Subjects of International Law

Sovereign Order of Malta. Moreover, individuals, ethnic minorities, and indigenous peoples are considered, in certain circumstances, subjects of International Law. These persons and subjects of International Law are discussed in the following.

1. States
States are the original and major subjects of International Law. Their legal personalities derive from the very nature and structure of the international system. All States, by virtue of the principle of sovereign equality, enjoy the same degree of international legal personality.
International Law is primarily concerned with the rights, duties and interests of States. Normally the rules of conducts that International Law prescribes are rules which States are to observe.
Since a State is the primary concern of International Law, it is necessary to study it in a separate chapter. Thus, the next chapter of this book is devoted to the study of a State as a subject of International Law.

2. International Organizations
An international organization is an association of States, established by a treaty between two or more States. Its functions transcend national boundaries. It is for certain purposes a subject of International Law.
The appearance of international organizations from the early part of the Nineteenth Century raises a critical question of their status in the International Law. International organizations are generally considered to be subjects of International Law, as are States, even though their international legal personality is limited to possessing specific rights and duties. Their status is determined be conventions among States and, therefore, the recognition of the international personality of an international organization is limited to signatory States of the convention creating such an organization.
International organizations include universal all purposes organizations, universal functional organizations, and regional organizations. Generally, the treaty creating a public international organization indicates its nature, purposes and powers. The international legal personality of an
international organization is, therefore, limited to the rights, duties, purposes and powers laid down in the treaty creating it. The international legal personality of the United Nations, for example, is derived from the United Nations Charter, the Headquarters Agreement between the United Nations and the United States of America of 1947, and the 1946 Convention on the Principles and Immunities of the United Nations. The attribution of an international legal personality involves the capacity to perform legal acts, to have rights and duties and to enter into relations on the international level. Actually, the legal capacity of the United Nations was a question brought before the International Court of Justice. In its advisory opinion in the Reparation for Injuries Case of 1949, the Court held that the United Nations was an international person, although not a State, and therefore not having the same rights and duties as a State. The United Nations had an international personality; its functions and powers were so important that the Organization could not carry them out unless it had some degree of international personality. The United Nations can perform legal acts such as entering into agreements with member States and with other international organizations, concluding contracts and bringing claims before a court. Such capacity to perform legal acts is a prerequisite of international legal personality.
In reality, international organizations have exercised their legal capacity in a great variety of ways. They have concluded treaties, created military forces, convened international conferences, and brought claims against States.

3. Non-State Entities
There are certain entities, although they are not regarded as independent States, they are granted a degree of personality, a definite and limited special type of personality, under International Law. Such entities have certain rights and duties under International Law. They can participate in international conferences and enter into treaty relations.
However, the rights and duties of these entities in International Law are not the same as those of the States. They have a sort of international personality. The capacity of each of them is more limited than an independent State has since it is limited to the purpose it is existed for and the powers or functions it can perform. These entities fall into the following categories:

(a) Members of composed States or federal States: The federal State has itself, of course, an international legal personality, but the controversial question is whether the component units of the federation have the personality on the international plane. Actually, the international personality of such units and its extent can only be determined in the light of the constitution of the State and State practice. The constitution of a federation may grant a component unit a special international personality; however such personality will not be operative on the international plane without being recognized as such by other States. State practice has granted international personality to certain component units of the federation. For instance, the Soviet Republics of Byelorussia and the Ukraine were admitted as members of the United Nations in 1945 and to that extent possessed international personality. Moreover, these two Republics were members of a number of international organizations and parties to a number of treaties.

(b) Insurgents and Belligerents: Insurgents are individuals who participate in an insurrection (rebellion) against their government. Belligerents are a body of insurgents who by reason of their temporary organized government are regarded as lawful combatants conducting lawful hostilities, provided they observe the laws of war. For a long time, International Law has recognized that insurgents and belligerents may in certain circumstances, primarily dependent upon the de facto administration of specific territory, be international subjects having certain rights and duties under International Law, and may in due course be recognized as de facto governments. They can enter into valid arrangements on the international plane with States, international organizations, and other belligerents and insurgents. They are bound by the rules of International Law with respect to the conduct of hostilities.

(c) National liberation movements: In the course of anti-colonial actions sponsored by the United Nations and regional organizations, these organizations and the member States have conferred international legal status upon certain national liberation movements. In 1974, the General Assembly recognized the international legal status to the Angolan, Mozambican, Palestinian, and Rhodesian movements (which had been recognized as such by the Organization of African Unity (OAU) or the Arab League), and accorded them observer status in its meetings, in meetings of various organs of the United Nations, in meetings of the United Nations specialized agencies, and in conferences convened under the auspices of the United Nations. The Security Council of the United Nations permitted the Palestine Liberation Organization (PLO) to participate in its debates with the same rights of participation as conferred upon a member State not a member of the Security Council.
International practice has accorded the political entities recognized as national liberation movements a number of legal rights and duties. The most significant of these rights and duties are the capacity to conclude binding international agreements with other international legal persons, the capacity to participate in the proceedings of the United Nations, and the rights and obligations of International Humanitarian Law.

(d) International territories: The term “International territory” refers to territories placed under a variety of international legal regimes including those administered by the United Nations under the trusteeship system or special arrangements. The Charter of the United Nations established the trusteeship system, replacing the mandate system established by the League of Nations, to enable the United Nations itself or a State to administer certain territories pending independence. The United Nations is also able to administer territories in specific circumstances. In several instances, The United Nations placed certain territories under its transitional administration for a variety of purposes, such as the preparation for independence, the administration of an election, the adoption of a new constitution, the implementation of a peace settlement, and the performance of other civil functions. Examples of such instances are Cambodia (1992-1993), Bosnia and Herzegovina (1995- ), and East Timor (1999-2002).[20]
The territories (trust territories) placed under the trusteeship system have been accorded special status under International Law. Their inhabitants have been granted the rights for advancement, progressive development, and self-government or independence. Actually, all these territories have attained independence as separate States, or have joined other independent States. The territories placed by the United Nations under special systems, except
Cambodia which has been already an independent State, have been also accorded special status under International Law for the purpose of assisting them in attaining their independence.

4. Special case entities
There are two special case entities accorded a special unique status under International Law; they are the Sovereign Order of Malta, and the Holly See and the Vatican City.
(a) The Sovereign Order of Malta: The Sovereign Order of Malta was established during the Crusades as a military and medical association. It ruled Rhodes from 1309 to 1522. It was entrusted to rule Malta by the treaty with King Charles V of England in 1530. It lost its rule of Malta in 1798. In 1834 the Order established its headquarters in Rome as a humanitarian organization. The Order already had international personality at the time of its taking control of Malta and even when it had to leave the island it continued to exchange diplomatic legations with most European States. Today, the Order maintains diplomatic relations with over forty States.
(b) The Holy See and the Vatican City: The Holy See, which is sometimes used interchangeably with the Vatican City, is the international legal person of the Roman Catholic Church, with its physical location at the Vatican City in Rome and its sovereign the Pope. It is not a State in the normal sense of the word. It is a unique person of International law because it combines the feature of the personality of the Holy See as a religious entity with its territorial base in the Vatican City. Apart of some one thousand Church functionaries, it has no permanent population of its own. Its sovereign territory consists of only about one hundred acres granted it by Italy in the 1929 Lateran Treaty. Nevertheless, the status of the Holy See as an international person is accepted by a number of States. Its personality approximates to a State in functions. The Holy See exchanges diplomatic representatives with other States, enters into bilateral treaties (called concordats), and is a party to many multilateral treaties.

5. Individuals
The ultimate concern for the human being has always been the essence of International Law. This concern was apparent in the Natural Law origin of the classical International Law. The growth of the positivist theories of law, particularly in the Nineteenth Century, obscured this concern for the human being and emphasized the centrality and even the exclusivity of the State in International Law.
In the Twentieth Century, International Law became again concerned with individuals. In 1907, the Hague Conventions initiated the concern in view of prisoners of war and the wounded. During the Second World War, the trend of International Law had been towards attaching direct responsibility to individuals for crimes committed against the peace and security. The Charter of London of 1943 issued by the Allied Powers established the individual responsibility for committing war crimes, crimes
against humanities and crimes against peace. On this basis, after the Second World War, the German leaders were brought to trial before the Nuremberg International Tribunal (1945-1946) where their guilt was established. The Charter of the Nuremberg International Tribunal of 1945 provided specifically for individual responsibility for crimes against peace, war crimes and crimes against humanity. The Nuremberg International Tribunal pointed out that “international law imposes duties and liabilities upon individuals as well as upon states” and this was because “crimes against international law are committed by men, not by abstract entities, and only by punishing individuals who commit such crimes can the provisions of international law be enforced”. The principles of the Charter of the Nuremberg Tribunal and the decisions of this tribunal were affirmed by the General Assembly of the United Nations in 1946, thus making them to be part of the International Law. The Assembly also, in 1946, stated that genocide was a crime under International Law bearing individual responsibility; and this was reaffirmed in the Genocide Convention of 1948.
Individual responsibility was also confirmed with regard to grave breaches of the Four Geneva Conventions of 1949 and the Additional Protocols I and II of 1977, which deal with armed conflicts (International Humanitarian Law). On this basis, two specific international war crimes tribunals were established, one for the former Yugoslavia in 1993 and one for Rwanda in 1994, to prosecute persons responsible for the serious violations of International Humanitarian Law committed in the territory of each of these countries.
The events in the former Yugoslavia and Rwanda impelled the renewal of the international concern for the establishment of a permanent international criminal court, which had long been under consideration. In 1998, the Rome Statute of the International Criminal Court was adopted at the United Nations Diplomatic Conference. The Statute provides that the jurisdiction of the Court is limited to “the most serious crimes of concern of the international community as a whole”, which are the crime of genocide, crimes against humanity, war crimes and the crime of aggression, and that “[A] person who commits a crime within the jurisdiction of the Court shall be individually responsible and liable for punishment in accordance with this Statute.”
In addition, after the Second World War, International law became also concerned with individuals in the field of human rights and the fundamental freedoms. The Charter of the United Nations started this trend in 1945 by calling upon member states to observe human rights and fundamental freedoms for individuals and peoples. Since then, several conventions have been concluded to define human rights and fundamental freedoms which individuals and peoples are entitled to and to ensure their respect and protection. Among these conventions are the International Covenant on Civil and Political Rights of 1966, and the International Covenant on Economic, Social and Cultural Rights of 1966.
Although, individuals as a general rule lack standing to assert violations of the above treaties in the absence of the protest by the State of nationality, a wide range of other treaties have enabled individuals to have direct access to international courts and tribunals. Examples of such treaties are the European Convention on Human Rights of 1950, the American Convention on Human Rights of 1969, the International Convention on the Elimination of All forms of Racial Discrimination of 1966, and the Optional Protocol to the International Covenant on Civil and Political Rights of 1966.
In conclusion, we can say that Contemporary International Law has recaptured the concern for individuals, and individuals have become recognized as participants and subjects of this law. This has occurred primarily through the evolution of Human Rights Law and Humanitarian Law coming together with the evolution of the Traditional International Law. Individuals have a sort of legal personality under International Law; they are granted certain rights and subjected to certain obligations directly under International Law. International Law is applicable to relations of States with individuals and to certain interrelations of individuals themselves where such relations involve matters of international concern.

6. Minorities
The concern of International Law, in the Twentieth Century, for individuals was accompanied by another concern for minorities. The problem of protecting national minorities in Europe confronted the League of Nations after the First World War. The League assumed its responsibilities in the field of treaty-based protection of minorities in Europe, in social matters, such as health and fair labor standards. After the Second World War certain rights were granted to the individual members of ethnic, linguistic and cultural minorities; they were granted the right to have their identity and language respected by the State as part of the process of the development of human rights in general.
The rise of ethno-nationalism after the collapse of the Soviet Union in 1991 brought back the status of ethnic minorities and other groups in International Law to be an important issue concerning the international community. Various efforts have been made on the global and regional level to improve the legal protection of minorities. On the Global level, there is “the United Nations Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities of 1992”. On the regional level, there are “the European Charter for Regional or Minority Languages” adopted by “the Council of Europe” in 1992, “the Framework Convention for the Protection of National Minorities” adopted by “the Council of Europe” in 1995 and the creation of “the High Commission for National Minorities” belonging to “the Conference on Security and Cooperation in Europe”.
Despite all these efforts that aimed to grant specific rights to minorities, the question remains, what legal status should be accorded to minorities in International Law? Do minorities have international legal personality?
There is no clear answer to these questions. Actually, the problem of minorities is very complicated because it involves political and legal dimensions related to the meaning and legal consequences of the principle of self-determination that may lead to loss of the concerned State part of its territory and its control over part of its population and to the possible outside intervention in its domestic affairs. For this reason, it is no accident that in the development of International Law since the Second World War, the rights of minorities have been conceived as a category of human rights which are to be exercised by the individual belonging to a minority, rather than as group rights attributed to a collective entity as such.

