A had jurisdiction over a crime committed in State B, it may be essential to know whether the alleged offender or victim was a ‘national’ of State A. Nationality is something determined by national law ‘it is for every sovereign state, to settle by its own legislation the rules relating to acquisition of nationality’. That does not mean, of course, that the proven fact of nationality will have the desired effect on the international plane (as in the Nottebohm Case), but it is for national law to decide who may be ‘a national’. Evidence before international tribunals It is clear also that national law may serve as evidence of ‘facts’ before international tribunals. So, the extent of a state’s claim of maritime jurisdiction may be evidenced by its national law, or national law may be evidence that a state has accepted the applicability of international law to a given state of affairs. National law as a basis for a tribunal’s decision It is not impossible for an international tribunal to be given jurisdiction to decide a dispute solely or primarily on the basis of national law, but it is really rare. Theories about international law in the national legal system: incorporation, transformation and implementation In theoretical terms, the use of international law in national courts is often explained in terms of the doctrines of incorporation and transformation. Under the doctrine of incorporation, a rule of international law becomes part of national law without the need for express adoption by the local courts or legislature. The rule of international law is incorporated in national law simply because it is a rule of international law. This ‘automatic’ adoption is said to operate unless there is some clear provision of national law, such as a statute or judicial decision, which precludes the use of the international law rule by the national court. Consequently, once it is established that an international law rule exists and would be relevant to the case in hand, under the doctrine of incorporation it is, without more, part of national law and may be applied by the national court. The doctrine of transformation, on the other hand, stipulates that rules of international law do not become part of national law until they have been expressly adopted by the State. International law is not ipso facto part of national law. Therefore, a national court cannot apply a particular rule of international law until that particular rule has been deliberately ‘transformed’ into national law in the appropriate manner, as by legislation. Consequently, international law and national law are kept separate by the state and it is only if the state has taken the conscious step of utilising rules of international law that the rules so chosen can be said to be ‘part of’ national law. For example, if a state follows the transformation doctrine, then international rules on diplomatic privileges do not operate in favour of the diplomat until legislation has been passed authorising national courts to give effect to such privileges. Until that point, the diplomat is subject to the jurisdiction of the national court irrespective of what international law says. As we shall see, this appears to be the position in the UK in respect of international law derived from treaties. In essence, then, the difference between incorporation and transformation is that the former adopts international law into national law just because it is international law, whereas the latter requires a deliberate act on the part of the state concerned. The theories of incorporation and transformation are an attempt to rationalise how international law is used within a national legal system. As we shall see subsequently, the UK appears to adopt incorporation for customary international law but appears to prefer transformation for treaty law. It must be remembered, however, that these are theories. In practice, a state may adopt a variety of approaches to using rules of international law within its legal system that do not fit neatly into these two categories. Consequently, a purely pragmatic approach is to think in terms of implementation: how does the national court implement rules of international law that have a bearing on the subject matter of a dispute? This empirical approach may well reveal an uneven pattern in the application of international law that does not turn on the origin of the international rule (i.e. not whether the rule originates in custom or treaty) but on its subject matter or likely impact on the local legal system (see section 4.4.5). Moreover, it may well reveal that both incorporation and transformation are too absolute in their result. National court applying for international law It is perfectly possible for UK courts to be authorised by UK statute to apply international law directly to cases coming before them. Indeed, it may be that the better view of this case is that the delegated legislation then under consideration did not represent a statement of law binding on the court but was merely evidence of particular facts, which the court chose to disregard in the light of stronger contrary evidence. A more interesting example of UK courts applying (and enforcing) international law is to be found in the recent War Crimes Act 1991. This domestic statute makes it possible for a person who is now a British citizen or who is now resident in the UK to be tried for murder and related crimes in respect of violations of the laws and customs of war committed during World War II. This could be regarded simply as an example of the creation of a new offence under national law, but in reality it is the UK giving its courts jurisdiction over matters which are offences under international law. A third example of this type of interaction between national and international law is provided by the Pinochet cases. Here, the UK court was authorised by statute to apply international legal concepts. In the particular example, the UK court was concerned with the meaning and scope of the international crime of torture. Of course, this has long been a crime under national law, but traditionally national courts could only exercise their jurisdiction when the torture was committed in the UK or perhaps by a UK national abroad. In seeking to determine whether Senator Pinochet was liable for extradition, the court was required to divine the meaning of ‘torture’ as prohibited by international law, because the UK court effectively was exercising an international jurisdiction by virtue of its responsibilities under the Torture Convention. Such cases are, indeed, likely to increase as the reach of international law encompasses more and more of what goes on inside a state rather than what goes on between them. A final example of how national courts might take direct notice of rules of international law arises in the UK law of evidence. Executive certificates and ministerial discretion Certificates It is a feature of the UK legal system that certain questions of fact or mixed law