Public International Law Notes | B.A. LL.B. (Five Year Course) Semester 9 | Mumbai University | munotes

So States built a set of rules, slowly and mostly out of self-interest, about the things they could not manage alone: the sea, ambassadors, war, treaties, trade. That is international law, and it exists because the alternative is worse for everybody, including the strong.

Its nature: how it differs from the law you already know

A student meeting this subject has already studied contract, crime and procedure. Those are all vertical systems: there is a legislature above you making the law, a court above you applying it, and a police force above you enforcing it. You are the subject of the system, not a maker of it.

International law is horizontal. The same States that are bound by the rules are the ones that make them. There is no world parliament that can pass a law binding India without India's agreement. There is no court that a State can be dragged before against its will. There is no international police force.

That single structural difference explains almost every feature of the subject that beginners find strange, and it is worth setting out plainly.

Do not read that table as saying international law is a weaker version of real law. It is a different kind of system, built for parties who are equals. Whether it is law at all is a genuine and famous argument, and it has a chapter of its own: [Is International Law Really Law?].

Its origin

The ancient world

Rules between political communities are as old as political communities. Treaty texts survive from the ancient Near East, the earliest well-known one being between Egypt and the Hittites in about 1259 BC, dealing with peace, the return of fugitives and mutual defence. Ancient India had its own body of rules on envoys, on the conduct of war and on treaties, discussed in the Arthashastra and in the Dharmashastra literature; ancient Greece had rules between city-States about heralds, truces and the treatment of the dead; and Rome had the ius gentium, meaning the law of peoples, which was really the part of Roman law applied to foreigners.

None of that is international law in the modern sense, because none of it presupposed a world of equal sovereign States. It matters for a different reason: it shows that wherever separate communities have dealt with each other regularly, they have produced rules, which is the strongest practical answer to anyone who says such rules are unnatural.

The birth of the modern system: 1648

The modern subject begins in Europe, and the conventional date is 1648.

The Thirty Years War had wrecked central Europe. It ended with the Peace of Westphalia, a pair of treaties signed at Munster and Osnabruck. What made Westphalia a beginning rather than just another peace was what it settled: that each ruler was supreme within his own territory, that no outside authority, including the Pope or the Emperor, could dictate the religion or the internal government of another State, and that States dealt with one another as legal equals.

That is the Westphalian system, and the word is still used. Its three ideas, territorial sovereignty, legal equality of States, and non-intervention in internal affairs, are the ideas that Chapter I of the United Nations Charter restated three centuries later.

Grotius

Hugo Grotius, a Dutch jurist writing in the same century, is called the father of international law, and the title is deserved even though he invented neither the subject nor the phrase.

His great work, De Jure Belli ac Pacis, meaning On the Law of War and Peace, appeared in 1625, in the middle of that war. Three things in it changed the subject.

He argued that the law between nations rests on natural law, meaning principles of reason that hold good whether or not any ruler has commanded them, and famously that they would hold good even if there were no God. That freed the subject from theology at a moment when Europe was tearing itself apart over theology.

He treated the practice and agreement of nations as a second source alongside reason. That is the ancestor of custom and treaty as we now know them.

And he wrote about the sea. In an earlier work, Mare Liberum, meaning The Free Sea, published in 1609, he argued that the sea cannot be owned by any nation and must be open to all. That argument, made for the commercial convenience of the Dutch, became the freedom of the high seas, and you will meet it again in [The High Seas].

Grotius is not the only name of the period and an answer that mentions only him is thin. Francisco de Vitoria in sixteenth-century Spain argued that the peoples of the Americas had rights that Spain was bound to respect. Alberico Gentili, an Italian who taught at Oxford, wrote on the law of war before Grotius did and insisted that theologians keep out of it. Samuel Pufendorf carried the natural-law tradition forward, Cornelius van Bynkershoek and Emmerich de Vattel in the eighteenth century turned it towards the practice of States, and Bynkershoek's cannon-shot rule, that a State's control at sea extends as far as a cannon can fire, is where the old three-mile territorial sea came from.

From Westphalia to the First World War

Between 1648 and 1914 the subject grew mostly by accumulation of practice, with occasional bursts.

The Congress of Vienna in 1815, after Napoleon, produced the first modern rules on diplomatic ranks and on free navigation of international rivers. The nineteenth century produced the first permanent international organisations, which were technical rather than political: the International Telegraph Union in 1865 and the Universal Postal Union in 1874, both still alive inside the United Nations family. The Hague Peace Conferences of 1899 and 1907 produced conventions on the law of war and set up the Permanent Court of Arbitration, which still sits at the Peace Palace and still decides cases in this book, including the one in [The Bay of Bengal Maritime Boundary Arbitration].

This is also the period the subject is criticised for. International law of this era was European law, applied among European States and applied to everyone else as an instrument of empire. Doctrines of the time openly divided the world into civilised, barbarous and savage nations, and the phrase "civilised nations" survives in article 38 of the Statute of the International Court of Justice to this day, an embarrassment that is dealt with in [General Principles of Law Recognised by Civilised Nations].

The balance of power

The organising idea of the European order between Westphalia and 1914, and MU has asked for it, so it needs stating and placing.

What it meant. No single State should become strong enough to impose its will on the rest, and to that end the others would combine against whichever State grew too powerful. It was a doctrine of policy, not a rule of law: no treaty required it and no court applied it, and it operated by shifting alliances, by territorial compensation when one State gained, and, when those failed, by war.

How it relates to law. It supplied the conditions in which the classical law could work. Sovereign equality made sense in a system of several roughly comparable Powers; the rules on neutrality, on the acquisition of territory in [Acquisition of State Territory], and on treaties of guarantee all assumed that States would balance one another. And it explains why the classical law tolerated war: if the ultimate corrective is a coalition against the over-mighty, then war cannot be prohibited, and it was not.

Why it failed, and what replaced it. The balance did not prevent the First World War; it helped to produce it, by turning a local quarrel into a general one through the alliances that were supposed to keep the peace. The response was collective security, which is the opposite idea: instead of shifting coalitions responding to power, a permanent organisation determines that a breach has occurred and the whole membership responds. The League tried it and failed, and the Charter tried it again, with the machinery in [The Use of Force and Collective Security].

The comparison an examiner wants. Under a balance of power, force is lawful and is the regulator. Under collective security, force is prohibited by article 2(4) and the only lawful uses are self-defence under article 51 and action authorised by the Security Council. Whether the Charter system has in fact replaced the balance, or whether the veto has preserved it inside the Council, is a fair question and the honest answer is that both are true in part.

Its development in the twentieth century

The League of Nations

The First World War killed something in the order of seventeen million people, and the response was the first attempt at a permanent, general, political organisation of States: the League of Nations, created by the Covenant that formed Part I of the Treaty of Versailles in 1919, with its seat at Geneva.

The League tried to do three new things. It tried to make war a matter of common concern rather than a private right. It set up the Permanent Court of International Justice at The Hague in 1922, the first standing world court, whose decisions are still cited and several of which appear in this book. And it created the International Labour Organisation in the same year, which outlived it and has a chapter of its own: [The International Labour Organisation].

It failed, and the reasons are worth knowing because they explain the design of what replaced it. The United States never joined, despite its President having proposed it. Germany, the Soviet Union and Japan joined and left. Decisions of the Council and Assembly generally required unanimity, so any one member could block action. The Covenant did not prohibit war outright; it required delay and inquiry before resorting to it. And the League had no armed force and its members would not act. Japan invaded Manchuria in 1931, Italy invaded Abyssinia in 1935, and in each case the League condemned and did nothing effective.

The Kellogg-Briand Pact of 1928, formally the General Treaty for the Renunciation of War, belongs to the same decade and is often asked about. Sixty-odd States renounced war as an instrument of national policy. It was ignored within a few years, but it was not useless: it is the first general treaty prohibition of war, and it is the basis on which aggression was later treated as a crime.

The United Nations

The Second World War killed something in the order of sixty million people. The Charter of the United Nations was signed at San Francisco on 26 June 1945 and came into force on 24 October 1945.

The Charter is where this subject now begins in practice, and Module III of your syllabus is largely about it. Four of its innovations changed international law itself rather than merely creating an organisation.

A general prohibition on force. Article 2(4) requires all Members to refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any State. That is a far wider prohibition than the League's, and the exceptions to it are narrow: self-defence under article 51, and action authorised by the Security Council under Chapter VII. This is the subject of [The Use of Force and Collective Security].

A body that can act. The Security Council under Chapter VII can take decisions binding on all Members, including sanctions and the use of force. The League had nothing like it. The price was the veto, and that is dealt with in [The Security Council: Composition, Voting and the Veto].

Self-determination and decolonisation. The Charter mentions self-determination of peoples in article 1(2), and Chapters XI and XII created obligations towards non-self-governing and trust territories. Within thirty years the membership of the United Nations more than trebled, and the new members were not European. That, more than anything else, changed whose law international law was.

A court with a Statute annexed to the Charter. The International Court of Justice replaced the Permanent Court, and every Member of the United Nations is automatically a party to its Statute.

After 1945: the four directions of growth

The subject has grown in four directions since, and every one of them is somewhere in your syllabus.

It stopped being only about States. International organisations became subjects of international law in their own right, which the International Court decided in 1949 in the Reparation for Injuries advisory opinion, worked in [Subjects of International Law]. Individuals acquired rights that they can assert and duties for which they can be punished. This is [Subjects of International Law].

It was written down. The International Law Commission was set up by the General Assembly in 1947 to promote the progressive development and codification of international law, and the conventions it produced are the backbone of the subject: the law of treaties in 1969, diplomatic relations in 1961, the law of the sea in 1982, and the articles on State responsibility in 2001. Four of those are the instruments this book teaches.

It reached inside the State. Human rights, refugees, the environment, health and trade are all now regulated by international law, and all of them concern how a State treats people and things within its own territory. That would have been unthinkable to a Westphalian diplomat.

It acquired institutions with teeth in specialised fields. The World Trade Organization has a dispute settlement system whose rulings States mostly obey, and the International Tribunal for the Law of the Sea and the International Criminal Court decide cases in their own areas.

India and international law

Your syllabus expects you to know India's position, and MU's own printed course objectives say so. Three points belong here and the detail follows later.

India was a founding member of the United Nations, and in a curious way a member before it was independent: British India signed the Charter in 1945. India was also an original member of the League and of the International Labour Organisation.

India's Constitution takes an unusually clear position for a constitution of its date. Article 51 directs the State to endeavour to promote international peace and security, to maintain just and honourable relations between nations, to foster respect for international law and treaty obligations, and to encourage settlement of international disputes by arbitration. It is a Directive Principle, so it is not enforceable in a court by itself, but it is a direction to the whole State.

And India has been a maker of the modern law, not only a receiver of it. Indian delegations shaped the law of the sea negotiations, India is a registered pioneer investor in deep seabed mining under the regime discussed in [The Area, and the Parallel System of Mining], and India has appeared before the International Court and before arbitral tribunals, including in the two cases your syllabus names by name.

A worked example, to show the whole system at once

Take a concrete problem and watch every part of this chapter come into play.

A cargo ship registered in Panama, owned by a Greek company, crewed mostly by Indians, is carrying goods from Dubai to Kolkata. Fifteen nautical miles off the Indian coast its engine fails, it drifts, and oil leaks into the sea, damaging fishing grounds. Who can do what?

Sovereignty and territory decide the first question. Fifteen miles out is beyond India's twelve-mile territorial sea but inside its exclusive economic zone, so India does not have full sovereignty there but does have sovereign rights over the living resources and jurisdiction over the protection of the marine environment. Those zones are drawn in [The Exclusive Economic Zone].

Treaty supplies the rules: the United Nations Convention on the Law of the Sea 1982, to which India, Panama and Greece are all parties, and separately the pollution conventions.

Nationality decides who may complain on whose behalf. The ship has Panamanian nationality by registration; the crew have Indian nationality; the company has Greek nationality. Which State may bring a claim for which injury is the subject of [Treatment of Aliens and Diplomatic Protection], and the answer is not obvious.

State responsibility decides whether Panama or Greece has broken an obligation and what it owes, which is [State Responsibility].

Municipal law decides whether an Indian court can try anybody, and whether India's own Territorial Waters, Continental Shelf, Exclusive Economic Zone and Other Maritime Zones Act 1976 gives it that power, because an Indian judge applies the Indian Act and not the Convention directly. Why that is so is [International Law in Indian Courts].

Notice what did not happen. No world government stepped in. No international police boarded the ship. Every step runs through rules the States themselves made and through courts they themselves agreed to use.

What it does NOT mean

It is not the law of the United Nations. The United Nations is one institution created by one treaty. International law is older and larger, and most of it operates nowhere near the UN.

It is not private international law. Private international law, also called conflict of laws, is a part of each country's own municipal law. It decides which country's law an Indian court should apply to a contract signed in Dubai and which country's judgments it should enforce. It governs disputes between private parties. Public international law governs relations between States. Your syllabus lists textbooks on both, so read the title of a book before trusting it for this paper.

It is not the same as foreign policy. What a State ought to do politically and what it is legally obliged to do are different questions. Confusing them is the commonest fault in weak answers.

It is not a Western invention that India merely received. That was a fair description in 1900 and it is not one now. Decolonisation changed the membership, and with it the content: the permanent sovereignty of States over their natural resources, the common heritage of mankind, and special and differential treatment in trade law were all pressed by newly independent States, India among them.

Limits and criticism

Three criticisms are serious and an examiner rewards a candidate who states them fairly.

It is weak where it matters most. International law works well on postal rates, aviation, shipping and trade, and works worst on war and the use of force, which is exactly where its failure costs most.

It reflects power. The five permanent members of the Security Council hold a veto that no other State holds. That is written into the Charter, and it means the enforcement machinery cannot be used against them or their close allies.

Its origins are not innocent. For most of its history it was made by a small group of States and applied to the rest, and doctrines such as terra nullius, meaning land belonging to no one, were used to justify taking land that was plainly occupied. The subject has moved a long way from this, but a student who does not know the criticism cannot answer a question that raises it.

Quick revision

International law is the body of rules governing relations between States and other subjects such as international organisations.

It is horizontal, not vertical: the same States make it, are bound by it, and enforce it. No world legislature, no compulsory court, no police.

Origin: rules between communities are ancient, but the modern system dates from the Peace of Westphalia, 1648, which established territorial sovereignty, the legal equality of States and non-intervention.

Grotius, De Jure Belli ac Pacis (1625), is the father of the subject: natural law as its basis, the practice of nations as a second source, and the freedom of the seas in Mare Liberum (1609). Also Vitoria, Gentili, Pufendorf, Bynkershoek and Vattel.

League of Nations, 1919: first general political organisation, the Permanent Court of International Justice, the ILO. Failed because the United States stayed out, decisions needed unanimity, war was restricted rather than banned, and there was no force behind it.

United Nations Charter, signed 26 June 1945, in force 24 October 1945: the article 2(4) prohibition of force, a Security Council that can bind Members, self-determination, and the International Court of Justice.

Since 1945: new subjects beyond States, codification by the International Law Commission, expansion into human rights and the environment, and effective institutions in specialised fields.

India: a founding member of the United Nations; article 51 of the Constitution directs the State to foster respect for international law and treaty obligations.

Do not confuse public international law, which is between States, with private international law, which is a part of each country's own law about which law applies to a foreign-element dispute.

Test yourself

1. Define international law in one sentence, then say what makes it different from Indian law.

International law is the system of rules governing relations between States and other subjects of international law such as international organisations. It differs from Indian law in being horizontal: the States bound by it are the ones who make it, no court has compulsory jurisdiction over a State that has not consented, and there is no central police force. Indian law is vertical, made by a legislature above those bound, applied by courts they must attend, and enforced by the State.

2. Why is 1648 treated as the birth of modern international law?

Because the Peace of Westphalia ended the Thirty Years War on terms that established the three ideas the modern system is built on: each ruler is supreme within his own territory, no outside authority may dictate another State's internal affairs, and States deal with one another as legal equals. Rules between communities existed long before, but not among equal sovereign States.

3. Why is Grotius called the father of international law, and is the title fair?

He is called that because De Jure Belli ac Pacis (1625) grounded the law between nations in natural law rather than theology, treated the practice and agreement of nations as a second source, and, in Mare Liberum (1609), argued for the freedom of the seas. The title is only roughly fair: Vitoria and Gentili wrote before him, and Bynkershoek and Vattel did as much to turn the subject towards State practice. He is the father in the sense of giving the subject its first systematic statement.

4. Give three reasons the League of Nations failed, and say how the United Nations Charter answered each.

The United States never joined, so the League lacked the strongest power; the Charter did not solve this by design but the UN has had near-universal membership. Decisions generally required unanimity; the Charter replaced this with majority voting, subject to the veto of the five permanent members. The Covenant restricted rather than prohibited war and provided no effective enforcement; article 2(4) prohibits the threat or use of force generally, and Chapter VII lets the Security Council take binding measures including force.

5. A question asks you to "critically examine the nature of international law". What are the two halves of that answer?

The first half is descriptive: it is horizontal, made by treaty and custom, binding chiefly on States, with consensual courts and decentralised enforcement. The second half is critical: it is weakest precisely where it matters most, on the use of force; it entrenches the power of the five permanent members through the veto; and its historical origins are European and imperial, though decolonisation has changed both its membership and its content. A good answer gives both halves and does not pretend the criticisms are unanswerable or fatal.

6. Distinguish public international law from private international law.

Public international law governs relations between States and other subjects of international law, and its sources are treaty, custom and general principles. Private international law, or conflict of laws, is part of a country's own municipal law and governs disputes between private parties with a foreign element: which country's law applies, which court has jurisdiction, and whether a foreign judgment will be enforced. An Indian statute or an Indian precedent can settle a private international law question; it cannot settle a public international law question.

"Considered legally binding." Not "binding", but considered binding, by the States themselves. That is a consent-based, positivist view: the law is what States accept as law.

"Civilised States." The nineteenth-century division of the world into civilised, barbarous and savage nations, dealt with in [What International Law Is, and Where It Came From]. The phrase is indefensible now, and later editions of the same treatise dropped it.

"In their intercourse with each other." States only, and only in their external dealings. Nothing about individuals, nothing about organisations, and nothing about how a State treats its own people.

The other classical definitions

An examiner expects more than one, and the four below are the ones the standard reading list carries.

J.L. Brierly: the law of nations, or international law, may be defined as the body of rules and principles of action which are binding upon civilised States in their relations with one another. Note what Brierly changes: he says binding upon, not "considered binding by". That is a small phrase carrying a large claim, because it does not make the obligation depend on the State's own opinion.

Charles Fenwick: international law may be defined in broad terms as the body of general principles and specific rules which are binding upon the members of the international community in their mutual relations. Fenwick's phrase members of the international community is wider than "States", and it is the opening through which organisations later walked.

J.G. Starke, whose Introduction to International Law your syllabus lists in two editions, gives the definition that is closest to the modern one and is the safest to reproduce: international law may be defined as that body of law which is composed for its greater part of the principles and rules of conduct which States feel themselves bound to observe, and therefore commonly do observe, in their relations with each other, and which includes also the rules of law relating to the functioning of international institutions and organisations, their relations with each other and their relations with States and individuals, and certain rules of law relating to individuals and non-State entities so far as the rights and duties of such individuals and non-State entities are the concern of the international community.

Torsten Gihl: the body of rules of law which apply within the international community or society of States. Short, and it moves the emphasis from the parties to the community they form.

Starke's definition is long, and its length is the point. It is long because it has to name three things Oppenheim's did not: international institutions, individuals, and non-State entities.

Why the classical definitions broke down

Four developments made "States only" impossible to maintain, and each one is a chapter of this book.

International organisations acquired legal personality. In 1949 the International Court of Justice was asked whether the United Nations could bring an international claim for injury to its agent, and in the Reparation for Injuries advisory opinion, worked in [Subjects of International Law], it held that the Organization has a large measure of international personality and the capacity to operate on the international plane, though it is certainly not a super-State. A definition that mentions only States cannot accommodate a claimant that is not a State.

Individuals acquired duties. The Nuremberg and Tokyo tribunals after 1945 tried individuals for crimes under international law, and the principle that individuals can be punished directly by international law is now embodied in the Rome Statute of the International Criminal Court. If international law can hang a man, it plainly reaches him.

Individuals acquired rights. Human rights treaties give individuals rights against their own State, and several of them let an individual petition an international body. That is the exact opposite of the Westphalian arrangement in which how a State treated its own subjects was nobody else's business.

Some rules stopped depending on consent. A small class of rules, called jus cogens or peremptory norms, binds every State whether or not it agreed, and no treaty contrary to them is valid. The prohibitions on genocide, slavery, torture and aggression are the standard examples. Article 53 of the Vienna Convention on the Law of Treaties gives them their statutory form, and they are worked out in [Validity of Treaties, and Jus Cogens]. A definition built entirely on consent cannot explain them.

The modern definition

Putting those four developments into a sentence gives the definition to write in an exam:

International law is the body of rules and principles which States, international organisations and, in defined respects, individuals and other entities accept as binding in their mutual relations, derived from treaties, custom and general principles of law, and including a small core of peremptory norms which bind regardless of consent.

Every clause of that sentence is doing work. States, international organisations and individuals answers the who. Accept as binding in their mutual relations keeps the consensual character that is still true of most of the subject. Treaties, custom and general principles names the sources, which are the subject of [The Sources of International Law]. A small core of peremptory norms admits the exception without overstating it.

A table you can reproduce under time pressure

A worked example

Two years ago the government of State A, a party to the Genocide Convention and to the Charter, orders its army to expel an ethnic minority from a border province. Thousands die. A commander, Colonel B, gives the orders on the ground. An international organisation, the World Food Programme, has a warehouse in the province, and one of its staff, an Italian national, is shot at a checkpoint.

Take Oppenheim's definition and ask what it can explain. It can explain that State A has broken a treaty it accepted as binding, and that other State parties may complain. That is all. It cannot explain Colonel B's personal criminal liability, because individuals are not in the definition. It cannot explain the organisation's claim for its warehouse and its staff member, because organisations are not in it either. And if State A had never ratified the Genocide Convention, Oppenheim's consent-based definition would struggle to explain why the prohibition binds it anyway.

Now take Starke's, with jus cogens added. Colonel B is liable because international law imposes duties directly on individuals. The World Food Programme may bring a claim for the injury to its agent under the reasoning in the Reparation for Injuries advisory opinion, and separately the agent's national State may protect him, the competition between the two being reconciled case by case. And the prohibition of genocide binds State A regardless of ratification, because it is peremptory.

That is what a change of definition buys, and it is what an examiner is testing when the question says "critically examine".

What it does NOT mean

A definition is not a source. No case has ever been decided by quoting Oppenheim. Definitions organise the subject; article 38 of the Statute of the International Court of Justice supplies the law.

Saying individuals are subjects does not mean they are equal subjects. An individual cannot make a treaty, cannot sit in the General Assembly and cannot bring a case before the International Court, whose Statute in article 34 says only States may be parties in cases before the Court. The correct statement is that individuals have some rights and some duties directly under international law, not that they stand where States stand.

"Civilised nations" is not a live test. Where the phrase survives, in article 38(1)(c), it is read as meaning nothing more than the legal systems of the world generally. No State is excluded from international law today for want of civilisation, and any answer that repeats the phrase without noticing the problem loses more than it gains.

Limits and criticism

Every definition is circular to a degree. Oppenheim defines the law by what States consider binding, which assumes they already know which rules are law. Brierly avoids the circle by asserting the rules are binding, which is the very thing an objector denies. There is no way out of this by better drafting; it is the same difficulty that makes [Is International Law Really Law?] a real question.

Definitions lag behind practice. Oppenheim wrote before the League, before the United Nations, before human rights treaties and before the International Criminal Court. Starke's definition is capacious enough for all of them because it was written after them, which is less a virtue of the author than a fact about dates.

The subject may now be too varied to define usefully. Trade law, the law of the sea, human rights and the law of armed conflict have their own institutions, their own courts and their own habits, so much so that international lawyers argue about the fragmentation of the subject. A single sentence that covers all of them will do so only at a level of generality that tells a student very little.

Quick revision

The phrase international law was coined by Bentham, 1780. The older name is the law of nations.

Oppenheim, 1905: the body of customary and conventional rules considered legally binding by civilised States in their intercourse with each other. Two sources, consent-based, States only, and the offensive adjective.

Brierly: rules binding upon civilised States. Says binding upon, not considered binding by.

Fenwick: binding upon the members of the international community.

Starke: the fullest of the classical definitions, expressly covering international institutions, individuals and non-State entities.

Gihl: rules applying within the international community or society of States.

Four developments broke the States-only definitions: international organisations acquired personality (the Reparation for Injuries advisory opinion, 1949, in [Subjects of International Law]); individuals acquired duties (Nuremberg, the International Criminal Court); individuals acquired rights (human rights treaties); and jus cogens, in article 53 of the Vienna Convention, binds without consent.

Modern definition to write: rules and principles binding on States, international organisations and, in defined respects, individuals, derived from treaties, custom and general principles, and including a peremptory core that binds regardless of consent.

Test yourself

1. State Oppenheim's definition and identify three defects in it.

"Law of Nations or International Law is the name for the body of customary and conventional rules which are considered legally binding by civilised States in their intercourse with each other." Three defects: it names only two sources and omits general principles of law, which article 38(1)(c) of the Statute of the International Court of Justice recognises; it limits the subjects to States, which cannot accommodate international organisations or the direct duties international law imposes on individuals; and it rests obligation entirely on what States consider binding, which cannot explain peremptory norms that bind without consent. The reference to "civilised States" is a fourth defect and is now indefensible.

2. What is the difference between saying rules are "considered legally binding by States" and saying they are "binding upon States"?

The first makes the law depend on the opinion of the States bound, which is a positivist, consent-based account; if a State does not consider a rule binding, on that view it is not bound. The second asserts an obligation independent of that opinion, which is what is needed to explain jus cogens and, more generally, why a new State is bound by customary rules it never voted for. Oppenheim takes the first position, Brierly the second.

3. Which definition would you use to answer a question about the liability of an army officer for war crimes, and why?

Starke's, because it is the only classical definition that expressly includes rules of law relating to individuals and non-State entities so far as their rights and duties are the concern of the international community. Oppenheim's, Brierly's and Gihl's are limited to States and cannot reach an individual at all.

4. Why is the phrase "civilised nations" still in the Statute of the International Court of Justice, and how should a student handle it?

Article 38(1)(c) was drafted in 1920 for the Permanent Court and reproduced in 1945 without change, so the phrase survives by inertia rather than by intention. A student should state that it is understood today as meaning the legal systems of the world generally, that it excludes no State, and that it is a relic of the era when international law was made by a small group of European powers and applied to everyone else.

5. "Any definition of international law is either too narrow to be accurate or too wide to be useful." Discuss briefly.

There is force in it. Narrow definitions such as Oppenheim's are accurate about the core, relations between States, but cannot accommodate organisations, individuals or peremptory norms. Wide definitions such as Starke's cover all of those but do so at such a level of generality that they tell a beginner little about what the rules actually are. The reply is that a definition is not meant to do the work of the subject: it fixes who is bound and by what, and article 38 and the chapters that follow supply the content. A definition that gets the who and the what right is doing its job even if it is uninformative about the rest.

6. Distinguish the sources of international law from the definitions of it.

A definition states what the subject is and whom it binds. A source states where a rule comes from and how you prove it exists. Bentham, Oppenheim, Brierly, Fenwick, Starke and Gihl offer definitions. Article 38(1) of the Statute of the International Court of Justice lists the sources: international conventions, international custom, the general principles of law recognised by civilised nations, and, as subsidiary means, judicial decisions and the teachings of the most highly qualified publicists. An answer that recites definitions when asked for sources, or the reverse, answers a different question from the one set.

What honesty requires. The absence of a legislature is real. It means international law changes slowly and unevenly, and that new problems can wait decades for a rule.

2. There is no compulsory court

The objection. Article 34 of the Statute of the International Court of Justice allows only States to be parties, and article 36 makes jurisdiction depend on consent, whether by special agreement, by a compromissory clause in a treaty, or by a declaration under the optional clause. A State that has consented to none of these cannot be sued.

The answer. Consent is required to start a case, not to be bound by the law. A State that refuses to appear is still in breach if it has broken a rule; it has merely avoided an adjudication. And the picture is far less bleak than the objection suggests: the World Trade Organization has a standing dispute settlement system that has decided hundreds of disputes between States, the International Tribunal for the Law of the Sea and Annex VII tribunals decide law of the sea cases, including the two your syllabus names, and regional human rights courts give judgments against States as a matter of routine.

What honesty requires. Some of the most serious disputes never reach any court, and a State can withdraw its optional-clause declaration when it fears a case.

3. There is no police force

The objection. When a State breaks the law nothing happens to it, so the rule was not really a rule.

The answer. Something does happen, but it happens differently. Self-help is lawful within limits: an injured State may take countermeasures, meaning conduct that would otherwise be unlawful, to induce the wrongdoer to comply, and the limits on that are in [Circumstances Precluding Wrongfulness, and Reparation]. Collective measures exist: under article 41 the Security Council may impose measures short of force, including complete or partial interruption of economic relations and of rail, sea, air, postal, telegraphic and radio communication, and under article 42 it may authorise the use of force. Those are stronger sanctions than most municipal legal systems apply to anybody. And the ordinary sanction is reciprocity and reputation: a State that repudiates its treaties finds its treaties repudiated and its future agreements distrusted.

What honesty requires. Enforcement is selective, and the veto means it is selective in a way that favours five States. That is the strongest form of the objection and it should be conceded.

4. The rules are broken

The objection. Wars are fought in defiance of article 2(4), so the rule is not real.

The answer. This proves less than it looks. Murder is committed daily and nobody concludes that the law of murder is not law. What matters is not whether a rule is broken but how the breach is treated. States that use force almost never say they are entitled to break the law. They argue self-defence under article 51, or invitation by the government, or Security Council authorisation. The very fact that a State in breach constructs a legal justification is evidence that it regards the rule as binding; a State that thought there were no rule would not bother.

What honesty requires. The breaches in this field are of a scale and consequence unlike those in a domestic system, and pointing to murder rates is a debating answer rather than a complete one.

5. It is really politics

The objection. Decisions in the Security Council are political, so international law is politics with legal vocabulary.

The answer. Some of it is, and the Council is a political organ. But most of international law never goes near the Council. Aircraft land, letters arrive, ships pass, patents are respected, extradition requests are processed and treaties are performed, every day, according to rules whose content is technical and whose application is not seriously contested. The politically charged fraction of the subject is the visible fraction, which distorts the impression.

The jurisprudential answers

The objection is a claim about what law is, so the answers are claims about that too.

Hart

H.L.A. Hart answered Austin by rejecting the command model altogether. In The Concept of Law he argued that a developed legal system is a union of primary rules, which tell people what to do, and secondary rules, which are rules about the rules: a rule of recognition identifying what counts as law, rules of change for making new law, and rules of adjudication for settling disputes.

Hart's own view of international law was mixed. He accepted that it is law rather than morality, because its rules are argued about in legal terms and are not felt as merely moral. But he doubted whether it had a rule of recognition, and thought it resembled the primary rules of a simple society more than a developed system.

That doubt is now weaker than it was when he wrote. Article 38 of the Statute of the International Court of Justice looks very much like a rule of recognition: it tells you what counts as international law and where to find it. The Vienna Convention on the Law of Treaties is a set of rules of change: how a rule is made, amended and ended. And the courts and tribunals named above are rules of adjudication, imperfect but real.

Kelsen

Hans Kelsen put international law at the top rather than the bottom. In his pure theory, every legal norm derives its validity from a higher norm, up to a basic norm, the Grundnorm. Kelsen argued that the basic norm of the whole legal order is international, and identified it with the principle pacta sunt servanda, meaning agreements must be kept, or with the principle that States ought to behave as they customarily have behaved.

On that view municipal law derives its validity from international law, not the other way round. This is the strong form of monism and it is dealt with in [International Law and Municipal Law].

The Austinian answer on its own terms

Even accepting Austin's framework, the modern answer is that sanctions do exist. Article 41 measures are sanctions. Countermeasures are sanctions. Suspension or expulsion from an organisation under article 6 of the Charter is a sanction. They are decentralised and unevenly applied, but Austin's own test asked whether an evil is likely to be visited on disobedience, not whether it is certain.

The argument that settles it in practice

Leave theory aside and ask what States do.

Every State maintains a legal adviser's department in its foreign ministry. Every State, when accused of a breach, answers in legal terms rather than saying the accusation is meaningless. Every State enters into treaties in the expectation that they will be performed, and performs the overwhelming majority of its own. Every State pleads international law in its own courts when it suits, and complains when another State ignores it.

A rule that nobody regarded as binding would not be argued about in this way. That is the practical answer, and it is stronger than any of the theoretical ones, because it is a fact about behaviour rather than a claim about definitions.

Distinctions that carry marks

Comity is the one students most often confuse with law. Comity means practices States follow out of goodwill or convenience, without regarding themselves as legally bound. When a State stops, the other State may be annoyed but cannot say a legal wrong has been done. The distinction is exactly the distinction between practice and custom in [Custom]: whether the practice is accompanied by a belief that the law requires it.

A worked example

State X and State Y share a river. For sixty years State X has released water from its dam every March so that State Y's farmers can irrigate. This year State X keeps the water. State Y protests, calling it a breach of international law.

Ask the three questions this chapter has been building towards.

Is there a rule? That depends on whether the sixty-year practice was accompanied by a belief on both sides that it was legally required, or was a neighbourly courtesy. If there is a treaty, the question answers itself. If there is not, State Y must show custom, and the test is in [Custom].

If there is a rule, is it law even though no court can be seized? Yes. If neither State has consented to the jurisdiction of the International Court, State Y cannot sue, but State X is in breach and owes reparation. Absence of a forum is not absence of an obligation, which is the answer to the second objection above.

What can State Y actually do? Protest formally, which preserves its position and prevents its silence being read as acquiescence. Propose negotiation, good offices, mediation, conciliation or arbitration under article 33 of the Charter, which is [Pacific Settlement of Disputes]. Take proportionate countermeasures, such as suspending its own obligations to State X under the same arrangement. Raise the matter in a regional organisation or the General Assembly.

Notice that the answer to "is it law" made no practical difference to any of that. What made the difference was whether a rule existed and what remedies were available, which are legal questions in exactly the ordinary sense.

What it does NOT mean

Saying it is law does not mean it is effective. Effectiveness and legal quality are different. A statute that is widely ignored is still a statute.

Saying it is weak does not mean it is optional. A State that breaks a rule and escapes consequences has still broken the rule, and the breach can be relied on against it later, in a claim, in a negotiation, or before a tribunal it eventually accepts.

The absence of a sanction in a particular case does not prove the absence of a legal rule. Municipal systems are full of legal obligations with no practical sanction, including many constitutional obligations of the State.

Limits and criticism

The strongest version of the sceptical case is not Austin's. It is this: international law is law, but it is law that operates most reliably where least is at stake, and least reliably where most is. Its enforcement machinery is structurally unavailable against five States and their close allies, and no amount of jurisprudence about rules of recognition changes that.

The honest answer is not to deny it but to say what follows. The subject remains worth knowing and using because the fraction of international relations that is contested by force is small, because the law shapes even the arguments of those who break it, and because the alternative to an imperfect legal order between States is not a perfect one but none.

Quick revision

The objection is Austin's: law is the command of a sovereign backed by a sanction; international law has no sovereign, no command and no reliable sanction, so it is positive international morality, not law.

The five heads of objection: no legislature, no compulsory court, no police, the rules are broken, it is really politics.

Answers: consent is not a defect, and custom, jus cogens and binding Security Council decisions already go beyond it; consent is needed to start a case, not to be bound; sanctions exist as countermeasures, article 41 measures and article 42 force; a State in breach argues self-defence or authorisation, which shows it accepts the rule; and most of the subject is technical and uncontested.

Hart: law is a union of primary and secondary rules. Article 38 of the ICJ Statute functions as a rule of recognition, the Vienna Convention as rules of change, the courts as rules of adjudication.

Kelsen: the Grundnorm of the whole legal order is international, identified with pacta sunt servanda.

The practical answer: States employ legal advisers, answer accusations in legal terms, and perform the overwhelming majority of their obligations. Nobody argues that hard about a rule they do not regard as binding.

Distinguish law from morality and from comity. Comity is courtesy, and its breach gives no legal claim.

Test yourself

1. State Austin's objection precisely, and identify the definition of law it rests on.

Austin defined law as the command of a determinate sovereign, habitually obeyed by the bulk of society and itself obeying nobody, backed by a sanction. International law has no determinate superior above States, its rules arise from agreement and practice rather than command, and no centralised sanction enforces them. Austin therefore classified it as positive international morality rather than law properly so called. The objection rests entirely on the command theory; it disappears if that theory of law is rejected.

2. How does Hart's account change the answer?

Hart rejected the command theory and defined a developed legal system as a union of primary rules of obligation with secondary rules of recognition, change and adjudication. On that account international law is law rather than morality, because its rules are treated and argued about as legally obligatory. Hart himself doubted whether it had a rule of recognition, but article 38 of the Statute of the International Court of Justice performs that function, the Vienna Convention on the Law of Treaties supplies rules of change, and the standing courts and tribunals supply rules of adjudication.

3. "International law cannot be law because it is constantly broken." Answer this in three sentences.

Frequency of breach does not determine whether a rule is law, or the law of murder would not be law. What matters is how breaches are treated, and States that use force almost invariably plead a legal justification such as self-defence under article 51 or Security Council authorisation, which shows they accept the rule and dispute only its application. A State that believed there was no rule would not construct an argument under it.

4. Distinguish law from comity, and give the test.

Law is a rule regarded as legally obligatory, so its breach founds a claim of illegality and a right to reparation. Comity is a practice followed out of goodwill or convenience without any sense of legal obligation, so its discontinuance gives ground for complaint but not for a legal claim. The test is the same as the test that separates practice from custom: whether the conduct is accompanied by a belief that the law requires it.

5. What sanctions does international law actually have? Name four.

Countermeasures by the injured State, meaning conduct otherwise unlawful taken to induce compliance, subject to proportionality. Measures not involving force decided by the Security Council under article 41, including interruption of economic relations and of communications. Force authorised by the Security Council under article 42. And institutional sanctions such as suspension of the rights of membership or expulsion under articles 5 and 6 of the Charter, together with the everyday sanctions of reciprocity, retorsion and loss of reputation.

6. Give the strongest form of the sceptical case, and the best reply to it.

The strongest form is not Austin's but this: international law works most reliably where the stakes are lowest and least reliably where they are highest, and its collective enforcement machinery is structurally unavailable against the five permanent members and their allies because of the veto. The best reply concedes the point and adds three things: most international relations are not contested by force and are governed effectively; the law shapes the conduct and the arguments even of those who breach it; and the alternative to an imperfect legal order between sovereign States is not a better one but none at all.

What is right about it

It explains obligations that consent cannot. It explains why genocide is unlawful for a State that never ratified the Genocide Convention. It supplies a standard for criticising the law rather than merely describing it, and it is where the moral energy of the human rights movement came from.

What is wrong with it

It cannot say what the rules are. Reason, appealed to by different people in different centuries, has produced opposite answers. Natural law was used to justify the colonisation it was also used to condemn, and doctrines of a natural hierarchy of civilisations were defended in the same vocabulary.

It has no way of settling a dispute. If two States both appeal to reason and disagree, nothing in the theory tells you which is right.

It makes the actual practice of States irrelevant, which is a strange result for a subject in which the practice of States is most of the evidence.

Positivism

What it says

The positivist school holds that international law is binding because States have consented to it. Law is not found, it is made, and it is made by the will of the States that are bound.

The evidence is the practice: treaties are agreements, and custom is a general practice accepted as law. Both look like consent.

Consent theory in its simple form says a State is bound only by what it has agreed to, expressly by treaty or tacitly by participating in the formation of a custom.

The auto-limitation theory, associated with Georg Jellinek, refines it. A sovereign State cannot be subjected to a will outside its own, so obligation must come from the State limiting itself. The State's own will, self-restricted, is the source of the obligation.

Bynkershoek and, in the nineteenth century, jurists such as Triepel and Anzilotti, developed the positivist account. Anzilotti built the whole system on pacta sunt servanda, meaning agreements must be kept, treated as an axiom that needs no further justification.

What is right about it

It matches how the subject actually works. Treaties are negotiated, signed and ratified; reservations are entered and objected to; States argue about whether they participated in a practice. All of that is the language of consent, and any theory that cannot account for it is describing some other subject.

It also matches the sources: article 38 of the Statute of the International Court of Justice lists conventions and custom first, and both are consent-based on their face.

What is wrong with it

New States. A State that became independent in 1960 was bound at once by the customary law of the sea, of diplomatic relations and of State responsibility, none of which it had participated in making. Pure consent theory has no comfortable answer, and the usual one, that the new State impliedly consents by entering the international community, is a fiction that does the work by assumption.

Jus cogens. Article 53 makes some norms non-derogable by agreement. If consent were the whole basis, States could agree to anything.

Auto-limitation is circular. If the State's own will is the source of obligation, the State can withdraw its will and end the obligation. A promise that binds only so long as the promisor wishes to be bound is not a promise. Anzilotti's answer, that pacta sunt servanda is an axiom outside the system, concedes that at least one rule is not consensual, which is exactly the naturalist's point.

Custom does not really need consent. The persistent objector rule, which the Fisheries case supports and which is set out in [Custom], allows a State to escape a new rule by objecting from the start. But a State that simply says nothing is bound, and silence is not consent in any ordinary sense.

The modern theories

Kelsen and the pure theory

Hans Kelsen tried to remove morality and politics from the account altogether. Every norm derives validity from a higher norm, and the chain must end somewhere, in a Grundnorm, a basic norm that is presupposed rather than derived.

For Kelsen the Grundnorm of the whole legal order is international, and he identified it either with pacta sunt servanda or with the principle that States ought to behave as they have customarily behaved. Municipal legal orders then derive their validity from international law, which is the strong monist position taken up in [International Law and Municipal Law].

The strength of this is its rigour. Its weakness is that a presupposed basic norm explains obligation only in the sense of naming the place where the explanation stops.

The sociological school

Leon Duguit and Georges Scelle held that law arises from the facts of social life. Human beings and communities are interdependent, that interdependence generates rules, and the State is not a mystical sovereign but a set of officials who happen to act. Scelle's dedoublement fonctionnel, or role splitting, describes how State officials act simultaneously as organs of their own State and as organs of the international community, because there are no separate international organs to do it.

This explains something the other theories struggle with: why the law grows fastest where interdependence is greatest, which is why aviation, posts, shipping, telecommunications, health and trade are its most developed fields.

The doctrine of fundamental rights

An older theory, still asked about, holds that States have certain fundamental rights inherent in statehood, usually listed as independence, equality, self-preservation and jurisdiction over their territory, and that international law is derived from these. It is closely tied to naturalism.

Its defect is that it is derived from a fiction. States are not people, and self-preservation as a legal right was used for a century to justify almost anything, until article 2(4) of the Charter and the narrow exception in article 51 replaced it with a rule.

The consent-plus-community view

Most working international lawyers today hold something less tidy than any of the above: that consent explains the great bulk of international law, that a narrow core of peremptory norms binds regardless of consent, and that the community interest expressed through the United Nations and through obligations owed to all States has grown at the expense of pure bilateralism.

That is not a compromise for want of nerve. It is what article 38 plus article 53 of the Vienna Convention actually amount to when read together.

The doctrines you must be able to state

Three phrases recur in this module and every one of them is a doctrine, not merely a maxim.

Pacta sunt servanda, agreements must be kept. Article 26 of the Vienna Convention on the Law of Treaties puts it in statutory form: every treaty in force is binding upon the parties to it and must be performed by them in good faith. It is worked in [Rights and Duties of the Parties, and Third States].

Jus cogens, a peremptory norm. Article 53: a norm accepted and recognised by the international community of States as a whole as one from which no derogation is permitted and which can be modified only by a subsequent norm of the same character. A treaty conflicting with one is void. It is worked in [Validity of Treaties, and Jus Cogens].

Rebus sic stantibus, things standing thus. The doctrine that a fundamental change of circumstances may allow a party to withdraw from a treaty. Article 62 of the Vienna Convention states it in a deliberately narrow form, and it is worked in [Termination and Suspension of Treaties].

Distinctions table

A worked example

State P has never ratified any human rights treaty and has never voted for any resolution on torture. Its officials torture a detainee, a national of State Q. State Q protests that State P has violated international law. State P replies that it has consented to no such rule.

On pure consent theory State P has an argument, and it is the argument that shows the theory's limits.

On naturalist theory State P is bound because the prohibition of torture is part of a higher law that consent cannot reach. The difficulty is that this proves too much and too easily; the same reasoning has been used to support propositions that were merely the speaker's convictions.

On the modern view State P is bound and the reasoning is legal rather than moral. The prohibition of torture is a rule of customary international law, established by the general practice of States accepted as law, and State P did not object to it as it formed. It is further a peremptory norm within article 53, so no State can contract out of it even by treaty. State P's consent is therefore not required, and the argument fails.

Notice that the modern answer used the positivist machinery of custom and then reached beyond it. That is exactly the hybrid position described above, and it is the answer to write.

What it does NOT mean

These are not rival descriptions of different subjects. They are rival explanations of the same rules, and a good answer treats them as competing accounts of one thing.

Positivism does not mean the law is whatever powerful States say. It means the law is what States have accepted as law, which is a different and much more constrained claim.

Naturalism is not the same as morality. A naturalist claims the higher law is legally binding, not merely that it ought to be followed. Confusing the two collapses the distinction the last chapter was built on.

A "theory" is not a source. Nobody wins a case by proving Kelsen right. The sources are in [The Sources of International Law], and they are the same whichever theory explains them.

Limits and criticism

The whole debate has a suspicious quality: it is largely a debate about how to describe a practice that goes on regardless. States concluded treaties and observed customs for centuries without agreeing on why they were bound, and they still do.

The debate earns its place for one reason. When a genuinely novel question arises, whether a new State is bound by old custom, whether a treaty permitting a monstrous thing is valid, whether a rule can bind an objector, no source settles it and the answer has to come from an account of why States are bound at all. That is when these theories stop being ornamental.

Quick revision

The question is: why is a State bound?

Naturalism: because of a higher law found by reason. Vitoria, Suarez, Pufendorf, and Grotius in part. Explains jus cogens; cannot say what the rules are.

Positivism: because States have consented, expressly by treaty or tacitly by custom. Bynkershoek, Triepel, Anzilotti. Auto-limitation (Jellinek): the State limits its own will. Explains treaty practice; cannot explain new States, jus cogens, or its own circularity.

Kelsen: validity flows from a presupposed Grundnorm, which is international, identified with pacta sunt servanda.

Sociological (Duguit, Scelle): law arises from social interdependence; Scelle's role splitting has State officials acting as organs of the international community.

Fundamental rights doctrine: States have inherent rights of independence, equality, self-preservation and jurisdiction. Now largely displaced by article 2(4) and article 51 of the Charter.

The working modern position: consent explains most of it, a peremptory core binds regardless of consent, and community interest has grown at the expense of pure bilateralism.

Three doctrines to be able to state: pacta sunt servanda (VCLT article 26), jus cogens (article 53), rebus sic stantibus (article 62).

Test yourself

1. Explain the auto-limitation theory and give the objection to it.

Jellinek's auto-limitation theory holds that since a sovereign State cannot be subjected to any will outside its own, the binding force of international law must come from the State restricting its own will. The objection is circularity: if the obligation exists only because the State wills it, the State can un-will it, and an obligation that lasts only as long as the obligor wishes is not an obligation at all. Anzilotti's response, treating pacta sunt servanda as an axiom outside the system, concedes that at least one rule does not rest on consent.

2. Why do new States create difficulty for consent theory, and how is the difficulty answered?

A State that became independent after the main body of customary law had formed never participated in making it, yet is bound by it from the moment of independence. Consent theory answers by implied consent: by entering the international community and claiming its benefits, the new State accepts its rules. The answer is a fiction, since no actual act of consent occurs and no new State has ever been permitted to opt out. The honest position is that custom binds by community acceptance rather than individual agreement, subject only to the persistent objector rule, which is available to a State that objects as the rule forms and not to one that did not exist then.

3. State article 53 of the Vienna Convention and explain which theory it supports.

A treaty is void if, at the time of its conclusion, it conflicts with a peremptory norm of general international law, meaning a norm accepted and recognised by the international community of States as a whole as one from which no derogation is permitted and which can be modified only by a subsequent norm of the same character. It supports the naturalist side of the argument, since it places some rules beyond the reach of consent, though it does so in positivist language by making the community's acceptance the test.

