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Old Wednesday, August 30, 2017
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Smile International Law Notes

Aslam O Alaikum
Dear aspirants I have collected the notes of a well renowned professor of international law, he is Prof. Dr. Muhammad Abdul Rahim from Beirut University Lebanon. The topics that I am uploading are according to the FPSC syllabus.
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Default State Responsibility

State Responsibility
State responsibility is one of the fundamental principles of International Law. It arises out of the international legal system and the principles of State sovereignty and equality of States. It implies that if a State commits an internationally wrongful (unlawful) act against another State, it will be internationally responsible for reparation.[2]
The subject of State responsibility has been the most difficult question of the codification work of the International Law Commission (ILC).[3] The ILC has been working extensively on this subject. In 1975, the ILC initiated its work on the draft articles concerning State responsibility. The Articles on the State Responsibility was finally adopted by the ILC on August 9, 2001.[4] The General Assembly adopted the resolution 83/56 of December 12, 2001, taking note of “the International Law Commission’s Articles on the State Responsibility” and recommending it to the member States of the United Nations. The ILC Articles, in addition to the State practice and the decisions of international tribunals (the case law) on the subject, constitute the international law of State responsibility.
The law of State responsibility is concerned with the nature of the State responsibility, the legal consequences resulted from, and the implementation of such responsibility.

Section 1: The Basis and Nature of State Responsibility
State responsibility is founded on three basic elements.[5] The first element is the existence of an international legal obligation in force between the concerned States. The second is the occurrence of a wrongful act or the omission of an act in violation of such an obligation, which is imputable to the State. The third is that loss or damage has resulted from such wrongful act or omission. These three elements are the requirements of establishing the responsibility of the State, which have been made in a number of leading international legal cases and reiterated by the ILC “Articles”.[6] The “Articles” provides that every internationally wrongful act (a delict) of a State entails responsibility.[7] It defines internationally wrongful act as a conduct consisting of an action or omission attributable to the State under International Law and constitutes a breach of an international obligation of the State.[8] A breach of an international obligation is defined as an act which is not in conformity with what is required of the State by that obligation, regardless of its origin or character.[9]
Responsibility is the necessary corollary of a right. All rights of an international character involve international responsibility.
International Law does not distinguish between contractual (conventional) and tortious responsibility. International responsibility relates both to breaches of treaty and to other breaches of legal duty.[10] Any violation by a State of any obligation of whatever origin or character gives rise to State responsibility and consequently to the duty of reparation. Reparation therefore is the indispensable complement of a failure of a State to apply any of its obligations.
State responsibility only arises when the act or omission which constitutes a breach of legal obligation is imputable (attributable) to a State.[11] It may be founded on “fault” or “no fault” concept.
Notably, it is important to mention here that a State is responsible for wrongful acts which constitute international delicts, not international crimes. Because of the controversy concerning State responsibility for international crimes, the ILC Articles does not mention international crimes. However, the ILC Draft
Articles made a distinction between international crimes and international delicts. The Draft Articles provided that an international wrongful act resulting from the breach of an international obligation which was essential for the protection of fundamental interests of the international community and which was recognized as a crime by that community constituted an international crime; examples of such international crimes were aggression, colonial domination, slavery, genocide, apartheid and massive pollution of the atmosphere. [12] All other international wrongful acts constituted international delicts.
While it is apparent that a State is responsible for international delicts, it is not clear that it is responsible for international crimes. The question of State criminal responsibility has been highly controversial.[13] Some have argued that the concept is of no legal value and cannot be justified.[14] Others have argued that since 1945 the attitude towards certain crimes committed by State has altered so as to bring them within the scope of International Law. They have pointed to three specific changes that have occurred since 1945 to justify States responsibility for international crimes.[15] The first change has been the development of the concept of peremptory norms of International Law (jus cogens) as a set of principles from which no derogation is allowed. The second change is the establishment of individual criminal responsibility directly under International Law. Finally, the Charter of the United Nations and its provisions concerning the enforcement action which may be taken against a State in case of committing a threat to or breaches of the peace or act of aggression. In the light of these changes, the ILC, in its Draft Articles, adopted the approach of including international crimes by States within the scope of International Law. However, because of the controversy concerning this question, the ILC omitted any mention of international crimes of States in its Articles as finally approved. The “Articles” provides that States are under a duty to co-operate to bring an end, through lawful means, any serious breach by a State of an obligation arising under a peremptory norm of International law and not to recognize as lawful any such situation.[16]

A. The Question of “Immutability”
A State is responsible (liable) only for its own acts or omissions. A State is identified with its “government” which includes the executive, the legislature and the judiciary, and includes central authorities as well as local authorities.[17]
It is established by the case law that a State is liable for the conducts of any of its organs. This established rule is reiterated by the ILC “Articles”. The ILC “Articles” provides that the conduct of any State organ (including any person or entity) having that status under the internal law of that State, whether that organ belongs to the constituent, legislative, executive, judicial or other authority, whether its functions are of an international or an internal character, and whether it holds a superior or a subordinate position in the organization of the State, shall be considered as an act of the State concerned under International Law, provided that organ was acting in that capacity in the case in question.[18] The conduct of an organ of a territorial governmental entity within a State shall also be considered as an act of that State under International law, provided that organ was acting in that capacity in the case in question.[19] The conduct of an organ of an entity which is not part of the formal structure of the State or the territorial governmental entity, but which is empowered by the internal law of that state to exercise elements of governmental authorities, shall also be considered as an act of the State under International Law, provided that organ was acting in that capacity in the case in question.[20]
It is also established that a State is liable for the acts of its officials if those acts are imputable (attributable) to the State. This rule depends on the link that exists between the State and the person or persons committing the wrongful act or omission. The State as a moral legal entity, in reality acts through authorized officials. It is not liable under International Law for all acts of its officials; it is liable only for acts of its officials that are imputable to it. Imputability is a legal notion which assimilates the acts or
omissions of the State officials to the State itself and which renders the State liable for damages to persons or properties resulting from such acts.[21]
The question of “immutability”, however, creates problems when officials exceed or disobey their instructions. Because the evading of liability by a State in such a case will be unjust, it is established that a State is liable for the acts of its officials, even when they exceed or disobey their instructions, if those officials are acting with “apparent authority” or if they are abusing “powers” or “facilities” placed at their disposal by the State.[22] The ILC “Articles” reiterates such a rule by providing that the conduct of any organ of a State, having acted in that capacity, shall be considered as an act of the State under International Law even if such organ exceeded its competence according to internal law or disobeyed instructions concerning its authority. With regard of wrongful acts committed by private persons, in principle, a State is not responsible for such acts. However, it is established by case law and reaffirmed by the ILC Articles that a State is responsible for acts of private persons if those persons are acting on behalf of that state, on its instructions, under its control, or exercising elements of governmental authority in the absence of governmental officials and under circumstances which justify them in assuming such authority.[24] It is also responsible for acts of private persons if such acts are accompanied by some act or omission on part of the State, for which it is liable. Such act or omission by the State may take one of the following forms: encouraging the person to perform such act, failing to take reasonable care to prevent the person from performing such act, failure to punish the person, obtaining some benefit from the act of the person, or express ratification of the person’s act.[25]
With regard of actions of rioters or rebels causing loss or damage to a foreign State or its nationals, the general principle is that the State is not liable for such actions if it has acted in good faith and without negligence.[26] However, in such a case, the State is under a duty to show due diligence. Nevertheless, when the rebellion movement succeeds in establishing the new government of a State or a new State in part of the territory of the pre-existing State, it will be held responsible for its activities prior to its assumption of authority; this rule is reaffirmed by the ILC Articles.[27]

B. The Question of “Fault”
There are two theories used as foundations for State responsibility: the “risk” theory and the “fault” theory.[28] The “risk” theory is based upon the principle of objective responsibility which maintains that the liability of the State is strict. Once a wrongful act causing damage has been committed by a State official or organ, that State will be responsible under International Law to the injured State irrespective of its intention. In contrast, the “fault” theory is based upon the principle of subjective responsibility which requires the establishment of an element of intention, fault or negligence on the part of the State official or organ before rendering the State liable for any damage.
There is no agreement in the International Law on the question of the basis of State responsibility. The relevant cases and the opinions of legal scholars are divided on this question. However, the majority of cases and opinions tend towards the “risk” theory of responsibility.[29]
Section 2: Legal Consequences of State Responsibility
A State is responsible for its international wrongful act. This responsibility entails certain legal consequences on that State. The first consequence is the cessation of the wrongful act, and the second is the reparation.

A. Cessation of the Wrongful Act
The first legal consequence of State responsibility under International law is that the wrongdoing State is obliged to cease the wrongful act, if it is continuing, and to offer appropriate assurances and guarantees on non- repetition.[30]

B. Reparation
The second legal consequence resulting from State responsibility for international wrongful act is that the wrongdoing state is under a duty to remedy its acts. The injured State is entitled for full reparation in form of restitution in kind, compensation and satisfaction, either singly or in combination.[31] The wrongdoing State cannot employ its internal law to avoid providing full reparation.
Restitution in kind means that the wrongdoing State has to re-establish the situation that existed before the committing of the wrongful act. It can be provided if it is not materially impossible, not involving breach of an obligation arising from a peremptory norm of general International Law, not involving a burden out of all proportion to the benefit which the injured State would gain from obtaining restitution in kind instead of compensation, or not seriously jeopardize the political independence or economic stability of the wrongdoing state.
If restitution in kind is not available, compensation for the damage caused must be paid. Monetary compensation covers any financially assessable damage suffered by the injured state, and may include interest, and may include, in certain circumstances, loss of profits. It may be paid for both material and non-material (moral) damage. Satisfaction is the third form of reparation. It is a remedy which is appropriate in cases of moral damage and non-monetary compensation. It may take the forms of an official apology, a nominal damage, the punishment of the guilty officials or the acknowledgement of the wrongful character of an act.

Section 3: The Implementation of State Responsibility
A State is entitled to invoke the responsibility of another State if the obligation breached is owed to it individually or to a group of States, including it, or to the international community as a whole. A State other than an injured State may invoke the responsibility of another State if either the obligation is owned to a group of States including it, and is established for the protection of a collective interest of the group, or the obligation breached is owed to the international community as a whole. In such cases, a State may demand the cessation of the wrongful act, assurances and guarantees of non-repetition, satisfaction, as well as reparation. These doctrines are reaffirmed in the ILC Articles.
Where several States are injured by the same wrongful act, each State may separately invoke responsibility. Where several states are responsible, the responsibility of each may be invoked.
However, responsibility can not be invoked if the injured State has validly waived the claim, or it has caused, by reason of its conducts, in the lapse of the claim. Any waiver needs to be explicit and clear.
An injured State may seek to settle its claim peacefully through any of the peaceful means, or it may take countermeasures against the wrongdoing State. In a case of an injury affecting its national, the State may provide him with diplomatic protection.
A State may present an international claim against the wrongdoing State before an international tribunal. However, a State has to establish its qualifications for bringing the claim and the validity of the claim itself before the merits of the claim can be addressed. Where a claim is brought before an international tribunal, objections may be raised against its admissibility. The first is an objection to the jurisdiction of the tribunal; if successful, it will stop all proceedings in the case. Other objections are the nationality of the claimant, the non-exhaustion of local remedies, and the undue delay in presenting the claim.

A. Diplomatic Protection and Nationality of Claims
The doctrine of state responsibility with regard to injuries to nationals is based upon the attribution to one State of the wrongful act or the omission and the capacity of the other State to adopt the claim of its injured national. Nationality is the link between the individual and his State as regards particular benefits and obligations. It is also the link between the individual and the benefits of International law. Although International Law is now tending to grant certain rights to individuals apart of the intervention of the State, the basic rule remains that in a State-oriented world, it is only through the State the individual may obtain the full range of benefits available under International Law, and nationality is the key.
Although a State is under a duty to protect its nationals, it is not under a duty to provide them with diplomatic protection. A State may provide diplomatic protection to its nationals. Diplomatic protection consists of resorting to diplomatic action or other means of peaceful settlement by a State adopting in its own rights the cause of its nationals in respect of an injury to any of its national arising from an internationally wrongful act of another State. Such diplomatic protection is not a right of the national concerned, but a right of the State which may or may not choose to exercise.
The diplomatic protection is the result of the historical reluctance to permit individuals the right in International Law to bring claims against foreign States, for reasons related to the principles of state sovereignty and non-intervention in domestic affairs of a State. The exercise of diplomatic protection is not regarded as intervention contrary to International Law. A State may take up the claim of its national against another state before an international tribunal. Once a State does this, the claim then becomes that of the state, not of the injured individuals. Thus, the State may waive its claim, but the individual cannot.
In International law, the normal and important function of nationality is to establish the legal interest of a State when its national suffers injury or loss caused by another State. The subject matter of the claim is the individual and his property, and the claim is that of the State. If the plaintiff State cannot establish the nationality of the claim, the claim will be inadmissible because of the absence of the legal interest of the claimant. The “nationality of the claim” principle is well established in customary International Law. However, there are certain exceptions to the principle of the nationality of the claim. Examples of such exceptions are the right of protection of an alien seaman on a ship flying the flag of the protecting State, an alien in the service of the armed forces of a claimant State, and stateless person or refuge who at the dates of the injury and presentation of the claim is lawfully and habitually resident in that state.
The nationality must exist at the date of the injury, and should continue until at least the date of the formal presentation of the claim. Where an individual possesses dual or multiple nationalities, any State of which he is a national may adopt his claim against a third State. Where a case involves more than one State of nationality, the State with which he has the more effective connection may adopt his claim
against the other State. As far as a moral legal person (such as a corporation) is concerned, there must be some tangible link between it and the State adopting its claim.

B. The Exhaustion of Local Remedies.
It is established in the customary International Law that before international proceedings are instituted or claims or representations made, the remedies provided by the local State should have been exhausted. This rule implies that an injured individual must exhaust remedies in the courts of the defendant State before an international claim can be brought on his behalf. It is a rule which is justified by political and practical considerations, not by any logical necessity deriving from the International Law. Among the political and practical considerations suggested to justify such rule are the avoidance of resorting to diplomatic protection in small and insignificant claims, and the greater suitability and convenience of local courts as forums for claims of individuals. This rule is reaffirmed in the ILC Articles which provides that the responsibility of a State may not be invoked if the claim is one to which the rule of exhaustion of local remedies applies and any available and effective local remedy has not been exhausted.
The exhaustion of local remedies rule does not apply where one State has been guilty of a direct breach of International Law causing direct injury to another State. It applies to cases of diplomatic protection where a State claims injury to its nationals, and when effective remedies are available in the wrongdoing State. A claim will not be admissible in the International Law unless the natural or legal foreign person concerned has exhausted the legal effective remedies available to him locally in the defendant State.

C. Unreasonable Delay and Improper Activities of the Injured National
A claim by a State against another State will not be admissible if it is presented after an unreasonable delay by the claimant State. It may be inadmissible if the injured national has suffered injury as a result of his improper activities. However, in such a case, the injury suffered by the national must be roughly proportional to his improper activities.

D. Resorting to Countermeasures
An injured State may seek to settle its claim peacefully through any of the peaceful means, or it may take countermeasures against the wrongdoing State. Countermeasures are acts of retaliation which are traditionally known as “reprisal”. They may be in a form non-compliance of the injured State with its legal obligations towards the wrongdoing State, or unilateral coercive actions taken by the injured State against the wrongdoing State. Such measures are a type of self help utilized in order to induce the wrongdoing State to discontinue its wrongful act and to provide reparation.
Today, there are certain legal limits to countermeasures. The most important limit is the prohibition of the armed retaliations because of the general prohibition of the use of force provided in Article 2(4) of the Charter of the United Nations. Countermeasures have to be proportional to the wrongful act. They must not violate basic human rights or the peremptory norms of International Law.