and fact which arise before national courts can be determined on the basis of a certifi- cate issued by the government. Such matters usually concern areas of international law and international relations in respect of which the Executive has peculiar competence or knowledge. Discretionary action on the basis of international law It is another feature of domestic legislation that certain discretionary powers may be exercised only in a manner consistent with international law, especially where the discretion is connected with a treaty obligation. Discretionary action on the basis of international law. It is another feature of domestic legislation that certain discretionary powers may be exercised only in a manner consistent with international law, especially where the discretion is connected with a treaty obligation. CHAPTER 5: PERSONALITY, STATEHOOD AND RECOGNITION Much has been said already of the fact that international law is concerned primarily with the rights and duties of states and there is no doubt that states are the major legal persons (or ‘subjects’) of international law. However, since the inception of the United Nations, international law increasingly has become concerned with the rights and duties of non-state actors in the international arena and these other subjects now play a significant role in international relations and have a measurable impact on the development and application of international law. They include international organisations (e.g. the UN itself), ethnic groups within and across national boundaries (e.g. the Kurds), a people within a territory have not satisfied in full the objective criteria of the Montevideo Convention, or have achieved them through unlawful means, they may still acquire statehood in international law because the formal defect or the violation of international law is ‘waived’ by the community at large. Effectiveness, that is the ability to operate as a state may, in certain circumstances, take priority over formal legality. g. Extinction of statehood: Lastly, one must note the near practical impossibility of an involuntary loss of statehood. If an entity ceases to possess any of the qualities of statehood examined earlier, this does not mean that it ceases to be a state under international law. For example, the absence of an effective government in Syria in 2012 during the period of civil unrest did not mean that there were no such state, and the same is true of Somalia where there still appears to be no entity governing the country effectively. Likewise, if a state is allegedly ‘extinguished’ through the illegal action of another state, it will remain a state in international law. 2. INTERNATIONAL ORGANISATIONS They are concerned with a wide variety of matters of international import, ranging from the maintenance of international peace and security, to effective management of maritime affairs, to the regulation of international communications and to international cooperation in matters of civil and criminal justice. Their way of having international personality involves the capacity to bring claims, to conclude international agreements and to enjoy privileges and immunities from national jurisdictions. UN, European communities and other organisations have international personality. As is to say, that isn’t a ‘general competence’: it is not a personality for all purposes. As a form of derived personality, the ‘constitution’ of the organisation (usually a treaty) will set out explicitly some of the attributes of international personality that the organisation is to enjoy. This may include, for example, the power to make treaties, to bring claims, etc. In addition, however, it is now settled law that an international organisation will enjoy implied powers, being that degree of international competence that is required to enable it to achieve its purposes even if these are not explicitly stated in the constituent treaty. 3. INDIVIDUALS The clearest example of the personality of individuals in modern international law is the responsibility that each individual bears for war crimes (acts contrary to the law of war), crimes against the peace (planning illegal war etc.) and crimes against humanity (genocide etc.). These are matters for which the individual is responsible personally under international law, irrespective of the laws of his own country and has become know as international criminal law. Thus an individual may be tried according to that law by an international court, as with the Nuremberg and Tokyo War Crimes Tribunals and their modern equivalents. - In fact, as well as these modern manifestations of the personality of individuals, it has long been true that certain other criminal acts can give rise to international personality and responsibility because of the destructive effect they have on the international order. - In addition to the imposition of duties and responsibilities on individuals, international law also grants personality in the form of rights. The most obvious is the ever expanding law of human rights. 4. CORPORATIONS In the course of their commercial activities, states will deal not only with each other but with companies and trading concerns from around the world. Normally, their legal relations with such bodies will be governed by national law and the state will be in the same position as any other litigant acting in the domestic courts. In other words, just because a state chooses to act with a non-state body does not confer any degree of international personality on the latter. International personality exists only when relationships are governed by international law. there are circumstances in which the contractual relationship between a state and a corporation will be governed by international law. For example, a concession agreement for the extraction of oil might be an ‘internationalised’ contract subject to rules of international law or states may have agreed that certain types of dispute with companies be settled by an international panel of judges applying international rules. 5. OTHER TERRITORIAL IDENTITIES The relative nature of international personality, whereby a ‘subject’ may have certain rights and duties for certain purposes, means that states are not the only territorial entities that can be regarded as subjects of international law. a. Treaty creations There have been several examples of the creation by international treaty of artificial territorial entities having international personality. Former examples include the cities of Danzig, Berlin and Vienna. Such territories may be granted limited international personality by the states who would otherwise be entitled to exercise sovereign authority and they may have some or all of the capacities of ‘a state’ in international law. The nature and extent of their personality will depend on the terms of the treaty by which they were created. b. is possible that two states might agree to administer jointly a territory through an autonomous local administration. This local body could be granted limited capacities in international law to act on behalf of the territory. c. Territories per se Several territories that enjoy some measure of international personality, such as protectorates. 