4. What does Scelle's role splitting explain?

That international law has almost no organs of its own, so the officials of States perform double duty: a national judge applying a treaty, or a naval officer arresting a pirate on the high seas, acts both as an organ of his own State and as an organ of the international community. It explains how a decentralised system functions at all, and it is a better description of enforcement in this subject than any analogy with a police force.

5. "The theories of the basis of international law are of no practical use." Discuss.

There is force in the criticism for ordinary cases: a treaty dispute is decided by the Vienna Convention and a boundary dispute by the law of the sea, and no tribunal needs to choose between Grotius and Anzilotti. The criticism fails for hard cases. Whether a newly independent State is bound by custom it never made, whether a treaty permitting slavery is void, and whether a persistent objector escapes a rule are all questions that no source answers on its face, and each requires a view about why States are bound at all. The theories are not tools of daily practice; they are what is left when the sources run out.

6. Distinguish pacta sunt servanda, jus cogens and rebus sic stantibus in one sentence each.

Pacta sunt servanda, in article 26 of the Vienna Convention, is the rule that every treaty in force binds the parties and must be performed in good faith. Jus cogens, in article 53, is a norm from which no derogation is permitted, so that a treaty conflicting with it is void. Rebus sic stantibus, in article 62, is the narrow doctrine that a fundamental and unforeseen change in circumstances that formed an essential basis of consent may be invoked to terminate or withdraw from a treaty.

The General Assembly asked the Court.

The case

Facts. Reparation for Injuries Suffered in the Service of the United Nations, ICJ Reports 1949, page 174, was an advisory opinion given on 11 April 1949. By a resolution of 3 December 1948 the General Assembly asked whether, where an agent of the United Nations suffers injury in the performance of his duties in circumstances involving the responsibility of a State, the Organization has the capacity to bring an international claim against the responsible de jure or de facto government for the damage caused to the Organization and to the victim, and how such a claim is to be reconciled with the rights of the victim's national State.

Held. The Court answered the first question unanimously and the second by eleven votes to four: the Organization has the capacity to bring an international claim, whether or not the responsible State is a Member. The Charter does not say so expressly, so the Court asked what characteristics the Charter was intended to give the Organization. It found that the Charter conferred on it rights and obligations different from those of its Members and entrusted it with the maintenance of international peace and security. The Court concluded that the Organization possesses a large measure of international personality and the capacity to operate on the international plane, though it is certainly not a super-State. As to the claim for the victim, there is no bond of nationality between the Organization and its agents, so the analogy of diplomatic protection does not by itself supply the answer. But agents may be sent on important missions to disturbed parts of the world and must be assured of effective protection, and the powers necessary to that end must be regarded as a necessary implication arising from the Charter. The Organization therefore has the capacity to exercise functional protection of its agents, resting on the breach of an obligation owed to the Organization itself. On the third question, by ten votes to five, competition between functional protection and the national State's diplomatic protection is to be reconciled case by case and by agreement.

Why it matters. Three separate doctrines come out of this one opinion, and each is asked about on its own.

International personality of organisations. After 1949 it is settled that an international organisation can be a subject of international law. The personality is derived, because it comes from the treaty its members made, and it is functional, because it extends only so far as the organisation's purposes require. That is the difference between an organisation and a State, whose personality is original and general.

Objective personality. The Court held the capacity good against a non-member. Fifty States, it said, representing the vast majority of the members of the international community, had the power to bring into being an entity possessing objective international personality. So the United Nations is not merely a creature effective between its own members.

Implied powers. Powers not written into the constituent treaty may be implied where they are necessary for the performance of the organisation's functions. This is now the standard method of reading the constitutions of international organisations.

The Charter's own provisions

The Charter itself deals with personality in a curiously modest way. Article 104 provides that the Organization shall enjoy in the territory of each of its Members such legal capacity as may be necessary for the exercise of its functions and the fulfilment of its purposes. Article 105 gives it privileges and immunities on the same functional test.

Notice that both provisions are about capacity in the territory of Members, which is municipal legal personality. Neither says anything about the international plane. That is precisely why the Court had to reason from the Charter's structure rather than quote a provision, and it is why the case is a leading one.

Individuals

The classical position

Under the classical theory the individual was an object, not a subject. An injury to a national abroad was an injury to his State, and it was the State's claim to bring, to settle or to abandon. That doctrine survives, in a much modified form, in [Treatment of Aliens and Diplomatic Protection].

How that changed

Duties came first. The Nuremberg Tribunal after the Second World War convicted individuals of crimes against peace, war crimes and crimes against humanity, and rejected the defence that they had acted as organs of a State. The Rome Statute of the International Criminal Court, in force since 2002, now gives a standing court jurisdiction over individuals for genocide, crimes against humanity, war crimes and aggression. Piracy is the older example: any State may try a pirate, whoever he is and whatever his nationality, and that rule is now in article 105 of the Convention on the Law of the Sea, in [The High Seas].

Rights came next. Human rights treaties give individuals rights against their own State, and several give them a procedure. Under the Optional Protocol to the International Covenant on Civil and Political Rights an individual may complain to the Human Rights Committee against a State that has accepted the Protocol. Regional systems in Europe, the Americas and Africa go further and let individuals bring cases to a court.

How far it has gone, stated exactly

An answer that says "individuals are now subjects of international law" without qualification is too strong. The precise position is this.

Individuals have duties directly under international law, and can be punished for breaching them by international tribunals, without any State's law intervening.

Individuals have rights directly under some treaties, and under a smaller set can enforce them before an international body.

Individuals cannot make treaties, cannot participate in making custom, and cannot be parties before the International Court of Justice, because article 34 permits only States.

The correct formulation is that individuals are subjects of international law to a limited extent, in defined respects, and that the extent has grown steadily since 1945.

Other entities

Your syllabus does not name these, but an examiner asking about subjects expects a candidate to know they exist.

The Holy See and the Vatican City. The Holy See makes treaties, called concordats, sends and receives diplomatic representatives, and is a party to several conventions. Its personality is not in doubt even though the Vatican City is minute.

Insurgents and belligerents. A rebel movement that controls territory and conducts hostilities in an organised way may acquire a limited personality: the law of armed conflict applies to it and it may make agreements about the conduct of hostilities.

National liberation movements. In the decolonisation era several were granted observer status at the United Nations and treaty-making capacity for limited purposes.

Non-governmental organisations. They are not subjects. They are creatures of some national law, they cannot make treaties, and their standing at the United Nations rests on the consultative status that article 71 of the Charter allows the Economic and Social Council to grant. That is influence, not personality, and the distinction is the whole point of [Amnesty International and Non-Governmental Organisations].

Multinational corporations. Also not subjects, in the orthodox view. They contract with States, and investment treaties allow them to arbitrate against States, but the capacity comes from the treaty between States rather than from any personality of their own.

Distinctions table

A worked example

The United Nations sends a mission to State R, which is not a member of the United Nations. A mission vehicle is destroyed and Ms S, a Canadian national employed by the mission, is seriously injured, both through the fault of State R's police.

Can the United Nations claim for the vehicle? Yes. It has international personality, which includes the capacity to bring a claim for damage to itself, and the Reparation opinion held that this holds good against a non-member because the personality is objective.

Can the United Nations claim for Ms S? Yes, by way of functional protection, because she is its agent injured in the performance of her duties, and the claim rests on State R's breach of an obligation owed to the Organization.

Can Canada claim for Ms S? Yes, by way of diplomatic protection, because she is its national. Both claims exist, and the Court expressly declined to lay down a priority: the competition is resolved case by case and by agreement, which in practice means the Organization and the national State coordinate.

Can Ms S claim in her own name? Not before the International Court, since article 34 permits only States to be parties. She may have a remedy in State R's own courts, and a remedy before a human rights body if State R has accepted the relevant procedure. That gap is the practical meaning of saying an individual is a subject only to a limited extent.

What it does NOT mean

"Subject" does not mean "equal". Saying an organisation or an individual is a subject says only that it has some rights and duties of its own. It says nothing about how many.

Personality is not conferred by a label. An entity does not become a subject because a treaty calls it a legal person. The test is functional: what can it actually do?

Being affected by international law is not the same as being a subject of it. A shipping company is affected by the law of the sea every day and is not a subject of it.

An organisation's personality does not make it a State. The Court was explicit that the United Nations is not a super-State, and its personality is limited to what its functions require.

Limits and criticism

The orthodoxy is under pressure from two directions and a good answer notices both.

From below. Corporations conclude agreements with States that look very like treaties, and arbitrate against States under investment treaties. Insisting they have no personality is increasingly a statement about form rather than substance.

From the side. The functional theory of organisational personality is elastic. If powers may be implied whenever they are necessary for an organisation's purposes, and the organisation itself decides what its purposes require, the constituent treaty stops being much of a limit. That objection was made at the time of the Reparation opinion and has never been fully answered.

Quick revision

A subject has rights and duties under international law directly and can act on them. An object is merely something the law is about.

States are the primary subjects: original, general personality. Article 34 of the ICJ Statute: only States may be parties before the Court.

International organisations: Reparation for Injuries Suffered in the Service of the United Nations, ICJ Reports 1949, page 174. The United Nations has a large measure of international personality, though it is not a super-State; the personality is objective, good against non-members; and it may exercise functional protection of its agents. The opinion is also the source of the doctrine of implied powers. Charter articles 104 and 105 give only municipal capacity and immunities, which is why the Court had to reason from structure.

Individuals: duties directly (Nuremberg, the Rome Statute, piracy), rights directly under some treaties with a procedure under fewer, but no treaty-making capacity and no standing before the ICJ. Subjects to a limited extent.

Others: the Holy See, insurgents and belligerents, national liberation movements. NGOs are not subjects; article 71 consultative status is influence, not personality.

Test yourself

1. Define a subject of international law and give the test.

A subject of international law is an entity possessing international legal personality, meaning the capacity to have rights and duties under international law directly, to bring international claims to vindicate them, and in some cases to make treaties. The test is functional rather than formal: not what a treaty calls the entity, but what it can actually do on the international plane.

2. State the facts and holding of the Reparation for Injuries opinion, and name the three doctrines that come out of it.

The General Assembly asked whether the United Nations could bring an international claim against a State responsible for injury to its agent, and how such a claim would sit with the rights of the agent's national State. The Court held that the Organization has a large measure of international personality and the capacity to operate on the international plane, though it is not a super-State; that it may claim against non-members as well as members; and that it may exercise functional protection of its agents, resting on breach of an obligation owed to the Organization, with the competing claim of the national State to be reconciled case by case. The three doctrines are the international personality of organisations, objective personality opposable to non-members, and implied powers.

3. Distinguish functional protection from diplomatic protection.

Diplomatic protection is a State's claim for injury to its national, and it rests on the bond of nationality; the classic authority on that bond is Nottebohm, in [Nationality]. Functional protection is an organisation's claim for injury to its agent, and it rests not on nationality, of which there is none, but on the breach of an obligation owed to the organisation itself. Both may exist at once on the same facts, and the Reparation opinion declined to rank them.

4. "Individuals are now subjects of international law." How would you qualify that statement?

They are subjects to a limited extent and in defined respects. They bear duties directly, and international tribunals from Nuremberg to the International Criminal Court have punished them without any national law intervening; piracy is the older instance of the same idea. They hold rights directly under human rights treaties, and under a smaller number they may petition an international body. But they cannot make treaties, cannot participate in the formation of custom, and cannot be parties before the International Court of Justice, since article 34 of its Statute admits only States.

5. Why is an international organisation's personality described as derived and functional, and what follows from that?

Derived because it comes from the treaty its member States concluded, unlike a State's personality, which comes from statehood itself. Functional because it extends only so far as the organisation's purposes require, which is the same test the Charter uses in articles 104 and 105 for capacity and immunities. What follows is that different organisations have different capacities, that an organisation cannot act outside its purposes, and that the doctrine of implied powers, which fills gaps by reference to those purposes, is both the strength and the weakness of the theory.

6. Are non-governmental organisations subjects of international law? Give reasons.

No. An NGO is incorporated under some national law, has no capacity to make treaties, bears no international responsibility, and cannot bring an international claim. What it has is access: article 71 of the Charter permits the Economic and Social Council to make arrangements for consultation with non-governmental organisations, and many have consultative status and considerable practical influence on the making of treaties and the reporting of breaches. Influence is not personality, and a candidate who confuses the two will get the question on Amnesty International wrong.

Held. By eleven votes to three, Liechtenstein's claim was inadmissible. It is the bond of nationality between the State and the individual that alone confers the right of diplomatic protection. The conferment of nationality is within a State's domestic jurisdiction, but to exercise protection is to place oneself on the plane of international law, and acts done within domestic jurisdiction do not necessarily have international effect. The question was therefore not whether the naturalisation was valid under Liechtenstein law, which the Court declined to examine, but whether it could be relied on against Guatemala. Arbitrators and courts faced with competing nationalities have preferred the real and effective nationality, that which accords with the facts and rests on the stronger factual ties. Nottebohm's connection with Liechtenstein was tenuous and his connection with Guatemala long-standing and close, and the naturalisation had been sought not to associate himself with the population of Liechtenstein but to substitute the status of a neutral for that of a national of a belligerent. It could not therefore be invoked against Guatemala.

Why it matters. It is the source of the genuine link doctrine. A State may confer its nationality on whom it likes, but other States need not recognise a nationality that has no factual foundation, and a claim brought on such a nationality is inadmissible. The same idea reappears at sea in the requirement of a genuine link between a ship and its flag State, in [The High Seas].

The modes of acquiring nationality

Six modes are recognised, and every legal system uses some combination of the first two with the rest as supplements.

By birth

Two competing principles, and their Latin names are asked for.

Jus soli, the law of the soil: a person acquires the nationality of the territory in which he is born. Common in the Americas.

Jus sanguinis, the law of blood: a person acquires the nationality of his parents wherever he is born. Common in Europe and Asia.

Most States mix them, and India is a good example of a State that has moved from one to the other. Section 3 of the Citizenship Act 1955 gives citizenship by birth in India, but the conditions have been tightened three times: for those born on or after 26 January 1950 and before 1 July 1987, birth in India was enough; for those born on or after 1 July 1987 and before the commencement of the Citizenship (Amendment) Act 2003, either parent had to be a citizen at the time of the birth; and for those born on or after that commencement, which the Act's own footnotes date at 3 December 2004, either both parents must be citizens or one must be a citizen and the other must not be an illegal migrant at the time of the birth. Section 3(2) excludes two cases whatever the dates: where a parent has diplomatic immunity and is not an Indian citizen, and where a parent is an enemy alien and the birth occurs in a place under enemy occupation. That is a shift from jus soli towards jus sanguinis, and it is a good illustration for an answer.

By descent

Section 4 gives citizenship by descent to a person born outside India whose parent was a citizen at the time of the birth, subject to registration at an Indian consulate within a prescribed period. This is jus sanguinis in its pure form.

By naturalisation

The grant of nationality to a foreigner who applies and satisfies conditions, usually residence, good character, knowledge of a language and an intention to reside. Section 6 of the Citizenship Act, read with the Third Schedule, sets India's conditions.

Naturalisation is where the Nottebohm problem arises, because it is the mode most easily used to manufacture a nationality of convenience.

By registration

A simpler route than naturalisation, offered to defined classes with an existing connection. Section 5 covers, among others, persons of Indian origin ordinarily resident in India for the prescribed period, persons married to Indian citizens, and minor children of Indian citizens.

By marriage

In older laws a woman took her husband's nationality automatically on marriage. That is now rare and is regarded as discriminatory. Modern statutes, including India's, treat marriage as a ground for eligibility to apply, not as an automatic transfer.

By subjugation, cession or option

When territory changes hands, the population of the transferred territory generally acquires the nationality of the successor State, often with a right of option to keep the old one within a period. This connects to [State Succession].

The modes of losing nationality

By renunciation. Section 8 of the Citizenship Act allows a citizen of full age and capacity who is also a national of another country to make a declaration renouncing Indian citizenship, and minor children lose it with the parent, with a right to resume it within a year of attaining majority.

By termination. Section 9(1) is the provision to know for the next chapter: any citizen of India who by naturalisation, registration or otherwise voluntarily acquires the citizenship of another country ceases upon that acquisition to be a citizen of India. There is a proviso suspending the rule during a war in which India is engaged, until the Central Government directs otherwise. Section 9(2) leaves the determination of whether, when and how another citizenship was acquired to a prescribed authority.

By deprivation. Section 10 allows the Central Government to deprive a citizen of citizenship in defined cases, and it applies only to citizens by naturalisation or registration, or by virtue of certain constitutional provisions, and not to citizens by birth. The five grounds in section 10(2) are that the registration or certificate of naturalisation was obtained by fraud, false representation or concealment of a material fact; that the citizen has shown himself by act or speech to be disloyal or disaffected towards the Constitution; that he has, during a war in which India is engaged, unlawfully traded or communicated with an enemy or assisted one in business; that he has within five years after registration or naturalisation been sentenced in any country to imprisonment for not less than two years; and that he has been ordinarily resident outside India for a continuous period of seven years without, during that period, being a student abroad, in the service of a Government in India or of an international organisation of which India is a member, and without registering annually at an Indian consulate his intention to retain his citizenship.

Two safeguards sit on top of those grounds and are easy marks. Under section 10(3) the Central Government may not deprive a person unless it is satisfied that it is not conducive to the public good that he should continue to be a citizen. Under sections 10(4) to 10(6) it must give written notice of the ground, and on any ground except the seven-year residence ground the person may require the case to be referred to a Committee of Inquiry chaired by someone who has held judicial office for at least ten years, with two other members.

By long residence abroad, in some legal systems, and by substitution when a new nationality is acquired, which is what section 9 does.

Nationality of things that are not people

The word is used of ships, aircraft and corporations, and each has its own rule.

Ships have the nationality of the State whose flag they fly, and article 91 of the Convention on the Law of the Sea requires a genuine link between the State and the ship. This is [The High Seas].

Aircraft have the nationality of the State of registration, under article 17 of the Chicago Convention, in [International Air Law].

Corporations have, for most purposes, the nationality of the State of incorporation and of the registered office, and the question of who may protect a company and its shareholders is dealt with in [Treatment of Aliens and Diplomatic Protection].

A worked example

Mr T is born in Mumbai on 1 January 2006. His father is an Indian citizen and his mother holds a foreign passport but is lawfully resident in India. At twenty-two Mr T takes a job in State V and, after five years, accepts State V's offer of naturalisation. Two years later State V's police detain and beat him.

Was he an Indian citizen at birth? Yes. He was born after 3 December 2004, so section 3 required one parent to be a citizen, which the father was, and the other not to be an illegal migrant, which the mother was not.

What happened when he took State V's nationality? Section 9(1) applied automatically. By voluntarily acquiring the citizenship of another country he ceased upon that acquisition to be a citizen of India, and no order or hearing was needed.

Who can now protect him? State V, if anyone. India cannot, because he is no longer its national. But State V is the very State that injured him, and the general rule is that a State cannot exercise diplomatic protection against a State of which the injured person is also a national, still less against itself. In practice his remedy is State V's own courts and, if State V has accepted the procedure, a human rights body.

Would the answer change if State V's naturalisation had been a paper transaction with no residence and no ties? For India, no: section 9 turns on the fact of voluntary acquisition, not on its quality. For international law, possibly: on the Nottebohm reasoning another State could decline to recognise a nationality with no genuine link. The two systems can therefore give different answers to the same question, which is the point the chapter has been building towards.

Distinctions that carry marks

What it does NOT mean

A passport is not nationality. A passport is evidence of nationality and a request to allow the bearer to pass. It can be issued in error and it can be withheld from a national.

Domicile is not nationality. Domicile is a connection with a legal system for the purposes of private international law, chiefly succession and family law. A person can be an Indian national domiciled in England.

Nationality is not race, language or religion. Nationality here is a legal bond with a State. The word is used in ordinary speech for ethnic identity and that usage has no place in this answer.

The genuine link does not invalidate a nationality. Nottebohm did not hold that Nottebohm was not a national of Liechtenstein. It held that Liechtenstein could not use that nationality to bring a claim against Guatemala. The nationality remained good for every other purpose, including in Liechtenstein itself.

Limits and criticism

Nottebohm is narrower than students are taught. The Court dealt with a naturalisation obtained during a war for the express purpose of changing a belligerent status into a neutral one, and it repeatedly confined itself to the admissibility of Liechtenstein's claim against Guatemala. Read as a general requirement that every nationality must have a genuine link before any other State need respect it, the case would make millions of ordinary naturalised citizens vulnerable, and later practice, including the International Law Commission's work on diplomatic protection, has not read it that way.

The domestic-jurisdiction rule has costs. Because each State decides who its nationals are, and no State is obliged to grant nationality to anyone, statelessness can be created by legislative accident and nobody is obliged to cure it. That is the subject of the next chapter.

Investment citizenship strains the doctrine. Several States now sell nationality for a payment, with residence requirements that are nominal or absent. That is Nottebohm's problem in a modern form, and the law has not settled it.

Quick revision

Nationality is the legal bond between an individual and a State, and it is what entitles that State to exercise diplomatic protection for him.

Each State decides by its own law who its nationals are, but Nottebohm (ICJ Reports 1955, page 4) held that a nationality without a genuine link cannot be invoked against another State: the Court prefers the real and effective nationality, that which accords with the facts.

Modes of acquisition: birth (jus soli, place; jus sanguinis, blood), descent, naturalisation, registration, marriage, and subjugation or cession with a right of option.

Indian law: section 3 citizenship by birth, narrowed in 1987 and again on 3 December 2004; section 4 by descent; section 5 by registration; section 6 by naturalisation with the Third Schedule conditions; section 6A for the Assam Accord; section 6B inserted by Act 47 of 2019.

Modes of loss: section 8 renunciation, section 9(1) termination on voluntarily acquiring another citizenship, section 10 deprivation, which reaches only citizens by naturalisation or registration and never a citizen by birth.

Distinguish nationality from passport, from domicile and from ethnic identity.

Test yourself

1. Define nationality and say what turns on it in international law.

Nationality is the legal bond by which an individual is a member of a State and owes it allegiance. Three things turn on it: only the State of nationality may exercise diplomatic protection for the individual; a State may legislate for its nationals abroad under the nationality principle of jurisdiction; and a State must admit its own nationals and cannot expel them.

2. State the facts and holding of Nottebohm.

Nottebohm was a German national who lived and did business in Guatemala from 1905. In October 1939, a month after the war began, he obtained naturalisation in Liechtenstein with the residence requirement waived, and returned to Guatemala. Liechtenstein later claimed against Guatemala for its treatment of him. The Court held the claim inadmissible: conferring nationality is a matter of domestic jurisdiction, but exercising protection places the State on the international plane, and a nationality may be invoked against another State only where it reflects a genuine connection. His ties with Liechtenstein were tenuous and with Guatemala close, and the naturalisation was sought to exchange a belligerent status for a neutral one, so it could not be relied on against Guatemala.

3. Distinguish jus soli from jus sanguinis and say which India follows.

Jus soli confers nationality by place of birth; jus sanguinis confers it by descent from a national parent. India began with a broad jus soli in section 3 of the Citizenship Act 1955, then required one parent to be a citizen for births on or after 1 July 1987, and for births on or after 3 December 2004 requires one parent to be a citizen and the other not to be an illegal migrant. India therefore now applies a qualified jus soli heavily conditioned by descent, alongside a full jus sanguinis rule in section 4.

4. In what circumstances can an Indian citizen be deprived of citizenship, and who is protected from deprivation?

Section 10 of the Citizenship Act 1955 permits deprivation for obtaining citizenship by fraud, false representation or concealment of a material fact; disloyalty by act or speech towards the Constitution; unlawfully trading or communicating with an enemy in wartime; being sentenced in any country to imprisonment for not less than two years within five years after registration or naturalisation; and ordinary residence outside India for a continuous period of seven years without the exceptions and the annual registration that clause (e) requires. Section 10(3) adds that the Government must be satisfied that continued citizenship is not conducive to the public good, and sections 10(4) to 10(6) give a right to notice and, except on the residence ground, to a Committee of Inquiry. It applies only to citizens by naturalisation or registration and by virtue of certain constitutional provisions. A citizen by birth cannot be deprived under section 10 at all.

5. "The genuine link requirement makes a State's grant of nationality reviewable by other States." Is that right?

Not as stated. Nottebohm did not hold the naturalisation invalid, and the Court expressly declined to examine its validity under Liechtenstein law. What it held was that Liechtenstein could not invoke that nationality against Guatemala for the purpose of a claim. So other States are not reviewing the grant; they are declining to give it a particular international effect. Read more widely, the doctrine would unsettle the position of very large numbers of ordinary naturalised citizens, and later practice has not read it that way.

6. Mr A, an Indian citizen by birth, takes the citizenship of State B by naturalisation while working there. He does not tell anyone in India. What is his status?

He ceased to be an Indian citizen at the moment of acquisition, by force of section 9(1) of the Citizenship Act 1955, which operates automatically on voluntary acquisition of the citizenship of another country and requires no order. His silence is irrelevant to the result, though any question about whether, when or how he acquired the other citizenship falls to be determined under section 9(2) by the prescribed authority in the prescribed manner. India cannot thereafter exercise diplomatic protection for him, because he is no longer its national.

The problems double nationality creates

An examiner asks what is actually wrong with holding two passports. Five things.

Competing diplomatic protection. If A is a national of both State X and State Y and is injured by State Z, both X and Y may wish to claim, and Z faces two claimants for one injury.

Protection against the other State of nationality. This is the sharper problem. May State X claim against State Y on behalf of a person who is a national of both? The older rule said no, on the ground that the two claims cancel out. The modern rule, reflected in the International Law Commission's work on diplomatic protection, is that X may claim against Y where X's nationality is predominant, which is the Nottebohm idea applied to a different question.

Double military service. Both States may claim the person's compulsory service, and performing it for one may be treason to the other.

Double taxation and conflicting allegiance, resolved in practice by tax treaties rather than by nationality law.

Conflicting obligations in wartime. A dual national of two belligerents is in an impossible position, and the Nottebohm facts show what people do about it.

How international law handles them

The dominant and effective nationality

The working solution is not to deny that a person has two nationalities but to ask which one counts for the purpose in hand.

That is the doctrine of the dominant and effective nationality, and its clearest statement is the passage in the [Nationality] chapter from the Nottebohm case: where two States have conferred their nationality on the same individual and the situation extends beyond the domestic jurisdiction of either, arbitrators and courts have preferred the real and effective nationality, that which accords with the facts and rests on stronger factual ties.

The factors are habitual residence, the centre of family and business life, participation in public life, attachment shown for a country and inculcated in children, and the place where taxes are paid and duties performed.

The treaties

The Hague Convention on Certain Questions relating to the Conflict of Nationality Laws, 1930 is the classical instrument, and four of its articles are worth knowing by number.

Article 1 states the position this whole chapter turns on: it is for each State to determine under its own law who are its nationals, and this law shall be recognised by other States in so far as it is consistent with international conventions, international custom, and the principles of law generally recognised with regard to nationality. That second sentence is the treaty ancestor of the genuine-link reasoning in Nottebohm.

Article 3 accepts double nationality rather than denying it: a person having two or more nationalities may be regarded as its national by each of the States whose nationality he possesses.

Article 4 contains the rule about claims: a State may not afford diplomatic protection to one of its nationals against a State whose nationality such person also possesses.

Article 5 supplies the answer for everybody else: within a third State, a person having more than one nationality shall be treated as if he had only one, and that third State shall recognise exclusively either the nationality of the country in which he is habitually resident or the nationality of the country with which in the circumstances he appears to be in fact most closely connected. That is the dominant and effective nationality test, written into a treaty twenty-five years before Nottebohm.

The Convention relating to the Status of Stateless Persons, 1954 defines a stateless person as one who is not considered as a national by any State under the operation of its law, and gives such persons a status, identity papers and travel documents.

The Convention on the Reduction of Statelessness, 1961 obliges contracting States to grant nationality to a person born in their territory who would otherwise be stateless, and restricts deprivation of nationality where it would produce statelessness.

India is a party to none of the three. That is a fact worth stating in an answer rather than glossed over, and it is why the Indian discussion below runs on Indian statute alone.

India's position: no dual citizenship

India does not permit dual citizenship, and it says so twice.

Article 9 of the Constitution provides that no person shall be a citizen of India by virtue of article 5, or be deemed to be a citizen of India by virtue of article 6 or article 8, if he has voluntarily acquired the citizenship of any foreign State.

Section 9(1) of the Citizenship Act 1955 carries the rule forward beyond the commencement of the Constitution: any citizen of India who by naturalisation, registration or otherwise voluntarily acquires, or has at any time between 26 January 1950 and the commencement of the Act voluntarily acquired, the citizenship of another country shall upon that acquisition cease to be a citizen of India. There is a proviso: the sub-section does not apply to a citizen of India who during any war in which India may be engaged voluntarily acquires the citizenship of another country, until the Central Government otherwise directs. Section 9(2) leaves the question whether, when and how another citizenship was acquired to be determined by a prescribed authority in a prescribed manner and on prescribed rules of evidence.

Two points about the operation of section 9 are worth writing down.

It is automatic. The Indian citizenship ends at the moment of voluntary acquisition. No order is made and no hearing is held, which is what distinguishes it from deprivation under section 10, where an order, a notice and in most cases a Committee of Inquiry are required.

It turns on voluntariness. A nationality conferred by operation of another State's law without any act of the individual is not voluntarily acquired.

Overseas Citizenship of India

Because the pressure for dual citizenship from the Indian diaspora was real, Parliament created something that is deliberately not citizenship. Sections 7A to 7D of the Citizenship Act provide for registration as an Overseas Citizen of India Cardholder.

The name is misleading and the misdirection is the exam point. An OCI cardholder is a foreign national. The card gives a lifelong visa and certain parity with non-resident Indians in economic and educational matters, and it does not give the political rights that define citizenship: no right to vote, no eligibility for public office, no eligibility for public employment, and no right to acquire agricultural land. Section 7D allows the Central Government to cancel registration on stated grounds.

So India's answer to double nationality is to give the practical benefits people wanted while withholding the status, and a candidate who writes that India permits dual citizenship through the OCI card has made the error the provision was drafted to invite.

A worked example

Ms N is born in India in 1990 to Indian parents, so she is an Indian citizen by birth under section 3. She moves to State W for work at twenty-five, and at thirty-five she is naturalised there. She keeps her Indian passport and continues to use it when she visits her parents. At forty she is arrested and mistreated by the police of State Z while on holiday there.

Is she still an Indian citizen? No. Section 9(1) ended her Indian citizenship at the moment she was naturalised in State W, automatically. Continuing to hold and use an Indian passport does not preserve the status; the passport has simply become invalid, and using it knowingly is an offence.

Can India protect her against State Z? No, because she is no longer an Indian national and the right of diplomatic protection follows nationality.

Can State W protect her against State Z? Yes. She is its national and no competing nationality now exists.

Change the facts: suppose State W's law had made her a national at birth by descent through a grandparent, without any act of hers. Then she would be a dual national from birth, and section 9(1) would not have operated, because nothing was voluntarily acquired. India and State W could both wish to claim against State Z, and the question of which claim prevails, or whether both proceed, would be answered by asking which nationality is dominant and effective on the Nottebohm factors: habitual residence, the centre of her life, and the attachment she has shown.

Change them again: suppose it is State W itself that mistreats her. Now India would be claiming against the other State of her nationality. Under the 1930 Hague Convention's rule a State may not protect a national against a State whose nationality that person also possesses. The modern position is more flexible and permits the claim where the claimant State's nationality is predominant, and an answer that gives both positions and says which is modern will score better than one that gives only the older rule.

Distinctions table

What it does NOT mean

An OCI cardholder is not a citizen. No vote, no public office, no public employment, no agricultural land, and the registration can be cancelled under section 7D.

Statelessness is not the same as being a refugee. A refugee has a nationality and cannot or will not seek his State's protection because of a well-founded fear of persecution. A stateless person has no nationality at all. Many people are both, and the two categories are governed by different conventions.

Losing Indian citizenship under section 9 is not deprivation under section 10. Section 9 is automatic and applies to every citizen, including a citizen by birth. Section 10 requires an order and applies only to citizens by naturalisation or registration and by virtue of certain constitutional provisions.

Holding two passports does not by itself prove double nationality, and it usually proves that one of them should have been surrendered.

Limits and criticism

The world is moving the other way from India. A large and increasing number of States now tolerate dual nationality, on the view that it reflects how people actually live and that the old objections, chiefly military service and allegiance, have weakened. The Indian rule is a policy choice and can be defended, but an answer that presents it as the universal rule is wrong.

The 1961 Convention has few parties, so the strongest legal answer to statelessness binds a minority of States. The practical work is done by national law reform and by birth registration campaigns, not by international obligation.

The dominant nationality test is unpredictable. It asks a court to weigh residence, family, business and attachment with no fixed weights, which produces a defensible answer in a clear case and very little guidance in a close one.

Quick revision

Both problems come from one fact: every State writes its own nationality law and none is obliged to coordinate.

Double nationality arises from conflicting jus soli and jus sanguinis, from descent from parents of different nationalities, from naturalisation without renunciation, from marriage under older laws, and from transfers of territory.

Statelessness arises from the mirror gap, from deprivation, from failed acquisition, from State succession, and in practice most often from unregistered births.

The solution to double nationality is the dominant and effective nationality, the Nottebohm test: habitual residence, centre of family and business life, participation in public life, attachment shown.

Treaties: the Hague Convention on Certain Questions relating to the Conflict of Nationality Laws 1930, the Convention relating to the Status of Stateless Persons 1954, and the Convention on the Reduction of Statelessness 1961. India is a party to none of them.

India permits no dual citizenship: article 9 of the Constitution and section 9(1) of the Citizenship Act 1955, which operates automatically on voluntary acquisition. Sections 7A to 7D create the Overseas Citizen of India Cardholder, who is a foreign national with a lifelong visa and no political rights.

Test yourself

1. Explain how a person can come to hold two nationalities at birth, and why international law tolerates it.

Because States apply different principles. A child born in a State that follows jus soli, the law of the soil, to parents who are nationals of a State that follows jus sanguinis, the law of blood, acquires both nationalities at the moment of birth, and neither State has done anything irregular. International law tolerates it because the alternative would be to tell States whom they may treat as their nationals, which cuts against the settled rule that nationality is a matter for each State's own law.

2. May State A exercise diplomatic protection for a person who is a national of both A and B, against B?

Under the classical rule, no: article 4 of the 1930 Hague Convention provides that a State may not afford diplomatic protection to one of its nationals against a State whose nationality that person also possesses. The modern position, reflected in the International Law Commission's work on diplomatic protection, allows the claim where the claimant State's nationality is predominant, both at the date of injury and at the date of the claim. The test of predominance is the Nottebohm test of real and effective nationality.

3. Distinguish section 9 from section 10 of the Citizenship Act 1955.

Section 9 terminates citizenship automatically on the voluntary acquisition of the citizenship of another country. It needs no order, no notice and no hearing, and it applies to every citizen including a citizen by birth. Section 10 is deprivation by order of the Central Government on five stated grounds, it requires that the Government be satisfied that continued citizenship is not conducive to the public good, it requires written notice of the ground, and on every ground except long residence abroad the person may require a Committee of Inquiry. It applies only to citizens by naturalisation or registration and by virtue of certain constitutional provisions.

4. Is an Overseas Citizen of India a citizen of India? Give reasons.

No. Registration under sections 7A to 7D makes the holder a cardholder, not a citizen, and he remains a foreign national. The card confers a lifelong visa and parity with non-resident Indians in specified economic and educational matters. It confers none of the political incidents of citizenship: no right to vote, no eligibility for public office or public employment, and no right to acquire agricultural land. Section 7D permits cancellation of the registration. The name of the scheme invites the error, and the error is the point of the question.

5. What is statelessness, and what does international law do about it?

A stateless person is one who is not considered a national by any State under the operation of its law, which is the definition in the 1954 Convention relating to the Status of Stateless Persons. That Convention gives such persons a status, identity papers and travel documents. The 1961 Convention on the Reduction of Statelessness requires contracting States to confer nationality on a person born in their territory who would otherwise be stateless, and restricts deprivation that would cause statelessness. Both bind only their parties, and India is a party to neither.

6. "India's refusal to allow dual citizenship is out of step with international practice." Discuss briefly.

It is out of step in the descriptive sense: a large and growing number of States now tolerate dual nationality, on the view that it matches how people live and that the classical objections, chiefly competing military service and divided allegiance, have lost much of their force. India's position rests on article 9 of the Constitution and section 9(1) of the Citizenship Act and is a deliberate policy choice, softened in practice by the Overseas Citizen of India card, which supplies the economic benefits people sought while withholding political rights. Whether that is the right balance is arguable; what is not arguable is that the rule is a choice rather than a requirement of international law, which leaves nationality to each State.

Two rows of that table deserve a sentence each.

Nationality attaches to things that cannot vote. A ship has the nationality of its flag State, an aircraft of its State of registration, and a company of its State of incorporation. Nobody speaks of a citizen ship. That alone shows the two words are not synonyms.

A person can lose citizenship rights without losing nationality. A convicted prisoner may be disqualified from voting in many systems and remains a national throughout, so the State must still admit him and may still protect him abroad.

The position in Indian law

India uses the word citizenship in its Constitution and in its statute, and uses nationality almost nowhere. That is a drafting choice, not a denial of the distinction, and three features of Indian law show the distinction operating.

The Constitution deals with citizenship, and only at the commencement

Part II of the Constitution, articles 5 to 11, is headed Citizenship, and it is narrower than students expect. It determines who was a citizen at the commencement of the Constitution and then hands the subject to Parliament.

Article 5 makes a person a citizen at commencement if he had his domicile in India and was born in India, or either of whose parents was born in India, or who had been ordinarily resident in India for not less than five years immediately preceding the commencement.

Articles 6 and 7 deal with the migrations of Partition, in both directions.

Article 8 covers persons of Indian origin residing outside India, on registration with a diplomatic or consular representative.

Article 9, dealt with in [Double Nationality and Statelessness], excludes a person who has voluntarily acquired the citizenship of a foreign State.

Article 10 continues the rights of citizenship subject to any law Parliament may make.

Article 11 is the operative delegation: Parliament shall have the power to make any provision with respect to the acquisition and termination of citizenship and all other matters relating to citizenship. The Citizenship Act 1955 is made under it.

The Constitution then distinguishes citizens from persons

The distinction between a citizen and a mere national or foreigner does real work in Indian constitutional law, because some fundamental rights are given to citizens and others to persons.

Rights available only to citizens include those in article 15, prohibiting discrimination on grounds of religion, race, caste, sex or place of birth; article 16, equality of opportunity in public employment; article 19, the six freedoms including speech, assembly, association, movement, residence and profession; and article 29, protection of the interests of minorities.

Rights available to every person, citizen or not, include article 14, equality before the law, article 20, protection in respect of conviction for offences, article 21, protection of life and personal liberty, and article 25, freedom of conscience and religion.

That division is the constitutional expression of exactly the distinction this chapter is about: some things follow from being inside the community, and some follow from being human and present.

The Overseas Citizen of India: the clearest Indian illustration

Sections 7A to 7D of the Citizenship Act 1955 create the Overseas Citizen of India Cardholder, and the scheme is the best single illustration of the distinction available to an Indian student.

The cardholder is a foreign national. He holds another State's nationality and India's card. He gets a lifelong visa, and parity with non-resident Indians in specified economic, financial and educational fields. He does not get the vote, eligibility for public office, eligibility for public employment, or the right to acquire agricultural or plantation property. Section 7D permits cancellation of the registration.

So the OCI scheme hands over a package of practical benefits while withholding the political core. It is citizenship with the citizenship taken out, and the word in its name is the trap.

A worked example

Mr K holds the passport of State L. His grandfather was born in undivided India, so he qualifies for and obtains an OCI card. He lives in Mumbai for nine years, runs a business, pays Indian tax, and buys a flat.

Is he an Indian citizen? No. He is a national of State L, and his OCI card does not change that.

Can he vote in a Lok Sabha election? No. The vote is an incident of citizenship and the card confers none.

Can he be appointed to a post in the Union public service? No, for the same reason, and article 16's guarantee of equality of opportunity in public employment is in terms a right of citizens.

Can he buy an apartment? Yes, under the parity the scheme gives with non-resident Indians. Can he buy a farm? No; agricultural and plantation property is excluded.

If he is arrested in Mumbai, can he claim article 21? Yes. Article 21 protects every person, not only citizens. Can he claim article 19's freedom of movement? No; article 19 is a right of citizens.

If he is mistreated on a business trip to State M, which State can protect him? State L, because that is his State of nationality. India cannot, because he is not its national, and the card does not create the bond that diplomatic protection requires.

Notice how the same person is treated differently by the two systems, and how each answer followed from asking whether the question pointed inwards or outwards.

What it does NOT mean

Nationality is not the weaker status. It is the status that matters at the international level; citizenship is the status that matters domestically. Neither is a subset of the other in importance.

They are not always distinguished in drafting. Many statutes, and many States, use the two words as synonyms, and the United Kingdom's own legislation has used several categories of nationality with different citizenship consequences. A candidate should say the distinction is analytical and is not always reflected in the words a legislature chooses.

Citizenship is not the same as domicile or residence. Domicile is a private international law connection used for succession and family law; residence is a fact. A person can be an Indian citizen domiciled abroad, and a foreign national resident in India for decades.

An OCI cardholder is not an overseas citizen. The name says he is. The statute says he is a foreign national with a card. Trust the statute.

Limits and criticism

The distinction is blurring. In most modern States nationality and citizenship coincide exactly, because the class of nationals who are not citizens has all but disappeared with the empires that created it. Some writers say the distinction now survives mainly in textbooks.

But it has not disappeared. It survives wherever a State keeps a status that carries protection without political rights, and India has deliberately created such a status in the OCI card. It also survives structurally, because the word nationality still does work that citizenship cannot: it attaches to ships, aircraft and corporations, and it is the word that international tribunals use.

The gap it leaves is a real one. A person can be a lawful resident of a State for decades, pay its taxes, raise children who are its citizens, and have no vote in it, and this is a matter of policy that nationality law does not resolve.

Quick revision

Nationality points outwards and is the international law word: it entitles a State to protect the individual, obliges it to admit him, and follows him abroad.

Citizenship points inwards and is the municipal law word: it carries civil and political rights within the State.

Every citizen is a national; not every national is a citizen. The classical example is the colonial subject, protected abroad and without political rights at home.

Nationality attaches to ships, aircraft and corporations; citizenship does not.

Indian law: Part II of the Constitution, articles 5 to 11, fixes citizenship at commencement and article 11 hands the subject to Parliament, which enacted the Citizenship Act 1955.

Rights of citizens only: articles 15, 16, 19 and 29. Rights of every person: articles 14, 20, 21 and 25.

Sections 7A to 7D: the Overseas Citizen of India Cardholder is a foreign national with a lifelong visa and economic parity with non-resident Indians, and with no vote, no public office, no public employment and no agricultural land. Section 7D allows cancellation.

Test yourself

1. Distinguish nationality from citizenship, and give one example of each without the other.

Nationality is the status recognised by international law that links an individual to a State, entitling that State to exercise diplomatic protection and obliging it to admit him; citizenship is the municipal status carrying full civil and political rights within the State. Nationality without citizenship: the inhabitant of a colony who was a British subject, protected abroad but without political rights. Citizenship without nationality: this does not ordinarily arise for individuals, because citizenship presupposes membership of the State, but the point is illustrated in reverse by ships and aircraft, which have nationality and can have no citizenship at all.

2. Which fundamental rights in the Indian Constitution are available only to citizens?

Article 15, prohibition of discrimination on grounds of religion, race, caste, sex or place of birth; article 16, equality of opportunity in matters of public employment; article 19, the six freedoms; and article 29, protection of the interests of minorities. Articles 14, 20, 21 and 25 are available to every person, citizen or not.

3. Does the Constitution of India lay down a complete law of citizenship? Explain.

No. Part II, articles 5 to 11, determines who was a citizen at the commencement of the Constitution and deals with the migrations of Partition and with persons of Indian origin abroad. Article 9 excludes anyone who has voluntarily acquired a foreign citizenship, and article 10 continues the rights of citizenship subject to parliamentary law. Article 11 then expressly gives Parliament power to make any provision with respect to the acquisition and termination of citizenship and all other matters relating to it. The working law of citizenship is therefore the Citizenship Act 1955, made under article 11.

4. Explain the status of an Overseas Citizen of India, and why the name is misleading.

Registration under sections 7A to 7D of the Citizenship Act 1955 makes a person an Overseas Citizen of India Cardholder. He remains a national of some other State and is a foreign national in India. He receives a lifelong visa and parity with non-resident Indians in specified economic, financial and educational matters. He receives none of the political incidents of citizenship: no vote, no eligibility for public office or public employment, and no right to acquire agricultural or plantation property. Section 7D allows the registration to be cancelled. The name is misleading because the word citizen appears in a status that is expressly not citizenship, and India permits no dual citizenship at all.

5. Mr P, a national of State Q, has lived in India for twenty years on an OCI card. He is detained by the police without being told the grounds. Which constitutional rights can he invoke?

Article 21 and article 22 protections extend to every person, so he may complain of deprivation of personal liberty otherwise than according to procedure established by law, and of the failure to inform him of the grounds of arrest. Article 14, equality before the law, and article 20, protection in respect of conviction for offences, also extend to persons. He cannot invoke article 19, because the six freedoms are guaranteed to citizens, nor articles 15, 16 or 29. The division follows exactly the distinction between rights that attach to membership of the community and rights that attach to being a person within the State's power.

6. "The distinction between nationality and citizenship is of no practical importance today." Discuss.

There is something in it, because in most modern States the two classes coincide exactly, the colonial category of nationals without political rights having disappeared with the empires that created it. But the distinction has not lost its work. It survives in India in the Overseas Citizen of India scheme, which deliberately confers benefits without the political core. It survives structurally, because nationality attaches to ships under article 91 of the Convention on the Law of the Sea, to aircraft under article 17 of the Chicago Convention, and to corporations, and citizenship attaches to none of them. And it survives functionally, because international tribunals ask about nationality and never about citizenship: it was nationality, not citizenship, that decided Nottebohm.

"Recognized by civilized nations." The phrase is a relic of 1920 and is dealt with in [General Principles of Law Recognised by Civilised Nations].

"Subsidiary means for the determination of rules of law." Paragraph (d) is not a source of law at all. Judicial decisions and writings are ways of finding out what the law is, not ways of making it.

Formal and material sources

This is a distinction the standard textbooks make and examiners ask for.

A formal source is what gives a rule its legal validity, the process that makes it law. In this subject the formal sources are treaty and custom, with general principles a third.

A material source is where you find evidence of the rule's content: judgments, resolutions, treaty collections, diplomatic correspondence, the writings of jurists, the reports of the International Law Commission.

The distinction explains paragraph (d) exactly. Judicial decisions and the teachings of publicists are material sources: they tell you what the law is without making it.

Is there a hierarchy?

Students often assume article 38 lists the sources in order of authority. That is not quite right, and the exact position is worth stating.

There is no formal hierarchy in article 38. The order (a) to (d) is not stated to be an order of precedence, and the words "in the following order" were considered by the 1920 drafters and dropped.

There is a practical order. A court asked to decide a dispute will look first at any treaty binding both parties, because that is the most specific expression of what they agreed. Failing that, custom. Failing that, general principles, which in practice fill gaps rather than decide cases.

Paragraph (d) is expressly subordinate, being described as subsidiary means.

But three ordinary rules of legal reasoning apply, and they cut across the list. Lex specialis derogat legi generali: a special rule prevails over a general one, so a treaty between two States prevails over a general custom on the same point. Lex posterior derogat legi priori: the later rule prevails over the earlier, between the same parties. And jus cogens prevails over everything, so a treaty conflicting with a peremptory norm is void under article 53 of the Vienna Convention, whatever the parties agreed.

So the honest answer is: no hierarchy on the face of article 38, a working order in practice, and one true supremacy, that of peremptory norms.

The seven items MU lists, and where each is dealt with

MU prints topic 1.5 with a heading and then seven items, and each has a chapter.

Custom is [Custom]. The general practice and the belief that law requires it.

Treaties are [Treaties as a Source]. How a treaty binds parties, and how a treaty rule can pass into custom and bind non-parties.

General principles of law recognised by civilised nations are [General Principles of Law Recognised by Civilised Nations]. What the phrase means and which principles have actually been applied.