References:
[1] See generally Brownlie, part VIII; J. Crawford, The International Law Commission’s Articles on State Responsibility, Cambridge (2002) ; C. Gray, Judicial Remedies in International Law, Oxford (1987); Malanczuk, chapter 17; and Shaw, chapter 14.
[2] Shaw, p. 694.
[3] See Malanczuk, pp. 254-6.
[4] See ILC Commentary 2001, U.N. Doc. A/56/10 (2001).
[5] See Shaw, p. 696.
[6] Id, pp.696-7.
[7] ILC Articles on the State Responsibility art.1.
[8] Id. art. 2.
[9] Id. art.12.
[10] See Brownlie, p. 421.
[11] See Brownlie, p. 422.
[12] See the ILC Draft Articles on the State Responsibility art. 19.
[13] See e.g. Oppenheim, vol. 1, pp. 533-5.
[14] See e.g. I. Brownlie, International Law and the Use of Force by States, 150-4, Oxford (1963).
[15] See the Commentary of the Rapporteur to draft article 19, 1970 Yearbook of the ILC, vol. II, pp.102-5.
[16] The ILC Articles art. 41.
[17] See Malanczuk, p. 257.
[18] The ILC Articles art. 4.
[19] Id. art. 4.
[20] Id. art. 5.
[21] See Shaw, p. 701.
[22] See Malanczuk, p. 258; also Brownlie, pp. 434-6; and Shaw, pp. 702-4.
[23] The ILC Articles art. 7.
[24] Id. art. 8. See also 704-5.
[25] See Malanczuk, p. 259.
[26] See Shaw, 705-6; also Brownlie, pp. 436-8.
[27] The ILC Articles art. 10.
[28] See Shaw, p. 698.
[29] See generally Shaw, pp. 698-700.
[30] Id. p. 714; see also the ILC Articles art. 30.
[31] The ILC Articles art. 34.
[32] See Shaw 716; also the ILC Articles art. 35.
[33] See the ILC Articles art. 36(1).
[34] Id. art. 36(1).
[35] Id. art. 31(2).
[36] See Shaw, pp. 719-20; also the ILC Articles art. 37.
[37] The ILC Articles art. 42.
[38] Id. art. 48.
[39] Id. art. 46.
[40] Id. art. 47.
[41] Id. art. 45.
[42] See Shaw, pp. 721-2.
[43] Id. p. 722.
[44] Id.
[45] Id. p. 723.
[46] Id. pp. 722-3.
[47] Id. p. 726.
[48] Id. p. 727.
[49] See generally Brownlie, pp. 772-81; and Shaw, pp. 730-2.
[50] Shaw, p. 730; see also the ILC Articles art. 44.
[51] See Brownlie, p. 473.
[52] Id.
[53] The ILC Articles art. 44.
[54] Shaw, p. 731.
[55] See Malanczuk, p. 269.
[56] Id.
[57] See the ILC Articles art. 49.
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Post Public International Law - Introductory Topics

Public International Law
Introductory Topics

The term “international law” was first used by the English philosopher Jeremy Bentham in 1780 in his treatise entitled “Introduction to the Principles of Morals and Legislation”. Since about 1840, this term replaced the older terminology “law of nations” which can be traced back to the Roman concept of “ius gentium”.
International Law is divided into two branches: Private International Law (conflict of laws as it is called in the countries of the Common Law System), and Public International Law (usually just termed International Law). Private International Law deals with those cases, within a particular legal system, in which foreign elements involve, raising questions as to the application of foreign law or the role of foreign courts. Public International Law deals, in general, with the external relations of States. It is this latter branch of International Law is the subject of this present book.
What is Public International Law? How is it originated and developed? What is the aim it is trying to achieve?
The answers to all these raised questions are dealt with in the following sections.

I. Definition of Public International Law
Until the Second World War, legal scholars found no difficulty in defining “Public International Law”, in one formation or another, as the law that governs the relations between States. This traditional definition is a reflection of the prevailing doctrine of the nineteenth century and the first half of the twentieth century considering that only states could be persons (subjects) of Public International Law, in the sense of enjoying international legal personality, i.e., being capable of possessing international rights and duties.
However, since the mid-twentieth century, the traditional definition has become controversial due to both the expansion of the scope of the Public International Law into new areas and the emergence of new actors, beside states, on the international scene, such as international organizations, multinational corporations, individuals and groups, including minorities and indigenous peoples. Some of these actors have acquired international legal personality, or, at least, certain rights under International Law.
In the light of this development, the traditional definition has become incomprehensive description of this law, and the change of the definition of the Public International Law has become inevitable. Public International Law has been defined as a body of legal rules which regulates or governs relations between international persons (subjects). This contemporary definition of Public International Law goes beyond the traditional one which defines this law as a body of rules governing relations between states.

Thus, the contemporary Public International Law consists of the following:

(a) Legal rules of conduct which states feel themselves bound to observe in their relations with each others;

(b) Legal rules related to the functioning of international organizations, their relations with each other and their relations with States and individuals; and

(c) Legal rules related to individuals and non-state entities as far as the rights and duties of these subjects are the concern of the international community.

Public International Law now covers vast and complex areas of international concern, including traditional topics, such as the State, peace and security, the laws of war, the laws of treaties, the law of the sea, the law of diplomatic and consular relations, as well as new topics, such as international organizations, economy and development, air law and outer space activities, communications, the environment, and last but not least, human rights.
The rules of Public International Law are general and universal in their nature, and are legally binding on all the persons of International Law. These rules must be distinguished from what is called international comity and what is known as international morality. A comity is a friendly gesture or courtesy exercised by one State toward another without constituting a legal obligation; an example of a comity is the flag salute at the sea. A comity helps in promoting and maintaining friendly relations among States. While not a legal rule, a comity can be widely observed and can evolve into a customary international rule or be codified as a law; an example of an international comity which was codified as a law is the exemption from customs duties of personal articles used by diplomats (codified in the Vienna Convention on Diplomatic Relations of 1961).

Rules of International Law may meet at certain points with principles of international morality since they cannot be divorced from their moral values. However, the former rules are legal in their contents and forms, while the principles of morality are part of the discipline of ethics which is not legally binding.

II. Origin and Development of Public International Law
The foundations of Public International Law as it is understood today lie firmly in the development of political relations between the Western European States some 400 years ago. However, certain basic concepts of this Law can be traced back thousands of years ago, in relations between ancient political entities, such as of the Near East, Greece and Persia.
The structure and development of Public International Law is connected with the era of sovereign national States dealing with each other as independent entities. In this sense, therefore, the history of this Law can be regarded as beginning in the 16th Century with the emergence of independent nation-states from the ruins of the medieval Holy Roman Empire which was based on the claims to universal authority of the Pope as the spiritual, and the Emperor as the temporal, head of Christian nations of Europe. As this Empire disintegrated, a growing number of independent and equal States filled the gap.
The Emergence of independent and equal States subject to no temporal superior authority led to new political theories.The most prominent among these theories was the theory of Sovereignty. This theory was explicitly formulated by Jean Bodin (1530-1596) in his treatise entitled Six Livres de Republique (Six Books on the Republic) of 1576. According to Bodin, in every State there exists in an individual monarch a power called sovereignty (majesties). Sovereignty is a Republic absolute and perpetual power. It is absolute because it is indivisible; however, it is not without any limits. While such a sovereign is not bound by the laws himself instituted, he remains bound by the divine law, the law of nature, and the law of nations. Sovereignty is perpetual because it does not disappear with its holder (the sovereign). The concept of sovereign as supreme legislator, as formulated by Bodine, was in the course of time evolved into the principle which gave the State supreme power vis-à-vis other States.
The coexistence of independent sovereign States led to the development of the system of interstate relations. The need for rules regulating the intercourse between the newly emerging States in Europe stimulated these States to draw mainly upon the Roman Law and the Cannon Law (the Law of Roman-Catholic Church) for the sources of such rules. The significance of the Roman Law and the Cannon Law contribution to “the law of nations” lies not only in the development of a modern system of interstate legal relations, but also in the development of many principles of general equity and “natural law” some of which are similar to certain general principles of law recognized by civilized nations.
In the few centuries that preceded the Thirty Years War (1618-1648), the intensification of international trade, and the improvements in navigation and military techniques, and the discovery of many distant lands by the European States stimulated further development of international practices and the emergence of new conceptions of the law of nations. The intensification of trade led to the conclusion of many commercial treaties and the emergence of new practices and principles related to the law of merchant and the maritime law. Notably, the growth of international trade had from the 8th Century onwards led to the development of international law of merchant and, in particular, to various compilations of maritime law which gained increasing international recognition. The international customs and principles related to the law of merchant and maritime constituted part of the practices and principles of “the law of nations.”
The discovery and subjugation of distant lands and peoples by European States produced numerous conflicting claims of sovereignty, jurisdiction, rights of trade and rights of navigation as well as problems of relations. All these developments urged the Europeans to resort to the Roman Law for helpful norms or analogies, and consequently led to new practices and principles.
By the 17th Century, the growing complexity of international principles, customs and treaties had given rise to their compilation and to the development of further rules governing the conduct of States in time of war and peace. The most important treatise, dealing with States’ relations in time of war and peace, of this period was “De Jure Belli Ac Pacis” (On the Law of War and Peace), published in 1625 by the Dutch jurist and diplomat Hugo Grotius (1583-1645).[13] Hugo Grotius is recognized as the “Father of International Law”, and his treatise is generally regarded as providing the foundation of the Public International Law.
Beside Grotius, there are many jurists who contributed extensively to “the law of nations” during the 17th and the 18th centuries. Among these jurists are Francisco de Vitoria (1480-1546), Suarez (1548-1617), Alberico Gentili (1552-1608), Samuel von Pufendorf (1632-1694), Richard Zouche (1590-1660), Johann Jacob Moser (1701-1785), Christian Wolff (1676-1754), and Emerich de Vattel (1714-1769).
The International Law (the law of nations) further expanded in the 19th Century. This expansion was due to major events such as the expansion of the European empires, the rise of powerful States both within and outside Europe, the spread of the thought of democracy and nationalism, the Industrial Revolution, the modernization of world transport, and the influence of new inventions. All these events urged the international community to develop the International Law in order to accommodate such events. Consequently, International Law as a law regulating diplomatic and commercial relations between States, and the conduct of war, multiplied and intensified during the 19th Century.
The establishment of the League of Nations in 1919, following the First World War, and the establishment of the United Nations in 1945, following the Second World War, represented two significant turning points in the development of the International Law. The development was characterized by a new departure in the evolution of this Law. International Law began its evolution from being primarily a system of regulating relations between States towards becoming also a system of international cooperation.
The League of Nations was the first international organization established primarily for the purpose of maintaining international peace and security. The establishment of the International Labor Organization (ILO), affiliated with the League of Nations, in 1919 signaled the end of an era in which International Law was, with few exceptions, confined to the regulation of relations between States. The ILO was the first permanent international organization concerned with the improvement of labor conditions and social welfare at the international level. In 1921, the Permanent Court of International Justice (PCIJ) was established as the first permanent international judicial organ with an international judicial jurisdiction.
The establishment of the United Nations in 1945 led to a progressive development of International Law. During the post-United Nations’ era, the development of International Law has been influenced by two major events effected the international community. The first major event has been the expansion in the membership of the international community. New States, mostly representing non-western civilization, have joined the club of family of nations, which was previously exclusively limited to States belonging to Western Civilization. The concerns and priorities of these States have been different from those of other States; they have been occupied with the development of their political, economic and social systems. The second major event has been the massive expansion of international organizations for cooperation. Numerous specialized agencies of the United Nations and other international organizations, universal as well as regional, have been established. This event has confirmed the evolution International Law from its traditional nature to its contemporary nature of being a system of organized collective efforts for cooperation.
Since the establishment of the United Nations, a great number of international treaties covering all aspects of international affaires have been concluded. Law-making treaties have been contributing extensively to the rapid development of Public International Law. They have led to may important new developments in Public International Law, and greatly increased both its scope. Apart of the law-making treaties, international courts, the present International Court of Justice (ICJ), its forerunner the Permanent Court of International Justice (PCIJ), and others, have been also contributing to the development of Public International Law. Moreover, the International Law Commission created in 1947, the organs of the United Nations and its specialized agencies have been playing a significant role in developing and expanding Public International Law.
In conclusion, Public International Law has evolved from being primarily a law of coexistence, which characterized it from its birth in the early 16th century to the mid 20th century, to a law of international organization and cooperation. Moreover, the most important characteristic of Contemporary Public International Law is the steady expansion of its scope through the inclusion of new subject matters formerly outside its sphere, and the inclusion of new participants and subjects such as international organizations and individuals.

III. Aims of Public International Law
The initial aim of Public International Law has been to create an orderly system of international relations. However, the modern developments of this law have added another aim to it. Since the beginning of the Twentieth Century, there has been an evidence of a tendency to bring justice into the international community through ensuring justice in the relations of States and securing justice for peoples and individuals.
The establishments of the Permanent Court of International Justice in 1921 and the International Court of Justice in 1945 have been a clear evidence of such a new aim of the Public International Law. The use of the term “justice” in the name of these international courts where disputes among States are decided and where advisory opinions are given according to Public International Law is evidence that justice has become the concern of this law, and has become one of its aims and purposes.
To ensure and secure justice, and above all, to bring order to the international relations are the primary aims of the contemporary Public International Law. This law, which regulates relations between international persons, aims to create a system of order and justice for the international community. In the absence of such a system, it will be impossible for the international persons to have steady and continuous relations, and to enjoy the benefits of such relations.

References:
[1] P. Malanczuk , Akehurst’s Modern Introduction to International Law, p. 1, 7th rev. ed., Routledge, New York (1997); and see R. Bledsoe and B. Boczek, The International Law Dictionary, p. 13, Clio Press, Oxford (1987).
[2] M. N. Shaw, International Law, pp. 1-2, 5th ed., Cambridge (2003).
[3] See Malanczuk, p. 1
[4] Id.
[5] See generally D. J. Bederman, International Law in Antiquity, Cambridge (2001); L. Henkin, R.C Pugh, O. Schachter and H. Smit, International Law, chapter 1, West Pub. Co., St Paul (1980) [Hereinafter cited as Henkin & Associates]; A. Nussbaum, A Concise History of the Law of Nations, rev. ed.. New York (1954); Malanczuk, chapter 2; Shaw, pp. 13-31; and Encyclopedia of Public International Law, vol. VII, Amsterdam (1984).
[6] See Shaw, pp. 13-8.
[7] Henkin & Associates, p. 1. Note that Fredrick III, German Emperor from 1440 to 1493 was the last of the emperors crowned in Rome by the Pope.
[8] See Shaw, p. 21.
[9] Id.
[10] Note that while the Roman Law, as codified in Justinian’s Corpus Juries spread its influence over almost the entire European continent, Cannon Law, with its essentially Romantic conceptual framework, had an important influence on many aspects of English Law.
[11] Henkin & Associate,. p. 2.
[12] Id. p. 3.
[13] See Shaw, p. 23.
[14] Id.
[15] See id. pp. 22-5; and Bledsoe and Boczek, pp. 20-5.
[16] See generally id. pp. 26-29.
[17] Henkin & associates, p. 7.
[18] See id, pp. 8-9.
[19] See id. p. 9.
[20] See infra chapter 4.
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Post The Law of Treaties

The Law of Treaties

A treaty is a written international agreement concluded between States or other persons of International Law and designation. In English, the term ‘treaty” is used as a generic term embracing all kinds of international agreements “convention”, “declaration”, “general act”, “pact”, “protocol”, “statute”, as well as the term “agreement” itself. Whatever Treaties can be traced back as far as the early-recorded history of Mankind. Evidence for their existence has treaties in every conceivable subject. Ten of thousands treaties have been registered with the United Nations since signed, codifying and developing existing customary rules; it came into force in 1980.
The 1969 Vienna Convention on the Law of Treaties defines “treaty” as “an international agreement concluded between and whatever its particular designation.”It further provides that it “does not apply to international agreements agreements not in written form”. These provisions exclude agreements between states which are governed by agreements. The reason for the exclusion of these types of international agreements is to avoid complication and complexity aspects from the rules governing written agreements between States. A special convention applicable to agreements between States and International Organizations or between International Organizations”, was signed in 1986. However, The following sections are devoted to the rules applicable to the written agreements between States as provided under customary international law continue to govern questions not regulated by the Convention.