6. MISCELLANEOUS R ecognition In international society, historically it has been the practice for one state to recognise formally the existence of another state or government. As far as recognition of states is concerned, this may be because a former colonial territory has gained independence, as with many countries of the Commonwealth, or because part of an existing state has gained its independence from the federal authorities, as with the former constituent republics of the Soviet Union and Yugoslavia, or because a former disputed territory has achieved independence through self-determination. Similarly, recognition of a government may be necessary when a new administration comes to power unconstitutionally or a civil war gives rise to competing administrations. Recognition may be either de jure (as of right) or de facto (accepting the fact of). The latter implies that there may have been something unlawful in the manner of creation of the new state or government but that its effective existence demands that it be treated as an international person. It can take various forms, either with a letter, either with an announcement or a statement, but it’s basically a political act even though is based on legal criteria. Legal effects of recognition in international law As far as their relations inter se are concerned, the fact that State A has recognised State B means that each accepts the other as entitled to exercise all the capacities of statehood in international law. Again, if State A has recognised a new government in State B, this means that it will treat the latter as entitled to represent that state in international law. Between two states, then, recognition is a necessary precondition to full optional bilateral relations, such as diplomatic representation and treaty agreements. Conversely, the lack of diplomatic relations between two states need not say anything about recognition. there is a debate as to the effects of recognition on the legal status of the body being recognised. Essentially, this has resolved itself into two theories: the declaratory theory and the constitutive theory of recognition. DECLARATORY THEORY The general legal effects of recognition are limited. When an existing state ‘recognises’ a new state, this is said to be nothing more than an acknowledgment of pre-existing legal capacity. The act of recognition is not decisive of the new entity’s claim to statehood, because that status is conferred by operation of international law. The international legal personality of a state does not depend on its recognition as such by other states. It is conferred by rules of international law and, whether or not a state or government is actually recognised by other states, it is still entitled to the rights and subject to the general duties of the system. In general, this theory accords with significant, though not uniform, international practice. CONSTITUTIVE THEORY The constitutive theory denies that international personality is conferred by operation of international law. On the contrary, the act of recognition is seen as a necessary precondition to the existence of the capacities of statehood or government. So, under this theory, if Taiwan is not recognised as a state, it is not a state; The practical effect of the constitutive theory is that if a ‘state’ or ‘government’ is not recognised by the international community, it cannot have international personality. The main strength of the constitutive theory is that it highlights the practical point that states are under no obligation to enter into bilateral relations with any other body or entity. But this theory raises problems of various kind. First, there is no doubt that recognition is a political act, governed only in part by legal principle. For example, the USA did not recognise the Soviet government until 1933, even though it had been effective within the state for at least ten years. Secondly, we must ask ourselves whether it is consistent with the operation of any system of law that legal personality under it should depend on the subjective assessment of third parties. Recognition of states and governments in national law There is a very real distinction between the effects of recognition in international law and its effects in national law. In international law, State A may have no choice other than to accept the fact of existence of State B, but national law is a different legal system. Whether the executive, administrative or judicial authorities of State A pay any regard to the acts of State B (or its government) on the national plane may depend entirely on whether it has been formally recognised. In practice, the legal effects or consequences of recognition in national law depend on the laws of each state. CHAPTER 6: JURISDICTION AND SOVEREIGNTY The concept of ‘jurisdiction’ in international law can cover a multitude of sins. In this chapter, we shall examine the nature and extent of a state’s authority over territory, persons and aircraft. General principles of jurisdiction From Lotus case we have two important statements  “first and foremost, restriction imposed by international law upon a state is that failing the existence of a permissive rule to the contrary- it may not exercise its power in any form in the territory of another state” In other words, unless it is expressly permitted, State A may not exercise jurisdiction in the territory of State B. But this did not mean that a state was barred from exercising jurisdiction in its own territory in respect of any acts that took place abroad. It appears from the Lotus Case,  1. limited matters under which this jurisdiction might arise (not a major reason to claim jurisdiction regarding the significance of the other 4 heads of jurisdiction)  2. national carries the protection of his state and all persons subject or litigation that came into contact with the suspect fall under the jurisdiction of the state the suspect belongs to not very likely to be applicable due to the increasing importance of the other 4 heads of jurisdiction, therefore a state will incur international responsibility if it proceeds to exercise an enforcement jurisdiction. The exercise of jurisdiction over persons apprehended in violation of international law. Although the 4 heads of jurisdiction stipulate the jurisdiction of state holding custody and a state demanding custody is not legitimized to apprehend a person without the consent of the custody holding state, there are various cases (Eichmann Case) where suspects were apprehended without consent violating international law. The acquisition of sovereignty of territory Sovereignty is the most extensive form of jurisdiction under international law. The exercise of effective control: occupation and prescription: - control of