Ombachi r.m/muriungi d.m

3rd year. April 2005 lectures

Public International Law Lectures

A.O. Adede

Lecture 1

Introduction.

International law traditionally concerned itself with relations with

sovereign states but nowadays it also deals with relations between

natural and juridical persons. These are individual human beings and

incorporated companies. Individuals benefit from the protection of

international law but they cannot be described as proper subjects of

international law.

Multi-national corporations are busily engaged in international

transactions with states. Consequently new rules of law have been

developed to cover these relationships. However these corporations

fail to qualify as international subjects. States and international

organizations like the United Nations are the main actors on the

international community, the only entities with true international

personality and principal creators of international law.

The Minimum Standards of International Justice with respect to aliens

qua aliens.

Any of the following actions amount to denial of justice to

aliens.

Failure to inform an alien reason for his arrest

1

Failure to provide an alien with an interpreter if he needs

one

Holding an alien incommunicado

Refusing an alien the right to consult their counsel

These were rights that were being reserved to protect aliens and

being enforced mostly in the developing countries and the Latin

American countries.

Doctrine

The Calvo Doctrine (or principle) holds that jurisdiction in

international investment disputes lies with the country in which the

investment is located; thus, the investor has no recourse but to use

the local courts. The principle, named after an Argentinean jurist, has

been applied throughout Latin America and other areas of the world.

It is a body of international rules regulating the jurisdiction of

governments over aliens and the scope of their protection by their

home states, as well as the use of force in collecting indemnities. The

doctrine was advanced by the Argentine diplomat and legal scholar

Carlos Calvo.

An Argentinean by the name Calvo – said that “we cannot assign

foreigners in our countries special treatment as this would be like

having two regimes in a country which would amount to political

monstrosity. Calvo developed the Calvo Doctrine and argued for

equality of treatment between nationals and aliens. No special

regimes. An alien is supposed to accept everything in the host country

and no special treatment. Having minimum standard of international

justice to be observed with respect to aliens qua aliens was wrong.

This doctrine developed what became known as the Calvo clause. To

implement calvo doctrine required the calvo clause. Under the Calvo

clause Latin American countries decided that any foreign country

2

coming to do business in their countries, whether mining or any

activity under a contract will have a clause in that contract in which

the alien waives its right to ask its own government to espouse its

claim before the international court a claim.

Many countries in Latin America have worked under the Calvo Doctrine until they started signing FTAs and BITs. The Calvo Doctrine is a doctrine and not a law and basically says that a country is sovereign and does not have to hand over their sovereignty to an international court to resolve a dispute when foreigners are involved.

http://www.britannica.com/needmoreInternational Law of Europe and America in Theory and Practice (1868). 

North American Dredging Co. v. Mexico

The company waived its rights ever to ask USA to bring the case

against Mexico. The Mixed Claims Commission found out that the

obvious purpose of the clause was to prevent abuse of the right of

diplomatic protection and to draw a reasonable line between the

sovereign rights of a state i.e. issue of jurisdiction and Diplomatic

protection. It stated that the clause was part of the contract and had

to be upheld unless it was repugnant to a recognized rule of

international law. It found further that a contractual clause purporting

to restrict or exclude the rights normally owed to an alien would be

valid to the extent that it did not preclude diplomatic protection for

violations of international Law.

An alien cannot deprive his government its right of diplomatic

protection in case of violations of international law nor may he

deprive himself of the right to apply to his government on the ground.

But in such a case the claimant’s complaint would be not that his

contract was violated but that he had been denied justice.

3

The commission declared that North American Dredging Company

had fully ignored the local remedies rule provided by Mexican Law.

The claimant having agreed to Article 18 of the Contract could not

rightfully present a breach of contract claim to its government for its

espousal and therefore the claim was unanimously dismissed.

The western world response to Calvo clause was that the individual

had no right to waive a state’s right. This had to become a legal

jurisprudence of international law.

In the Mavrommatis Palestine Concession case the very issue was

settled when the permanent court of international justice said that

when a state Mavrommatis espouses the claim of its national to take

to an international tribunal, it had to be the state in its own rights and

its own interest rather than the individual involved. It is the state that

wants to assert its own right to ensure that its rights are being

asserted.

From the beginning the Western world was of the view that there was

no right to expropriate the property of aliens. They decided that the

rule to apply is when one expropriates property they must pay

prompt, adequate and just compensation if one must expropriate.

From this evolved the permanent sovereignty of natural resources.

They began to challenge the standard of prompt, adequate and just

compensation. Under the principles of exercising permanent

sovereignty the countries said they had the right to determine the

amount of compensation they paid. The host state determines the

amount of compensation because they were the only ones who could

determine the value of the property. If for example an alien owed

4

taxes the amounts would be deducted. The developing countries won.

In 1974 there was a famous UN Resolution that adopted the Charter

of Economic Rights and Duties of States.

APPROPRIATE COMPENSATION.

Article 2 (c) provides that the state, which has expropriated the

property of aliens, has the right to pay appropriate compensation.

Once that state has arrived at a just compensation the amount is not

subject to any proceeding outside that country. No more taking cases

of expropriation to international court. This is how Libya responded

to Texaco Oil CO. in Texaco Oil Co. v. Libya and Libya applied the

charter of economic rights and duties principle and decided how much

was to be paid to Texaco. This case was heard by a French lawyer

and the question was how Libya could rely on a clause that had been

rejected by the rest of the world. The Judge ruled that Libya would

not rely on this Article as it had been rejected by the developed world.

This is a decision that favoured the Western World.

International Centre for Settlement of Investment Disputes.

The countries of western world got tired of these series of espousing

claims simply because as subjects of international law, companies had

no right to bring a case before an international court. In 1966 they

decided to negotiate a convention for settlement of investment

disputes between states and companies direct. This convention

established a centre called International Centre for the Settlement of

Investment Disputes (ICSID) between states and companies directly.

The entire Latin American country rejected ICSID entirely because

they wanted aliens to have all issues settled at home. (Calvo Clause).

Once the country involved has accepted the jurisdiction of the centre,

5

it allows the company to approach the centre but insists that the

company exhausts the remedies available locally.

ICSID is thus a thriving institution in Washington D.C.

PART II

Exhaustion of local remedies.

Pannevezys Saldutiskis Railway Case – before an alien can have his

case admitted in ICSID must have local remedies exhausted.

Establishing the local remedies rule Clear opinions, are all to the

effect that the principle of the exhaustion of local remedies lays down

a condition for generation of the international responsibility of the

State, were expressed by three other judges, namely, Judge Hudson in

his dissenting opinion in the Panevezys-Saldutiskis Railway case,1

Judge Cordoba in his separate opinion in the Interhandel case,

Judge Morelli gave a thorough definition of the principle of the

exhaustion of local remedies in the following terms:

"However, the local remedies rule, as a rule of general

international law, is in my view substantive and not procedural. It is

indeed a rule, which is supplementary to other rules, which also

themselves possess the character of substantive rules, namely the

rules concerning the treatment of foreigners.

"Those rules require from the States to which they are directed

a particular final result in respect of the treatment of foreign

1 Judge Hudson wrote:"It is a very important rule of international law that local remedies must have been

exhausted without redress before a State may successfully espouse a claim of its national against another State. This is not a rule of procedure. It is not merely a matter of orderly conduct. It is part of the substantive law as to international, i.e. State-to-State, responsibility. If adequate redress for the injury is available to the person who suffered it, if such a person has only to reach out to avail himself of such redress, there is no basis for a claim to be espoused by the State of which such person is a national. Until the available means of local redress have been exhausted, no international responsibility can arise." (P.C.I.J. Series A/B, No. 76, p. 47.)

6

nationals, leaving the State which is under the obligation free as

regards the means to be used. Consequently, if an organ of the State

which is under the obligation performs an act contrary to the desired

result, the existence of an internationally unlawful act and of the

international responsibility of the State cannot be asserted so long as

the foreign national has a possibility of securing, through the means

provided by the municipal legal system, the result required by the

international rule." (I.C.J. Reports 1964, p. 114.)

Mavrommatis Palestine Concession – when the state brings a claim on

behalf of its own national it is exerting its right other than that of its

national

Chattin Claim – elucidated and put down succinctly the concept of

denial of justice dealing with irregularities that open the way to

approach international court.

Interhandel Case – merely confirmed that the exhaustion of local

remedies is a well-established principle of international law that must

be observed unless States dispense with this agreement under treaty.

If the state does not require local remedies to be exhausted, again this

case can be cited.