Section 1: Conclusion of Treaties
Treaties may be concluded by States in any manner they wish. There are no obligatory prescribed forms or procedures States. However, the 1969 Convention on the Law of Treaties provides general rules applicable to the conclusion and the adoption of treaties.

A. The Capacity to Conclude Treaties
Under the Convention, every State possesses capacity to conclude treaties. Since States are represented by persons, express the consent of the State bound by a treaty. Such persons must produce what is known as “full powers”. requirement is necessary to ensure the States parties to the treaty that they are dealing with the competent persons.

(1) Heads of States, heads of governments and the ministers for foreign affairs, for the purpose of performing.

(2) Heads of diplomatic missions, for the purpose of adopting the text of a treaty between their States;

(3) Representatives accredited by States to an international conference or to international organization or B. Adoption and Authentication of the Text of Treaties.

Once a draft of a treaty has been agreed upon by the competent persons, several stages need to be followed before content of the text of the proposed treaty are settled. It takes place by the consent of all the States participating in unless by the same majority they decide to apply a different rule. The adoption of the text of a treaty does not mean Second, the text of a treaty has to be authenticated. Authentication is a procedural step whereby the text of the definitively its content so that there will be no confusion as to its exact terms. The authentication of the text of a procedure, authentication may take place by the signature, signature ad referendum or initiating by the representatives.

C. The Adoption of Treaties
A treaty has to be adopted by the participating States to become binding upon them. States adopt a treaty by giving consent may be expressed by signature, exchange of instruments constituting a treaty, ratification, acceptance, approval .

(1) Consent by signature
A State may be regarded as consented to a treaty by signature when the treaty provides that signature shall have State to give that effect to the signature appears from the full powers of its representatives or was expressed during The act of signature is usually a formal event. Often in important treaties, heads of States formally affix their closing session held for that reason.

(2) Consent by exchange of instruments constituting a treaty
A State may be regarded as consented to a treaty by an exchange of instruments constituting a treaty when the the instrument should have that effect. Nowadays, often each State signs an instrument constituting a treaty and sends.

(3) Consent by ratification, acceptance or approval
The signing of the treaty by the representative of a State is either a means of expressing the final consent of the depends upon the terms of the treaty, the agreement of the negotiating States or their intention. If the treaty is subject namely the head of the State. Ratification by the competent authority of the contracting State is a step well established treaty. It allows a State to examine the provisions of a treaty before undertaking formal obligations. Moreover, it enables of how a state ratifies treaties is a matter for its internal law alone. The rules related to ratification vary from State The consent of a state to be bound by a treaty is expressed by ratification (acceptance or approval) when the ratification should be required, when the representatives of the State has signed the treaty subject to ratification, or during the negotiation. Ratification occurs when instruments of ratification are exchanged between the contracting States, or are deposited the State or the international organization that is appointed by the treaty to act as the depositary.

(4) Consent by accession
In addition to signature and ratification, a State may become a party bound by a treaty by accession. Accession consent to it may be expressed by accession, if it is established that the negotiating States were agreed that consent accession. Accession has the same effects as signature and ratification combined. It is the practice in the modern D. Reservation to a Treaty.

It is well established in the practice of States that a State has a capacity, when becoming a party to a treaty, to accept Vienna Convention on the Law of Treaties which states that a State may, when signing, ratifying, accepting, approving purpose, or the treaty permits only specified reservations. A reservation is defined by this Convention as “a unilateral to exclude or modify the legal effects of State”.

The effect of a reservation depends on whether it is accepted or rejected by the other parties to a treaty, and this counteroffer which may reopen the negotiation between the two parties concerning the terms of the treaty; and unless because it may be accepted by some parties and rejected by others. In such a case, the Convention on the Law States unless the treaty so provides, and that when it appears from the limited number of the negotiating States and of each one to be bound by the treaty, a reservation requires acceptance by all the parties.

The Convention requires that a reservation, an express acceptance of a reservation and an objection to a treaty acceptance of a reservation by a State may be implied if it has raised no objection to the reservation by the end of whichever is later. An objection by another contracting State to a reservation does not preclude the entry into force Unless the treaty provides otherwise, a reservation or an objection to a reservation may be withdrawn at any time. required that the withdrawal of a reservation or of an objection to a reservation be formulated in writing. Unless only when notice of it has been received by the concerned State.

A reservation established with regard to another party modifies for the reserving State in its relations with that same extent for that other party in its relations with the reserving State. However, the reservation does not modify Section 2: Entry into Force, Registration and Depositary of Treaties
The Convention provides rules applicable to the entry into force of treaties as well as rules applicable to registration.

A. Entry into Force of Treaties
According to the Vienna Convention on the Law of Treaties, a treaty enters into force in such a manner and upon force as soon as consent to be bound by that treaty has been established for all the negotiating States. When the consent on that date, unless the treaty provides otherwise.

Normally, treaties specify that they will enter into force upon a certain fixed date or after a determined period States. However, even when the minimum required number of ratifications is reached, the treaty enters into force only on the Law of Treaties, for example, provides that it will come into force on the thirtieth day following the date of Convention after the deposit of the thirty-fifth instrument of ratification or accession, the Convention shall enter into. Nevertheless, a treaty or a part of it may be applied provisionally pending its entry into force if the treaty itself so have agreed otherwise, the provisional application of a treaty or a part of it with respect to a State shall be terminated treaty.

B. Registration and Depositary of Treaties
After the entry of a treaty into force, the Vienna Convention requires that the treaty to be transmitted to the Secretariat one provided for by the Charter of the United Nations. Article 102 of the Charter provides that every treaty and every and published by it. Under this article, non-registered treaty or agreement remains valid but the parties to it may not from entering into secret treaties and in general to ensure publicity for treaties.
Treaties, nowadays, are registered with the Secretariat of the United Nations which then publishes them in the United In addition, the Vienna Convention on the Law of Treaties requires the designation of depositary of a treaty. This more States, an international organization or the chief administrative officer of the organization. The depositary communications related to the treaty; giving certified copies of the treaty and transmitting them to the concerned treaty about the entry into force of the treaty. Notably, the United Nations Secretariat plays a significant role as Section 3: Observance and Application of Treaties.

Once treaties enter into force, they must be observed and applied by the parties. Observance and application of A. Observance of Treaties
The Latin principle “Pacta Sunt Servanda”, which means that treaties shall be observed, is the fundamental principle of the 1969 Vienna Convention on the Law of Treaties, which states that “[e]very treaty in force is binding upon Article 27 of the Convention is that “[a] party may not invoke the provisions of its internal law as justification for According to these two principles, the parties to a treaty are under a duty to observe the treaty in good faith, and

B. Application of Treaties
Under the Vienna Convention on the Law of Treaties, the application of treaties is subject to the following rules:

(1) Non-Retroactivity of Treaties
The Vienna Convention provides that the provisions of a treaty, unless a different intention appears from the treaty before the date of the entry into force of the treaty with regard to that party. The general rule here is that a treaty does the provisions of the subsequent treaty, unless a contrary agreement so provides.

(2) Territorial Scope of Treaties
The Vienna Convention provides that unless a different intention appears from the treaty or is otherwise established, the treaty will apply only to part of its territory.

(3)Application of Successive Treaties Related to the Same Subject Matter
Sometimes, it happens that a party to a treaty subsequently enters into another treaty related to the same subject not also be parties to the first treaty. These situations raise certain problems which need to be resolved. Article 30 however, for the parties themselves to resolve the raised problems by their mutual agreement.
Under Article 30, the rights and obligations of States parties to successive treaties related to the same subject-matter a. When a treaty specifies that it is subject to, or that it is not to be considered as incompatible with, an earlier

b. When all the parties to the earlier treaty are parties also to the later treaty but the earlier treaty is not terminated c. When the parties to the later treaty do not include all the parties to the earlier one:

i. as between States parties to both treaties, the earlier treaty applies only to the extent ii. as between a State party to both treaties and a State party to only one of the treaties, In case of treaties concerning the same subject-matter and having incompatible provisions, the presumption is this is the case of Article 103 of the Charter of the United Nations which stipulates that “[i]n the event of a conflict agreement, their obligations under the present Charter shall prevail.” Furthermore, a particular treaty prevails over community of States as a whole as norms from which no derogation is permitted and which can be modified only by (4) Treaties and Third States.
The Latin principle “pacta tertiis nec nocent nec prosunt”, which means that a treaty creates neither right nor international law. The reasons for this principle can be found in the fundamental principles of the sovereignty in article 34 of the 1969 Vienna Convention on the Law of Treaties as a general rule corollary of the principle of consent. First, the Convention provides that an obligation may arise for a third State from a provision of a treaty if the parties obligation in writing. In such a case, the obligation may be revoked or modified only with the consent of the parties Second, the Convention provides that a right may arise for a third State from the provision of a treaty if the parties the third State assents thereto, unless the treaty provides otherwise. In such a case, the right may not be revoked or the third State. In exercising such a right the third State is required to comply with the conditions for its exercise provided upon a third State if it becomes a part of customary international law.

An example of a treaty imposes obligation upon non-party State is the 1815 agreement concerning the neutralization 1899 and 1907 Hague Conventions concerning land warfare, and the principles stated in Article 2 of the Charter of far as rights conferred upon third States by a treaty are concerned, there are many treaties containing provisions in of Denmark and Switzerland, and the 1888 Constantinople Convention which contains provisions guaranteeing freedom.

Section 4: Interpretation of Treaties
Interpretation of treaties is the most frequent focus of disputes arising with regard to treaties. Because language of treaties has been a major task in International Law. Obviously the parties to a treaty have competence to interpret or the International Court of Justice (ICJ). The Charter of the United Nations is interpreted by the organs of the United Interpretation of treaties is a rational process of clarifying and elucidating the meaning of unclear and ambiguous developed by international tribunals, publicists, organs of international organizations and diplomatic practice. Though, The 1969 Vienna Convention on the Law of Treaties, however, lays down certain fundamental rules and guidelines interpretation, and interpretation of treaties authenticated in two or more languages.

A. General Rules of Treaty Interpretation
The first general rule for treaty interpretation provided by the Vienna Convention is that “[a] treaty shall be interpreted and purpose.”This rule is the textual approach of treaty interpretation. The context of a treaty for the purpose of interpretation comprises, in addition to its text, including its preamble should be taken into account any subsequent agreement between the parties regarding the interpretation of the treaty regarding its interpretation, and any relevant rules of International Law applicable in relations between the parties. The second general rule for treaty interpretation provided by the Convention is that “[a] special meaning shall be However, there are other established approaches of treaty interpretation not provided for in the Vienna Convention treaty in a way that will render the treaty most effective and useful.

B. Supplementary Means of Interpretation
The Vienna Convention provides that “[r]ecourse may be had to supplementary means of interpretation, including above general rules needs to be confirmed, or when the interpretation according to the said general rules leaves the C. Interpretation of Treaties Authenticated in Two or More Languages.
In case of a treaty authenticated in two or more languages, as often happens with multilateral treaties, the Vienna general rules and supplementary means of interpretation does not remove, “the meaning which best reconciles the provide or the parties may agree that, in such a case, a particular text shall prevail.

Section 5: Amendment and Modification of Treaties
Although amendment and modification of treaties are two processes share a common aim which is an alteration conditions. Amendment relates to a formal alteration or revision of certain treaty provisions or the treaty as a whole, parties only. Thus the 1969 Vienna Convention on the Law of Treaties deals with these two processes in separate.

A. Amendment of Treaties
The Vienna Convention refers to three manners to accomplish amendments to treaties. The first manner is that to the conclusion and entry into force of a treaty will be applied.
The second manner is that a treaty may be amended in accordance with the procedure laid down in the treaty itself. Charter of the United Nations, for example, lays down in Articles 108 and 109 the procedure for its amendments the United Nations, including all the permanent members of the Security Council.
The third manner is that a treaty may be amended in accordance with the basic rules of procedure described by contracting States shall have the right to participate in the decision as to the action to be taken in regard to such proposal, treaty is also entitled to become a party to the treaty as amended. The amendment will not bind any State already a force of the amending agreement, unless it intends otherwise, is considered as a party to the treaty as amended in relation the amending agreement.

B. Modification of Treaties
The Vienna Convention provides that two or more of the parties to a multilateral treaty may conclude an agreement modification is provided for by the treaty.”[36] The second condition, if “the modification in question is not prohibited their obligation, and “does not relate to a provision, derogation from which is incompatible with the effective execution case or if the treaty provides otherwise, the parties in question must notify the other parties of their intention to conclude Section 6: Termination and Suspension of the Operation of Treaties. Despite the general rule that “[e]very treaty in force is binding upon the parties to it and must be performed by Convention provides that the termination of a treaty, its denunciation, the withdrawal of a party or the suspension applicable rules to such instances, provided by the Convention are as such:

A. Termination of a Treaty
Termination of a treaty means the end of the operation of a treaty, resulting in depriving all the parties of all the the withdrawal of a party may take place either in conformity with the provisions of the treaty, or at any time by consent termination or for the withdrawal of a party. A treaty may provide that it shall come to an end automatically after notice.
Where a treaty does not contain any provision regarding its termination and does not provide for denunciation or or such a right is implied by the nature of the treaty. In such cases, however, a party must give at least twelve months’ The Convention specifies the reasons for terminating a treaty. First, a treaty may be terminated by the conclusion treaty are so far incompatible with those of the earlier one that the two treaties are not capable of being applied at repudiation of the treaty not permitted by the Vienna Convention or the violation of a provision essential to the accomplishment impossibility of performance resulting from the permanent disappearance or destruction of an object indispensable existing at the time of the conclusion of that treaty. Fifth, a treaty may be terminated by reason of the severance of parties except in so far as the existence of diplomatic or consular relations is indispensable for the application of terminates.
As regard the consequences of termination of a treaty, the Convention provides that unless the treaty provides however, it does not affect any right, obligation or legal situation of the parties created through the execution.

B. Suspension of the Operation of a Treaty
Suspension of the operation of a treaty means the making of a treaty temporary inoperative in regard to either all to the provisions of the treaty or at any time by consent of all the parties. Two or more parties to a multilateral possibility of such a suspension is provided for by the treaty,” or “the suspension in question is not prohibited by obligation,” and “is not incompatible with the object and purposes of the treaty. However, unless the treaty provides the treaty the operation of which they intend to suspend. Treaties sometimes provide for the possibility of suspension Under the Convention, a treaty may be suspended by the following circumstances: 1) the conclusion of a later treaty a material breach of a treaty which consists in either a repudiation of the treaty not permitted by the Vienna Convention performing a treaty; or 4) a fundamental change of circumstances occurs with regard to those existing at the time of Suspension of the operation of a treaty releases the parties from any further obligation to perform the treaty during the treaty prior to its suspension.

Section 7: Invalidity of Treaties
Invalidity of a treaty means nullity of a treaty or its particular provisions because of the existence or absence of certain validity or invalidity of treaties. The 1969 Vienna Convention on the Law of Treaties, however, provides some general consequences of the invalidity of treaties.