territory and the peaceful and effective exercise of the functions of a state  1. territory that does not belong to any other state (terra nullius) and acquisition achieved by occupation  2. acquisition of a territory that belongs to a state and is achieved due to prescription  conditions for prescription 1. the possession had to exercise in the character of a sovereign, 2. the possession must be peaceful and uninterrupted, 3. the possession must be public, 4. the possession must be endured for a length of time.  3. The state is required to show an effective local administration, the protection of the population, and an established system of national law. HOWEVER, effectiveness in exercising administration is not pressing and economic conditions of the territory and the size matter concerning the acquisition  Intention of acquiring: the display of sovereignty must be accompanied with an animus or intention to act as a sovereign  Continuous display and the critical date o there has to be continuity in sovereignty up to the critical date on which the question of acquisition is solved (treaty, judgement). The critical date is crucial for the legal status of sovereignty (occupation or prescription). After the critical date there is no further assessment of the sovereignty in question  the display of sovereignty has to be peaceful o plays an important role concerning prescription  the ousted state has to object in a judicial or other way to prevent the annexing state to acquire sovereignty. The acquisition has to be in conformity with current legislation at that time (intertemporal law). Discovery Discovery is akin to occupation in that it is usually applied in respect of previously uninhabited territories. In the absence of effective occupation, another state may enter the territory and exercise the functions of statehood therein. If this happens, the title based on effective occupation will have priority over the inchoate title based on discovery. Cession and treaty It is not uncommon in international law that one state cedes a piece of territory to another by treaty. The situation is rather like the transfer of property in national law, with one state transferring ‘ownership’ or sovereignty to another. This may be for money, as with the transfer of Alaska from the USSR to the USA, or it may be in settlement of a border dispute or as part of a more general arrangement. Thus, there must be no duress, fraud or corruption in the procurement of the treaty. Likewise, the treaty in issue must be clear the sovereignty has been passed when properly interpreted according to the normal rules of treaty interpretation. Use of force-Conquest Prior to 1945, or perhaps 1928 (the date of the Kellogg–Briand Pact, see Chapter 11), the use of force was perfectly lawful and title to territory acquired through conquest was quite common. As previously noted, under the doctrine of intertemporal law, a title acquired by conquest when force was lawful cannot now be challenged, save only if the right of self-determination applies. However, times have changed, and we have seen also that a treaty of cession imposed by the use of force is void. Similarly, from the moment aggressive force became unlawful it has been impossible for a state to acquire title to territory by conquest. For example, whether or not Iraq had a valid claim to parts of Kuwait’s territory, it could not obtain sovereignty over it by force of arms and Israel cannot obtain lawful title to occupied Palestinian territory on the basis of effective occupation following its unlawful use of force Accretion and avulsion Accretion denotes the extension of sovereignty over ‘new’ territory by reason of a gradual increase in a state’s land mass: for example, as a result of soil deposits in river deltas but it can apply with equal force to land reclamation such as that achieved by the Netherlands along its west coast and Hong Kong in its harbour. Avulsion, on the other hand, is concerned with more dramatic increases in state territory, such as the creation of new islands in existing territorial waters as a result of volcanic activity. Judicial Decisions The decisions of international courts and arbitral panels have a profound impact on the sovereignty of territory in international law. Uti possidetis and other principles relating to territorial acquisition There are a number of other principles or guidelines that may be used as a means of determining title to territory in international law. The ‘continuity’ principle suggests that a state is entitled to sovereignty over the land adjacent to and extending from an area of territory already under its control. A more important principle concerning title to territory is the principle of uti possedetis, very much relied on in the Territorial and Maritime Dispute between Nicaragua and Honduras in the Caribbean Sea (Nicaragua v Honduras) (2007). Simply, this encompasses the idea that the frontiers of newly independent states are to follow the frontiers of the old colonial territories from which they emerged and, importantly, that they cannot be easily altered, by unilateral action. The principle originated in South America as a consequence of the collapse of the Spanish Empire when the former provinces agreed that the limits of their sovereignty should conform to the limits of the old colonial boundaries. It is also true that frontiers established by uti possidetis may be modified by the acquiescence of one state in the effective exercise of control by another over a disputed area. Self-determination Today self-determination is a well-established principle of customary international law and may well be a rule of jus cogens. The principle is often more concerned with which ‘people’ are entitled to exercise sovereignty over a piece of territory, rather than how a state acquires that territory in the first place. As we have just noted, the principle of self-determination developed as a direct response to the ‘evils’ of colonialism and there is no doubt that a ‘people’ under the foreign domination of another state enjoy this right. However, the territories to which the right of self-determination in this classical sense can be said to apply are now limited and the real and pressing question is whether self-determination can be exercised by distinct ethnic or religious groups within an already sovereign and independent state. Overall, a balance needs to be struck between protecting the human rights of peoples and individuals and preserving the fabric of international society. Self-determination can foster the former but might well be destructive of the latter. Right over foreign territory It is quite possible for one state to grant limited rights over its territory to another. Rights over foreign territory by treaty have proprietary status and have to be ensured in duration, nevertheless, this happens rarely by international law and is a national restriction of sovereignty and not a largely theoretical discussion of jurisdiction in international