Judicial decisions and writings of jurists are [Judicial Decisions and the Writings of Jurists], and they are one chapter because article 38(d) treats them together as subsidiary means.

Equity is [Equity], including article 38(2)'s ex aequo et bono.

Resolutions of the General Assembly are [Resolutions of the General Assembly], which is the modern question article 38 does not mention at all.

What article 38 leaves out

This is the sharpest question on the topic and a good answer names four omissions.

Resolutions of international organisations. Article 38 was drafted before organisations produced resolutions in volume. General Assembly resolutions are not binding by themselves under articles 10 to 14 of the Charter, but they can express or crystallise custom, and some Security Council decisions bind all Members under article 25. Neither appears in article 38.

Unilateral acts. A State can bind itself by a public declaration intended to be binding, and no source in article 38 covers it.

Jus cogens. Article 38 is a list of where rules come from; it has nothing to say about a class of rules that outrank others. Article 53 of the Vienna Convention supplied that in 1969.

Soft law. Codes of conduct, guidelines, declarations and standards that are not binding but are widely followed. They are not law, and they are not nothing, and article 38 has no room for them.

A worked example

State A and State B dispute the boundary of their continental shelf. Where does a tribunal look, and in what order?

First, any treaty between them. If they have a delimitation treaty, that governs, because it is the most specific expression of their agreement, and lex specialis applies.

Second, any treaty in force between both on the subject generally. If both are parties to the Convention on the Law of the Sea, articles 76 and 83 govern, which is [The Continental Shelf].

Third, custom, if one of them is not a party. This is precisely the situation in the North Sea Continental Shelf cases, worked in [Delimitation of Maritime Boundaries], where Germany had signed but not ratified the 1958 Convention, so the tribunal had to ask whether the treaty rule had passed into custom.

Fourth, general principles, which here supply the vocabulary of equity but not the boundary.

And throughout, judicial decisions and writings, not as law but as evidence of what the law is. The tribunal will read the earlier delimitation judgments closely, and it is not bound by any of them, because article 59 provides that a decision of the Court has no binding force except between the parties and in respect of that particular case.

Distinctions table

What it does NOT mean

Article 38 is not a statute of the whole world. It is a direction to one court about what that court shall apply. Its authority as a list of sources comes from universal acceptance, not from its own terms.

A source is not the same as a basis of obligation. The basis of obligation is the question in [Theories of the Basis of International Law]. The source is the question of where a particular rule comes from and how to prove it.

Article 38(d) does not make judicial decisions binding precedents. Article 59 says a decision has no binding force except between the parties and for that case. The Court in practice follows itself closely, which is a different thing.

Ex aequo et bono is not equity. It is a power to decide outside the law altogether, and it needs the agreement of both parties. No party has ever given it. That distinction is worked in [Equity].

Limits and criticism

The list is a century old and shows it. It has nothing on resolutions, nothing on soft law, nothing on unilateral acts and nothing on peremptory norms, all of which are now part of any serious account of how international obligations arise.

"Civilized nations" should have been amended at some point in a hundred years and has not been.

The two main sources are becoming harder to tell apart. Multilateral conventions codify custom, custom then develops through the practice of parties to those conventions, and the two feed each other continuously. The North Sea cases had to unpick that relationship and it has only become more tangled since.

Quick revision

Article 38(1) of the Statute of the International Court of Justice is the accepted list: (a) international conventions, (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 article 59, judicial decisions and the teachings of the most highly qualified publicists, as subsidiary means. Article 38(2): ex aequo et bono with the parties' agreement.

Its authority comes from universal acceptance and from article 93(1) of the Charter making every Member a party to the Statute.

The (b) wording is back to front: practice is evidence of custom, not the other way round.

Formal sources make law: treaty, custom, general principles. Material sources show what the law is: judgments, writings, resolutions, ILC reports.

No formal hierarchy, but a working order, plus lex specialis, lex posterior, and the true supremacy of jus cogens under article 53 of the Vienna Convention.

Omitted from article 38: resolutions of international organisations, unilateral acts, jus cogens, and soft law.

Article 59: a decision of the Court has no binding force except between the parties and in respect of that particular case.

Test yourself

1. Reproduce article 38(1) and identify which of its four heads is not a source of law.

The Court, whose function is to decide in accordance with international law such disputes as are submitted to it, shall apply: (a) international conventions, whether general or particular, establishing rules expressly recognized by the contesting states; (b) international custom, as evidence of a general practice accepted as law; (c) the general principles of law recognized by civilized nations; and (d) subject to the provisions of Article 59, judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law. Head (d) is not a source: it is expressly a subsidiary means for determining rules of law, that is, a material rather than a formal source.

2. Is there a hierarchy among the sources?

Not on the face of article 38, which does not state an order of precedence and from whose draft the words indicating one were removed. There is a working order: a tribunal looks first to a treaty binding both parties, then to custom, then to general principles, and treats judicial decisions and writings as evidence throughout. Three rules cut across this: lex specialis, so a special rule prevails over a general one; lex posterior, so a later rule prevails over an earlier between the same parties; and the supremacy of jus cogens, which voids any treaty conflicting with it under article 53 of the Vienna Convention.

3. Distinguish formal from material sources with an example of each.

A formal source is the process that makes a rule legally valid: a treaty, or a custom formed by general practice accepted as law. A material source is evidence of the content of a rule: a judgment of the International Court, a report of the International Law Commission, or a treatise. A formal source can create an obligation; a material source can only show that one exists. Article 38(a) to (c) are formal, article 38(d) is material.

4. What does article 38 omit, and does the omission matter?

Resolutions of international organisations, unilateral acts of States, jus cogens, and soft law. It matters in the sense that any complete modern account of how international obligations arise has to deal with all four, and none of them can be fitted into the text without strain. It matters less than it seems, because resolutions and unilateral acts do their work largely through custom and through good faith, and jus cogens was given statutory form in article 53 of the Vienna Convention in 1969, which article 38 does not need to repeat.

5. Why is the wording of article 38(1)(b) criticised?

It says international custom is evidence of a general practice accepted as law, which reverses the logical relationship. Custom is the rule; the general practice accepted as law is the evidence from which the existence of the rule is inferred. Every court and writer reads the provision as though it said custom as evidenced by a general practice accepted as law, and the drafting has never been corrected.

6. State A obtains a judgment of the International Court against State B on a point of law. State C is later in dispute with State D on the same point. Is the earlier judgment binding?

No. Article 59 of the Statute provides that a decision of the Court has no binding force except between the parties and in respect of that particular case, and article 38(1)(d) is expressly made subject to article 59. There is no doctrine of stare decisis in international law. In practice the Court follows its own reasoning closely and departs from it only for good reason, so the earlier judgment will carry very great weight as a subsidiary means for the determination of the rule, but it binds nobody in the later dispute.

The psychological element: opinio juris

Opinio juris sive necessitatis means the belief that the conduct is required by law or by a sense of legal obligation.

It is what separates a customary rule from a courtesy. States have for centuries given a departing ambassador a ceremonial send-off; nobody thinks a legal obligation exists, so no custom has formed. States have for centuries refrained from arresting foreign diplomats; that is a rule, because States believe they are bound.

How it is proved. Opinio juris is a state of mind, and States do not have minds. In practice it is inferred from what States say when they act: from protests, from claims, from the terms of national legislation, from the reasons given for votes, and from the arguments States make when accused of a breach.

The paradox. For a new custom to form, some State must act first, and at the moment it acts there is no rule, so its belief that the law requires the act is false. The usual answer is that the belief may be prospective: the State asserts a rule and other States acquiesce, and the rule crystallises around the assertion. That is exactly what happened with the continental shelf, and the Truman Proclamation of 28 September 1945 is the standard example.

The leading case on how a treaty rule becomes custom

Facts. North Sea Continental Shelf Cases (Federal Republic of Germany/Denmark; Federal Republic of Germany/Netherlands), ICJ Reports 1969, page 3, decided 20 February 1969. Germany, Denmark and the Netherlands had agreed partial continental shelf boundaries near the coast in 1964 and 1965 but could not agree on their prolongation. Denmark and the Netherlands wanted the equidistance method of article 6 of the 1958 Geneva Convention on the Continental Shelf. Germany's North Sea coast is concave, and equidistance lines drawn from a recessing coast meet a short way out and cut the State behind them off from the shelf beyond. Germany had signed the 1958 Convention but never ratified it. By two special agreements of 20 February 1967 the parties asked the Court to state the applicable principles.

Held. By eleven votes to six, equidistance was not obligatory. Germany was not bound by article 6, having never ratified, and no estoppel arose against it. Equidistance was not inherent in the concept of the continental shelf, whose basis is the natural prolongation of the land territory, giving rights that exist ipso facto and ab initio. And article 6 had not passed into customary law. For that to happen the provision would have to be, at all events potentially, of a norm-creating character, and article 6 was not: it puts the obligation to use equidistance after a primary obligation to delimit by agreement, it is qualified by the notion of special circumstances whose meaning was controverted, and reservations to it were permitted, which the Court took as a legitimate inference that it was not thought to reflect emergent customary law. Further, a very widespread and representative participation in a convention might show that a conventional rule had become general law, but the number of ratifications and accessions was hardly sufficient. As to time, the passage of only a short period was not necessarily a bar, but within the period, however short, State practice, including that of States whose interests are specially affected, should have been both extensive and virtually uniform, and should have occurred in such a way as to show a general recognition that a rule of law was involved.

Why it matters. This is the leading statement of how a treaty rule becomes custom, and the three conditions it sets, norm-creating character, widespread and representative participation including specially affected States, and extensive and virtually uniform practice accompanied by opinio juris, are the answer to the standard essay question.

How a court finds a rule of custom: The Paquete Habana

The Paquete Habana; The Lola, 175 U.S. 677 (1900), Supreme Court of the United States, 5 January 1900.

Facts. Two fishing smacks, the sloop Paquete Habana and the schooner Lola, were regularly engaged in fishing on the coast of Cuba, sailing under the Spanish flag, each owned by a Spanish subject residing in Havana, with crews who also resided there and took shares of the catch. Each left Havana on a coast fishing voyage and was returning with a cargo of live fish when she was captured near Havana by a vessel of the United States blockading squadron during the war with Spain. Neither carried arms or ammunition; neither knew of the blockade or even of the war until stopped; neither ran the blockade or resisted; and there was no evidence that either vessel or crew was likely to aid the enemy. The District Court condemned both vessels and their cargoes as prize of war and they were sold.

Held, reversing the decrees, that the captures were unlawful and without probable cause, the proceeds of the sales to be restored to the claimants with damages and costs. Fuller CJ, with Harlan and McKenna JJ, dissented.

The method, which is why the case is in this chapter. International law is part of our law, and must be ascertained and administered by the courts of justice of appropriate jurisdiction, as often as questions of right depending upon it are duly presented for their determination. For that purpose, where there is no treaty, and no controlling executive or legislative act or judicial decision, resort must be had to the customs and usages of civilized nations; and, as evidence of these, to the works of jurists and commentators, not for the speculations of their authors concerning what the law ought to be, but for trustworthy evidence of what the law really is.

The rule found. Applying that method to several centuries of orders, treaties and practice, the Court held that at the present day, by the general consent of the civilized nations of the world, and independently of any express treaty or other public act, it is an established rule of international law that coast fishing vessels, with their implements and supplies, cargoes and crews, unarmed, and honestly pursuing their peaceful calling of catching and bringing in fresh fish, are exempt from capture as prize of war, and that prize courts administering the law of nations are bound to take judicial notice of that rule and to give effect to it in the absence of any treaty or other public act of their own government.

Three things to take from it.

It shows the two elements being proved. Centuries of practice, and orders and treaties showing that the practice was followed as a matter of obligation rather than of grace, which is opinio juris in the material a court can actually examine.

It fixes the place of the writings of publicists, and it is a better statement of article 38(1)(d) than the article itself: they are evidence of what the law is, not authority for what it should be. [Judicial Decisions and the Writings of Jurists] works that point.

It is the standard illustration of a municipal court applying custom directly, and it belongs with [International Law and Municipal Law] and with the Indian position in [International Law in Indian Courts], where the corresponding proposition comes from Gramophone Company of India Ltd v. Birendra Bahadur Pandey.

Local and regional custom

Custom need not be universal. A rule can bind a group of States, or even two.

Facts. Asylum Case (Colombia v. Peru), ICJ Reports 1950, page 266, decided 20 November 1950. On 3 October 1948 a military rebellion broke out in Peru and was suppressed the same day. Victor Raul Haya de la Torre, head of the American People's Revolutionary Alliance, was prosecuted for military rebellion. On 3 January 1949 the Colombian Ambassador in Lima granted him asylum, qualified him as a political offender and asked Peru for a safe-conduct. Peru refused, saying he had committed common crimes. The two States submitted the dispute to the Court.

Held. By fourteen votes to two, Colombia was not entitled to qualify unilaterally, and in a manner binding on Peru, the nature of the offence. The Court rejected each treaty Colombia relied on: the Bolivarian Agreement of 1911 recognised asylum in accordance with the principles of international law, and those principles do not entail a right of unilateral qualification; the Havana Convention of 1928 conferred no such right expressly or by implication; and the Montevideo Convention of 1933 had not been ratified by Peru. As to a regional American custom, Colombia had not proved the existence, regionally or locally, of a constant and uniform practice of unilateral qualification as a right of the State of refuge and an obligation on the territorial State, because the facts disclosed too much contradiction and fluctuation to disclose a usage peculiar to Latin America and accepted as law. By fifteen votes to one the Court also held Peru was not bound to grant a safe-conduct, and by fifteen to one rejected Peru's contention that Haya de la Torre was accused of common crimes, military rebellion not being in itself a common crime.

Why it matters. Two things. It establishes that a regional or local custom can exist but must be proved by the party asserting it, and to a strict standard: a constant and uniform practice accepted as law. And it is the leading case on diplomatic asylum, worked for that purpose in [Asylum].

The persistent objector

A State that objects to a rule from the beginning, and keeps objecting, is not bound by it when it crystallises.

The authority is the Fisheries case, worked in [Baselines and the Territorial Sea], where the Court held that the ten-mile rule for closing lines of bays had not acquired the authority of a general rule of international law and, in any event, was inapplicable as against Norway inasmuch as she had always opposed its application to the Norwegian coast.

Three limits on the doctrine are worth writing down.

The objection must be from the start. A State that acquiesces while a rule forms and objects afterwards is bound. Silence is treated as acquiescence.

It must be maintained. An objection abandoned is an objection lost.

It cannot work against jus cogens. No State can persistently object its way out of the prohibition of genocide.

Distinctions that carry marks

A worked example

For forty years the States bordering the Gulf of Aral have permitted each other's fishing vessels to shelter in their ports during storms without formality or charge. State E now begins charging State F's vessels a fee. State F protests that a customary rule has been broken.

Is there practice? Yes: forty years, consistent, and by all the States concerned. That is the easy half.

Is there opinio juris? That is the question, and State F must prove it. Evidence would include any statement by a government that the shelter was granted as of right, any legislation framing it as an obligation, any earlier occasion on which a State tried to charge and was told it could not, and any diplomatic protest. Evidence against would include statements describing the practice as a courtesy, or occasions on which shelter was refused without any complaint being made.

Whose custom would it be? Regional or local, binding only the Gulf States. On the Asylum reasoning State F must prove a constant and uniform practice accepted as law, and contradiction and fluctuation in the record will defeat it.

Could State E escape as a persistent objector? Only if it had objected as the rule formed and kept objecting. Forty years of granting shelter without protest is acquiescence, not objection.

What if there were a treaty? Then this whole analysis would be unnecessary, which is why a tribunal looks for a treaty first.

What it does NOT mean

Custom is not old practice. Age helps, but the North Sea judgment says a short period is not necessarily a bar. What matters is that the practice was extensive and virtually uniform and accompanied by the belief that law required it.

Custom is not unanimity. Generality is required, not universal participation. A State that says nothing is treated as acquiescing.

Breach of a customary rule does not destroy it. If the State in breach justifies itself by exceptions recognised within the rule, the rule is confirmed. It is only if States generally claim a right to act inconsistently that the rule erodes.

A treaty codifying custom does not abolish the custom. The two run in parallel, which is why non-parties remain bound by the customary rule and why a party that withdraws from the treaty remains bound by it.

Limits and criticism

Proving opinio juris is close to impossible in a hard case. Tribunals often infer it from the practice itself, which makes the two elements collapse into one and is circular. This is the most common criticism of the doctrine and it is a fair one.

It advantages the powerful. The practice of specially affected States counts for more, and States with navies, satellites and global reach are specially affected more often than others. Newly independent States made exactly this objection in the 1960s and 1970s, and it is why they preferred codification by treaty, where every State has one vote.

The relationship with treaties is now tangled. Conventions codify custom, parties then develop the custom through their practice under the convention, and non-parties are affected by rules they never joined. The North Sea judgment tried to keep the categories apart and the practice has run ahead of it.

Quick revision

Article 38(1)(b): international custom, as evidence of a general practice accepted as law. Two elements: general practice, and opinio juris sive necessitatis.

Practice includes acts, statements, legislation, national judgments, votes and treaties; it must be extensive and virtually uniform, including the practice of specially affected States; generality, not unanimity; no fixed duration.

Opinio juris is inferred from what States say when they act, and it is what separates custom from usage and comity.

North Sea Continental Shelf (ICJ Reports 1969, page 3): a treaty rule becomes custom only if the provision is of a norm-creating character, there is widespread and representative participation including specially affected States, and practice is extensive and virtually uniform with opinio juris. Article 6 of the 1958 Convention failed all three, partly because reservations to it were permitted.

Asylum (ICJ Reports 1950, page 266): local and regional custom exists but must be proved by the asserting party as a constant and uniform practice accepted as law; contradiction and fluctuation defeat it.

Persistent objector: Fisheries (ICJ Reports 1951, page 116). Norway had always opposed the ten-mile rule, so it was inapplicable to her. The objection must be from the start, maintained, and it cannot defeat jus cogens.

Test yourself

1. State the two elements of custom and explain why the second is needed.

The material element is a general and consistent practice of States; the psychological element is opinio juris sive necessitatis, the belief that the practice is required by law. The second is needed because practice alone cannot distinguish a legal rule from a habit. States have always shown courtesies to one another without regarding themselves as bound, and if practice alone made law every such courtesy would become an obligation and no State could ever stop.

2. What did the North Sea Continental Shelf cases decide about the passage of a treaty rule into custom?

That it can happen but requires three things. The provision must be, at all events potentially, of a norm-creating character, which article 6 was not, since it subordinated equidistance to prior agreement, was qualified by a controverted notion of special circumstances, and was open to reservation. There must be very widespread and representative participation in the convention, and the ratifications and accessions there were hardly sufficient. And State practice, including that of specially affected States, must have been extensive and virtually uniform, and must have occurred in a way showing general recognition that a rule of law was involved. A short passage of time is not by itself a bar.

3. Can a custom bind only two States? Give authority.

Yes. The Asylum case accepted in principle that a custom could be regional or even local, but held that Colombia had failed to prove one: she had not established a constant and uniform practice of unilateral qualification as a right of the State of refuge and an obligation upon the territorial State, because the facts disclosed too much contradiction and fluctuation to reveal a usage peculiar to Latin America and accepted as law. The burden lies on the State asserting the special custom and the standard is strict.

4. Explain the persistent objector rule and its three limits.

A State that has objected to a rule consistently from the time of its formation is not bound by it when it crystallises; the Fisheries case is the authority, the Court holding the ten-mile bay rule inapplicable to Norway because she had always opposed its application to her coast. The limits are that the objection must begin before the rule crystallises, since silence during formation counts as acquiescence; it must be maintained, since an abandoned objection is lost; and it cannot be raised against a peremptory norm, from which no derogation is permitted.

5. "Breach of a customary rule proves the rule does not exist." Is that right?

No, and the reasoning matters. If a State that departs from a rule seeks to justify itself by appealing to exceptions or justifications contained within the rule, its conduct confirms the rule rather than weakening it, because the State is not claiming a right to act inconsistently but arguing that its act falls within the rule. The rule erodes only where States generally claim a right to depart from it, and inconsistent conduct is then met without protest.

6. What is instant custom, and where is it said to have occurred?

The proposition that a customary rule can form very quickly where practice is extensive and virtually uniform and is accompanied by clear opinio juris, notwithstanding that little time has passed. The North Sea judgment leaves it open by saying that a short period is not necessarily a bar. It is usually illustrated by space law: within a few years of 1957 the practice of a very small number of space-faring States, with the acquiescence of everyone else, produced the rules that outer space is free for exploration by all and is not subject to national appropriation, which were then written into the Outer Space Treaty and are dealt with in [International Space Law].

Two consequences follow immediately, and both have their own provisions.

A party may not plead its own internal law as a reason for failing to perform. That is article 27, and its importance for an Indian student is dealt with in [International Law in Indian Courts].

A treaty binds only the parties. That is the next section.

Third States: the rule and its exceptions

The rule. Article 34 of the Vienna Convention: a treaty does not create either obligations or rights for a third State without its consent. The Latin tag is pacta tertiis nec nocent nec prosunt, agreements neither harm nor benefit third parties.

Obligations for a third State. Article 35 allows one, but on strict terms: the parties must intend the provision to create the obligation, and the third State must expressly accept it in writing.

Rights for a third State. Article 36 is easier: a right arises if the parties intend to accord it and the third State assents, and assent is presumed so long as the contrary is not indicated, unless the treaty provides otherwise.

Revocation. Article 37 provides that an obligation so created may be revoked only with the consent of the parties and of the third State, unless otherwise agreed; a right may generally be revoked by the parties alone, unless it was intended not to be revocable without the third State's consent.

And the exception that swallows the rule. Article 38 preserves the possibility that a rule set out in a treaty becomes binding on a third State as a rule of customary international law. That is the route that matters, and it is the next section.

How a treaty rule becomes binding on non-parties

This is the most heavily examined point in the topic, and the authority is the case worked in [Custom].

Facts. North Sea Continental Shelf Cases (Federal Republic of Germany/Denmark; Federal Republic of Germany/Netherlands), ICJ Reports 1969, page 3, decided 20 February 1969. Germany had signed but never ratified the 1958 Geneva Convention on the Continental Shelf. Denmark and the Netherlands, both parties, argued that the equidistance method in its article 6 bound Germany anyway, either because Germany had by its conduct assumed the obligations of the Convention or because article 6 had become a rule of customary international law.

Held. Neither argument succeeded. On conduct, only a very definite and very consistent course of conduct could justify holding a State bound where it had not carried out the formalities the convention itself laid down for becoming bound, and estoppel would require that Denmark or the Netherlands had detrimentally changed position in reliance, of which there was no evidence. On custom, the Court set out the three conditions: the treaty provision must be, potentially at least, of a norm-creating character; there must be very widespread and representative participation in the convention, including the States whose interests are specially affected; and State practice must have been extensive and virtually uniform in the sense of the provision invoked, and must have occurred in such a way as to show a general recognition that a rule of law or legal obligation was involved. Article 6 satisfied none of them.

Why it matters here. It is the answer to "can a treaty bind a non-party?". The answer is that the treaty cannot, but the rule in it can, if it has become custom, and the three conditions are the test.

The three relationships between a treaty and custom

Writers and tribunals describe three ways a convention and a customary rule can relate, and naming them is worth a mark.

Declaratory, where the treaty writes down a rule that was already custom. Much of the Vienna Convention on the Law of Treaties is declaratory, which is why its rules are applied to States that are not parties to it, and why India, which has not ratified it, is nevertheless governed by most of its content.

Crystallising, where a rule is emerging and the conclusion of the convention settles it.

Generating, where the convention creates a new rule that afterwards passes into custom through the practice of States, parties and non-parties alike. The exclusive economic zone is the standard example: invented in the negotiations that produced the 1982 Convention, and accepted as custom before that Convention entered into force.

Treaties and India

Three facts belong in an Indian answer and they are often missed.

India is not a party to the Vienna Convention on the Law of Treaties. It signed neither. It is nevertheless bound by most of the Convention's content, because those rules are declaratory of custom. So an answer that says "under the Vienna Convention India must..." is loose; the accurate form is that the rule binds India as custom, and the Convention states it.

The power to make treaties is executive, not legislative. Under article 73 of the Constitution the executive power of the Union extends to matters on which Parliament may make laws, and entries 13 and 14 of List I of the Seventh Schedule cover participation in international conferences and the entering into and implementing of treaties and agreements. So the Union executive may conclude a treaty without Parliament.

But implementing it may need legislation. Article 253 gives Parliament power to make any law for implementing any treaty, agreement or convention, notwithstanding the ordinary division of legislative powers. Whether a treaty is enforceable in an Indian court without such a law is the subject of [International Law in Indian Courts].

A worked example

State G, State H and thirty other States conclude the Convention on the Protection of Migratory Fish, which requires coastal States to close their fisheries for two months in the breeding season. State J, a major fishing State, does not sign. Ten years later, most States in the world, including many non-parties, have adopted closed seasons and defend them in the language of legal obligation. State J refuses.

Does the Convention bind State J? No. Article 34: a treaty does not create obligations for a third State without its consent, and State J has consented to nothing.

Has the rule become custom? Apply the North Sea test. Is the provision norm-creating? A flat obligation to close fisheries for a defined period looks norm-creating, unlike article 6 of the 1958 Convention with its priority for agreement and its special-circumstances escape. Is participation widespread and representative, including specially affected States? Thirty-two parties may not be enough by itself, but the relevant question is whether the great fishing States are among them. Has practice been extensive and virtually uniform with opinio juris? The facts say most States, including non-parties, have adopted closed seasons and defend them as legal obligations, which is exactly the evidence required.

Can State J escape as a persistent objector? Only if it objected from the start and has kept objecting. Ten years of silence followed by refusal is not enough, and this is where many answers go wrong.

What if State J had signed but not ratified? Then the North Sea reasoning applies directly: signature without ratification does not bind, and only very definite and consistent conduct, relied on to another State's detriment, could produce an estoppel.

Distinctions table

What it does NOT mean

A treaty is not superior to custom. Between the parties it prevails because it is more specific and usually later, not because treaties outrank custom in some hierarchy. Article 38 states no hierarchy.

Signing is not being bound. Signature usually authenticates the text and, under article 18 of the Vienna Convention, obliges the State not to defeat the treaty's object and purpose pending ratification. It does not make the State a party. Germany's position in the North Sea cases is the classic illustration.

A treaty codifying custom does not extinguish the custom. The customary rule continues in parallel, which is why non-parties remain bound and why a party that denounces the treaty is not released from the rule.

"Convention", "covenant", "protocol", "charter" and "pact" are all treaties. Nothing turns on the name.

Limits and criticism

The consent principle produces uneven law. The most powerful States can decline to join the conventions that would constrain them, and can then argue that the rules have not become custom because their own practice, as specially affected States, points the other way.

The North Sea test is demanding and vague at once. "Norm-creating character" and "extensive and virtually uniform" are not tests that decide a close case, and the Court's reliance on the permissibility of reservations as evidence that a provision was not thought to state emerging custom has been criticised as reading too much into a drafting choice.

Codification can freeze the law. Once a rule is written into a widely ratified convention, developing it through practice becomes harder, because departures now look like breaches of the treaty rather than the beginnings of a new custom.

Quick revision

Article 38(1)(a): international conventions, whether general or particular, establishing rules expressly recognised by the contesting States.

Law-making treaties lay down general rules; treaty contracts settle a particular matter. Only the first is a realistic candidate to pass into custom.

Article 26 VCLT, pacta sunt servanda: every treaty in force is binding on the parties and must be performed in good faith. Article 27: no plea of internal law.

Third States: article 34, no obligations or rights without consent (pacta tertiis nec nocent nec prosunt); article 35, an obligation needs express acceptance in writing; article 36, a right needs assent, which is presumed; article 37, revocation; article 38, the customary-law route is preserved.

North Sea Continental Shelf (ICJ Reports 1969, page 3): a treaty rule binds non-parties only as custom, and needs a norm-creating provision, widespread and representative participation including specially affected States, and extensive and virtually uniform practice with opinio juris. Signature without ratification does not bind, and estoppel requires detrimental reliance.

Three relationships between convention and custom: declaratory, crystallising, generating.

India has not ratified the VCLT but is bound by most of its content as custom. Treaty-making is executive under article 73 and List I entries 13 and 14; article 253 empowers Parliament to legislate to implement.

Test yourself

1. Distinguish law-making treaties from treaty contracts and say why the distinction matters.

A law-making treaty lays down general rules of conduct for a large number of States, such as the Charter or the Convention on the Law of the Sea. A treaty contract settles a particular matter between two or a few States, such as a boundary or an extradition arrangement. Article 38(1)(a) covers both, since it speaks of conventions whether general or particular. The distinction matters because only a law-making treaty contains a rule capable of general application, and so only a law-making treaty is a realistic candidate for passing into customary international law and binding non-parties.

2. Can a treaty bind a State that is not a party to it?

Not as a treaty. Article 34 of the Vienna Convention provides that a treaty does not create either obligations or rights for a third State without its consent, and article 35 requires express acceptance in writing before an obligation can arise. But article 38 preserves the possibility that a rule set out in a treaty becomes binding on a non-party as a rule of customary international law, and the North Sea Continental Shelf cases set the conditions: a norm-creating provision, widespread and representative participation including specially affected States, and extensive and virtually uniform practice accompanied by opinio juris.

3. Germany had signed the 1958 Convention. Why was that not enough?

Because signature is not the act by which a State becomes bound where the convention itself provides for ratification, and Germany never ratified. Denmark and the Netherlands argued that Germany's conduct had nonetheless assumed the obligations, but the Court held that where a convention specifically provides how the intention to be bound is to be manifested, it is not lightly to be presumed that a State which has not carried out those formalities has become bound another way. Only a very definite and consistent course of conduct, on which the other States had detrimentally relied so as to create an estoppel, would have sufficed, and there was no evidence of that.

4. Explain the three relationships a convention can have with custom, with an example of each.

Declaratory: the convention writes down a rule already customary, as much of the Vienna Convention on the Law of Treaties does, which is why its rules bind States that never ratified it, India among them. Crystallising: a rule is emerging and the conclusion of the convention settles it. Generating: the convention creates a new rule which afterwards becomes custom through subsequent practice, the standard example being the exclusive economic zone, which was accepted as customary before the 1982 Convention entered into force.

5. India has not ratified the Vienna Convention on the Law of Treaties. Is India bound by the rule that treaties must be performed in good faith?

Yes, but not by the Convention. Pacta sunt servanda is a rule of customary international law of great antiquity, and article 26 of the Convention is declaratory of it. So India is bound by the rule as custom, and the Convention is the best statement of its content. The correct way to put it in an answer is that the rule binds India as custom and the Convention states it, not that the Convention binds India.

6. Who in India has power to make a treaty, and can a treaty be enforced in an Indian court?

The power is executive. Article 73 of the Constitution extends the executive power of the Union to matters on which Parliament may legislate, and entries 13 and 14 of List I of the Seventh Schedule cover participation in international conferences and the entering into and implementing of treaties and agreements, so the Union executive may conclude a treaty without Parliament. Whether it can be enforced in a court is a separate question: article 253 empowers Parliament to legislate to implement any treaty notwithstanding the ordinary distribution of legislative powers, and the general position, worked out in [International Law in Indian Courts], is that a treaty affecting private rights or requiring a change in the law needs implementing legislation before a court will give effect to it.

The safer answer in an examination is the narrow view, with the acknowledgement that the Court has sometimes used the phrase loosely, and that the International Law Commission's recent work recognises both a category derived from national legal systems and a category formed within the international legal system itself.

Three limits operate whichever view is taken. The principle must be found in legal systems generally, not in one system. It must be transposable: rules built on institutions that have no international counterpart, such as a public prosecutor or a bankruptcy court, cannot cross over. And it applies only where treaty and custom do not, which is why paragraph (c) decides very few cases on its own.

The principles that have actually been applied

An answer that lists principles without authority is weak. These are the ones with a real pedigree.

Reparation for a breach. The proposition comes from the case worked below and is expressly framed as a principle of law in general, not merely of international law.

Facts. Factory at Chorzow (Germany v. Poland), Merits, PCIJ Series A, No. 17, judgment of 13 September 1928. Poland had taken measures of dispossession against two German-owned concerns at Chorzow in Upper Silesia, the owner and the operator of a nitrate factory. The Court had held in 1926 that this was not in conformity with the Geneva Convention concerning Upper Silesia of 22 May 1922. Negotiations on the consequences failed, and Germany began fresh proceedings in February 1927 claiming an indemnity.

Held. The obligation to make reparation exists, because it is a principle of international law, or even of law in general, that any breach of an engagement involves an obligation to make reparation. As to measure, restitution must in principle be in kind, or, if that is impossible, a sum corresponding to the value of the thing that cannot be restored, because reparation must as far as possible wipe out all the consequences of the illegal act and re-establish the situation which would, in all probability, have existed if that act had not been committed. Compensation for a seizure of property that could not lawfully be expropriated need not be limited to the value of the undertaking, and the Court ordered an expert enquiry to fix the value. It also held that although the loss fell on the companies, the claim was between States: reparation owed to a State does not change its character because a private person's loss measures it, and the rules of international law apply.

Why it matters. It is the classic instance of paragraph (c) at work, and both of its propositions are now in the ILC Articles on State Responsibility, worked in [State Responsibility] and [Circumstances Precluding Wrongfulness, and Reparation].

Good faith. Every system has it, and it appears throughout international law: in pacta sunt servanda in article 26 of the Vienna Convention, in the obligation to negotiate meaningfully stated in the North Sea cases, and in the interpretation rule in article 31.

Estoppel, sometimes called preclusion. A State that has by its conduct led another to rely on a state of affairs to its detriment cannot afterwards deny it. The North Sea cases discuss it and find it not established on the facts, which is itself instructive.

Res judicata. A matter finally decided cannot be reopened between the same parties. Article 60 of the Statute of the Court, providing that a judgment is final and without appeal, is its statutory expression.

Nobody may be a judge in his own cause, and the related rules of natural justice: notice, and an opportunity to be heard.

Circumstantial evidence and inference. The Corfu Channel case, worked in [Innocent Passage, and Straits], allowed a State that cannot get at evidence held inside the respondent's territory a more liberal recourse to inferences and circumstantial evidence, and that is a rule of proof taken from domestic systems.

Unjust enrichment, prescription, subrogation and abuse of rights appear in the case law and the literature, some of them more contested than others.

What paragraph (c) is not

It is not equity. Equity is dealt with in [Equity], and the difference matters: a general principle is a rule of law, applied because it is law. Equity in the sense of article 38(2), ex aequo et bono, is a power to decide outside the law and needs the parties' agreement.

It is not natural law. The principles are found by comparing legal systems, not by reasoning from first principles about what is right.

It is not a licence to invent. A judge who says "the general principles of law require X" without showing that X is found in legal systems generally has decided the case on his own view, and that is exactly the criticism made of this source.

A worked example

State M and State N conclude a treaty for a joint hydroelectric project. State N spends heavily on preparatory works after repeated written assurances by State M's minister that the project will proceed. State M then abandons it, and points out that the treaty contains no clause about withdrawal, that no custom governs the point, and that the Vienna Convention rules on termination do not cover a case like this.

There is no treaty rule, no custom, and no convention provision, and the tribunal cannot say the case is incapable of decision. This is where paragraph (c) does its work.

Good faith. The obligation to perform in good faith is common to every legal system and is expressly stated for treaties in article 26 of the Vienna Convention.

Estoppel. State M made clear representations, State N relied on them, and the reliance was detrimental. The North Sea cases show the elements a tribunal will look for and show that they must genuinely be established.

Reparation. If a wrong is found, the Chorzow principle supplies the remedy: as far as possible, wipe out all the consequences of the illegal act and re-establish the situation that would have existed. In practice that means compensation for the wasted preparatory works.

Notice that none of these three principles came from a treaty or from State practice. Each came from the shared content of domestic legal systems, and each was applied because it fits relations between States.

Distinctions table

What it does NOT mean

It is not a third-rank source. Article 38 states no hierarchy. Paragraph (c) is used less because treaty and custom usually answer the question first.

"Civilized nations" excludes nobody today. Any answer must say so.

Not every domestic rule crosses over. A principle tied to an institution international law does not have cannot be transposed, however universal it is at home.

Limits and criticism

It is the least predictable source. No agreed method exists for showing that a principle is general: no tribunal surveys all the world's legal systems, and in practice a handful of familiar ones stand in for the rest, which are usually the civil law and the common law of Europe.

It can conceal judicial law-making. A tribunal that wants a result and lacks a rule can reach for a "general principle", and there is no reliable check on it.

Its historical framing is still in the text. A century after the phrase was written, and eighty years after the Charter promised the sovereign equality of all its Members, the Statute still refers to civilised nations.

Quick revision

Article 38(1)(c): the general principles of law recognised by civilised nations.

Purpose: to prevent a non liquet, a declaration that the case cannot be decided for want of a rule.

"Civilized nations" is a 1920 relic, reproduced in 1945, never amended; read today as the legal systems of the world generally, excluding nobody.

Narrow view: principles drawn from municipal legal systems and transposable to relations between States. Broad view: also principles inherent in the international community. Three limits: generality, transposability, and subsidiarity to treaty and custom.

Principles actually applied: reparation for breach and the measure of it (Factory at Chorzow, PCIJ Series A No. 17); good faith; estoppel; res judicata; nobody a judge in his own cause; circumstantial evidence (Corfu Channel); unjust enrichment, prescription and abuse of rights.

Chorzow, the two sentences to remember: any breach of an engagement involves an obligation to make reparation; and reparation must as far as possible wipe out all the consequences of the illegal act and re-establish the situation which would, in all probability, have existed if that act had not been committed.

Distinguish general principles from equity and from natural law.

Test yourself

1. Why was article 38(1)(c) included in the Statute?

To prevent a non liquet. If a court could apply only treaty and custom it would have to dismiss for want of law any case falling outside both, and a court that regularly declared cases incapable of decision would not function as a court. Paragraph (c) gave the judges the shared content of the world's legal systems to draw on where the specific sources ran out.

2. What does "civilised nations" mean today, and how should a candidate handle the phrase?

Nothing more than the legal systems of the world generally. The phrase was written in 1920, when international law was made by a small group of European States, and it was reproduced without change in 1945 and never amended. A candidate should quote the provision accurately, state in a sentence that the adjective is a historical relic that excludes no State today, note that the International Law Commission has recommended dropping it, and then answer the question asked.

3. Give three general principles that have been applied, with authority for one.

Reparation for breach, good faith and estoppel. The authority for reparation is Factory at Chorzow, PCIJ Series A No. 17, where the Permanent Court held that it is a principle of international law, or even of law in general, that any breach of an engagement involves an obligation to make reparation, and that reparation must as far as possible wipe out all the consequences of the illegal act and re-establish the situation which would in all probability have existed had it not been committed.

4. Can any rule of Indian law be a general principle of law under article 38(1)(c)?

Only if two conditions are satisfied. It must be general, that is, found across the major legal systems of the world and not peculiar to India, since the source rests on what legal systems have in common. And it must be transposable to relations between sovereign States, which excludes rules built on institutions that have no international counterpart. A rule of the Code of Civil Procedure about the powers of a district court fails both tests; the principle of res judicata that underlies it satisfies both.

5. Distinguish a general principle of law from equity.

A general principle is a rule of law, applied because it is law, identified by comparing legal systems and imported where transposable. Equity, in the sense of article 38(2), is ex aequo et bono, a power to decide a case outside the law on grounds of fairness, which requires the express agreement of both parties and has never been given. Equity in a weaker sense, meaning fairness applied within the law, operates as part of the reasoning under the other sources, and is dealt with in [Equity].

6. "Article 38(1)(c) is a licence for judges to make law." Discuss.

There is force in it. No agreed method exists for establishing that a principle is general; no tribunal surveys the world's legal systems, and in practice a small number of familiar systems stand in for the rest. A tribunal that wants a result and has no rule can reach for a general principle and face little check. The answer is threefold: the source is genuinely necessary, because the alternative is a non liquet; the principles actually applied, reparation, good faith, estoppel, res judicata, natural justice, are uncontroversially common to legal systems everywhere; and paragraph (c) decides very few cases on its own, because treaty and custom answer the question first almost every time.

Which decisions count

The International Court of Justice and its predecessor, the Permanent Court of International Justice, whose judgments the present Court cites as its own line of authority.

Other international tribunals: the International Tribunal for the Law of the Sea, arbitral tribunals under Annex VII of the Convention on the Law of the Sea, including the two your syllabus names, the Permanent Court of Arbitration, the World Trade Organization panels and Appellate Body, and the international criminal tribunals.

Arbitral awards, which for much of the nineteenth and early twentieth centuries were where international law was actually made, and which remain important on territory and the sea.

National courts. This surprises students and it should not. A decision of the Supreme Court of India, or of any national court, applying international law is State practice as well as a subsidiary means, and so can help establish custom. That is a double function worth stating: a national judgment is evidence of what the law is, and is also part of the practice from which the law is made.

The writings of jurists

What they were

In the formative period they were the law's main repository. There was no world court, few reported arbitrations and no systematic record of State practice, so a court or a foreign ministry looking for the rule read Grotius, Bynkershoek, Vattel and their successors. Their authority was real and sometimes decisive.

What they are now

Their weight has fallen sharply, for the good reason that better evidence exists. Where there are judgments, treaty texts, published State practice and the reports of the International Law Commission, a court has no need to rely on a professor's opinion.

They still matter in three situations. Where the law is new and no case has arisen. Where practice is scarce or contradictory. And as a way of organising and stating what the sources show, which is what a court is doing when it says the position is settled and cites a treatise.

Whose writings

Article 38 says the most highly qualified publicists of the various nations, and the last three words are doing work: the writings drawn on should not all come from one legal tradition. In practice the Court rarely cites individual writers in its judgments, though individual judges do so freely in separate and dissenting opinions.

Collective writings carry more weight than individual ones, and this is the modern position that matters most. The International Law Commission, established by the General Assembly in 1947 to promote the progressive development of international law and its codification, is composed of persons of recognised competence and its draft articles and commentaries are treated with a respect no individual author now receives. The ILC Articles on State Responsibility of 2001 are the clearest example: not a treaty, not binding, and cited by the International Court as the statement of the law. The Institut de Droit International and the International Law Association occupy a similar, lesser place.

A worked example

State P and State Q are in dispute about whether State P may exercise jurisdiction over a foreign ship on the high seas in a situation no treaty covers. Counsel for State Q wants to argue that a customary rule prohibits it. What may she use, and how?

A judgment of the International Court on the same point in an earlier case between two other States. She may cite it, and it will carry great weight, but she must not say it binds State P: article 59 prevents that, and an opponent will say so. The correct submission is that the Court there stated the customary rule and that the rule, not the judgment, binds.

An arbitral award. The same, with somewhat less weight depending on the tribunal.

A decision of State P's own Supreme Court. This is the strongest material she has, and it does double duty: it is a subsidiary means for determining the rule, and it is State practice of the very State she is arguing against, which may also found an estoppel.

The ILC Articles on State Responsibility and their commentary, if the point concerns responsibility. Not binding, and treated as an authoritative statement.

A leading treatise. Usable, and weakest of all. If the treatise is the only support she has, she should expect the tribunal to notice.

Distinctions table

What it does NOT mean

Article 59 does not mean judgments are unimportant. It means they do not bind non-parties. The Court's jurisprudence is the single most valuable body of material in the subject.

A judgment is not a source even between the parties. It binds them because article 59 says so and because they submitted to the Court, and article 94(1) of the Charter obliges every Member to comply with the decision in any case to which it is a party. That is the force of a judgment, not the force of a rule of law.

"Publicists" does not mean journalists. It means writers on public international law.

The International Law Commission is not a legislature. Its draft articles become binding only if a convention is concluded on them and enters into force, or if their content is or becomes custom.

Limits and criticism

The absence of precedent is a real cost. States and their advisers cannot predict outcomes as confidently as in a domestic system, and the Court's practice of following itself is a convention rather than a rule.

The distribution of writers is uneven. The most cited publicists have overwhelmingly come from a small number of countries, so the phrase "of the various nations" describes an aspiration more than a practice.

The line between (d) and the other paragraphs is thinner than the Statute suggests. When the International Court states a customary rule in confident terms, that statement becomes the thing every later tribunal and every foreign ministry relies on, and the practical difference between finding the law and making it narrows.

Quick revision

Article 38(1)(d): subject to article 59, judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law. Material sources, not formal ones.

Article 59: a decision of the Court has no binding force except between the parties and in respect of that particular case. No stare decisis, and the Court follows itself closely all the same.

Article 60: the judgment is final and without appeal. Article 94(1) of the Charter: every Member undertakes to comply with the decision in any case to which it is a party.

Article 62 intervention with permission; article 63 intervention as of right on the construction of a convention, with the construction equally binding on the intervener.

Decisions that count: the ICJ and the PCIJ; ITLOS, Annex VII tribunals, the PCA, WTO panels; arbitral awards; and national court decisions, which are both a subsidiary means and State practice.

Writings: decisive in the formative period, much weaker now. Collective writings, above all the International Law Commission, carry far more weight than individual authors.

Test yourself

1. Are judicial decisions a source of international law?

Not a formal one. Article 38(1)(d) describes them as subsidiary means for the determination of rules of law, and makes them subject to article 59, under which a decision of the Court has no binding force except between the parties and in respect of that particular case. So a judgment does not create a rule; it states one that already exists by treaty, custom or general principle. In practice the Court's judgments are the most authoritative statements of international law there are, and the Court follows its own reasoning unless there is reason to depart.

2. Explain article 59 and give two reasons for it.

It provides that the decision of the Court has no binding force except between the parties and in respect of that particular case. First, the Court's jurisdiction rests on consent, and it would be inconsistent to bind a State by a judgment in proceedings it was not party to and could not appear in. Second, it makes the intervention scheme coherent: article 62 lets a State with an interest of a legal nature request permission to intervene and article 63 gives a right of intervention where the construction of a convention to which it is a party is in question, in which case the construction is equally binding on it. If judgments bound everyone, those provisions would be pointless.

3. What weight does a decision of a national court carry?

Two kinds at once. It is a subsidiary means under article 38(1)(d) for determining what the rule is. It is also State practice of the State whose court gave it, and so can contribute to the formation and proof of a customary rule and may found an estoppel against that State. A national judgment against the interests of its own State is therefore particularly valuable evidence.

4. Why have the writings of jurists lost weight, and where do they still matter?

Because better evidence now exists. In the formative period there were no reported international judgments, few arbitrations and no systematic record of practice, so Grotius, Bynkershoek and Vattel were where the law was found. Today a tribunal has treaty texts, a large body of judgments, published State practice and the reports of the International Law Commission. Writings still matter where the law is new and no case has arisen, where practice is scarce or contradictory, and as an organised statement of what the other sources show. Collective writings, above all those of the International Law Commission, carry far more weight than individual authors.

5. The ILC Articles on State Responsibility are not a treaty. Why are they cited as if they were law?

Because much of their content is a statement of customary international law, and because their author is a body established by the General Assembly and composed of persons of recognised competence, which gives them an authority no individual writer commands. They are formally a subsidiary means under article 38(1)(d), and their binding force, where it exists, comes from the custom they state and not from the Commission's adoption of them.

6. "There is no precedent in international law." Is that a complete statement of the position?

No. It is accurate as a statement of formal doctrine, because article 59 excludes any binding force beyond the parties and the particular case, and article 38(1)(d) is expressly made subject to it. It is incomplete as a description of practice, because the Court cites its own judgments and those of the Permanent Court constantly, treats settled points as settled, and departs from its reasoning only for stated reasons. The accurate statement is that international law has no doctrine of binding precedent but does have a strong practice of consistency, and that the practical difference between the two is smaller than the doctrine suggests.

It is not the same as equitable principles. This is the distinction the whole chapter exists for. When the Court applies equitable principles in a maritime delimitation it is applying the law, because the law of delimitation itself requires an equitable result. It is not deciding ex aequo et bono, and it says so.

Where equity actually does its work: the sea

Maritime delimitation is where equity has been most important, and the two cases MU names are the authorities.

The North Sea Continental Shelf cases, ICJ Reports 1969, page 3, decided 20 February 1969, are worked in full in [Delimitation of Maritime Boundaries] and in [Custom]. On equity, what matters is the Court's conclusion: having rejected equidistance as neither a treaty obligation binding Germany nor a rule of custom, it held that the boundary lines were to be drawn by agreement between the parties and in accordance with equitable principles, taking account of the relevant circumstances, and that the parties were under an obligation to negotiate meaningfully rather than to go through a formal process. Equity there was not an escape from the law; it was the content of the applicable rule.