7. Indigenous Peoples
In recent years, a special issue related to a category of the so-called “indigenous peoples” has been raised. Examples of indigenous peoples are the Aborigines in Australia, the American Indians, the Eskimos and the Maori in New Zealand. Despite the attempts by the United Nations to recognize group rights to indigenous peoples, it is still regarded as a specific category of minorities with special needs and having a particular relationship to their traditional territory.
In conclusion, we can say that minorities and indigenous peoples are not subjects of International Law in any meaningful sense of the term and that they have not achieved an international legal
personality. They may receive guarantees of certain levels of treatment under international treaties, but it does not follow that they as such have legal personality. International Law does not attribute rights to minorities and indigenous peoples as an entity, but rather to individual members of them.


References:
[1] See Brownlie, pp. 52-8; Shaw, pp. 175-7; and Malanczuk, pp. 91-2.
[2] See L. Oppenheim, 1 International Law, p. 19, 2nd ed. (1912); and Malanczuk, p. 91.
[3] See Brownlie, pp. 57-8; Shaw, pp.175-7; and Malanczuk, pp. 91-2.
[4] See infra chapter 5.
[5] See generally Brownlie, chapter 31; Malanczuk, pp. 92-6; Shaw, pp.241-6 and chapter 23.
[6] On the historical development of international organizations, see Shaw, pp. 1161-4. On the personality of international organizations, see Brownlie, pp. 648-50; and Malanczuk, pp. 92-4
[7] Text of the 1946 Convention on the Privileges and Immunities of the United Nations in 1 U.N.T.S 15.
[8] 1949 I.C.J. 174.
[9] See generally I. Bernier, International Aspects of Federalism, London (1973); and Shaw, pp. 195-201.
[10] See Bernier, pp. 64-6.
[11] See Black’s Law Dictionary, 5th ed., St Paul Minn. (1979).
[12] Id.
[13] See Brownlie, p. 63; Malanczuk, p. 104; and Shaw, pp. 219-20.
[14] See Brownlie, pp. 61-2.
[15] Id. p. 62; and Shaw, p. 220. See also e.g., G.A. Res. 3237 (XXIX); and G.A. Res. 3247 (XXIX).
[16] See e.g., 1972 U.N.Y.B., p. 70; 1978 U.N.Y.B., p. 297; and U.N. Chronicle, April 1982, p. 16. See also Shaw, p. 221.
[17] See Brownlie, p. 62.
[18] See generally Brownlie, p. 60; and Shaw, pp. 207-14.
[19] U.N. Charter chapters XII & XIII. Note that the aims of the trusteeship system were fulfilled since all the 11 original territories administered under it attained independence or joined neighboring independent States.
[20] See Shaw, pp. 208-11.
[21] See generally D. P. O’Connell, 1 International Law, pp. 85-6, 2nd ed. London (1970); Shaw, p. 218; and M. Whiteman , 1 Digest of International Law, pp. 584 -7, Washington (1963).
[22] Shaw, p. 218.
[23] In 1870, the Papal States, which is also known as the Church States, lost their existence as sovereign States (lasted from 756 to 1870) when nearly all the territories, including Rome, were annexed to the United Italy by its king, Victor Emmanuel II, and consequently the jurisdiction of the Pope was confined to the Vatican City. However, the Holy See continued after 1870 to engage in diplomatic relations and enter into international concordats. In 1929, by virtue of the Lateran Treaty concluded between the Holy See and Italy, the latter recognized the State of the Vatican City, and the exclusive sovereignty of the Holy See over the City and in the field of international relation. See generally Brownlie, pp. 63-4; J. Crawford, The Creation of Statehood in International Law, pp. 152-60, Oxford (1979); Shaw, pp. 218-9; J. W. Verzijl, 2 International Law in Historical Perspective, 295-302 & 308-38, Leiden (1969); Whiteman, pp. 587-93.
[24] Bledsoe & Boczek, p. 39.
[25] Id.
[26] See generally Brownlie, chapter 25; Malanczuk, pp. 100-4; Higgins, pp. 48-55; O’Connell, pp. 106-12; and Shaw, pp. 232-241.
[27] Shaw, p. 232.
[28] See infra chapter 16.
[29] See infra chapter 17.
[30] Art. 6. Text in 39 A.J.I.L., supp. (1945).
[31] 41 A.J.I.L. p. 220 (1947).
[32] G.A. Res. 95 (1).
[33] G.A. Res. 96 (1).
[34] Text in 78 U.N.T.S. 277.
[35] The Rome Statute of the International criminal Court art. 5, www. un.org/icc.
[36] Id. art. 25(2).
[37] U.N. Charter art. 55(c).
[38] Text in 999 U.N.T.S. 171.
[39] Text in 993 U.N.T.S. 3.
[40] Text in 312 U.N.T.S. 221.
[41] Text in 9 I.L.M. 673 (1970).
[42] Text in 5 I.L.M. 352 (1966).
[43] Text in 6 I.L.M. 383 (1967).
[44] See generally I. Claude, National Minorities: An International Problem, Cambridge (1955).
[45] See Malanczuk, p. 105.
[46] Text in 32 I.L.M. 911 (1993).
[47] Text in 34 I.L.M. 351 (1995).
[48] See Malanczuk, p. 105; and Shaw, pp. 340-3. [49] Malanczuk, p. 106. [50] Id. [51] See id. pp. 106-8; and Shaw, pp.277-9.

The Role of the United Nations in Maintaining International Peace and Security


The maintenance of international peace and security represents the primary purpose behind the establishment of the United Nations. It reflects the intentions and desires of its founders who sought to establish an international organization for achieving this end. It is a prerequisite to any other purpose of the United Nations. Without it no friendly relations, no international cooperation, and no harmonization of nation’s actions could be achieved.
Because of the importance of international peace and security, the founders of the United Nations insisted on it and emphasized it in the preamble and the Charter of the Organization. They stated all the possible principles, methods and procedures which are to be followed to attain this end.
The theme “we are going to create a collective security system, and this time we are going to make it work,” dominated the entire process of planning and formulating the United Nations Charter. The Charter provided a system for the pacific settlement or adjustment of disputes, and the use of collective measures in threat to or breaches of peace and acts of aggression.
The first method provided by the system is that of seeking peaceful settlement or adjustment of disputes and situation by peaceful means listed in the Charter. The second method is that of taking collective actions (measures) of a coercive nature for the prevention and removal of threats to the peace and for the suppression of acts of aggression and other breaches of the peace. Through these two methods delineated in Chapter VI entitled “Pacific Settlement of Disputes” and Chapter VII entitled “Actions with Respect to Threats to the Peace, Breaches of the Peace, and Acts of Aggression” of the Charter, the United Nations primarily exercises its role in maintaining international peace and security.

I. Pacific Settlement of Disputes
Chapter VI of the Charter of the United Nations contains the procedures for the pacific settlement of disputes. Article 33 obliges the parties to a dispute, “the continuance of which is likely to endanger the maintenance of international peace and security,” to seek a solution by “negotiation, enquiry, mediation, conciliation, arbitration, judicial settlement, resort to regional agencies or arrangement, or other peaceful means of their own choice.”Under this Article, any party to any dispute which is likely to endanger the maintenance of international peace and security is obligated to seek, first of all, a settlement by the traditional peaceful procedures already established in international law.
In the contemplation of the Charter, the first recourse of nations in dispute should be to any of the peaceful methods, in a manner that international peace and security, and justice, are not endangered. This position is justified, first, on the grounds that it will relieve the United Nations of the burden of handling too large number of controversies and, on the second, that it will minimize the interference of the United Nations in the affairs of sovereign states.
However, should the parties to a dispute fail to observe their obligation under Article 33 or their attempts be unsuccessful, the United Nations would intervene to consider the matters and to give its recommendations and decisions under the Charter. The Security Council is given the primary responsibility regarding peace and security. Whatever the action taken by the parties, they cannot prejudice the right of the Security Council to intervene by investigation or recommendation of appropriate procedures or methods of adjustment or settlement of any dispute which is likely to endanger international peace and security. The Security Council is entitled to intervene either by its own initiative, upon invitation of any member of the United Nations, upon a call of attention by the General Assembly, upon a call of attention by the Secretary General, or upon a complaint of a party to a dispute.
To discharge its duty for maintaining international peace and security, the Security Council may follow three courses of action. Firstly, the Security Council may call upon the parties to a dispute, the
continuance of which is likely to endanger the maintenance of international peace and security, to settle their dispute by any of the peaceful means listed in Article 33(1).[ Secondly, it may, in case of a dispute of the nature referred to in Article 33, recommend “appropriate procedures or methods of adjustment.”Thirdly, it may recommend “terms of settlement as it may consider appropriate.”
Although under the Charter the Security Council is given the primary role for maintaining international peace and security, the General Assembly is not excluded from doing so. The General Assembly may call the attention of the Security Council to situations which are likely to endanger the maintenance of international peace and security. It may discuss any question relating to the maintenance of international peace and security, and may make recommendations with regard to any dispute or situation to the concerned states or to the Security Council or to both. It may recommend measures for the peaceful adjustment of any situation, regardless of origin, which it deems likely to impair the general welfare or friendly relations among nations. Questions, disputes or situations may be brought before the General Assembly by the Security Council, by any member of the United Nations, or by any state which is a party to a dispute.
However, the General Assembly is prevented from making any recommendation with regard to any dispute or situation while the Security Council is exercising its function in respect of it, unless the Council so requests. This is a limitation imposed on the authority the General Assembly in making recommendations relating to the maintenance of international peace and security.
In practice with regard to the pacific settlement of disputes (or “peacemaking” as it may be known), the United Nations has provided various means through which conflicts, disputes, and situations are contained and resolved. The Security Council has applied all the available diplomatic techniques in various international disputes, in addition to open debate and behind-the scenes discussion and lobbying. It has called upon the parties to a dispute to resort to any peaceful means of their own choice to settle their disputes. It has recommended to the parties specific appropriate procedures or methods of adjustment. It has recommended to the parties ways to resolve their disputes, or terms of settlement. It has dispatched special envoys or missions for specific tasks, such as investigation, fact finding, negotiation or reconciliation. It has requested the Secretary General to assist the parties in reaching a settlement to their disputes; the impartiality of the Secretary General is one of the United Nations’ assets. The Secretary General has taken diplomatic initiatives to encourage and maintain the momentum of negotiations. He has used his “good offices” for mediating, or to exercise “preventive diplomacy”, that is, to take actions in order to prevent dispute from arising, to resolve them before they escalate into conflicts or to limit the spread of conflicts when they occur. In many instances, the Secretary General has been instructed to avert threats to peace or to secure peace agreements.
To foster the maintenance of peace, the General Assembly has held special or emergency special sessions on issues such as disarmament, and the question of Palestine. Over years, it has helped promote peaceful relations among nations by adopting declarations on peace, the peaceful settlement of disputes and international cooperation. It has established investigatory organs to examine matters under consideration by it, and to report back to it. It has established subsidiary organs for observation, mediation, conciliation and good offices.
Under Chapter VI relating the pacific settlement of disputes and other articles of the Charter of the United Nations, the Security Council and the General Assembly may exercise their role in maintaining international peace and security by discussions, investigations and recommendations. But the possibility remains that pacific settlement may fail to resolve the disputes which may become so serious as to constitute threats to or breaches of the peace or acts of aggression. In such cases, the United Nations may intervene by taking collective actions of coercive nature for the prevention and removal of the consequences of such disputes.