A. General Rules on Invalidity of Treaties
The Vienna Convention on the Law of Treaties provides that “[t]he validity of a treaty or the consent of a State invalidating (as well as for terminating, withdrawal from or suspending the operation of a treaty) may be invoked only to a material breach of a treaty by one of the parties. A State cannot invoke a ground for invalidating (as well as for is valid or remains in force, or it, by reason of its conduct, may be considered as having acquiesced in the validity B. Grounds for Invalidating Treaties
The Vienna Convention specifies the following grounds for invalidating treaties:

1) Manifest violation of a provision of fundamental importance of State’s internal law regarding competence accordance with normal practice and in good faith.”[46]

2) Lack of the State’s representative appropriate full powers.[47]3) Excess of authority by the representative:[48] Such an excess will be a ground to invalidate a treaty if negotiating States prior to his expressing such consent.4) Error: A State may invoke an error in a treaty as invalidating its consent to be bound by the treaty situation forms an essential basis of its consent to be bound by the treaty. If the State in question contributed invalidating its consent. An error relating only to the wording of the text of a treaty does not affect its validity.

5) Fraud: A State may invoke the fraud as invalidating its consent to be bound by the treaty if it has 6) Corruption of a representative of a State: A State may invoke the corruption of its representative as directly or indirectly by another negotiating State.

7) Coercion of a representative of a State: Acts or threats directed personally against a representative without any legal effect.

8) Coercion of a State by the threat or use of force: A treaty is void if its conclusion has been procured.

9) Conflict of the treaty with an existing and emerging peremptory norm of general International Law (peremptory norm of general International Law emerges, any existing treaty conflicting with that norm becomes C.

Consequences of Invalidity of Treaties.
The consequences of invalidity of treaties vary according to the nature of the ground of invalidity. The Vienna State and conflict with an existing and emerging of peremptory norm of general international law, the treaty is void, cases of violation of the internal law of the State, excess authority by the representative, error, fraud, and corruption may invoke the ground to invalidate the treaty. However, this right may be lost for the following reasons: (a) if after may be considered as having acquiesced in the validity of the treaty or in its continuance in force or in operation; or The Convention provides that an invalid treaty is void and without any legal effect. If acts have nevertheless position that would have existed if the acts had not been performed. Acts performed in good faith before the invalidity Section 8: Procedures to be Followed with Respect to Invalidity, Termination, Withdrawal from, or Suspension Operation of a Treaty.

The Vienna Convention provides that a party invoking a ground to invalidate a treaty, terminate it, withdraw from action. If after the expiry of a period which shall not be less than three months from the receipt of the notification, no has been raised by any party, the parties must seek a solution through the peaceful means indicated in Article 33 of If no solution is reached within twelve months, the dispute is to be submitted to a special conciliation commission to the International Court of Justice (ICJ).

References:
[1] See generally A.D. McNair, The Law of Treaties, Oxford (1961); A. Aust, Modern Treaty Law and Practice, U.N. Doc. A/CONF.39/27.
[2] The 1969 Vienna on the Law of Treaties art. 1(a).
[3] Bledsoe & Boczek, pp. 271-2.
[4] The 1969 Convention on the Law of Treaties art. 1(a).
[5] Id. art. 3.
[6] Text in 25 I.L.M. (1986) 543.
[7] Id. arts. 2(c), 6 & 7.
[8] Id. arts. 9 & 10.
[9] Id. art. 11.
[10] Id. art. 12.
[11] Id. art. 13.
[12] Id. art. 14.
[13] Id. art. 15.
[14] Id. arts. 2(d) & 19-23.
[15] Id. art. 2(d).
[16] Id. arts. 24 & 25.
[17] Id. art. 84.
[18] Id. arts. 76, 77 & 80.
[19] Id. arts. 26 & 27.
[20] Id. art. 28.
[21] Id. art. 29.
[22] Id. art. 30.
[23] Id. arts. 34-38.
[24] See Bledsoe & Boczek, pp. 259-60.
[25] See generally Brownlie, pp. 602-7; Shaw, pp.838-44
[26] The 1969 Vienna Convention on the Law of Treaties arts. 31-33.
[27] Id. art. 31.
[28] Id. art. 31(1).
[29] Id. art. 31(4).
[30] Id. art. 32.
[31] Id.
[32] Id. art. 33.
[33] Id. art. 33(4).
[34] Id. arts. 39 & 40.
[35] Id. art. 41.
[36] Id. art. 41(10)(a).
[37] Id. art. 41(1)(b).
[38] Id. art. 26.
[39] Id. art. 42(2).
[40] Id. arts. 54-56 & 59-64.
[41] Id. arts. 42, 57-61.
[42] Id. art. 58.
[43] Id. arts. 42, 45 & 46.
[44] Id. art. 42(1).
[45] Id. art. 46.
[46] Id. art. 46(2).
[47] See id. art. 8.
[48] Id. art. 47.
[49] Id. art. 48.
[50] Id. art. 49.
[51] Id. art. 50.
[52] Id. art. 51.
[53] Id. art. 52
[54] Id. art. 53.
[55] Id. art. 69-72.
[56] Id. arts. 65-68.
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Post The Law of the Sea

The Law of the Sea

The Law of the Sea is that part of Public International Law that regulates the rights and duties of States, and possibly other subjects of International Law, with regard to the use and utilization of the seas in time of peace. In this sense, the Law of the Sea is distinguished from the private maritime law, which regulates the rights and obligations of private persons with regard to maritime matters, such as the carriage of goods and maritime insurance.
Although some rules of the Law of the Sea can be traced to medieval private compilations governing primarily maritime rights and obligations of merchants and ship-owners in the Mediterranean, the Law of the Sea developed as part of the Law of Nations in the Seventeenth Century with the emergence of the modern national State system. The classical publicists drew on Roman Law and dealt with the matters of this subject in the natural law tradition. The best known publication, among the early writings on this subject, is the 1609 Hugo Grotius’ pamphlet “Mar Liberum” (Freedom of the Sea).
By the Nineteenth Century, as customary rules gradually produced a body of law based on State practice and consensus, the Law of the Sea, like other areas of Public International Law, developed into a system of customary principles and rules governing the rights and duties of States, mostly in the territorial sea and the high seas.
During the Nineteenth Century and the period before the Second World War, several unsuccessful attempts were made to codify the customary law of the sea. After the Second World War, several conferences were held for the objective of codifying the various aspects of the Law of the Sea. The first conference was the First United Nations Conference on the Law of the Sea (UNCLOS I), known as the 1958 Geneva Conference on the Law of the Sea, which led to the conclusion of four conventions: (1) The Convention on the Territorial Sea and Contiguous Zone; (2) The Convention on the High Seas; (3) The Convention on the Continental Shelf; and (4) The Convention on Fishing and Conservation of the Living Resources of the High Seas. An Optional Protocol on the Compulsory Settlement of Dispute was signed.
The 1958 Geneva Conference on the Law of the Sea constitutes the first major codification of the Law of the Sea. Most of the provisions of the first two conventions, and some of the provisions of the Convention on the Continental Shelf, are a codification of customary law; while the others are a mixture of codification and progressive development of International Law as understood by the International Law Commission. Thus, although the conventions are binding only on States parties to them, many of their provisions can be used as evidence of customary law against States not parties to them. All these four conventions are still in force, but for a limited number of States; the United States of America is among those States since it has not yet ratified the 1982 Convention on the Law of the Sea.
The 1958 Geneva Conference failed to reach agreement on some questions, particularly on the width of the territorial sea and rights of coastal States in the areas of the high sea adjacent to their territorial seas. To deal with such questions, the Second United Nations Conference on the Law of the Sea (UNCLOS II), which is known as the 1960 Geneva Convention on the Law of the Sea, was convened; but this Conference failed to achieve its objectives. This reason, in addition to the dissatisfaction of some States with various rules laid down in the 1958 Convention and the technological, economic and political developments since its conclusion, led to the convene of the Third United Nations Conference on the Law of the Sea, 1973-1982 (UNCLOS III). This Conference led to the conclusion of the United Nations
Convention of the Law of the Sea on December, 1982, which entered into force on November 16, 1994.
The 1982 Convention on the Law of the Sea constitutes a comprehensive codification and development of contemporary international law governing the Sea in time of peace. Some of the provisions of the 1982 Convention codify the existing customary international law of the sea; this is particularly true of those provisions which repeat those of the four 1958 Conventions which codified customary law. Almost all the provisions of the four 1958 Conventions are repeated, modified or replaced by the 1982 Convention. But many of the provisions of the 1982 Convention depart from the existing customary law; and those provisions do not represent existing law on the Sea for States not parties to the 1982 Convention; they, however, indicate the directions in which the law may develop in the future. All States are prima faciebound by the customary rules, while only the parties to a particular convention will be bound by the new rules contained therein.
The 1982 Convention prevails over the four 1958 Conventions as among the States parties to it. It deals with most of the issues related to the Sea.

Among these issues are:
(1) Territorial Sea and Contiguous Zone;
(2) Straits Used for International Navigation;
(3) Archipelagic States;
(4) Exclusive Economic Zone;
(5) Continental Shelf;
(6) High Seas;
(7) Regime of Islands;
(8) Enclosed or Semi-Enclosed Seas;
(9) Rights of Access of Land-Locked States to and from the Sea and Freedom of Transit;
(10) The Area;
(11) Protection and Preservation of the Marine Environment;
(12) Marine Scientific Research;
(13) Development and Transfer of Marine Technology; and
(14) Settlement of Disputes.

In the following sections, most of the questions related to the above issues as provided by the 1982 Convention are discussed.

Section 1: Territorial Sea
The 1982 Convention on the Law of the Sea declares that the sovereignty of a coastal State extends, beyond its land territory and internal waters to an adjacent belt of sea, described as the territorial sea. Accordingly, the territorial sea, which is also known as territorial water, is a belt of sea adjacent to the coast of a State over which a coastal State exercises its sovereignty. The Convention provides that this sovereignty extends also to the air space over the territorial sea as well as to its bed and subsoil. However, the exercise by a coastal State of such sovereignty over its territorial sea is subject to the rules and limitations provided for in the said Convention and in the International Law.

A. Limits of the Territorial Sea
The Convention adopts the twelve-mile limit as a breadth of the territorial sea. It provides that every State has the right to establish the breadth of its territorial sea up to a limit not exceeding 12 nautical miles, measured from baselines determined by a normal baseline or/and straight baselines method; the coastal State may determine baselines in turn by any of these two methods to suit different conditions. The baseline is the line from which the breadth of the territorial sea and other coastal State zone, such as contiguous zone, exclusive economic zone or exclusive fishing zone, is measured. The baseline forms the boundary between the internal waters on the landward side of the coastal State and its territorial sea on its seaward side. Waters on the landward side of the baseline of the territorial sea form part of the internal waters of the State, over which the State has an absolute sovereignty. The outer limit of the territorial sea is the line every point of which is at a distance from the nearest point of the baseline equal to the breadth of the territorial sea.
The normal baseline for measuring the breadth of the territorial sea is the low-water line (the line on the shore reached by the sea at low tide) along the coast as marked on larger-scale charts officially recognized by the coastal State. The method of straight baselines joining appropriate points may be employed in drawing the baseline from which the breadth of the territorial sea is measured if the coastline is deeply indented and cut into. However, this method may not be applied by a State in such a manner as to cut off the territorial sea of another State from the high seas or an exclusive economic zone. This method is also employed in a case of a river flowing directly into the sea or of a bay. In a case of a river, the baseline shall be a straight line across the mouth of the river between points on the low-water line of its banks. In a case of a bay, if the distance between the low-water marks of the natural entrance points of a bay does not exceed 24 nautical miles, a closing line may be drawn between these two low-marks, and the waters enclosed thereby shall be considered as internal waters. Where the distance between the low-water marks of the natural entrance points of a bay exceeds 24 nautical miles, a straight baseline of 24 nautical miles shall be drawn within the bay in such a manner as to enclose the maximum area of water that is possible with a line of that length, and the enclosed waters shall be considered as internal water; however, this rule does not apply to so-called “historic bay”.
For the purpose of delimiting the territorial sea, the outermost permanent harbor works which form an integral part of the harbor system are regarded as forming part of the coast; but off-shore installations and artificial islands shall are not considered as permanent harbor works. Roadsteads which are normally used for loading, unloading and anchoring of ships, and which are situated wholly or partly outside the outer limit of the territorial sea, are included in the territorial sea.
Where the coasts of two States are opposite or adjacent to each other, neither of the two States is entitled, failing agreement between them to the contrary, extend its territorial sea beyond the median line every point of which is equidistant from the nearest points on the baselines from which the breadth of the territorial seas of the two States is measured. This rule, however, does not apply where it is necessary by reason of historic title or other special circumstances to delimit the territorial seas of the two States in a different way.

B. Rights of the Coastal State over the Territorial Sea
As the 1982 Convention provides, the sovereignty of the coastal State extends to its territorial sea as well as to the air-space over its territorial sea, its bed and subsoil. In this regard the coastal State enjoys the following:

(1) The exclusive right to fish, and to exploit the resources of the seabed and subsoil of its territorial sea.

(2) The exclusive right in the air-space over its territorial sea to the exclusion of other States. Foreign aircrafts, unlike ships, have no right of innocent fly in the air-space over the territorial sea of a State.

(3) The right to enact laws and regulations, in conformity with the 1982 Convention and other rules of International Law, particularly in respect of navigation, health, customs, immigration and preservation of the environment.

(4) The right to take the necessary steps in its territorial Sea to prevent passage which is not innocent.

(5) The exercise of criminal jurisdiction on board of a foreign ship (arresting any person or conducting any investigation in connection with any crime committed on board of the foreign ship) in the following cases: if the consequences of the crime extend to it; if the crime is of a kind to disturb the peace of the country or the good order of its territorial sea; if the assistance of the local authorities has been requested; if the measures are necessary for the suppression of illicit traffic in narcotic drugs; or after leaving its internal water.

(6) The exercise of civil jurisdiction in relation to a foreign ship (levy execution against or arrest the ship for the purpose of any civil proceedings) in respect of obligations or liabilities assumed or incurred by the ship itself in the course or for the purpose of its voyage through its waters, or in respect of any civil proceedings against a foreign ship after leaving its internal waters.

C. The Right of Innocent Passage in the Territorial Sea
Under the 1982, the sovereignty of a coastal State over its territorial is subject to an important limitation, which is the right of innocent passage enjoyed by ships (merchant ships, governmental ships and warships) of all States, whether coastal or landlocked, over the territorial sea of the coastal State. Passage means navigation through the territorial sea for the purpose of traversing that sea without entering internal waters or calling at a roadstead or port facility outside internal waters, or proceeding to or from internal waters or a call at such roadstead or port facility. Passage must be continuous and expeditious; however, it may include stopping and anchoring in so far as they are incidental to ordinary navigation or are rendered necessary by force majeure or distress or for the purpose of rendering assistance to persons, ships or aircraft in danger or distress. Passage must take place in conformity with the 1982 Convention and with other rules of International Law. Passage must be innocent; it is innocent so long as it is not prejudicial to the peace, good order or security of the coastal State.
The right of innocent passage is also exists in internal waters where the establishment of a baseline in accordance with the straight baselines method provided by the 1982 Convention has the effect of enclosing as internal water areas which had not previously been considered as such.
The right of innocent passage is also enjoyed by submarines and other underwater vehicles. However, it is required that they navigate on the surface and show their flag.

The 1982 Conventions provides that the coastal State must not hamper the innocent passage of foreign ships through its territorial seas except in accordance with the Convention. The Coastal State, in the application of the Convention or of any laws or regulations adopted in conformity with it, must not impose requirements aiming at denying or impairing the right of innocent passage, or discriminate on form or in fact against the ships of any State or against ships carrying cargoes to, from or on behalf of any State. It must give appropriate publicity to any danger to navigation, of which it has knowledge, within its territorial sea. It must not levy any charges upon foreign ships by reason only of their passage through its territorial sea; charges may be levied as payment only for specific services rendered to the ship.