Continental Shelf (Tunisia/Libyan Arab Jamahiriya), ICJ Reports 1982, page 18, decided 24 February 1982, shows what that means in practice. By special agreement the parties expressly asked the Court to take account of equitable principles, the relevant circumstances characterising the area, and the new accepted trends at the Third UN Conference on the Law of the Sea. The Court found a single continental shelf common to both States, so physical criteria of natural prolongation could not determine what belonged to each, and it applied equitable principles to the relevant circumstances: the land frontier at Ras Ajdir, the conduct of the parties in granting petroleum concessions, the change of direction of the Tunisian coast at the Gulf of Gabes, and the Kerkennah Islands. It used proportionality between the shelf allotted and the length of the relevant coast as a test of equity, and described a two-segment line.

The point to take from both. The parties in Tunisia/Libya asked for equitable principles and did not confer power to decide ex aequo et bono. The Court decided according to law throughout. That is the clearest possible demonstration that equitable principles and ex aequo et bono are different things.

Article 83(1) of the Convention on the Law of the Sea now states the rule in treaty form: delimitation of the continental shelf between States with opposite or adjacent coasts shall be effected by agreement on the basis of international law in order to achieve an equitable solution. Article 74(1) says the same for the exclusive economic zone.

Other places equity appears

Equitable use of shared resources. International watercourse law is built on equitable and reasonable utilisation, which is an equitable standard rather than a mechanical rule.

The common heritage of mankind, in [The Common Heritage of Mankind], carries an explicitly equitable requirement: article 140 of the Convention on the Law of the Sea provides for the equitable sharing of financial and other economic benefits derived from activities in the Area.

Equitable geographical distribution of seats in international organs, which appears throughout the Charter, is a different use of the word: it is a political standard for composition and not a rule of decision.

A worked example

State R and State S have adjacent coasts. Neither has a delimitation treaty with the other. State R proposes a strict equidistance line. State S points out that its coast is concave, so equidistance would cut it off a short distance from shore, and asks the tribunal to do what is fair.

Can the tribunal simply do what seems fair? No, not in that sense. It cannot decide ex aequo et bono without the agreement of both parties, and State R has not agreed.

Must it then apply equidistance? No. The North Sea cases hold that equidistance is neither inherent in the concept of the shelf nor a rule of custom, and if both States are parties to the Convention on the Law of the Sea then articles 74 and 83 require delimitation by agreement on the basis of international law in order to achieve an equitable solution.

So what does it do? It applies equitable principles as the law requires, identifying the relevant circumstances of this area as the Court did in Tunisia/Libya: the general direction of the coasts, the concavity, any islands, the conduct of the parties, and any resource activity. It will check the result against proportionality between the areas allotted and the lengths of the relevant coasts.

What has the tribunal done, in terms of this chapter's classification? Equity infra legem. The applicable rule itself commands an equitable result, so applying equity is applying the law. Nothing has been set aside, and article 38(2) has not been touched.

Distinctions table

What it does NOT mean

Equity here is not the English law of equity. It has nothing to do with the Court of Chancery, trusts, specific performance or injunctions. The word means fairness.

Equitable principles are not ex aequo et bono. The Court said so and decided Tunisia/Libya on that footing. A candidate who writes that the Court decided the continental shelf cases ex aequo et bono has made the central error of the topic.

An equitable result is not an equal one. The Court in the North Sea cases expressly rejected the doctrine of the just and equitable share: its task was to delimit an area already appertaining to a State, not to apportion one, because the coastal State's rights exist ipso facto and ab initio.

Equity is not a source in article 38(1). It appears only in article 38(2), and its everyday operation is inside the other sources rather than alongside them.

Limits and criticism

It is unpredictable. A rule that says the result must be equitable, taking account of all the relevant circumstances, gives a tribunal very wide latitude and gives the parties' advisers very little to work with. The law of maritime delimitation has spent forty years trying to make the standard more predictable, which is why courts now use a structured three-stage method rather than an open weighing of circumstances.

It can conceal a decision made on other grounds. Equity requires no showing of practice or opinio juris, and a tribunal that wants a particular line can usually find circumstances to justify it.

Article 38(2) is a dead letter. A power never once exercised in more than a hundred years tells you something: States submit disputes to a court precisely because they want the law applied, and a State that would accept a decision on fairness alone would generally settle instead.

Quick revision

Three kinds. Infra legem, within the law: fair application and interpretation, needs no authority. Praeter legem, beside the law: gap-filling, overlapping with general principles. Contra legem: displacing a rule, permitted only under article 38(2) with the agreement of the parties.

Article 38(2): the Court may decide a case ex aequo et bono if the parties agree. Never used, before either the Permanent Court or the present Court.

Equitable principles are not ex aequo et bono. In North Sea Continental Shelf (ICJ Reports 1969, page 3) delimitation was to be by agreement in accordance with equitable principles and the relevant circumstances, with an obligation to negotiate meaningfully. In Continental Shelf (Tunisia/Libyan Arab Jamahiriya) (ICJ Reports 1982, page 18) the parties expressly asked for equitable principles and did not confer power to decide ex aequo et bono; the Court weighed the relevant circumstances and used proportionality as a test.

UNCLOS articles 74(1) and 83(1): delimitation by agreement on the basis of international law in order to achieve an equitable solution.

An equitable result is not an equal share: the North Sea cases rejected the just-and-equitable-share doctrine because shelf rights exist ipso facto and ab initio.

Test yourself

1. Distinguish equity infra legem, praeter legem and contra legem.

Infra legem operates within the law: the tribunal applies existing rules and uses fairness to choose among permissible constructions and to apply the rule to the facts. It needs no special authority. Praeter legem operates beside the law, filling gaps the rules leave, and overlaps with the general principles of law. Contra legem would displace a rule because applying it would be unfair, and a tribunal may do that only under article 38(2) of the Statute, which requires the agreement of both parties.

2. What is ex aequo et bono, and how often has it been used?

It is the power in article 38(2) to decide a case according to what is equitable and good rather than according to the existing rules, conferred only if the parties agree. It has never been used, in more than a century of the Permanent Court and the present Court, because States that submit a dispute to a court want the law applied and would otherwise settle.

3. "The International Court decided the continental shelf cases ex aequo et bono." Correct this statement.

It is wrong, and the error is the central one in the topic. In both the North Sea cases and Tunisia/Libya the Court decided according to law. The law of maritime delimitation itself requires that the result be equitable, so applying equitable principles is applying the law, not departing from it. In Tunisia/Libya the parties expressly asked the Court by special agreement to take account of equitable principles, the relevant circumstances and the new trends at the Third UN Conference, and expressly did not confer power to decide ex aequo et bono. Articles 74(1) and 83(1) of the Convention on the Law of the Sea now state the rule as delimitation by agreement on the basis of international law in order to achieve an equitable solution.

4. Does an equitable delimitation mean an equal one?

No. In the North Sea cases the Court rejected the doctrine of a just and equitable share, holding that its task was to delimit areas already appertaining to each State and not to apportion them de novo, because the rights of the coastal State in the shelf constituting the natural prolongation of its land territory exist ipso facto and ab initio by virtue of its sovereignty over the land. Proportionality between the areas allotted and the lengths of the relevant coasts is used, as in Tunisia/Libya, as a test of the equity of a result, not as a rule of entitlement.

5. Why is equity criticised as a basis for decision?

Because it is unpredictable and hard to police. A rule requiring an equitable result in the light of all the relevant circumstances gives a tribunal wide latitude and gives advisers little guidance, and because equity requires no proof of practice or opinio juris, a tribunal that has decided on other grounds can usually find circumstances to support it. The response has been to structure the discretion: courts now approach maritime delimitation through a defined sequence rather than an open weighing.

6. Is equity a source of international law?

Not under article 38(1), which lists conventions, custom, general principles and, as subsidiary means, judicial decisions and writings. Equity appears only in article 38(2), as a power to decide outside the law with the parties' consent. Its everyday operation is inside the other sources: it guides the application of rules, it fills gaps in a way that shades into the general principles of law, and in some fields, above all maritime delimitation and shared resources, the applicable rule itself demands an equitable result, so that applying equity is applying the law.

Article 18 governs voting: each Member has one vote, and decisions on important questions require a two-thirds majority of the members present and voting, the list of important questions including recommendations on international peace and security, elections, admission, suspension and expulsion of Members, questions relating to the trusteeship system and budgetary questions.

So the accurate statement is: binding on the Organization, recommendatory to the Members.

How a recommendation can still matter in law

This is the substance of the topic, and there are four routes.

As evidence of custom

Custom needs practice and opinio juris. A resolution can supply evidence of the second and sometimes of the first.

The vote of a State for a resolution is a statement by that State, in a formal setting, of its position on a question of law. When a resolution is adopted unanimously or nearly so, and when its language is normative rather than hortatory, and when States afterwards behave consistently with it, the resolution becomes strong evidence that a customary rule exists.

The test to apply is the one from the North Sea Continental Shelf cases, worked in [Custom]. Ask whether the text is of a norm-creating character, whether participation is widespread and representative including the States specially affected, and whether practice has been extensive and virtually uniform with the belief that law required it. A resolution adopted by acclamation and ignored in practice fails the third limb, however impressive the vote.

As a declaration of existing law

Some resolutions are drafted as statements of what the law already is, and are titled Declarations for that reason.

Resolution 2625 (XXV) of 24 October 1970, the Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations, is the outstanding example. It was adopted without a vote after years of negotiation, and it elaborates seven principles: the prohibition of the threat or use of force; the peaceful settlement of disputes; non-intervention in matters within the domestic jurisdiction of any State; the duty of States to co-operate; the equal rights and self-determination of peoples; the sovereign equality of States; and the duty to fulfil in good faith the obligations assumed in accordance with the Charter. It is universally treated as an authoritative statement of how the Charter's article 2 is to be read.

Resolution 217 A (III) of 1948, the Universal Declaration of Human Rights, is the other great example. It was not binding when adopted, and much of it is now accepted as customary.

Resolution 1514 (XV) of 1960, the Declaration on the Granting of Independence to Colonial Countries and Peoples, is expressly referred to in article 140 of the Convention on the Law of the Sea, which is a striking measure of how far a resolution can travel.

As a step in a treaty's life

Many conventions begin as resolutions. The Assembly adopts a declaration of principles, a negotiating conference follows, and a treaty results. Resolution 1962 (XVIII) of 1963, the Declaration of Legal Principles Governing the Activities of States in the Exploration and Use of Outer Space, was turned almost word for word into the Outer Space Treaty of 1967, which is [International Space Law].

As soft law

Some resolutions are meant to guide conduct without binding: codes of conduct, sets of principles, standards. They are not law and they are not nothing. States comply with them, invoke them against each other, and build them into national legislation, and over time some of them harden.

The developing-country argument, and why it failed

In the 1960s and 1970s newly independent States, then a large majority in the Assembly, argued that Assembly resolutions adopted by an overwhelming majority should be treated as making law. The argument had a real basis: those States had had no part in making the customary law they inherited, and the Assembly was the one place where each State had one vote.

The high point was the New International Economic Order resolutions of 1974, including the Charter of Economic Rights and Duties of States, which asserted, among other things, a right to nationalise foreign property with compensation determined by the nationalising State's own law.

It failed, and the reason is the second limb of the North Sea test. The developed States, whose interests were specially affected, voted against or abstained, and their practice did not follow. Without extensive and virtually uniform practice including the specially affected States, no custom formed, whatever the size of the majority.

The episode is worth knowing because it shows exactly what a resolution can and cannot do: it can express what a majority of States believe the law should be, and it cannot by itself make that belief into law.

A worked example

The General Assembly adopts, by 150 votes to 3 with 20 abstentions, a Declaration on the Protection of Undersea Cables, stating that every State is under an obligation to prosecute persons who damage a submarine cable. Two years later State T's court refuses to prosecute, and State U complains that international law has been broken.

Is the Declaration binding? No. Under articles 10 and 13 the Assembly may only recommend, and a Declaration is a recommendation whatever it is called.

Did State T vote for it? If it did, that is evidence of its own view of the law and may found an argument that it is precluded from denying the rule. If it voted against, that is evidence the other way, and if it has objected consistently since, it may be a persistent objector.

Has the Declaration made custom? Apply the North Sea test. The language, an obligation to prosecute, is norm-creating. A vote of 150 to 3 is widespread and representative, but the question is whether the major cable-laying and cable-owning States are among the 150 or among the 3 and the 20, because they are the specially affected States. And what have States actually done in the two years? If several have legislated and prosecuted, the practice limb is being satisfied; if nothing has happened anywhere, it is not.

What is the honest advice to State U? That the Declaration is powerful evidence and not a rule, that its case depends on practice since 1974-style majorities do not by themselves make law, and that the strongest single piece of material would be State T's own vote and any legislation State T has passed in reliance on it.

Distinctions table

What it does NOT mean

"Not binding" does not mean "not important". Resolution 2625 is not binding and is cited by the International Court as the authoritative gloss on article 2 of the Charter.

A large majority does not make law. The New International Economic Order resolutions show it. What matters is whether practice, including that of specially affected States, follows.

A resolution binding on the Organization is not binding on international law. A budget assessment binds a Member to pay; it creates no rule for anybody.

Not everything the Assembly adopts is a Declaration. Most resolutions are routine, and the ones that matter for this topic are the small number drafted in normative language and adopted with overwhelming support.

Limits and criticism

The category is unstable. There is no accepted test for when a resolution has crossed from recommendation into custom, so the same resolution can be described as declaratory by one State and aspirational by another, and both can point to respectable authority.

Voting is cheap. A State can vote for a resolution costlessly and behave otherwise, which is why practice, not votes, has to carry the weight. That is also why the second and third limbs of the North Sea test do the real work.

Article 38 has never been amended to accommodate any of this. A student is therefore asked to fit into a 1920 list a phenomenon that did not exist when the list was drafted, and the fit is imperfect by construction.

Quick revision

Articles 10 to 14 of the Charter: the Assembly may discuss, consider and recommend. Article 13 is the codification provision, under which the International Law Commission exists. Article 12 bars recommendations while the Council is seised, unless the Council requests.

Contrast article 25: Members agree to accept and carry out the decisions of the Security Council.

Binding on the Organization, recommendatory to Members. Article 17, budget and apportionment of expenses. Article 18: one vote each; two-thirds of members present and voting on important questions.

Four ways a resolution matters: evidence of custom, especially of opinio juris; a declaration of existing law; a step towards a treaty; and soft law.

Resolution 2625 (XXV), 24 October 1970, Friendly Relations Declaration, adopted without a vote: seven principles, including the prohibition of force, peaceful settlement, non-intervention, co-operation, self-determination, sovereign equality, and good faith.

The New International Economic Order resolutions failed to make law because the specially affected States voted against and their practice did not follow: the second and third limbs of the North Sea test.

Test yourself

1. Are resolutions of the General Assembly binding? Give the Charter basis.

Not on Members. Articles 10, 11, 13 and 14 empower the Assembly to discuss, consider and make recommendations, and article 12 restricts even that while the Security Council is seised of a dispute. The contrast is article 25, by which Members agree to accept and carry out decisions of the Security Council. Resolutions on the Organization's own internal affairs do bind: the budget and the apportionment of expenses under article 17, admissions, elections and rules of procedure.

2. How can a non-binding resolution acquire legal effect?

Four ways. It can be evidence of custom, particularly of opinio juris, since a State's vote is a formal statement of its view of the law. It can be a declaration of law that already exists, as Resolution 2625 is of the principles in article 2 of the Charter. It can be a step towards a treaty, as Resolution 1962 (XVIII) of 1963 was towards the Outer Space Treaty. And it can operate as soft law, guiding conduct and hardening over time.

3. What test decides whether a resolution has produced a customary rule?

The test from the North Sea Continental Shelf cases, applied to the resolution's text and its aftermath. The provision must be of a norm-creating character rather than hortatory. Support must be widespread and representative, including the States whose interests are specially affected. And State practice must have been extensive and virtually uniform in the sense of the rule, accompanied by a general recognition that a rule of law was involved. A resolution adopted by acclamation and ignored in practice satisfies the first two limbs and fails the third.

4. Why did the New International Economic Order resolutions fail to make law, despite overwhelming majorities?

Because a majority in the Assembly is not the test. The developed States, whose interests were specially affected by rules on nationalisation and compensation, voted against or abstained, and their subsequent practice did not conform. Without extensive and virtually uniform practice including the specially affected States, no customary rule formed. The episode is the clearest demonstration that resolutions express what States think the law should be and cannot by themselves make it so.

5. State the seven principles of Resolution 2625 (XXV).

The prohibition of the threat or use of force against the territorial integrity or political independence of any State; the settlement of international disputes by peaceful means; the duty not to intervene in matters within the domestic jurisdiction of any State; the duty of States to co-operate with one another; the principle of equal rights and self-determination of peoples; the sovereign equality of States; and the duty to fulfil in good faith the obligations assumed in accordance with the Charter.

6. Distinguish the legal effect of a General Assembly resolution from that of a Security Council resolution.

An Assembly resolution is a recommendation to Members under articles 10 to 14, and binds only in the Organization's internal affairs such as the budget under article 17. A Security Council resolution taken under Chapter VII is binding: article 25 provides that Members agree to accept and carry out the decisions of the Council in accordance with the Charter, and article 48 requires the action required to carry out those decisions to be taken by the Members. The difference is one of legal quality and not of importance: Resolution 2625 binds nobody and is treated as an authoritative statement of the Charter's principles.

It follows that a rule of international law is part of national law without any act of transformation, that national courts should apply it, and that in case of conflict international law prevails, because on this view it is the higher of the two.

Its two versions

Kelsen's version is the strict one. Every norm derives its validity from a higher norm, and the chain ends in a Grundnorm. Kelsen located the basic norm in international law, so municipal legal orders derive their validity from it. That is the position described in [Theories of the Basis of International Law].

The natural-law version holds that both systems derive from the same higher law, so neither can contradict the other.

What is right about it

It reflects how the international plane actually works. Article 27 means that from the outside a State's internal law is simply a fact and never a justification.

It also reflects how many States actually behave with custom: a great many legal systems, including the English and the Indian, apply customary international law without any legislation, which is a monist practice whatever the theory says.

What is wrong with it

No State applies it fully. Every legal system reserves the power of its legislature to override, and a monism that lets an unincorporated treaty defeat a statute would put the treaty-making executive above the legislature. That is a constitutional objection, not a technical one.

The two systems have different subjects. International law binds States primarily; municipal law binds individuals. Treating them as one order requires the claim that international law ultimately regulates individuals too, which is arguable but not obvious.

It cannot explain the transformation practice. If international law were automatically part of national law, the elaborate machinery States maintain for incorporating treaties would be pointless.

Dualism

What it says

The two are separate legal systems, and the classic statement of the differences comes from Triepel and Anzilotti.

Different sources. International law comes from the common will of States; municipal law comes from the will of a single State.

Different subjects. International law regulates States; municipal law regulates individuals.

Different subject matter. International law governs relations between States; municipal law governs relations within a State.

It follows that a rule of international law can have no effect inside a State until that State makes it part of its own law, by legislation or otherwise. That process is transformation.

What is right about it

It matches most States' actual constitutional practice for treaties. In India, in the United Kingdom, in Canada, in Australia, a treaty concluded by the executive does not by itself change the law that courts apply.

It also protects the legislature. Since the treaty-making power is executive almost everywhere, unmediated monism would let the executive legislate by treaty.

What is wrong with it

It is too tidy about subjects. Individuals now have rights and duties directly under international law, as [Subjects of International Law] shows, so the clean division between systems by whom they bind is no longer accurate.

It does not describe how custom is treated. Most dualist States apply customary international law without transformation.

It can produce embarrassment. A State can be in clear breach on the international plane while its own courts are obliged to apply the statute that produced the breach.

The doctrines that do the work

The theories are labels; these three doctrines are what a court actually applies.

The doctrine of incorporation, sometimes called adoption. Rules of international law are part of the law of the land automatically, unless they conflict with an Act of Parliament or with settled judicial decision. This is the general position for custom in India and in England.

The doctrine of transformation. Rules of international law are not part of the law of the land unless they have been made so by legislation, judicial decision or long established usage. This is the general position for treaties in India and in England.

Consistent interpretation, sometimes called the presumption of conformity. Where a statute is capable of two readings, a court prefers the reading that conforms to the State's international obligations, because the legislature is presumed not to intend a breach. This is the most practically useful of the three, because it operates even where a treaty has not been incorporated, and its Indian statement is in [International Law in Indian Courts].

Comparative practice, briefly

The United Kingdom. Custom is incorporated; treaties require legislation; a statute prevails over both.

The United States. Article VI of the Constitution makes treaties made under the authority of the United States part of the supreme law of the land, which looks strongly monist. The effect is cut down by the distinction between self-executing and non-self-executing treaties, the latter needing implementing legislation, and by the rule that a later statute prevails over an earlier treaty as a matter of domestic law.

The Netherlands and several civil-law States. Constitutions provide expressly that treaties, once published, have effect and may prevail even over the constitution in defined cases. This is the closest practice comes to genuine monism.

India is dealt with in the next chapter.

A worked example

State D, a dualist State, ratifies a convention requiring it to make torture a criminal offence. Parliament passes no legislation. Two years later an official of State D tortures a detainee. The detainee sues in State D's courts, relying on the convention.

On the international plane. State D is in breach. Article 26 requires performance in good faith and article 27 prevents it pleading the absence of legislation as an excuse. Another State party may invoke its responsibility.

In State D's courts. The convention is not part of the law of the land, so the court cannot convict on it or award damages under it. That is dualism doing what it does.

Is that the end? No, and this is where a good answer separates itself. If any existing statute or constitutional guarantee is capable of a reading that conforms to the convention, the court should prefer that reading. If State D's constitution guarantees life and personal liberty, the convention can inform its content without being incorporated. And if the prohibition of torture is a rule of customary international law, then in a State that incorporates custom the court may apply it directly, since the barrier is to unincorporated treaties and not to custom.

Change the facts: State D's own statute expressly authorises the conduct. Now consistent interpretation is unavailable, because the statute is not capable of two readings. The court must apply the statute, and State D remains in breach internationally. That is the embarrassment dualism produces, and the remedy is political rather than judicial.

Distinctions table

What it does NOT mean

No State is purely monist or purely dualist. Almost every system incorporates custom and transforms treaties, which is a mixture. Describing India or England as "dualist" without that qualification is a half-truth.

Dualism does not mean international law is ignored. It means it operates on a different plane, and it reaches national law through incorporation, through legislation, and above all through consistent interpretation.

A treaty that has not been incorporated is not useless in a national court. It can be used to construe a statute, to inform a constitutional guarantee, and to resolve ambiguity.

Monism does not mean a treaty always beats a statute. Even in strongly monist systems the effect depends on constitutional provisions about self-executing treaties and about which prevails on conflict.

Limits and criticism

The debate is largely about description, not decision. Courts do not decide cases by choosing a theory; they apply their own constitution's rules about treaties and custom, and the theories are labels attached afterwards.

The labels obscure the interesting question. What matters is not whether a system is monist but which rules of international law are directly applicable, at whose instance, and with what rank. Those questions have different answers for custom, for treaties, for peremptory norms and for decisions of international organisations, and no single label captures the pattern.

The gap the debate leaves is real. In dualist practice a State can be in breach internationally while its courts are compelled to apply the offending statute, and neither theory solves that; only legislation does.

Quick revision

Monism: one legal order; international law is automatically part of national law and prevails on conflict. Kelsen, with the Grundnorm in international law.

Dualism: two systems, differing in sources, subjects and subject matter; international law applies internally only after transformation. Triepel and Anzilotti.

Article 27 VCLT: a party may not invoke its internal law as justification for failure to perform a treaty. Article 46: consent given in violation of internal law on competence may be invoked only if the violation was manifest and concerned a rule of fundamental importance.

Three working doctrines: incorporation (custom, automatically), transformation (treaties, by legislation), and consistent interpretation, which operates even on an unincorporated treaty.

Practice: the United Kingdom incorporates custom and transforms treaties; the United States makes treaties supreme law but distinguishes self-executing from non-self-executing; several civil-law constitutions give treaties direct effect.

No State is purely one or the other.

Test yourself

1. State the monist and dualist positions and name their chief exponents.

Monism holds that international law and municipal law form a single legal order, so that a rule of international law is part of national law without transformation and prevails in case of conflict; Kelsen is its chief exponent, locating the Grundnorm of the whole legal order in international law. Dualism holds that they are separate systems differing in their sources, their subjects and their subject matter, so that international law operates within a State only when transformed into national law; Triepel and Anzilotti are its chief exponents.

2. Can a State plead its own constitution as a defence to a breach of treaty?

No. Article 27 of the Vienna Convention provides that a party may not invoke the provisions of its internal law as justification for its failure to perform a treaty. The only qualification is article 46, which looks the other way: a State may not invoke a violation of its internal law on competence to conclude treaties as invalidating its consent unless the violation was manifest and concerned a rule of internal law of fundamental importance, a violation being manifest if it would be objectively evident to any State conducting itself in accordance with normal practice and in good faith.

3. Distinguish incorporation from transformation.

Under incorporation, rules of international law become part of the law of the land automatically and are applied by national courts unless they conflict with a statute or settled judicial decision. Under transformation, they are not part of the law of the land unless made so by legislation, judicial decision or long established usage. Most systems, including the Indian and the English, incorporate custom and transform treaties, so the two doctrines operate side by side within one legal system on different classes of rule.

4. A treaty has been ratified but not implemented by legislation. What use is it in a national court of a dualist State?

It cannot be the direct source of a right or an offence, because it is not part of the law of the land. It remains useful in three ways. It can be used to construe an ambiguous statute, on the presumption that the legislature does not intend to legislate contrary to the State's international obligations. It can inform the content of a constitutional guarantee expressed in general terms. And where its content is also a rule of customary international law, the court may apply that rule directly if the system incorporates custom, because the barrier is to unincorporated treaties and not to custom.

5. "Neither monism nor dualism describes any real legal system." Discuss.

The statement is close to true. Almost every system applies customary international law without legislation, which is monist, and requires legislation before a treaty changes the law courts apply, which is dualist. The United States is often called monist because article VI makes treaties the supreme law of the land, yet it distinguishes self-executing from non-self-executing treaties and lets a later statute prevail domestically over an earlier treaty. The theories are best treated as descriptions of two tendencies, and the useful questions are which rules are directly applicable, at whose instance, and with what rank, which have different answers for custom, treaties and peremptory norms.

6. What is the presumption of conformity, and why is it the most useful of the three doctrines?

It is the rule of construction that where a statute is capable of more than one meaning, a court prefers the meaning that conforms to the State's international obligations, because the legislature is presumed not to intend a breach. It is the most useful because it operates without incorporation and without legislation, so it reaches unincorporated treaties, and because it applies in the great majority of cases, where the question is what a statute means rather than whether it is valid. Its limit is that it cannot be used where the statute admits of only one reading, and in that case the court must apply the statute and the State remains in breach.

Putting article 73 and entry 14 together: the Union executive may conclude a treaty without Parliament. No ratification by either House is constitutionally required, and there is no Indian equivalent of the United States Senate's advice and consent.

That is a large power, and the check on it is the next section: concluding a treaty and making it enforceable are two different things.

Who makes treaties enforceable: Parliament

Article 253 provides that notwithstanding anything in the foregoing provisions of Chapter I of Part XI, Parliament has power to make any law for the whole or any part of the territory of India for implementing any treaty, agreement or convention with any other country or countries or any decision made at any international conference, association or other body.

Two consequences, and the second is the one that surprises students.

Implementation is a matter for Parliament, not for the executive that made the treaty. So a treaty that requires a change in Indian law, that creates an offence, or that affects private rights needs an Act.

Article 253 overrides the federal division. The words "notwithstanding anything in the foregoing provisions of this Chapter" mean Parliament may legislate to implement a treaty even on a subject in the State List. That is a significant expansion of Union power, and it is the constitutional route by which a wide range of international obligations, on the environment, on human rights, on trade, have entered Indian law.

Familiar examples of implementing legislation include the Territorial Waters, Continental Shelf, Exclusive Economic Zone and Other Maritime Zones Act 1976 for the law of the sea, dealt with in [The Law of the Sea], and the Arbitration and Conciliation Act 1996 for the UNCITRAL Model Law and the New York Convention, dealt with in [UNCITRAL and International Commercial Arbitration] and [Enforcement of Foreign Arbitral Awards].

What an Indian court actually does

With custom: incorporation

Customary international law is applied by Indian courts without any legislation, provided it does not conflict with an Act of Parliament. The authority is the case below, and this is the doctrine of incorporation described in [International Law and Municipal Law].

With treaties: transformation

A treaty that India has ratified but Parliament has not implemented does not by itself alter the law that an Indian court applies. It cannot create an offence, and it cannot by itself create or take away a private right.

With ambiguity: consistent interpretation

Where a statute or a constitutional guarantee is capable of more than one reading, an Indian court prefers the reading that conforms to India's international obligations. This is the rule that does most of the work in practice, and it is stated in the case below as a rule of construction: courts must interpret national law in a way that avoids confrontation with international law.

The leading case

Facts. Gramophone Company of India Ltd v. Birendra Bahadur Pandey, AIR 1984 SC 667, also reported at (1984) 2 SCC 534 and 1984 SCR (2) 664, decided on 21 February 1984 by Chinnappa Reddy, Venkataramiah and Misra JJ. A consignment of pre-recorded cassettes was shipped from Singapore to Kathmandu in Nepal and arrived at Calcutta in transit. The Gramophone Company, alleging that the cassettes were pirated copies infringing its copyright, invoked section 53 of the Copyright Act 1957. The question was whether goods merely passing through India in transit to a land-locked State were imported within sections 51 and 53 of the Act. That turned on whether Nepal's right of innocent passage of goods across Indian territory, recognised in international law and in treaty, cut down the ordinary meaning of the word.

Held. Allowing the appeal, the Court held the goods were imported for the purposes of the Act. On the general question it stated the Indian position. There are two schools of thought: under the doctrine of incorporation, rules of international law are incorporated into the law of the land automatically and are considered part of it unless in conflict with an Act of Parliament; under the doctrine of transformation they are not part of the law of the land unless already made so by an Act of Parliament, a judicial decision or long established usage. The Court held that nations must march with the international community and that municipal law must respect rules of international law even as nations respect international opinion. The comity of nations requires that rules of international law be accommodated in municipal law even without express legislative sanction, provided they do not run into conflict with Acts of Parliament. But where they do run into such conflict, the sovereignty and integrity of the Republic and the supremacy of the constituted legislatures in making the laws are not to be subjected to external rules. The Court added the rule of construction that courts must interpret national law, wherever possible, so as to avoid confrontation with international law.

Why it matters. It is the statement an Indian answer to MU's topic 1.6 has to contain, and it contains three propositions, not one: custom is accommodated without legislation; an Act of Parliament prevails where they conflict; and national law is to be construed, so far as it will bear it, to avoid confrontation.

A worked example

India ratifies the Convention on the Protection of Coastal Wetlands, which requires each party to prohibit construction within five hundred metres of a designated wetland. Parliament passes no Act. A developer begins building at four hundred metres from a designated wetland, with a permit issued under a State law. A citizens' group sues.

Can the group rely on the Convention directly? No. India follows transformation for treaties, so an unimplemented convention does not by itself create an enforceable prohibition, and a court cannot make lawful conduct unlawful by reference to it.

Is the Convention therefore irrelevant? No, and this is the substance of the answer. If the State law or the permitting rules are capable of more than one reading, the court should prefer the reading that conforms to the Convention, on the Gramophone rule of construction. If a constitutional guarantee is engaged, the Convention can inform its content without being incorporated.

Could Parliament legislate even though land and local government are State subjects? Yes. That is precisely what article 253 is for: Parliament may make any law for implementing a treaty notwithstanding the distribution of legislative powers.

Suppose instead the obligation were a rule of customary international law. Then the court could apply it directly on the doctrine of incorporation, subject to the limit Gramophone states: it must not conflict with an Act of Parliament.

Suppose an Act of Parliament expressly permits construction at four hundred metres. Then neither route is open. The Act prevails in an Indian court, and India is in breach on the international plane, where article 27 of the Vienna Convention prevents it pleading its own legislation as an excuse. The remedy is legislative, not judicial.

Distinctions table

What it does NOT mean

Article 51 is not enforceable. It is a Directive Principle, and article 37 makes the principles unenforceable by any court while declaring them fundamental in the governance of the country.

Treaty-making does not require Parliament. It requires the Union executive, under article 73 with entry 14. Implementation requires Parliament, under article 253. Confusing the two is the commonest error in this topic.

Article 253 does not make treaties part of Indian law. It gives Parliament a power. Until the power is exercised, nothing has changed in Indian law.

"Dualist" overstates it. India transforms treaties and incorporates custom, and its courts construe statutes to conform. The accurate description is a modified dualism, not a pure one.

Limits and criticism

Parliament has no formal role in treaty-making. The executive can bind India internationally on any subject, including subjects in the State List, and Parliament's involvement comes only at the implementation stage, if at all. Proposals for a statutory requirement of parliamentary scrutiny have been made repeatedly and none has been enacted.

Article 253 unsettles the federal balance. A treaty concluded by the Union executive can open the door to Union legislation on a State subject, and the States have no constitutional voice in whether the treaty is concluded.

The gap between ratification and implementation is real. India ratifies conventions that are not implemented for years or at all, and in that period the obligation binds India internationally while being unenforceable in its own courts.

The presumption of conformity has a hard limit. It works only where the statute will bear the conforming reading. Where the words admit of one meaning only, the court must apply them, India remains in breach, and the position cannot be cured by construction.

Quick revision

Article 51: the State shall endeavour to promote international peace and security, maintain just and honourable relations between nations, foster respect for international law and treaty obligations, and encourage settlement of disputes by arbitration. A Directive Principle, unenforceable under article 37, and used all the same.

Treaty-making is executive: article 73 plus List I entries 10 to 14, entry 14 being entering into and implementing treaties. No parliamentary approval is needed.

Implementation is parliamentary: article 253, which lets Parliament legislate to implement a treaty notwithstanding the distribution of legislative powers, so even on a State subject.

Custom is applied by incorporation, treaties by transformation, and ambiguity is resolved by consistent interpretation.

Gramophone Company of India Ltd v. Birendra Bahadur Pandey, AIR 1984 SC 667, (1984) 2 SCC 534, 21 February 1984: the comity of nations requires rules of international law to be accommodated in municipal law even without express legislative sanction, provided they do not conflict with Acts of Parliament; where they conflict, the supremacy of the legislature prevails; and courts must interpret national law so as to avoid confrontation with international law.

Test yourself

1. Who can make a treaty on behalf of India, and does Parliament have to approve it?

The Union executive, under article 73 of the Constitution read with entry 14 of List I of the Seventh Schedule, which covers entering into treaties and agreements with foreign countries. Parliament has no constitutional role in the making of a treaty and its approval is not required. Parliament's power under article 253 is to legislate for implementing a treaty, which is a different stage and may never be reached.

2. Explain article 253 and its effect on the federal structure.

Article 253 provides that notwithstanding anything in the foregoing provisions of that Chapter, Parliament has power to make any law for the whole or any part of India for implementing any treaty, agreement or convention with any other country, or any decision made at an international conference, association or other body. Its effect is that Parliament may legislate even on a subject in the State List where it is implementing a treaty. Since the treaty is concluded by the Union executive without the States' concurrence, the provision allows the Union to acquire legislative competence over State subjects by the act of making a treaty, which is a significant qualification of the federal division.

3. State the three propositions in Gramophone.

First, that the comity of nations requires rules of international law to be accommodated in municipal law even without express legislative sanction, provided they do not run into conflict with Acts of Parliament, which is the doctrine of incorporation applied to custom. Second, that where they do conflict, the sovereignty and integrity of the Republic and the supremacy of the constituted legislatures in making the laws are not subject to external rules, so the Act prevails. Third, that courts must interpret national law, wherever possible, so as to avoid confrontation with international law.

4. Is article 51 of any use if it cannot be enforced?

Yes. Article 37 makes the Directive Principles unenforceable by any court while declaring them fundamental in the governance of the country and a duty of the State to apply in making laws. Article 51 is accordingly used as an interpretive direction: it supports reading statutes and constitutional guarantees, where they are capable of it, so as to conform to India's international obligations, and it is the constitutional foundation of the rule of construction stated in Gramophone.

5. India ratifies a convention creating a new criminal offence. No Act is passed. Can a person be prosecuted under the convention in India?

No. India follows transformation for treaties, so an unimplemented convention is not part of the law of the land and cannot create an offence. Article 20(1) of the Constitution independently forbids conviction except for the violation of a law in force at the time of the act. Prosecution requires an Act of Parliament, which article 253 empowers Parliament to pass. Until then India is in breach of the convention on the international plane, and article 27 of the Vienna Convention prevents it pleading the absence of legislation as a justification.

6. Would you describe India as monist or dualist? Justify your answer.

Neither label fits without qualification, and the accurate description is a modified dualism. India transforms treaties: an unimplemented convention does not change the law that Indian courts apply, and article 253 exists precisely because implementation needs an Act. India incorporates custom: on the authority of Gramophone, rules of international law are accommodated in municipal law without express legislative sanction so long as they do not conflict with an Act of Parliament. And Indian courts apply the presumption of conformity, construing national law to avoid confrontation with international law. That mixture, dualist for treaties and monist for custom with an interpretive bridge between them, is the practice of most common law systems.

The two theories

This is the heart of MU's topic and an essay question in its own right.

The constitutive theory

Recognition creates the State. An entity becomes a subject of international law, with rights and duties, only when existing States recognise it. Until then it is a fact and not a person in law.

The argument for it. International law rests on consent, and a new State cannot acquire rights against existing States without their acceptance. There is also a practical point: somebody has to decide, and there is no international authority that certifies statehood, so the decision falls to States individually.

The objections, and they are strong.

It produces relativity. If recognition constitutes, an entity is a State as against those that have recognised it and not as against those that have not. Israel would be a State in Delhi and not a State in some other capital, which is an unworkable account of legal personality.

It leaves the unrecognised entity outside the law. If an entity is not a State until recognised, it owes no obligations. It could not commit aggression, because aggression is a wrong of States. Nobody accepts that conclusion.

Recognition is a political act. States recognise for reasons of policy. Making legal existence turn on political choice puts the law at the disposal of politics.

How many recognitions? The theory gives no answer. One? A majority? Which States count?

The declaratory theory

Recognition acknowledges an existing fact. An entity that satisfies the criteria is a State, and recognition merely declares what is already the case and opens diplomatic relations.

The argument for it. It matches the Convention itself: article 3 of Montevideo provides that the political existence of the State is independent of recognition by the other States. It avoids relativity. And it fits practice: unrecognised entities are treated as bound by international law, and States that do not recognise one another still complain of each other's breaches in legal terms.

The objections. It understates what recognition actually does. An unrecognised State cannot make treaties with the States that refuse it, cannot maintain embassies with them, and its officials and property get no immunity in their courts. Saying its statehood is unaffected is true and thin.

The position to write

The declaratory theory is the better view and is the one modern practice supports, with two concessions that a good answer makes.

Recognition is strong evidence. Where the facts are doubtful, and they often are, widespread recognition is the best available proof that the criteria are satisfied, and refusal by most States is the best available proof that they are not.

Recognition has large practical consequences, set out in [Modes and Legal Effects of Recognition], even if it has no constitutive legal effect.

Membership of the United Nations is a different question

Students routinely confuse admission with recognition, and the distinction is easy marks.

Article 4 provides that membership is open to all peace-loving States which accept the obligations of the Charter and, in the judgment of the Organization, are able and willing to carry them out, and that admission is effected by a decision of the General Assembly upon the recommendation of the Security Council.

Three consequences.

Admission is not collective recognition. A Member does not thereby recognise every other Member, and States that do not recognise each other sit in the same Assembly.

The Security Council's recommendation means the veto applies. Admission is therefore a political process, and entities have been kept out for many years by a single negative vote.

A State that is not a Member is still a State. Switzerland was a State for centuries and joined only in 2002.

The duty of non-recognition

A State is generally free to recognise or not. There is one important qualification.

Where a situation has been created by a serious breach of a peremptory norm, in particular by the unlawful use of force or in violation of the right of self-determination, States are under a duty not to recognise it as lawful. Resolution 2625 states that the territory of a State shall not be the object of acquisition by another State resulting from the threat or use of force, and that no territorial acquisition resulting from the threat or use of force shall be recognised as legal, and the International Law Commission's Articles on State Responsibility carry the same obligation for serious breaches of peremptory norms, dealt with in [Circumstances Precluding Wrongfulness, and Reparation].

The classical formulation is the Stimson doctrine of 1932, by which the United States declined to recognise the situation created by Japan's occupation of Manchuria.

Recognition of belligerency and insurgency

Two lesser forms belong here because examiners ask about them alongside recognition of States.

Recognition of insurgency acknowledges that a revolt has grown beyond ordinary criminality and that the insurgents are to be treated as having a legal status for limited purposes. It does not confer belligerent rights.

Recognition of belligerency is more far-reaching and traditionally requires four conditions: a general armed conflict within the State, occupation and a measure of orderly administration of a substantial part of the territory by the insurgents, observance of the laws of war by forces under a responsible command, and a practical necessity for outside States to define their attitude. Its effect is that the law of armed conflict applies between the parties, the recognising State assumes the duties of neutrality, and the parent State ceases to be responsible for acts in the area the insurgents control.

A worked example

The province of Zenda declares independence from State Y. It has four million inhabitants, controls the whole province, has a functioning administration and police, and asks for recognition. State Y calls the declaration a rebellion. Twenty States recognise Zenda; ninety do not. Zenda applies to join the United Nations and State Y's ally on the Security Council votes against.

Is Zenda a State? Apply Montevideo. A permanent population: yes, four million. A defined territory: yes, the province, and the fact that State Y disputes the boundary does not matter, since a defined territory does not require settled frontiers. A government: yes, on the facts. Capacity to enter into relations: yes, if it is genuinely independent of State Y and is not being run from outside.

Does it matter that only twenty States have recognised it? On the declaratory theory, no: statehood follows the facts. On the constitutive theory, Zenda would be a State only as against those twenty, which is the relativity objection.

Does the pattern of recognition matter at all? Yes, as evidence. If ninety States withhold recognition because they doubt Zenda's independence, that is powerful evidence on the fourth criterion.

Does the failure to join the United Nations decide it? No. Admission is a separate question under article 4, requiring a recommendation of the Security Council and therefore exposed to the veto, and non-membership does not deprive an entity of statehood.

Change one fact: suppose Zenda was created by the army of a neighbouring State, which invaded and installed the administration. Now the fourth criterion fails, because Zenda is not independent, and the duty of non-recognition applies, since the situation results from the unlawful use of force. States are obliged not to recognise it as lawful, whatever its apparent effectiveness.

Distinctions table

What it does NOT mean

Recognition is not admission to the United Nations. Article 4 admission requires a Security Council recommendation and an Assembly decision; it is not collective recognition and it does not create statehood.

A defined territory does not mean settled boundaries. A State can exist with every frontier disputed.

Non-recognition does not mean the entity is outside the law. It remains bound by international law, and the duty of non-recognition of an unlawful situation is itself a legal duty.

Recognition is not the same as diplomatic relations. States can recognise one another and not exchange ambassadors, and breaking off diplomatic relations does not withdraw recognition.

Limits and criticism

The criteria are indeterminate at the margin. How much control is enough for a government, and how independent is independent, are questions the Montevideo formula does not answer, and they are exactly the questions that arise in every contested case.

The theories do not decide cases. In practice States recognise for reasons of policy and afterwards find the criteria satisfied, and the choice between constitutive and declaratory rarely changes an outcome.

Effectiveness and legality pull apart. The classical criteria are about effectiveness; the duty of non-recognition is about legality. Where an entity is effective but unlawfully created, the two point in opposite directions and the law has no tidy answer.

Quick revision

Montevideo Convention 1933, article 1: a State should possess a permanent population, a defined territory, government, and capacity to enter into relations with other States. A fifth requirement, lawful creation, is now generally added.

A defined territory does not require settled frontiers. Capacity to enter into relations means independence, and it is the criterion that distinguishes a State from a province.

Constitutive theory: recognition creates the State. Objections: relativity, an entity outside the law, politics deciding legal existence, and no answer to how many recognitions are needed.

Declaratory theory: recognition acknowledges a fact. Supported by article 3 of Montevideo: the political existence of the State is independent of recognition by the other States. The better view; recognition remains strong evidence and has large practical effects.

Article 4 of the Charter: admission of peace-loving States able and willing to carry out the obligations, by decision of the General Assembly upon the recommendation of the Security Council. Admission is not recognition, and non-membership is not a bar to statehood.

Duty of non-recognition where a situation results from a serious breach of a peremptory norm, in particular the unlawful use of force: Resolution 2625; historically the Stimson doctrine, 1932.

Recognition of belligerency: general armed conflict, occupation and orderly administration of substantial territory, forces under responsible command observing the laws of war, and a practical necessity for outside States to define their attitude.

Test yourself

1. State the criteria of statehood and explain which is the most important.

Article 1 of the Montevideo Convention 1933 requires a permanent population, a defined territory, government, and capacity to enter into relations with other States. The last is the most important, because it is what distinguishes a State from a component unit of a federation or a dependent territory: an entity that takes its orders from another State fails it however large its population or effective its administration. A fifth requirement, that the entity was lawfully created, is now generally added, since an entity established by unlawful force will not be recognised.

2. Distinguish the constitutive and declaratory theories, and say which is preferable.

The constitutive theory holds that recognition creates statehood, so an unrecognised entity is not a State in law. The declaratory theory holds that recognition merely acknowledges a state of affairs that already exists on the facts. The declaratory theory is preferable. The constitutive theory produces relativity, making an entity a State against some States and not others; it puts an unrecognised entity outside international law altogether, so that it could not even commit aggression; it makes legal existence turn on political choice; and it cannot say how many recognitions are required. The concession to be made is that recognition is powerful evidence where the facts are doubtful, and that it carries large practical consequences.

3. Does admission to the United Nations amount to recognition?

No. Article 4 of the Charter provides that membership is open to peace-loving States that accept the Charter obligations and are able and willing to carry them out, and that admission is by decision of the General Assembly upon the recommendation of the Security Council. A Member does not thereby recognise every other Member, and States that do not recognise one another sit together in the Assembly. Because a Council recommendation is required, admission is subject to the veto and is a political process, and an entity may be a State for many years without being a Member.

4. Can a State exist without settled boundaries?

Yes. The Montevideo criterion is a defined territory, not a delimited one, and what is required is a core of territory over which the entity exercises control. Many States have come into existence with frontier disputes outstanding and have been recognised and admitted to the United Nations while those disputes continued.

5. What is the duty of non-recognition?

The obligation not to recognise as lawful a situation created by a serious breach of a peremptory norm, in particular by the threat or use of force or in violation of self-determination. Resolution 2625 (XXV) provides that the territory of a State shall not be the object of acquisition by another State resulting from the threat or use of force, and that no territorial acquisition so resulting shall be recognised as legal, and the International Law Commission's Articles on State Responsibility impose a corresponding duty on all States in the case of serious breaches of peremptory norms. Its historical ancestor is the Stimson doctrine of 1932, by which the United States refused to recognise the situation Japan created in Manchuria.

6. What conditions must be satisfied before belligerency may be recognised, and what follows?

There must be a general armed conflict within the State; the insurgents must occupy and administer in an orderly way a substantial part of its territory; their forces must act under a responsible command and observe the laws of war; and there must be a practical necessity for outside States to define their attitude. Recognition then has three effects: the law of armed conflict applies between the parties, the recognising State assumes the duties of a neutral, and the parent State ceases to be internationally responsible for what happens in the area the insurgents control. Recognition of insurgency is a lesser step, acknowledging that the revolt is more than ordinary criminality without conferring belligerent rights.

The Estrada doctrine: no pronouncement at all

Stated by Genaro Estrada, the Foreign Minister of Mexico, in 1930. Its position is that the practice of granting or withholding recognition of governments is itself objectionable, because it amounts to passing judgment on the internal affairs of another State. Mexico therefore announced that it would not issue declarations of recognition of governments, and would confine itself to maintaining or withdrawing its diplomatic agents as it saw fit.

The idea behind it. Recognition of governments is an insult in either direction: to grant it is to claim a right to approve, and to withhold it is to intervene.

Its influence. This is now the dominant practice. Many States, including the United Kingdom since 1980, have announced that they no longer recognise governments as such, and instead decide whether to have dealings with a new authority and leave the inference to be drawn from the dealings themselves.