II. Collective Enforcement Actions
The method of using collective enforcement (coercive) actions by the United Nations is provided by Chapter VII of the Charter and the provisions of the “Uniting for Peace” Resolution.

A. Chapter VII of the Charter
Chapter VII authorizes the Security Council to deal with threat to the peace, breach of the peace, or act of aggression, and to take collective enforcement actions (measures) in order to maintain or restore international peace and security. The Security Council, under article 39, the first article of Chapter VII, is given a wide discretion in determining “the existence of any threat to the peace, breach of the peace, or act of aggression”, and to “make recommendations”, or to “decide what measures shall be taken in accordance with Articles 41 and 42, to maintain or restore international peace and security.” Such a determination under Article 39 is an essential pre-condition to the operation of Chapter VII of the Charter; the Security Council cannot exercise its powers under this Chapter, particularly Articles 41 and 42, without such a determination made expressly or implicitly.
Before exercising its most far-reaching powers under Articles 41 and 42, the Security Council, under Article 40, may call upon the parties concerned to comply with such provisional measures as it deems necessary or desirable in order to prevent an aggravation of the situation, provided that such provisional measures shall be without prejudice to the rights, causes, or position of the parties concerned. Such provisional measures may include a demand that all parties concerned cease fire or withdraw their forces behind specified truce lines.
In case of failure of the parties or any of them to comply with the provisional measures, or the provisional measures are inappropriate, the Security Council may proceed to recommend or decide measures under Articles 41 and 42. Under Article 41, the Security Council may decide to take measures not involving the use of armed force to give effect to its decisions, and may call upon the members of the United Nations to apply such measures. These measures may include complete or partial interruption of economic relations, means of transportation, means of communication, and the severance of diplomatic relations.
Should the measures of Article 41 be inadequate or have proved inadequate, the Security Council may decide to take measures under Articles 42. The Security Council may take armed action by air, sea, or land forces as may be necessary to maintain or restore international peace and security. This action may include demonstrations, blockade, and other operations by air, sea, or land forces of members of the United Nations.
To assist the Security Council in planning for the application of armed forces, It is required the establishment of a “Military Staff Committee” consisting of the Chiefs of Staff of the permanent members of the Security Council or their representatives. This Committee is responsible under the Security Council for the strategic direction and command of any armed forces placed at the disposal of the Security Council; this Committee ceased its operation in 1948.
To give assurance that effective forces will be at the disposal of the Security Council, all members of the United Nations undertake, under Article 43 of the Charter, to make available to the Security Council, on its call and in accordance with a special agreement or agreements, armed forces, assistance, and facilities, including rights of passage, necessary for the purpose of maintaining international peace and security; no such special agreements under Article 43 have ever concluded between the United nations and its member states. Members are also required to make available national air-force contingents for combined international enforcement action; no such contingents have been ever made available.
To assure the effectiveness of the enforcement action decided by the Security Council, members of the United Nations are required to join in affording mutual assistance in carrying out such measures. Moreover, the action required to carry out the decisions of the Security Council for the maintenance of international peace and security must be taken by all the members of the United Nations or by some of them, as the security Council may determine. All the members of the United Nations are bound by the decisions of the Security Council under Chapter VII of the Charter.
In practice, the Security Council has exercised its powers under Chapter VII of the Charter. It has decided on collective enforcement measures to maintain or restore international peace and security. Such measures have ranged from economic and diplomatic sanctions to military actions.
The Security Council has resorted to economic sanctions as enforcement measures to maintain or restore international peace and security. Economic sanctions have taken many forms, ranging from specific trade ban to full embargoes. Such sanctions were imposed, for example, against South Africa’s apartheid regime in 1977, Iraq in 1990, the Former Yugoslavia in 1991, and Libya in 1992.
The Security Council has authorized the use of military forces, for peace-keeping and peace-enforcing actions, to maintain or restore international peace and security. Peace-enforcing (Enforcement) actions were authorized against North Korea in 1950 and Iraq in 1991. Peace-keeping forces have been established in many instances, for example, in Palestine (1948), in the Congo (1960), in Cyprus (1964), in Lebanon 1978, in Bosnia and Herzegovina (1995).
Although Chapter VII of the Charter which empowers the Security Council to decide collective enforcement measures for the purpose of maintaining peace and security does not empower the General Assembly with such authority, this organ can exercise such authority under the provisions of the “Uniting for Peace” Resolution.

B. Uniting for Peace Resolution
The Uniting for Peace Resolutions grants the General Assembly the powers to act in place of the Security Council if the latter fails, because of the lack of unanimity of its permanent members, to discharge its primary responsibility in maintaining international peace and security in any case where there appears to be a threat to the peace, breach of the peace or act of aggression. Under this Resolution, the General Assembly may do by recommendations anything the Security Council may do by decisions under chapter VII of the Charter. The Assembly may consider the matter immediately and recommend to members collective measures, including in case of a breach of peace or act of aggression the use of armed forces deemed necessary for the maintenance or restoration of international peace and security.
To ensure that the General Assembly could act promptly and effectively, the Uniting for Peace Resolution provides a procedure for calling of an emergency special session of the Assembly. The Assembly may meet in an emergency special session within twenty-four hours upon the request of any nine members of the Council, by the majority of members of the United Nations, or by one member if the majority of members concur.
Under the Uniting for Peace Resolution, the General Assembly asserts its right to act in the same manner that the Security council can act under Chapter VII of the Charter, but only when the Council fails to act. The Assembly may make a determination of the kind referred to in Article 39, and may recommend collective measures to be undertaken in case of threat to the peace, breach of the peace, or act of aggression. It should be noted that this right granted to the Assembly is not intended to be a substitute for the Council’s responsibility for the maintenance of international peace and security, but rather a supplement.
The General Assembly had its first experience with the Uniting for Peace Resolution on February 1, 1951, after the Soviet Union’s veto blocked the Security Council from taking any action against the intervention of the People’s Republic of China in Korea. The Assembly exercised its authority by adopting a resolution determining that the Chinese intervention in Korea constituted an act of aggression, and calling upon the Chinese Government to cease hostilities and to withdraw from Korea. After the failure of the Chinese Government to comply with the above resolution, the Assembly adopted another resolution recommending the employment of economic sanctions against the Chinese Government and the North Korean authorities.
The Uniting for Peace Resolution was again implemented during the 1956 Middle East Crisis. The General Assembly assumed its responsibility for maintaining international peace and security after the failure of the Security Council to discharge its duty because of the veto power used by the United Kingdom and France. In its emergency special session opened on November 1, 1956, the general Assembly adopted a series of resolutions. In the first resolution, it urged the parties to comply with certain provisional measures, including the cease-fire, the withdrawal of forces and the full observance of armistices agreements, and the reopening of the Suez Canal and the restoration of secure freedom of navigation. Also, it recommended that all members of the United Nations refrain from introducing military goods in the area of hostilities and from any acts which would delay or prevent the implementation of its resolution. In the last resolution, the Assembly decided the establishment of the United Nations Emergency Force for the task of implementing the measures provided for in its first resolution.
Regarding the Israeli annexation of the occupied Syrian Golan Heights, the failure of the Security Council to take any action against Israel, because of the United States’ veto, led to the transfer of the matter to the General Assembly under the Uniting for Peace Resolution. On February 6, 1982, the General Assembly adopted a resolution calling on all its members to apply economic and diplomatic sanctions against Israel on a voluntary basis, and laying the groundwork for the possible expulsion of Israel from the United Nations.
The practice of the General Assembly demonstrates that this organ can, under the Uniting for Peace Resolution, do by recommendations anything the Security Council can do by decisions under Chapter VII of the Charter. The Assembly can make a determination, call for provisional measures, and recommend economic, diplomatic and military measures similar to those which the Security Council can take under Articles 39, 40, 41, and 42 of the Charter. However, the recommendations of the General Assembly under the Uniting for Peace Resolution do not have the legal force and effect that the Council’s decisions have. Such recommendations are not legally binding upon members of the United Nations. They do not legally commit members to action. However, although this might be the case, it might logically be expected that a resolution by the Assembly that has broad support and to which the great majority of members of the United Nations have committed themselves to the extent of voting for it, would receive as favorable a response in terms of compliance as a resolution by the Security Council.