Ambatielos Case - this is the case that if you had a witness who could

come and help you in your case in the local court and failed to call

that witness and the court decided that had the witness come the case

would have been decided differently, it was decided that this would

amount to failure to exhaust local remedies. Failure to call a key

witness was declared to be non-exhaustion of local available remedies.

7

The minimum standards of international justice to be observed with

respect to aliens qua aliens are:

1. Failure to provide an interpreter

2. Holding an alien incommunicado

PUBLIC INTERNATIONAL LAW 2

Civilized states - recognized major legal systems of the world

AN ACT OF STATE DOCTRINE :

Every sovereign state is bound to respect the independence of every

other sovereign state, and the courts of one country will not sit in

judgment on the acts of another government done within its own

territory. Redress of grievances by reason of such acts must be

obtained through the means open to be availed of by Sovereign

powers as between themselves. This doctrine was argued in the

following case.

BANCO NACIONAL DE CUBA v. SABBATINO, 376 U.S. 398

(1964)

376 U.S. 398

BANCO NACIONAL DE CUBA v. SABBATINO, RECEIVER, ET

AL.

CERTIORARI TO THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT.

No. 16.

8

Argued October 22-23, 1963.

Decided March 23, 1964.

Respondent American commodity broker, contracted with a Cuban

corporation largely owned by United States residents to buy Cuban

sugar. Thereafter, subsequent to the United States Government's

reduction of the Cuban sugar quota, the Cuban Government

expropriated the corporation's property and rights. To secure consent

for shipment of the sugar, the broker by a new contract agreed to

make payment for the sugar to a Cuban instrumentality which

thereafter assigned the bills of lading to petitioner, another Cuban

instrumentality, and petitioner instructed its agent in New York to

deliver to the broker the bills of lading and sight draft in return for

payment. The broker accepted the documents, received payment for

the sugar from its customer, but refused to deliver the proceeds to

petitioner's agent. Petitioner brought this action for conversion of the

bills of lading to recover payment from the broker and to enjoin from

exercising dominion over the proceeds a receiver who had been

appointed by a state court to protect the New York assets of the

corporation. The District Court concluded that the corporation's

property interest in the sugar was subject to Cuba's territorial

jurisdiction and acknowledged the "act of state" doctrine, which

precludes judicial inquiry in this country respecting the public acts of

a recognized foreign sovereign power committed within its own

territory. The court, nevertheless, rendered summary judgment

against the petitioner, ruling that the act of state doctrine was

inapplicable when the questioned act violated international law, which

the District Court found had been the case here. The Court of Appeals

affirmed, additionally relying upon two State Department letters,

which it took as evidencing willingness by the Executive Branch to a

judicial testing of the validity of the expropriation. Held:

9

1. The privilege of resorting to United States courts being

available to a recognized sovereign power not at war with the

United States, and not being dependent upon reciprocity of

treatment, petitioner has access to the federal courts.

2. The propriety of the taking was not governed by New York

law since the sugar itself was expropriated.

3. This suit is not uncognizable in American courts as being one

to enforce the "public" acts of a foreign state since the

expropriation law here involved had been fully executed within

Cuba.

4. The Government's uncontested assertion that the two State

Department letters expressed only the then wish of the

Department to avoid commenting on the litigation, obviates the

need for this Court to pass upon the "Bernstein exception" to

the act of state doctrine, under which a court may respond to a

representation by the Executive Branch that in particular

circumstances it does not oppose judicial consideration of the

foreign state's act.

5. The scope of the act of state doctrine must be determined

according to federal law.

6. The act of state doctrine applies and is desirable with regard

to a foreign expropriation even though the expropriation

allegedly violates customary international law.

(a) Disagreement exists as to relevant standards of international

law concerning a State's responsibility toward aliens.

(b) The political branch can more effectively deal with

expropriation than can the Judicial Branch.

(c) Conflicts between the Judicial and Executive Branches could

hardly be avoided were the judiciary to adjudicate with respect

to the validity of expropriations. Even if the combination alleged

in this case of retaliation, discrimination, and inadequate

10

compensation made the expropriation here violative of

international law, a judicial determination to that effect would

still be unwise as involving potential conflict with or

embarrassment to the Executive Branch in later litigation.

7. A foreign country's status as a plaintiff does not make the act

of state doctrine inapplicable.

307 F.2d 845, reversed and remanded.

MR. JUSTICE HARLAN stated;

“The question which brought this case here, .. is whether the so-called

act of state doctrine serves to sustain petitioner's claims in this

litigation. Such claims are ultimately founded on a decree of the

Government of Cuba expropriating certain property, the right to the

proceeds of which is here in controversy. The act of state doctrine in

its traditional formulation precludes the courts of this country from

inquiring into the validity of the public acts a recognized foreign

sovereign power committed within its own territory.”

While acknowledging the continuing vitality of the act of state

doctrine, the court believed it inapplicable when the questioned

foreign act is in violation of international law. Proceeding on the basis

that a taking invalid under international law does not convey good

title, the District Court found the Cuban expropriation decree to

violate such law in three separate respects: it was motivated by a

retaliatory and not a public purpose; it discriminated against

American nationals; and it failed to provide adequate compensation.

Summary judgment against petitioner was accordingly granted.

Respondents, pointing to the severance of diplomatic relations,

commercial embargo, and freezing of Cuban assets in this

country, contend that relations between the United States and

Cuba manifest such animosity that unfriendliness is clear, and

11

that the courts should be closed to the Cuban Government. We

do not agree. This Court would hardly be competent to

undertake assessments of varying degrees of friendliness or its

absence, and, lacking some definite touchstone for

determination, we are constrained to consider any relationship,

short of war, with a recognized sovereign power as embracing

the privilege of resorting to United States courts. Although the

severance of diplomatic relations is an overt act with objective

significance in the dealings of sovereign states, we are

unwilling to say that it should inevitably result in the

withdrawal of the privilege of bringing suit. Severance may

take place for any number of political reasons, its duration is

unpredictable, and whatever expression of animosity it may

imply does not approach that implicit in a declaration of war.

"Every sovereign State is bound to respect the

independence of every other sovereign State, and the

courts of one country will not sit in judgment on the

acts of the government of another done within its own

territory. Redress of grievances by reason of such acts

must be obtained through the means open to be

availed of by sovereign powers as between

themselves."

If a transaction takes place in one jurisdiction and the forum is in

another, the forum does not by dismissing an action or by applying its

own law purport to divest the first jurisdiction of its territorial

sovereignty; it merely declines to adjudicate or makes applicable its

own law to parties or property before it. The refusal of one country to

enforce the penal laws of another is a typical example of an instance

when a court will not entertain a cause of action arising in another

12

jurisdiction. While historic notions of sovereign authority do bear

upon the wisdom of employing the act of state doctrine, they do not

dictate its existence.

The act of state doctrine does, however, have "constitutional"

underpinnings. It arises out of the basic relationships between

branches of government in a system of separation of powers. It

concerns the competency of dissimilar institutions to make and

implement particular kinds of decisions in the area of international

relations. The doctrine as formulated in past decisions expresses the

strong sense of the Judicial Branch that its engagement in the task of

passing on the validity of foreign acts of state may hinder rather than

further this country's pursuit of goals both for itself and for the

community of nations as a whole in the international sphere. Many

commentators disagree with this view; 22 they have striven by means

of distinguishing and limiting past decisions and by advancing various

considerations of policy to stimulate a narrowing of the apparent

scope of the rule. Whatever considerations are thought to

predominate, it is plain that the problems involved are uniquely

federal in nature. If federal authority, in this instance this Court,

orders the filed of judicial competence in this area for the federal

courts, and the state courts are left free to formulate their own rules,

the purposes behind the doctrine could be as effectively undermined

as if there had been no federal pronouncement on the subject.

Barcelona Traction Light and Power Company Case (Belgium v. Spain)

[1970] ICJ the shareholders of a Canadian company asked the

government of Belgium to take their case against Spain which had

expropriated their property. The ICJ decided that Belgium like Kitui

lacked locus Standi to bring the case against Spain on behalf of

shareholders of a company that was not organised in Belgium but in

Canada.

13

Diplomatic protection of nationals abroad = espousing a national’s

claim.

1. On citizenship

This is the one issue in which international law has left to be in the

domain of national government which has the law that defines how to

confer that citizenship and how to withdraw it. It is an area, which

has been left to a state. Only a state can define who its citizens are.