The objection. It does not remove the problem, it relocates it. Courts still have to decide whether an authority is the government of a State for the purposes of immunity, of the validity of its acts, and of who may sue on the State's behalf, and if the foreign ministry will not say, the court must work it out from the conduct of relations.

Effective control: the working test

Underneath both doctrines is the test that practice actually applies. A government is recognised, or dealt with, when it exercises effective control over the territory and population with a reasonable prospect of permanence, and is able and willing to carry out the State's international obligations.

That test is the analogue of the government criterion in [Recognition of States], and it is the one a candidate should give as the general rule, with Tobar and Estrada as the two positions that qualify it in opposite directions.

De facto and de jure recognition of governments

The distinction is set out generally in [Modes and Legal Effects of Recognition], and it belongs to governments rather than to States, so the outline is here.

De facto recognition acknowledges that an authority is in effective control, while reserving judgment on whether its position is lawful or permanent. It is provisional, it can be withdrawn, and it is what States use when a new regime looks likely to last but its future is uncertain.

De jure recognition acknowledges that the authority is the lawful government. It is intended to be permanent, and withdrawing it is a serious step.

Two governments of the same State may be recognised at once in the two capacities, one de jure and the other de facto, which happened repeatedly during and after civil wars in the twentieth century, and could not happen with States.

A worked example

The army of State K overthrows the elected government on 1 March. The President flees abroad and continues to claim to be the lawful head of State. By 1 June the army controls the whole country, the administration functions, and taxes are collected. State L must decide what to do.

Does State K still exist? Yes, and it is still recognised. A change of government does not touch the State, so State K's treaties with State L continue, its debts remain owed, and its responsibility for earlier wrongs is unaffected.

On the Tobar doctrine, State L should withhold recognition until the new authority is legitimated by a constitutional process, typically an election. The consequence is that State L has no one to deal with in a country where its nationals live and its investments sit.

On the Estrada doctrine, State L makes no pronouncement at all. It decides whether to keep its ambassador in place and leaves the inference to be drawn. That is the modern practice.

On effective control, the new authority satisfies the test by 1 June: it controls the territory, the administration works, and permanence is reasonably likely.

What if State L needs an answer for its own courts? Suppose the deposed President sues in State L's courts to recover State K's bank account. The court must decide who is entitled to act for State K. If State L has stopped making declarations of recognition, the court will look at whether State L's government deals with the new authority, whether it has kept its embassy, and whether it has accepted the authority's diplomats. That is exactly the difficulty the Estrada doctrine creates: the political question does not disappear, it lands on the judge.

Distinctions table

What it does NOT mean

Recognising a government is not approving it. States have always said so, and the Estrada doctrine exists because saying so was not believed.

Non-recognition does not suspend the State's obligations. The State remains bound whether or not anybody recognises the authority that governs it.

Effective control is not permanent control. The test asks for a reasonable prospect of permanence, not a guarantee.

A government in exile is not a government by effective control. It may be recognised for political reasons, and the recognition is a departure from the ordinary test rather than an application of it.

Limits and criticism

Recognition of governments has always been political and has never stopped being so. The Estrada doctrine is a confession that the legal test could not be kept free of policy, and abolishing the declaration does not abolish the judgment.

The costs of non-recognition fall on private people. Contracts, marriages, births and judgments in a territory governed by an unrecognised authority have to be dealt with by courts elsewhere, and refusing to acknowledge the authority means refusing to acknowledge the ordinary transactions of a whole population.

The two doctrines answer different questions. Tobar asks whether a government ought to be dealt with; Estrada asks whether that question is anyone else's business. Presented as rivals on the same question, as they usually are in textbooks, both look weaker than they are.

Quick revision

Recognition of a State is about existence and happens once. Recognition of a government is about who represents it and arises whenever power is taken outside the constitutional process.

A change of government does not change the State: treaties, debts and responsibility continue, because the State is the same legal person.

Tobar doctrine (Ecuador, 1907): no recognition of a government coming to power by revolution until legitimated by constitutional process. The Wilson doctrine is its American counterpart. Objection: it is intervention, and it fails against effective power.

Estrada doctrine (Mexico, 1930): make no pronouncement at all; maintain or withdraw diplomatic agents and let the inference be drawn. Now the dominant practice, followed by the United Kingdom since 1980. Objection: the question moves from the foreign ministry to the courts.

Effective control is the working test: control of territory and population, a reasonable prospect of permanence, and ability and willingness to carry out international obligations.

De facto recognition is provisional and acknowledges control; de jure acknowledges lawfulness and is intended to be permanent. Two governments of one State may be recognised at once in the two capacities.

Test yourself

1. Distinguish recognition of a State from recognition of a government.

Recognition of a State acknowledges that an entity exists as a State; it happens once and is not repeated. Recognition of a government acknowledges that a particular authority is competent to represent a State whose existence is already accepted, and the question arises again whenever a government takes power outside the constitutional process. Recognising a State implies recognising its government, but not the reverse, and withdrawing recognition from a government leaves the State's recognition untouched.

2. Does a change of government affect a State's treaties and debts?

No. The State is the same legal person before and after, so its treaties continue to bind it, its debts remain owed, and its responsibility for earlier internationally wrongful acts is unaffected. That is the principle of the continuity of States, and it is what makes recognition of governments a question about representation rather than about obligation.

3. State the Tobar and Estrada doctrines and say which reflects modern practice.

The Tobar doctrine, proposed by Ecuador's Foreign Minister in 1907, is that a government coming to power by revolution or coup should not be recognised until legitimated by its own country's constitutional process; the Wilson doctrine applied a similar test from 1913. The Estrada doctrine, stated by Mexico's Foreign Minister in 1930, is that granting or withholding recognition of governments is itself objectionable as a judgment on another State's internal affairs, so no declaration should be made and the State should confine itself to maintaining or withdrawing its diplomatic agents. Estrada reflects modern practice: many States, including the United Kingdom since 1980, no longer recognise governments as such.

4. What is the working test for recognising a government?

Effective control: the authority must control the territory and population, with a reasonable prospect of permanence, and must be able and willing to carry out the State's international obligations. It is the same enquiry as the government criterion for statehood, applied to a State that already exists.

5. What difficulty does the Estrada doctrine create for national courts?

It removes the answer without removing the question. A court still has to decide who represents a foreign State for the purposes of sovereign immunity, of the validity of the State's acts, and of who may sue and be sued on its behalf. If the foreign ministry has stopped issuing declarations, the court must infer the position from conduct: whether an ambassador has been kept in place, whether the authority's diplomats have been accepted, and whether dealings continue. The political judgment moves from the executive to the judge, who is worse placed to make it.

6. Explain de facto and de jure recognition of governments, and give a consequence of the difference.

De facto recognition acknowledges that an authority is in effective control while reserving judgment on the lawfulness or permanence of its position; it is provisional and can be withdrawn without great difficulty. De jure recognition acknowledges the authority as the lawful government, is intended to be permanent, and is withdrawn only in grave circumstances. One consequence is that a State may recognise one authority de jure and another de facto at the same time in the same State, which happens during and after civil wars; another is that de jure recognition generally carries fuller consequences before the recognising State's courts, including immunity and the retroactive validation of the authority's acts.

Conditional and unconditional

Conditional recognition is granted on terms: that the new State protect minorities, observe religious freedom, accept certain boundaries, or assume a share of the predecessor's debts.

The orthodox view is that once recognition has been given it takes effect, and the breach of a condition is a breach of the undertaking rather than a ground for treating the recognition as void. So the condition creates an obligation and does not suspend the recognition.

Individual and collective

Individual recognition is what usually happens: each State decides for itself.

Collective recognition is recognition by a group of States acting together, or through an international organisation. It has been proposed repeatedly and has never been institutionalised. As explained in [Recognition of States], admission to the United Nations under article 4 is not collective recognition, and a Member does not thereby recognise every other Member.

Something close to it happens in practice when a group of States announces common criteria and then recognises together, which is how several new European States were recognised in the early 1990s.

Premature recognition

Recognition given before the entity satisfies the criteria, most obviously while the parent State is still fighting to suppress a secession.

Premature recognition is a wrongful act, an unlawful intervention in the affairs of the parent State, and the parent State may treat it as such. It is important because it shows recognition is not a purely discretionary act: the discretion runs out where the criteria are plainly not satisfied.

Withdrawal of recognition

Recognition of a government may be withdrawn when the authority loses control, and in practice it is more often allowed to lapse than formally revoked.

Recognition of a State is withdrawn only if the State ceases to exist, by absorption or merger or complete disintegration. It is not a means of expressing displeasure, and States that quarrel break off diplomatic relations instead, which is a different thing.

The legal effects

This is where the topic earns its place in a syllabus, because these are the consequences that decide real cases.

On the international plane

Diplomatic relations become possible, though they do not follow automatically: recognition and the exchange of ambassadors are separate steps.

Bilateral treaties become possible, since a State will not conclude one with an entity it does not accept as a State.

Claims may be made and received between the two, and the recognised entity may bring an international claim against the recognising State.

In the recognising State's own courts

Four consequences, and these are the ones examiners ask about.

Standing to sue. A recognised State or government may bring proceedings in the recognising State's courts. An unrecognised one generally cannot, because the court will not accept that it exists as a legal person for that purpose.

Sovereign immunity. A recognised State and its property are entitled to immunity, on the principles in [Immunity from Jurisdiction]. An unrecognised entity is not.

Validity of legislative and executive acts. The courts of the recognising State give effect to the laws and official acts of a recognised State or government within its territory: its marriages, its company registrations, its judgments, its transfers of property. Those of an unrecognised authority are, in strict theory, a nullity, which produces the injustice noted below.

Title to property abroad. Recognition, and particularly de jure recognition, entitles the government to the State's property in the recognising State, including bank accounts and embassy premises, and this is what the litigation is usually really about.

Retroactivity. De jure recognition is generally treated as dating back to the moment the authority actually came to power, so that acts done before recognition are validated. That doctrine exists precisely to reduce the injustice of treating a whole population's transactions as a nullity.

A worked example

The authorities of Ruritania, an entity that broke away from State W four years ago, sue in the courts of State X to recover a consignment of goods. Ruritania controls its territory, but State X has not recognised it. Meanwhile a couple married under Ruritanian law seek to have their marriage recognised in State X, and State W claims Ruritania's bank account in a State X bank.

Can Ruritania sue? If State X has not recognised it, generally no. The court will not treat it as a legal person entitled to appear.

Is Ruritania entitled to immunity if sued? No, on the same reasoning, which cuts the other way and is an argument the unrecognised entity will not make.

Is the marriage valid? In strict theory the acts of an unrecognised authority are a nullity in State X, so the marriage would not be recognised. That is a harsh result for people who had no choice in the matter, and it is the reason courts and legislatures have found ways round: recognising private-law acts of daily life even where the authority is not recognised, and applying the retroactivity doctrine as soon as recognition comes.

Who gets the bank account? State W, while it is the recognised claimant. If State X later recognises Ruritania de jure, the recognition relates back to the date Ruritania came to power, and Ruritania's title is treated as having existed throughout.

Change the facts: State X recognised Ruritania two years ago, while State W was still fighting to suppress the secession and Ruritania controlled only part of its claimed territory. That is premature recognition, and it is a wrongful act, an unlawful intervention in State W's affairs, of which State W may complain.

Distinctions table

What it does NOT mean

Recognition is not the same as diplomatic relations. Breaking off relations does not withdraw recognition, and recognition does not require an exchange of ambassadors.

Dealing with an entity is not recognising it. Negotiation, trade, membership of the same organisation and participation in the same multilateral treaty do not imply recognition, and States often say so expressly.

Conditional recognition is not conditional. Once given it takes effect, and breach of the condition is a breach of an undertaking, not a ground for treating the recognition as never given.

Withdrawal of recognition of a government is not withdrawal of recognition of the State.

Limits and criticism

The consequences fall on private people who had no say. Whether a marriage, a birth certificate, a company registration or a judgment is valid should not depend on a foreign ministry's political judgment, and the devices courts use to avoid that result are patches on a doctrine that produces the wrong answer.

The de facto and de jure distinction is imprecise. It is a distinction between degrees of confidence dressed as a distinction of kind, and States use the labels inconsistently.

Non-recognition is used as a sanction, which the doctrine cannot really bear. Recognition is supposed to acknowledge facts, and using it to punish makes the legal question turn on unrelated policy, which is the criticism the Estrada doctrine was built on.

Quick revision

Modes. Express or implied; de facto or de jure; conditional or unconditional; individual or collective.

Implied by: a bilateral treaty, full diplomatic relations, a consular exequatur. Not implied by: a multilateral treaty, common membership of an organisation, negotiation, trade contacts, or a vote for admission to the United Nations.

De facto is provisional and readily withdrawn; de jure is final and generally retroactive to the date power was assumed.

Conditional recognition takes effect once given; breach of the condition is a breach of an undertaking.

Collective recognition has never been institutionalised; article 4 admission is not recognition.

Premature recognition is a wrongful act, an unlawful intervention in the parent State's affairs.

Effects internationally: diplomatic relations become possible, bilateral treaties become possible, claims may be exchanged.

Effects in the recognising State's courts: standing to sue, sovereign immunity, validity of legislative and executive acts, and title to State property abroad, with retroactivity on de jure recognition.

Test yourself

1. List the modes of recognition and say which acts imply it.

Recognition may be express or implied, de facto or de jure, conditional or unconditional, and individual or collective. The acts generally treated as implying recognition are the conclusion of a bilateral treaty, the establishment of full diplomatic relations, and the grant of a consular exequatur. Acts not treated as implying it include being parties to the same multilateral convention, common membership of an international organisation, negotiation, unofficial and trade contacts, and voting for admission to the United Nations. Recognition is not lightly implied, and States that wish to avoid it commonly declare that their dealings are not to be taken as recognition.

2. Distinguish de facto from de jure recognition and give three consequences.

De facto recognition acknowledges effective control provisionally, reserving judgment on lawfulness and permanence; de jure recognition acknowledges lawful status and is intended to be final. First, de facto recognition may be withdrawn if the control it acknowledged ceases, while de jure recognition is withdrawn only in grave circumstances. Second, de jure recognition is generally retroactive to the date the authority came to power, so that its earlier acts are validated, while de facto recognition is not, or not to the same extent. Third, full diplomatic relations and the right to claim the State's property in the recognising State ordinarily follow de jure recognition.

3. What are the effects of recognition in the courts of the recognising State?

Four. The recognised State or government may sue there, while an unrecognised one generally may not. It and its property are entitled to sovereign immunity. Its legislative and executive acts within its own territory are given effect, so its marriages, registrations, judgments and transfers of property are treated as valid. And it is entitled to the State's property within the recognising State, including bank accounts and diplomatic premises. De jure recognition operates retroactively to the date power was assumed, validating acts done before recognition was given.

4. Is premature recognition lawful?

No. Recognition given before the entity satisfies the criteria of statehood, in particular while the parent State is still actively resisting a secession, is a wrongful act amounting to an unlawful intervention in the parent State's internal affairs, of which the parent State may complain. It shows that recognition is not a wholly discretionary political act: the discretion is exercised on facts, and it runs out where the facts are plainly absent.

5. What is the effect of breaching a condition attached to recognition?

On the orthodox view, none upon the recognition itself. Recognition once given takes effect, and the condition creates an obligation whose breach is a breach of an undertaking, giving rise to a complaint or to a claim, but not to the treatment of the recognition as void or as never having been given. The point matters because conditions of this kind were common in the recognition of new States in Europe, and the question of what happens when they are not kept has repeatedly arisen.

6. Why do courts treat the acts of an unrecognised authority as valid in some circumstances?

Because the strict rule produces injustice to private people who had no choice in the matter. If the acts of an unrecognised authority were a nullity everywhere, then marriages, births, deaths, company registrations, land transfers and judgments in a whole territory would have no effect abroad, and the population would be punished for a political decision taken elsewhere. Courts therefore distinguish the authority's public and political acts from the private-law acts of daily life, giving effect to the latter, and the doctrine that de jure recognition relates back to the date power was assumed removes the problem entirely once recognition is finally given.

Boundary rivers and lakes. Where a river separates two States the boundary is usually the thalweg, the line of the deepest channel or the main navigable channel, in a navigable river, and the median line in a non-navigable one. The thalweg rule exists so that neither State controls the whole navigable channel.

Airspace

Article 1 of the Chicago Convention 1944 states the rule: the contracting States recognise that every State has complete and exclusive sovereignty over the airspace above its territory. The words complete and exclusive are the point, and they contrast sharply with the sea: there is no right of innocent passage through airspace, so an aircraft needs permission.

Airspace above the territorial sea is included; airspace above the exclusive economic zone and the high seas is not, and is open to all. All of this is [International Air Law].

How high does it go? No agreed boundary. The territorial airspace stops somewhere and outer space begins, and no treaty says where. The usual working figure is the lowest altitude at which a satellite can maintain an orbit, around 100 kilometres, sometimes called the Karman line, and it is a convention rather than a rule. The reason it has never been settled is that neither the air powers nor the space powers gained by settling it.

Article II of the Outer Space Treaty 1967 settles the other side: outer space, including the Moon and other celestial bodies, is not subject to national appropriation by claim of sovereignty, by means of use or occupation, or by any other means. So territory stops before space begins, wherever the line is, and this is [International Space Law].

Things that travel

Ships and aircraft are not territory, and calling them floating or flying territory is an error students make and examiners punish. They have the nationality of a State, dealt with in [Nationality], and the flag State exercises jurisdiction over them. The Lotus case is the authority: the freedom of the seas allows a State to assimilate a ship flying its flag to its own territory for penal purposes, without giving it exclusive jurisdiction over a collision.

Embassies are not territory either. An embassy is in the receiving State's territory. Its premises are inviolable, which is a rule about what the receiving State's officials may do, not a transfer of sovereignty. A child born in a foreign embassy in Delhi is born in India.

What sovereignty over territory means

The classic formulation comes from the case worked in the next chapter: sovereignty in the relations between States signifies independence, and independence in regard to a portion of the globe is the right to exercise therein, to the exclusion of any other State, the functions of a State.

Three practical consequences.

Exclusivity. No other State may perform acts of authority in the territory without consent. That is why the Corfu Channel minesweeping was a violation even though the mines were a menace, and it is worked in [Innocent Passage, and Straits].

Responsibility. With exclusivity comes the duty not to allow the territory to be used for acts contrary to the rights of other States, and the duty to warn of dangers known to exist there. This is [State Responsibility].

It must be maintained. The Island of Palmas award holds that the continuous and peaceful display of territorial sovereignty is as good as a title, and that effectiveness is required not only for acquisition but equally for maintenance.

Limitations on territorial sovereignty

Sovereignty over territory is exclusive; it is not unlimited. Five standing limitations.

Innocent passage through the territorial sea, which the coastal State cannot refuse to ships generally.

Servitudes, rights another State holds over the territory: a right of transit, of fishing, of using a port, or an obligation not to fortify an area, usually created by treaty.

Treaty limitations generally: demilitarisation, neutralisation, base agreements, and the rights other States hold in international rivers and canals.

The rules on the use of force. Territory may not be acquired by force, and the fact that it is territory does not make what happens there nobody else's business.

International concern. Human rights obligations, environmental obligations and the obligation not to cause harm to another State's territory all restrict what a State may do at home.

A worked example

State A and State B are separated by the navigable River Zed. A cargo vessel of State C sails up the river, then out to sea through State A's territorial sea, and an aircraft of State C flies the same route overhead. State A objects to both.

Where is the river boundary? The thalweg, the main navigable channel, unless a treaty or long practice fixes it elsewhere. Each State is sovereign up to that line.

May the ship pass through State A's territorial sea? Yes, provided the passage is innocent. Article 2 makes the territorial sea sovereign territory and expressly subjects that sovereignty to the Convention, and innocent passage is what the Convention provides. State A may regulate the passage but cannot forbid it generally.

May the aircraft fly over the same water? No, not without permission. Airspace above the territorial sea is territorial airspace, and article 1 of the Chicago Convention gives the State complete and exclusive sovereignty over it. There is no innocent passage in the air, and this is the single most useful contrast in the chapter.

Once the ship is fifty miles out, what changes? It is in State A's exclusive economic zone, where State A has sovereign rights over resources but no sovereignty, so navigation is free. The aircraft may fly there too: airspace above the exclusive economic zone is not territorial. Those zones are [The Exclusive Economic Zone] and [The High Seas].

Where does State A's airspace stop going up? Nowhere that any treaty states. It is generally taken to end around the lowest perigee of a satellite orbit, roughly 100 kilometres, and article II of the Outer Space Treaty puts everything above it beyond appropriation.

Distinctions table

What it does NOT mean

A ship is not floating territory. It has the nationality of its flag State, and the flag State's jurisdiction follows from that. Lotus says the assimilation is for penal purposes and is not exclusive.

An embassy is not the sending State's territory. Its premises are inviolable; sovereignty remains with the receiving State.

Sovereignty is not unlimited. Innocent passage, servitudes, treaty limitations, the prohibition of force and obligations of international concern all bind the territorial sovereign.

Territory is not only land. Leaving out internal waters, the territorial sea, the subsoil and the airspace answers a quarter of the question.

Limits and criticism

The upper limit of airspace is genuinely unsettled, more than sixty years after the first satellite, because no State has needed it settled badly enough to accept a rule that constrains it.

The thalweg rule is unstable, because rivers move. Where a boundary river shifts, the boundary may or may not move with it, and the answer depends on whether the change was gradual accretion or a sudden avulsion, which is a distinction taken from the law of property and imported into the law of territory.

Effectiveness sits awkwardly with legality. Palmas makes continuous and peaceful display as good as a title, which is a rule that rewards the State in possession. The modern prohibition on acquiring territory by force pulls the other way, and the two meet in [Acquisition of State Territory].

Quick revision

Territory is the portion of the globe subject to a State's sovereignty: land, subsoil, internal waters, territorial sea with its bed and subsoil, and the airspace above all of them.

UNCLOS article 8: internal waters are the waters landward of the baseline. Sovereignty there is complete and there is no innocent passage.

UNCLOS article 2: sovereignty extends to the territorial sea, its bed and subsoil and the airspace above it, and is exercised subject to the Convention, which is why innocent passage exists.

Chicago Convention article 1: every State has complete and exclusive sovereignty over the airspace above its territory. No innocent passage in the air.

Outer Space Treaty article II: outer space is not subject to national appropriation. The upper limit of airspace is undetermined; the working figure is about 100 km.

Boundary rivers: the thalweg, the main navigable channel, in a navigable river; the median line otherwise.

Ships and aircraft are not territory; they have nationality. Embassies are not territory; their premises are inviolable.

Sovereignty means the right to exercise the functions of a State to the exclusion of any other, and Island of Palmas holds it must be continuously and peacefully displayed, not merely acquired.

Test yourself

1. What does the territory of a State comprise?

The land within its frontiers and the subsoil beneath, its internal waters, its territorial sea together with the bed and subsoil beneath that, and the airspace above all of them. Article 2 of the Convention on the Law of the Sea states the position for the sea and the air above it, article 8 defines internal waters as those on the landward side of the baseline, and article 1 of the Chicago Convention states the rule for airspace.

2. Contrast the position of a foreign ship in the territorial sea with that of a foreign aircraft in the airspace above it.

The ship has a right of innocent passage, which the coastal State may regulate but not generally deny, because article 2 makes the coastal State's sovereignty over the territorial sea subject to the Convention and the Convention confers that right. The aircraft has no corresponding right: article 1 of the Chicago Convention gives every State complete and exclusive sovereignty over the airspace above its territory, and an aircraft may enter only by permission, whether under a bilateral agreement or a general one. The contrast is the clearest illustration that different parts of one territory carry different rules.

3. Is a ship the floating territory of its flag State?

No. A ship has the nationality of the State whose flag it flies, and the flag State exercises jurisdiction on that footing. The Lotus case put it precisely: the freedom of the seas allows a State to assimilate a ship flying its flag to its own territory so far as penal jurisdiction is concerned, without giving it, as regards collisions, any more extended right amounting to exclusive jurisdiction. Territory and nationality are different bases of jurisdiction and the metaphor confuses them.

4. Where does a State's airspace end?

There is no agreed answer, and no treaty fixes it. The usual working figure is the lowest altitude at which a satellite can maintain an orbit, about 100 kilometres, sometimes called the Karman line, but it is a convention among writers rather than a rule of law. What is settled is the position above: article II of the Outer Space Treaty 1967 provides that outer space, including the Moon and other celestial bodies, is not subject to national appropriation by claim of sovereignty, by means of use or occupation, or by any other means.

5. Name four limitations on territorial sovereignty.

The right of innocent passage through the territorial sea, which the coastal State cannot deny to shipping generally. Servitudes, being rights another State holds over the territory such as transit, fishing or port use, or obligations such as not to fortify. Treaty limitations generally, including demilitarisation, neutralisation and rights in international rivers and canals. And the general limitations of international law: the prohibition of the acquisition of territory by force, and obligations of international concern in human rights and the environment, including the duty not to allow the territory to be used for acts contrary to other States' rights.

6. Explain the thalweg and why it is used.

The thalweg is the line of the deepest channel, or in practice the main navigable channel, of a river. Where a navigable river forms the boundary between two States, the boundary follows the thalweg rather than the middle of the river, so that neither State controls the whole navigable channel and both retain access. In a non-navigable river the median line is used instead, since there is no navigation interest to protect.

Why it matters. It is the leading authority on occupation, on the insufficiency of discovery, and on intertemporal law, and its central test decides territorial disputes to this day.

How much authority is enough? Less in a remote and uninhabited place than in a populated one, and the case below is where that is settled.

Facts. Legal Status of Eastern Greenland (Denmark v. Norway), PCIJ Series A/B, No. 53, judgment of 5 April 1933. On 10 July 1931 Norway proclaimed the occupation of a part of eastern Greenland which it called Eirik Raudes Land. Denmark asked the Court to declare the proclamation unlawful and invalid, relying not on any particular act of occupation but on a peaceful and continuous display of State authority going back to the founding of the colonies by Hans Egede in 1721. Norway argued that in the older Danish legislation the word Greenland meant only the colonised area on the west coast. Denmark also relied on a statement of 22 July 1919 by M. Ihlen, the Norwegian Foreign Minister, that Norway would not make difficulties about the Danish claim.

Held. The Norwegian proclamation was unlawful and invalid. A claim to sovereignty based upon continued display of authority involves two elements, each of which must be shown to exist: the intention and will to act as sovereign, and some actual exercise or display of that authority. Legislation is one of the most obvious forms of the exercise of sovereign power, and Norway had not discharged the burden of showing that the Danish measures were confined to the colonies. Bearing in mind the absence of any competing claim by another Power, and the arctic and inaccessible character of the uncolonised parts, the King of Denmark and Norway had displayed authority to an extent sufficient to give a valid claim over the whole of Greenland. Norway was in addition bound by the Ihlen declaration and by engagements implying recognition of Danish sovereignty.

Why it matters. It states the two elements of a title founded on display of authority; it establishes that how much display is needed depends on the character of the territory and on whether anyone else is claiming it; and it is the leading authority for the binding force of a unilateral declaration by a foreign minister, which is one of the things article 38 of the ICJ Statute omits, as [The Sources of International Law] notes.

Terra nullius is now almost empty as a category. There is very little unclaimed land left, and the doctrine's historical use, to treat inhabited lands as legally empty because their inhabitants were not organised as a European State, is one of the passages of this subject's history dealt with in [What International Law Is, and Where It Came From].

Prescription

The acquisition of territory that belonged to another State, by exercising sovereignty over it publicly, peacefully and for a long time, with the acquiescence of the former sovereign.

The difference from occupation is the starting point: occupation begins with land belonging to nobody, prescription with land belonging to somebody else.

Four requirements are usually stated. Possession must be exercised as sovereign, not by permission or by treaty. It must be peaceful, so protest by the other State defeats it. It must be public, so the other State has the chance to object. And it must be prolonged, with no fixed period, since what is long enough depends on the circumstances.

The role of protest is the practical point. A State that protests, and keeps protesting, prevents the possession from being peaceful and so prevents prescription, which is why formal protests are made about situations everybody knows will not change.

Cession

The transfer of territory from one State to another by agreement, usually by treaty. Cession may be by sale, by exchange, by gift or as part of a peace settlement.

Two rules. The transferee takes no more than the transferor had, so a cession of territory subject to a servitude passes it subject to the servitude. And a cession obtained by the unlawful use or threat of force against the ceding State is void: article 52 of the Vienna Convention makes a treaty void if its conclusion has been procured by the threat or use of force in violation of the principles of the Charter, and that is [Validity of Treaties, and Jus Cogens].

Accretion

The addition of territory through natural processes: silt deposited by a river, an island formed in a river or the territorial sea, land raised by volcanic action, or land gained from the sea.

The addition belongs to the State whose territory it accrues to, and no act of appropriation is needed. Where a boundary river changes course, the distinction between gradual accretion, which moves the boundary, and sudden avulsion, which does not, decides the outcome.

Artificial additions. Reclamation from the sea extends the land, but article 11 of the Convention on the Law of the Sea provides that off-shore installations and artificial islands are not to be considered permanent harbour works for the purpose of delimiting the territorial sea, and article 60(8) provides that artificial islands, installations and structures do not possess the status of islands and have no territorial sea of their own. So building does not extend maritime zones, and this is worked in [The Exclusive Economic Zone].

Conquest and subjugation, and why it is gone

The classical mode: territory taken by force in war, and annexed after the defeated State has been subjugated, the annexation being completed by a declaration and by effective possession.

It is no longer lawful, and three instruments say so.

Article 2(4) of the Charter: all Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any State, or in any other manner inconsistent with the Purposes of the United Nations.

Resolution 2625 (XXV): the territory of a State shall not be the object of acquisition by another State resulting from the threat or use of force, and no territorial acquisition resulting from the threat or use of force shall be recognised as legal.

The duty of non-recognition that follows from it, dealt with in [Recognition of States].

So conquest survives in the syllabus as a mode to be described and dated, not as a live route to title. The related earlier step was the Stimson doctrine of 1932 and the Kellogg-Briand Pact of 1928, and the whole prohibition is [The Use of Force and Collective Security].

Plebiscite and adjudication

Plebiscite is a vote of the inhabitants on which State they wish to belong to. It is not by itself a mode of acquisition, since a vote transfers nothing; it is a way of establishing the wishes of the population, which then supports a cession or a grant of independence. Its importance has grown with the principle of self-determination, which Resolution 2625 lists among its seven principles.

Adjudication, meaning the award of territory by a court or tribunal, is likewise not really a mode of acquisition: a tribunal declares which State already has title. Where the parties agree in advance to be bound by an award that allots territory, the transfer takes effect by their agreement, which makes it a form of cession.

A worked example

An uninhabited island, X, lies between State P and State Q. In 1780 explorers of State P sighted and charted it and did nothing more. From 1890 State Q licensed fishing there, collected dues, posted a lighthouse keeper and tried a theft committed on the island in its own courts. State P said nothing until 1975, when it protested and claimed the island by discovery. Oil is now suspected offshore.

Does State P's 1780 sighting give title? No. On Palmas, discovery alone, without any subsequent act, cannot suffice to prove sovereignty. At most it created an inchoate title.

What must an inchoate title do? Be completed within a reasonable period by effective occupation. A hundred and ten years of nothing is not that.

What does State Q have? The continuous and peaceful display of the functions of a State: licensing, revenue, a permanent presence, and the exercise of criminal jurisdiction. That is the strongest evidence there is, and Palmas says such display is as good as a title.

Does State P's protest in 1975 help? It came too late. Protest defeats a claim while the possession is being built; it does not undo eighty-five years of unopposed authority.

How does intertemporal law bear on it? A juridical fact is judged by the law of its own time, so State P's 1780 discovery is judged by the law of 1780, when discovery counted for more. But the continued existence of the right must satisfy the conditions the law has since developed, and by the twentieth century that meant effective occupation.

Change one fact: suppose State Q took the island in 1950 by landing troops and expelling State P's officials. Then prescription fails, because possession was not peaceful; conquest fails, because article 2(4) and Resolution 2625 make acquisition by force unlawful and unrecognisable; and State P's title would survive its dispossession.

Distinctions table

What it does NOT mean

Discovery is not title. It is at most an inchoate title, to be completed within a reasonable period.

Effective occupation does not mean settlement. In remote and barren regions a modest display of authority suffices, which is what Eastern Greenland shows: the Permanent Court there weighed the arctic and inaccessible character of the region and the absence of any rival claim.

Conquest is not a mode of acquisition today. Describing it as one without dating its abolition is the commonest error in this topic.

Artificial islands do not enlarge territory or maritime zones. Article 60(8) says they do not have the status of islands and have no territorial sea of their own.

A plebiscite does not itself transfer territory. It establishes the wishes of the inhabitants, which then supports a cession or independence.

Limits and criticism

The classification adds little. Tribunals decide territorial disputes by weighing the evidence of State activity, and the classical modes function as labels applied afterwards. Palmas is cited far more often than any classification.

Effectiveness rewards possession. A doctrine under which continuous and peaceful display is as good as a title tends to confirm the State that got there and stayed, which was frequently the colonising State, and the intertemporal rule protects titles acquired under a law now repudiated.

The abolition of conquest did not undo earlier conquests. Article 2(4) operates from 1945 and the intertemporal rule judges older acquisitions by older law, so the modern prohibition leaves most historical maps intact. That is a compromise, and it is defended on the ground that reopening every pre-Charter title would produce more conflict than it resolved.

Quick revision

Five classical modes: occupation, prescription, cession, accretion, conquest. Plus plebiscite and adjudication, neither of which transfers territory by itself.

Occupation: of terra nullius, needing intention plus effective exercise of authority. Island of Palmas, (1928) 2 RIAA 829: the continuous and peaceful display of territorial sovereignty is as good as a title; discovery alone cannot suffice; an inchoate title must be completed within a reasonable period; intertemporal law.

Prescription: of another State's territory, by possession as sovereign, peaceful, public and prolonged. Protest defeats it.

Cession: by agreement. The transferee takes no more than the transferor had, and a cession procured by force is void under article 52 VCLT.

Accretion: by natural processes. Gradual accretion moves a river boundary; sudden avulsion does not. UNCLOS article 60(8): artificial islands have no status as islands and no territorial sea.

Conquest is abolished: article 2(4) of the Charter and Resolution 2625, no territorial acquisition resulting from the threat or use of force shall be recognised as legal.

Test yourself

1. Distinguish occupation from prescription.

Occupation applies to terra nullius, territory belonging to no State, and requires the intention to act as sovereign together with the actual exercise of authority. Prescription applies to territory belonging to another State, and requires possession exercised as sovereign, peaceful, public and prolonged, with the acquiescence of the former sovereign. The practical difference is protest: in prescription a maintained protest by the dispossessed State prevents the possession from being peaceful and defeats the claim, whereas in occupation there is by definition no other State to protest.

2. State the facts and holding of the Island of Palmas case.

The Island of Palmas lay between the Philippines and the Netherlands East Indies. The United States claimed it as successor to Spain under the Treaty of Paris 1898, Spain's title resting on sixteenth-century discovery; the Netherlands claimed on a long and continuous exercise of authority through the island's local rulers. Max Huber, as sole arbitrator, awarded it to the Netherlands. He held that the continuous and peaceful display of territorial sovereignty is as good as a title and is a constituent element of it, effectiveness being required for maintenance as well as acquisition; that discovery alone, without any subsequent act, cannot at the present time suffice to prove sovereignty; that an inchoate title of discovery must be completed within a reasonable period by effective occupation and cannot prevail over another State's continuous display; and that by intertemporal law a juridical fact is judged by the law of its own time while the continued existence of a right must satisfy the law as it develops.

3. Is conquest still a mode of acquiring territory?

No. Article 2(4) of the Charter requires all Members to refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any State, and Resolution 2625 (XXV) provides both that the territory of a State shall not be the object of acquisition by another State resulting from the threat or use of force and that no territorial acquisition so resulting shall be recognised as legal. The duty of non-recognition follows. Its ancestors are the Kellogg-Briand Pact 1928 and the Stimson doctrine of 1932.

4. Explain intertemporal law and give the criticism of it.

A juridical fact must be appreciated in the light of the law contemporary with it, and not of the law in force at the time the dispute arises; but the continued existence of the right must satisfy the conditions required by the evolution of the law. So a title acquired in 1700 is tested by the law of 1700, while its survival is tested by the law as it has developed. The criticism is that the first limb preserves titles acquired under rules that have since been repudiated, including colonial titles, and that the second limb is applied gently enough that it rarely disturbs them.

5. Does building an artificial island extend a State's territory?

It adds structures but not maritime entitlement. Article 60(8) of the Convention on the Law of the Sea provides that artificial islands, installations and structures do not possess the status of islands, have no territorial sea of their own, and their presence does not affect the delimitation of the territorial sea, the exclusive economic zone or the continental shelf. Article 11 similarly excludes off-shore installations and artificial islands from being treated as permanent harbour works. Reclamation attached to the coast is different, since it becomes part of the land, but building a structure on a submerged feature generates nothing.

6. Why do modern tribunals rarely decide a territorial dispute by naming a mode of acquisition?

Because the modes are borrowed from Roman property law and overlap in practice, and because the evidence in a real dispute is almost always a long record of activity by both States rather than a single acquisitive act. What tribunals actually do is weigh which State has exercised the functions of a State more continuously and more peacefully, which is the Palmas test, and consider protest, acquiescence and the conduct of the parties. The classical list remains the right answer to a question that asks for it, and it should be given with the observation that the Palmas test is what decides cases.

Whether the new entity is a State is [Recognition of States], and premature recognition of a secession is a wrongful act, dealt with in [Modes and Legal Effects of Recognition].

Abandonment, or dereliction

The one mode with no counterpart in acquisition. A State loses territory by abandoning it, and two elements are required.

The physical fact: the State has withdrawn and exercises no authority.

The intention: the State means to give up sovereignty, not merely to leave for a time.

Both are needed, and the intention is not lightly inferred. This is where the Island of Palmas proposition bites again: a long failure to display authority may be read as abandonment where another State is displaying it instead.

Conquest

Formerly a mode of loss and no longer one. Article 2(4) of the Charter and Resolution 2625 mean a State does not lose title by being defeated, and other States are under a duty not to recognise the acquisition as legal. So a State under occupation retains its sovereignty, and this is one of the most consequential changes the Charter made.

Can India give territory away?

This is the question an Indian examiner is likeliest to ask, and it has a clean constitutional answer.

Article 1 declares that India shall be a Union of States and that the territory of India comprises the territories of the States, the Union territories, and such other territories as may be acquired.

Article 3 empowers Parliament by law to form new States, and to increase or diminish the area of any State, alter its boundaries or change its name. Its language is about internal rearrangement, dividing and redrawing the territory of India among its States, and it is not a power to hand territory to a foreign country.

The settled position is therefore that ceding Indian territory to another State is not an ordinary legislative act under article 3 but requires an amendment of the Constitution under article 368, because it alters the territory of India as defined in article 1 and the First Schedule.

The Constitution (One Hundredth Amendment) Act 2015 is the modern proof of that position and the best illustration available. Dated 28 May 2015, it is described in its own long title as an Act further to amend the Constitution of India to give effect to the acquiring of territories by India and transfer of certain territories to Bangladesh in pursuance of the agreement and its protocol entered into between the Governments of India and Bangladesh. Section 2 defines the acquired territory and the appointed day, and identifies the India-Bangladesh agreement as the agreement concerning the Demarcation of the Land Boundary between India and Bangladesh and Related Matters dated 16 May 1974, together with exchanges of letters of 26 and 30 December 1974, 7 October 1982 and 26 March 1992, and the protocol to that agreement dated 6 September 2011. Its Schedules list the enclaves transferred each way, parcel by parcel, with their areas.

Three points to take from it.

Both directions in one instrument. India acquired territory and transferred territory in the same Act, which shows that the constitutional requirement is about altering the territory of India, not about losing it.

The treaty came first and was not enough. The agreement dates from 1974 and the protocol from 2011; the transfer took effect only when Parliament amended the Constitution in 2015. That is [International Law in Indian Courts] in action: the Union executive may conclude a treaty, and giving it internal effect is a separate step.

An appointed day was needed. Section 2(b) leaves the date to a notification, because demarcation had to be completed first. Cession is a legal act that still requires the ground to be surveyed.

A worked example

State D has for ninety years administered a small plateau claimed by State E. State E protested formally in 1935, 1961 and 1998, and does so again now. State D announces that it is withdrawing its garrison and its administration because the plateau costs more than it yields.

Has State D lost the plateau by prescription to State E? No. Prescription requires possession by the claimant, and State E has never possessed the plateau. State D's title, if it had one, is unaffected by State E's complaints.

Have State E's protests achieved anything? Yes, if State D's own title was itself prescriptive. Repeated protest prevents possession from being peaceful, so State D may never have perfected a title against State E in the first place.

Does the withdrawal amount to abandonment? Only if State D also intends to relinquish sovereignty. Withdrawing a garrison for reasons of cost is the physical element without the mental one, and the intention is not lightly inferred. If State D continues to legislate for the plateau, issue permits or collect any revenue, that is the display of authority Eastern Greenland asks for, and in a remote and difficult place very little suffices.

Suppose State E then moves in and administers the plateau openly for forty years while State D says nothing. Now the elements change places. State E has possession, exercised as sovereign, publicly and at length; State D's silence is acquiescence; and Palmas holds that effectiveness is required for maintenance as well as acquisition. On those facts State D loses.

Suppose instead State E takes the plateau by force. Then nothing is lost. Article 2(4) prohibits the use of force against territorial integrity, Resolution 2625 provides that no territorial acquisition resulting from the threat or use of force shall be recognised as legal, and other States are under a duty not to recognise it. State D remains sovereign over territory it does not control.

Distinctions table

What it does NOT mean

Losing control is not losing title. A State under occupation remains sovereign, because conquest is no longer a mode of acquisition.

Article 3 of the Constitution does not authorise cession to a foreign State. It is a power to rearrange the territory of India among its own States, and a transfer to another country requires an amendment under article 368.

A treaty of cession does not by itself move the boundary in Indian law. The 1974 agreement waited forty-one years for the 2015 amendment.

Self-determination is not a right to secede. Resolution 2625's safeguard clause provides that nothing in it authorises or encourages action which would dismember or impair the territorial integrity or political unity of sovereign and independent States conducting themselves in compliance with equal rights and self-determination and thus possessed of a government representing the whole people belonging to the territory without distinction as to race, creed or colour.

Limits and criticism

Abandonment is almost never proved, because the intention element allows a State to say it never meant to give anything up, and because tribunals are reluctant to find that sovereignty has evaporated into nobody's hands.

The rule against conquest freezes disputes without solving them. A State may hold territory indefinitely without ever acquiring title, and the dispossessed State may hold title indefinitely without ever recovering the territory. The law's answer, that the situation is unlawful and unrecognisable, is correct and does not move anybody off the ground.

Sea level rise has no rule. Whether a State whose land disappears remains a State, and whether its baselines and zones are frozen or recede with the coast, are open questions of real consequence to several members of the United Nations, and the honest answer to an examination question on it is that the law has not yet been made.

Quick revision

Modes of loss: cession, prescription by another State, operation of nature, revolt or secession leading to a new State, abandonment or dereliction, and formerly conquest.

Prescription: the lesson from the other side is to protest and keep protesting. Palmas: effectiveness is required for maintenance as well as acquisition.

Abandonment needs both the physical withdrawal and the intention to relinquish sovereignty.

Conquest is gone: article 2(4) and Resolution 2625. A State under occupation keeps its title.

Secession: no general right; Resolution 2625's safeguard clause: nothing in it authorises action which would dismember or impair the territorial integrity or political unity of States conducting themselves in compliance with equal rights and self-determination and thus possessed of a government representing the whole people belonging to the territory without distinction as to race, creed or colour.

India: article 1 defines the territory; article 3 is a power of internal rearrangement, not of cession to a foreign State; ceding territory requires an amendment under article 368. The Constitution (One Hundredth Amendment) Act 2015, dated 28 May 2015, gave effect to the India-Bangladesh Land Boundary Agreement of 16 May 1974 and its protocol of 6 September 2011, acquiring and transferring enclaves in one instrument, with an appointed day fixed by notification.

Test yourself

1. List the modes by which a State may lose territory.

Cession by agreement; prescription by another State exercising sovereignty publicly, peacefully and for long enough with the first State's acquiescence; the operation of natural forces, distinguishing gradual accretion which moves a river boundary from sudden avulsion which does not; revolt or secession resulting in the emergence of a new State, or a grant of independence; abandonment or dereliction; and, historically, conquest, which article 2(4) of the Charter and Resolution 2625 have removed.

2. What must be shown to establish abandonment?

Two elements. The physical fact that the State has withdrawn and no longer exercises authority, and the intention to relinquish sovereignty rather than merely to leave for a time. The intention is not lightly inferred, and evidence that the State continues to legislate, license or collect revenue will defeat it. Eastern Greenland is relevant to how little activity suffices to show continuing authority in a remote and inaccessible place.

3. Can Parliament cede Indian territory to a foreign State by ordinary law under article 3?

No. Article 1 defines the territory of India, and article 3 empowers Parliament to form new States and to increase or diminish the area of a State, alter its boundaries or change its name, which is a power of internal rearrangement among the States of the Union. Ceding territory to a foreign country alters the territory of India itself and requires an amendment of the Constitution under article 368. The Constitution (One Hundredth Amendment) Act 2015 is the working illustration: it was enacted precisely to give effect to the acquiring of territories from and transfer of territories to Bangladesh.

4. Why did the India-Bangladesh land boundary settlement take from 1974 to 2015?

Because concluding the treaty and giving it effect in Indian law are separate steps. The agreement concerning the Demarcation of the Land Boundary between India and Bangladesh is dated 16 May 1974 and its protocol 6 September 2011, and both were concluded by the Union executive under its treaty-making power. Transferring territory required a constitutional amendment, which came in the Constitution (One Hundredth Amendment) Act 2015 dated 28 May 2015, and the Act left the date of transfer to be appointed by notification because the parcels had first to be demarcated.

5. A State's army is driven out of a province by a neighbour, which then governs it for thirty years. Who has title?

The dispossessed State, unless it has acquiesced. Acquisition by force is unlawful under article 2(4) and unrecognisable under Resolution 2625, so the occupying State acquires no title by conquest. Nor can it acquire by prescription, since prescription requires possession that is peaceful in relation to the other State, and possession taken and held by force is not, particularly where the dispossessed State protests. The result is that title and control are separated, possibly for a long time, and the law's answer is that the situation is unlawful and must not be recognised as legal.

6. Does a State cease to exist if its land is submerged by rising seas?

There is no rule. The criteria of statehood in article 1 of the Montevideo Convention include a defined territory and a permanent population, and the presumption of continuity is strong once statehood exists, so it is arguable that a State survives the loss of its land. Whether its baselines and the maritime zones measured from them are frozen at their charted positions or recede with the coast is equally unsettled, and it matters greatly, since for some States the zones are worth far more than the land. The correct examination answer states the competing considerations and says plainly that the question is open.

Continuity, the position generally taken where a State is dissolved or where territory is transferred between existing States.

The Convention. The Vienna Convention on Succession of States in respect of Treaties 1978 attempts to codify the position, but it has few parties and much of it is regarded as progressive development rather than a statement of custom. Its broad scheme is worth knowing: a newly independent State is not bound to maintain a treaty merely because it was in force for the territory, which is the clean slate; on a transfer of territory between existing States, treaties of the predecessor cease to apply and those of the successor begin to apply to the territory, which is called the moving treaty frontiers rule; and on a uniting or separation of States, treaties in force continue in respect of the territory to which they applied.

Three categories that behave differently, whatever the theory.

Boundary and territorial treaties pass. A treaty establishing a boundary, or a right or obligation attaching to a particular territory such as a right of navigation or an obligation not to fortify, runs with the land. If it did not, every succession would reopen every frontier, and stability of boundaries is the one point on which succession law is firm.

Political treaties do not pass. Treaties of alliance, of neutrality or of friendship are personal to the predecessor and lapse.

Multilateral law-making treaties are the awkward middle. Human rights treaties are increasingly said to pass, on the view that rights already accruing to the inhabitants should not be lost by a change of sovereign, and practice supports this more than doctrine does.

What happens to everything else

Public property. State property situated in the territory passes to the successor. Property outside it is apportioned by agreement, and disputes about foreign bank accounts and embassies are common on a dissolution.

Public debt. The general position is that debts attaching to the territory, particularly localised debts incurred for its benefit, pass to the successor, and that general debts are apportioned equitably. Newly independent States after 1945 pressed the doctrine of odious debts, that debts contracted by a colonial power against the interests of the territory should not pass. It is asserted more often than it is conceded.