C. United Nations Forces
The use of military forces by the United Nations for the purpose of maintaining and restoring international peace and security represents the effective measures which may be employed by the Organization under the system of collective actions. On many occasions, the United Nations has established international military forces. The constitutional bases for the establishment of each of these forces have been different. The tasks which these forces have been required to perform have ranged from a mere policing action to an enforcing action. The composition, size and command have varied. The relations of the forces with and within states have been diverse.
The constitutional bases for the establishment of United Nations forces are found in the Charter of the United Nations and the Uniting for Peace Resolution. Under the Charter, the Security Council may, in the last resort, take armed action involving the establishment of international forces for the purpose of enforcing its decisions for ending a threat to the peace, breach of the peace, or act of aggression. Articles 29, 39, 40, 41 and 42 provide possible constitutional bases for the establishment of United Nations military forces by the Security Council in order to maintain or restore international peace and security. Article 29 authorizes the Security Council to establish such subsidiary organs as it deems necessary for the performance of its functions; the establishment of United Nations forces is coming within this scope of authority. United Nations forces may be established as collective measures authorized to be taken by the Security Council under Articles 39, 40, 41 and 42 of Chapter VII.
With regard of the General Assembly, the Uniting for Peace Resolution provides a constitutional basis for the establishment of United Nations forces by the General Assembly. Further constitutional bases may be found in Articles 10, 11, 14, and 22 of the Charter of the United Nations. Under Articles 10, 11, and 14, the General Assembly may establish United Nations forces for the task of implementing its recommendations with regard to any question, situation or dispute, for the purpose of maintaining international peace and security. Article 22 authorizes the general Assembly to establish such subsidiary organs as it deems necessary for the performance of its functions; the establishment of United Nations forces are coming within this scope of authority
The United Nations forces have performed various functions and tasks in accordance to the circumstances of each case. The functions and tasks of the United Nations forces have ranged from a peace-enforcing nature to a peace-keeping nature. The United Nations peace-keeping forces have been entrusted to perform peace-building functions in addition to the peace-keeping functions. Peace-building functions are functions aiming to support environments and structures which strengthen and consolidate peace and security; areas of activity include military security, civil law and order, judicial-building or reform, human rights, political progress (referendums and elections), administration, health, education, reconstruction, social development and economic development. The United Nations peace-keeping forces are increasingly charged with functions related to peace-building, in addition to those related to the maintenance of peace and security. Generally, they are charged to maintain ceasefires and separate forces, to prevent the recurrence of war and violence, to implement comprehensive settlement, and to protect or facilitate humanitarian operations and activities. It seems that there is no limit on the functions which the United Nations forces can perform. Future conflicts are likely to present new and complex challenges to the international community, to which it will respond. Effective responses to these challenges will require courageous and imaginative courses of action to be taken, and new means and tools for peace and security to be utilized.
Over the years the United Nations forces have been entrusted with the following missions: to repel an aggressor or aggressors by using full military actions by air, sea and land; to secure or supervise cease-fire, truce and armistice agreements; to control frontiers; to secure the withdrawal of armed forces and personnel of the conflicting parties; to maintain a buffer zone between the conflicting parties; to participate in mine clearance; to assist in the exchange of prisoners of war; to ensure the release of political prisoners or detainees; to assist in and secure safe return of refugees and displaced inhabitants; to establish and maintain safe zones or protected areas; to implement or assist in the implementation of peace agreements; to disarm or disband (or to assist in or supervise the disarming or disbanding) armed groups; to collect, storage or destruction of weapons; to establish and maintain law and order (security and stability); to restore peace and achieving national reconciliation; to prevent the occurrence of civil war; to maintain the territorial integrity and independence of a state; to assist legitimate governments in returning or maintaining their effective authority over their territory or in specific areas; to support transitional governments; to provide humanitarian protection; to coordinate, facilitate and protect humanitarian relief operations; to secure vital infrastructures; to establish or maintain the functioning of civil service facilities; to prepare, hold, or monitoring free referendums or elections; to administer a country, a territory or a specific zone; to provide technical assistance for institutional building, such as the building of law enforcement institutions and judicial organizations; to perform certain civil administrative functions; to secure or monitor the respect of human rights and fundamental freedoms; to assist in the development and economic reconstruction of a particular territory.
In the practice of the United Nations, the structure, composition, size and command of the United Nations forces have varied in accordance to the circumstances of each case, and the tasks and functions they have been requested to perform. The United Nations forces have been composed of national contingents voluntarily provided by member states of the United Nations. Their size ranged from several observers to thousands and hundreds of thousands of persons. The strategic and political controls over the forces have been for the United Nations (the Security Council, the General Assembly or the Secretary General). The direct operational responsibility and day-to-day administration of a force have been entrusted to the commander of the force. The commander has operated under the instruction and guidance of the United Nations. Since the United Nations forces have been composed of national contingents from the contributing states, each of these contingents has been placed under the command of its own national commanding officers who have been under the control of the United Nations. The chain of command has run directly from the commander of the force to the commanding officers of each national contingent. A force has been subject to orders and instructions only from its commander and, through him, from the United Nations. The officers of the contingents have to receive their instructions and directions from the commander of the force, advised and assisted by his staff. The commanding offices of the units have been responsible to the commander of the force for the proper functioning and discipline of their personnel.
The United Nations has established its international forces on the basis of voluntary contribution of its member states. The contributing states have entered into negotiations with the Secretary General acting on behalf of the United Nations, and have concluded agreements with him. They have provided contingents to serve under the control of the United Nations, and its political and strategic direction in the field. However, a contributing state has retained the right to withdraw all its contingents or a particular unit or to replace the national commanders of its units, after a notice to the United Nations of its decision. Nevertheless, it has been required that any change in the contingents must have been made in consultation between the contributing states and the commander of the United Nations forces. The national contingents have retained their separate national identities and organizational units. The national commanders have retained direct responsibility for national contingents serving under them. Although the national commanders have the right to communicate with their governments, they have had to receive instructions from the United Nations through the commander of the United Nations forces, not from their governments. In this context, the United Nations have been regarded international forces representing the interests of the United Nations (the international community), not the national interests of contributing states. This has been the main principle upon which the relationship between the contributing states and the United Nations forces has been based.
The practice of the United Nations has demonstrated that the consent of the host states on whose territory the United Nations forces have operated has been a pre-condition for the presence of these forces.[54] The consent of the host states has been required in every action taken by the United Nations. It has been required for the entry, stationing and remaining of the forces. With regard to the questions of the composition, functions of the force, and the contributing states, the position has been that the view of the host state has been one of the determined elements to be considered, although the United Nations has had the sole and complete freedom of decision on these questions.
The United Nations, on many occasions, has performed different functions, and played various roles. Its forces have constituted an executive action on behalf of the United Nations for the purpose of maintaining international peace and security. Although in most of the crises, the United Nations has succeeded in preventing further fighting between the parties, it has not succeeded in finding solutions, or in reaching lasting peace to most of these cries. It has failed to respond to major crises, prevent wars and violence, or repel aggression. Its efforts in urging and encouraging parties to settle their differences peacefully have not been successful in most cases brought before it. Its efforts to enforce world law, peace and order have not been effective or successful.
The experience of the United Nations in maintaining international peace and security cannot be viewed with complete satisfaction. This imperfection raises a serious question regarding the effectiveness of the United Nations system for maintaining international peace and security. Apart from all the arguments in this respect, the United Nations present system for maintaining international peace and security through the use of military forces constitutes the better system that has ever been established by the international community. It is not clear that the situation in the international stage would have been better if the United Nations system had been differently constructed. The present United Nations system provides effective
means and processes which may be employed by the international community for the maintenance and restoration of international peace and security. The defect is not related only to the system, but primarily to the unwillingness of certain members of the United Nations to make it work. International peace and security is entirely dependent upon the willingness of the member states of the United Nations to cooperate toward this end. Until they are willing to comply with international law and order, this system cannot operate effectively.
The effectiveness of using forces by the United Nations to achieve its objectives has been adversely affected by the primary weakness of the United Nations which lies within the divisions among its members, particularly the super powers, the permanent members of the Security Council. The Security Council, which is entrusted with the primary responsibility for maintaining peace and security, is dominated by policies and interests of its permanent members. Its decisions reflect such one-sided interests. Partiality and double standard is the name of the game played by the super powers. The members of the United Nations, including the super powers, have failed to cooperate together in times of crises. They have failed to agree on important issues, and to make full use of the United Nations resources available for solving major international disputes. They have failed to agree on peaceful solutions or adjustments of major world crises. They have failed to conclude agreements, under Article 43 of the Charter and Section C of the Uniting for Peace Resolution, making available to the United Nations the forces and facilities for the full discharge of its responsibility. The super powers failed to cooperate together within the Military Staff Committee provided for in Article 47 of the Charter, thus this Committee ceased to operate in 1948.
The absence of special agreements under Article 43 of the Charter and the lack of cooperation between the members of the United Nations, particularly the permanent members of the Security Council, constitute two major factors which have primarily contributed to the ineffectiveness of the United Nations system relating to the maintenance of international peace and security, and to the dissatisfaction with the work of the Organization.
To override the problems facing the international community, it is necessary to have a comprehensive and genuine prospect for international peace and security. Peace and security should be universal value-goals which must be produced, promoted and shared in a manner whereby everyone can enjoy them. Security must include not only freedom from war and threats of war, but also full opportunity to preserve, promote and share all values of mankind by peaceful non-coercive means. Peace must include the conditions of peace and the reduction of the severe frustrations which drive nations or peoples to war. Peace and security must be a dynamic and continuous world process for the realization of freedom, justice and progress on a world-wide scale. They must facilitate the necessary environment for creative changes in the general interest of mankind to take place.
The realization of such comprehensive and genuine peace and security requires the existence of a comprehensive and genuine international organization, a world decision-making process. The United Nations can be such an organization. It is one of the most hopeful factors on the world horizon. It is, with the extent of its experience, suitable to be the comprehensive world decision-making process that will be dedicated to regulating the processes of public order of the world community. First, however, series of amendments to the Charter of the United Nations must be made to transform this Organization into the required comprehensive and genuine international organization.