The coastal State is under a duty not to exercise its criminal jurisdiction on foreign ship passing through it territorial sea, except in the cases specified by the Convention (mentioned above). It is also under a duty not to exercise civil jurisdiction in relation to a foreign ship or a person on its board, except in the cases specified by the Convention (mentioned above). Notably, the warships and other government ships operated for non-commercial purposes are immune from any jurisdiction; however the coastal State, in a case of failure of any of these ships from complying with its laws and regulations, may order it to leave its territorial Sea immediately.

Against these duties, the coastal State entitled to certain rights in respect of the right of innocent passage granted to foreign ships. The coastal State may adopt laws and regulations, in conformity with the provisions of the Convention and other rules of International Law, related to innocent passage through its territorial sea, with which the foreign ships must comply. It may suspend temporarily in specified areas of its territorial sea the innocent passage of foreign ships for security reasons.

Section 2: Contiguous Zone
Contiguous zone is a maritime zone adjacent to the territorial sea of the coastal State over which that State, as provided by the 1982 Convention, may exercise the control necessary to prevent infringement of its customs, fiscal, immigration or sanitary laws and regulations within its territory or territorial sea and to punish infringement of these laws and regulations committed within its territory and territorial sea. According to the said Convention, the contiguous zone may not extend beyond 24 nautical miles from the baseline from which the breadth of the territorial sea is measured.
It follows from the provision of the 1982 Convention related to the contiguous zone that the rights of the coastal State over the contiguous zone do not amount to sovereignty. The coastal State may only exercise jurisdictional powers for the reasons specified by the Convention. Still other States have rights over these zones similar to those exercisable over the high seas except as they are qualified by the existence of jurisdictional zones. Moreover, these zones are not automatically belonging to coastal States as in the case of territorial sea; they must be specifically claimed by the State.

Section 3: Straits Used for International Navigation
A strait is a narrow natural sea passage connecting two large areas of the sea. The 1982 Convention defines international straits as straits used for international navigation either between one part of the high seas or an exclusive economic zone and another part of the high seas or an exclusive economic zone, or between a part of the high seas or an exclusive economic zone and the territorial sea of a foreign State; and it specifies a special regime of passage applicable to these international straits. This regime of passage, however does not apply to a strait used for international navigation if there exists through the strait a route through the high seas or through an exclusive economic zone of similar convenience with respect to navigational and hydrographical characteristics; in such routes, others provisions of the 1982 Convention, including those related to the freedom of navigation and over-flight, apply.

The regime of passage specified by the Convention, as the Convention provides, does not affect the legal status of the waters forming such straits or the exercise by the States bordering the straits of their sovereignty or jurisdiction over such waters and their air space, bed and subsoil; however, such sovereignty or jurisdiction of the bordering State is exercised subject to this regime and other rules of International Law. Moreover, this regime does not affect: any area of internal waters within a strait, except where the establishment of a baseline in accordance with the straight baselines method has the effect of enclosing as internal waters which had not previously considered as such; the legal status of the waters beyond the territorial seas of States bordering straits as exclusive economic zones or high seas; or the legal regime of straits in which passage is regulated in whole or in part by long-standing international convention in force specifically related to such straits (For example, the Turkish Straits of the Bosphorus and the Dardanelles which are regulated by the Montreux Convention of 1936).
The regime of passage in international straits specified in the Convention includes the right of transit passage and the right of innocent passage.

A. The Right of Transit Passage in International Straits
The right of transit passage is granted to all ships and aircrafts with respect of international straits used for international navigation between one part of the high seas or an exclusive economic zone and another part of the high seas or an exclusive economic zone. This right means the exercise of the freedom of navigation and over-flight solely for the purpose of continuous and expeditious transit of the international straits defined above. However, the requirement of continuous and expeditious transit does not preclude passage through the strait for the purpose of entering, leaving or returning from a State bordering the strait, subject to the conditions of entry to that State. Moreover, any activity which is not an exercise of the right of transit passage through a strait remains subject to the other applicable provisions of the Convention.
The Convention lists an exception to the right of transit passage through international straits defined above. It provides that if the strait is formed by an island of a State bordering the strait and its mainland and if there exists seaward of the island a route through the high seas or through an exclusive economic zone of similar convenience with respect to navigational and hydrographical characteristics, transit passage shall not apply; in such a strait, the right of innocent passage applies.
In exercising the right of transit passage, ships and aircraft must, mainly: observe the relevant provisions of the Convention, the relevant international regulations; comply with the laws and regulations
adopted by the States bordering the straits in conformity with the Convention; refrain from any threat or use of force against the sovereignty, territorial integrity or political independence of States bordering the strait; and refrain any activities other than those incidental to their normal modes of continuous and expeditious transit unless rendered necessary by force majeure or by distress. During transit passage, foreign ships, including marine scientific research and hydrographic survey ships must not carry out any research or survey activities without the prior authorization of the States bordering straits.
The Convention entitles the States bordering straits the right to adopt laws and regulations related to transit passage through straits in respect of safety of navigation and marine traffic, pollution, fishing, and loading or unloading of commodity, currency or persons. However, such laws and regulations must not discriminate in form or in fact among foreign ships, or hamper or impair the right of transit passage, and must be given due publicity.
The States bordering straits are under a duty not to hamper transit passage and to give appropriate publicity to any danger to navigation or over-flight within or over the strait of which they have knowledge. Moreover, they must not suspend transit passage for whatever reason.

B. The Right of Innocent Passage
According to the Convention, the regime of innocent passage applies to straits used for international navigation, particularly those excluded from the application of the regime of transit passage (a strait formed by an island of a State bordering the strait and its mainland where there exists seaward of the island a route through the high seas or through an exclusive economic zone of similar convenience with respect to navigational and hydrographical characteristics), or those connect a part of the high seas or an exclusive economic zone and the territorial sea of a foreign State.
The right of innocent passage granted to ships and aircraft in these straits are governed by the provisions of the Convention related to the right of innocent passage in the territorial sea, except that no suspension of innocent passage through such straits is permitted, for whatever reason.

Section 4: The Exclusive Economic Zone
The 1982 Convention provides that the exclusive economic zone is an area beyond and adjacent to the territorial sea, subject to the specific legal regime established by the Convention. The exclusive economic zone, as the Convention provides, should not extend beyond 200 nautical miles from the baselines from which the breadth of the territorial sea is measured. In this zone, the Convention establishes sovereign rights and jurisdiction for the coastal States, as well as, rights and freedoms for other States.
Under the Convention, the coastal State has, in the exclusive economic zone, sovereign rights for the purpose of exploring and exploiting, conserving and managing the natural resources, whether living or non-living, of the waters superjacent to the sea-bed and of the sea-bed and its subsoil, and with regard to other activities for the economic exploitation and exploration of the zone, such as the production of energy from the water, current and winds. The coastal State also has the jurisdiction with regard to: the establishment and use of artificial islands, installations and structures; marine scientific research; and the protection and preservation of the marine environment. In exercising its rights and performing its duties under the Convention in the exclusive economic zone, the coastal State should have due regard to the
rights and duties of other States and should act in a manner compatible with the provisions of the Convention.
All States, whether coastal or land-locked States, enjoy, subject to the relevant provisions of the Convention, the high seas freedom of navigation, over-flight and of laying of submarine cables and pipelines in the exclusive economic zone. In exercising their rights and performing their duties under the Convention in the exclusive economic zone, States should have due regard to the rights and duties of the coastal State and should comply with the laws and regulations adopted by the coastal State in accordance with the provisions of the Convention and other compatible rules of International Law.
The Conventions provides that in cases of conflict over rights or jurisdiction of the coastal State or of other States within the exclusive economic zone, the conflict should be resolved on the basis of equity and in the light of all the relevant circumstances. As regarding the delimitation of the exclusive economic zone between States with opposite or adjacent coasts, the Convention provides that it should be effected by agreement on the basis of International Law; if no agreement can be reached within a reasonable period of time, the States concerned should resort to the procedures of settlement of disputes provided for in the Convention.

Section 5: The Continental Shelf
The 1982 Convention defines the continental shelf of the coastal State as “the sea-bed and subsoil of the submarine area that extend beyond its territorial sea throughout the natural prolongation of its land territory to the outer edge of the continental margin, or to a distance of 200 nautical miles from the baselines from which the breadth of the territorial sea is measured where the outer edge of the continental margin does not extend to that distance”. Where the continental margin extends beyond 200 miles, the Convention provides that the continental shelf should not extend more than 350 nautical miles from the baselines or 100 nautical miles from the 2500 meter depth. The continental margin, as the Convention provides, comprises the submerged prolongation of land mass of the coastal State, and consists of the sea-bed and subsoil of the shelf, the slope and the rise; it, however, does not include the deep ocean floor with its oceanic ridges or the subsoil thereof.
As regarding the delimitation of the continental shelf between States with opposite or adjacent coasts, the Convention provides that it should be effected by agreement on the basis of International Law; if no agreement can be reached within a reasonable period of time, the States concerned should resort to the procedures of settlement of disputes provided for in the Convention.

In the continental shelf, the Convention establishes sovereign rights for the coastal States and rights and freedoms for other States, as well as, imposes duties on them. The coastal State may exercise over the continental shelf sovereign rights for the purpose of exploring it and exploiting its natural resources. Such rights are exclusive in the sense that if the coastal State does not explore the continental shelf or exploit its natural resources, no one may undertake these activities without the express consent of the coastal State. The coastal State has the exclusive right to construct and to authorize and regulate the construction, operating and use of artificial islands, installations and structures on the continental shelf, as well as, to authorize and regulate drilling on the continental shelf for all purposes. It has the right to establish reasonable safety zones around its installations to a limit of 500 meters, which must be respected by ships of all States.

The Convention provides that the rights of the Coastal State over the continental shelf do not depend on occupation or any express proclamation, and do not affect the legal status of the superjacent waters or
of the air above those waters. In exercising its rights over the continental shelf, the convention requires from the coastal State not to infringe or result in any unjustifiable interference with navigation and other rights and freedoms of other States as provided for in the Convention (such as the laying or maintenance of cables or pipelines). Moreover, the Convention imposes upon the coastal State to pay to the International Sea-Bed Authority annual payments or contributions in kind in respect of the exploitation of the nonliving resources of the continental shelf beyond 200 miles; such payments or contributions shall be distributed by the Authority to the States parties to the Convention, on the basis of equitable sharing criteria, taking into account the interests and needs of developing States, particularly the least developed and the land-locked among them.
Under the Convention, all States are entitled to lay cables and pipelines on the continental shelf, in accordance with the relevant provisions of the Convention.

Section 6: The High Seas
The 1982 Convention defines the high seas as “all parts of the sea that are not included in the exclusive economic zone, in the territorial sea or in the internal waters of a State, or in the archipelagic waters of an archipelagic State.” Under the Convention the high seas are open to all States, whether coastal or landlocked, and that the freedom of the high seas is exercised under the conditions laid down by the Convention and other rules of International Law. Such a freedom comprises inter alia the freedom of navigation, over-flight, the laying of submarine cables and pipelines, the construction of artificial islands and other installation permitted under International Law, fishing, and the conduct of scientific research. These freedoms must be exercised by all States with due regard for the interests of other States in their exercise of the freedom of the high seas, and also with due regard for the rights under the Convention concerning activities in the International Sea- Bed Area.
Moreover, the high seas shall be reserved for peaceful purposes. No State may purport to subject any part of the high seas to its sovereignty. Every State, whether coastal or land-locked, has the right to sail ships flying its flag on the high sea, to exercise its jurisdiction in civil and penal matters, and to exercise control in administrative, technical and social matters over them.

Section 7: Land-locked States
“Land-locked State” means a State which has no sea-coast. The 1982 Convention provides that land-locked States have the right of access to and from the sea for the purpose of exercising the rights provided for in the Convention including those related to the freedom of the high seas and the common heritage of mankind, the right of innocent passage in the territorial sea of coastal States, the right of transit and innocent passage in international straits, and the right of laying submarine cables and pipelines in the continental shelf. To this end, the land-lock States enjoy freedom of transit through the territory of transit States by all means of transport. “Transit State” means a State, with or without a sea-coast, situated between a land-locked State and the sea, through whose territory traffic in transit passes.
The Convention provides that terms and modalities for exercising freedom of transit shall be agreed between the land-locked States and transit States through bilateral, sub-regional or regional agreements.
For the convenience of traffic in transit, free zones or other customs facilities may be provided at the ports of entry and exit in the transit States, by agreement between those States and the land-locked States. Traffic in transit shall not be subject to any customs duties, taxes or other charges except charges levied for specific services rendered in connection with such traffic. Transit States shall take all appropriate measures to avoid delays or other difficulties of a technical nature in traffic in transit. In the exercise of their full sovereignty over their territory, transit States shall have the right to take all measures necessary to ensure that the rights and facilities provided for in the Convention for land-locked States shall in no way infringe their legitimate interests.

Section 8: The Area and the Authority
The “Area” as defined by the 1982 Convention means the sea-bed and ocean floor and subsoil thereof, beyond the limits of national jurisdiction.[26] Under the Convention, the Area and its resources (solid, liquid or gaseous mineral) are deemed to be the common heritage of mankind and no sovereign or other rights may be recognized. However, minerals recovered from the Area only in accordance with the Convention are alienable. Activities in the Area are to be carried out for the benefit of mankind as a whole by or on behalf of “the International Seabed Authority” established under the Convention.[27] The Authority is to provide for the equitable sharing of such benefits.
The Area shall be open to use exclusively for peaceful purposes by all States, whether coastal or land-locked, without discrimination and without prejudice to the provisions of the Convention. Marine scientific research in the Area shall be carried out, by or on behave of the Authority, exclusively for peaceful purposes and for the benefits of mankind as a whole in accordance with the Convention.
The International Seabed Authority (the Authority) is the autonomous organization which the States parties to the 1982 Convention have agreed to establish in order to organize and control activities in the Area, particularly to administer the resources of the Area. All States parties to the Convention are ipso facto members of the Authority. The Authority became fully operational in June 1996. The seat of the Authority is in Jamaica; it may establish such regional centers or offices as it deems necessary for the exercise of its functions.
The Authority may exercise the powers and functions which are expressly conferred upon it by the Convention, and such incidental powers, consistent with the Convention, as are implicit in and necessary for the exercise of those powers and functions with respect to activities in the Area. It consists of the principal organs, which are the Assembly, the Council and the Secretariat, the Enterprise, and certain subsidiary organs.

Section 9: Enclosed or Semi-Enclosed Seas
Enclosed and semi-enclosed seas as defined by the 1982 Convention means a gulf, basin or sea surrounded by two or more States and connected to another sea or the ocean by narrow outlet or consisting entirely or primarily of the territorial seas and exclusive economic zones of two or more coastal States. The Convention requires the States bordering an enclosed or semi-enclosed sea to co-operate with each other in the exercise of their rights and in the performance of their duties under the Convention. To
this end these States are required to endeavor, directly or through an appropriate regional organization to co-ordinate: the management, conservation, exploration and exploitation of living resources of the sea; the implementation of their rights and duties with respect to the protection and preservation of the marine environment; their scientific research policies and undertake where appropriate joint programmes of scientific research in the area. These States are also required to invite, as appropriate, other interested States or international organizations to co-operate with them.
Actually, there are more than twenty marine areas which can be regarded as enclosed or semi-enclosed seas according to the criteria specified by the 1982 Convention. Among these areas are the Baltic Sea, the Black Sea, the Caribbean Sea, the East China Sea, the Mediterranean Sea, the Red Sea, the South China Sea, the Gulf of Mexico, the Gulf of Oman, and the Arabian Gulf. In international practice, co-operation among the States bordering enclosed or semi-enclosed seas has been taken in matters such as conservation of the living resources and marine pollution prevention and control.