The ICJ will not allow a national who holds dual citizenship to bring a

case against one of the countries he claims to hold citizenship. In the

case of Nottebohm (Liechtenstein v. Guatemala) duo citizenship is not

inimical. The situation of statelessness is not favoured by the

international community and the international community has adopted

a United Nations Convention against statelessness. Nottebohm was a

German by birth (born in 1881) and very rich and in 1905 he moved

from Germany to Guatemala where he was doing a thriving business

and acquired Guatemalan citizenship. At that time his interest was to

protect his property because he was a German and German Property

after the 2nd World war was being expropriated. He was living in

Guatemala. Nottebohm decided after the 2nd World war to go back to

Europe and decide to live in Liechtenstein. In the end Nottebohm

now claimed that his property that had been taken by Guatemala

should be returned to him and Guatemala refused on the ground that

Nottebohm was its national and according to them they had already

satisfied his claim upon which Liechtenstein agreed to take

Nottebohm to the ICJ. The Nottebohm case produced another

principle

14

“Since Nottebohm was a German and for expedience took the

citizenship of Guatemala and that since the end of 2nd world war he

left Guatemala and was living in Liechtenstein without going back to

Guatemala again for many years and yet it was also shown that with

respect to Liechtenstein he went back to his original state Germany,

he therefore did not show any genuine link with Liechtenstein and

therefore Liechtenstein could not bring his case against Guatemala.

In the early 60’s learned publicists did not write works commenting

on court decisions because the courts in the case of Nottebohm went

haywire in deciding that Nottebohm had not established a genuine

link and thus almost rendering him stateless. International jurists

heavily criticized the concept of genuine link that the courts pulled

out as this concept deals with ships.

1. Nature and function of international law

International law relates with the problem of settling issues between

the subjects of international law like two states like Bamburi and

Franconia in relation to Mutakha Mambo.

2. Sources of International Law

Article 38 of statute of International Court of Justice

“On sources of international law therefore and combining with

the function of court of justice article 38 reads “the court whose

function is to decide in accordance with international law such

disputes as are submitted to it shall apply

a. International conventions whether general or particular

establishing rules expressly recognized by the states;

15

b. International Customs as evidence of general practice

accepted as law;

c. General principles of law recognised by civilised nations

(major legal systems of the world;

d. Judicial decisions and the teachings of the most highly

qualified publicists of various nations which shall be

considered subsidiary sources of international law.

International Convention

Covenants

Treaty

International Agreement

Protocol

Accord

Act

Memorandum of Understanding

Charter – Charter of Economic Rights and Duties of States

DECLARATION –

LEGAL STATUS OF EASTERN GREENLAND CASE

(DENMARK V. NORWAY)

Denmark made a declaration that their government would not seek to

occupy a portion of Greenland. The Danish Foreign Minister made

the declaration that the government of Denmark would not occupy

that part of Greenland and it was held to be binding. Greenland could

rely on this declaration to be legally binding. The law is that a

16

declaration made by a person with a legal right to do so is binding.

Recent decision in the,

NUCLEAR TEST CASE (Australia v. France, New Zealand v. France)

[1974] I.C.J. Reports

Australia and New Zealand went to court for provisional measures or

interim measures of protection.

Article 41 “the court shall have the power to indicate if it considers

that circumstances so require any provisional measures which ought

to be taken to preserve the respective rights of either party.”

Does indicate mean that those measures can be complied with? The

argument that it may not mean compliance became overwhelming so

that at a later stage when people were negotiating another statute,

they said the court might prescribe provisional measures.

After the case went to court, before the court could decide, the

government of France made a declaration that they would no longer

conduct any test and the question was, was that a binding obligation

on the part of France on which Australia and New Zealand could rely

now that France had undertaken not to conduct any other test. The

court reminded them of the interim declaration saying that a

declaration by a person with authority to make it can indeed bind the

state in the same way the person is bound and therefore the

declaration was legally binding and the court considered the case

moot.

17

Vienna Convention on the Law of Treaties 1969 this is the treaty that

laid down the rules on how treaties would be laid down and

negotiated. It said that a treaty is an instrument between states or

other subjects of international law governed by international law. It is

an agreement governed by international law in written form. Whether

in a single or more documents and whatever its designation. If it is

governed by international law and it is produced in writing in a single

form or more documents it will still be a treaty.

Exchange of Notes ‘note verbale’ if the delegation of Bulgaria visits

Nairobi and has an appointment to meet with their counterpart i.e. a

minister of the same portfolio when the Minister of Bulgaria goes

back home, he writes a notes verbale (the minister of Bulgaria present

his compliments etcetera) exchange of notes verbale can become lead

to the signing of an international agreement.

MOU -

Conventions as sources of international law

The holding is that statements made by persons believed to

represent a country are binding. We are dealing with

individuals who make declarations that are binding.

1. The UN resolutions/declarations are not legally binding

because they are political in nature and they do no more than

indicate the direction in which countries want to move and

no state can rely on these resolutions because the way they

are framed they are not framed in language that can be

legally binding. It provides inspiration for states to use in

18

other legally binding instruments. Nobody is required to

accept a UN resolution as domestic law.

A declaration and a covenant compared one finds out that there are

things in the declaration that are not found in a covenant.

Only the parts of a declaration that have been incorporated in the

covenant are binding. After the Universal Declaration of Human

Rights promulgation, certain states and courts used the declarations

to rule on issues of human rights.

In the case of Japan it requires an enlightened court to incorporate

declarations in its rulings.

The UN Security Council also passes resolution. The latest is

resolution on terrorism in which it created a counter terrorism

committee and asked states to report on the measures they are taking

aimed at fighting terrorism. This resolution is being complied with by

all states as if it were legally binding.

Kenya has made 3 reports concerning this resolution and is reporting

on the measures they are taking to comply with the Security Council

Resolution under Chapter VII.

Charter of Economic Rights and Duties of States this was drafted

creating rights and obligations. When this has been drafted, the UN

can use the draft and turn it into a treaty that is then presented to

governments at a conference. They normally do this in the general

assembly and when discussion is complete, they pass a resolution;

they annex the text of the charter.

19

The UN Resolution that contained the Economic Rights and Duties of

States is what Gaddafi had relied on in the case of Texaco Oil v.

Libya case.

Charter connotes legally binding instruments this is why when states

decide that they have found a problem which they think can only be

dealt with through internationally concerted effort and which require

a legal framework, they ask whether they need a charter or legally

binding principles. If they are not prepared to enter into legally

binding principles, they enter into a code of conduct e.g. code of

conduct for transfer of technology. Code of conduct for liner

conferences which are later translated into conventions where they

become legally binding. A code of conduct is usually just for

guidance.

The law of state responsibility emerged out of excessive concern of

the western with concern of their nationals abroad. The law has

evolved and now only deals with a wrongful act which a state

conducts against another state. Direct injury to state when there is

violation of a treaty or in a tort situation.

The responsibility which a state has arising from injury to alien is

called vicarious responsibility as opposed to direct responsibility. A

state engages vicarious liability if it arise from the right or failure to

protect an alien.

Rules like exhaustion of local remedies are supposed to allow states to

do justice with their local means. Local remedies rule also performs

the function of allowing states to appreciate their international

responsibilities by preventing injuries.

20

The International Law Commission of United Nations has taken close

to 15 years studying the law of state responsibility having been

emancipated from concern with injuries to aliens so it becomes a

concern.

The law of state responsibility which is bound with protection of

foreign aliens is now emancipated to law that deals with.

ACT OF STATE DOCTRINE:

“Every sovereign state is bound to respect the independence of every

other sovereign state, and the courts of one country will not sit in

judgment on the acts of the other government done within its own

territory. Redress of grievances by reason of such acts must be

obtained through the means open to be available by sovereign powers

as between themselves.”

Barcelona Traction Light and Power Company case (Belgium v

Spain) [1970] ICJ. A Canadian company asked the government of

Belgium where they were doing business to take their case against

Spain. ICJ decided Belgium lacked locus standi to bring the case

against Spain on behalf of the shareholders of a company that was not

organized in Belgium but in Canada.

Citizenship

This is the one issue the international law has been left in the domain

of national government, i.e. only the state who can decide who is the

citizen.

Nottebohm Case (Liechtenstein v Guatemala) [1955] ICJ Reports 4.