References:
[1] See generally, Mohammad Walid Abdulrahim, The United Nations and the Maintenance of International Peace and Security, Saida-Beirut (1994) [In Arabic]; L. Goodrich & A. Simons, The United Nations and the Maintenance of International Peace and Security, New York (1955); and United Nations, Basic Facts about the United Nations, chapter 2, UN, New York (2004) [Hereinafter cited as UN Basic Facts].
[2] D. Mitrany, “The Functional Approach to World Organization”, in The New International Actors, p. 131, C. Cosgrove & K. Twitchett eds., London (1970).
[3]See generally, Abdulrahim, The United Nations and the Maintenance of International Peace and Security, part one; J. Collier and V. Lowe, The Settlement of Disputes in International Law, Cambridge (1999); J.G. Merrills, International Dispute Settlement, 3rd edn, Cambridge (1998); K.V. Raman, Dispute settlement Through the UN, Dobbs Ferry (1997); M.N. Shaw, International Law, pp. 1099-1118, 5th edn, Cambridge (2003); United Nations, Handbook on the Peaceful settlement of Disputes Between States, UN, New York (1992).; and UN Basic Facts, chapter 2.
[4] For a discussion on the means of peaceful settlement of disputes, see Mohammad Walid Abdulrahim, Introduction to Public International Law, chapter 14, Beirut (2006); and P. Malanczuk ed., Akehurst’s Modern Introduction to International Law, chapter 18, 7th rev. edn, London and New York (1997);
[5] N. Hill, International Organization, 299, New York (1952).
[6] UN Charter art. 33(2).
[7] Id. art. 35(1).
[8] Id. art. 11(3).
[9] Id. art. 99.
[10] Id. arts. 35(2) & 37(1).
[11] Id. art. 33(2).
[12] Id. art. 36(1).
[13] Id. art. 37(2).
[14] Id. art. 11(3).
[15] Id. art. 11(2).
[16] Id. art. 14.
[17] Id. art. 11(2).
[18] Id.
[19] Id. arts. 11(2) & 35(2).
[20] Id. art. 12(1).
[21] “Peacemaking” refers to the use of diplomatic means to persuade parties in conflict to cease hostilities and to negotiate a peaceful settlement of their dispute.
[22] See UN Basic Facts, chapter 2.
[23] Probably the most famous Security Council’s resolution recommending terms of settlement is the Resolution 242 (1967) dealing with the Middle East.
[24] The General Assembly adopted this resolution on November 3, 1950, G.A. Res. 377(a) (V), 5 GAOR, Supp. 20, U.N. Doc. A/1775, at 10 (1950).
[25] See generally, UN Basic Facts, chapter 2; Abdulrahim, The United Nations and the Maintenance of International Peace and Security, chapter 5; Malanczuk, pp. 387-430; and Shaw, 1119-1151.
[26] Cf. Shaw, p. 1120.
[27] The use of force by authorization of the Security Council, and upon a recommendation of the General Assembly constitute two exceptions to the principle of the prohibition of the use of force provided in Article 2(4) of the Charter of the United Nations. On this subject, see Abdulrahim, Introduction to Public International Law, pp. 180-183.
[28] UN Charter arts. 46 and 47(1) & (2).
[29] Id. art. 47(3).
[30] Id art.45.
[31] Id. art. 49.
[32] Id. art. 48.
[33] See generally, UN Basic Facts, chapter 2.
[34] The Ongoing UN Peace-keeping operations as of June 2007 are:
UNTSO United Nations Truce Supervision Organization May 1948 present
UNMOGIP United Nations Military Observer Group in India and Pakistan January 1949 present
UNFICYP United Nations Peacekeeping Force in Cyprus March 1964 present
UNDOF United Nations Disengagement Force June 1974 present
UNIFIL United Nations Interim Force in Lebanon March 1978 present
MINURSO United Nations Mission for the Referendum in Western Sahara April 1991 present
UNOMIG United Nations Observer Mission in Georgia August 1993 present
UNMIK UN Interim Administration Mission in Kosovo June 1999 present
MONUC UN Organization Mission in the Democratic Republic of the Congo November 1999 present
UNMEE United Nations Mission in Ethiopia and Eritrea July 2000 present
UNMIL United Nations Mission in Liberia September 2003 present
UNOCI United Nations Operation in Côte d'Ivoire April 2004 present
MINUSTAH United Nations Stabilization Mission in Haiti June 2004 present
UNMIS United Nations Mission in the Sudan March 2005 present
UNMIT United Nations Integrated Mission in Timor-Leste August 2006 present
[35] See generally, UN Basic Facts, chapter 2; Abdulrahim, The United Nations and the Maintenance of International Peace and Security, chapter 6; and Shaw, 1151-1154.
[36] Uniting for Peace Resolution section A.
[37] Id.
[38] Id.
[39] Cf id. the preamble.
[40] G.A. Res. 498 (V) of 1 February 1951, 5 U.N. GAOR Supp. (No. 20 A) at 1, U.N. Doc A/1775/Add. 1 (1951).
[41] G.A. Res. 500 (V) of 18 May 1951, id. at 2.
[42] G.A. Res. 997 (ES-I) of 2 November 1956, U.N. GAOR ES-I Supp.(No. 1) at 2, U.N. Doc. A/3354 (1956).
[43] G.A. Res. 1000 (ES-I) of 5 November 1956, id. at 2.
[44] S.C. Res. 500 (1982), 37 U.N. SCOR Res. & Decs. (1982) at 2, U.N. Doc. S/INF/37 (1982). Note that the S.C. adopted a resolution in December 1981, after the annexation of the Golan Heights by Israel, calling on Israel to rescind its legislation, and declaring such annexation null and void. S.C. Res. 497 (1981), 36 U.N. SCOR Res. & Decs. (1981) at 6, U.N. Doc. S/INF/36 (1981). However, the council failed because of the negative vote of the U.S. to adopt a draft resolution introduced by Jordan calling on all members of the United Nations to consider sanctions against Israel for annexing the Syrian Golan Heights. See 37 U.N. SCOR Supp. (Jan.-Mar. 1882) at 5, U.N. Doc. S/14832/Rev. 1 (1982).
[45] G.A. Res. 1 (ES-IX) of 5 February 1982.
[46] Goodrich & Simons, at 445.
[47] See generally, Abdulrahim, The United Nations and the Maintenance of International Peace and Security, chapter 7; D.W. Bowett, UN Forces, London (1964); R. Higgins, United Nations Peacekeeping, 4 vols., Oxford (1969-81) ; Malanczuk, pp. 416-430; UN Basic Facts chapter 2; United Nations, The Blue Helmet: A Review of United Nations Peacekeeping, 2nd edn, UN, New York (1990); and the UN web site at //www.un.org/.
[48] UN Peace-keeping operations (1948 – 2007)
UNTSO United Nations Truce Supervision Organization May 1948 present
UNMOGIP United Nations Military Observer Group in India and Pakistan January 1949 present
UNEF I First United Nations Emergency Force November 1956 June 1967
UNOGIL United Nations Observation Group in Lebanon June 1958 December 1958
ONUC United Nations Operation in the Congo July 1960 June 1964
UNSF United Nations Security Force in West New Guinea October 1962 April 1963
UNYOM United Nations Yemen Observation Mission July 1963 September 1964
UNFICYP United Nations Peacekeeping Force in Cyprus March 1964 present
DOMREP Mission of the Representative of the SG in the Dominican Republic May 1965 October 1966
UNIPOM United Nations India-Pakistan Observation Mission September 1965 March 1966
UNEF II Second United Nations Emergency Force October 1973 July 1979
UNDOF United Nations Disengagement Force June 1974 present
UNIFIL United Nations Interim Force in Lebanon March 1978 present
UNGOMAP United Nations Good Offices Mission in Afghanistan and Pakistan May 1988 March 1990
UNIIMOG United Nations Iran-Iraq Military Observer Group August 1988 February 1991
UNAVEM I United Nations Angola Verification Mission I January 1989 June 1991
UNTAG United Nations Transition Assistance Group April 1989 March 1990
ONUCA United Nations Observer Group in Central America November 1989 January 1992
UNIKOM United Nations Iraq - Kuwait Observation Mission April 1991 October 2003
MINURSO United Nations Mission for the Referendum in Western Sahara April 1991 present
UNAVEM II United Nations Angola Verification Mission II June 1991 February 1995
ONUSAL United Nations Observer Mission in El Salvador July 1991 April 1995
UNAMIC United Nations Advance Mission in Cambodia October 1991 March 1992
UNPROFOR United Nations Protection Force February 1992 December 1995
UNTAC United Nations Transitional Authority in Cambodia March 1992 September 1993
UNOSOM I United Nations Operation in Somalia I April 1992 March 1993
ONUMOZ United Nations Operation in Mozambique December 1992 December 1994
UNOSOM II United Nations Operation in Somalia II March 1993 March 1995
UNOMUR United Nations Observer Mission Uganda-Rwanda June 1993 September 1994
UNOMIG United Nations Observer Mission in Georgia August 1993 present
UNOMIL United Nations Observer Mission in Liberia September 1993 September 1997
UNMIH United Nations Mission in Haiti September 1993 June 1996
UNAMIR United Nations Assistance Mission for Rwanda October 1993 March 1996
UNASOG United Nations Aouzou Strip Observer Group May 1994 June 1994
UNMOT United Nations Mission of Observers in Tajikistan December 1994 May 2000
UNAVEM III United Nations Angola Verification Mission III February 1995 June 1997
UNCRO United Nations Confidence Restoration Operation in Croatia May 1995 January 1996
UNPREDEP United Nations Preventive Deployment Force March 1995 February 1999
UNMIBH United Nations Mission in Bosnia and Herzegovina December 1995 December 2002
UNTAES United Nations transitional Administration for Eastern Slavonia, Baranja and Western Sirmium
January 1996 January 1998
UNMOP United Nations Mission of Observers in Prevlaka January 1996 December 2002
UNSMIH United Nations Support Mission in Haiti July 1996 July 1997
MINUGUA United Nations Verification Mission in Guatemala January 1997 May 1997
MONUA United Nations Observer Mission in Angola June 1997 February 1999
UNTMIH United Nations Transition Mission in Haiti August 1997 November 1997
MINOPUH UN Civilian Police Mission in Haiti December 1997 March 2000 January 1998 October 1998
MINURCA United Nations Mission in the Central African Republic April 1998 February 2000
UNOMSIL United Nations Observer Mission in Sierra Leone July 1998 October 1999
UNMIK UN Interim Administration Mission in Kosovo June 1999 present
UNAMSIL United Nations Mission in Sierra Leone October 1999 December 2005
UNTAET United Nations Transitional Administration in East Timor October 1999 May 2002
MONUC UN Organization Mission in the Democratic Republic of the Congo November 1999 present
UNMEE United Nations Mission in Ethiopia and Eritrea July 2000 present
UNMISET United Nations Mission of Support in East Timor May 2002 May 2005
UNMIL United Nations Mission in Liberia September 2003 present
UNOCI United Nations Operation in Côte d'Ivoire April 2004 present
MINUSTAH United Nations Stabilization Mission in Haiti June 2004 present
ONUB United Nations Operation in Burundi June 2004 December 2006
UNMIS United Nations Mission in the Sudan March 2005 present
UNMIT United Nations Integrated Mission in Timor-Leste August 2006 present
[49] The UN force which was established in Korea in 1950 was the only force of a peace-enforcing nature.
[50] The United Nations electoral assistance has become a regular and increasingly important feature in United Nations peace operations. In 2005 and 2006, UN peace-keeping forces supported elections in six post-conflict countries – Afghanistan, Burundi, Haiti, Iraq, Liberia and the Democratic Republic of the Congo-with populations totaling over 120 million.
[51]This was the case of Unified Command in Korea (1950-1953).
[52] See Abdulrahim, The United Nations and the Maintenance of International Peace and Security, pp. 154-162.
[53] The smallest peace-keeping force is UNMOGIP (1949-) between India and Pakistan, it is consisted of 45 military observers and 19 international civilians. The largest peace-keeping forces was UNPF (1995-1996) in the republics of the former Yugoslavia, its authorized strength was 57,370 personnel. The UN Unified Command in Korea reached at its peak to 740,000 personnel. Note that the UNIFIL in South Lebanon consists of as of 30 April 2007 of: troops 13,251; international civilian 202, local civilian 308.

The Relationship between Public International Law
and National/State Law

Public International Law and national law (municipal law as known in the Common Law Countries) are two legal systems. National law governs the domestic (internal) relations between the official authorities of a State and between these authorities and individuals as well as the relations between individuals themselves. Public International Law governs primarily the relations between States.
With the rise and extension of Public International Law, a question begins to arise as to the relationship between the national law of the States and the Public International Law. This question gives rise to many practical problems. What is the status of the rules of Public International Law before a national court? What is the status of the rules of national law before an international court? Which rule does prevail in a case of conflict between the two laws? How do rules of Public International Law take effect in the internal law of a State?
The answers to the above questions are presented in the following sections: section one deals with the theories dealing with the relations between International Law and national law; section two deals with the attitude of International Law to national law; and section three deals with the attitude of various national laws to International Law.

Section 1: The Theories Dealing with the Relations Between International Law and National Law
There are two major theories on the relationship between Public International Law and national law. The first is the dualist theory. The second is the monist theory
The dualist theory considers that International law and national law are two separate legal systems which exist independently of each other. Each of these two systems regulates different subject matters, function on different levels, and each is dominant in its sphere. Public International Law primarily regulates the conduct of sovereign States. National law regulates the conduct of persons within a sovereign State. On this view, neither legal system has the power to create or alter rules of the other. When national law provides that International Law be applied in whole or in part within the jurisdiction, this is merely an exercise of the authority of national law in the adoption or transformation of the rules of International Law into its legal system. The national law has a supremacy over the International Law; in the case of a conflict between International Law and national law, a national court would apply national law.
The monist theory, which upholds the unity of all law, regards International Law and national law as forming part of the same legal system (order). It argues that both laws are based upon the same premise, that of regulating the conduct and the welfare of individuals. However, it asserts the supremacy of International Law over national law even within the national sphere; in the case of a conflict between the two laws, International Law is supreme.
It is notable that the position taken by each of these two theories is a reflection of its ideological background. The dualist theory adheres to positivism, while the monist theory follows natural law thinking and liberal ideas of a world society.
Facing these two basic theories, a third approach is introduced. This approach is somewhat a modification of the dualist theory. It attempts to establish a recognized theoretical view tied to reality. While it asserts that the two laws are of two distinct legal systems, it denies that a common field of operation exists as between International Law and national law by which one system is superior or inferior to the other. Each law is supreme in its own sphere (field). Just as one cannot talk in terms of the supremacy of one national law over another, but only of two distinct legal systems each operating within its own field, so International Law and national law should be treated in the same way. Each law exists within a different juridical order.
Because the above opposing theories, in reality, do not adequately reflect actual State practice, the scholars in each side have forced to modify their original positions in many respects, bringing them closer to each other, without, however, producing a conclusive answer on the true relationship between International Law and national law. This fact has led some legal scholars to pay less attention to these theoretical views and to prefer a more empirical approach seeking practical solutions in a given case. The method of solving a problem does not probe deeply into theoretical considerations, but aims at being practical and in accord with the majority of States practice and international judicial decisions. On this view, it is more useful for us to leave the theoretical controversy aside and direct our attention to the attitude of International Law to national law and the attitude of the various national laws to International Law; these are what are discussed in the following two sections.

Section 2: The Attitude of International Law to National Law
International Law, in the international sphere, has a supremacy over national law. However, this principle does not mean that national law is irrelevant or unnecessary. International Law does not ignore national law. National law has been used as evidence of international custom or general principles of law, which are both sources of International Law. Moreover, International Law leaves certain questions to be decided by national law. Examples of these questions are those related to the spheres of competence claimed by States as regards State territory, territorial sea, jurisdiction, and nationality of individuals and legal persons, or those related to obligations to protect human rights and the treatment of civilians during belligerent occupation. Thus, the international court may have to examine national law related to these questions in order to decide whether particular acts are in breach of obligations under International Law, particularly, treaties or customary law.
A great number of treaties contain provisions referring directly to internal law or employing concepts which by implication are to be understood in the context of a particular national law. Many treaties refer to “nationals” of the contracting parties, and the presumption is that the term means persons having that status under the internal law of one of the parties.
The international courts, including the International Court of Justice and its predecessor, have regarded national law as a fact that the parties may provide by means of evidence and not to be taken by the court ex officio. Moreover in examining national law the courts have in principle regarded as binding the interpretation by national courts of their own laws.

Section 3:The Attitude of National Laws to International Law
The attitude of national law to International Law is not that easy to summarize as the attitude of International Law to national law. This is because the laws of different States vary greatly in this respect.However, States are, of course, under a general obligation to act in conformity with the rules of International Law; otherwise, they will be responsible for the violations of such rules, whether committed by their legislative, executive or judicial authority. Further, States are obliged to bring national law into conformity with their obligations under International Law; for example, treaties may require a national legislation to be promulgated by the States parties. Nevertheless, International Law leaves to States the method of achieving this result. States are free to decide how to include their international obligations into their national law and to determine which legal status these have internally. In practice, on this issue there is no uniformity in the different national legal systems. However, the prevailing position appears to be dualist, regarding International Law and national law as different systems requiring the incorporation (adoption, transformation and reception are other concepts used) of the international rules on the national level.
Actually, the most important issues of the attitude of national legal systems to International Law concern the status of international customary law and international treaties. On these issues, the attitude of various national legal systems varies.
The survey of the attitudes adopted by various countries of the Common Law and Civil Law traditions leads to the following conclusions. The first of these is that most countries accept the operation of customary rules within their own jurisdictions, providing there is no conflict with existing laws, i.e., if there is a conflict, national law is supreme; some countries allow International Law to prevail over national law at all time. The second conclusion is that as regards treaties, in some countries, certain treaties operate internally by themselves (self-executing) while others require undergoing a process of internal legislation. Some countries allow treaties to supersede all national laws (ordinary laws and the constitution), whether made earlier or later than the treaty, while others allow treaties to supersede only ordinary laws and only that made earlier than the treaty. Others adopt opposite positions.