law. CHAPTER 7: IMMUNITY Immunities from national jurisdiction As a general rule, the jurisdiction of a state within its territory is complete and absolute except for certain sovereign or state immunity. The territorial sovereign is the master of all things and every person present in state territory is subject to the jurisdiction of the local courts. However, there is also a rule of international law that a foreign sovereign state is entitled to certain immunities from the exercise of this jurisdiction – generally known as the principle of state (or sovereign) immunity. A violation of immunity gives rise to international responsibility. The aspect of immunity can be split into two categories: 1. State or sovereign immunity (concerning rights and privileges accorded to states, its government, representatives, property) 2. Diplomatic and consular immunity (dealing with immunities enjoyed by official envoys of foreign sovereign states and duties owed to them by the host states)  distinction exists between (ratio materiae) 1. State immunity When State A makes a contract with a company registered in State B, or the property of State A is the cause of a dispute with a national of State B, or where State A acts in any other way within the territory of State B, it is imperative to determine whether State A is subject to the jurisdiction of the courts of State B. If the answer is yes, there’s another thing to determine: whether a court order can be enforced against it. However, it is quite clear that there is a legal duty under international law to ensure that a foreign sovereign state is accorded immunity in an appropriate case. This duty comes from an important part of International Law, formally specified in the Article 2 p. 1 of the Charter of UN that makes clear that immunity is one of the fundamental principles under international legal order. Non-justiciability But first of all, we have to distinguish between immunity and non-justiciability. The latter means that the court has no competence to assert jurisdiction at all, and the issue can’t be subject to judicial proceedings before the national court. Non-J arises in several ways. - There are certain matters which cannot properly be raised in the courts of any state other than those of the state directly concerned, such as the validity of certain constitution or legislative acts of the impleaded state save where those acts violate international law. - Secondly, there are some issues which do not raise questions of national law at all, such as the validity of treaties. A UK court ‘has no jurisdiction to declare the true interpretation of an international instrument which has not been incorporated into English domestic law and which it is The results do illustrate that a two-stage test is flexible enough to meet the criticisms of both the ‘nature’ and ‘purpose’ tests discussed previously. The important point is, then, that international law allows a state to offer restrictive immunity, based on the distinction between acts jure imperii and acts jure gestionis. It may be that some states will still wish to accord absolute immunity to foreign sovereign states and, of course, they may do so given that this is a matter for their national law. Only if immunity is completely withdrawn (as in the Jurisdictional Immunities Case 2012), or restrictive immunity wrongly applied, will responsibility at international law exist. Immunity and violations of international law Is it possible that international law might not require states to grant immunity for international crimes, or acts contrary to rules of jus cogens, and indeed may require that immunity be denied? At present immunity remains available even if the alleged offence is one that might be regarded as a crime for which an individual may be tried under international law and even if it involves a breach of a rule of jus cogens. The Court in Jurisdictional Immunities conducted a thorough examination of state practice and of the decisions of local courts and found almost overwhelming state practice confirming that immunity should still be given in cases involving breaches of international law, either by states or individuals acting for states. As this consistent judicial activity demonstrates, immunity is a powerful concept in international law. In cases where the subject matter is a sovereign act, immunity from national courts extends to acts contrary to the national law of that state and contrary to international law itself, even to rules of cogens. Note, however, that state immunity is not an ‘excuse’ or ‘defence’ to a charge of violation of a rule of jus cogens (or any other rule of international law). It simply precludes a national court from trying the matter. There will still be international responsibility, either for the state or for the individual. That responsibility can be enforced in an appropriate international forum, such as the ICJ itself or the International Criminal Court. The UN Convention on Jurisdictional Immunities of States and their Property 2004 (the ILC Draft Articles) The International Law Commission’s long work in this area came to fruition in 2004 with the conclusion of the UN Convention on Jurisdictional Immunities of States and Their Property 2004. This was based on extensive work by the International Law Commission and much comment by states on the ILC’s Draft Articles. The Convention is not yet in force (requiring thirty parties; as at 1 September 2012, there were thirteen), but it is the result of the most extensive analysis of state practice ever undertaken in this area and is already being relied on as evidence of the content of international law. Thus, a state will not be immune in respect of a ‘commercial transaction’ (Art. 10) nor in relation to a number of specific matters such as employment contracts (Art. 11) and cases of personal injury or damage to tangible property in the forum state. Heads of the State The position of heads of state acting in a public capacity is dealt with by s. 14(1)(a) of the SIA 1978. This provides for immunity in the same circumstances as the state simply because the head is ‘the state’ in such cases. Private acts done in exercise of office lose immunity once the head of state ceases to be head of state and they can then be made the subject of an action in national courts. Necessarily, this is a large restriction on the immunity of a head of state, illustrating that in some respects it is transient. The European Convention on State Immunity 1972 The European Convention 1972 is very much like the UK Act to which it gave rise. There is a statement of absolute immunity for all signatories that is then qualified in certain specified circumstances. Diplomatic and consular immunities In this section, consideration will be given to the immunities and privileges enjoyed by official representatives of a foreign state when they are within the territory of another state. Diplomatic and consular immunities are personal in the sense that they are enjoyed