Nottebohm was a German by birth during 1935 he moved from

21

Germany to Guatemala where he was doing a thriving business and

acquired Guatemalan citizenship. At that point his interest was to

protect his property (as the allied powers were seizing property of

Germans). After the World War II he decided to go to Liechtenstein

where he also acquired citizenship. In the end Nottebohm now

claimed that his property that had been taken by Guatemala should be

returned to him and Guatemala refused on the grounds that

Nottebohm was their national upon which Liechtenstein agreed to

take Nottebohm’s case against Guatemala. ICJ decision: since

Nottebohm was a German and for expedience took the citizenship of

Guatemala and since the end of the Second World War he left

Guatemala and was living in Liechtenstein without going back to

Guatemala and he went to Germany and only briefly in Liechtenstein,

therefore did not show “genuine link” with Liechtenstein and

therefore Liechtenstein could not bring his case against Guatemala.

The idea of genuine link is also used in the legislation of ships.

International lawyers heavily criticized the decision of ICJ. Decision

rendered Nottebohm stateless.

UN Convention against statelessness

Issues

1. Nature and functions of international law: Settling issues of

subjects of international law.

2. Sources of international law: treaty. Article 38 of the statutes

of the ICJ: “The court whose function is to decide in

accordance with the international law such disputes as

submitted to it shall apply:

22

(a) international conventions whether general or particular

establishing rules generally recognized by..

(b) international custom as evidence of general practice

accepted as law

(c) general principles of law recognized by civilized

nations

(d) judicial decisions and the teaching of the most highly

qualified publicists of the various nations

convention

treaty

international agreement

protocol

accord

act

memorandum of understanding

charter

note verbale, exchange of notes

Vienna Convention on the law Treaties 1959—the treat of treaties:

Said that a treat is an instrument between states or other

international organization governed by international laws in written

form whether in a single or more documents and whatever its

designation.

Exchange of notes: note verbale.

Public International Law-Lecture 3

24 June

23

Trieppel and Strup were the dualists: international law and municipal

law are separate, each with its own sphere and none can oust the

other. International law supposed to regulate relationships between

states among themselves inter se. Domestic laws regulate the conduct

of individuals within the state.

Kelsen and Lauterpacht, these were the monists: we have to see areas

where there might be a conflict and according to them international

law should take precedence where there is doubt. International law

takes over where domestic law stops.

The coordination: coordinating the two systems of law to arrive at a

solution that is judicially defensible.

A case concerning a German …is quoted the world over for the

proposition that the state cannot be permitted to evoke its domestic

law to avoid an international obligation (where a treaty has been

signed).

Article 34 of the ICJ: only states can be parties in cases before the

court.

Self-determination – right of citizens to determine their own destiny

without outside interference.

The force to intervene to deal with situations of chaos is a collective

decision, i.e. does not belong to one state.

24

Being invited becomes a legal argument for the intervening party.

Being invited by itself is not conclusive.

RECOGNITION OF A STATE

It is a term that is used to refer to a situation in which a state

conducts normal international relations with other states, which it

recognizes. Distinguish between recognition of states and recognition

of a government. Once a state is recognized it remains recognized.

You may not want to deal with a particular regime:

1. Government de jure

2. Government de facto

Theories of Recognition

Two theories.

1. Declaratory recognition. Have declared myself I am.

2. Constitutive theory of recognition. Recognition by several

states.

AU: shun governments that come to power unconstitutionally, i.e.

through the bullet.

3. The Estrada theory. Estrada was a Mexican foreign minister

who said a government should not be denied recognition

irrespective of how they got to that position. President Wilson

refused to recognize the Huerta regime in Mexico that

emerged through revolution. This was positive non-

recognition.

Recognition is a very important act. We need a stable frontier. We

need a self-generating population. An act of an unrecognized state

25

What is a belligerent?

ADIZ

Extradition is governed by treaty. There is no customary law in

extradition. Extradition treaty between the two countries operates. It

will spell out the extraditable offence and the procedure in the

domestic country in which the extradition is required to determine

whether the offence is extraditable.

States are always reluctant to extradite their own nationals, even

when there is a treaty. Political offences: nobody should be extradited

for a political offence.

You will only be tried on that only for which you extradited.

Commonwealth extradition treaty. But you can vary it. UN

Convention Against Taking Hostages has a provision saying that if

a hostage taking situation arises between two states that have no

extradition treaty between them, they can use this convention to

effect extradition.

PUBLIC INTERNATIONAL LAW Lecture 4

ASYLUM

Question of Asylum – Mrs. Nyabera seeks protection from the

Embassy of Dandora. An embassy is protected and nobody can enter

26

an embassy without permission of the owners of the embassy. An

embassy is inviolate. This is under United Nations Conventions and

Privileges.

It was claimed that Mrs. Nyabera was a political offender and

seeks safe conduct. This is what happened in the,

Asylum Case (Columbia v. Peru [1950])

A Peruvian Leader named Haya de la Torre had led a rebellion in Peru

and was just about to topple it just like Nyabera. In the same pattern

Haya ran and sought protection in the Colombian embassy in Peru.

The Colombian Ambassador said that Haya was a political offender

and must be given a safe exit out of Peru. This became a matter

referred to international court of justice for determination. The court

decided that it is a 3rd party procedure that can determine whether or

not Haya was a political offender and therefore entitled to safe

passage. The court rejected the Colombian ambassador unilateral

decision to characterize Haya as a political offender entitled to safe

conduct. The court also rejected the Peruvian claim that Haya was a

common criminal because he had been trying to overthrow the

Peruvian government. No particular person can determine whether a

person is a political offender. Only an international court can decide.

He was entitled to asylum but safe conduct was to be negotiated.

Only those who commit political offences will be treated in a political

way.

ASYLUM AND THE LAW OF DIPLOMATIC PROTECTION:

An Ambassador was called His Excellency, Extraordinary,

plenipotentiary titles that are maintained to this day. They were

27

addressed as Plenipotentiary because they were full of power to

represent their governments and extraordinary because they could

make decisions without referring to their governments.

Article 2 paragraph 7 of the Charter of the United Nations: Nothing

contained in the present charter shall authorise the United Nations to

intervene in matters which are essentially within domestic jurisdiction

of any state or shall require the Members to submit such matters to

settlement under the present charter; but this principle shall not

prejudice the application of enforcement measures under Chapter VII.

Connolly Amendment – it is the State itself that can determine that a

matter is within its jurisdiction. The charter says that UN shall not

intervene in matters that are essentially within the jurisdiction of the

state. It is under this article that for years South Africa prevented the

whole world from discussing Apartheid because apartheid was a

matter within the jurisdiction of South Africa and there is nothing the

international community could do except to make South Africa a

pariah. Governments could have nothing to do with South Africa by

trade sanctions, diplomatic sanctions as the countries could not use

force to force South Africa to abandon apartheid.

This was the case until human rights begun to catch on, a state could

treat its citizens in any way it could without a care.

The United Nations Covenant on civil and political rights

The United Nations Covenant on economic and social rights

Now we have a treaty that can be enforced against a state

28

Connolly Amendments – an amendment where a state reserves the

right to determine what is within its own jurisdiction. Bulgaria

invoked the Connolly Amendment when they shot down an American

aircraft in their airspace and America became a victim of its own

wickedness.

The use of force in international relations is prohibited under

Article 2 paragraph 4 of the UN Charter

Which says that “all members shall refrain in their international

relations from the threat or use of force against the territorial

integrity or political independence of another state or in any other

manner inconsistence with the purposes of United Nations.

It is noted that from this the UN Charter is a form of a treaty in which

the member states accept the obligation to refrain from matters which

are not within the jurisdiction of their state and to refrain from the

use of force. This is the formula used after the 2nd World War to

protect and preserve territorial integrity and political independence.

If there is a dispute between two small states, the dispute persists but

if it is between a big state and a small state, the small state

disappears. If the dispute is between two powerful states, the dispute

will disappear.

Article 53 of the Charter of the United Nations which states

“…the security council shall where appropriate utilise regional

arrangements.

29

The Latin American countries popularized the use of regional

arrangements before approaching the United Nations. They had the

Organization of American States that could deal with regional issues.

In Africa they can first try the Organization of African Unity first

before approaching the United Nations.

The Charter of the United Nations is not only a treaty but it is also a

constitution in that it contains provisions that define the powers and

functions of the major organs established under it.

1. The General Assembly is the organ of the UN in which all

member states that are independent up to now except one

are represented and each has one vote. Until two years ago

there were two Switzerland was not a member of the UN but

now it is. Liechtenstein is not a member of the UN.