References:
[1] See generally Malanczuk, pp. 61-2; Brownlie, pp. 31-4; Shaw, 121-4; and Bledsoe & Boczek, 9-10 &
17-8.
[2] Malanczuk, p. 63.
[3] See Shaw, p. 123.
[4] Malanczuk, p. 63.
[5] See id. pp. 63-4.
[6] See G. Fitzmaurice, The General Principles of International Law Considered from the Standpoint of the Rules of Law, 92 Hague Academy of International Law, 1957 (II), 5, 70-80.
[7] See generally Brownlie, pp. 33-49; Shaw, pp. 124-162; and Malanczuk, pp. 64-74.
[8] See Malanczuk, id. p. 64.
[9] Id.
[10] See Brownlie, pp. 36-8.
[11] See id. p. 36.
[12] Id.
[13] Id.
[14] See id. pp. 38-9
[15] Id. p. 39.
[16] See generally Brownlie, pp. 40-53; Shaw, pp. 128-162; and Malanczuk, pp. 65-71.
[17] See Malanczuk, p. 65; Shaw, p. 128.
[18] Shaw, p. 128.
[19] See generally Shaw, pp.128-162; and Malanczuk, pp. 65-71.

State Jurisdiction

State jurisdiction is the capacity of a State under International Law to prescribe and enforce the rules of law. It is derived from the State sovereignty and constitutes its vital and central feature. It is the authority of a State over persons, property and events which are primarily within its territories (its land, its national airspace, and its internal and territorial water). This authority involves the powers to prescribe the rules of law, to enforce the prescribed rules of law and to adjudicate. The powers related to State jurisdiction raise the question regarding the types and forms of State Jurisdiction.
State jurisdiction may extend beyond its territory over persons and things which have a national link. This extension raises the question regarding the grounds or the principles upon which the State can assert its jurisdiction within and beyond its boundaries.
Nevertheless, there are certain persons, property and events within a State territory which are immune from its jurisdiction. This limitation to a State jurisdiction raises a question regarding the immunity from jurisdiction.
The answers to the above raised questions are dealt with in the following sections.

Section 1: Types of State Jurisdiction
State jurisdiction implies the competence to prescribe rules of law, the jurisdiction to enforce the prescribed rules of law and the jurisdiction to adjudicate. Accordingly, it is of three types: legislative jurisdiction, executive jurisdiction and judicial jurisdiction.

(1) Legislative Jurisdiction
Legislative jurisdiction is the capacity of a State to prescribe rules of law (the power to legislate). A State has the supremacy to make binding laws within its territory. It has a legislative exclusivity in many areas. This supremacy is entrusted to constitutionally recognized organs.
Although legislation is primarily enforceable within a State territory, it may extend beyond its territory in certain circumstances. International Law, for example, accepts that a State may levy taxes against persons not within its territory as long as there is a real link between the State and the proposed taxpayer, whether it is nationality or domicile.
The question of how far a court will enforce foreign legislation is a matter within the field of Private International Law (conflict of laws). It is common practice of States that a State enforces civil laws of another State, but it is rare to enforce the penal or taxes laws of another State.
The legislative supremacy of a State within its territory is well established in International Law. However, this supremacy may be challenged in cases where a State adopts laws that are contrary to the rules of International Law. In such cases, a State will be liable for a breach of International Law. A State may also be liable for a breach of International Law if it abuses its rights to legislate for its nationals abroad.

(2) Executive Jurisdiction
Executive jurisdiction is the capacity of a State to act and to enforce its laws within its territory. Generally, since States are independent of each other and possess territorial sovereignty, they have no authority to carry out their functions on foreign territory. No State has the authority to infringe the territorial sovereignty of another State. In this sense, a State cannot enforce its laws upon foreign territory without the consent of the host State; otherwise, it will be liable for a breach of International Law.

(3) Judicial Jurisdiction
Judicial jurisdiction is the capacity of the courts of a State to try legal cases. A State has an exclusive authority to create courts and assign their jurisdiction, and to lay down the procedures to be followed. However, in doing so, it cannot by any means alter the way in which foreign courts operate.
There are a number of principles upon which the courts of a State can claim jurisdiction. In civil matters, the principles range from the mere presence of the defendant in the territory of a State to the nationality and domicile principles. In the criminal matters, they range from the territorial principle to the universality principle. These principles are the subject of the following section.

Section 2: Principles of Jurisdiction
Generally, the exercise of civil jurisdiction by courts of a State has been claimed upon far wider grounds than has been the case in criminal matters. The consequent reaction by other State with this regard has been much mild. This is partly because public opinion is far more vigorous where a person is tried in foreign territory for criminal offences than if a person is involved in a civil case. In addition, International Law does not impose any restrictions on the jurisdiction of courts in civil matters.
In Common Law countries such as the United States and United Kingdom, the usual ground for jurisdiction in civil cases is the service of a writ upon the defendant within the country, even if the presence of the defendant is temporary and incidental. In Civil Law countries, the usual ground for jurisdiction is the habitual residence of the defendant in the country. In some countries such as Netherlands, Denmark and Sweden, generally courts assert their jurisdiction if the defendant possesses assets in the country; however, in matrimonial cases the commonly accepted ground for jurisdiction is the domicile or residence of the plaintiff.
As far as criminal jurisdiction is concerned, the grounds or principles of jurisdiction mostly invoked by States are as follows.
(1) The Territorial Principle
The territorial principle is derived from the concept of State sovereignty. It means that a State has the primary jurisdiction over all events taking place in its territory regardless of the nationality of the person responsible. It is the dominant ground of jurisdiction in International Law. All other State must respect the supremacy of the State over its territory, and consequently must not interfere neither in its internal affairs nor in its territorial jurisdiction.
The territorial jurisdiction of State extents over its land, its national airspace, its internal water, its territorial sea, its national aircrafts, and its national vessels. It encompasses not only crimes committed on its territory but also crimes have effects within its territory. In such a case a concurrent jurisdiction occurs, a subjective territorial jurisdiction may be exercised by the State in whose territory the crime was committed, and an objective territorial jurisdiction may be exercised by the State in whose territory the crime had its effect.
Although jurisdiction is primarily and predominantly territorial, it is not exclusive. A State is free to confer upon other States the right to exercise certain jurisdiction within its national territory. States are free to arrange the right of each one to exercise certain jurisdiction within each national territory. The most significant recent examples of such arrangements are: the 1991 France-United Kingdom Protocol Concerning Frontier Control and Policing, under which the frontier control laws and regulations of each State are applicable and may be enforced by its officers in the control zones of the other; the 1994 Israel-Jordan Peace Treaty, under which the Israeli criminal laws are applicable to the Israeli nationals and the activities involving only them in the specified areas under Jordan’s sovereignty, and measures can be taken in the areas by Israel to enforce such laws.

(2) The Nationality Principle
The nationality principle implies that a State jurisdiction extends to its nationals and actions they take beyond its territory. It is based upon the notion that the link between the State and its nationals is personal one independent of location.
Criminal jurisdiction based on the nationality principle is universally accepted. While Civil Law countries make extensive use of it, the Common Law countries use it with respect to major crimes such as murder and treason. The Common law countries, however, do not challenge the extensive use of this principle by other countries.
A State may prosecute its nationals for crimes committed anywhere in the world; the ground of this jurisdiction is known as active nationality principle. Also, it may claim jurisdiction for crimes committed by aliens against their nationals abroad; the ground of this jurisdiction is known as passive nationality principle. This last principle has been viewed as much weaker than the territorial or active nationality principle as a basis for jurisdiction. It has been considered as a secondary basis for jurisdiction, and a matter of considerable controversy among States. However, in recent years this principle has come to be much acceptable by the international community in the sphere of terrorist and other internationally condemned crimes.

(3) The Protective principle
The protective principle implies that a State may exercise jurisdiction over an alien who commits an act outside its territory, which is deemed prejudicial to its security and interests. It is universally accepted, although there are uncertainties as to its practical extent, particularly as regard to the acts which may come within its domain. It is justified on the basis of protection of State’s vital interests, particularly when the alien commits an offence prejudicial to the State, which is not punishable under the law of the country where he resides and extradition is refused.
Although the protective principle is used as a secondary basis for jurisdiction and in a narrower sense than the territorial or the nationality principle, it can easily be abused, particularly in order to undermine the jurisdiction of other States. In practice however, this principle is applied in those cases where the acts of the person which take place abroad constitute crimes against the sovereignty of the State, such as plots to through a government, treason, espionage, forging a currency, economic crimes and breaking immigration laws and regulations. This principle is often used in treaties providing for multiple jurisdictional grounds with regard to specific crimes, such as the 1979 Hostage Convention and the 1970 Hague Aircraft Hijacking Convention.

(4) The Universality Principle
The universality principle, in its broad sense, implies that a State can claim jurisdiction over certain crimes committed by any person anywhere in the world, without any required connection to territory, nationality or special State interest. Before the Second World War, such universal jurisdiction has been considered as contrary to International Law by the Common Law countries, except for acts regarded as crimes in all countries, and crimes against the international community as a whole such as piracy and slave trade.
After the Second World War, universal jurisdiction has been universally recognized over certain acts considered as international crimes. International crimes are those crimes committed against the international community as a whole or in violation of International Law and punishable under it, such as war crimes, crimes against peace and crimes against humanity. In recent years, crimes such as Hijacking of aircraft, violation of human rights and terrorism, have been added to the list of international crimes.
Today under the universality principle, each State and every State has jurisdiction over any of the international crimes committed by anyone anywhere.

Section 3: Immunity from Jurisdiction
The concept of jurisdiction is derived from the concept of sovereignty, and is connected with the principles of equality and non-interference in domestic affairs of other States. The grounds for jurisdiction are related to the duty of a State under International Law to respect the territorial integrity and political independence of other States. Immunity from jurisdiction is grounded on this duty, and constitutes derogation from the host State jurisdiction.
Under International Law, immunity from jurisdiction is granted to certain persons, namely States (sovereigns) and their diplomatic and consular representatives, and international organizations.

(1) Sovereign Immunity
In International Law, sovereign immunity refers to the legal rules and principles determining the conditions under which a State may claim exemption from the jurisdiction of another State. Sovereign immunity is a creation of customary International Law and derives from the principles of independence and equality of sovereign States; since States are independent and legally equal, no State may exercise jurisdiction over another State without its consent. It is a limitation imposed by International Law upon the sovereignty of a State.
Although rules of sovereign immunity form part of customary International Law, today they are incorporated either in international treaties, such as the 1972 European Convention on State Immunity, or in national statutes of certain States, such as the 1976 U.S Foreign Sovereign Immunities Act and the 1978 U.K State Immunities Act.
Historically, the head of a State (a sovereign) was associated with the State. Originally, both of them enjoyed under customary International Law absolute immunity, in all areas of their activities, from the jurisdiction of another State. While the head of a State continues today to enjoy such absolute immunity, even for his private activities, a State nowadays enjoys only qualified (restrictive) immunity. Under the qualified immunity, a State enjoys immunity only in respect of its governmental acts (acts jure imperii), not in respect of its commercial acts (acts jure gestionis).
In practice, sovereign immunity arises on two levels. The first level concerns the immunity of a State from the jurisdiction of courts of another State; courts of a State cannot adjudicate a claim against a foreign State. The second level concerns the immunity of a State from the execution of enforcement measures undertaken by courts of another State.
Sovereign immunity covers the head of a State as well as the State itself, its government, its departments, and its agencies. It embraces the acts of these entities, their property and assets. This immunity may, however, be voluntarily waived by a State. A State may waive its immunity from jurisdiction and consequently submits itself to the jurisdiction of a foreign court. However, such submission (waiver of jurisdictional immunity), although gives the court of a State the competence to adjudicate and enter a judgment against a foreign State, it does not authorize the execution of the court’s decision against such State. In case of execution, another waiver is needed, namely a waiver of immunity from execution. Waiver must be express; however, implied waiver is accepted if indicated by the circumstances.