by individuals, rather than by the state itself. However, as we shall see, the purpose of these immunities is not to benefit the individual as such, but to enable him to carry out his designated functions on behalf of the state . Furthermore, it will become apparent that the law on diplomatic immunities is double edged. On the one hand, the individual is given certain privileges within the legal system of the state to which he is accredited (the ‘receiving’ state) and, on the other, the receiving state is under certain obligations to protect the diplomat and his property in order that he may carry out his functions effectively. In international law In international law, the legal principles of diplomatic and consular immunities are to be found primarily in two multilateral conventions – the Vienna Convention on Diplomatic Relations 1961 (at 1 September 2012 187 parties) and the Vienna Convention on Consular Relations 1963 (at 1 September 2012 173 parties). In this section we are concerned primarily with the Convention on Diplomatic Relations and references to ‘the Convention’ should be taken as references to this treaty. Although consular officials perform vital administrative functions in respect of nationals present in the state to which they are accredited, the major policy and representative work falls to diplomatic staff. As a general rule, immunities and privileges of consular officials are less extensive than those of diplomatic staff. This convention came into force in 2012, and it’s clear that all of the disputes over diplomatic law can be resolved by reference to this treaty or the obligations contained therein. The basis of diplomatic immunities is functional, and to this end the diplomat is given certain privileges and immunities and the receiving state is placed under certain obligations. As the Preamble to the Vienna Convention makes clear, ‘the purpose of such privileges and immunities is not to benefit individuals but to ensure the efficient performance of the functions of diplomatic missions in representing states’. Immunities relating to the person The Vienna Convention deals with several categories of person who may enjoy some or all of the immunities specified therein (Art. 1). These include the: - ‘head of the mission’ (e.g. the ambassador or chargé d’affaires), - ‘the members of the diplomatic staff’ (diplomats proper), - ‘the members of the administrative and technical staff’ (secretaries etc.), - ‘members of the service’ (e.g. kitchen staff, butlers) and ‘private servants’ (e.g. a personal valet). Generally, the most extensive immunities are accorded to the head of mission and his diplomatic staff, with a descending scale in respect of the other categories. Members of the families of the head of mission, diplomats and administrative and technical staff may also be entitled to those immunities enjoyed by the primary recipient. However, unless there is special agreement, if a person is a national of the receiving state, immunity will be restricted to matters arising in the performance of his official functions or, for the lesser categories of staff, lost altogether. The main personal immunities are to be found in Arts 29 and 31 of the Convention. The person of a diplomat (henceforth to include the head of mission) is inviolable and he may not be arrested or subjected to any other form of detention. The receiving state is under a duty to protect him and prevent any attack on his person, freedom or dignity (Art. 29). Under Art. 31, a diplomat is completely immune from the criminal jurisdiction of the receiving state and immune from the civil and administrative jurisdiction, save in respect of actions relating to private real property, succession under a will or an action relating to any ‘professional or commercial activity outside his official functions’. Immunities relating to property The premises of the mission (the embassy) are inviolable and agents of the receiving state may not enter them without the consent of the head of mission (Art. 22). These ‘premises’ include any buildings and ancillary land, irrespective of ownership, which are used for the purposes of the mission, including the residence of the head of mission (Art. 1). Likewise, the property and means of transport of the mission are immune from search and seizure (Art. 22) and the archives and documents of the mission are inviolable even if they are not on the premises (Art. 24). The receiving state is under a duty to protect the mission (Art. 22) and it will be responsible under international law if it fails to do so, The private residence of a member of the diplomatic staff enjoys the same inviolability as the mission proper, as do his papers and correspondence, except if they relate to matters for which he is subject to civil jurisdiction (Art. 30). Similar immunities are accorded to administrative and technical staff, not being nationals or permanently resident in the receiving state. Freedom of communication Under Art. 26, the receiving state is under an obligation to ensure freedom of movement for all members of the mission and this may be curtailed only in respect of ‘zones entry into which is prohibited or regulated for reasons of national security’. Furthermore, in Art. 27, there is perhaps one of the most important provisions of the Convention. The receiving state is obliged to permit and protect free communication for all official purposes and the use of codes to communicate with the home state is expressly authorised. Abuse An abuse of the privileges that the diplomats have, doesn’t entail the loss of the privileges. The receiving state can request that his immunity be waived under Art. 32 of the Convention. In the last resort, the receiving state may declare a diplomat persona non grata, so that the sending state is obliged to recall the individual or terminate his functions. Immunity of international organisations Many international organisations have legal personality in international law. These organisations have functions to perform and need to act within local legal systems to be able to achieve their aims. As with states and their diplomats, international organisations and their staff are entitled as a matter of international law to certain privileges and immunities. These privileges and immunities exist to enable the international organisation to achieve its ends without hindrance by local authorities. CHAPTER 9: STATE RESPONSIBILITY It is intrinsic in every legal system that violation of a legally binding obligation involves legal responsibility. In this respect, international law is no different from national law. The rules of ‘state responsibility’ indicate the circumstances in which a state will be fixed with legal responsibility for the violation of an international obligation and the consequences this entails. In recent years, the principles of state responsibility have been the subject of extensive consideration by the International Law Commission. General issues of State responsibility State