2. Security Council –

3. Economic and Social Council referred to as ECOSOC

4. Trusteeship council

5. International Court of Justice

6. The Secretary General of the United Nations.

These are the 6 major organs of the UN whose functions are

described in the Charter. By Kenya becoming a member of the UN it

does not necessarily mean that it has accepted the jurisdiction of the

ICJ.

Veto:

Article 23 of the UN Charter

States the Composition of the Security Council.

30

“… the Security Council shall consists of the 15 members of United

Nations, Republic of China, France, Union of Soviet Social Republic,

United Kingdom of Great Britain and Ireland and the United States

shall be permanent members of the security council. The general

assembly shall elect other 10 members to be members of the Security

Council.”

Article 27 of the Charter deals with the vote of Security Council

“each member of the security council shall have one vote. Paragraph

2 decisions of the Security Council on procedural matters shall be

made by an affirmative vote of 9 members.

Decisions of the Security Council on all other substantive matters

shall be made by an affirmative vote of 9 members including the

concurring votes of the permanent members.

A state only needs 9 votes out of 15 but the 9 must include the 5

permanent members and if any of the 5 permanent members does not

agree, even with the other 12 the decision is not adopted.

It would seem as if the United Nations was never intended to take

action against any of the 5 permanent members or their friends. If the

US for example has done something wrong e.g. like by going to Iraq, a

resolution cannot pass because the US will veto it.

Article 24 of the Charter of the United Nations assigns to the

Security Council the primary responsibility in the maintenance of

international peace and security. “In order to ensure prompt action

by the UN its members confers on the Security Council primary

responsibility of maintenance of international peace and the Security

Council will act on behalf of their members. The Security Council

31

under this article was supposed to act as a fire brigade just put out

the fire but the opposite happens with the Security Council, when

there is war, the Security Council discuss the options instead of just

putting out the fire and this has paralysed the United Nations.

Article 14 of the Charter of the United Nations reads as follows

“subject to the provisions of article 12 the general assembly may

recommend measures for the peaceful adjustment of any situation

regardless of origin which deals to impair the general welfare of

friendly nations amongst states.

Asylum

Political offender

Safe conduct

Asylum case (Colombia v Peru). In that case a Peruvian leader of a

revolution called Haya dela Torre. Sought refugee in Columbian

embassy. Columbian ambassador held Haya dela Torre was a political

offender but Peru argued that he was not a political offender. So they

went to ICJ and held that only a third party such as the court can rule

on whether he was a political offender. But the court held that Peru

was wrong to characterize Haya dela Torre as a common criminal.

Therefore he should be given safe conduct.

Extraordinary

Plenipotentiary

32

Article 2 (7): nothing contained in this charter shall authorize the UN

to intervene in matters that are within the jurisdiction of any state

Connally Amendment: it is the state itself which will determine that a

matter is within its jurisdiction. At it was under this article that South

African prevented the whole world from discussing apartheid.

PROBLEM 2:

PART ONE UPTO PARAGRAPH 8

Civil Strife with International Implications:

Does international law permit violation of airspace in case where

countries want to airlift their nationals?

States have used the excuse that they have been invited by the

government in power especially where the said government is

overwhelmed by civil strife. In the cold war, this was a recipe for

disaster because the opposition will also ask another friendly

government to intervene to protect them from the government in

power. As soon as a civil strife torn country invited say USA, the

USSR would rush to the opposition’s rescue. This developed into

cynicism where it was alleged that the superpowers were using

unfortunate situations to test their latest weapons.

International law states that the question of inviting a foreign state to

the rescue violates the sovereignty of that nation and interferes with

the rights of the nationals to decide on their own problems. The law

sanctions against continued loss of life, genocide and unacceptable

33

use of force. The United Nations uses collective legitimate use of

power to end genocide and loss of life.

It has always been the excuse that even where no other party

intervenes, a state is always being criticised for inviting external

forces.

Is the invitation the all and be all? Can one question the

circumstances under which the invitation is issued? An argument in

PIL is never conclusive, when the only organ that has the right to use

force (UN) enters the scene the first thing they do is to ask that the

combatants cease fire. When a nation intervenes to supply arms for

the rebels who are de-stabilising the legitimate government they are

accused of meddling.

Recognition of a state: this is a term used to refer to a situation in

which a state conducts normal international relations business with

another state which it recognises as a state i.e. by opening embassies,

negotiating agreements ,or making a statement recognising it as a

state. Once a state has been recognised, it will continue to exist as a

state. A Government de jure and a Government de facto.

The de jure is the one that possess the sovereignty having been in

power but is being prevented from exercising that power.

De facto does not have the sovereignty but is busy trying to exercise it

(opposition)

If the de facto government is trying to usurp power by use of bullet

other than ballot, then that government ought to be denied

recognition. This brings to mind two theories of recognition

34

1. Declaratory – the opposition has declared as the government

of Elgon;

2. Constitutive – however much one declares to be a state,

nobody will care until a body or a state like the UN or OAU

decide to recognise that state. EU now has in its charter that

where governments are coming to power through coups are

no longer acceptable. If a govt comes to power through the

gun – this leads to the Estrada Theory – Estrada was the

Mexican foreign minister who took the position that even if a

govt comes to power through the barrel of the gun, he should

not be denied recognition. All governments that emerge and

become de jure have sovereignty and control of the country

should be recognised irrespective of how they come into

power. Estrada was responding to a situation in which

President Wilson of USA refused to recognise a regime that

came into power in Mexico through a revolution which was

spearheaded by Huerta. Wilson refused to recognize the

Huerta regime and said that he would never recognise the

Huerta regime (this is positive non-recognition) if there is

ever to be relations such a regime, another positive

statement of recognition would be required. Recognition is

an important political act. It took the USA 20 years to

recognise China.

What is a state? It is more than a national anthem or its currency, it

consists of the general population etc.

International law allows a state to pick its friends through established

rules of international law.

35

By remaining neutral or silent, a state could find itself being accused

of taking sides.

Belligerency – section of the state which is competing to control

power of that state i.e. in this case Nyabera (leader of opposition) it is

entitled to protection as a belligerent and therefore allowed to

request help on its own behalf.

EXTRADITION:

Extradition is only governed by treaties and there is no customary law

of extradition. This means that arresting someone who is alleged to

have committed a crime somewhere else or in ones own country but

against the interests of another country,

Nobody can be extradited to stand trial in another state except in

accordance with the extradition treaty between those two states. In

the treaty of extradition the parties will spell out the extraditable

offences. They will list the crimes for which they agree to turn over

the offenders through the treaty.

Before somebody is turned over the state being requested must see to

it that the offence for which extradition is required is checked by the

domestic state to determine whether the extradition is proper. There

has to be a procedure followed to determine whether to extradite or

not.

No state likes to extradite its own nationals to stand trial elsewhere

especially if the crimes they are accused of can be dealt with locally

whether there is a treaty of not. This is a state practice.

36

There is a big defence against extradition which is a political defence

namely nobody should be extradited for a political offence. Political

offence being so broad one may be accused with all kinds of charges

that are politically motivated.

If one is extradited because the offence is enumerated in that treaty,

one will only be tried only for that offence that they were extradited

i.e. if one is extradited for embezzlement, they cannot again charge

you with any other offence even if it is shown that apart from

embezzlement you are selling drugs.

After Kenya attained independence, Her Majesty convinced Kenya to

subscribe to the Commonwealth Extradition Treaty. Please note that

the treaty can be varied depending on each case. The United

Nations Conventions against taking of Hostages has a provision

saying that if a hostage taking situation arises between two states

who have no extradition treaty between them but if they are a party to

the UN hostage convention, then they can use it to effect extradition.

Collusion under International Law: Kenya criticised for allowing

Israel Entebbe raid casualties to be treated in Nairobi. There is no

law against collusion. There is however retortion, which means that

one state, can withdraw a favour originally granted.

International Public Law-Lecture 5

8 July 2004

The famous article of the Charter of the United Nations:-

37

Article 33 (1):

The parties to any dispute, the continuance of which is likely to

endanger the maintenance of international peace and security, shall,

first of all seek a solution by negotiation, enquiry, mediation,

conciliation, arbitration, judicial settlement, resort to regional

agencies or arrangements, or other peaceful means of their own

choice.”

1. Negotiation

2. Enquiry

3. Mediation

4. Conciliation

5. Arbitration,

6. Judicial settlement

7. Regional arrangements

Good offices -- entered in the 1950s, where a third party enters to

make an inquiry; it is informal. The third party is acceptable to both

parties. It is a mailbox services.