References:
[1] See generally E.D. Brown, The International Law of the Sea, 2 vols., Aldershot (1994); Oppenheim, vol. 1, chapter 6; R. Churchill and A.V. Lowe, The law of the Sea, 3rd ed., Manchester (1999);
D.P. O’Connell, The International law of the Sea, 2 vols., Oxford (1982-4); Brownlie, part IV; Shaw, chapter 11; and Malanczuk, chapter 12.
[2] Bledsoe and Boczek, p. 222.
[3] Id.
[4] Text in 516 U.N.T.S. 205.
[5] Text in 450 U.N.T.S. 82.
[6] Text in 499 U.N.T.S. 311.
[7] 52 A.J.I.L. (1958), 851.
[8] Text in 450 U.N.T.S. 169.
[9] Malanczuk, p. 173.
[10] Id.
[11] Text in 21 I.L.M. (1982) 1261.
[12] The 1982 Convention on the Law of the Sea arts. 2-32.
[13] Id. arts. 3-16.
[14] Id. arts. 2, 21, 22, 25-28.
[15] Id. arts. 17-20 & 24.
[16] Id. art. 33.
[17] Id. arts. 34-36.
[18] Id. arts. 37-39, 42 & 44.
[19] Id. art. 45.
[20] Id. arts. 55-57.
[21] Id. arts. 76-85.
[22] Id. art. 76(1).
[23] Id. arts. 86-120.
[24] Id. arts. 124-130.
[25] Id. arts. 133-191.
[26] Id. art. 1(1).
[27] Id. art. 156.
[28] Id. arts. 122-123.
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Post Peaceful Settlement of Disputes

Peaceful Settlement of Disputes

Historically, International Law has been regarded by the international community as a means to ensure the establishment and preservation of world peace and security. The maintenance of international peace and security has always been the major purpose of the International Law. It was the basic objective behind the creation of the League of Nations in 1919 and the United Nations in 1945.

Since the direct cause of war and violence is always a dispute between States, it is therefore in the interest of peace and security that disputes should be settled. Methods and procedures for the peaceful (pacific) settlement of disputes have been made available in the International Law.
States have concluded a great number of multilateral treaties aiming at the peaceful settlement of their disputes and differences. The most important treaties are the 1899 Hague Convention for the Pacific Settlement of International Disputes which was revised by the Second Hague Peace Conference in 1907, and the 1928 General Act for the Pacific Settlement of Disputes which was concluded under the auspices of the League of Nations. Furthermore, there are regional agreements, such as the 1948 American Treaty on Pacific Settlement (Bogotá Pact), the 1957 European Convention for the Peaceful Settlement of Disputes, and the 1964 Protocol of the Commission of Mediation and Arbitration of the Organization of African Unity. In addition to such general treaties on dispute settlement, there are many bilateral and multilateral agreements which include specific clauses related to dispute settlement.

The Charter of the United Nations devotes Chapter VI to the methods and procedures for the pacific settlement of disputes. Paragraph 1 of Article 33 of the Charter states the methods for the pacific settlement of disputes as the following: negotiation, enquiry, mediation, conciliation, arbitration, judicial settlement, and resort to regional agencies or arrangements. This paragraph obliges States parties to any dispute, the continuance of which is likely to endanger the maintenance of international peace and security, to seek a solution by any of the listed methods or other peaceful means of their own choice.

The methods of peaceful settlement of disputes fall into three categories: diplomatic, adjudicative, and institutional methods. Diplomatic methods involve attempts to settle disputes either by the parties themselves or with the help of other entities. Adjudicative methods involve the settlement of disputes by tribunals, either judicial or arbitral. Institutional methods involve the resort to either the United Nations or regional organizations for settlement of disputes.

Section 1: Diplomatic Methods of Dispute Settlement
Diplomatic methods of dispute settlement are negotiation, enquiry, mediation, conciliation, and good offices.

A. Negotiation [7]
“Negotiation” is the oldest, most common, and the simplest methods of settling international disputes. It is recognized by the great majority of treaties of pacific settlement as the first step towards the settlement of international disputes. Most of the treaties make a failure to settle a dispute by negotiation a condition precedent to compulsory arbitration or judicial settlement. It is, therefore, not surprising that negotiation comes first in the list of means of pacific settlement of disputes stipulated in Article 33(1) of the Charter of the United Nations.
Negotiation consists of discussions between the concerned parties with a view to understand the opposing positions and opinions and reconcile the differences. It is very suited to the clarification and elucidation of the opposing contentions. It is the most satisfactory means to settle disputes since it is a voluntary bilateral and self-help means; the parties are directly engaged in the process; intervention by any third party in the process is not necessary.
Negotiations, however, do not always succeed in reaching solutions to disputes or differences between the parties. Thus, third parties interventions are needed to help the parties in reaching a settlement to their disputes and differences; here comes the importance of the other diplomatic methods of dispute settlement.

B. Enquiry
One of the common obstacles preventing the successful settlement of a dispute by negotiation is the difficulty of ascertaining the facts which have given rise to the differences between the disputants. Most international disputes involve an inability or unwillingness of the parties to agree on points of facts. Herein lays the significance of the procedure of inquiry as a means of pacific settlement of disputes.
Many bilateral agreements have been concluded under which fact-finding commissions have been set up for the task of reporting to the parties concerned on the disputed facts. In addition, the procedure of inquiry has found expression in treaties for the pacific settlement of disputes.
The two Hague Conventions of 1899 and 1907 established commissions of inquiry as formal institutions for the pacific settlement of international disputes. They provided a permanent panel of names from which the parties could select the commissioners. The task of a commission of inquiry was to facilitate the solution of disputes by elucidating the facts by means of an impartial and conscientious investigation. The report of a commission was to be limited to fact-finding and was not expected to include any proposal for the settlement of the dispute in question.
With the establishment of the League of Nations, the means of inquiry took on a new significance. Inquiry and conciliation were viewed as integral parts of a single process for bringing about a pacific settlement to a dispute. It is in the light of this background that the Charter of the United Nations specifically lists “enquiry” as one of the methods of pacific settlement of international disputes.
Enquiry as a separate method of dispute settlement has fallen out of favor. It has been used as part of other methods of dispute settlement. Its purpose is to produce an impartial finding of disputed facts and thus to prepare the way for settlement of dispute by other peaceful methods. The parties are not obliged to accept the findings of the enquiry; however, they always do accept them.
The utilization of enquiry has been evident in the practice of international organizations, such as the United Nations and its specialized agencies. Enquiry has been used as part of other methods of dispute settlement in the context of general fact-finding.

C. Mediation, Conciliation and Good Offices
Mediation, conciliation and good offices are three methods of peaceful settlement of disputes by which third parties seek to assist the parties to a dispute in reaching a settlement. All involve the intervention of a supposedly disinterested individual, State, commission, or organization to help the parties. When the parties are unwilling to negotiate, or fail to negotiate effectively, assistance by a third party through its mediation, conciliation, or good offices may be necessary to help in procuring a settlement. This assistance may be requested by one or both of the parties, or it may be voluntarily offered by a third party.
Although there is no distinction in the general features of mediation, conciliation, and good offices, a theoretical and practical distinction can be made among them according to the degree of third party participation, and the extent to which the disputants are obliged to accept the outcomes of the procedures.
Mediation is a process through which an outside party (third party) endeavors to bring the disputants together and assists them in reaching a settlement. The third party offers his assistance to the parties to a dispute. The consent of the disputants is not necessarily required initially, but no mediation proceedings can be commenced without their consent. The mediator actively and directly participates in the settlement itself. He does not content himself with making negotiations possible and undisturbed. He is expected to offer concrete proposals for a solution and a settlement of substantive issues related to a dispute. However, his proposals represent nothing more than recommendations. They have no binding force on either disputant. The parties to a dispute are free to accept or reject his proposals.
Conciliation is a process of settling a dispute by referring it to a specially constituted organ whose task is to elucidate the facts and suggest proposals for a settlement to the parties concerned. However, the proposals of conciliation, like the proposals of mediators, have no binding force on the parties who are free to accept or reject them. As in the case of mediation, conciliators may meet with the parties either jointly or separately. The procedures of conciliation are generally instituted by the parties who agree to refer their dispute to an already established organ, commission or a single conciliator, which is set up on a permanent basis or ad hoc basis; third parties cannot take the initiative on their own. The conciliators are appointed by the parties to a dispute. They can be appointed on the basis of their official functions or as individuals in their personal capacity.
Conciliation is described by some as a combination of enquiry and mediation. The conciliator investigates the facts of the dispute and suggests the terms of the settlement. But conciliation differs from enquiry in that the main objective of the latter is the elucidation of the facts in order to enable the parties through their own accord to settle their dispute; whereas the main objective of conciliation is to propose a solution to a dispute and to win the acceptance of the parties to such solution. Also, conciliation differs from mediation in that it is more formal and less flexible than mediation; if a mediator’s proposal is not accepted, he can present new proposals, whereas a conciliator usually present a single report.
When the parties to a dispute reach the point of not being able to solve it by negotiation, or the point where they have broken off diplomatic relations, but they are convinced that a settlement is important to them, the utilization of the technique of good offices may be helpful. Good offices may be utilized only with the agreement or the consent of both disputants. A third party attempts to bring the disputants together in order to make it possible for them to find an appropriate settlement to their differences through their negotiations. In this regard, the function of the third party is to act as a go-between, transmitting messages and suggestions in an effort to create or restore a suitable atmosphere for the parties to agree to negotiate or resume negotiation. When the negotiations start, the functions of the good offices come to an end. The procedure of good offices, in contrast to mediation, has a limited function which is simply bringing the disputants together. In mediation, the mediator takes an active part in the negotiations
between the disputants and may even suggest terms of settlement to the disputants. Method of good offices consists of various kinds of action aiming to encourage negotiations between the parties to a dispute. Also, in contrast to the case of mediation or conciliation, the profferer of good offices does not meet with the disputants jointly but separately with each of them. Seldom, if ever, the profferer attends joint meetings between the parties to a dispute. Normally, the role of the profferer of good offices terminates when the parties agree to negotiate, or to resume negotiation. However, the profferer may be invited by the parties to be present during the negotiations. As in case of mediation, an offer of good offices may be rejected by either or both parties to a dispute.
The use of mediation, conciliation, and good offices has a long history. These methods have been the subject of many bilateral and multilateral treaties. However, with the establishment of the League of Nations, permanent organs were set up to perform the functions of these methods of pacific settlement of disputes. In this context, the Charter of the United Nations lists in Article 33(1) mediation and conciliation, but not good offices, as methods of pacific settlement available to the parties to any dispute. Notably, in the practice of the United Nations, the terms “mediation”, “conciliation”, and “good offices” have been used with considerable looseness, flexibility and little regard to the distinctions which exist between them.
Mediation and conciliation have both advantages and disadvantages as compared to other methods of dispute settlement. They are more flexible than arbitration or judicial settlement. They leave more room for the wishes of the disputants and the initiatives of the third party. The disputants remain in control of the outcome. Their proceedings can be conducted in secret. However, there are disadvantages to mediation and conciliation. Their proceedings cannot be started and be effective without the consent, cooperation, and goodwill of the disputants. The proposed settlement is no more than a recommendation with any binding force upon the disputants.

Section 2: Adjudicative Methods of Dispute Settlement
The major disadvantage of the diplomatic methods of dispute settlement is that the parties to them are under no legal obligation to accept the proposals of settlement suggested to them. Thus, the adjudicative methods of dispute settlement are preferable because they provide the issuance of binding decisions, rather than mere recommendations as in cases of diplomatic methods. It is this binding force of the decisions rendered at the end of the adjudicative methods that distinguishes these methods from other methods of dispute settlement.
Adjudicative methods of dispute settlement consist of two types of procedures, “arbitration” and “judicial settlement”. Arbitration and judicial settlement are two methods involve the determination of differences between States through legal decisions of tribunals. Whereas in case of judicial settlement the decision is made by an established court, permanent (such as the International Court of Justice) or ad hoc, in case of arbitration it is made by a single arbitrator or arbitral tribunal. The major characteristic of these two methods is that a judicial decision or an award is binding on the parties and must be carried out in good faith.
It is not until the establishment of the League of Nations that the terms “arbitration” and “judicial settlement” became distinguished. Under the Covenant of the League “judicial settlement” meant settlement by the Permanent Court of Justice (PCIJ), whereas “arbitration” meant settlement by other tribunals. This same distinction is carried over by the Charter of the United Nations, but with the International Court of Justice (ICJ) substituting for the Permanent Court of International Justice (PCIJ).
Arbitration was defined in the 1899 Hague Convention for the Pacific Settlement of Disputes as “the settlement of differences between states by judges of their choice and on the basis of respect for law”; this same definition was repeated in the 1907 Hague Convention. The procedures of arbitration grew to some extent out of the processes of diplomatic settlement and represented an advance towards a developed international legal order.
Arbitration is considered the most effective and equitable means of dispute settlement. It combines elements of both diplomatic and judicial procedures. However, it is much more flexible than judicial settlement. It gives the parties to a dispute the choices to appoint the arbitrators, to designate the seat of the tribunal, and to specify the procedures to be followed and the law to be applied by the tribunal. Moreover, the arbitration proceedings can be kept confidential.
Arbitration cannot be initiated without the agreement of the parties to a dispute. An agreement of arbitration may be concluded for settling a particular dispute, or a series of disputes that have arisen between the parties. It may be in the form of a general treaty of arbitration.
The usual pattern in arbitration agreement as regards the appointment of arbitrators is that each of the two parties has to appoint one arbitrator or more, and the appointed arbitrators have to appoint the arbitrator, who is known as an “umpire”. Usually, the arbitral tribunal consists of three arbitrators, who can decide by majority vote. The parties may agree to refer their dispute to a single arbitrator, who may be a foreign head of a State or government, or a distinguished individual.
Judicial settlement is a settlement of dispute between States by an international tribunal in accordance with the rules of International Law. The international character of the tribunal is in both its organization and its jurisdiction. International tribunals include permanent tribunals, such as the International Court of Justice (ICJ), the International Tribunal for the law of the Sea (ITLOS), the European Court of Justice, the European Court of Human Rights and the Inter-American Court of Human rights, and include ad hoc tribunals, such as the United Nations Tribunal in Libya.
The ICJ is the most important international tribunal, because of its both prestige and jurisdiction. It is the principal judicial organ of the United Nations. All members of the United Nations are ipso facto parties to the Statute of the Court. The judges of the ICJ are appointed by the United Nations, not by the parties to a dispute. The ICJ has to apply the rules and principles of International Law, which are enumerated in Article 38 of the Statute of the Court; the parties have no choice in specifying the rules to be applied by the Court. The jurisdiction of the Court includes all disputes between States concerning the interpretation of a treaty, any question of International Law, the existence of any fact constituting breach of international obligations, and the nature or extent of the reparation to be made for the breach of an international obligation.
The Charter of the United Nations refers to “arbitration” and “judicial settlement” in Article 33(1) as two methods among other methods of pacific settlement that States are encouraged to utilize in seeking a solution to their international disputes. It is also provides in Article 36(3) a guidance to the Security Council requiring it “to take into consideration that legal disputes should as a general rule be referred by the parties to the International Court of Justice”. Despite this provision, the Charter does not impose on members of the United Nations the obligation to submit any dispute, even legal one, to the Court. Moreover, the Charter provides that nothing in it “shall prevent Members of the United Nations from entrusting the solution of their differences to other tribunals by virtue of agreements already in existence or which may be concluded in the future”.