responsibility occurs when a state violates an international obligation owed to another state. In the words of Art. 1 of the ILC Draft Articles, ‘[e]very internationally wrongful act of a State entails the international responsibility of that State’ and this cannot be avoided simply by reason of the fact that the act is lawful under internal law. The obligation may be derived from a treaty or customary law or may consist of the non-fulfilment of a binding judicial decision. It may also consist of aid or assistance in the commission of an internationally wrongful act by another state or even non-state. In addition, responsibility may occur when a state ill-treats the nationals of another state or acts contrary to a legally binding decision of a competent international organisation, such as the Security Council. The origin of the international obligation is irrelevant for the purposes of state responsibility (Draft Art. 12). In general terms, state responsibility comprises two elements: an unlawful act, which is imputable to the state. Necessarily, responsibility may be avoided if the state is able to raise a valid defence (what the Draft of whom the person is a national. In fact, state responsibility arising from the treatment, or rather ill- treatment, of foreign nationals is one of the commonest forms of responsibility that arises in international law today. In this section we shall consider both the procedural and substantive rules applicable to this particular type of international responsibility. Examples of ill-treatment giving rise to responsibility Mistreatment of foreign nationals giving rise to international responsibility can occur in any number of ways. For example, it can result from the mistreatment of foreign nationals in the custody of judicial authorities (Roberts Claim; Paraguay v USA), from the unlawful expropriation of foreign-owned property (section 9.3, but note Texaco v Libya), from a failure to punish those individuals responsible for attacks on foreign nationals (Janes Claim and Massey Claim (1927) 4 RIAA 155) or from direct injury to foreign nationals by state officials (Youmans Claim). Admissibility of claims of state responsibility for the treatment of foreign nationals Nationality of claims State responsibility concerns the liability of one state to another. This is no less true in cases of the ill- treatment of foreign nationals even though the ‘damage’ is actually done to an individual. Under international law, every state has the right of ‘diplomatic protection’ of its nationals. This means that when a national suffers an injury at the hands of another state, his state of nationality may take up the claim. Moreover, it is clear that if a state decides to take up a matter concerning the ill-treatment of one of its nationals, the claim becomes that of the state itself, although compensation may be assessed by the actual loss caused suffered by the individual. (a) If a separate and exclusive right of the shareholders is damaged by governmental action, then the state able to pursue the claim is the state of nationality of shareholders (b) When, as is the usual case, the company itself is injured, then the prima facie rule is that the state of nationality of the company alone is entitled to make a claim. This is usually the state in which the company is incorporated; that is, where it has its registered office. In exceptional cases, however, the state of nationality of the company may be determined either by examining where real control of the company lies (which may mean identifying the majority shareholders) or assessing where the seat of business of the company is located. Yet whatever means we use to determine the state of nationality of the company, the important point is that this state alone may bring the claim. Under this rubric, the normal rule applies that claims can only be brought by the state of nationality, but the test for determining it is a compromise formula. (c) According to one view of the Barcelona Traction Case, it might be possible, in exceptional cases, for the state of nationality of the shareholders to bring a claim even though it is indeed the company itself that has been injured. This is the so-called idea of substitution of claims. These special cases are: first, if the company no longer exists as a distinct legal person. This is a pragmatic rule (otherwise nobody could claim); secondly, if the state of nationality of the company is unable to protect the company, but only where that state is incapable of offering diplomatic protection, rather than being merely unwilling to do so; thirdly, if it is the state of nationality of the company that caused the injury in the first place, especially if the state of nationality of the company acted against the company precisely because it was de facto owned and controlled by foreign nationals. The internationalisation of contracts Generally, when an individual or a company enters into a contract with a state, that contract is governed by the national law of one of the parties, usually the state in which the investment is occurring. If the state then breaches the contract, this does not give rise to state responsibility per se. The contract is governed by national law and the individual’s remedy lies in a normal action for breach of contract. However, in certain circumstances, it seems that contractual relations between a foreign national and a state can give rise to international responsibility for that state. (a) The first and clearest case is if the individual is prevented from obtaining due process of law in pursuit of his contractual claim. In this case, there will be a ‘denial of justice’ so as to allow the state of nationality of the company to make an international claim against the delinquent state. There is nothing special in this form of responsibility and it can arise if the foreign national is denied due process in respect of a contractual claim against any person, not necessarily the state itself. (b) Additionally, it seems that contractual rights may be regarded as ‘property’ that may be unlawfully expropriated. This was recognised by the arbitrator in the Liamco Case in respect of concession contracts between a company and a state. A similar approach lies behind the Jalapa Railroad Claim (1948) 8 Whiteman 908, where the contract between the American company and the Mexican state of Veracruz was rendered useless by a legislative act of the contracting state. Again, there is no necessary reason why a state should not be regarded as having expropriated the contractual rights of a foreign national arising out of their contract with an ordinary citizen as well as under a contract with the state itself. (c) The most startling circumstance in which a contract between a company and a state can be taken out of the national sphere and placed in the realms of international law is under the doctrine of the ‘internationalisation of contracts’. Protection for private If, as we have seen, states enjoy a