A mediator is different from somebody offering good offices. A

mediator has the power to study the situation from the result of the

enquiry and suggest how to solve the problem, offers solutions to the

problems as he sees them. A person offering good offices may become

a mediator.

Proximity talks, instead of shuttle diplomacy.

Conciliation: elucidates the problems, and is usually several not one,

with a chairman: hence conciliation commissions.

38

Negotiation-enquiries-mediation-conciliation-good office: Informal

non-compulsory procedures for the settlement of disputes, meaning

that whatever solutions arrived can be rejected by any of the parties.

So it is heavily politicized.

And this is why states hesitate to go to the next step: arbitration.

Once again arbitrators appointed like mediators. The arbitrators are

actually judges and the result is binding upon the parties. Known

otherwise as compulsory procedures.

States reluctant to move to the arbitration state, which closes in on

judicial settlement (through pre-constituted courts).

Arbitration is ad hoc. Judicial settlement you chose a court that

already exists.

1962: Ethiopia and Liberia bring a case against South Africa over the

League of Nations trusteeship of South-West Africa. ICJ Agreed the

two countries had the procedural rights to bring the case before the

court.

Four years later, in 1966, the ICJ decides that although Ethiopia and

Liberia have the procedural rights to bring the case, they did not have

any of their citizens in South Africa suffering the injury of apartheid;

therefore the court could not offer judicial. A Pakistan judge excused

himself, thus allowing the majority to make that decision.

Under article 24, a judge can excuse himself by informing the

president of the court.

39

The decision led to a boycott of ICJ by African countries: ICJ was a

white man’s court dispensing white man’s justice.

15 years later after the Security Council had decided to take away the

control of South-west Africa from South Africa and South Africa

refusing to leave.

The UN created the Council for Namibia to take over the

administration of South-West Africa from South Africa, renamed

Namibia. The Council even passed laws to control the mines in

Namibia.

But South Africa continued to sit tight. So in 1971 the Security

Council asked ICJ for an advisory opinion on South-West Africa,

whether South African action was a violation of international law. The

ICJ. The ICJ gave an opinion favourable to Africans and from then on

African countries began taking cases to ICJ.

Article 53, paragraph 1 of the Statutes of ICJ: when one of the

parties does not appear before the court or fails to defend its case the

other side may ask the court to rule in its favour.

Do no harm+ Equitable utilization

Problem 3

1962: Ethiopia and Liberia bring a case against South Africa over the

League of Nations trusteeship of South-West Africa. ICJ Agreed the

40

two countries had the procedural rights to bring the case before the

court.

Four years later, in 1966, the ICJ decides that although Ethiopia and

Liberia have the procedural rights to bring the case, they did not have

any of their citizens in South Africa suffering the injury of apartheid;

therefore the court could not offer judicial. A Pakistan judge excused

himself, thus allowing the majority to make that decision.

Under article 24,a judge can excuse himself by informing the

president of the court.

The decision led to a boycott of ICJ by African countries: ICJ was a

white man’s court dispensing white man’s justice.

15 years later after the Security Council had decided to take away the

control of South-west Africa from South Africa and South Africa

refusing to leave.

The UN created the Council for Namibia to take over the

administration of South-West Africa from South Africa, renamed

Namibia. The Council even passed laws to control the mines in

Namibia.

But South Africa continued to sit tight. So in 1971 the Security

Council asked ICJ for an advisory opinion on South-West Africa,

whether South African action was a violation of international law. The

ICJ. The ICJ gave an opinion favourable to Africans and from then on

African countries began taking cases to ICJ.

41

Article 53, paragraph 1 of the Statutes of ICJ: when one of the parties

does not appear before the court or fails to defend its case the other

side may ask the court to rule in its favour.

Do no harm+ Equitable utilization

Problem 3

PUBLIC INTERNATIONAL LAW Lecture 6 29th

July 04

LAW OF THE SEA:

From the time sailors ventured into the sea, there was a problem of

how far they could go. Coastal states where fishermen go seaward

looking for fish since time immemorial, it was a problem as to how far

the state would extend its jurisdiction to the sea. Two competing

concepts were debated in the early 1600.

John Selden said that the sea was closed or ‘closed sea – mare

clossum that the sea only belonged to countries with coasts. This

was opposed by a Dutch Jurist Hugo Grotius who argued for the

freedom of the sea and that all countries could come to the sea and do

whatever they wanted freedom of the sea – mare liberum. Grotius

won. Which means that the High Seas belonged to everybody and

other countries can come and enjoy. But the declaration of the

freedom of the sea concept did not settle 1930 the question of

determining the extent of coastal state jurisdiction sea-ward how far

coastal state can extend their jurisdiction in the sea. From 1600 –

remained unanswered. Some extended their jurisdiction 3 nautical

miles others 12 and some 20 nautical miles as territorial sea.

42

In 1930 the League of Nations decided to undertake a study of the

Law of the Sea to see if they could settle the question the breadth of

territorial sea. The League of Nations to codify the Law of the Sea

failed and the question of coastal jurisdiction remained unanswered.

3 Nautical Miles was declared by the USA argument has it that that

was the distance of a canon ball shot at the coast. The USA was only

going to acquire territory that it could defend.

In the early 40’s after failure of the League of Nations to settle the

issue there emerged a number of unilateral declarations by states

extending their territorial sea.

In 1947 Harry S Truman’s Proclamation brought in the concept of the

doctrine of Continental shelf. Truman said that the coastal state

jurisdiction should be on the basis of the continental shelf which he

described as a natural prolongation of the land mass. At this time

1947 -1950 in response to Truman some states extended their

territory to 100 nautical miles and most South American countries

extended their jurisdiction to 200 nautical miles of territorial sea.

The United Nations decided to codify Law of the Sea so from 1950 –

1958 the UN was studying and trying to codify international law of the

sea. In 1958 the Geneva Convention on the Law of the sea was

passed. Four conventions were actually passed, one on territorial sea,

one on continental shelf, one on High Seas and one on fisheries

jurisdiction. At this time apart from the countries that had declared

200 miles, the world was beginning to realise it was perhaps not

realistic. The Vienna convention accepted the natural prolongation of

the land mass theory but one can follow the land mass to the extent it

permits exploitation. This became the law of the sea as was produced

43

in 1958. this was the first UN conference on the Law of the Sea.

UNCLOSE I

In 1960 the United Nations there was another convention exclusively

devoted to solving the Fisheries jurisdiction UNCLOSE II. This one

failed miserably. Richard Quenton claimed UNCLOSE II was not a

total failure as he met his future wife here. It failed because it was

unable to answer the crucial question of how far the state could

extend fishing jurisdiction.

Not all countries have continental shelves. There are those shelf-

locked countries which do not even have a coast to speak about.

There are other countries with shelf continuing to the deep sea and

those that have straight coast lines. The legal definition of continental

shelf became the continental shelf proper, continental slope,

continental rise which equals to continental margin. Some states

claimed upto to 600 miles some 500, some 400, some 3000 some land-

locked and others with barely a shelf – how was an agreement to be

arrived at?

It was discovered that countries like Japan could roam the world and

were fishing from coasts of other countries. The United Nations

convened the 3rd United Nations Conference on the law of the Sea

UNCLOSE III this is the one that for almost 8 years began to unravel

all the problems of the continental sea shelf. It was agreed that

efforts must be made to get a solution on how far a state can extend

jurisdiction and the rest would be high seas and whatever was in the

High Seas was to be declared common heritage of mankind.

The seabed, the sub-soil and the resources thereof beyond the limit of

natural jurisdiction were declared common heritage of mankind and

44

cannot be expropriated by any state but can only be exploited on

behalf of mankind.

It took almost 9 years to come to an agreement. The states finally

negotiated and arrived at an agreement …all the countries wanted a

new law of the sea and were ready to agree. In this effort there was

an appeal for all the states to have a territorial sea that extended only

upto 12 nautical miles so now all countries of the world have

territorial seas of up to 12 nautical miles.

Kenya came up with the concept of Exclusive Economic Zone and

floated the idea Frank Njenga the legal adviser in the Ministry of

Foreign Affairs suggested at the meeting of African, Asian Legal

meeting suggested that they tried an area in which the state exercised

less than complete sovereignty. The area was to be called an

exclusive economic zone. The question was how far could the

exclusive economic zone extend? What was to be the regime of the

economic zone?