Private rights. Contracts, concessions and acquired rights of private persons are in principle respected by the successor, on the reasoning in [Treatment of Aliens and Diplomatic Protection], though a successor may expropriate on the ordinary conditions.

Membership of international organisations. Not inherited. A new State applies for admission in the ordinary way, and for the United Nations that is article 4, requiring a recommendation of the Security Council and a decision of the General Assembly. A continuator State keeps its seat; a successor State applies.

Nationality. The inhabitants generally acquire the nationality of the successor, often with a right of option, which is the point made in [Nationality].

Responsibility for earlier wrongs. The traditional rule is that responsibility does not pass, because responsibility is personal to the wrongdoing State. Where the predecessor has ceased to exist, that leaves the injured State without a respondent, and modern practice has moved towards allowing succession in some cases, particularly where the successor has taken the benefit.

India in 1947

MU's course objectives ask for India's position, and the 1947 settlement is the standard Indian illustration.

India was treated as the continuator, Pakistan as a successor. That was the practical effect of the arrangements made at the time and of the position taken in the United Nations: India retained its seat in the Organization, which it had held since 1945, while Pakistan applied for admission and was admitted as a new Member on 30 September 1947.

The consequences follow from that classification. India continued to be bound by the treaties that had applied to it and continued to hold the assets and liabilities of the former Government of India, subject to the division agreed between the two Dominions. Pakistan, as a new State, took the position of a newly independent State.

The classification was contested and was decided by practice, not by a rule. That is the lesson worth taking: whether an entity is a continuator or a successor is settled by how the international community treats it, above all by what happens to the seat at the United Nations, and there is no test that decides it in advance.

Boundary treaties bound the successors. The boundary settlements of the colonial period continued to bind both Dominions, which is the general rule that boundary and territorial treaties run with the land, and it is why the 1974 agreement dealt with in [Loss of State Territory] was a settlement of an inherited boundary rather than the creation of a new one.

A worked example

State F dissolves. Its territory becomes two new States, G and H, and neither is generally treated as the continuator. State F had: a boundary treaty with State J; a defence alliance with State K; a loan from an international bank spent entirely on a hospital in what is now H; embassies in twelve countries; a seat in the United Nations; and an outstanding claim against it by State L for polluting a river five years ago.

The boundary treaty. Passes to whichever of G and H the boundary now touches. Boundary and territorial treaties run with the land, and this is the firmest rule in the subject.

The defence alliance. Lapses. Political treaties are personal to the State that made them.

The loan. A localised debt, incurred for the benefit of what is now H's territory, so the general position is that it passes to H rather than being apportioned.

The embassies. State property outside the territory, so it is apportioned between G and H by agreement, and in practice by protracted negotiation.

The United Nations seat. Not inherited by either, since neither is the continuator. Both must apply under article 4, needing a recommendation of the Security Council and a decision of the General Assembly.

The pollution claim. On the traditional rule, responsibility does not pass, and State L is left without a respondent because State F no longer exists. Modern practice is less rigid, particularly where a successor took the benefit of the activity complained of, and State L would argue on those lines.

Change the facts: suppose G is universally treated as the continuator of F and only H is new. Then G keeps the seat, the treaties, the property and the responsibility, and H is a successor whose position on each question is decided as above.

Distinctions table

What it does NOT mean

Succession of States is not succession of governments. A change of government leaves the State the same legal person.

The clean slate is not a general rule. It applies to newly independent States; boundary and territorial treaties pass whatever the category.

The 1978 Convention is not settled law. It has few parties, much of it is progressive development, and it should be cited as an attempt at codification rather than as the applicable rule.

Membership of an organisation is not property. It is not inherited, and it is not apportioned.

Limits and criticism

This is the least settled area in the module. The rules are stated in the language of general principle and are in practice worked out by agreement between the States concerned, with the international community ratifying the result.

The classification does the work and has no test. Everything follows from whether an entity is a continuator or a successor, and that is decided politically, chiefly by what happens to the seat at the United Nations.

Odious debts are asserted and not conceded. The doctrine has strong moral force and thin support in practice, and a candidate should say so rather than state it as a rule.

Quick revision

State succession arises where one State replaces another in responsibility for the international relations of territory: cession, secession, decolonisation, merger, dissolution, and historically annexation.

Distinguish succession of States from succession of governments, where the State stays the same legal person, and continuator from successor.

Treaties: three theories, universal succession (rejected), clean slate or tabula rasa (the rule for newly independent States), and continuity. The Vienna Convention on Succession of States in respect of Treaties 1978 codifies but has few parties; its moving treaty frontiers rule applies on a transfer between existing States.

Boundary and territorial treaties pass; political treaties lapse; multilateral law-making treaties, especially human rights treaties, increasingly pass.

Property in the territory passes; property outside is apportioned. Localised debts pass; general debts are apportioned; odious debts are asserted, not settled. Membership of organisations is not inherited: apply under article 4. Responsibility traditionally does not pass.

India 1947: India was treated as the continuator and kept its seat; Pakistan applied and was admitted as a new Member on 30 September 1947. The classification was settled by practice, not by a rule.

Test yourself

1. Distinguish State succession from succession of governments.

State succession arises where one State replaces another in the responsibility for the international relations of territory, so the identity of the State holding the territory changes. Succession of governments arises where the authority representing a State changes irregularly, and there is no succession at all in the technical sense: the State remains the same legal person, so its treaties, debts and responsibility continue unaffected. The two are constantly confused and the consequences are opposite.

2. What are the three theories about the succession of treaties, and which applies to a newly independent State?

Universal succession, borrowed from Roman inheritance, under which the successor takes all rights and duties; the clean slate or tabula rasa doctrine, under which the new State begins free of the predecessor's treaty obligations; and continuity, under which treaties continue to apply to the territory. The clean slate is the general rule for a newly independent State, and it is reflected in the Vienna Convention on Succession of States in respect of Treaties 1978, which provides that such a State is not bound to maintain a treaty merely because it was in force for the territory at the date of succession.

3. Which treaties pass regardless of the category of succession, and why?

Boundary treaties, and treaties creating rights or obligations attaching to particular territory such as rights of navigation or obligations not to fortify. They pass because they run with the land, and because the alternative would reopen every frontier at every change of sovereignty. Stability of boundaries is the firmest rule in this branch of the subject, and it is the one point on which the clean slate doctrine has never been allowed to operate.

4. Does a successor State inherit membership of the United Nations?

No. Membership is not property and is not inherited. A successor State must apply for admission under article 4 of the Charter, which requires it to be a peace-loving State accepting the Charter obligations and able and willing to carry them out, and admission is by decision of the General Assembly upon the recommendation of the Security Council. A continuator State retains the seat it already holds, which is why the classification of an entity as continuator or successor matters so much.

5. Explain the position of India and Pakistan in 1947.

India was treated as the continuator of the pre-independence State and Pakistan as a new State. India therefore retained the seat in the United Nations that it had held since 1945, together with the treaties, assets and liabilities of the former Government of India, subject to the division agreed between the two Dominions. Pakistan applied for admission in the ordinary way and was admitted as a new Member on 30 September 1947, and took the position of a newly independent State. Boundary settlements of the colonial period bound both, on the rule that boundary treaties run with the land. The classification itself was contested and was resolved by practice rather than by any rule.

6. Why is State succession described as the least settled part of this module?

Because there is no widely ratified convention and no consistent body of practice. The 1978 Convention on treaties has few parties and much of it is progressive development. The pivotal question, whether an entity is a continuator or a successor, has no legal test and is answered by how other States treat it, above all by what happens to the seat at the United Nations. And the outcomes in real cases are produced by agreement between the States concerned, negotiated in the shadow of general principles rather than dictated by them.

Held, continued. On criminal jurisdiction the territorial character of criminal law is not an absolute principle of international law and does not coincide with territorial sovereignty, since most systems extend to offences committed abroad. The freedom of the seas allows a State to assimilate a ship flying its flag to its own territory for penal purposes, but as regards collisions this gives no more extended right amounting to exclusive jurisdiction. Since the effects were felt on board the Turkish vessel, the elements of the offence were inseparable and the jurisdictions were concurrent.

Why it matters. Two things, and they pull in different directions. It is the source of the presumption of freedom: a State need not find permission, only an absence of prohibition. And it is the origin of the objective territorial principle, that a State may prosecute where the effects of an act are felt in its territory.

One caution, and it is important. The Lotus rule about collisions at sea was reversed by treaty. Article 97 of the Convention on the Law of the Sea provides that in the event of a collision or any other incident of navigation concerning a ship on the high seas, involving the penal or disciplinary responsibility of the master or any other person in the service of the ship, no penal or disciplinary proceedings may be instituted against such person except before the judicial or administrative authorities either of the flag State or of the State of which such person is a national. So Turkey could not do today what the Court held it entitled to do in 1927. A candidate who states Lotus without that qualification has given a wrong answer to a modern problem.

The five bases

The territorial principle

The primary basis. A State has jurisdiction over everything that happens in its territory, whoever does it.

It has two forms, and the distinction is examinable.

Subjective territoriality: jurisdiction where the act began in the territory.

Objective territoriality: jurisdiction where the act was completed, or its effects were felt, in the territory. Lotus is the classic instance, the effects being felt on board the Turkish vessel, which was assimilated to Turkish territory.

A more aggressive version, the effects doctrine, asserts jurisdiction over conduct wholly abroad that produces substantial effects in the territory, and is used chiefly in competition and securities law. It is contested, because on a wide reading it lets a State regulate the world.

The nationality, or active personality, principle

A State may prescribe for its own nationals wherever they are. Every State does this to some extent, and civil law systems do it broadly.

In India the provision is section 1(5) of the Bharatiya Nyaya Sanhita 2023, which replaced the Indian Penal Code. It applies the Sanhita to any offence committed by (a) any citizen of India in any place without and beyond India, (b) any person on any ship or aircraft registered in India wherever it may be, and (c) any person in any place without and beyond India committing an offence targeting a computer resource located in India. Clause (a) is the nationality principle, clause (b) is the flag and registration rule, and clause (c) is objective territoriality written into a modern statute for the network age. The Explanation adds that offence includes every act committed outside India which, if committed in India, would be punishable under the Sanhita, and the illustration is a citizen who commits murder abroad and may be tried in any place in India where he is found.

Article 245(2) of the Constitution removes the possible objection: no law made by Parliament shall be deemed to be invalid on the ground that it would have extra-territorial operation.

The protective principle

A State may prescribe for acts done abroad by foreigners which threaten its security or its essential governmental functions: counterfeiting its currency, forging its passports, espionage, plotting against its government.

Its justification is necessity: the acts are often lawful where done, and no other State has an interest in punishing them. Its danger is elasticity, since "security" can be stretched to cover political opposition abroad.

The passive personality principle

A State may prescribe for acts done abroad by foreigners against its nationals.

It is the most contested basis. It was resisted for most of the twentieth century, because it exposes a traveller to the law of every country whose nationals he might meet. It has gained ground in one area, terrorism and offences against internationally protected persons, where several conventions require or permit it.

The universality principle

Some offences are so grave, or so hostile to all States, that any State may try them regardless of where they were done, by whom, or against whom.

Piracy is the original and clearest case. Article 105 of the Convention on the Law of the Sea provides that on the high seas, or in any other place outside the jurisdiction of any State, every State may seize a pirate ship or aircraft and arrest the persons and seize the property on board, and that the courts of the State which carried out the seizure may decide upon the penalties to be imposed. That is universal jurisdiction stated in a treaty, and it is worked in [The High Seas].

Modern candidates for universality include war crimes, crimes against humanity, genocide, torture and slavery. Several conventions use the aut dedere aut judicare formula, extradite or prosecute, which produces something close to universality among the parties without asserting it against the world.

The floating island theory

A theory MU asks for by name, and the answer is that it is a discarded explanation, not a rule.

What it said. A ship on the high seas is a floating portion of the territory of the State whose flag she flies, so that acts done on board are done within that State's territory and the territorial principle explains the flag State's jurisdiction over them. The same reasoning was extended to aircraft, and sometimes to embassy premises, which is why the phrase turns up in three different places in a textbook.

Why it was abandoned. It proves too much and explains too little. If a ship were literally territory, then a foreign ship in a port would be a piece of foreign territory inside the coastal State, which no State accepts; the coastal State's jurisdiction over a visiting ship would be inexplicable; and a collision on the high seas between ships of two flags would be an event occurring in two territories at once.

What replaced it. The flag State principle, which is a rule about registration and not about territory. Article 92 of the Convention on the Law of the Sea provides that ships shall sail under the flag of one State only and, save in exceptional cases expressly provided for, shall be subject to its exclusive jurisdiction on the high seas, and article 91 requires a genuine link, as [The High Seas] sets out. Nationality of aircraft works the same way under article 17 of the Chicago Convention in [International Air Law], and so does the position of a space object under article VIII of the Outer Space Treaty in [International Space Law].

The Lotus makes the point. The Permanent Court accepted that what occurs on board a vessel on the high seas is assimilated to the territory of the flag State, and it did not stop there: it held that Turkey could exercise jurisdiction because the effects of the act were felt on board the Turkish vessel, so that both flag States had a claim. A pure floating island theory would have given the French flag State an exclusive answer, which is exactly what the Court refused. Article 97 of the Convention on the Law of the Sea has since reversed the result for collision cases, as [The High Seas] explains, without restoring the theory.

Embassies are the commonest error. Embassy premises are not the territory of the sending State. They are inviolable under the Vienna Convention on Diplomatic Relations, which is a rule about entry and protection and not about title, and [Immunity from Jurisdiction] works it. A child born in an embassy is born in the receiving State.

A worked example

Mr Q, a national of State R, is in State S. He sends a computer virus that disables a hospital in State T, killing a patient who is a national of State U. He also forges State V's currency and, on the voyage home, seizes a yacht on the high seas.

State S, where he acted: subjective territoriality. The act began there.

State T, where the harm landed: objective territoriality, and on a wider view the effects doctrine.

State R, his own State: nationality, or active personality.

State U, the victim's State: passive personality, the contested basis, likelier to be accepted here because the offence is grave.

State V, whose currency he forged: the protective principle, which exists for exactly this.

Every State, for the seizure of the yacht: universality, under article 105 of the Convention on the Law of the Sea, since piracy on the high seas may be tried by any State that seizes.

Now the question that decides the case. Six States may have prescriptive jurisdiction and none of that gets anyone arrested. Enforcement is strictly territorial, so whichever State wants him must either find him in its own territory or ask State S to hand him over, which is [Extradition]. That is why an answer that lists the five bases and stops has answered half the question.

Distinctions table

What it does NOT mean

Lotus does not mean a State may do as it likes. The presumption of freedom applies to prescriptive jurisdiction. Exercising sovereign powers in another State's territory needs a permissive rule, and the Court said so in the same passage.

Lotus is not good law on collisions. Article 97 of the Convention on the Law of the Sea confines penal proceedings after a collision to the flag State or the State of the accused's nationality.

Having jurisdiction is not being allowed to exercise it. Immunity may prevent it, which is [Immunity from Jurisdiction].

Concurrent jurisdiction is normal. Several States commonly have jurisdiction over the same facts, and international law provides no general rule of priority; the question is settled by extradition practice and by comity.

Limits and criticism

The Lotus presumption is out of step with the modern subject. A rule that a State may act unless prohibited was a natural statement of a system built on sovereignty in 1927. In a system with peremptory norms, community obligations and dense treaty regulation, later courts have been noticeably reluctant to restate it.

The effects doctrine invites conflict. If every State may regulate conduct abroad that affects it, businesses face inconsistent commands from several States at once, and there is no rule of priority to resolve them.

Universal jurisdiction is asserted more often than exercised. Prosecutions are rare, evidence is abroad, and the accused is usually not present. The practical instrument is the extradite-or-prosecute clause rather than a general universal jurisdiction.

Quick revision

Three kinds: prescriptive, adjudicative, enforcement. Prescriptive and adjudicative may reach abroad; enforcement is strictly territorial.

S.S. Lotus, PCIJ Series A No. 10 (1927): a State need not find a permissive rule to legislate for acts abroad, only the absence of a prohibition; the territorial character of criminal law is not absolute; effects felt on board the Turkish vessel gave concurrent jurisdiction. Reversed on collisions by UNCLOS article 97, which confines proceedings to the flag State or the State of the accused's nationality.

Five bases: territorial (subjective, where the act began; objective, where the effects were felt), nationality or active personality, protective, passive personality, universality.

India: section 1(5) of the Bharatiya Nyaya Sanhita 2023 applies the Sanhita to offences by (a) a citizen of India abroad, (b) any person on a ship or aircraft registered in India, and (c) any person abroad targeting a computer resource located in India. Article 245(2): no law of Parliament is invalid merely because it has extra-territorial operation.

Piracy: UNCLOS article 105, every State may seize a pirate ship on the high seas and its own courts may decide the penalties.

Aut dedere aut judicare: extradite or prosecute.

Test yourself

1. Distinguish prescriptive, adjudicative and enforcement jurisdiction, and say which is territorial.

Prescriptive jurisdiction is the power to make law applicable to persons, property or conduct; adjudicative jurisdiction is the power of courts to try a case; enforcement jurisdiction is the power to compel by arrest, seizure or execution. Prescriptive and adjudicative jurisdiction may extend beyond the territory on any of the recognised bases. Enforcement jurisdiction is strictly territorial: a State may not perform acts of authority in another State's territory without consent, and the Corfu Channel case holds that respect for territorial sovereignty is an essential foundation of international relations.

2. State the holding in Lotus and the one qualification a modern answer must add.

The Court held that Turkey had not acted contrary to international law in prosecuting the French officer of the watch after a collision on the high seas. International law prohibits a State from exercising its powers in another's territory except under a permissive rule, but does not prohibit its courts from taking cognisance of acts done abroad, so a State need not find permission, only the absence of prohibition; the territorial character of criminal law is not absolute; and because the effects were felt on board the Turkish vessel the jurisdictions were concurrent. The qualification is that article 97 of the Convention on the Law of the Sea has reversed the result for collisions: penal or disciplinary proceedings against the master or another person in the service of the ship may be instituted only before the authorities of the flag State or of the State of that person's nationality.

3. Distinguish subjective from objective territoriality, and give an example of each.

Subjective territoriality gives jurisdiction to the State in whose territory the act began; objective territoriality gives it to the State in which the act was completed or its effects were felt. A man who fires a rifle across a border gives the firing State subjective and the receiving State objective jurisdiction. Lotus is the classic instance of the objective form, the negligence occurring on the French ship and the effects being felt on board the Turkish vessel.

4. On what basis may India prosecute one of its citizens for an offence committed in Dubai?

The nationality or active personality principle. Section 1(5)(a) of the Bharatiya Nyaya Sanhita 2023 applies the Sanhita to any offence committed by any citizen of India in any place without and beyond India, and the illustration to the section is a citizen who commits murder abroad and may be tried in any place in India where he is found. Article 245(2) of the Constitution removes any objection based on extraterritoriality, providing that no law made by Parliament shall be deemed invalid on the ground that it would have extraterritorial operation. India cannot, however, arrest him in Dubai: enforcement is territorial, so it must wait until he is within its reach or seek extradition.

5. What is universal jurisdiction and what is its clearest case?

Jurisdiction over an offence so grave or so hostile to all States that any State may try it regardless of where it was committed, by whom or against whom. Its clearest and oldest case is piracy: article 105 of the Convention on the Law of the Sea provides that on the high seas, or in any place outside the jurisdiction of any State, every State may seize a pirate ship or aircraft, arrest the persons and seize the property on board, and that the courts of the seizing State may decide upon the penalties. Modern candidates include war crimes, crimes against humanity, genocide, torture and slavery, and several conventions use the extradite-or-prosecute formula to achieve much of the same effect among their parties.

6. Why is the passive personality principle the most contested basis?

Because it makes the nationality of the victim, rather than the place of the act or the nationality of the actor, the connecting factor, and so exposes a person to the criminal law of every State whose nationals he might encounter, including States whose law he had no reason to consider. It was resisted for most of the twentieth century for that reason. It has gained acceptance in a narrow field, terrorism and offences against internationally protected persons, where treaties require or permit it and where the alternative is that grave offences go unpunished.

Immunity from execution

A separate and stricter question. A State may lose immunity from adjudication and keep immunity from execution, so that a claimant obtains a judgment and cannot enforce it.

Property used or intended for use for governmental non-commercial purposes, above all diplomatic bank accounts, military property and central bank assets, is generally immune from attachment even where the underlying claim succeeded. That is the practical reason many judgments against States are never satisfied.

Section 86: India's rule

Section 86 of the Code of Civil Procedure 1908 puts the matter on a statutory footing in India, and it is worth knowing closely.

Section 86(1). No foreign State may be sued in any Court otherwise competent to try the suit except with the consent of the Central Government certified in writing by a Secretary to that Government. There is a proviso: a person may, as a tenant of immovable property, sue without such consent a foreign State from whom he holds or claims to hold the property.

Section 86(2). The consent may be given for a specified suit, for several specified suits, or for all suits of a specified class, and may name the court. But it shall not be given unless it appears to the Central Government that the foreign State:

(a) has instituted a suit in the Court against the person desiring to sue it; or

(b) by itself or another, trades within the local limits of the jurisdiction of the Court; or

(c) is in possession of immovable property situate within those limits and is to be sued with reference to that property or for money charged on it; or

(d) has expressly or impliedly waived the privilege accorded to it by the section.

Section 86(3). Except with the consent of the Central Government certified in writing by a Secretary to that Government, no decree shall be executed against the property of any foreign State.

Section 86(4) applies the preceding provisions to the ruler of a foreign State and to the other persons the section names.

Three observations, and they are what an examiner is testing.

The four cases are the restrictive theory in statutory form. Trading, holding land, suing first and waiving are precisely the situations in which the modern law denies immunity. India reached the restrictive position by statute in 1908 and by amendment in 1976, rather than by judicial development.

The gate is political, not judicial. The section makes the Central Government's certified consent the condition, so an Indian court does not decide for itself whether the act was jure imperii or jure gestionis; it asks whether consent has been given.

Execution is separately protected by section 86(3), which is the statutory version of the point made above: a claimant may clear every hurdle and still be unable to enforce.

Diplomatic immunity

A different immunity with a different justification, and merging the two costs marks.

The instrument is the Vienna Convention on Diplomatic Relations 1961, which is very widely ratified and is largely declaratory of custom.

The justification is functional: immunity exists so that a mission can perform its functions, not because the diplomat is important. The Convention's preamble says the purpose of privileges and immunities is not to benefit individuals but to ensure the efficient performance of the functions of diplomatic missions as representing States.

The main incidents. The premises of the mission are inviolable and may not be entered without consent; its archives and documents are inviolable; the person of a diplomatic agent is inviolable and he is not liable to arrest or detention; he enjoys immunity from criminal jurisdiction without exception, and from civil and administrative jurisdiction subject to defined exceptions, chiefly private immovable property, succession, and professional or commercial activity outside his official functions.

Who is a diplomatic envoy. The question is asked in exactly those words, and the Convention's own vocabulary answers it. Article 14 divides heads of mission into three classes: ambassadors or nuncios accredited to Heads of State, and other heads of mission of equivalent rank; envoys, ministers and internuncios accredited to Heads of State; and chargés d'affaires accredited to Ministers for Foreign Affairs. Except as concerns precedence and etiquette, there shall be no differentiation between heads of mission by reason of their class, so the classes are matters of rank and ceremony and not of legal capacity.

The word envoy therefore has a narrow technical sense and a wide ordinary one. Strictly it is the second class in article 14. In ordinary usage, and in the examination question, it means any diplomatic agent, which the Convention defines as the head of the mission or a member of the diplomatic staff, that is the staff having diplomatic rank. A mission's members fall into three groups whose immunities differ: the diplomatic staff, the administrative and technical staff, and the service staff.

What a mission is for, article 3. The functions of a diplomatic mission consist, inter alia, in representing the sending State; protecting in the receiving State the interests of the sending State and of its nationals, within the limits permitted by international law; negotiating with the Government of the receiving State; ascertaining by all lawful means conditions and developments in the receiving State and reporting thereon; and promoting friendly relations and developing economic, cultural and scientific relations.

Article 3 is the justification of article 29 and the rest. Immunity exists because those functions cannot be performed by someone liable to arrest, and the words by all lawful means in paragraph (d) are the line between diplomacy and espionage.

Two limits worth knowing. Immunity is from jurisdiction and not from liability: the obligation to obey the law remains, and the diplomat can be tried at home. And immunity may be waived by the sending State, not by the diplomat, and the waiver must be express.

Persona non grata. The receiving State's real remedy is not the courts but article 9 of the Convention: it may at any time and without having to explain its decision notify the sending State that a member of the mission is persona non grata, whereupon he must be recalled or his functions terminated.

Immunity of international organisations is different again and is functional in the same way: article 105 of the Charter gives the United Nations in the territory of each Member such privileges and immunities as are necessary for the fulfilment of its purposes, and gives representatives of Members and officials of the Organization such privileges and immunities as are necessary for the independent exercise of their functions. That is the provision behind [Subjects of International Law].

A worked example

The Republic of Ruritania, through its embassy in Delhi, does four things. It buys ten thousand tonnes of wheat from an Indian trader and does not pay. It refuses to pay rent on the flat it leases for its cultural attache. Its ambassador's car injures a pedestrian. And it revokes the visa of an Indian businessman, ruining his contract.

The wheat. A commercial act, jure gestionis on the nature test. Under section 86(2)(b) the Central Government may consent to a suit because Ruritania trades within the local limits, and the restrictive theory says immunity should not apply. Without the certified consent, though, the suit cannot proceed.

The flat. If the Indian claimant is the tenant, the proviso to section 86(1) lets him sue the foreign State from whom he holds without consent. Here Ruritania is the tenant and the Indian is the landlord, so the proviso does not help him, and he needs consent, which section 86(2)(c) permits where the State is in possession of immovable property within the limits and is sued with reference to it.

The car. This is diplomatic immunity, not State immunity, and the two must not be run together. The ambassador is immune from criminal jurisdiction without exception, and from civil jurisdiction save in the defined cases, which do not cover a road accident in the course of his duties. The pedestrian's practical routes are a waiver by Ruritania, a claim on compulsory motor insurance, or a request that the ambassador be declared persona non grata under article 9.

The visa. A sovereign act, jure imperii on any test: deciding whom to admit is the exercise of governmental authority. Immunity applies, none of the four cases in section 86(2) is satisfied, and the businessman's remedy is diplomatic rather than judicial.

And if he wins the wheat case? Section 86(3) still stands in his way: no decree shall be executed against the property of a foreign State except with the Central Government's certified consent, and embassy accounts are the paradigm of property immune from execution.

Distinctions table

What it does NOT mean

Immunity is not absence of jurisdiction. The court has jurisdiction and is barred from exercising it. That is why waiver works: you cannot waive a jurisdiction the court never had.

Immunity is not exemption from the law. A diplomat must obey Indian law; he cannot be tried in India for breaking it. The Convention says so, and the sending State may prosecute him.

Section 86 is not a discretion to be generous. Sub-section (2) says consent shall not be given unless one of the four cases appears, so the Government's power to consent is bounded.

The restrictive theory is not a rule that States can always be sued for money. The nature of the act decides, and immunity from execution survives separately.

Limits and criticism

The nature and purpose tests do not always separate cleanly. Buying boots is commercial; buying boots for an army in wartime is arguable; and the choice of test decides the case rather than following from it.

The claimant is often left without a remedy. Where the act is sovereign, or where the property is immune from execution, the individual injured by a State has no forum. That is the standing objection to the whole doctrine, and its answer, that the remedy is diplomatic protection by the claimant's own State, depends on that State choosing to act.

Immunity for grave breaches is contested. Whether a State can claim immunity in respect of torture or other serious violations of peremptory norms has been litigated repeatedly in national and international courts, and the answer that has generally prevailed is that immunity is procedural and is not displaced by the gravity of the alleged breach. The argument continues.

Quick revision

Par in parem non habet imperium: an equal has no authority over an equal. Immunity bars the exercise of a jurisdiction that exists.

Absolute theory, superseded by the restrictive theory: acta jure imperii attract immunity, acta jure gestionis do not. The nature test generally prevails over the purpose test.

Immunity from execution is separate and stricter; property for governmental non-commercial purposes stays immune.

Section 86 CPC 1908: no foreign State may be sued except with the consent of the Central Government certified in writing by a Secretary; proviso, a tenant may sue without consent. Consent shall not be given unless the State (a) has sued first, (b) trades within the limits, (c) possesses immovable property within the limits and is sued about it, or (d) has waived. Section 86(3): no decree executed against a foreign State's property without the same consent.

Diplomatic immunity: Vienna Convention on Diplomatic Relations 1961, justification functional. Premises, archives and person inviolable; criminal immunity absolute; civil immunity with exceptions for private immovable property, succession and outside professional or commercial activity. Waiver by the sending State, express. Article 9: persona non grata, no reasons required.

Article 105 of the Charter: the United Nations enjoys such privileges and immunities as are necessary for the fulfilment of its purposes.

Test yourself

1. Distinguish acta jure imperii from acta jure gestionis and give the test.

Acta jure imperii are acts done in the exercise of sovereign authority, such as legislating, expelling a foreigner or issuing a visa, and they attract immunity. Acta jure gestionis are acts of a private or commercial character, such as buying goods, chartering a ship or borrowing money, and they do not. The two competing tests are the nature test, which looks at the character of the act itself, and the purpose test, which looks at the object for which it was done. The nature test generally prevails, because a State can attribute a public purpose to almost anything and the purpose test would therefore swallow the exception.

2. Set out the scheme of section 86 of the Code of Civil Procedure.

By section 86(1) no foreign State may be sued in a court otherwise competent except with the consent of the Central Government certified in writing by a Secretary, subject to a proviso allowing a tenant of immovable property to sue the foreign State from whom he holds without such consent. By section 86(2) the consent may be given for a specified suit, several specified suits or a class of suits, and may name the court, but shall not be given unless it appears that the foreign State has itself sued the intending plaintiff in that Court, trades within the local limits, possesses immovable property within those limits and is to be sued with reference to it or for money charged on it, or has expressly or impliedly waived the privilege. By section 86(3) no decree may be executed against the property of a foreign State without the same certified consent. Section 86(4) extends the provisions to the ruler of a foreign State.

3. Why is immunity from execution treated separately from immunity from suit?

Because they protect different things and are lost at different points. Immunity from suit protects the State from being judged; immunity from execution protects the State's property from being taken. A State may submit to a court, or fall within one of the exceptions, and still resist attachment of property used or intended for governmental non-commercial purposes, such as embassy accounts, military assets and central bank reserves. Section 86(3) of the Code of Civil Procedure states the point in Indian law. The practical consequence is that a successful claimant may hold an unenforceable judgment.

4. Is diplomatic immunity the same as State immunity?

No. State immunity belongs to the State and its property, rests on sovereign equality expressed in par in parem non habet imperium, and is now restrictive. Diplomatic immunity belongs to the mission and its agents, rests on a functional justification stated in the preamble to the Vienna Convention on Diplomatic Relations 1961, that privileges and immunities are not to benefit individuals but to ensure the efficient performance of the functions of missions, and gives absolute immunity from criminal jurisdiction with defined exceptions in civil matters. The receiving State's remedy against a diplomat is not the courts but a declaration of persona non grata under article 9.

5. A foreign State's trade office in Mumbai breaks a supply contract. Advise the Indian supplier.

The act is commercial, so on the restrictive theory it is acta jure gestionis and immunity should not apply. In Indian law the supplier cannot simply sue: section 86(1) requires the consent of the Central Government certified in writing by a Secretary. He should apply for that consent, relying on section 86(2)(b), since the State trades within the local limits of the court's jurisdiction, and on any express waiver in the contract, which section 86(2)(d) covers. If he obtains consent and succeeds, he must then confront section 86(3), which bars execution against the State's property without further certified consent, and property used for governmental non-commercial purposes will in any event be protected.

6. "Immunity denies a remedy to the very people international law says it protects." Discuss.

The criticism has force. Where the act complained of is sovereign, or where the State's property is immune from execution, the injured individual has no forum, and the doctrine operates most harshly on those least able to bear it. The answers are three. Immunity is procedural rather than substantive: it bars the exercise of jurisdiction and does not deny that a wrong has been done, and the State remains internationally responsible. The restrictive theory has removed immunity from precisely the commercial dealings in which private parties most often deal with States. And the individual's route is diplomatic protection by his own State, which is real but depends on that State choosing to act, and is dealt with in [Treatment of Aliens and Diplomatic Protection]. Whether immunity should yield to allegations of grave breaches of peremptory norms remains contested, and the view that has generally prevailed is that it does not.

In India the rule is in section 31(c) of the Extradition Act 1962: a fugitive criminal shall not be surrendered unless provision is made by the law of the foreign State, or in the extradition treaty with it, that he shall not be tried in that State for an offence other than the extradition offence in relation to which he is surrendered, any lesser offence disclosed by the facts proved for the purposes of securing his surrender, or the offence in respect of which the Central Government has given its consent.

The political offence exception

A person is not surrendered for an offence of a political character. This is the oldest and the most litigated condition.

In India, section 31(a) of the Extradition Act 1962 provides that a fugitive criminal shall not be surrendered if the offence in respect of which his surrender is sought is of a political character, or if he proves to the satisfaction of the magistrate or court before whom he is produced, or of the Central Government, that the requisition or warrant for his surrender has in fact been made with a view to try or punish him for an offence of a political character.

Notice that the section covers two situations: the offence really is political, and the offence is not political but the request is a pretext. The second is the harder to prove and the more important.

What counts as political has never been defined. The usual distinction is between a purely political offence, such as treason, sedition or espionage, which is clearly within the exception, and a relative political offence, an ordinary crime such as murder committed in a political context, which is the contested category. Tribunals have variously asked whether the act was committed in the course of a political disturbance, whether it was directed at the machinery of the State, and whether the means were proportionate to the political end.

The exception has been narrowed by treaty. Modern conventions on terrorism, hijacking and attacks on internationally protected persons commonly provide that the offences they cover are not to be regarded as political for extradition purposes, which is the international community's answer to the abuse of the exception.

The time bar

Surrender is refused where prosecution is barred by lapse of time. Section 31(b) of the Indian Act puts it this way: a fugitive criminal shall not be surrendered if prosecution for the offence is, according to the law of that State or country, barred by time.

Non-extradition of nationals

Many States, chiefly in the civil law tradition, refuse to extradite their own nationals, on the view that a State owes its nationals protection and that its own courts should try them. Common law States generally do extradite their nationals.

The refusal is usually paired with the duty to prosecute at home, so that the fugitive is not simply protected.

Other standing refusals

Military offences are generally excluded. Fiscal offences were traditionally excluded and increasingly are not. The death penalty and the risk of torture or of an unfair trial are now common grounds of refusal, either under the extradition treaty or under the requested State's human rights obligations, and they are frequently satisfied by assurances from the requesting State.

The Indian machinery

The Extradition Act 1962, Act 34 of 1962, dated 15 September 1962 and brought into force on 5 January 1963, governs.

Section 2 contains the definitions, including extradition offence and fugitive criminal, which the Act defines as a person accused or convicted of an extradition offence within the jurisdiction of a foreign State, including a person who is an accomplice.

Section 3 empowers the Central Government by notified order to apply the Act to a foreign State, which is the mechanism by which an extradition treaty is given effect in Indian law. That is [International Law in Indian Courts] operating in a concrete field: the treaty is made by the executive, and the Act plus the notified order are what makes it work in an Indian court.

Section 31 contains the restrictions on surrender set out above.

The process runs through a magistrate's inquiry and ends with an order of the Central Government, so an Indian extradition has both a judicial and an executive stage, and the fugitive may resist at both.

A worked example

Mr Y is wanted in State Z for the murder of a police officer during an anti-government demonstration, and separately for embezzling public funds three years earlier. He is arrested in Mumbai. State Z, with which India has a notified extradition arrangement, requests his surrender for the murder.

Double criminality. Murder is an offence in both States, so this condition is satisfied. Embezzlement likewise, but nothing has been requested about it yet.

Is the murder a political offence? This is the real question. It is not a purely political offence like treason; it is an ordinary crime committed in a political context, so it falls in the contested category of relative political offences. The court will consider whether it was committed in the course of a political disturbance, whether it was directed at the machinery of the State, and whether the means bore any proportion to the political end. Killing a police officer at a demonstration is very often held not to be political, because the victim was performing an ordinary public function and the act was not directed at overthrowing the government.

Is the request a pretext? Section 31(a) gives Mr Y a second string: he may prove to the magistrate or to the Central Government that the requisition has in fact been made with a view to trying or punishing him for a political offence. Evidence of State Z's treatment of other demonstrators would go here.

Time bar. Section 31(b) asks whether prosecution is barred by time under State Z's law. On these facts it is not.

If he is surrendered, can State Z try him for the embezzlement? Not without more. That is the rule of speciality in section 31(c): he may be tried only for the extradition offence, for a lesser offence disclosed by the facts proved for the purposes of securing his surrender, or for an offence to which the Central Government has consented. State Z must ask India for consent.

Suppose the murder carries the death penalty in State Z and India seeks assurances. That is now standard practice, and surrender is commonly made conditional on an assurance that the penalty will not be imposed or not carried out.

Distinctions table

The distinction matters because deportation has repeatedly been used to achieve extradition without its conditions, a practice sometimes called disguised extradition, and courts have criticised it for exactly that reason.

What it does NOT mean

There is no general duty to extradite. The duty comes from a treaty. Without one, a refusal is lawful.

Extradition is not automatic once a treaty exists. The conditions must be satisfied and, in India, both a magistrate and the Central Government must be satisfied.

The political offence exception does not protect terrorism. Modern conventions expressly remove the offences they cover from the category.

Speciality is not a technicality. Without it, every other condition could be evaded by asking for one offence and trying another.

Limits and criticism

The political offence exception has no definition and never has had one. Its content is decided case by case, which makes it unpredictable and, in a politically charged case, difficult to distinguish from a decision on the merits of the requesting State's government.

The system is slow and easily defeated. Extradition proceedings take years, run through several levels of court and end in an executive decision, and a fugitive with resources can extend them further.

Aut dedere aut judicare is only as good as the prosecution that follows. A State that declines to extradite and then prosecutes without energy satisfies the letter of the obligation and defeats its purpose, and no mechanism examines the quality of the prosecution.

Quick revision

Extradition is the formal surrender of a person by the requested State to the requesting State for trial or punishment. It exists because enforcement jurisdiction is territorial.

No general duty to extradite; the obligation is treaty-based. Where there is no extradition, many conventions impose aut dedere aut judicare.

Conditions: double criminality; the rule of speciality; the political offence exception; the time bar; non-extradition of nationals in many civil law States; and exclusions for military and, formerly, fiscal offences, plus refusal for the death penalty, torture or an unfair trial.

India: the Extradition Act 1962, Act 34 of 1962, in force 5 January 1963. Section 2 defines extradition offence and fugitive criminal; section 3 lets the Central Government apply the Act to a foreign State by notified order; section 31 contains the restrictions: (a) political character, or a requisition made with a view to trying or punishing for an offence of a political character; (b) prosecution barred by time under that State's law; (c) speciality.

Distinguish extradition from deportation, and note the criticism of disguised extradition.

Test yourself

1. Why is there no general duty to extradite, and what fills the gap?

Because extradition requires one State to use its coercive machinery for another's benefit, and nothing in customary international law obliges it to do so; a refusal is an exercise of sovereignty and is lawful. The gap is filled first by bilateral and multilateral extradition treaties, which create the obligation between their parties, and second by the formula aut dedere aut judicare in conventions on terrorism, hijacking, torture and similar offences, which leaves the requested State the choice of extraditing or prosecuting but not of doing nothing.

2. Explain double criminality and the rule of speciality.

Double criminality requires that the conduct be an offence in both the requesting and the requested State, though not necessarily under the same name or with the same penalty; its purpose is that a State should not imprison and surrender a person for conduct its own law permits. Speciality requires that the surrendered person be tried only for the offence for which he was surrendered, and section 31(c) of the Extradition Act 1962 states it in Indian law, permitting also a lesser offence disclosed by the facts proved for the purposes of securing surrender and an offence to which the Central Government has consented. Without speciality, every other condition of extradition could be evaded by requesting one offence and trying another.

3. State the political offence exception as it appears in Indian law.

Section 31(a) of the Extradition Act 1962 provides that a fugitive criminal shall not be surrendered if the offence in respect of which his surrender is sought is of a political character, or if he proves to the satisfaction of the magistrate or court before whom he is produced, or of the Central Government, that the requisition or warrant for his surrender has in fact been made with a view to trying or punishing him for an offence of a political character. It therefore covers both the genuinely political offence and the pretextual request.

4. Distinguish a purely political offence from a relative political offence.

A purely political offence is directed against the State itself and has no ordinary criminal character, such as treason, sedition or espionage; it plainly falls within the exception. A relative political offence is an ordinary crime, such as murder or arson, committed in a political context or with a political motive, and it is the contested category. Tribunals ask whether the act was committed in the course of a political disturbance, whether it was directed at the machinery of the State, and whether the means bore a reasonable proportion to the political end, and an attack on an ordinary public servant performing an ordinary function is generally held not to be political.

5. Distinguish extradition from deportation and explain why the distinction is abused.

Extradition is the surrender of a person at the request of another State, for trial or punishment, subject to double criminality, speciality, the political offence exception and, in India, a magistrate's inquiry and an order of the Central Government. Deportation is the removal of an unwanted foreigner under the removing State's own immigration law, at nobody's request and with far fewer protections. The abuse, sometimes called disguised extradition, is to deport a person to the State that wants him, thereby achieving the surrender without any of extradition's conditions, and courts have criticised it precisely because it circumvents protections the legislature deliberately created.

6. How does an extradition treaty become effective in an Indian court?

By notification. The treaty is concluded by the Union executive under its treaty-making power, which requires no parliamentary approval. Section 3 of the Extradition Act 1962 then empowers the Central Government by notified order to apply the Act to a foreign State, and it is the Act together with that order, not the treaty by itself, that an Indian court applies. This is the general Indian position on treaties, worked out in [International Law in Indian Courts], appearing in a concrete field.

Non-refoulement is the operative rule, because it does not require a State to grant asylum; it forbids sending the person back. That is a duty owed to the individual, and it is the one real qualification of the sheltering State's discretion.

India is not a party to the 1951 Convention or the 1967 Protocol, and has no refugee statute. It has nevertheless hosted very large refugee populations, dealing with them under the Foreigners Act and by executive decision, and it is widely argued that non-refoulement binds India as customary international law. That last proposition should be stated as an argument, because it is one.

Diplomatic asylum

The problem. A person takes refuge in a foreign embassy inside the very State whose authorities want him. If the embassy may shelter him, the territorial State's jurisdiction has been defeated inside its own territory.

The rule. Diplomatic asylum is not generally recognised in international law. The premises of a mission are inviolable, so the territorial State's agents may not enter without the head of mission's consent, but inviolability is a rule about entry and not a right to shelter fugitives from the local law.

The leading authority is the case MU's syllabus does not name here but which decides the question.

Facts. Asylum Case (Colombia v. Peru), ICJ Reports 1950, page 266, decided 20 November 1950. On 3 October 1948 a military rebellion broke out in Peru and was suppressed the same day. Victor Raul Haya de la Torre, head of the American People's Revolutionary Alliance, was prosecuted for instigating and directing it. On 3 January 1949 the Colombian Ambassador in Lima granted him asylum in the embassy, qualified him as a political offender, and asked Peru for a safe-conduct to let him leave the country. Peru refused, saying he had committed common crimes. The two States agreed by an Act signed at Lima on 31 August 1949 to submit the dispute to the Court.

Held. By fourteen votes to two, Colombia was not entitled to qualify unilaterally, in a manner binding on Peru, the nature of the offence. The Bolivarian Agreement of 1911 recognised asylum in accordance with the principles of international law, and those principles do not entail a right of unilateral qualification; the Havana Convention of 1928 conferred no such right expressly or by implication; and the Montevideo Convention of 1933 had not been ratified by Peru. As to a regional American custom, Colombia had not proved a constant and uniform practice of unilateral qualification as a right of the State of refuge and an obligation upon the territorial State, because the facts disclosed too much contradiction and fluctuation. By fifteen votes to one, Peru was not bound to deliver a safe-conduct. By fifteen votes to one the Court rejected Peru's contention that Haya de la Torre was accused of common crimes, noting that the only count against him was military rebellion, which is not in itself a common crime. By ten votes to six, the requirements for asylum under the Havana Convention were not satisfied when it was granted: asylum could not be an obstacle to proceedings instituted by legal authorities operating in accordance with the law, and may intervene against the action of justice only where arbitrary action is substituted for the rule of law, which had not been shown.

Why it matters. Three propositions come out of it. The State granting diplomatic asylum has no right to decide unilaterally, binding on the territorial State, that the offence is political. The territorial State is under no duty to grant a safe-conduct. And diplomatic asylum protects against arbitrary action, not against the ordinary operation of the courts. Read together, those propositions leave diplomatic asylum with very little content in general international law, and explain why it survives mainly as a Latin American regional practice founded on treaty.

The two compared

A worked example

Mr B, a national of State C, leads a protest that turns violent. A police officer dies. Mr B runs into the embassy of State D in State C's capital and asks for asylum. State D's ambassador declares him a political refugee and asks State C for a safe-conduct to the airport. State C refuses and demands he be handed over. Mr B's brother, meanwhile, flies to State D and claims asylum there.

The brother, in State D's own territory. This is territorial asylum, and it is straightforward. State D may grant it as an incident of its territorial sovereignty and State C has no legal claim. If State C requests extradition, State D may refuse, and the political offence exception in [Extradition] would be the natural ground.

Mr B, in the embassy. This is diplomatic asylum, and the Asylum case governs. State D has no right to qualify the offence unilaterally so as to bind State C. State C is under no obligation to issue a safe-conduct. And asylum is not an obstacle to proceedings instituted by legal authorities operating in accordance with the law; it may intervene against justice only where arbitrary action is substituted for the rule of law.

Must State C's police enter the embassy? They may not. Article 22 of the Vienna Convention on Diplomatic Relations makes the premises inviolable and the agents of the receiving State may not enter without the head of mission's consent, as [Immunity from Jurisdiction] sets out. So the position is a standoff, and standoffs of exactly this kind have lasted for years.

What are State C's remedies? It may refuse the safe-conduct indefinitely. It may declare the ambassador persona non grata under article 9. It may break off relations. What it may not do is force the embassy.

Change the facts: State C's courts have been abolished and its opponents are being shot without trial. Now the Court's own qualification bites: asylum may intervene against the action of justice where arbitrary action is substituted for the rule of law. State D's position becomes far stronger, and this is the one situation in which diplomatic asylum has a settled justification.

What it does NOT mean

There is no individual right to be granted asylum. Article 14 of the Universal Declaration gives a right to seek and to enjoy asylum, not to receive it, and the Declaration is a resolution rather than a treaty.

Inviolability of premises is not a right of asylum. It stops the territorial State entering; it does not give the mission a power to shelter.

Asylum is not refugee status. Asylum is what a State grants. Refugee status is a status defined by the 1951 Convention, carrying the non-refoulement obligation in article 33, and it binds the parties whether or not they choose to grant asylum.

Non-refoulement is not a duty to admit. It is a duty not to return a person to a territory where his life or freedom would be threatened on a Convention ground, which is a narrower and more workable obligation.

Limits and criticism

The law protects States and not people. Territorial asylum is a right of the sheltering State; the individual's only real protection is non-refoulement, and that binds only parties to the Refugee Convention unless it is customary.

Diplomatic asylum is unsettled and produces standoffs. After the Asylum case the sheltering State cannot compel a safe-conduct and the territorial State cannot enter the embassy, so the person may remain for years, which serves nobody.

India's position is anomalous. It hosts very large refugee populations and is party to neither the Convention nor the Protocol, so protection rests on executive discretion under the Foreigners Act and on the argument that non-refoulement is customary. That argument is respectable and it is not a statute.

Quick revision

Asylum is protection granted by a State against the jurisdiction of another. Territorial asylum is granted in the sheltering State's own territory and follows from territorial sovereignty; diplomatic asylum is granted in its embassy inside the territorial State and derogates from that State's sovereignty.

Article 14 of the Universal Declaration: everyone has the right to seek and to enjoy asylum from persecution, not to be granted it, and not where prosecution genuinely arises from non-political crimes or from acts contrary to the purposes and principles of the United Nations.