Section 3: Institutional Methods of Dispute Settlement
Institutional methods of dispute settlement involve the resort to international organizations for settlement of international disputes. These methods have come into existence with the creation of the international organizations. The most eminent organizations, which provide mechanisms for settling dispute between their member States, are the United Nations and the regional organizations, such as the European Union, the Organization of American States, the Arab league and the African Union.

(1) Peaceful Settlement of Dispute by the United Nations:
The Settlement of international disputes is one of the most important roles of the United Nations. The Charter of the United Nations stipulates that it is the task of the United Nations “to bring about by peaceful means, and in conformity with the principles of justice and international law, adjustment or settlement of international disputes or situations which might lead to a breach of the peace.”To this end, the Charter provides a system for the pacific settlement or adjustment of international disputes or situations under which the wide competence of the United Nations in this matter is established, and the corresponding obligations of the members of the United Nations are imposed. This system is delineated mainly in Chapter VI of the Charter.
Chapter VI of the Charter contains the United Nations mechanism 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 settle such a dispute by any of the enumerated peaceful means therein, or by any peaceful means of their choice. When the parties fail to observe their obligations or their efforts are not successful, the United Nations will intervene to consider the dispute and give its recommendations on the matters. The Security Council is given the primary responsibility in this regard. It is entitled to intervene either on its own initiative, upon invitation of any member of the United Nations, upon invitation by the General Assembly, or upon a complaint of a party to a dispute. The Security Council may follow three courses of action. First, it may call upon the parties to a dispute to settle their dispute by any of the peaceful means listed in Article 33(1). Second, it may recommend to the parties appropriate procedures or method of settlement. Third, 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. Under Articles 11, 12 and 14, the General Assembly may discuss and make recommendations for procedures or methods of adjustment, or for terms of settlement, with regard to any dispute or situation brought before it. The disputes or situations may be brought before the General Assembly by the Security Council, any member of the United Nations, or any State party to such dispute.

(2) Peaceful Settlement of Dispute by Regional Organizations:
Article 33(1) of the Charter of the United Nations requires the parties to any dispute, the continuance of which is likely to endanger the maintenance of international peace and security, to seek, first of all, a solution by any of the peaceful methods enumerated therein. Among these enumerated methods is the “resort to regional arrangements or agencies”.
Article 52 of the Charter recognizes the right of the members of the United Nations to establish regional arrangements or agencies “for dealing with such matters related to the maintenance of international peace
and security”. Paragraph 2 of this Article requires the member States that are members of regional arrangements or agencies to “make every effort to achieve pacific settlement of local disputes through such regional arrangements or by such regional agencies before referring them to the Security Council.
It seems that the obligation imposed upon the member States by Article 52(2) is consistent with their obligation under Article 33(1). However, paragraph 1 of Article 52 imposes two explicit limitations with regard to the utilization of regional arrangements and agencies. First, it requires that the matters dealt with must be “appropriate for regional action”. Second, it requires that the “arrangements or agencies and their activities are consistent with the Purposes and Principles of the United Nations”. Moreover, a third explicit limitation is imposed by Article 54 which requires that the Security Council should “at all times be kept fully informed of activities undertaken or in contemplation under regional arrangements or by regional agencies for the maintenance of international peace and security”. No similar explicit limitations are imposed with regard to the utilization of other procedures for pacific settlement.
Article 52 is not only confined to legitimizing regional arrangements or agencies and imposing an obligation upon the member States, but goes beyond such legitimization and obligation by pacing a duty on the Security Council itself. Paragraph 3 of this Article requires the Security Council to “encourage the development of pacific settlement of local disputes through such regional arrangements or by such regional agencies either on the initiative of the states concerned or by reference from the Security Council”.
This provision is in harmony with the general approach of the Charter related to the pacific settlement of disputes which requires the parties themselves to seek a solution to their dispute by any peaceful means of their own choice, and that the Council should give every opportunity to the parties to do so. If the parties have referred their local dispute to the Security Council before making any effort to achieve a settlement through the regional arrangements or agencies, then the Council is under a duty to remind them of their obligation, or to refer such dispute at its own initiative to such arrangements or agencies.

References:
[1] See generally J. Collier and V. Lowe, The Settlement of Disputes in International Law, Cambridge (1999); J.G. Merrills, International Dispute Settlement, 3rd ed., Cambridge (1998); K.V. Raman, Dispute Settlement Trough the United Nations, Oxford (1977); Brownlie, chapter 32; Shaw, chapter 18; and Malanczuk, chapter 18.
[2] Text of the 1899 Hague Convention in 9 U.K.T.S. (1901) Cd. 798. Text of the 1907 Hague Convention
in 6 U.K.T.S (1071) Cd. 4575.
[3] Text in 93 L.N.T.S. 342.
[4] Text in 30 U.N.T.S. 55.
[5] Text in 320 U.N.T.S. 243.
[6] Text in 3 I.L.M (1964) 1116.
[7] See generally Collier & Lowe, Chapter 2; P.J. De Waart, The Element of Negotiation in the Pacific Settlement of Dispute between States, The Hague (1973); A. Lall, Modern International Negotiation, New York (1966); Merrills, chapter 1; and Shaw, pp. 918-21.
[8] See generally Merrills, chapter 3; and Shaw, pp. 923-5.
[9] The 1899 Hague Convention for the Pacific Settlement of Disputes arts. 9, 10, 11, 14 & 32; and the 1907 Hague Convention for the Pacific Settlement of Disputes arts. 9, 12, 45 & 57.
[10] See L. Goodrich and A. Simons, The United Nations and the Maintenance of International Peace and Security, p. 173 (1955).
[11] See generally Merrills, chapters 2 & 4; Shaw, pp. 921-3 & 925-8; and Malanczuk, pp. 275-7 & 278-81.
[12] See generally Brownlie, chapter 32; Malanczuk, pp. 281-95; Merrills, chapter 5; S. Rosenne, The Law and Practice of International Court, 1920-1996, 4 vols., 3rd ed., The Hague (1997); S. Schwebel, International Arbitration: Three Salient Problems, Cambridge (1987); Shaw, chapter 19; L. Simpson and H. Fox, International Arbitration, London (1959).
[13] The 1899 Hague Convention for the Pacific Settlement of Disputes art. 15.
[14] The 1907 Hague Convention for the Pacific Settlement of Disputes art. 37.
[15] The U.N Charter art. 95.
[16] See generally Malanczuk, pp. 385-7; Merrills, chapter 10; M. Roman, Dispute Settlement through the United Nations, Oxford (1977); and Shaw, pp. 1099-119.
[17] U.N Charter art. 1(1).
[18] Id. art. 24(1).
[19] Id. arts. 11(3), 33(2), 34, 35, 36(3) & 99.
[20] Id. art. 33(2).
[21] Id. art. 36(1).
[22] Id. art. 37(2).
[23] Id. art. 35.
[24] See generally Merrills, chapter 11; and Shaw, pp. 928-50.
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Post International Humanitarian Law

International Humanitarian Law

The rules of “Law of War”, dealt with in the previous chapter, which govern the resort to force in international relations (ius ad bellum), are intended to prohibit, or at least to restrict, the resort to war (armed force) in international relations. However, because it is not possible to fully prevent war (the use of armed force), attempts have been made to regulate the conducts of war in order to mitigate its extent. The attempts have succeeded in establishing rules to govern the actual conducts of war (ius in bello). These rules, to some legal scholars, are part of the Law of War, thus they are referred to as rules related to “Law of War”. However, to others they form a separate law known as “International Humanitarian Law”.
Because the prevailing view considers “International Humanitarian Law” to be a separate law, it is reasonable to deal with this law in a separate chapter. Thus, the present chapter is endeavored to the study of “International Humanitarian Law” (called also “Law of Armed Conflicts”).
As it has been apparent that prevention of war has not been possible, it has been apparent that the rules formulated in “International Humanitarian Law” would not be effective without attaching responsibilities in cases of their violations, and without having a mechanism to prosecute violators. Thus, “International Criminal Law” has come into existence, as a derivative of “International Humanitarian Law”.
“International Humanitarian Law” is the subject of this chapter, while “International Criminal Law” is the subject of the next chapter.
“International Humanitarian Law” (called also “Law of Armed Conflicts”) is that branch of International Law which regulates the conduct of armed conflicts (war). It is inspired by a feeling for humanity and is centered on the protection of human being in time of war (armed conflicts). It seeks to mitigate the effects of armed conflicts by limiting the choice of means and methods of conducting military operations and providing protections to persons and civilian objects during armed conflicts.
International Humanitarian Law compiles those rules of International Law which aim to protect persons, victims of the evils of armed conflicts, as well as, by extension, objects not directly serving military purposes. In this sense, it is apparent that there is a relation between International Humanitarian Law and the Law of Human Rights because both laws aim to guarantee to persons the enjoyment of rights and freedom and to protect them from evils. However, there is an essential difference between these two laws since International Humanitarian Law applies only in time of armed conflicts, while Law of Humanitarian rights applies in all time.
How does “International Humanitarian Law” emerge and develop? What are its sources, scope and content? How is it executed? These are the questions, which are answered in the following.

Section 1: The Codification and Development of International Humanitarian Law
To protect man against the evils of war and cruel treatments is not a new idea. It goes back to the dawn of history. In a distant past, some military leaders used to order their troops to spare the lives of enemy prisoners (soldiers and civilians) and to treat them well. Often upon the termination of war, the belligerent parties used to agree to exchange the prisoners in their hands. Throughout the history, such practices and likewise gradually evolved into a body of customary rules regulating the conduct of war.
Because the scope and content of the customary rules related to the conduct of war were somewhat vague and uncertain, a movement was initiated during the Nineteenth Century to embody such rules in binding international instruments. In 1864, mainly as a result of the pioneering effort of the Swiss businessman Henry Dunant, a diplomatic conference convened in Geneva by invitation of the Swiss Government for the purpose of codifying certain rules which would guarantee a better treatment of the wounded and facilitate the work of the medical personnel in the field of land-war. On August 22, 1864, the conference adopted the “Convention for the Amelioration of the Condition of the Wounded in Armies in the Field”.
The most important principles introduced by the 1864 Geneva Convention were: The neutrality of ambulances and military hospitals, as such, they are protected and respected by the belligerents as long as they accommodate wounded and sick; hospitals, ambulances and evacuation parties would be distinguished by a uniform flag or armlet bearing “a red cross on a white ground”; the exemption of hospital and ambulance personnel from being captured or being the target of fire; wounded and sick combatants should be collected and cared for; and civilians coming to the assistance of the wounded should be respected. This Convention was accepted by all the then independent States.
The 1864 Geneva Convention was the first modest step in the process of codifying rules of International Humanitarian Law. This step was followed by many other steps, before the “International Humanitarian Law” reached its present scope and content.
In 1868, the “Declaration of St Petersburg” came to prohibit the use of explosive or flammable bullets. This Declaration, in fact, added strength to the principle of the Law of War concerning the obligation of the belligerents to limit the use of force in meeting a legitimate military objective.
At the Hague Peace Conferences of 1899 and 1907, a series of conventions were adopted, codifying the law of war. The Conventions were intended to set legal limits to means and methods of land and naval warfare; such legal limits still form the basis of the existing rules. The Conventions emphasized that belligerents remained subject to the “Law of Nations.” They contained rules concerning the treatment of prisoners of war; the conduct of military operations, particularly in regard of means of injuring the enemy, sieges and bombardments, and occupied territory; and the rights and duties of neutral States. Moreover, One of these Conventions, namely the “1907 Hague Convention for the Adaptation to Maritime Warfare of the Principles of Geneva Convention” (the Tenth 1907 Hague Convention) expanded the protection of the 1906 Geneva Convention to the victims of war at sea.
The 1864 Geneva Convention was revised twice, before and after the First World War, in order to adapt its provisions to new realities. The first revision took place in 1906. The major achievement of the “1906 Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armies in the Field” was the development of the provisions for application of the principles formulated in the 1864 Convention, taking into account the changes in the world, particularly the growing development of the means of destruction, in order to make such principles more effective. The second revision was made in 1929, taking into account the experiences of the First World War, particularly those related to the treatment of the wounded, the sick, and the prisoners of war. Two Conventions were concluded in 1929: the “1929 Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armies in the Field”;[18]and the “1929 Geneva Convention Relative to the Treatment of Prisoners of War”. The two Conventions made important improvements to the old provisions of the Law of Geneva. They formulated a clear and complete set of rules and principles on capture and captivity of prisoners of war, and on the treatment of the wounded and the sick. They introduced the ban on reprisals against the prisoners of war, and the principle that application of the rules of the Convention would be open to international scrutiny. Notably, in this 1929 Diplomatic Conference, the “red crescent” was recognized as the symbol of Muslim countries in place of the “red cross”.
The atrocities of the Second World War provided the incentive for major revision and further development of the law of Geneva. In 1949 a diplomatic conference was convened in Geneva at the instigation of the International Committee of the Red Cross (ICRC) and by invitation of the Swiss Government for such purposes.[20] The 1949 Geneva Conference led to the conclusion of four Conventions; three Conventions substituting the three Conventions in force, namely the Tenth 1907 Hague Convention and the two 1929 Geneva Conventions; and the Convention on the protection of civilian persons in time of war, which was the innovation of this Conference. The four 1949 Geneva Conventions deal respectively with the amelioration of the condition of the wounded and sick members of the armed forces in the field, the amelioration of the condition of the wounded, sick and shipwrecked members of the armed forces at sea, the treatment of prisoners of war, and the protection of civilian persons in time of war.
In 1977, two Additional Protocols to the 1949 Conventions were adopted at the closing of the 1974-1977 “Conference on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts” which was held in Geneva at the invitation of the Swiss Government. Protocol I deals with the protection of victims of international armed conflicts. It develops in detail the rules of Geneva Conventions and The Hague Conventions concerning the methods and means of warfare. Protocol II deals with the protection of victims of internal armed victims. It develops and supplements the rules of the 1949 Geneva Conventions concerning the non-international armed conflicts.
In addition to the 1949 Geneva Conventions and the 1977 Additional Protocols, several conventions related to the protection of persons and objects in time of war, and related to the prohibition of certain weapons, were adopted in the years after 1949. Among these conventions are: The 1954 Convention for the Protection of Cultural Property in the Event of Armed Conflict; the 1972 Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological (Biological) and Toxin Weapons and Their destruction; the 1980 Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons Which May be Deemed to Excessively Injurious or to Have Indiscriminate Effects; and the Chemical Weapons Treaty of 1993.

Section 2: Sources, Scope and Content of International Humanitarian Law

A. The Sources and Composition of International Humanitarian Law
All the conventions mentioned above could constitute the sources of the International Humanitarian law. The codification of the rules of International Humanitarian Law shows that this law consists of two branches: the Law of Geneva and the Law of The Hague. While the Law of Geneva has a precisely defined subject area, which is the protection of persons against abuse of force, the Law of The Hague covers all the other problems of the law of war.

(1) The Law of The Hague
The Law of The Hague consists of the several Conventions adopted at the Hague Peace Conferences of 1899 and 1907. The Hague Conventions regulates various aspects of the laws of war and neutrality. Almost all these conventions are still in force, although many of their provision have been overtaken by the modern conditions of warfare. The conventions regulates matters such as the opening of hostilities, the laws and customs of war on land, the rights and duties of neutral powers and persons in case of war on land, the status of enemy merchant ships at the outbreak of hostilities, the conversions of merchant ships into warships, the laying of automatic submarine contact mines, bombardment by naval force in time of war, capture in naval war, and rights and duties of neutral powers in naval war.