Landlocked states jumped in and EEZ and wanted to share in the

resources of the EEZ. The Africans met in Kampala and made a

declaration on the Law of the Sea in 1985. Landlocked states of

Africa would exploit the EEZ resources with the same rights as

coastal nations. This was taken to the 3rd World Caucus where the

proposal was rejected. However, it remained a concept of EEZ

remained a viable concept that was finally accepted and is written in

the Law of the Sea. A country can now have 12 nautical miles of

territorial sea and 188 nautical miles EEZ making it a total 200 miles

of jurisdiction.

45

Within the EEZ a coastal state permits other states the right of over-

flight and they can layout pipelines, can install submarine cables

within the EEZ of a state but with that state’s consent. In the

exclusive economic zone, no state can do any research of any kind

without the consent of the coastal state. consent regime on scientific

research and the treaty enumerates the rights and obligations of the

states that want to conduct research on the EEZ, the coastal states

have to approve. Since it is the Western world that have the capacity

to do the research, it became clear that the Western World were not

going to accept the consent regime, the Western World Engineers

manipulated another clause that provides that although there was the

consent regime, they would introduce the concept of implied consent

meaning that if a Norwegian Government ship sent an application to

come and study the mating habits of Lobsters and answered all the

questions as required by the treaty, if they wait for 3 months without

consent, there is implied consent and they can now come and do their

research. States have the right of not being held hostage by other

nations. This implied consent became a big problem to the 3rd world.

The law of the sea took so long to succeed. Some countries have

concave coasts, other convex coasts. The Geneva Convention of 1958

had a provision saying that the states with opposite or adjacent coasts

were to delimit their territories by medium equidistant lines which are

drawn in such a way such that the states with convex and those with

concave could avoid being cut off. But the states with straight line i.e.

between Germany and Netherlands, the question of the use of the

Median/Equidistance line to delimit was tested. Here the court

advocated equitable principles of delimitation so that a state could

avoid an unjust result. Where it was possible to use the

Median/Equidistance line one could use where not one could use

other methods of delimitation and up to today the Law of the Sea

46

failed to reach an agreement on the method of delimitation. Look at

the Pemba Channel delimitation.

In the area of managing the fisheries, every state has the right to

sustainably develop the resources of the EEZ as follows:

Our scientists must tell us that for the Lobster in order to achieve

avoiding over-utilisations and under-utilization of the species, the

scientists must every year tell us how to maintain maximum

sustainable yield of the Lobster so that we do not over-utilise the

species. The scientists must tell us the total allowable catch. The

law requires that if a state’s technical capability allows it to only

harvest 60% less than optimum yield, the law requires that state to

declare the surplus. The problem arises though where states may

have submarines in other states’ coasts without anyone knowing what

they are doing and developed countries do sometimes dispute the

figures that are given but not so developed states like Kenya.

Continental shelf

They agreed to give the coastal states the continental shelves upto to

the slopes, this was not unanimously agreed. They then allowed 60

extra nautical miles from the slopes and the states refused. The

scientist were called in who said that the difference was in the earth

crust and the ocean crust – just follow the sand sediments and you will

know when you are exiting the earth crust and in any case more than

350 nautical miles was disallowed. Stay within the earth crust but

don’t go beyond 350 nautical miles. The law of the sea is now the

continental shelf, the slope and the earth’s crust and not more than

350 nautical miles of the earth’s crust.

47

The deep sea bed area is the common heritage of mankind. The

minerals like manganese nodules are potato crisps like nodules which

are rich in Nickel, copper, cobalt which can be mined and distributed

to mankind.

USA, France and Germany who had the technology to mine the sea

beds and have access to the minerals were stopped from exploiting

the minerals wanted automatic access to the sea bed had to agree to

keep the sea shelf for upto 350 nautical miles to be allowed automatic

access to the minerals in the common heritage sea bed area.

Two studies were commissioned on the economic consequences of

seabed mining, whether the seabed mining had the capacity to affect

the economies of states who depended on mining the minerals in their

own countries. The two studies produced opposite results. The

question of automatic access to seabed mining was therefore rejected

as the 3rd world created their poor multinational called enterprise.

This enterprise was supposed to be the operational arm of the seabed.

They created the Seabed authority to govern all the activities of

seabed mining. Only the seabed authority could giving mining

authority to prospecting states. The Seabed Authority came up with

the banking system that allowed them to negotiate with the countries

with technology such that where they allowed mining, the area was to

be divided into two equal parts, one for the prospecting state and the

other for the Authority to negotiate and share with a company that

could share the proceeds with the Authority.

All these problems were surmounted and there was a new law of the

sea, all states agreed they wanted a new law of the sea and in the

spirit of compromise, consensus to deal with issues and agree came

out.

48

PUBLIC INTERNATIONAL LAW Lecture 7 6th

August 04

PROBLEM III

The chase of Ogulmama chased a foreign vessel to the High Seas –

this is the concept of hot pursuit. This exists in customary

international law and was frequently used by Coastal States in

relation to their territorial seas (which was an area of coastal

jurisdiction and a state could pursue a ship that invaded its waters.

Article 111 of Law of Sea – establishes concept of the Law of the Sea.

States as follows the hot pursuit of a ship may be undertaken …

Such pursuit must be commenced

Hot pursuit can now be applied mutatis when …

mutandis in the EEC including safety zones. The pursuit may only be

commenced after a visual or auditory signal has been issued or

There is no indication that ogulmama sent any signal to stop the

foreign ship so there was no ship or auditory or visual signal.

Para 3 – foreign vessels claims to be in the High Seas Ogulmama

claims the ship is in the EEC.

Ogulmama had no business to enter into the foreign ship if it was in

the High Seas. The ships fly the flags of the states of which they are

nationals. In the High seas they are only subjects to the jurisdiction of

the states whose flags they fly. In the High Seas the ships are

assumed to be in the territory of the state whose flag it is flying and

cannot be subject to any other jurisdiction. Objective territory.

49

Since states are equal they are sovereign you cannot enter their

territory without their permission. In customary international law the

case most cited for hot pursuit concept is called I’M Alone Case.

The case most cited for objective territoriality is the Lotus Case

Paragraph 4:

A government ship entitled to protection under customary

international law means that “it was a government ship that enjoyed

sovereign immunity.” What is sovereign immunity? There are two

types

1. Public Acts of a State: - Acta jure Imperil’ total immunity

2. Private Acts of a state: - (Commercial Activities of a state) Acta

Jure Gestionis – qualified immunity to begin with then finally no

immunity.

for years US, UK Germany France claimed that Act Jure Imperil are

immune from questions by anybody. Later on they began to change

the rules and to come up with the private acts of a state or

commercial activities of a state which are not immune – they don’t

have total immunity. And finally they have no immunity at all. There

were a lot of disagreements and the United Nations suggested that a

particular legal standard be made on jurisdiction of immunity.

The developed nations tried to codify the acts which would be act jure

gestionis for which no immunity would be granted. The study went on

for 15 years. The conclusion and the model treaty which was

suggested has not been produced even today. This is because it

became baffling to the states on why the developed nations were

50

passing on sovereign immunity Acts saying that the acts they enjoyed

before are now no longer going to be covered by immunity. The draft

articles produced never saw the light of day because the argument

was that if a state undertakes a commercial activity and competes

with individuals and they all sign a contract with the same supplier,

how is the problem where one refuses to pay and the other one is

compel to be resolved.

For an act to be act jure gestationis Nigeria in the Trendtex Case

argued that they had bought cement from Texas to build army

barracks, they argued that the nature of the contract. Which was for

government purposes, if the activity involved was an act that any

ordinary person would do, then it could not be afforded immunity.

Properties that Foreign states owned abroad how were these to be

treated? One cannot attach the property of a foreign state. This

means that domestic courts cannot issue judgments against other

states and their property. This jurisdiction.

Sovereign immunity -

Act of state doctrine – every state should respect the sovereignty and

political independence of other states. An act of one state taking place

within its own territory is not subject to be question by the court of

another state. not the same as saying that a state is immuned from

jurisdiction.

In trendtex Case it was sovereign immunity Nigeria was claiming as

the act happened in Texas.

For a court to conclusively establish that International Law forms part

of the law of the State ‘Paquette Habana’ is the case most quoted

51

where the court confirmed that international law forms part of the law

of the state.

West Rand Central Mining Company V. The King – cited for Her

Majesty’s judges confirming that International law forms part of

England’s state law.

Withdrawal of Ambassadors is meant to show displeasure.

Severing diplomatic relations

International Tribunal for the Law of the Sea,

Provisional Measures – under Article 41 of the Statute of ICJ the court

shall have the power to indicate provisional measures if it considers

that circumstances so require. Any provisional measures which ought

to be taken to preserve the rights of both parties.