Refugee Convention 1951, article 33, non-refoulement: no contracting State shall expel or return a refugee to the frontiers of territories where his life or freedom would be threatened on a Convention ground, subject to the security and serious-crime exception. India is a party to neither the Convention nor the 1967 Protocol.

Asylum Case (Colombia v. Peru), ICJ Reports 1950, page 266: the sheltering State has no right of unilateral qualification binding on the territorial State; the territorial State owes no duty to grant a safe-conduct; and asylum is not an obstacle to proceedings by legal authorities operating in accordance with the law, intervening only where arbitrary action is substituted for the rule of law. Military rebellion is not in itself a common crime.

Diplomatic asylum is not generally recognised; article 22 inviolability of mission premises is a rule about entry, not a power to shelter.

Test yourself

1. Distinguish territorial from diplomatic asylum.

Territorial asylum is granted by a State within its own territory and is an incident of territorial sovereignty, so no other State can complain of it. Diplomatic asylum is granted in an embassy or other premises situated within the territory of the State from which the person is fleeing, and it therefore derogates from that State's sovereignty and removes a person from the jurisdiction of the courts of the territory in which he committed the offence. Territorial asylum is generally recognised in international law; diplomatic asylum is not, and survives mainly as a Latin American practice founded on regional treaties.

2. State the three propositions in the Asylum case.

First, the State granting asylum is not entitled to qualify unilaterally, in a manner binding on the territorial State, the nature of the offence; neither the Bolivarian Agreement of 1911 nor the Havana Convention of 1928 conferred such a right, the Montevideo Convention of 1933 was not binding on Peru, and no regional custom was proved because the practice disclosed too much contradiction and fluctuation. Second, the territorial State is under no obligation to deliver a safe-conduct. Third, asylum cannot be an obstacle to proceedings instituted by legal authorities operating in accordance with the law, and may intervene against the action of justice only in cases where arbitrary action is substituted for the rule of law.

3. Does an individual have a right to asylum?

No, or not in the sense usually assumed. Article 14 of the Universal Declaration of Human Rights confers a right to seek and to enjoy asylum from persecution, and a proposal to confer a right to be granted asylum was not accepted; the Declaration is in any event a General Assembly resolution and not a treaty. The individual's real protection is article 33 of the Refugee Convention 1951, the principle of non-refoulement, which does not require a State to grant asylum but forbids it to expel or return a refugee to the frontiers of territories where his life or freedom would be threatened on a Convention ground.

4. Explain non-refoulement and its exception.

Article 33(1) of the Refugee Convention 1951 provides that no contracting State shall expel or return a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of race, religion, nationality, membership of a particular social group or political opinion. Article 33(2) excepts a refugee whom there are reasonable grounds for regarding as a danger to the security of the country in which he is, or who, having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community. It is a duty owed to the individual and it is the one real qualification on a State's freedom to decide whom to shelter.

5. What is India's position on refugees?

India is not a party to the Convention relating to the Status of Refugees 1951 or to its 1967 Protocol, and has no dedicated refugee statute. Refugees are dealt with under the Foreigners Act and by executive decision, and India has in practice hosted very large refugee populations over long periods. It is widely argued that non-refoulement binds India as a rule of customary international law and, on the reasoning in [International Law in Indian Courts], custom is applied by Indian courts without legislation provided it does not conflict with an Act of Parliament. That argument should be presented as an argument, because it is contested and not settled by statute.

6. A fugitive is inside a foreign embassy and the territorial State demands his surrender. What is the legal position?

A standoff, and the law produces it. The mission's premises are inviolable under article 22 of the Vienna Convention on Diplomatic Relations, so the territorial State's agents may not enter without the head of mission's consent, and forcing entry would be a serious breach. But on the Asylum case the sending State has no right to qualify the offence unilaterally so as to bind the territorial State, and the territorial State is under no duty to issue a safe-conduct out of the country. The territorial State's remedies are to refuse a safe-conduct indefinitely, to declare the ambassador persona non grata under article 9, or to break off relations. The one situation in which the sheltering State's position is strong is where arbitrary action has been substituted for the rule of law, which is the qualification the Court itself stated.

Two things the Articles deliberately leave out, and an examiner rewards a candidate who notices.

Damage is not an element. Article 2 requires attribution and breach and says nothing about injury. Whether damage is needed depends on the primary rule: a treaty may require harm, and many do not.

Fault is not an element. There is no general requirement of intention or negligence. Again it depends on the primary rule. The older writers argued for a general fault requirement and the Articles do not adopt one.

Attribution: articles 4 to 11

A State is an abstraction. It acts through people, and attribution is the set of rules deciding whose acts count as the State's.

Article 4: State organs. The conduct of any State organ is attributable, whether the organ exercises legislative, executive, judicial or any other functions, whatever its position in the organisation of the State, and whether it is an organ of the central government or of a territorial unit. So the acts of a State legislature, a State police force and a district court are all India's acts internationally. Federal structure is no answer: a State cannot plead that the wrong was done by a province.

Article 5: entities exercising governmental authority. The conduct of a person or entity which is not an organ but is empowered by the law of the State to exercise elements of governmental authority is attributable, provided it was acting in that capacity. This covers a privatised prison, a delegated regulator, a private airline exercising immigration powers.

Article 6: organs placed at the disposal of a State. Conduct of an organ lent by one State to another is attributable to the borrowing State if it is acting in the exercise of that State's governmental authority.

Article 7: excess of authority. The conduct of an organ, or of a person or entity empowered to exercise governmental authority, is attributable even if it exceeds its authority or contravenes instructions. This is the ultra vires rule and it is important: a soldier who disobeys orders still engages the State, because otherwise every State could disclaim every wrong by pointing to a standing order against it.

Article 8: direction or control. The conduct of a person or group is attributable if they are in fact acting on the instructions of, or under the direction or control of, the State. How much control is required has been litigated at length, and the Articles do not settle it.

Article 9: absence or default of official authority. Conduct of a person or group exercising elements of governmental authority in the absence or default of the official authorities, in circumstances calling for their exercise, is attributable. This is the collapsed-State case.

Article 10: insurrectional movements. The conduct of an insurrectional movement which becomes the new government is attributable to the State, and so is the conduct of a movement which succeeds in establishing a new State.

Article 11: acknowledgment and adoption. Conduct not otherwise attributable is nevertheless attributable if and to the extent that the State acknowledges and adopts the conduct as its own. That article was written out of the case below.

The case that made article 11

Facts. United States Diplomatic and Consular Staff in Tehran (United States v. Iran), ICJ Reports 1980, page 3, judgment of 24 May 1980. On 4 November 1979 militants attacked and occupied the United States Embassy in Tehran and took its diplomatic and consular staff hostage; the Consulates at Tabriz and Shiraz were also attacked. The United States instituted proceedings on 29 November 1979 and the Court indicated provisional measures on 15 December 1979. Iran did not appear. Iranian authorities afterwards described the Embassy as a centre of espionage, declared the hostages would remain under arrest until the former Shah and his property were returned, and forbade all negotiation.

Held. Iran had violated and was still violating obligations owed to the United States, those violations engaged its responsibility, the hostages were to be released and the premises restored, and Iran was under an obligation to make reparation. The Court divided the events into two phases. In the first phase the initial attack was not directly imputable to Iran; but Iran was fully aware of its obligations under the Vienna Convention on Diplomatic Relations 1961, articles 22(2), 24, 25, 26, 27 and 29, and under the Vienna Convention on Consular Relations 1963, had the means at its disposal to perform them, and completely failed to do so. In the second phase, once organs of the Iranian State had given approval to the acts complained of and decided to perpetuate them as a means of pressure on the United States, those acts were transformed into acts of the Iranian State: the militants became agents of that State, which itself became internationally responsible for their acts. Iran's allegation that the United States had carried out criminal activities in Iran was no defence, because diplomatic law itself provides the remedies of breaking off diplomatic relations and declaring members of a mission persona non grata.

Why it matters. It is the clearest illustration of the two ways a State becomes responsible for what private persons do. It failed to prevent, which is an omission of its own and a breach of a duty of protection. And it afterwards adopted, which turned the private acts into its own. Article 11 of the ILC Articles is that second holding in statutory form.

Breach: articles 12 to 15

Article 12. There is a breach of an international obligation when an act of that State is not in conformity with what is required of it by that obligation, regardless of its origin or character. Origin means treaty, custom or general principle; character means bilateral or multilateral.

Article 13. An act does not constitute a breach unless the State is bound by the obligation at the time the act occurs. That is the intertemporal principle applied to responsibility, and it is the counterpart of the rule in [Acquisition of State Territory].

Article 14. Extension in time. A breach by an act not having a continuing character occurs at the moment the act is performed; a breach having a continuing character extends over the whole period during which the act continues and remains not in conformity; and a breach of an obligation to prevent a given event occurs when the event occurs and extends over the whole period during which the event continues.

Article 15. A breach consisting of a composite act occurs when the action or omission occurs which, taken with the others, is sufficient to constitute the wrongful act.

Responsibility for the acts of another State: articles 16 to 19

Article 16. A State which aids or assists another in the commission of an internationally wrongful act is responsible if it does so with knowledge of the circumstances and the act would be wrongful if committed by it.

Article 17. A State which directs and controls another in the commission of a wrongful act is responsible on the same conditions.

Article 18. A State which coerces another to commit an act is responsible if the act would, but for the coercion, be wrongful and the coercing State acts with knowledge of the circumstances.

Article 19 provides that the chapter is without prejudice to the responsibility of the State which commits the act and of any other State.

The duty that Corfu Channel states

One primary rule appears so often in responsibility problems that it belongs here.

Facts. Corfu Channel Case (United Kingdom v. Albania), ICJ Reports 1949, page 4, judgment of 9 April 1949. On 22 October 1946 two British destroyers struck mines in a swept channel in Albanian waters in the North Corfu Strait; forty-five officers and sailors were killed and forty-two wounded. On 12 and 13 November the British Navy swept the channel against Albania's expressed refusal and cut twenty-two moored mines.

Held. By eleven votes to five, Albania was responsible and owed compensation. The Court did not find that Albania laid the mines or connived at their laying: a charge of such gravity requires a degree of certainty not reached. It held instead that the minefield could not have been laid without Albania's knowledge, and that knowledge carried a duty to notify shipping and to warn the ships passing on 22 October; nothing was attempted, and those grave omissions engaged Albania's responsibility. On proof, a State victim of a wrong committed inside another State's exclusive control must be allowed more liberal recourse to inferences of fact and circumstantial evidence, which carries special weight when based on a series of facts linked together and leading logically to a single conclusion. The Court separately held that the British sweep violated Albanian sovereignty and could not be justified as intervention or self-help.

Why it matters here. Responsibility can rest on an omission, and knowledge of a danger in one's own territory creates a duty to act. It is also the leading authority on the standard of proof where the evidence lies inside the respondent State, which is a problem in almost every responsibility case.

A worked example

A mob in State M attacks the embassy of State N, burns cars and injures staff. State M's police, warned twice, stay away. The next day State M's foreign minister says on television that the mob expressed the people's just anger and that the embassy will not be protected until State N changes its policy. Two weeks later State M's own army demolishes the embassy's outbuilding.

The mob's attack. Not attributable under articles 4 to 8: a mob is not an organ, exercises no governmental authority, and acts on nobody's instructions.

But State M is still responsible, and this is the Tehran first-phase reasoning. It was under a primary duty to protect the mission, its police were warned, it had the means, and it did nothing. The omission is its own conduct under article 4, and article 2 requires only attribution and breach.

The minister's statement. Now article 11 operates. If the State acknowledges and adopts the conduct as its own, the mob's acts become the State's, which is precisely what the Court held in Tehran when organs of the State approved and decided to perpetuate.

The army's demolition. Attributable directly under article 4, the army being a State organ. If the soldiers acted against orders, article 7 still attributes it, because conduct in an official capacity is attributable even where it exceeds authority or contravenes instructions.

State M says its own law authorised all of it. Article 3 answers that: characterisation is governed by international law and is not affected by the characterisation of the same act as lawful by internal law.

State M says State N's diplomats were spying. The Tehran answer applies: diplomatic law is a self-contained regime with its own remedies, breaking off relations and persona non grata, and the alleged activities are no defence.

Proof. Most of the evidence is inside State M. Corfu Channel allows State N a more liberal recourse to inferences of fact and circumstantial evidence, given special weight where a series of linked facts leads logically to a single conclusion.

Distinctions table

What it does NOT mean

Damage is not required. Article 2 lists attribution and breach only. Whether injury is needed depends on the primary rule.

Fault is not required. There is no general requirement of intention or negligence in the Articles.

A federal State cannot blame its provinces. Article 4 attributes the conduct of an organ of a territorial unit to the State.

An ultra vires act is still the State's. Article 7 is explicit, and the contrary rule would let every State disclaim every wrong.

The Articles are not a treaty. They are the Commission's text, commended by the General Assembly, and authoritative because much of their content is custom.

Limits and criticism

Article 8's threshold of control is unsettled. How much direction or control makes a private group's conduct the State's has divided international tribunals, and the Articles record the disagreement rather than resolving it. It is the single most litigated question in the law of attribution.

The absence of a fault requirement is disputed. Writers in the older tradition argued that responsibility should require fault, and the Articles' answer, that it depends on the primary rule, is accurate and leaves the question to be fought again under every primary rule.

The scheme presumes a bilateral relationship between a wrongdoing State and an injured State, which fits a boundary dispute and fits obligations owed to everybody far less well. That is why articles 40, 41 and 48, dealt with in the next chapter, had to be added.

Quick revision

ILC Articles on Responsibility of States for Internationally Wrongful Acts 2001: not a treaty, largely custom, and secondary rules throughout.

Article 1: every internationally wrongful act of a State entails its international responsibility. Article 2: two elements, conduct attributable to the State and constituting a breach of an international obligation. Article 3: characterisation is governed by international law, unaffected by internal law.

No damage requirement and no fault requirement in the Articles themselves.

Attribution: article 4 organs, including any territorial unit; 5 entities exercising governmental authority; 6 organs lent by another State; 7 ultra vires conduct still attributable; 8 direction or control; 9 absence or default of official authority; 10 insurrectional movements that become the government; 11 acknowledgment and adoption.

Breach: 12 non-conformity whatever the origin or character; 13 the obligation must be in force at the time; 14 continuing and preventive breaches; 15 composite acts.

Involvement in another State's act: 16 aid or assistance, 17 direction and control, 18 coercion, 19 without prejudice.

Tehran, ICJ Reports 1980, page 3: failure to protect in phase one; and in phase two, once organs of the State approved and decided to perpetuate, the acts were transformed into acts of the Iranian State and the militants became agents of that State. Diplomatic law is a self-contained regime.

Corfu Channel, ICJ Reports 1949, page 4: responsibility for an omission, knowledge creating a duty to warn, and a more liberal recourse to inferences and circumstantial evidence where the evidence lies within the respondent's control.

Test yourself

1. State the two elements of an internationally wrongful act.

Article 2 of the ILC Articles provides that there is an internationally wrongful act of a State when conduct consisting of an action or omission is attributable to the State under international law and constitutes a breach of an international obligation of the State. Attribution and breach are therefore the only two elements. Damage and fault are not required by the Articles, and whether either is needed depends on the content of the primary rule alleged to have been broken.

2. Are the acts of a State's police force in one of its provinces attributable to the State?

Yes. Article 4 attributes the conduct of any State organ, whether it exercises legislative, executive, judicial or any other functions, whatever its position in the organisation of the State, and whether it is an organ of the central government or of a territorial unit of the State. A federal State cannot answer an international claim by pointing to the division of powers in its own constitution, and article 3 independently prevents it from relying on the characterisation of the act as lawful under internal law.

3. A soldier disobeys standing orders and shoots a foreign diplomat. Is the State responsible?

Yes. Article 7 provides that the conduct of an organ of a State, or of a person or entity empowered to exercise elements of governmental authority, shall be considered an act of the State under international law if the organ, person or entity acts in that capacity, even if it exceeds its authority or contravenes instructions. The rule exists because the contrary position would let every State escape responsibility by pointing to an instruction that had been disobeyed.

4. Explain the two phases of the Tehran case and the rule each produced.

In the first phase, the militants who seized the Embassy on 4 November 1979 were not organs of Iran and their attack was not directly imputable to it; Iran was nevertheless responsible because it was fully aware of its obligations of protection under the Vienna Conventions, had the means to perform them, and completely failed to do so. That is responsibility for an omission of the State's own. In the second phase, once organs of the Iranian State approved the acts and decided to perpetuate them as a means of pressure, those acts were transformed into acts of the Iranian State and the militants became its agents. That is the rule now in article 11 of the ILC Articles: conduct is attributable if and to the extent that the State acknowledges and adopts it as its own.

5. Can a State plead its own law as a defence to an international claim?

No. Article 3 of the ILC Articles provides that the characterisation of an act of a State as internationally wrongful is governed by international law, and is not affected by the characterisation of the same act as lawful by internal law. Article 32 states the same for the consequences of responsibility, and article 27 of the Vienna Convention on the Law of Treaties states it for treaty performance. If it were otherwise every State could legislate itself out of every obligation.

6. What does Corfu Channel add to the law of responsibility?

Two things. First, that responsibility may rest on an omission: Albania was not shown to have laid the mines or connived at their laying, but the minefield could not have been laid without its knowledge, and knowledge carried a duty to notify shipping and warn the vessels passing, which it did not discharge. Second, a rule of proof: where the wrong is committed within the exclusive territorial control of the respondent State, the victim must be allowed a more liberal recourse to inferences of fact and circumstantial evidence, and such indirect evidence carries special weight where it rests on a series of facts linked together and leading logically to a single conclusion.

Article 27 states the consequences of invoking one: it is without prejudice to compliance with the obligation once the circumstance no longer exists, and without prejudice to the question of compensation for material loss caused by the act.

The case that decided necessity

Facts. Gabcikovo-Nagymaros Project (Hungary/Slovakia), ICJ Reports 1997, page 7, judgment of 25 September 1997. Hungary and Czechoslovakia concluded a treaty on 16 September 1977 for a system of locks on the Danube. In 1989 Hungary suspended and then abandoned the works for which the treaty made it responsible, citing ecological dangers. Czechoslovakia prepared an alternative, Variant C, from November 1991 and put it into operation in October 1992 by unilaterally damming and diverting the Danube on its own territory. Hungary notified termination of the Treaty on 19 May 1992. Czechoslovakia was later dissolved and Slovakia claimed to succeed.

Held. Hungary was not entitled to suspend and abandon the works in 1989; Czechoslovakia was entitled to prepare Variant C in November 1991 but not to put it into operation in October 1992; Hungary's notification did not terminate the Treaty, which remained in force; and Slovakia became a party as successor. On necessity, the Court held that a state of necessity is a ground recognised by customary international law for precluding the wrongfulness of an act not in conformity with an international obligation, that it can be accepted only on an exceptional basis, and that the conditions in the Commission's draft reflect customary law: an essential interest of the State threatened by a grave and imminent peril, the act being the only means of safeguarding it, and the act not seriously impairing an essential interest of the State towards which the obligation exists. On the facts Hungary could not rely on it. The Court added that even where a state of necessity is found, it is not a ground for the termination of a treaty; it may only exonerate a State from responsibility for failing to implement one.

On countermeasures, the Court held that the diversion of the Danube was not a lawful countermeasure because it was not proportionate, and that a duty to mitigate damage might found a calculation of damages but could not justify an otherwise wrongful act. It also rejected impossibility of performance under article 61 of the Vienna Convention and fundamental change of circumstances, and held that newly developed norms of environmental law were relevant to the Treaty's implementation.

Why it matters. It is the leading modern authority on necessity, on the proportionality of countermeasures, and on the crucial distinction between an excuse for non-performance and a ground for termination. That last distinction is the one students miss: necessity got Hungary nowhere on the treaty, and could at most have excused its conduct.

The content of responsibility: articles 28 to 39

Article 28 introduces the legal consequences. Article 29: the consequences do not affect the continued duty of performance of the obligation breached. Article 30: the responsible State is under an obligation to cease the act if it is continuing, and to offer appropriate assurances and guarantees of non-repetition if circumstances so require.

Article 31: reparation. The responsible State is under an obligation to make full reparation for the injury caused, injury including any damage, whether material or moral. Article 32: irrelevance of internal law, the counterpart of article 3. Article 33 defines the scope of the obligations in that Part.

Article 34: forms of reparation. Full reparation shall take the form of restitution, compensation and satisfaction, either singly or in combination.

Article 35: restitution. To re-establish the situation which existed before the wrongful act was committed, provided it is not materially impossible and does not involve a burden out of all proportion to the benefit.

Article 36: compensation. For the damage caused so far as it is not made good by restitution, covering any financially assessable damage including loss of profits so far as established.

Article 37: satisfaction. For injury not made good by restitution or compensation. It may consist in an acknowledgment of the breach, an expression of regret, a formal apology or another appropriate modality, and it must not be out of proportion to the injury or take a form humiliating to the responsible State. The Corfu Channel case, worked in [State Responsibility], is the classic instance: the Court's declaration that the British sweep violated Albanian sovereignty was itself held to constitute appropriate satisfaction.

Article 38: interest. Payable when necessary to ensure full reparation. Article 39: contribution to the injury. In determining reparation, account shall be taken of the contribution to the injury by wilful or negligent action or omission of the injured State or any person or entity in relation to whom reparation is sought.

The standard behind all of it is Chorzow, worked in [General Principles of Law Recognised by Civilised Nations]: reparation must as far as possible wipe out all the consequences of the illegal act and re-establish the situation which would, in all probability, have existed if that act had not been committed. Articles 31 and 34 to 37 are that sentence turned into a scheme.

Serious breaches: articles 40 and 41

The Articles create a special regime for the gravest wrongs, and it is the answer to the criticism that the scheme is otherwise purely bilateral.

Article 40 applies the chapter to a serious breach by a State of an obligation arising under a peremptory norm of general international law, a breach being serious if it involves a gross or systematic failure by the responsible State to fulfil the obligation.

Article 41 gives the consequences: States shall cooperate to bring the breach to an end through lawful means; no State shall recognise as lawful a situation created by such a breach, nor render aid or assistance in maintaining it. That duty of non-recognition is the one already met in [Recognition of States].

Who may invoke: articles 42 to 54

Article 42: the injured State. A State is entitled as an injured State to invoke responsibility if the obligation breached is owed to it individually, or to a group or the international community and the breach specially affects it or is of such a character as radically to change the position of all the other States to which the obligation is owed.

Articles 43 to 47 deal with notice of claim, admissibility, loss of the right to invoke by valid waiver or acquiescence, and pluralities of injured and of responsible States. Article 44 is where nationality of claims and exhaustion of local remedies sit, and they are worked in [Treatment of Aliens and Diplomatic Protection].

Article 48: invocation by a State other than an injured State. This is the article that answers Barcelona Traction's erga omnes passage. A State other than an injured State may invoke responsibility if the obligation breached is owed to a group of States including it and is established for the protection of a collective interest of the group, or if it is owed to the international community as a whole. Such a State may claim cessation, assurances of non-repetition, and performance of the obligation of reparation in the interest of the injured State or of the beneficiaries.

Countermeasures, articles 49 to 54. These are the self-help this system has instead of a police force, and they are tightly bounded.

Article 49: object and limits. An injured State may take countermeasures only to induce compliance, and they must be limited to the non-performance for the time being of obligations towards the responsible State, and must as far as possible be taken in a way that permits the resumption of those obligations.

Article 50: obligations not affected. Countermeasures shall not affect the obligation to refrain from the threat or use of force, obligations for the protection of fundamental human rights, obligations of a humanitarian character prohibiting reprisals, or other obligations under peremptory norms, and the State must continue to perform dispute settlement obligations and respect the inviolability of diplomatic and consular agents, premises, archives and documents.

Article 51: proportionality. Countermeasures must be commensurate with the injury suffered, taking into account the gravity of the wrongful act and the rights in question. This is the article Gabcikovo applied when it held the diversion of the Danube disproportionate.

Article 52: conditions. Before taking countermeasures the injured State must call on the responsible State to perform and notify it of the decision, offering to negotiate, though urgent countermeasures may be taken to preserve rights.

Article 53: termination. Countermeasures shall be terminated as soon as the responsible State has complied.

Article 54 preserves the position of States other than an injured State taking lawful measures.

Articles 55 to 59 are the saving clauses: 55 lex specialis, so the Articles yield to a special regime; 56 questions not regulated remain governed by customary law; 57 responsibility of international organisations is untouched; 58 individual responsibility is untouched; 59 the Charter prevails.

A worked example

State P dams a river, cutting the flow into State Q and destroying its fisheries. State Q, without notice, seizes State P's merchant ships in its ports and expels State P's ambassador's family.

Is State P responsible? Yes, if damming in breach of a treaty or of the customary rule on shared watercourses is attributable and a breach, which is [State Responsibility].

Can State P plead necessity? Only on the Gabcikovo conditions in article 25: an essential interest, a grave and imminent peril, the act being the only means, and no serious impairment of State Q's essential interest. Water shortage may be an essential interest; the requirement that damming be the only means is where such pleas usually fail; and destroying State Q's fisheries is a serious impairment. And necessity, if made out, would excuse the conduct and would not release State P from the treaty.

Are State Q's seizures lawful countermeasures? Test them against articles 49 to 53. Object: they must aim to induce compliance, not to punish, and seizing ships permanently would not permit resumption, contrary to article 49. Notice: article 52 requires State Q to call on State P to perform and to notify its decision, and State Q gave none. Proportionality: article 51 requires them to be commensurate with the injury, and Gabcikovo held a disproportionate response unlawful.

Expelling the ambassador's family? Article 50 forbids countermeasures affecting the inviolability of diplomatic agents, premises, archives and documents. That measure is unlawful whatever the provocation, and it is the clearest single error in the problem.

What must State P do if it is responsible and has no excuse? Article 30: cease, and give assurances of non-repetition if circumstances require. Article 31: full reparation. Article 35: restitution first, so removing the dam if not materially impossible and not out of all proportion. Article 36: compensation for financially assessable damage including lost profits so far as established. Article 37: satisfaction for what money cannot cover. Article 38: interest where needed. Article 39: reduced to the extent State Q contributed by its own wilful or negligent conduct.

Suppose the damming amounted to a gross and systematic breach of a peremptory norm. Then articles 40 and 41 add a further layer: all States must cooperate to end it by lawful means, none may recognise the resulting situation as lawful, and none may aid or assist in maintaining it. And under article 48 a State other than State Q could invoke responsibility and claim cessation.

Distinctions table

What it does NOT mean

A circumstance precluding wrongfulness is not a termination. Article 27 says compliance resumes once the circumstance ends, and Gabcikovo says necessity is not a ground for terminating a treaty.

Countermeasures are not reprisals in the old sense. Article 50 bars force, human rights obligations, humanitarian obligations prohibiting reprisals, peremptory norms and diplomatic inviolability.

Satisfaction is not punishment. Article 37 requires it not to be out of proportion or humiliating to the responsible State.

Article 48 is not a general right of action. It permits a non-injured State to claim cessation, assurances and reparation in the interest of the injured State or the beneficiaries, not compensation for itself.

Limits and criticism

Necessity is stated so narrowly that it almost never succeeds, which is deliberate, since a wide necessity would let any State escape any obligation by asserting an emergency. The cost is that a State facing a genuine emergency has very little room.

Countermeasures favour the strong. The State able to hurt the other is the State able to induce compliance, and the conditions in articles 49 to 53 regulate the form of self-help without changing who can use it.

The consequences of a serious breach are thin. Article 41 requires cooperation to end the breach through lawful means and imposes duties of non-recognition and non-assistance, and it creates no enforcement machinery. Against a determined State it produces a legal position and not a remedy.

Quick revision

Six circumstances precluding wrongfulness: 20 consent, 21 self-defence, 22 countermeasures, 23 force majeure, 24 distress, 25 necessity. 26: none of them excuses a breach of a peremptory norm. 27: performance resumes when the circumstance ends, and compensation for material loss is unaffected.

Gabcikovo-Nagymaros, ICJ Reports 1997, page 7: necessity is customary, exceptional, and requires an essential interest, a grave and imminent peril, the act being the only means, and no serious impairment of the other State's essential interest; and it is not a ground for terminating a treaty. Variant C was not a lawful countermeasure because it was not proportionate.

Content: 29 continued duty of performance; 30 cessation and assurances of non-repetition; 31 full reparation for material and moral injury; 32 irrelevance of internal law; 33 scope; 34 restitution, compensation and satisfaction; 35 restitution unless materially impossible or out of all proportion; 36 compensation including lost profits; 37 satisfaction, not disproportionate or humiliating; 38 interest; 39 contribution to the injury.

Chorzow standard: reparation must wipe out all the consequences of the illegal act and re-establish the situation which would, in all probability, have existed had it not been committed.

Serious breaches: 40 gross or systematic failure under a peremptory norm; 41 cooperate to end it, do not recognise it as lawful, do not aid in maintaining it.

Invocation: 42 the injured State; 44 admissibility, nationality of claims and local remedies; 45 loss of the right; 48 a non-injured State may invoke for a collective interest or an obligation owed to the international community as a whole.

Countermeasures: 49 only to induce compliance and reversible; 50 never force, fundamental human rights, humanitarian obligations prohibiting reprisals, peremptory norms or diplomatic inviolability; 51 commensurate with the injury; 52 demand and notice first, urgent measures excepted; 53 terminate on compliance; 54 measures by others.

Savings: 55 lex specialis, 56 customary law otherwise, 57 organisations, 58 individuals, 59 the Charter.

Test yourself

1. List the six circumstances precluding wrongfulness and the limit on all of them.

Consent under article 20; self-defence under article 21; countermeasures under article 22; force majeure under article 23; distress under article 24; and necessity under article 25. The limit is article 26: nothing precludes the wrongfulness of an act which is not in conformity with an obligation arising under a peremptory norm of general international law. Article 27 adds that invoking one of them is without prejudice to compliance once the circumstance ceases and to the question of compensation for material loss.

2. State the conditions for necessity and explain why Hungary failed.

Article 25 permits necessity only where the act is the only way for the State to safeguard an essential interest against a grave and imminent peril and does not seriously impair an essential interest of the State towards which the obligation exists or of the international community; and it is excluded where the obligation rules it out or the State has contributed to the situation. The Court in Gabcikovo held these conditions reflect customary law and that necessity can be accepted only on an exceptional basis. Hungary failed because it could not show that suspending and abandoning the works was the only means available to it. The Court added that even a proved state of necessity would not have terminated the 1977 Treaty; it could only have exonerated Hungary from responsibility for failing to implement it.

3. Distinguish force majeure, distress and necessity.

Force majeure under article 23 is an irresistible force or unforeseen event beyond the State's control making performance materially impossible: there is no choice at all. Distress under article 24 is a situation in which the author of the act has no other reasonable way of saving his own life or the lives of persons in his care: there is a choice, but no reasonable alternative, and the interest at stake is human life. Necessity under article 25 is a deliberate weighing by the State of an essential interest against a grave and imminent peril, where the act is the only means: the State chooses to breach. All three are barred where the State has contributed to the situation.

4. What are the forms of reparation, and what standard governs them?

Article 34 provides that full reparation shall take the form of restitution, compensation and satisfaction, singly or in combination. Restitution under article 35 re-establishes the situation existing before the act, unless materially impossible or involving a burden out of all proportion. Compensation under article 36 covers financially assessable damage, including loss of profits so far as established, so far as not made good by restitution. Satisfaction under article 37 covers what the other two cannot, by acknowledgment, regret or apology, and must not be disproportionate or humiliating. The standard behind all of them comes from Factory at Chorzow: reparation must as far as possible wipe out all the consequences of the illegal act and re-establish the situation which would in all probability have existed had it not been committed.

5. When are countermeasures lawful?

They must be taken by an injured State only to induce the responsible State to comply, must be limited to the non-performance for the time being of obligations towards it and be so far as possible reversible, under article 49. They must not affect the obligation to refrain from the threat or use of force, obligations protecting fundamental human rights, humanitarian obligations prohibiting reprisals, or peremptory norms, and must respect dispute settlement obligations and the inviolability of diplomatic and consular agents, premises, archives and documents, under article 50. They must be commensurate with the injury suffered, taking into account the gravity of the act and the rights in question, under article 51. The injured State must first call on the responsible State to perform and notify its decision, under article 52, and must terminate them once the responsible State complies, under article 53. Gabcikovo shows the proportionality requirement being applied: the diversion of the Danube was not a lawful countermeasure because it was not proportionate.

6. Can a State that has suffered no injury bring a claim?

Yes, within limits. Article 48 permits a State other than an injured State to invoke responsibility where the obligation breached is owed to a group of States including it and is established for the protection of a collective interest of the group, or where it is owed to the international community as a whole. That is the ILC's response to the passage in Barcelona Traction distinguishing obligations towards the international community as a whole, which are the concern of all States, from those arising in the field of diplomatic protection. What such a State may claim is cessation, assurances and guarantees of non-repetition, and performance of the obligation of reparation in the interest of the injured State or of the beneficiaries, and not compensation for itself.

Denial of justice

The commonest form the wrong takes. It is not simply losing a case.

The usual elements are a refusal of access to the courts, an unreasonable delay, a manifestly unjust judgment, a failure to enforce a judgment, or a procedure so defective as not to amount to a trial. What is required is a defect in the administration of justice as a system, and a mere error of law or fact by a court is not enough.

The two conditions

Article 44 of the ILC Articles makes both conditions of admissibility: the responsibility of a State may not be invoked if the claim is not brought in accordance with any applicable rule relating to the nationality of claims, or if the claim is one to which the rule of exhaustion of local remedies applies and any available and effective local remedy has not been exhausted.

Nationality of claims

The injured person must be a national of the claiming State. That is what makes the claim the State's own.

Two refinements. The nationality must ordinarily exist both at the date of the injury and at the date of the claim, which is called the continuous nationality rule. And the nationality must be effective, which is [Nationality] and the Nottebohm requirement of a genuine link.

Exhaustion of local remedies

The alien must first pursue the remedies available in the respondent State's own legal system, to the highest level that can give relief.

Why. It gives the State the chance to put the matter right in its own way, and it respects its jurisdiction over events in its territory.

Exceptions. The rule does not apply where there are no remedies, where the remedies are ineffective or obviously futile, where there is undue delay attributable to the respondent State, where the injured person is manifestly precluded from pursuing them, or where the State has waived the requirement. Nor does it apply where the injury is a direct injury to the State itself rather than to its national.

Who may claim for a company

This is where MU's textbooks spend most of their space on this topic, and it is where the case below governs.

Facts. Barcelona Traction, Light and Power Company, Limited (Belgium v. Spain), Second Phase, ICJ Reports 1970, page 3, judgment of 5 February 1970. Barcelona Traction was incorporated in 1911 in Toronto, where it had its head office, and formed subsidiaries to build and run an electric power system in Catalonia. Belgium said its share capital was very largely held by Belgian nationals; Spain disputed that. Spanish courts adjudicated the company bankrupt, its principal management were dismissed and Spanish directors appointed, and new shares in the subsidiaries were sold by auction in 1952 to a newly formed Spanish company which thereby acquired complete control. Canada, the company's national State, made representations from 1948 or 1949 and ceased entirely in 1955. Belgium claimed reparation for the damage to its nationals as shareholders.

Held. By fifteen votes to one, Belgium lacked jus standi. When a State admits foreign investments or foreign nationals it is bound to extend to them the protection of the law and assumes obligations concerning their treatment, but those obligations are not absolute, and a State must first establish its right to bring a claim. In municipal law the company and its shareholders are distinct persons, and international law authorises the national State of the company alone to make a claim. Whatever the reasons for Canada's change of attitude, that could not justify the exercise of protection by another government. A right to claim for prejudice to national economic resources could arise only from a treaty or special agreement, and none was in force between Belgium and Spain. Adopting a theory of diplomatic protection of shareholders as such would open the door to competing claims by different States and create an atmosphere of insecurity in international economic relations.

Why it matters. The nationality of a company is that of the State of incorporation and of the registered office, and it is that State alone which may protect it. The shareholders' States may not, however large their holdings, unless a treaty provides otherwise. That result has been criticised as leaving investors unprotected where the company's own State declines to act, which is exactly what happened to Barcelona Traction, and the practical answer has been the network of bilateral investment treaties which give the investor a direct right to arbitrate, bypassing diplomatic protection altogether.

The other half of the same judgment is the passage distinguishing obligations owed to the international community as a whole, which are the concern of all States and are obligations erga omnes, from those arising in the field of diplomatic protection. The ILC Articles turned that into article 48, dealt with in [Circumstances Precluding Wrongfulness, and Reparation].

The Calvo clause

A provision inserted in a contract between a State and a foreign national by which the national agrees to be treated as a national of that State for the purposes of the contract, to submit any dispute to the local courts, and not to seek the diplomatic protection of his own government.

Named after Carlos Calvo, the Argentine jurist, and widespread in Latin American concession contracts.

The objection to it is the fiction with which this chapter opened. If the right of diplomatic protection belongs to the State and not to the individual, the individual cannot renounce it, because it is not his to give away. On that reasoning the clause is void so far as it purports to bind the national State.

What survives. The clause is generally treated as effective to require the alien to exhaust local remedies, which he must do anyway, and as a promise not to seek protection prematurely. What it cannot do is deprive his State of a right it holds in its own name.

Expropriation

A State may take foreign property, and the argument has always been about the conditions.

The classical position of capital-exporting States is that a taking is lawful only if it is for a public purpose, non-discriminatory, and accompanied by compensation, and the compensation formula pressed was prompt, adequate and effective.

Newly independent States pressed a different position through the General Assembly, resting on permanent sovereignty over natural resources and on compensation determined by the taking State's own law, which is the New International Economic Order episode dealt with in [Resolutions of the General Assembly]. That position did not become custom, because the specially affected States neither voted for it nor followed it.

The practical position today is that the argument has been overtaken. Investment is governed by thousands of bilateral treaties which state the conditions expressly and give the investor direct access to arbitration, so the customary standard matters mainly where no treaty applies.

A worked example

Ms V, a national of State W, is a shareholder in a company incorporated in State X. She also owns a hotel in State Y in her own name. State Y's officials seize the hotel without compensation, and State Y's courts refuse to register her suit at all. Meanwhile State Y expropriates the company's factory.

The hotel. The injury is to Ms V personally, so State W may protect her. It must show the nationality of claims, that she was and remains its national, and the effectiveness of that nationality on the Nottebohm test. It must then show the exhaustion of local remedies, and here the refusal to register the suit engages the exception for remedies that are unavailable or obviously futile, and it is separately a denial of justice.

Is the seizure itself wrongful? On the classical conditions, a taking must be for a public purpose, non-discriminatory and compensated. A seizure without compensation fails. If State W and State Y have an investment treaty, its terms govern and Ms V may be able to arbitrate directly without troubling her government.

The factory. Different answer, and this is the Barcelona Traction point. The injured person is the company, whose nationality is State X's. State X alone may protect it. State W cannot claim for Ms V's shareholding, however large, unless a treaty provides otherwise, and if State X declines to act she is without a remedy at the level of diplomatic protection.

Suppose Ms V's contract with State Y contained a Calvo clause. It does not deprive State W of its right, because that right is the State's and not hers. It reinforces her obligation to exhaust local remedies, which she must do anyway, and it is why she must show the refusal to register her suit.

Suppose State W simply refuses to take up her case. She has no remedy in international law. The right to protect is the State's, and it may decline for any reason. That is the doctrine's oldest and sharpest criticism.

Distinctions table

What it does NOT mean

Diplomatic protection is not a right of the individual. The State may claim, settle, abandon and keep the proceeds.

Exhaustion of local remedies does not mean pursuing hopeless ones. Remedies that are unavailable, ineffective or obviously futile need not be exhausted, and undue delay attributable to the respondent State excuses it.

Denial of justice is not losing. An error by a court is not enough; the defect must be in the administration of justice as a system.

A Calvo clause does not bar a State's claim. It cannot, because the right is not the individual's to renounce.

Shareholders' States cannot claim for injury to the company. Barcelona Traction is explicit, and the practical answer is a treaty.

Limits and criticism

The whole doctrine rests on a fiction that no longer fits. International law now confers rights on individuals directly, as [Subjects of International Law] shows, and treating an injury to a person as an injury to his State was a device for a world in which it could not.

It leaves the individual dependent on politics. A State may decline to protect for reasons that have nothing to do with the merits, and the national has no answer.

Barcelona Traction produces hard cases. Where a company's own State will not act, the shareholders who bear the loss have no standing, and the Court's reasons, competing claims and insecurity in economic relations, are reasons of policy rather than of principle.

Investment treaty arbitration has largely replaced it in the commercial field, giving the investor a direct right and removing the State from the picture. That solves the problem of dependence and creates others, chiefly that a small number of arbitrators decide questions of public policy for States.

Quick revision

In taking up its national's case a State asserts its own right. So the claim is the State's to bring, settle or abandon, and the individual cannot compel it.

Standards: national treatment against the international minimum standard. The minimum standard prevails, and human rights law has taken over much of the ground.

Denial of justice: refusal of access, undue delay, a manifestly unjust judgment, failure to enforce, or a procedure that is no trial. Not a mere error.

Article 44 ILC Articles: responsibility may not be invoked where the claim is not brought in accordance with the rule on the nationality of claims, or where local remedies that are available and effective have not been exhausted.

Continuous nationality, and an effective nationality on the Nottebohm test.

Exceptions to local remedies: no remedy, ineffective or futile remedies, undue delay, manifest preclusion, waiver, and direct injury to the State.

Barcelona Traction, ICJ Reports 1970, page 3: the national State of the company alone may claim; the shareholders' State may not, absent a treaty; a contrary rule would produce competing claims and insecurity. The same judgment distinguishes obligations erga omnes.

Calvo clause: cannot deprive the national State of a right that is its own; effective only as to exhaustion of local remedies.

Expropriation: public purpose, non-discriminatory, compensated; prompt, adequate and effective against the developing-country position; in practice displaced by investment treaties.

Test yourself

1. Whose right is diplomatic protection, and what follows?

The State's. In taking up the case of one of its nationals a State asserts its own right to ensure respect for international law in the person of its subjects. Three consequences follow: the State may bring, settle or abandon the claim and may retain any compensation; it may decline to act for any reason and the national has no remedy; and the national cannot renounce the right, because it is not his, which is the answer to the Calvo clause.

2. State the two conditions of admissibility and their source.

Article 44 of the ILC Articles on State Responsibility provides that the responsibility of a State may not be invoked if the claim is not brought in accordance with any applicable rule relating to the nationality of claims, or if the claim is one to which the rule of exhaustion of local remedies applies and any available and effective local remedy has not been exhausted. The nationality condition requires that the injured person be a national of the claiming State, ordinarily both at the date of injury and at the date of claim, and that the nationality be effective on the Nottebohm test.

3. When is the exhaustion of local remedies excused?

Where there are no remedies to exhaust; where the remedies available are ineffective or obviously futile; where there is undue delay attributable to the respondent State; where the injured person is manifestly precluded from pursuing them; where the respondent State has waived the requirement; and where the injury complained of is a direct injury to the claiming State rather than to its national, in which case the rule does not apply at all.

4. Can a State protect its nationals who are shareholders in a foreign company?

Not in general. Barcelona Traction holds that in municipal law the company and its shareholders are distinct, that international law authorises the national State of the company alone to make a claim, and that a right founded on prejudice to national economic resources could arise only from a treaty or special agreement. The Court reasoned that protecting shareholders as such would open the door to competing claims by different States and create insecurity in international economic relations. The practical answer to the hardship this causes has been the network of bilateral investment treaties conferring on the investor a direct right to arbitrate.

5. What is a Calvo clause and is it effective?

A clause in a contract between a State and a foreign national by which the national agrees to be treated as a national of that State for the purposes of the contract, to submit disputes to the local courts, and not to seek the diplomatic protection of his own government. It is ineffective so far as it purports to bar the national State's claim, because the right of diplomatic protection belongs to the State and not to the individual, and what is not his cannot be renounced by him. It is generally treated as effective in requiring the alien to exhaust local remedies, which he is bound to do in any event.

6. Distinguish the national treatment standard from the international minimum standard, and say which prevails.

National treatment entitles an alien to the same treatment as the State's own nationals and no more, and was pressed by Latin American and later by newly independent States on the ground that a foreigner accepts the conditions of the country he enters. The international minimum standard sets a floor below which no State may go, whatever it does to its own nationals, and was pressed by capital-exporting States on the ground that consistent mistreatment is no excuse. The minimum standard prevails, and the argument has in any case been overtaken, because human rights obligations now run to everybody within a State's jurisdiction, and because investment treaties state the applicable standard expressly wherever they apply.

Entry into force, 16 November 1994. The delay was Part XI, the deep seabed regime, which the industrialised States would not accept. The Agreement relating to the Implementation of Part XI, adopted on 28 July 1994, rewrote it in substance, and that story is [The Area, and the Parallel System of Mining].

The zones, in order

This table is the map of the next nine chapters, and it is worth memorising as a whole before learning any part.

Two points about the table. The zones are measured from the same baseline, which is why [Baselines and the Territorial Sea] comes first and why the Fisheries case matters so much. And the continental shelf and the exclusive economic zone overlap out to 200 miles but are not the same thing: the shelf is about the seabed and subsoil and exists automatically, and the zone is about the water column as well and must be claimed.

Internal waters

Article 8 provides that, except as provided in Part IV for archipelagic States, waters on the landward side of the baseline of the territorial sea form part of the internal waters of the State.

Sovereignty over internal waters is as complete as over land, and there is no right of innocent passage. A foreign ship enters a port by permission, and the coastal State's law applies to it.

One exception, in article 8(2): where a straight baseline drawn under article 7 has the effect of enclosing as internal waters areas which had not previously been considered as such, a right of innocent passage exists in those waters. That provision exists because straight baselines can swallow large areas of what used to be territorial sea or high seas, and it is the Convention's answer to the concern the United Kingdom raised in the Fisheries case.

The general provisions

Article 300, good faith and abuse of rights: States Parties shall fulfil in good faith the obligations assumed under the Convention and shall exercise the rights, jurisdiction and freedoms recognised in it in a manner which would not constitute an abuse of right.

Article 301 requires States, in exercising their rights and performing their duties, to refrain from any threat or use of force against the territorial integrity or political independence of any State, or in any other manner inconsistent with the principles of international law embodied in the Charter.

Articles 302 to 304 deal with disclosure of information, archaeological objects, and responsibility and liability for damage.

The final provisions, articles 305 to 320, cover signature, ratification, accession, entry into force on 16 November 1994, the bar on reservations in article 309, the declarations permitted by article 310, the relation to other conventions, amendment, denunciation and the authentic texts. Article 311 deals with the relation to the 1958 Geneva Conventions, which the 1982 Convention prevails over as between parties to both.

India's own Act

An Indian court applies the Indian statute, not the Convention, for the reasons in [International Law in Indian Courts]. The statute is the Territorial Waters, Continental Shelf, Exclusive Economic Zone and other Maritime Zones Act 1976, Act 80 of 28 May 1976, and it predates the Convention by six years while matching it closely.

Section 3. The sovereignty of India extends and has always extended to the territorial waters of India, and the limit of the territorial waters is the line every point of which is at a distance of twelve nautical miles from the nearest point of the appropriate baseline.

Section 4 deals with the passage of foreign ships through the territorial waters.

Section 5. The contiguous zone is an area beyond and adjacent to the territorial waters, the limit of which is twenty-four nautical miles from the nearest point of the baseline.

Section 6 defines the continental shelf, comprising the seabed and subsoil of the submarine areas beyond the territorial waters.

Section 7. The exclusive economic zone is an area beyond and adjacent to the territorial waters, the limit of which is two hundred nautical miles from the baseline.

Section 8 empowers the Central Government to specify the limits of historic waters.

Section 9 provides for the determination of maritime boundaries between India and any State whose coast is opposite or adjacent to India's.

Section 11 makes contravention of the Act or of any notification under it an offence.

Notice the drafting of section 3(1): sovereignty "extends and has always extended". That is a statement about continuity rather than a claim newly made, and it is the sort of phrase that repays attention in an examination.

A worked example

A trawler flying the flag of State AA is found fishing forty nautical miles off the Indian coast. It is boarded, and on the way in the master is found to have smuggled goods aboard while at anchor eight miles out. State AA protests.

Where was the fishing? Forty miles out is beyond the twelve-mile territorial sea and beyond the twenty-four-mile contiguous zone, and inside the two-hundred-mile exclusive economic zone under section 7 of the Act and article 57 of the Convention.