(2) Diplomatic Immunity
The rules of diplomatic immunity are the most accepted and uncontroversial rules of International Law. They are essential for the maintenance and efficient conduct of relations between States. Prior to the 1961 Vienna Convention on Diplomatic Relations, diplomatic law, especially privileges and immunities were based upon custom as well as contained in bilateral treaties and national statutes. Nowadays, most of the modern law of diplomatic immunity is contained in the 1961 Vienna Convention on Diplomatic Relations which both codified existing customary law and established others.
Under this convention, “a diplomatic agent” (the head of the mission and any member of the diplomatic staff of the mission) enjoys complete immunity from the criminal jurisdiction of the receiving State; also, he enjoys immunity from its civil and administrative jurisdiction, except in the case of real action relates to private immovable property situated within the receiving State, action related to succession matters in which he is involved as a private person, and action related to professional or commercial activity, in the receiving State, outside his official functions. No measures of execution may be forced upon him, except in the above mentioned cases. He cannot be obliged to give evidence as a witness. His person is inviolable. He cannot be arrested or detained. All appropriate steps should be taken by the receiving State to protect him and prevent any attack on his person, freedom and dignity. He is exempt from all dues and taxes, except in certain cases. The premises of the mission and the private residence of a diplomatic agent as well as their archives, documents, papers, official correspondence and other property are inviolable.
A diplomatic agent enjoys immunity from the moment he enters the territory of the receiving State on proceeding to take up his post or, if already in its territory, from the moment when his appointment is notified to the Ministry for Foreign Affairs. He also enjoys such immunity when passes through or is in the territory of a third State on proceeding to take up or to return to his post, or when returning to his own country.
The immunity granted to a diplomatic agent is immunity from the jurisdiction of the receiving State and not from liability. He is not immune from the jurisdiction of the sending State. Moreover, he can be sued in the receiving state after a reasonable time elapses from the ending of his mission.
The immunity of a diplomatic agent from jurisdiction of the receiving State may be waived by the sending State. The waiver must be express. However, such waiver of immunity from jurisdiction does not imply waiver of immunity in respect of the execution of a judgment; in such case, a separate waiver is required. Immunity may also be waived by the diplomatic agent himself, by submitting voluntarily to the jurisdiction of the court of the receiving State.
Members of the family of a diplomatic agent, if they are not nationals of the receiving State, likewise enjoy the same immunity from jurisdiction. The same immunity, with certain exceptions, is enjoyed by members of the administrative and technical staff of the mission, together with members of their families forming part of their respective households, if they are not nationals or permanent residents of the receiving State. Members of the service staff who are not nationals or permanent residents of the receiving State enjoy immunity only in respect of acts performed in the course of their official duties.

(3) Consular Immunity
A consular officer, like a diplomatic agent, represents his State in the receiving State. However, unlike a diplomatic agent, he is not concerned with political relations between the two States, but with a variety of administrative functions, such as issuing visas and passports, looking after the commercial interests of his State, and assisting the nationals of his State in distress. Thus, he is not granted the same degree of immunity from jurisdiction as a diplomatic agent.
Notably nowadays, many States combine its diplomatic and consular services. Thus, a person who acts simultaneously as a diplomat and consul enjoys diplomatic immunity.
Under the 1963 Vienna Convention on the Consular Relations, a consular officer (the head of the consular post and any person entrusted to exercise consular functions) is immune from an arrest or detention pending trial, except in the case of a grave crime and pursuant to a decision by the competent judicial authority. He is immune from imprisonment or any other restriction on his personal freedom save in execution of a final judicial decision. If criminal proceedings are instituted against him, he must
appear before the competent authorities. The proceedings must be conducted in a manner that respects his official position and does not hamper the exercise of consular functions, and with the minimum delay.
A consular officer is immune from the jurisdiction of the judicial or administrative authorities of the receiving State only in respect of acts performed in the exercise of consular functions. He is exempt from all dues and taxes, except in certain cases. In addition, the consular premises, archives and documents are inviolable. A consular officer enjoys the immunities from the moment he enters the territory of the receiving State on proceeding to take up his post or, if already in its territory, from the moment when he enters on his duties.The same immunities are enjoyed by members of the family of the consular officer from the date which he enjoys his immunities.
The immunities of a consular officer may be waived by the sending State. The waiver must be express. However, the waiver of immunity from jurisdiction for the purposes of civil or administrative proceedings does not imply waiver of immunity from the execution of a judicial decisions; in such case, a separate waiver is required. Immunity may also be waived by the consular officer himself, by submitting voluntarily to the jurisdiction of the court of the receiving State.

(4) Immunities of International Organizations
It is uncertain which immunities and to what extent international organizations enjoy under customary International Law; the position of this law is far from clear. Actually, immunities are granted to international organizations by treaties, or by headquarters agreements concluded with the host State where the organization is seated.
The purpose of immunity granted to international organizations is purely functional. Immunity is regarded as functionally necessary for the fulfillment of their objectives. It is not a reflection of sovereignty, as it is in case of a State, except only indirectly when aiming to protect the interests of the member States of the organization.
Probably the most important example of treaties providing immunities to international organizations is the 1946 General Conventions on the Privileges and Immunities of the United Nations, which sets out the immunities of the United Nations and its personnel. The United Nations enjoys complete immunity from all legal process. Its premises, assets, archives and documents are inviolable. It is exempt from direct taxes and customs duties. Its staff is exempt from income tax on their salaries.
The U.N Secretary General and the Assistant Secretaries General enjoy diplomatic immunity. Other staff members enjoy limited immunities, such as immunity from legal process in respect of their official acts.
Representatives of member States attending the United Nations meetings are granted almost the same immunities as diplomats, except their immunity from legal process applies only to their official acts.
An example of treaties providing immunities to representatives of States in international organizations is the 1975 Vienna Convention on the Representatives of States in their Relations with International Organizations of a Universal Character. This treaty applies to representatives of States in any international organizations of a universal character, irrespective of whether or not there are diplomatic relations between the sending State and the host States.
Under this treaty, the representatives of States in universal international organizations enjoy similar immunities to those provided in the 1961 Vienna Convention on Diplomatic Relations. They enjoy
immunity from criminal jurisdiction, and immunity from civil and administrative jurisdiction in all cases, save for certain exceptions. The mission premises, archives, documents and correspondence are inviolable.


References:
[1] See generally Brownlie, chapter 14; Shaw, chapter 12; Malanczuk, chapter 7.
[2] Bledsoe and Boczek, pp. 102-3.
[3] See Bledsoe & Boczek, pp.102-3; Brownlie, p. 297; and Shaw, pp. 257, 576-8.
[4] Shaw, p. 576.
[5] Id.
[6] Shaw, p. 577.
[7] Cf. Brownlie, p. 297; but see Shaw, id.
[8] Shaw, id.
[9] Id. p. 578.
[10] Shaw, p. 578.
[11] See generally Brownlie, pp. 298-305; Shaw, pp. 578-593; and Malanczuk, pp.111-3.
[12] Shaw, p. 578.
[13] Id.
[14] Id.
[15] Shaw, p. 578.
[16] See generally Shaw, pp. 579-84; Brownlie, pp. 299-301; and Bledsoe & Boczek, pp. 105-6.
[17] Bledsoe & Boczek, p. 105.
[18] See Shaw, p. 580-1; and Brownlie, p. 299-300
[19] See Shaw, pp. 584.
[20] These two examples are mentioned in Shaw, pp. 583-4.
[21] See generally Shaw, pp. 584-91; Brownlie, pp. 301-3; Malanczuk, pp. 111-12 and Bledsoe & Boczek 103-4.
[22] Bledsoe & Boczek, p.103.
[23] Id.
[24] See Malanczuk, p. 111; Bledsoe & Boczek, p. 103; and Shaw p. 588.
[25] See Malanczuk, p. 111.
[26] See id.; Bledsoe & Boczek, p. 104; Brownlie, p. 302; and Shaw 589.
[27] Bledsoe & Boczek, id.
[28] See Shaw, p. 591; and Malanczuk, p. 111.
[29] See generally Shaw, pp. 591-2; Malanczuk , pp. 111-2; Brownlie, 302-3; and Bledsoe & Boczek, pp. 104-5.
[30] See Bledsoe and Boczek, p. 104; Shaw, p. 591; Malanczuk, p. 111; and Brownlie, p. 302.
[31] Shaw, id.
[32] Shaw, id.
[33] See Bledsoe & Boczek, pp. 104-5.
[34] See Shaw, p. 592.
[35] Bledsoe & Boczek, p. 105.
[36] Textes in 74 A.J.I.L. 277 (January 1980), and 22 U.S.T. 1641 respectively.
[37] See generally Shaw pp. 592-7; Malanczuk, pp. 112-3; and Bledsoe and Boczek, p. 106.
[38] Malanczuk, p. 113.
[39] See Chapter 17 infra.
[40] See generally Shaw, chapter 13; Brownlie, chapter 16; and Malanczuk, chapter 8.
[41] See Shaw, p. 621.
[42] Id.
[43] See generally H. Fox, The Law of State Immunity, Oxford (2002); Shaw, pp. 621-68;
Brownlie, pp. 323-40; and Malanczuk, 118-23.
[44] Malanczuk, p. 118
[45] Id.
[46] Text in 11 I.L.M. (1972), 470.
[47] Text in 15 I.L.M. (1976) 1388.
[48] Text in 17 I.L.M. (1978) 1123.
[49] See Malanczuk, p. 119.
[50] Id. p. 118.
[51] See Brownlie, pp. 335-6; and Shaw, pp. 659-61.
[52] See generally Shaw, pp. 668-88; and Malanczuk, pp. 123-7; and the 1961 Vienna Convention on Diplomatic Relations.
[53] Text in 500 U.N.T.S. 95.
[54] The 1961 Vienna Convention on Diplomatic Relations arts. 1 and 31.
[55] Id. art. 31.
[56] Id. art. 29.
[57] Id. arts. 23, 34 & 35.
[58] Id. arts. 22 & 30.
[59] Id. art. 39.
[60] Id. art. 40.
[61] Id. art. 31(4).
[62] Id. art. 32.
[63] Id. art. 32(3).
[64] Id. art. 37(1).
[65] Id. art. 37(2).
[66] Id. art. 37(3).
[67] See generally Shaw, pp. 688-90; Malanczuk, p. 127; and the 1963 Vienna Convention on Consular Relations.
[68] Malanczuk , p. 127.
[69] Text in 596 U.N.T.S. 261.
[70] The 1963 Vienna Convention on Consular Relations arts. 1 & 41.
[71] Id. art. 43.
[72] Id. arts. 32, 49 & 50.
[73] Id. arts. 31 & 33.
[74] Id. art. 53(1).
[75] Id. art.53(2).
[76] Id. art. 45.
[77] Id art. 45(3).
[78] See generally Shaw, pp. 1205-12; Brownlie, pp. 652-4; and Malanczuk, pp. 127-8.
[79] See Malanczuk, p. 127.
[80] See id. pp.127-8; Brownlie, p. 652; and Shaw, p, 1205.
[81] Malanczuk, p. 128.
[82] Text in 1 U.N.T.S. 15.
[83] Id. section 2.
[84] Id. sections 3,4 & 4.
[85] Id. sections 7 & 8.
[86] Id. section 18(b).
[87] Id. sections 17-20.
[88] Id. sections 18 & 20.
[89] Id. sections 11-15.
[90] Text in 69 A.J.I.L (1974), 730.

State Territory and Territorial Sovereignty

As stated in a previous chapter dealing with a State, a territory is one of the fundamental elements of statehood. Without a territory, an entity cannot be a State. The notion that a State occupies a definite portion of the earth within which it exercises, subject to the limitations of International Law, its exclusive authority to the exclusion of other States lies at the basis of International Law. The exercise of such a supreme authority by a State over its own territory is known in International Law as “territorial sovereignty”.
Notably, the concept “territorial sovereignty” is confused with the concept “jurisdiction”. Some have used the two concepts interchangeably. However, there is a distinction between the two concepts. Territorial sovereignty signifies ownership and possession of a territory, which entitles a State to exercise its authority and jurisdiction over the territory. Jurisdiction justifies competence to affect peoples, properties and events within a territory.
Because “territorial sovereignty” and “jurisdiction” are two legal concepts connected to territory and can only be understood in relation to territory, therefore, in the following two sections “territorial sovereignty” and modes of acquiring territory are dealt with. While “jurisdiction” will be the subject of the next chapter.