Article 290 – If a dispute duly submitted to a court or tribunal which

considers that prima facie it has jurisdiction under the Article the

Court or tribunal may prescribe provisional measures which it

considers appropriate under circumstance to protect the rights of

either party.

The difference between Article 290 (1982) UN law of the Sea and the

article 41 OF THE Statute of the ICJ is that this one had power to

prescribe provisional measures and once prescribed they were meant

to be complied with and the former was meant to indicate.

52

If there is a conflict between states that have not both accepted either

the ICJ or the International Tribunal for the Law of the Sea, the case

should go for Arbitration.

A Compromis is the legal term referring to an agreement between

states that the parties have agreed to submit a certain dispute to an

agreed forum to which they have conferred jurisdiction for dispute

settlement.

PUBLIC INTERNATIONAL LAW Lecture 8

PROBLEM IV

Treaty

How are treaties negotiated.

Usually a problem is identified by states and meetings are held.

NOTE VERBAL (Verbal Note)

The instruments exchanged between governments to initiate

communication between themselves.

1. Convention:

2. International Agreements

3. Accord

4. Protocol

5. Covenants

6. Charter

53

7. Memorandum Of Understanding – an instrument with

connotations and legal consequences for non-compliance.

These are all means of recording agreements reached on negotiations.

There are no hard and fast rules to the distinctions of the above.

Because of this reason the international community got together to

decide how to negotiate all these instruments and they called it the

Law of the Treaties. All these terms are alright but they will stick to

the term Treaty.

Vienna Convention on the law of treaties: a treaty is an international

agreement concluded between states in writing governed by

international law and may be in a single or more documents whatever

designation.

Preamble: a preamble is a part of a treaty in which the drafters

establish the philosophy, inspirations and reasons why they are

putting a particular matter in writing. The preamble is the rationale

behind the desire to have the treaty. Examples of a preamble is

where states after realising that something they are responsible for

together they get together to form a treaty. The preamble will be the

inspiration of the subject matter. They have to have an issue in

common. E.g. in problem IV sustainable use of Lolwe river.

Every treaty must have a preamble and a final clause. Final clause is

where the treaty says that it will be open for signature when the

treaty is concluded. The text of a treaty is deposited with a person

who keeps the text and circulates it to all the involved parties.

Usually it is head of an organisations e.g the Secretary General of

OAU etc.

54

The law of treaties is to the effect that a state negotiating a treaty can

sign within the specified period wherever it has been agreed upon to

be signed within a certain period.

The law of treaty says that the treaty in the final clause shall be

subject to ratification, accession or approval. These are key terms in

any treaty and together they are referred to as expression of consent

to be bound.

If a state takes part in the negotiation of the treaty and the treaty

opens for signature, unless the treaty itself permits the only way a

state can bind itself is by ratification, signature and then ratification.

Ratification is done by producing an instrument to express consent to

be bound.

Where the treaty was negotiated and never signed because open day

has expired, it means the state who did not sign on time can no longer

become party to it and can only become party to the treaty by

accession.

Signature alone does not mean that if a country signs it becomes

bound on that date of signing unless the treaty permits but this is

rare.

The final clause will also by agreement of the state negotiating decide

how many such instruments i.e. ratification, accession, approval are

needed for that treaty to enter into force. Entry into force of a treaty

– i.e. the treaty shall enter into force on 30th August 2004. Once it is

signed and ratified by a number of states even though it has not

reached the maximum number but once it receives 7 stated

instruments, it is ready. The treaty only becomes law when it

55

achieves the 7 instruments of a treaty it enters into force. The states

themselves agree on how many instruments are required before the

treaty can be binding. For example the state can agree on how many

instruments are required to make the treaty binding.

Ratification, Signatory, Accession

Ratification - The state binds itself to the convention and agrees to

immediately start implementing steps to realise the rights contained

in the covenant;

Signatory – The state shows willingness to be bound by the

convention, but the convention is not binding on it yet;

Accession – Instead of signing and then ratifying a convention, a

state becomes party to it by a single act.

A state can send its instruments of ratification indicating what it

chooses to be bound by. The reservation must be indicated in the

face of the instrument and when the reservation has been formulated

and received by the depository it is circulated to all parties who have

agreed to be bound. Please note that the treaty must be one that

allows reservations. There are however treaties that says they are not

subject to reservations and this means that all its clauses must be

accepted by everybody. The states that feel that they will not ratify a

treaty that does not permit reservations may decide to vote against it.

If a treaty is silent about reservations, can a state make reservations

anyway? Yes a state can make reservations but not to the article that

forms the fundamental purpose of the treaty. The reason why

The law of treaty will decide whether a reservation effectively nullifies

the membership of a state to that treaty. Most treaties opt for a no

reservation clause or silence.

56

CLEAN SLATE DOCTRINE (Tabular Rasa)

Where a state becomes independent and says it will no longer be

bound by the treaties ratified by the colonial masters and want to

start with a clean slate.

Concept of historical rights: Egypt insisting on historical rights vis-à-

vis waters of the Nile.

PUBLIC INTERNATIONAL LAW Lecture 9

PROBLEM IV

The population dependent in riparian in each riparian state.

Equitable utilisation of a river

The idea of treaty law and conflict management in dealing with shared

natural resources like rivers.

PROBLEM V

There are 5 international relations problems

Mining Contract – Concession- an agreement between a

sovereign state and a corporation is called a concession. It is also

called a ‘State Contract’ signed between a state and a natural or

juridical person.

57

Which law governs the contract? Lex loci celebrationis - the

law of the place where the contract is negotiated, the contract makes

the choice on whether to follow the law of the place where the

contract was negotiated or the law of the state that party to the

contract.

Any dispute arising from such contracts – usually the contracts have

an arbitration clause.

Choice of laws and dispute settlement.

There must be Environmental Impact Assessment after mining is

completed e.g. to fill the holes already dug and to leave the area in a

habitable way. This is called an Agreement for Natural Resources

Development. If a company wants to build a subsidiary foreign

company, it has to use local materials, if it is employing many people

it has to build schools for the children of the employees living there, if

they are prospecting for hard minerals or oil, the expert prospectus

must be accompanied by local experts of technology.

Jus cogens – this is the peremptory norm, the norm that cannot be

delegated to it will prevent states from conspiring to attack another

state. Other states cannot also enter into an agreement in which they

produce counterfeit.

Can countries change their boundaries? In 1964 the OAU meeting in

Cairo passed a resolution in which they all agreed to accept

unchanged the inherited colonial boundaries at independence. This is

the principal adopted by African Countries relying on the principle of

not disturbing the boundaries and leaving them as they were – the

58

principle is called Uti Possidetis. This principle is invoked

on any country that wants to change boundaries.

The principle of proportionality: The crossing of the border to another

country could be met by a comparable force proportionate to the

force that is incoming or in responding to an unarmed attack.

Refer to the case of Naulilaa Case:

Provisional Measure of Protection Interim Measure of protection

under International Law and under domestic law is called an

interlocutory injunction: this is where somebody wanting to stop

some activities from continuing while there is a dispute going on.

Article 41 of the Charter of the United Nations. The court must

weigh the case before it and indicate if it considers the circumstances

required to preserve the rights of the party, but where the court feels

that the activities are going on that are not okay the court will

preserve the rights of the parties.

Article 62 of the Charter deals with question of an interest of a legal

nature. Intervention is only allowed where the interest being

protected is of a legal nature.

The Temple Preah Vihear Case [1962] I.C.J. Reports (Thailad& Burma

Changing your position to the detriment of another person who relied

on your position before it was changed is estopped. The doctrine of

estoppel.

This country is estopped from denying since it acquiesced.

59

Walvis Bay was administered as part of Namibia although it was part

of the Orange Free State in South Africa. When South Africa realised

that Namibia was about to become independent they annexed Walvis

Bay. South Africa had not raised the question of Walvis Bay for the 10

years that Namibia was fighting for independence. As the matter

came up and became a problem, the republic of South Africa declared

Walvis Bay annexed to its territory but Namibia re-annexed it back to

Namibia, it was held that Walvis Bay was part of Namibia and South

Africa could not all of a sudden change its position and declare that

Walvis Bay is not part of Namibia, South Africa was estopped from

claiming Walvis Bay.

Acquiescence and estoppels, one must show conduct, reliance upon

that conduct, detriment from that reliance.

60