May India regulate fishing there? Yes. The exclusive economic zone gives the coastal State sovereign rights for the purpose of exploring, exploiting, conserving and managing the natural resources, which is [The Exclusive Economic Zone]. It is not sovereignty, so State AA's ship may navigate freely; it may not take India's fish without authorisation.

The smuggling at eight miles. That is inside the territorial sea, where India has sovereignty under section 3 and article 2, and its criminal law applies subject to the rules on innocent passage in [Innocent Passage, and Straits].

Which law does an Indian court apply? The Act of 1976 and the rules made under it, together with the ordinary criminal law, not the Convention as such. India ratified the Convention, and it does not by itself change the law an Indian court applies.

Suppose the trawler had merely been sailing through at forty miles. Then nothing arises: navigation in the exclusive economic zone is free, and the coastal State's rights there are over resources and defined activities and not over passage.

What it does NOT mean

The exclusive economic zone is not territory. It confers sovereign rights over resources, not sovereignty, and the difference decides most examination problems.

The continental shelf is not the same as the exclusive economic zone. The shelf covers the seabed and subsoil and exists ipso facto and ab initio without any claim; the zone covers the water column too and must be claimed.

Ratifying the Convention did not change Indian law. The Act of 1976 did, and it came first.

No reservations are possible. Article 309 forbids them except where expressly permitted, because the Convention was negotiated as a package deal.

Limits and criticism

The package deal is showing its age. A Convention that cannot be reserved and is hard to amend deals badly with problems its drafters did not foresee, and Part XI had to be rewritten by a separate Agreement in 1994 before the Convention could enter into force at all.

The zones reward geography. A State with a long coast and distant islands acquires an enormous exclusive economic zone; a landlocked State acquires none. The Convention's provisions for landlocked and geographically disadvantaged States are modest, and the inequality is structural.

Enforcement depends on capacity. A coastal State with sovereign rights over two hundred miles of ocean and no navy has rights it cannot exercise, which is why illegal fishing is concentrated where enforcement is weakest.

Quick revision

Mare liberum (Grotius, 1609) against mare clausum (Selden, 1635); the compromise is distance, and Bynkershoek's cannon-shot rule produced the three-mile territorial sea.

Truman Proclamation, 28 September 1945: the modern expansion begins. UNCLOS I, 1958: four Geneva conventions. UNCLOS II, 1960: failed. UNCLOS III, 1973 to 1982: one Convention, 320 articles and nine annexes, opened for signature at Montego Bay on 10 December 1982, in force 16 November 1994 under article 308, twelve months after the sixtieth ratification.

A package deal: article 309 bars reservations except where expressly permitted. Part XI was rewritten by the 1994 Implementation Agreement before entry into force.

Zones: internal waters; territorial sea 12 nm; contiguous zone 24 nm; exclusive economic zone 200 nm; continental shelf 200 nm or to the outer edge of the margin up to 350 nm; high seas; the Area. All measured from the same baseline.

Article 8: internal waters are landward of the baseline; no innocent passage, except where an article 7 straight baseline newly encloses them.

Article 300 good faith and no abuse of rights; article 301 no threat or use of force; article 311 relation to the 1958 conventions.

India: Act 80 of 1976. s.3 sovereignty over territorial waters, 12 nm; s.5 contiguous zone 24 nm; s.6 continental shelf; s.7 exclusive economic zone 200 nm; s.8 historic waters; s.9 maritime boundaries; s.11 offences.

Test yourself

1. Trace the development of the modern law of the sea from 1945 to 1994.

The Truman Proclamation of 28 September 1945 claimed the natural resources of the continental shelf adjacent to the United States coast, and many States followed, which the North Sea judgment treats as the starting point of the positive law. UNCLOS I at Geneva in 1958 produced four conventions, on the territorial sea and contiguous zone, the high seas, fishing and conservation, and the continental shelf, but left the breadth of the territorial sea unsettled; UNCLOS II in 1960 failed to settle it. UNCLOS III sat from 1973 to 1982 and produced a single Convention of 320 articles and nine annexes, opened for signature on 10 December 1982 at Montego Bay, Jamaica. It entered into force on 16 November 1994, the delay being caused by objections to Part XI, which the Implementation Agreement of 28 July 1994 rewrote.

2. Why does the Convention permit no reservations?

Because it was negotiated as a package deal by consensus, in which States accepted provisions they disliked in exchange for provisions they wanted, and reservations would have let a State keep the benefits and discard the burdens. Article 309 provides that no reservations or exceptions may be made unless expressly permitted by other articles of the Convention, and article 310 permits declarations that do not purport to exclude or modify the legal effect of the provisions.

3. Set out the maritime zones with their outer limits.

Internal waters, landward of the baseline. The territorial sea, out to twelve nautical miles from the baseline. The contiguous zone, out to twenty-four nautical miles. The exclusive economic zone, out to two hundred nautical miles. The continental shelf, out to two hundred nautical miles or, where the continental margin extends further, to the outer edge of the margin subject to the limits in article 76. Beyond that, the high seas as to the water column and the Area as to the seabed and subsoil. All are measured from the same baseline.

4. What is the position in internal waters, and what is the one exception?

Article 8 provides that waters on the landward side of the baseline form part of the internal waters of the State, and sovereignty there is as complete as over land, with no right of innocent passage: a foreign ship enters by permission. The exception is in article 8(2): where a straight baseline drawn under article 7 encloses as internal waters areas which had not previously been considered as such, a right of innocent passage exists in those waters. The provision answers the concern that straight baselines can convert large areas of territorial sea or high seas into internal waters at a stroke.

5. Which law does an Indian court apply to an incident in India's exclusive economic zone?

The Territorial Waters, Continental Shelf, Exclusive Economic Zone and other Maritime Zones Act 1976, Act 80 of 28 May 1976, together with the notifications and rules made under it and the ordinary Indian law, and not the Convention as such. Section 7 fixes the exclusive economic zone at two hundred nautical miles from the baseline. India has ratified the Convention, but on the position set out in [International Law in Indian Courts] a treaty does not by itself alter the law an Indian court applies, and the Act, which predates the Convention by six years, is what does.

6. Distinguish the continental shelf from the exclusive economic zone.

The continental shelf covers the seabed and subsoil of the submarine areas beyond the territorial sea, and the coastal State's rights over it exist ipso facto and ab initio by virtue of its sovereignty over the land, so no claim or proclamation is needed; that is the reasoning in the North Sea Continental Shelf cases. The exclusive economic zone covers the water column as well as the seabed, confers sovereign rights over the natural resources and jurisdiction over defined activities, and must be claimed. The two overlap out to two hundred nautical miles, and beyond that the shelf may continue while the zone cannot.

Those conditions are not the drafters' invention. They are the Fisheries case, written into a treaty thirty-one years later.

The case

Facts. Fisheries Case (United Kingdom v. Norway), ICJ Reports 1951, page 116, judgment of 18 December 1951. By a Decree of 12 July 1935 Norway delimited the zone north of the Arctic Circle in which fishing was reserved to its own nationals, drawing straight lines between points on the skjaergaard, the fringe of islands, islets and reefs running along a coast more than 1,500 kilometres long and deeply cut by fjords and bays. British trawlers had returned to those waters from 1906 after a three-hundred-year absence, and a considerable number were arrested and condemned in 1948 and 1949. The United Kingdom asked whether the delimitation was contrary to international law. The four-mile breadth of Norway's territorial sea was not in issue; only the baselines were.

Held. By ten votes to two on the method and eight to four on the lines themselves, neither was contrary to international law. Where a coast is of this character the baseline need not follow the low-water mark of the mainland: it is the outer line of the land formations viewed as a whole that constitutes the coastline, and straight lines drawn across bays, minor curvatures and the waters between islands are not an exception to a rule but the method that this rugged coast, viewed as a whole, calls for. The Court rejected the ten-mile rule for closing lines of bays, holding it had not acquired the authority of a general rule of international law and was in any event inapplicable as against Norway, which had always opposed its application to the Norwegian coast.

The criteria the Court laid down, and which article 7 now contains, are three. The baseline must not depart to any appreciable extent from the general direction of the coast. Certain waters are particularly closely linked to the land formations which divide or surround them. And regard may be had to certain economic interests peculiar to a region when their reality and importance are clearly evidenced by long usage.

The Court added that although delimitation is necessarily a unilateral act, because only the coastal State is competent to undertake it, the validity of the delimitation with regard to other States depends upon international law, so it cannot be dependent merely on the will of the coastal State. And it held that Norway's system had been consolidated by a constant and sufficiently long practice, and that the general toleration of the international community showed it was not regarded as contrary to international law.

Why it matters. Three separate doctrines. The straight baseline method, now article 7. The persistent objector, worked in [Custom]. And the proposition that delimitation is unilateral in act and international in validity, which is the answer to any State that says its baselines are its own business.

The other baseline rules

Article 6, reefs. For islands on atolls or with fringing reefs, the baseline is the seaward low-water line of the reef.

Article 9, mouths of rivers. Where a river flows directly into the sea, the baseline is a straight line across the mouth between points on the low-water line of its banks.

Article 10, bays. The article relates only to bays the coasts of which belong to a single State. A bay is a well-marked indentation whose penetration is in such proportion to the width of its mouth as to contain landlocked waters and constitute more than a mere curvature of the coast, and an indentation is not a bay unless its area is at least as large as that of a semi-circle whose diameter is a line drawn across the mouth. Where the mouth does not exceed twenty-four nautical miles a closing line may be drawn and the waters enclosed are internal waters. Historic bays are excluded from the article's rules, which is how much larger bodies of water are claimed.

Article 11, ports. The outermost permanent harbour works forming an integral part of the harbour system are regarded as forming part of the coast. Off-shore installations and artificial islands shall not be considered as permanent harbour works, which is the point made in [Acquisition of State Territory].

Article 12, roadsteads; article 13, low-tide elevations; article 14, combination of methods; article 15, delimitation between States with opposite or adjacent coasts, which is [Delimitation of Maritime Boundaries]; article 16, charts and lists of geographical coordinates, which must be published and deposited with the Secretary-General.

Article 13 deserves a sentence of its own. A low-tide elevation is a naturally formed area of land surrounded by and above water at low tide but submerged at high tide. Where it lies wholly or partly within the breadth of the territorial sea from the mainland or an island, its low-water line may be used as a baseline. Where it lies beyond that, it has no territorial sea of its own. So a drying rock close in pushes every zone outward, and the same rock further out generates nothing.

What sovereignty over the territorial sea means

Article 2, set out in [State Territory]: sovereignty extends to the territorial sea, its bed and subsoil and the airspace above, and is exercised subject to this Convention and to other rules of international law. That last clause is what makes innocent passage possible, and it is the subject of the next chapter.

A worked example

State BB has a coast of ordinary shape except for one deep fjord and a chain of small islands running parallel to the shore two miles out. It draws straight baselines along the outer edge of the islands and across the fjord, and claims a twelve-mile territorial sea from them. A drying rock lies eighteen miles offshore, and State BB draws a further baseline segment to it.

The islands. Article 7(1) permits straight baselines where there is a fringe of islands along the coast in its immediate vicinity. Two miles out and running parallel is such a fringe, and the Fisheries case is the authority for treating the outer line of the land formations viewed as a whole as the coastline.

The fjord. A deeply indented coastline is the other article 7 condition, and a fjord is the paradigm. If instead the indentation is a bay in the article 10 sense, its own rules apply: the semi-circle test, and a closing line where the mouth does not exceed twenty-four miles.

The rock eighteen miles out. Article 13 answers it. A low-tide elevation situated beyond the breadth of the territorial sea from the mainland or an island has no territorial sea of its own, so it cannot be used as a base point. Eighteen miles from a coast with a twelve-mile territorial sea is beyond, unless the rock is within twelve miles of one of the islands, in which case it may be used.

Does the straight baseline system pass? Test it against the three Fisheries criteria now in article 7: it must not depart appreciably from the general direction of the coast; the waters enclosed must be sufficiently closely linked to the land domain; and economic interests peculiar to the region evidenced by long usage may be taken into account.

What happens to the water inside the baselines? It becomes internal waters under article 8. And because the straight baselines have enclosed as internal waters areas not previously considered as such, article 8(2) preserves a right of innocent passage in them.

State BB says its baselines are its own affair. The Fisheries case answers that: delimitation is necessarily a unilateral act because only the coastal State is competent to undertake it, but its validity with regard to other States depends upon international law.

Distinctions table

What it does NOT mean

Twelve miles is a maximum, not a fixed breadth. Article 3 says up to a limit not exceeding twelve.

Straight baselines are not an exception to be construed narrowly. The Fisheries case says drawing them on such a coast is not an exception to a rule but the method the coast calls for.

A low-tide elevation beyond the territorial sea generates nothing. Article 13(2) is explicit.

Artificial structures do not move the baseline. Article 11 excludes off-shore installations and artificial islands from being permanent harbour works.

A coastal State cannot fix its baselines as it pleases. They are drawn unilaterally and their validity against other States is a question of international law.

Limits and criticism

Article 7 is drafted loosely and is used widely. Phrases such as deeply indented, immediate vicinity and general direction of the coast admit a wide range of practice, and many States have drawn straight baselines on coasts that are not obviously within the article, enclosing large sea areas as internal waters. There is no compulsory review, so the only check is protest by other States, which is the Fisheries mechanism operating in reverse.

A small change offshore has a very large effect. Because every zone is measured from the baseline, a base point moved a few miles seaward can add thousands of square kilometres of exclusive economic zone, which is why rocks and drying elevations are litigated so fiercely.

The bay rules are geometric and the exception is not. The semi-circle test and the twenty-four-mile closing line are precise, and historic bays are excluded from them altogether, which leaves the largest claims resting on assertion and acquiescence.

Quick revision

Article 3: up to 12 nautical miles, a maximum not a fixed width. Article 4: the outer limit. India: section 3 of the Maritime Zones Act 1976, twelve miles, sovereignty which "extends and has always extended".

Article 5, normal baseline: the low-water line on large-scale charts officially recognised by the coastal State.

Article 7, straight baselines: where the coastline is deeply indented and cut into or there is a fringe of islands in its immediate vicinity; must not depart appreciably from the general direction of the coast; the waters within must be closely linked to the land; economic interests evidenced by long usage may be considered.

Fisheries (ICJ Reports 1951, page 116): the outer line of the land formations viewed as a whole is the coastline; straight lines are not an exception to a rule; the ten-mile bay rule is not general law and in any event did not bind Norway, which had always opposed it; delimitation is a unilateral act whose validity depends on international law.

Article 9 river mouths; 10 bays, single-State only, semi-circle test, 24-mile closing line, historic bays excluded; 11 ports, artificial islands are not harbour works; 13 low-tide elevations, usable as a base point only within the breadth of the territorial sea; 15 delimitation; 16 charts to be published and deposited.

Test yourself

1. What is the maximum breadth of the territorial sea and how is it measured?

Article 3 provides that every State has the right to establish the breadth of its territorial sea up to a limit not exceeding twelve nautical miles, measured from baselines determined in accordance with the Convention. It is a maximum and not a fixed figure, so a State may claim less; Norway claimed four miles at the time of the Fisheries case. Article 4 provides that the outer limit is the line every point of which is at a distance from the nearest point of the baseline equal to the breadth of the territorial sea.

2. When may straight baselines be used, and what limits them?

Article 7(1) permits the method of straight baselines joining appropriate points in localities where the coastline is deeply indented and cut into, or if there is a fringe of islands along the coast in its immediate vicinity, and article 7 extends it to highly unstable coastlines caused by a delta and other natural conditions. The limits, taken from the Fisheries case, are that the baselines must not depart to any appreciable extent from the general direction of the coast, that the sea areas lying within them must be sufficiently closely linked to the land domain to be subject to the regime of internal waters, and that account may be taken of economic interests peculiar to the region the reality and importance of which are clearly evidenced by long usage.

3. State the facts and holding of the Fisheries case.

Norway's Decree of 12 July 1935 delimited by straight baselines the zone north of the Arctic Circle in which fishing was reserved to Norwegians, drawing lines between points on the skjaergaard along a coast over 1,500 kilometres long, deeply cut by fjords and dotted with islands. British trawlers had returned from 1906 and many were arrested in 1948 and 1949. The Court held that neither the method nor the lines were contrary to international law: on such a coast the outer line of the land formations viewed as a whole constitutes the coastline, and straight lines are not an exception to a rule but the method the coast calls for. It rejected the ten-mile rule for bay closing lines as not having acquired the authority of a general rule and as inapplicable to Norway, which had always opposed it, and it laid down the three criteria now in article 7.

4. Can a rock that dries at low tide be used to push a State's zones outward?

Only if it lies close enough in. Article 13(1) defines a low-tide elevation as a naturally formed area of land surrounded by and above water at low tide but submerged at high tide, and permits its low-water line to be used as a baseline where it is situated wholly or partly at a distance not exceeding the breadth of the territorial sea from the mainland or an island. Article 13(2) provides that where it lies wholly beyond that distance it has no territorial sea of its own. So the same feature is worth a great deal close in and nothing further out, which is why base points of this kind are litigated so hard.

5. What is a bay for the purposes of article 10, and what follows?

A bay is a well-marked indentation whose penetration is in such proportion to the width of its mouth as to contain landlocked waters and constitute more than a mere curvature of the coast, and an indentation is not a bay unless its area is as large as or larger than that of a semi-circle whose diameter is a line drawn across the mouth. The article applies only to bays the coasts of which belong to a single State. Where the mouth does not exceed twenty-four nautical miles a closing line may be drawn between the low-water marks and the waters enclosed are internal waters. Historic bays are expressly excluded from these rules, which is how claims to much larger bodies of water are made.

6. "A State may draw its baselines as it chooses." Comment.

It is half right and the other half is the point. The Fisheries case accepts that delimitation is necessarily a unilateral act, because only the coastal State is competent to undertake it. But the Court added at once that the validity of the delimitation with regard to other States depends upon international law, so it cannot be dependent merely upon the will of the coastal State as expressed in its municipal law. The practical check is weak, since there is no compulsory review and article 7's terms are loose, so the discipline comes from protest by other States and from the acquiescence or toleration that the Court itself treated as decisive in Norway's favour.

Notice two things. The list is about what the ship does, not about what it is or what it carries: a cargo of weapons is not itself prejudicial, using them is. And paragraph (l) is a catch-all, which is what stops the list being exhaustive in practice.

Article 20. In the territorial sea, submarines and other underwater vehicles are required to navigate on the surface and to show their flag. A submerged submarine is therefore not in innocent passage.

What the coastal State may do

Article 21. The coastal State may adopt laws and regulations relating to innocent passage in respect of the safety of navigation and the regulation of maritime traffic, the protection of navigational aids and facilities, the protection of cables and pipelines, the conservation of living resources, the prevention of infringement of its fisheries laws, the preservation of the environment, marine scientific research and hydrographic surveys, and the prevention of infringement of its customs, fiscal, immigration or sanitary laws. Such laws must not apply to the design, construction, manning or equipment of foreign ships unless they give effect to generally accepted international rules.

Article 22 allows sea lanes and traffic separation schemes. Article 24 imposes duties on the coastal State: it shall not hamper innocent passage, shall not impose requirements having the practical effect of denying or impairing the right, shall not discriminate against the ships of any State, and shall give appropriate publicity to any danger to navigation of which it has knowledge.

Article 25. The coastal State may take the necessary steps in its territorial sea to prevent passage which is not innocent, may prevent breaches of the conditions of admission to internal waters, and may, without discrimination in form or in fact among foreign ships, suspend temporarily in specified areas of its territorial sea the innocent passage of foreign ships if such suspension is essential for the protection of its security, such suspension taking effect only after having been duly published.

Article 26. No charge may be levied upon foreign ships by reason only of their passage, and charges for specific services rendered must be levied without discrimination.

Article 27, criminal jurisdiction. The criminal jurisdiction of the coastal State should not be exercised on board a foreign ship passing through the territorial sea to arrest any person or conduct any investigation in connection with a crime committed on board during its passage, save only where (a) the consequences of the crime extend to the coastal State; (b) the crime is of a kind to disturb the peace of the country or the good order of the territorial sea; (c) the assistance of the local authorities has been requested by the master or by a diplomatic agent or consular officer of the flag State; or (d) such measures are necessary for the suppression of illicit traffic in narcotic drugs or psychotropic substances.

Article 28 restricts civil jurisdiction: the coastal State should not stop or divert a foreign ship passing through the territorial sea for the purpose of exercising civil jurisdiction in relation to a person on board.

Article 29 defines a warship, and articles 30 and 31 deal with warships that do not comply: the coastal State may require the warship to leave the territorial sea immediately, and the flag State bears international responsibility for any loss or damage.

India: section 4 of the Maritime Zones Act 1976 governs the passage of foreign ships through India's territorial waters.

Two provisions about particular ships

Article 23. Foreign nuclear-powered ships and ships carrying nuclear or other inherently dangerous or noxious substances shall, when exercising the right of innocent passage, carry documents and observe special precautionary measures established for such ships by international agreements. So the coastal State's protection against these ships is documentary and precautionary, and does not extend to excluding them.

Article 32. With the exceptions contained in subsection A and in articles 30 and 31, nothing in the Convention affects the immunities of warships and other government ships operated for non-commercial purposes. That is the law of the sea's cross-reference to [Immunity from Jurisdiction]: a warship in the territorial sea may be required to leave, and it may not be boarded, arrested or proceeded against.

Straits, and the case MU names

Facts. Corfu Channel Case (United Kingdom v. Albania), ICJ Reports 1949, page 4, judgment of 9 April 1949. On 22 October 1946 two British cruisers and two destroyers entered the North Corfu Strait through a channel in Albanian waters that had been swept in 1944 and check-swept in 1945 and was regarded as safe. The destroyer Saumarez struck a mine off Saranda and was gravely damaged; the Volage, sent to help and towing her, struck another. Forty-five British officers and sailors were killed and forty-two wounded. An Albanian battery had fired on two British cruisers in the same waters on 15 May 1946, after which the United Kingdom had asserted a right of innocent passage through straits and Albania had replied that foreign warships had no right to pass without prior authorisation. On 12 and 13 November the British Navy swept the channel against Albania's expressed refusal of consent and cut twenty-two moored mines.

Held on passage. By fourteen votes to two, the passage of 22 October did not violate Albanian sovereignty. Albania's claim to make the passage of ships conditional on prior authorisation conflicts with the generally admitted principle that States, in time of peace, have a right to send their warships through straits used for international navigation between two parts of the high seas, provided that the passage is innocent. The Corfu Strait belongs geographically to that category even though it is only of secondary importance, in the sense that it is not a necessary route between two parts of the high seas, and irrespective of the volume of traffic. The passage was innocent both in its principle, since it was designed to affirm a right which had been unjustly denied, and in its methods of execution, which were not unreasonable in view of the firing from the Albanian battery on 15 May.

Held on the minesweeping. Unanimously, the operation of 12 and 13 November did violate Albanian sovereignty. It was executed contrary to the clearly expressed wish of the Albanian Government, did not have the consent of the international mine clearance organisations, and could not be justified as an exercise of the right of innocent passage. The Court could only regard the alleged right of intervention as the manifestation of a policy of force which cannot find a place in international law, and it could not accept self-help either, since between independent States the respect for territorial sovereignty is an essential foundation for international relations. The declaration that the sweep violated Albanian sovereignty was itself held to constitute appropriate satisfaction.

Why it matters. It establishes the right of passage of warships through straits used for international navigation, on a test of geography rather than of traffic volume, and it is the leading modern rejection of intervention and self-help. Its responsibility holding is worked in [State Responsibility].

Transit passage: the Convention's answer

The Convention went further than Corfu Channel, and the reason is the twelve-mile territorial sea. Once States could claim twelve miles, straits less than twenty-four miles wide became territorial sea throughout, and a right of innocent passage, which can be suspended under article 25(3), would have let coastal States close them. Maritime powers would not accept that, and Part III is the compromise.

Article 37. Part III's transit passage regime applies to straits used for international navigation between one part of the high seas or an exclusive economic zone and another part of the high seas or an exclusive economic zone.

Article 38. All ships and aircraft enjoy the right of transit passage, which shall not be impeded. Transit passage means the exercise of freedom of navigation and overflight solely for the purpose of continuous and expeditious transit.

Three ways it is stronger than innocent passage. It covers aircraft, which innocent passage does not. It does not require submarines to surface. And it is not suspendible: article 44 provides that States bordering straits shall not hamper transit passage and that there shall be no suspension of transit passage.

Three provisions define the regime's edges. Article 34 provides that the regime of passage through straits established in Part III shall not in other respects affect the legal status of the waters forming such straits or the exercise by the bordering States of their sovereignty or jurisdiction over those waters and their bed, subsoil and airspace. Article 35 states the scope of the Part, preserving internal waters within the strait, the status of waters beyond the territorial seas as exclusive economic zone or high seas, and regimes in straits regulated by long-standing international conventions in force specifically relating to them. Article 36 takes a strait out of the transit passage regime altogether where there exists through it a route through the high seas or through an exclusive economic zone of similar convenience with respect to navigational and hydrographical characteristics, in which case the other Parts apply.

Article 40 forbids foreign ships in transit passage, including marine scientific research and hydrographic survey ships, to carry out any research or survey activities without the prior authorisation of the States bordering the strait. Article 43 provides that user States and States bordering a strait should by agreement cooperate in the establishment and maintenance of necessary navigational and safety aids and other improvements in aid of international navigation, and in the prevention, reduction and control of pollution from ships.

Article 39 sets out the duties of ships and aircraft in transit: proceed without delay, refrain from any threat or use of force against the sovereignty, territorial integrity or political independence of States bordering the strait, and refrain from any activities other than those incident to their normal modes of transit. Articles 41 and 42 allow sea lanes and laws and regulations. Article 45 preserves non-suspendible innocent passage in straits excluded from the transit passage regime.

A worked example

A foreign warship enters State CC's territorial sea, submerged, and surfaces four miles from the coast. It then launches a helicopter, photographs a naval base, and anchors for two days. Later it passes through a strait two miles wide connecting two parts of the high seas, and State CC announces that the strait is closed for a month of exercises.

Submerged entry. Article 20 requires submarines and other underwater vehicles in the territorial sea to navigate on the surface and show their flag. Entering submerged is not innocent passage.

Launching the helicopter. Article 19(2)(e): the launching, landing or taking on board of any aircraft is expressly prejudicial.

Photographing the base. Article 19(2)(c): any act aimed at collecting information to the prejudice of the defence or security of the coastal State.

Anchoring for two days. Article 18(2) requires passage to be continuous and expeditious, and permits stopping and anchoring only where incidental to ordinary navigation, rendered necessary by force majeure or distress, or for rendering assistance. Two days of anchoring is not passage at all, and article 19(2)(l) catches any other activity not having a direct bearing on passage.

What may State CC do? Article 25(1): take the necessary steps in its territorial sea to prevent passage which is not innocent. If the ship is a warship that does not comply with its laws and disregards a request for compliance, articles 30 and 31 let State CC require it to leave immediately and make the flag State internationally responsible for loss or damage.

Closing the strait. This is where the answer turns. If the strait is used for international navigation between two parts of the high seas, article 38 gives all ships and aircraft the right of transit passage and article 44 provides that there shall be no suspension of it. State CC's announcement is therefore unlawful. Had the water been ordinary territorial sea rather than a strait, article 25(3) would have permitted temporary suspension of innocent passage in specified areas, without discrimination, where essential for security and after due publication.

And if a warship had been refused passage through the strait outright? Corfu Channel: States in time of peace have a right to send their warships through straits used for international navigation between two parts of the high seas, provided the passage is innocent, and a requirement of prior authorisation conflicts with that principle.

Distinctions table

What it does NOT mean

Innocent passage is not a licence to stop. Passage must be continuous and expeditious, and anchoring is permitted only in the narrow cases in article 18(2).

A ship's cargo does not make passage non-innocent. Article 19(2) lists activities, not cargoes or ship types.

The coastal State cannot charge for passage. Article 26 forbids charges levied by reason only of passage.

Suspension must be temporary, published and non-discriminatory, and it is unavailable in straits.

Corfu Channel did not decide the volume of traffic matters. The Court held the strait qualified even though it was of secondary importance and not a necessary route.

Limits and criticism

Whether warships enjoy innocent passage is still disputed. Article 17 says ships of all States, and Part II section 3 subsection C deals expressly with warships, which suggests they are included. A number of States nevertheless require prior notification or authorisation for warships, and their declarations under article 310 say so, while the maritime powers reject those requirements. The Convention did not settle it, and Corfu Channel decided the point only for straits.

Article 19(2)(l) undermines the list. A catch-all for any other activity not having a direct bearing on passage restores much of the discretion that the enumeration was meant to remove.

Transit passage exists because of a bargain, not because of principle. It was the price of the twelve-mile territorial sea, and its content, particularly the freedom of submerged transit and overflight, is asserted more clearly by the maritime powers than by the States bordering the straits.

Quick revision

Article 17: ships of all States, coastal or land-locked, enjoy innocent passage through the territorial sea.

Article 18: passage is navigation to traverse the territorial sea or to proceed to or from internal waters; continuous and expeditious; stopping and anchoring only if incidental to ordinary navigation, or necessary by force majeure or distress, or to render assistance.

Article 19(1): innocent so long as not prejudicial to the peace, good order or security of the coastal State. 19(2): twelve listed activities, from the threat or use of force to (l) any other activity not having a direct bearing on passage.

Article 20: submarines must navigate on the surface and show their flag.

Article 21 coastal State laws; 22 sea lanes; 24 duties not to hamper, not to discriminate, to publicise dangers; 25 prevent non-innocent passage, and temporary suspension for security, published, without discrimination; 26 no charge for passage alone; 27 criminal jurisdiction only in four cases; 28 civil jurisdiction restricted; 29 to 32 warships.

Corfu Channel (ICJ Reports 1949, page 4): States in time of peace may send warships through straits used for international navigation between two parts of the high seas, provided passage is innocent; the strait qualified though of secondary importance; the minesweeping violated sovereignty, and intervention is the manifestation of a policy of force which cannot find a place in international law.

Part III, transit passage: article 37 scope; 38 all ships and aircraft, freedom of navigation and overflight for continuous and expeditious transit; 39 duties; 44 no suspension; 45 non-suspendible innocent passage where transit passage does not apply.

Test yourself

1. When is passage innocent?

Article 19(1) provides that passage is innocent so long as it is not prejudicial to the peace, good order or security of the coastal State, and must take place in conformity with the Convention and other rules of international law. Article 19(2) makes this concrete by listing twelve activities which render passage prejudicial, including any threat or use of force, weapons exercises, information gathering to the prejudice of the coastal State's defence or security, propaganda, launching or taking on board aircraft or military devices, loading or unloading contrary to customs, fiscal, immigration or sanitary laws, wilful and serious pollution, fishing, research or survey activities, interference with communications, and any other activity not having a direct bearing on passage.

2. Distinguish innocent passage from transit passage.

Innocent passage applies in the territorial sea under article 17, benefits ships only, requires submarines to navigate on the surface and show their flag under article 20, and may be suspended temporarily in specified areas for security reasons under article 25(3). Transit passage applies in straits used for international navigation between one part of the high seas or exclusive economic zone and another, under article 37, benefits ships and aircraft under article 38, permits submarines to transit in their normal mode, and may not be suspended at all under article 44. Transit passage exists because a twelve-mile territorial sea turned narrow straits into territorial sea throughout, and the maritime powers would not accept a suspendible right there.

3. State the holding of Corfu Channel on passage.

By fourteen votes to two, the passage of 22 October 1946 did not violate Albanian sovereignty. Albania's claim to make passage conditional on prior authorisation conflicts with the generally admitted principle that States, in time of peace, have a right to send their warships through straits used for international navigation between two parts of the high seas, provided the passage is innocent. The Corfu Strait belonged geographically to that category even though it was only of secondary importance, in the sense of not being a necessary route between two parts of the high seas. The passage was innocent both in principle, being designed to affirm a right unjustly denied, and in its methods, which were not unreasonable given the firing from the Albanian battery on 15 May.

4. May a coastal State arrest a person on board a foreign ship in innocent passage?

Article 27(1) provides that its criminal jurisdiction should not be exercised on board a foreign ship passing through the territorial sea to arrest any person or conduct any investigation in connection with a crime committed on board during its passage, save only in four cases: where the consequences of the crime extend to the coastal State; where the crime is of a kind to disturb the peace of the country or the good order of the territorial sea; where the assistance of the local authorities has been requested by the master or by a diplomatic or consular officer of the flag State; or where the measures are necessary for the suppression of illicit traffic in narcotic drugs or psychotropic substances.

5. Can a coastal State close its territorial sea to foreign shipping?

Not generally. Article 24 forbids it to hamper innocent passage, to impose requirements having the practical effect of denying or impairing the right, or to discriminate against the ships of any State. Article 25(3) permits only a temporary suspension, in specified areas of the territorial sea, without discrimination in form or in fact among foreign ships, where suspension is essential for the protection of its security, and only after due publication. In a strait to which transit passage applies there is no power of suspension at all, article 44 providing that there shall be no suspension of transit passage.

6. Do warships enjoy innocent passage? Explain the difficulty.

The better view is that they do. Article 17 confers the right on ships of all States without qualification, and Part II contains a subsection dealing expressly with warships, which would be unnecessary if they were outside the regime; articles 30 and 31 give the coastal State a remedy against a non-complying warship, which again presupposes that it may be there. The difficulty is that a number of States require prior notification or authorisation for warships and have said so in declarations under article 310, while the maritime powers reject those requirements as inconsistent with article 17. The Convention did not settle the question, and Corfu Channel settled it only for straits used for international navigation, where it held a requirement of prior authorisation to be inconsistent with the right of passage.

Twenty-four miles from the baseline, not twenty-four beyond the territorial sea. Since the territorial sea may be up to twelve, the contiguous zone is in practice the twelve miles beyond it, and a State claiming a narrower territorial sea gets a correspondingly wider contiguous belt.

It must be claimed. Unlike the continental shelf, which exists automatically, the contiguous zone is optional. A State that does not claim one does not have one.

Archaeological objects

Article 303 adds one further power, and it is easy marks because it sits outside Part II.

States have the duty to protect objects of an archaeological and historical nature found at sea and shall cooperate for that purpose. In order to control traffic in such objects, the coastal State may, in applying article 33, presume that their removal from the seabed in the zone referred to in that article without its approval would result in an infringement within its territory or territorial sea of the laws and regulations referred to in article 33.

That is a deeming provision, and it is drafted that way precisely because the contiguous zone otherwise reaches only offences connected to the land or the territorial sea.

India's zone

Section 5 of the Maritime Zones Act 1976. The contiguous zone of India is an area beyond and adjacent to the territorial waters, the limit of which is twenty-four nautical miles from the nearest point of the baseline referred to in section 3(2).

Section 5(4) empowers the Central Government to exercise such powers and take such measures in or in relation to the contiguous zone as it considers necessary with respect to (a) the security of India, and (b) immigration, sanitation, customs and other fiscal matters. Section 5(5) lets it extend any enactment on those matters to the zone by notification, and provides that an enactment so extended shall have effect as if the contiguous zone were a part of the territory of India. Section 5(2) allows the limit itself to be altered by notification having regard to international law and State practice, and section 5(3) requires resolutions of both Houses of Parliament before such a notification issues.

Notice two divergences. The Indian Act names security among the purposes and article 33 does not. And the deeming words in section 5(5), that an extended enactment has effect as if the zone were part of India's territory, go further than the control article 33 confers. Both are shared with a number of other States, and both are worth stating in an answer rather than smoothed over: an Indian court applies the Indian Act, and whether a claim of that width is consistent with the Convention is a separate question.

A worked example

State DD claims a twelve-mile territorial sea and a twenty-four-mile contiguous zone. A foreign vessel is detected twenty miles off the coast. Four situations arise.

It is transferring untaxed cigarettes to fast boats heading for the shore. Article 33(1)(a): control necessary to prevent infringement of customs and fiscal laws within the territory or territorial sea. Prevention is precisely what the zone is for.

It carries a man who smuggled goods ashore last week and is now leaving. Article 33(1)(b): control necessary to punish infringement committed within the territory or territorial sea. The offence was committed on land, and the zone allows the pursuit.

It is fishing. Article 33 does not mention fisheries, so nothing in the contiguous zone helps. State DD's power comes instead from the exclusive economic zone, if it has claimed one, under [The Exclusive Economic Zone].

It is conducting a military survey. Neither customs, fiscal, immigration nor sanitary. Article 33 gives no power at all, and a claim based on security would rest on State DD's own legislation rather than on the Convention.

A fifth situation: it is lifting amphorae from a wreck on the seabed twenty miles out. Article 303(2) is the answer: State DD may presume that removal without its approval would result in an infringement within its territory or territorial sea of the article 33 laws, and may therefore act.

And if the vessel simply sails through at twenty miles doing nothing? Nothing arises. There is no right of innocent passage in the contiguous zone because there is no sovereignty to qualify; navigation there is free, as it is throughout the exclusive economic zone.

Distinctions table

What it does NOT mean

It is not a zone of sovereignty. Article 33 confers control, not sovereignty, and the coastal State's laws do not extend there of their own force.

It does not cover fisheries, security, the environment or research. Four subjects, and the list is closed.

It does not create offences committable in the zone. The infringement must be one occurring, or already committed, within the territory or territorial sea.

Twenty-four miles is measured from the baseline, not from the outer edge of the territorial sea.

It is not automatic. Unlike the continental shelf, it must be claimed.

Limits and criticism

The four subjects are a nineteenth-century list. Customs, fiscal, immigration and sanitary were the concerns of the era in which the zone developed. Security, which many States care about most, is absent, which is why a number of them, India among them, have legislated for it anyway and why the divergence between practice and the text is wider here than almost anywhere else in the Convention.

The zone has been largely overtaken by the exclusive economic zone. A State with a two-hundred-mile zone has powers over resources and over defined activities out to a distance eight times greater, and the contiguous zone matters now chiefly for the four enforcement subjects the exclusive economic zone does not touch.

The connection requirement is awkward at sea. Requiring the infringement to relate to the territory or territorial sea makes sense for smuggling and immigration and makes little sense for anything else, which is exactly why article 303 had to create a presumption rather than simply adding archaeology to the list.

Quick revision

Article 33(1): in a zone contiguous to its territorial sea the coastal State may exercise the control necessary to (a) prevent infringement of its customs, fiscal, immigration or sanitary laws within its territory or territorial sea, and (b) punish infringement of those laws committed within its territory or territorial sea.

Article 33(2): the zone may not extend beyond 24 nautical miles from the baselines.

Control, not sovereignty; four subjects only; the offence must touch the territory or territorial sea; measured from the baseline; and it must be claimed.

Article 303: duty to protect archaeological and historical objects, and the coastal State may presume that their removal from the article 33 zone without its approval would infringe the article 33 laws within its territory or territorial sea.

India: section 5 of the Maritime Zones Act 1976, twenty-four nautical miles. s.5(4) adds the security of India to immigration, sanitation, customs and fiscal matters, which article 33 does not; s.5(5) extends enactments to the zone as if it were part of the territory of India; s.5(2) and (3) allow the limit to be altered by notification approved by both Houses.

Test yourself

1. What may a coastal State do in its contiguous zone?

Only what article 33(1) permits: exercise the control necessary to prevent infringement of its customs, fiscal, immigration or sanitary laws and regulations within its territory or territorial sea, and to punish infringement of those laws committed within its territory or territorial sea. It exercises control, not sovereignty, its laws do not apply in the zone of their own force, and the four subjects are exhaustive.

2. How is the twenty-four miles measured, and why does it matter?

From the baselines from which the breadth of the territorial sea is measured, under article 33(2), and not from the outer edge of the territorial sea. It matters because the contiguous zone therefore overlaps the territorial sea rather than beginning where it ends: a State claiming the full twelve miles of territorial sea has a further twelve miles of contiguous zone, and a State claiming less has correspondingly more.

3. A foreign ship is fishing eighteen miles off the coast. Can the coastal State act under article 33?

No. Article 33 lists customs, fiscal, immigration and sanitary laws, and fisheries is not among them. Any power the coastal State has comes from a different regime: if it has claimed an exclusive economic zone, article 56 gives it sovereign rights for the purpose of exploring and exploiting, conserving and managing the natural resources out to two hundred miles, and articles 61 and 62 govern conservation and utilisation. The contiguous zone is irrelevant to the problem.

4. Explain the connection the infringement must have with the land.

Article 33 does not allow the coastal State to create or enforce offences committed in the contiguous zone itself. It allows control necessary to prevent an infringement that would occur within the territory or territorial sea, and to punish one already committed there. So the zone is an outward extension of enforcement in respect of onshore and territorial-sea offences, not a zone in which the coastal State's law operates. Article 303(2) had to create a presumption to bring the removal of archaeological objects within that structure.

5. What does article 303 add?

A duty on States to protect objects of an archaeological and historical nature found at sea and to cooperate for that purpose, and a specific power: in order to control traffic in such objects the coastal State may, in applying article 33, presume that their removal from the contiguous zone without its approval would result in an infringement within its territory or territorial sea of the laws referred to in article 33. It is a deeming provision, necessary precisely because article 33 otherwise reaches only offences connected with the land or the territorial sea.

6. Does India's contiguous zone match article 33?

Not exactly, and the difference is worth stating. Section 5 of the Territorial Waters, Continental Shelf, Exclusive Economic Zone and other Maritime Zones Act 1976 fixes the zone at twenty-four nautical miles from the baseline, which matches article 33(2). But section 5(4) empowers the Central Government to exercise powers in the zone with respect to the security of India as well as immigration, sanitation, customs and other fiscal matters, and security appears nowhere in article 33; and section 5(5) provides that an enactment extended to the zone has effect as if the contiguous zone were part of the territory of India, which is stronger than the control article 33 confers. A number of other States legislate similarly. An Indian court applies the Indian Act; whether a security claim in the contiguous zone is consistent with the Convention is a separate question, and it is one on which practice and the text diverge.

The geological limb. A State whose margin extends beyond two hundred miles gets the whole margin, subject to the outer limits below.

Article 76(3). The continental margin comprises the submerged prolongation of the land mass of the coastal State, and consists of the seabed and subsoil of the shelf, the slope and the rise. It does not include the deep ocean floor with its oceanic ridges or its subsoil.

Article 76(4) gives two formulae for fixing the outer edge where the margin extends beyond two hundred miles: a line by reference to fixed points at each of which the thickness of sedimentary rocks is at least one per cent of the shortest distance from that point to the foot of the continental slope, or a line by reference to fixed points not more than sixty nautical miles from the foot of the slope. In the absence of evidence to the contrary the foot of the continental slope is the point of maximum change in the gradient at its base.

Article 76(5) caps them: the fixed points shall either not exceed 350 nautical miles from the baselines, or not exceed 100 nautical miles from the 2,500 metre isobath, which is a line connecting the depth of 2,500 metres.

Article 76(8) requires a State claiming beyond two hundred miles to submit information to the Commission on the Limits of the Continental Shelf, which makes recommendations, and limits established by the coastal State on the basis of those recommendations are final and binding.

The rights: article 77

Article 77(1). The coastal State exercises over the continental shelf sovereign rights for the purpose of exploring it and exploiting its natural resources.

Article 77(2). Those rights are exclusive in the sense that if the coastal State does not explore the shelf or exploit its natural resources, no one may undertake these activities without its express consent.

Article 77(3). The rights do not depend on occupation, effective or notional, or on any express proclamation. This is the provision behind the North Sea judgment's statement that the coastal State's rights exist ipso facto and ab initio, by virtue of its sovereignty over the land, and that no special legal acts have to be performed to exercise them.

Article 77(4). The natural resources consist of the mineral and other non-living resources of the seabed and subsoil, together with living organisms belonging to sedentary species, that is, organisms which at the harvestable stage either are immobile on or under the seabed or are unable to move except in constant physical contact with the seabed or subsoil. So oysters and corals are shelf resources; fish swimming above are not.

What the rights do not touch

Article 78(1). The rights of the coastal State over the shelf do not affect the legal status of the superjacent waters or of the air space above them. So the water above a State's shelf may be exclusive economic zone or high seas, and the shelf gives no rights over it.

Article 78(2). The exercise of shelf rights must not infringe or result in any unjustifiable interference with navigation and other rights and freedoms of other States.

Article 79. All States are entitled to lay submarine cables and pipelines on the continental shelf, subject to the coastal State's right to take reasonable measures for exploration, exploitation and the prevention of pollution from pipelines, and the delineation of the course for laying pipelines is subject to its consent.

Article 80 applies article 60, on artificial islands and installations, to the shelf. Article 81: the coastal State has the exclusive right to authorise and regulate drilling on the shelf for all purposes. Article 85: the Part does not prejudice the right to exploit the subsoil by tunnelling, irrespective of the depth of water above.

Payments for the outer shelf: article 82

A provision students overlook and examiners like.

Article 82(1). The coastal State shall make payments or contributions in kind in respect of the exploitation of the non-living resources of the continental shelf beyond 200 nautical miles.

The payments are made annually after the first five years of production at a site, rising from one per cent in the sixth year by one point a year to seven per cent in the twelfth and thereafter. A developing State which is a net importer of a mineral resource produced from its shelf is exempt in respect of that resource. The payments are made through the International Seabed Authority, which distributes them on the basis of equitable sharing criteria.

That article is the bridge between the shelf and the common heritage regime in [The Common Heritage of Mankind]: the outer shelf belongs to the coastal State and the international community takes a share of what comes out of it.

Article 84 requires the outer limit lines of the continental shelf and the lines of delimitation drawn under article 83 to be shown on charts of adequate scale or replaced by lists of geographical coordinates, with due publicity and deposit with the Secretary-General of the United Nations and, for lines of outer limits beyond two hundred miles, with the Secretary-General of the Authority.

Delimitation

Article 83(1). The delimitation of the continental shelf between States with opposite or adjacent coasts shall be effected by agreement on the basis of international law, as referred to in article 38 of the Statute of the International Court of Justice, in order to achieve an equitable solution.

That is the subject of [Delimitation of Maritime Boundaries], where the North Sea Continental Shelf cases and Continental Shelf (Tunisia/Libyan Arab Jamahiriya) are worked in full.

India's shelf

Section 6 of the Maritime Zones Act 1976. The continental shelf of India comprises the seabed and subsoil of the submarine areas that extend beyond the limit of its territorial waters throughout the natural prolongation of its land territory to the outer edge of the continental margin or to a distance of two hundred nautical miles from the baseline where the outer edge of the continental margin does not extend up to that distance.

The section vests in India full and exclusive sovereign rights in respect of the shelf for the purposes of exploration, exploitation, conservation and management of its resources, and provides for the Central Government to declare designated areas and to extend enactments to them.

A worked example

State EE has a coast from which the continental margin extends 260 nautical miles before dropping to the deep ocean floor. State FF, across a wide sea, has a margin stopping at 60 miles. Both find oil.

How far does State EE's shelf reach? To the outer edge of the margin at 260 miles, under the geological limb of article 76(1), provided it can establish the outer edge by one of the two article 76(4) formulae, the sediment thickness rule or the sixty-mile rule from the foot of the slope, and provided the fixed points respect the article 76(5) caps of 350 miles from the baselines or 100 miles from the 2,500 metre isobath. It must submit the information to the Commission on the Limits of the Continental Shelf under article 76(8).

How far does State FF's shelf reach? Two hundred miles, under the distance limb, notwithstanding that its margin stops at sixty. Geology cannot take away what distance gives.

Must either State proclaim its shelf? No. Article 77(3): the rights do not depend on occupation, effective or notional, or on any express proclamation, and the North Sea judgment describes them as existing ipso facto and ab initio.

A foreign company begins drilling on State FF's shelf at 150 miles without permission. Article 77(2) makes the rights exclusive in the sense that if the coastal State does not exploit, no one else may without its express consent, and article 81 gives it the exclusive right to authorise and regulate drilling for all purposes.

A foreign fleet fishes in the water column above the same spot. Article 78(1): shelf rights do not affect the legal status of the superjacent waters. Whether State FF can stop them depends on whether it has an exclusive economic zone, which is the next chapter, and on whether the species are sedentary, since article 77(4) puts sedentary species on the shelf side of the line.

State EE begins producing oil at 240 miles. Article 82 applies. After the first five years of production at that site it must make annual payments or contributions in kind through the International Seabed Authority, at one per cent of the value or volume of production in the sixth year, rising by one point a year to seven per cent in the twelfth and thereafter.

A third State wants to lay a cable across both shelves. Article 79(1) entitles all States to lay submarine cables and pipelines on the continental shelf, subject to the coastal State's reasonable measures and, for pipelines, to its consent as to the course.

Distinctions table