Section 1: Territorial Sovereignty
Sovereignty in regard to a territory is known as territorial sovereignty. Territorial Sovereignty is the right of a State to exercise over its own territory, to the exclusion of any other States, the functions of a State. It has a positive and a negative aspect. The first aspect relates to the exclusivity of the right of the State with regard to its own territory, while the second aspect refers to the obligation to protect the rights of other States.
A State exercises its territorial sovereignty within its boundary. Boundary is an imaginary line that delineates the territorial limit of a State. Boundaries are of three dimensions. They include the State land and the maritime domain of its internal waters and territorial sea, the airspace and its subsoil. They are either natural topographical, having physical distinguishable features such as mountains, rivers or lakes, or imaginary and artificial such as lines of attitude and longitude, surveyor lines or posts. Both types have equal legal effects and usually based upon treaties or historical title.
The sovereignty of a coastal State extends, beyond its boundaries, over its contiguous zone, over its continental shelf and over its exclusive economic zone. Moreover, the sovereignty of State whether coastal or land-locked extends over its national vessels. The sovereignty of a State extends also to its national aircrafts.
The right to territorial sovereignty enables a State to exercise the fullest measures of sovereignty powers over its land territory, large measures over its territorial waters and air space, and smaller measures over its continental shelf and adjacent area. In addition, it enables a State to exercise sovereignty over vessels and aircrafts that fly its flag or carry its nationality, which are treated as its territory.
Corollary to the rights generated from territorial sovereignty, there are duties imposed upon a State. These duties involve the obligation to protect within its territory the rights of other States, together with the rights that each State may claim for its nationals in foreign territory.
Many treaties and conventions have been concluded to regulate State sovereignty over land, sea, airspace and outer space. Over airspace and outer space, there are the 1944 Convention on International Civil Aviation (the Chicago Convention), the 1963 Treaty Banning Nuclear Weapon Tests in the Atmosphere, in Outer Space and under Water, and the 1967 Treaty on Principles Governing the Activities in the Exploration and Use of Outer Space including the Moon and Other Celestial Bodies (the Outer Space Treaty).
Over the sea, there is the 1982 Convention on the Law of the Sea,[10] which replaced the 1956 Conventions related to the Territorial Sea and the Contiguous Zone, the High Seas, the Continental Shelf, and Fishing and Conservation of living Resources of the High Seas. In Addition, there is the 1959 Antarctica Treaty.
Since the rights generated from the concept of territorial sovereignty can only be exercised in relation to a territory, it is necessary to know how a territory can be acquired.

Section 2: Acquisition of Territory
The international rules related to territorial sovereignty are rooted in the Roman Law provisions governing ownership and possession. In addition, the classification of the different modes of acquiring territory is a direct descendant of the Roman rules dealing with property.
Territory is the space within which the State exercises sovereign authority. Title to territory is acquired either through the claim of land not previously owned (terra nullius) or through the transfer of title from one State to another. Title acquired in the first category is called original title, while in the second category is called derivative title. Modes of original acquisition of territory include occupation, prescription and accretion. Derivative modes include cession (voluntary or forcible), and conquest and annexation. All these modes are dealt with in the following.

(1) Occupation
Occupation is an original mode of acquisition by a State of a title to a territory. It implies the establishment of sovereignty over a territory not under the authority of any other State (terra nullius) whether newly discovered or abandoned by the State formerly in control (unlikely to occur).
For the title acquired through occupation to be final and valid under International Law, the presence and control of a State over the concerned territory must be effective. Effectiveness requires on the part of the Claimant State two elements: an intention or will to act as sovereign, and the adequate exercise of sovereignty. Intention may be inferred from all the facts, although sometimes it may be formally expressed in official notifications to other States. Adequate exercise of sovereignty must be peaceful, real, and continuous. This element of physical assumption may be manifested by an explicit or symbolic act by legislative or administrative measures affecting the claimed territory, or by treaties with other States recognizing the sovereignty of the Claimant State over the particular territory or demarcating boundaries.
Occupation was often preceded by discovery that is the realization of the existence of a particular piece of land. In the early period of European discovery, in the Fifteenth and Sixteenth Centuries, the mere
realization or sighting was sufficient to constitute title to territory. As time passed, something more was required and this took the form of symbolic act of taking possession, whether by raising of flags or by formal declarations. By the Eighteenth Century, the effective control came to be required together with discovery to constitute title to territory.

(2) Prescription
Prescription is a mode of establishing title to territory which is subject to the sovereignty of another State (not terra nullius) through peaceful exercise of de facto sovereignty over a long period of time.[18] It is the legitimization of a doubtful title by the passage of time and the presumed acquiescence of the former sovereignty. It differs from occupation. It relates to territory which has previously been under the sovereignty of another State. However, both modes are similar since they require evidence of sovereignty acts by a State over a period of time.
A title by prescription to be valid under International Law, it is required that the length of time must be adequate, and the public and peaceful exercise of de facto sovereignty must be continuous. The Possession of Claimant State must be public, in the sense that all interested States can be made aware of it. It must be peaceful and uninterrupted in the sense that the former sovereign must consent to the new sovereign. Such consent may be express or implied from all the relevant circumstances. This means that protests of whatever means by the former sovereign may completely block any claim of prescription.
As the requirement of adequate length of time for possession is concerned, there is no consensus on this regard. Thus, the adequacy of the length of period would be decided on a case by case basis. All the circumstances of the case, including the nature of the territory and the absence or presence of any competing claims will be taken into consideration.

(3) Accretion
Accretion is a geographical process by which new land is formed mainly through natural causes and becomes attached to existing land. Examples of such a process are the creation of islands in a rive mouth, the drying up or the change in the course of a boundary river, or the emerging of island after the eruption of an under-sea volcano. When the new land comes into being within the territory of a State, it forms part of its territory, and this causes no problem. However, in case of a drying or shifting of a boundary river, the general rule of International Law is that if the change is gradual and slight, the boundary may be shifted, but if the change is violent and excessive, the boundary stays at the same point along the original riverbed.
Where a new territory is added, mainly through natural causes, to territory already under the sovereignty of the acquiring State, the acquisition and title to this territory need no formal act or assertion on part of the acquiring State.

(4) Cession
Cession of territory is a transfer of sovereignty from one sovereign to another. Its basis lies in the intention of the concerned parties to transfer sovereignty over the territory in question, and it rests on the principle that the right of transferring its territory is a fundamental attribute of the sovereignty of a State. It occurs by means of an agreement between the ceding and the acquiring States. The cession may comprise a portion of the territory of the ceding State or the totality of its territory. In the latter case, the ceding State disappears and merges into the acquiring State.
Cession of territory may be voluntary as a result of a purchase, an exchange, a gift, a voluntary merger, or any other voluntary manner, or it may be made under compulsion as a result of a war or any use of force against the ceding State. History provides a great number of examples of cession. Examples of voluntary cession are the United States’ purchase of Alaska from Russia in 1867, the exchange of a portion of Bessarabia by Romania to Russia in exchange for Dobrudja in 1878, the France’s gift of Venice to Italy in 1866, and the voluntary merger of the Republic of Texas into the United States in 1795. Examples of cession as a result of a war are the cession to Germany by France of the region of Alsace- Lorraine in 1871, and the merger of Korea into Japan in 1910.

(5) Conquest and Annexation
Conquest is an act of defeating an opponent State and occupying all or part of its territory. Annexation is the extension of sovereignty over a territory by its inclusion into the State. Under traditional International Law, conquest did not of itself constitute a basis of title to the land. It was merely a military occupation. If followed by a formal annexation of the conquered territory, then it was called subjugation and could be considered a valid derivative title to territory. Accordingly, conquest followed by annexation constituted a mode to transfer the title of the conquered territory to the conqueror. Like compulsory cession, conquest followed by annexation would transfer territory by compulsion, but unlike cession, it involved no agreement between the concerned parties.
While the acquisition of territory through conquest followed by annexation was an accepted mode of acquiring title to territory under traditional International Law, it is no longer legal at modern times. The acquisition of territory through the use of force is outlawed by paragraph 4 of article 2 of the Charter of the United Nations, which obliged the member States to refrain from the use of force against the territorial integrity or political independence of any State. This same principle is reaffirmed in the 1970 General Assembly “Declaration on Principles of International Law Concerning Friendly Relations and Co-operation among States in Accordance with the Charter of the United Nations”. This Declaration adds 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 such act shall be recognized as legal.
Although today conquest is not a legal mode of acquiring title to territory, it does give the victor certain rights under International Law as regards the occupied territory, such as rights of belligerent occupation. The territory remains the legal possession of the ousted sovereign because sovereignty does not pass by conquest to the occupying State, although it may pass in certain cases where the legal status of the territory occupied is in dispute prior to the conquest.
At present times, acquisition of territory following a war would require further international action in addition to internal legislation to annex. Such further international action would be either a treaty of cession by the former sovereign or international recognition.
Modern examples of annexation following conquest are Israel’s annexation of the Golan Heights and the East Jerusalem, and Iraq’s annexation of Kuwait in 1990. In case of the Iraqi annexation, the Security Council adopted the resolution 662 of 1990 declaring that this annexation “has no legal validity and is considered null and void”, and called upon all States not to recognize this annexation and to refrain from actions which might be interpreted as indirect recognition.
Corresponding the modes of acquiring territory, there are modes of losing it. Territory may be lost by express declaration or conduct such as a treaty of cession or acceptance of cession, by conquest, by erosion or natural geographic activities, by prescription or by abandonment.


References:
[1] See L. Oppenheim, 1 International Law, p. 563, eds. R.J. Jennings and A.D. Watts, 9th ed. London (1992).
[2] See J.L. Brierly, Law of Nations, p. 142, 4th ed., Oxford (1949).
[3] See Shaw, pp. 411-12.
[4] Id. p. 412.
[5] Bledsoe & Boczek, p. 143.
[6] Id. pp. 143-4
[7] Text in 15 U.N.T.S. 295.
[8] Text in 480 U.N.T.S. 43.
[9] Text in 610 U.N.T.S. 205.
[10] Text in 21 I.L.M. (1982), 1261.
[11] Text in 402 U.N.T.S. 71.
[12] See generally Brownlie, pp. 126-57; and Shaw, pp. 417-43.
[13] See Shaw, p. 412.
[14] Bledsoe & Boczek, pp. 155-6.
[15] Bledsoe & Boczek, p. 149; and Shaw, p. 424.
[16] See Shaw, pp. 424 and 432-6; Brownlie, pp. 133-6.
[17] See Shaw, pp. 425-6
[18] Id. 426. See generally id. pp. 426-41; and Brownlie, pp. 145-50.
[19] Shaw, p. 419.
[20] See id. pp. 419-20.
[21] See Brownlie, p.144.
[22] See C.H. Hackworth, 1 Digest of International Law, 421, U.S. Government Printing Office (1940).
[23] See Hackworth, pp. 421-2.
[24] Bledsoe & Boczek, p. 144.
[25] See id. pp. 144-5; and Shaw, pp. 421-2
[26] Shaw, pp. 422.
[27] Bledsoe & Boczek, p. 140.
[28] See Shaw, pp. 422-3.
[29] G.A. Res. 2625 of October 24, 1970, 25 GAOR, Supp. 28, U.N. Doc. A/8028, at 121 (1970).
[30] See principle (a).
[31] See M. McDougal and F. Feliciano, Law and Minimum World Public Order, pp. 733-6 and 739-44, New Haven (1961).
[32] Shaw, p. 424.
[33] S.C. Res. 662 of 1990, paras. 1 and 2.
[34] Shaw, pp. 442-3.

Thanks for sharing.

Are they complete notes?

Almost cover the syllabus...

hello can you please share the notes of section which cover criminal procedure code i have h.o agarwal book and section is not cover in this book plz guide me if you have any notes related to that section

is it enough to memories these notes only and get 80 marks.