great deal of liberty in the field of expropriation, the question arises whether foreign investors can take any steps to safeguard their rights. The following is an indication of the possibilities, although it must be realised that in the end they may operate only to ensure adequate compensation or damages rather than to prevent expropriation altogether. (a) The company can attempt to internationalise the contract, although it is debatable whether this precludes expropriation altogether. Internationalisation may increase the measure of damages and/or compensation. (b) The company can ensure that the contract does not contain a Calvo clause. Again, however, following the general rule that state responsibility is a matter of international law, the inclusion of such a clause cannot preclude the right of diplomatic protection and the presence of such a clause will not be fatal to the company’s position. (c) The company can seek to have the ‘prompt adequate and effective’ rule concerning compensation incorporated into the terms of the contract. Whether this would be effective at international law is open to question. (d) The company may seek registration (i.e. nationality) in a state willing and able to exercise its right of diplomatic protection. This is particularly important given that a state can legitimately refuse to make a claim on behalf of its nationals and may do so if it wishes to preserve good relations with the nationalising state. (e) The company can attempt to persuade its state of nationality to enter into a treaty with the state in which it is investing. This should guarantee the terms of the contract and any breach of the contract will then be a breach of the treaty. CHAPTER 10: THE PEACEFUL SETTLEMENT OF DISPUTES According to Art. 2(3) of the United Nations Charter, all members ‘shall settle their international disputes by peaceful means in such a manner that international peace and security, and justice, are not endangered’. While this obligation is addressed primarily to members of the Organisation, there is no doubt that this principle is one of the central obligations of international law which all states must observe (Legality of the Use of Force Case (Provisional Measures) Yugoslavia v Belgium etc. (1999) 39 ILM 950). It is the natural counterpart to the prohibition of the use of force and may also have acquired the status of jus cogens. The forceful resolution of disputes, the use of force by one state to impose its will on another, is now legally obsolete and the obligation to settle disputes by peaceful means is a corollary of this. The precise scope of the obligation is, however, that states should settle disputes peacefully, not that they should settle them. In other words, there is no general rule requiring a state to settle its grievances. Rather, the rule is that if a state does decide to settle, this must be done in a peaceful manner. As we shall see, the absence of a general obligation to settle disputes is reflected in the fact that the jurisdiction of the International Court of Justice (and most other tribunals) is not compulsory. A state cannot be compelled to submit a dispute with another state to a third party for settlement unless it has given its consent in some form or other. The only exception to this is the obligation under Art. 33 of the United Nations Charter to settle disputes which are likely to endanger international peace and security. Furthermore, the obligation to settle disputes peacefully applies to international disputes only. There is no explicit rule in general international law requiring a state to settle internal grievances peacefully. A state may, therefore, use force in its relations with its own citizens in its own territory, subject only to limitations imposed by human rights law or other specific obligations, such as the requirements of a mandatory resolution of the Security Council. Of course, an internal dispute may well become ‘international’ if it has consequences outside of its borders or otherwise impinges on the international community and this may well trigger Security Council involvement, as with the initially internal dispute in Libya in 2012. Similarly, it is also clear that a dispute may be ‘international’ even though the parties (or some of them) are not states. 1. NEGOTIATION As in national law, the most common method of settlement is direct negotiations between the parties. This ‘method’ accounts for the great majority of settlements between states and appears to be the one most preferred. There is no set procedure for negotiations and these may be at arm’s length, through an intermediary or face to face. Necessarily any negotiated settlement will be legally binding only if this is the wish of the parties, and then it may be encapsulated in a treaty. Otherwise, the terms of the agreement may be recorded in an exchange of notes or diplomatic memoranda having no legal effect but obviously effective as a practical solution to a problem. 2. MEDIATION AND GOOD OFFICES Although it is possible to distinguish mediation and good offices from negotiation, in practice they are very much part of the same process. ‘Good offices’ are a preliminary to direct negotiations between the parties. The person offering his ‘good offices’ – usually a neutral trusted by both sides – will attempt to persuade the parties to negotiate. Mediation is simply a continuation of this, and often the mediator will be the person who originally brought the parties together. A mediator is a person, again approved by both parties, who takes part in the negotiations and whose task is to suggest the terms of a settlement and to attempt to bring about a compromise between the two opposing views. 3. INQUIRY The use of commissions of inquiry is most often intended to establish the factual basis for a settlement between states. The parties to a dispute will agree to refer the matter to an impartial body whose task is to produce an unbiased finding of facts. It is then up to the parties to negotiate a settlement on the basis of these facts. While it is rare that the parties agree to be legally bound to accept the findings of such an inquiry, in practice it is just as rare for their conclusions to be ignored. 4. SETTLEMENT BY THE UNITED NATIONS The United Nations has a variety of institutionalised and informal methods through which states may settle disputes. Obviously, the ‘good offices’ of the Secretary-General and judicial settlement by the ICJ (an organ of the UN) fall into this category. (These are dealt with separately; see sections 10.2and 10.8.) The General Assembly The General Assembly has wide-ranging authority to make recommendations for the settlement of disputes. Subject to the primacy of the Security Council in matters comprising a threat to or breach of the peace, the Assembly ‘may recommend measures for the peaceful adjustment of any situation, regardless of origin, which it deems likely to impair the general welfare or friendly welfare among nations’ (UN Charter