(2) The Law of Geneva
The Law of Geneva consists of four conventions of 1949 and two additional protocols of 1977.
The conventions are:
- The First Geneva Convention of 1949: Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field.
- The Second Geneva Convention of 1949: Geneva Convention for the Amelioration of the Condition of the Wounded, Sick and Shipwrecked Members of Armed Forces at Sea.
- The Third Geneva Convention of 1949: Geneva Convention relative to the Treatment of Prisoners of War.
- The Fourth Geneva Convention of 1949: Geneva Convention relative to the Protection of Civilian Persons in Time of War.
The additional protocols to the Geneva conventions are:
- Protocol I: Protocol Additional to the Geneva Conventions of 12 August 1949, and Related to the Protection of Victims of International Armed Conflicts.
- Protocol II: Protocol Additional to the Geneva Conventions of 12 August 1949, and Related to the Protection of Victims of Non-International Armed Conflicts.

B. The General Scope of International Humanitarian Law
All The Hague Conventions and the 1906 Geneva Convention include the general participation clause (clause si omnes) which states that the provisions of the Conventions shall be binding on the contracting parties only in case of hostilities between two or more of them and that those provisions shall cease to be binding if one of the belligerent powers is not a signatory to the Convention. Such a clause was generally accepted before the First World War. However, the four 1949 Geneva Conventions specifically rejected such a clause. They state that the conventions shall be respected in all circumstances, and shall apply to all cases of declared war or any other armed conflict which may arise between two or more of the contracting parties, and that even if one of the powers in conflict is not a party to the Conventions, the powers who are parties to the Conventions shall remain bound by them in their mutual relations, and they shall furthermore be bound by the Conventions in relation to the said power, if the latter accepts and applies the provisions
thereof. Furthermore, they provide that neutral powers shall apply by analogy the provisions of the Conventions to the concerned persons received or interned in their territory.
The Geneva Conventions expands their application to cases not involving armed conflict and cases of non-international armed conflict. They state that they apply to all cases of partial and total occupation of the territory of the contracting party even if the said occupation meets with no armed resistance. They also apply to cases of armed conflict not of an international character occurring in the territory of one of the contracting parties; in such cases, each party to the conflict shall be bound to apply, as a minimum the specified provisions of the Conventions which guarantee to the victims of this type of armed conflict at least the minimum protection. This position of the Geneva Conventions regarding the non-international armed conflict occurring in the territory of a contracting party constitutes derogation from the traditional principle of International Law concerning the application of a convention only between the contracting parties (sovereign States); such a position is reaffirmed in the 1977 Protocol II.
Protocol II provides that it apply to armed conflicts not covered by Protocol I, and to armed conflicts taken place in the territory of a contracting party between its armed forces and dissident armed forces or other organized armed groups which, under responsible command, exercise such control over a part of its territory as to enable them to carry out sustained and concerted military operations and to implement this Protocol. In this sense, Protocol II does not apply to situations of internal disturbances and tensions, such as riots, isolated and sporadic acts of violence and other acts of similar nature, as not being armed conflicts.
The 1977 Protocol I extends the application of the 1949 Geneva Conventions to include wars of national liberation. It provides that it apply to cases of armed conflicts in which peoples are fighting against colonial domination, alien domination and racist regimes in the exercise of their right of self determination in accordance with the Charter of the United Nations and the 1970 “Declaration on Principles of International Law….” It is thus apparent from the above developments that the scope of International Humanitarian Law was gradually enlarged. Today this Law applies to all circumstances: in cases of armed conflicts involving contracting parties as well as non-contracting parties; in cases involving States as well as certain entities other than States; in cases of international armed conflicts and wars of national liberation as well as non-international armed conflicts (internal armed conflicts). This trend can be interpreted as modifying certain traditional concepts of International Law, particularly those related to the subjects of the Law.
Notably, International Humanitarian Law recognizes two different categories of armed conflicts, international armed conflicts and non-internal armed conflicts. International armed conflicts (known as Wars) are those involve two or more States; wars of national liberation are considered international armed conflicts. Non-international (internal) armed conflicts (usually known as civil wars) are those warlike hostilities which occur in the territory of a single State.

C. The Persons Protected under International Humanitarian Law
The main aim of International Humanitarian Law is to protect persons, victims of the evils of armed conflicts. To this end, this Law formulates a set of protections to be provided to certain categories of persons who are called “protected persons”. Protected persons are those who, at a given moment and in any manner whatsoever, find themselves, in case of a conflict or occupation, in the hands of a party to the conflict or occupation power of which they are not nationals. The protected persons to whom the protections of International Humanitarian Law apply are the following:

1. The Wounded and the Sick
Wounded and sick are persons, whether military or civilian, who because of trauma, disease or other physical or mental disorder or disability, are in need of medical assistance or care and who refrain from any act of hostility.[39] They also include maternity cases, newborn babies and other persons who may be in need of immediate medical assistance or care, such as expectant mothers, and who refrain from any act of hostility.

2. Shipwrecked
Shipwrecked are persons, whether military or civilian, who are in peril at sea or in other waters as a result of misfortune affecting them or the vessel or aircraft carrying them and who refrain from any act of hostility.

3. Medical Personal
Medical personal are those persons, whether military or civilian, assigned, whether permanently or temporary, by a party to the conflict, exclusively to the medical purposes or to the administration of medical units or the operation or administration of medical transports. Medical purposes include the search for, the collection, transport and treatment of the wounded and sick. Medical personnel also include: the medical personnel of national Red Cross (Red Crescent) societies and other national voluntary aid societies duly organized and authorized by a party to a conflict; the medical personnel of a neutral or of other State which is not a party to that conflict, or of a recognized and authorized aid society of such a State; and the medical personnel of an impartial international humanitarian organization.
“Medical units” means establishments and other units, whether military or civilian, organized for medical purposes, namely the search for, collection, transportation, diagnosis or treatments of the wounded, sick and shipwrecked or for the prevention of disease. This term includes hospitals and the likes, and various medical centers.
“Medical transports” means any means of transportation, such as vehicles, ships and aircrafts, whether military or civilian, permanent or temporary, assigned exclusively to medical transportation and under the control of a competent authority of a party to the conflict.

4. Religious Personnel
Religious personnel are military or civilian persons, such as chaplains, who are exclusively engaged in the work of their ministry and attached to the armed forces, medical units, medical transports, or civil defense organization of a party to the conflict.[47] They also include: those assigned by a neutral. OR
Other State which are not a party to that conflict, or by a recognized and authorized aid society of such a State; and those assigned by an impartial international humanitarian organization.

5. Prisoners of War
Prisoners of war are combatants who have fallen into the hands of the enemy, the adverse party to the conflict. Combatants are members of the armed forces of a party to a conflict other than medical and religious personnel. The armed forces of a party to a conflict consist of all organized armed forces, groups and units (militias or volunteer corps forming part of such armed forces) which are under a command responsible to that party for the conduct of its subordinates. Combatants also include members of other militias and members of other volunteer corps, including those of organized resistance movements, belonging to a party to the conflicts and operating in or outside their own territory, provided that such groups fulfill the conditions specified in the Third Geneva Convention, which are: 1) They are commanded by a person responsible for his subordinates; 2) They have a fixed distinctive sign recognizable at a distance; 3) They carry arms openly; and 4) They conduct their operations in accordance with the laws and customs of war.

6. Civilians and Civilian Population
Civilians mean persons who are not members of the armed forces of a party to the conflict, and not members of other militias and members of other volunteer corps, referred to them as combatants. The civilian population comprises all persons who are civilians.
Among civilians, women and children (under fifteen years of age) are granted special status in International Humanitarian Law, and consequently special protections.

7. Other Protected Persons
There are certain categories of persons who have not appeared in situations of armed conflicts until quite recently. Although they are included within the meaning of civilians, they need special attention because they are exposed, in case of armed conflict, to extreme danger. These persons are the personnel of civilian defense organizations, and the journalists; Protocol I includes them within the protection of the International Humanitarian Law.

D. Objects Protected under International Humanitarian Law
The aim of International Humanitarian Law is not limited to the protection of persons only, but it is, by extension, aim to protect objects not directly serving military purposes. The objects to which, the protections of this Law apply are the following:

1) Objects Serving Medical Purposes
All objects serving medical purposes, whether civilian or military, are protected under International Humanitarian Law. These objects include: fixed or mobile medical establishments such as hospitals, the likes, centers and units; and medical transports such as vehicles, trains, ships and aircraft.

2. Civilian Objects
Civilian objects are those which are not used for any military purposes or objectives. In addition, they are objects not used for medical purposes; otherwise, they will be included within the meaning of medical objects. Civilian objects include:
- Objects which are indispensable to the survival of the civilian population, such as foodstuffs, crops, livestock, and drinking water installations and supplies.
- Civilian houses, schools and places of work.
- Undefended localities.
- Objects which constitute the cultural or spiritual heritage of peoples, such as historic monuments, works of arts, and places of worship.
- Works or installations containing dangerous forces, namely dams, dykes and nuclear electrical generating stations.
- Natural environment.
- Neutral and demilitarized zones.

E. The Fundamental Protections of International Humanitarian Law
The aim of International Humanitarian Law is to protect the human being and safeguard his dignity in time of armed conflicts. To this end, a multitude of rules regulating the conduct of States in armed conflicts, and which constitute the protections and guarantees to persons in time of armed conflicts, are formulated in this Law. These rules are of two types: injunctions, requiring the parties to the dispute thereto to act, and prohibitions, requiring the parties to abstain from acting.
The rules formulated in International Humanitarian Law do not come from a vacuum; they are inspired by other principles and rules expressly stated in other instruments of International Law or clearly implied from thereof, or are derived from the customary international law. The principles of the Law of Human Rights, such as the principle of inviolability, the principle of non-discrimination and the principle of security, inspire many rules and principles formulated in International Humanitarian Law. The principles of Human Law corollary to the Law of War, such as the principle of military necessity and the principles of limitation are also behind the rules and principles of International Humanitarian Law. The principle of neutrality provides the inspiration to the rules of International Humanitarian Law, particularly those related to the immunity and protection of the medical personnel and facilities.
The most important fundamental rules and principles formulated in International Humanitarian Law, which constitute protections and guarantees to persons under this Law, are the following:

1. Persons taking no active part in hostilities, including members of armed forces who have laid down their arms and those placed hors de combat (out of combat) by sickness, wound, detention, or any other cause, shall in all circumstances be protected and treated humanely, without any adverse distinction founded on race, color, religion or faith, sex, wealth, or any other similar criteria. Their lives, and their physical and moral integrity shall be respected. Women shall be especially protected against any attack on their honour, in particular against rape, enforced prostitution, or any form of indecent assaults.

2. The wounded, sick and shipwrecked shall be collected, cared for, and protected by the party to the conflict who has them in its power.

3. Medical personnel, establishments, transports and materials are protected. The emblems of the Red Cross and the Red Crescent are the signs of such protection and must be respected.

4. It is forbidden to kill or injure an enemy who surrenders or who is out of combat. Captured combatants and civilians under the authority of an adverse party are entitled to respect for their lives, dignity, personal rights and convictions. They shall at all times be humanely treated. They shall be protected against all acts of violence and reprisals. They shall have the rights to correspond with their families and receive relief.

5. Every person shall be entitled to benefit from the fundamental judicial guarantees. No one shall be responsible for an act he has not committed. No one shall be subjected to physical or mental torture, corporal punishment or cruel or degrading treatment.

6. Individual or mass forcible transfer, as well as deportations of persons from occupied territory to other territory are prohibited regardless of their motive.

7. Civilians and civilian population shall enjoy general protection against dangers from military operations. They shall not be the object of attack. Acts or threats of violence to spread terror among the civilian population are prohibited. Indiscriminate attacks are prohibited. Reprisals are prohibited.

8. Civilian objects shall not be the object of attack or reprisals.

9. Parties to a conflict and members of their armed forces do not have an unlimited choice of methods and means of warfare. They are prohibited from employing weapons or methods of warfare of the nature to cause unnecessary losses or excessive suffering.

10. Parties to a conflict shall at all times distinguish between combatants and civilian population in order to spare the civilian population. Attacks shall be directed solely against military objectives.

Section 3: Execution of International Humanitarian Law
The rules of International Humanitarian Law, like any of other laws, are meaningless if they are not executed. Since these rules constitute obligations imposed upon sovereign States, States have to execute its obligations. In executing its obligations, the State will be fulfilling its obligations under International Law, and consequently serving its own interests. Any breach of its obligations under International Law, the State will subject itself to sanctions. Sanctions will be applied against the State and individuals. The subject of individual criminal responsibility under International Law will not be dealt with in the present chapter, but in the next chapter.
International Humanitarian Law requires each State to execute its obligations under it in all circumstances, in time of peace and in the event of armed conflict. In addition, it attributes to the protecting powers (States) and substitute organizations such as the Red Cross societies, the authority to aid and assist in the execution of its rules.

A. Execution by States
In all the Conventions and Protocols of International Humanitarian Law, States undertake to respect and ensure respect for them in all circumstances. States shall, therefore, take without delay all the necessary measures for the execution of their obligations under them. They also shall give orders and instruction to ensure observance of them, and shall supervise their execution.
States undertake, in time of peace as in time of war, to disseminate the Texts of the conventions as widely as possible in their respective countries.[68] They undertake to include the study thereof in their military programmes and civil instructions, so that the principles thereof may become known to the entire population, in particular to the armed fighting forces, the medical personnel and the chaplains.
States undertake to enact any legislation necessary to provide effective penal sanctions for persons committing, or ordering to be committed, any of the grave breaches of the Conventions defined thereof. Each State is under the obligation to search for persons alleged to have committed, or to have ordered to be committed, such breaches, and shall bring such persons, regardless of their nationality, before its own courts. It may also, if it prefers, and in accordance with the provisions of its own legislation, hand such persons over for trail to another State concerned, provided such State has made out a prima facie case.
Each State is under the obligation to take measures necessary for the suppression of all acts contrary to the provisions of the Conventions other than the grave breaches defined thereof.

B. Protecting Powers
During an armed conflict, the execution of the provisions of the Conventions and the Additional Protocols should be ensured, to a certain extent, with the aid of the protecting powers entrusted to safeguard the interests of the parties to the conflict. The first obligation of a party to the conflict after the outbreak of armed conflict is to appoint a protecting power. “Protecting power” means a neutral or other State not a party to the conflict which has been designed by a party to the dispute and accepted by the adverse party and has agreed to carry out the humanitarian functions assigned to a protecting power under the Conventions and the Additional Protocols which aim to ensure protection and assistance to the victims of armed conflicts. In performing their functions, the protecting powers also help in the implementation of International Humanitarian Law.

C. Red Cross Societies
The protecting powers may be substituted by the International Committee of the Red Cross (ICRC) or other impartial humanitarian organizations which offer all guarantees of impartiality and efficacy. In addition to the humanitarian functions which the ICRC can perform in place of the protecting powers, it is granted a sort of right of initiative in humanitarian activities. Among the numerous functions which the ICRC can perform are the rights to visit all places where prisoners of war or civilian internees are kept, and to interview these protected persons without witnesses, personally or through an interpreter. Humanitarian functions can also be carried out by National Red Cross or Red Crescent Societies, and by other duly recognized and authorized charitable associations.

References:
[1] See generally H.P. Gasser, International Humanitarian Law: A Introduction, Henry Dunant Institute, Haupt (1993); J. Pictet, Development and Principles of International Humanitarian Law, Henry Dunant Institute, Geneva (1985); D. Schindler and J. Toman, The Laws of Armed Conflicts, Geneva (1981); and Shaw, chapter 21.
[2] Gasser, p. 3.
[3] Pictet, p. 1.
[4] Gasser, p. 3.
[5] See S.E. Nahlik, A Brief Outline of International Humanitarian Law, p. 7, (Extract from the International Review of the Red Cross, July-August 1984) [Separate print].
[6] Pictet, p. 3.
[7] Id.
[8] See generally, Pictet, pp. 5-58; and F. Kalshoven, Constraints on the Waging of War, chapter II, 2nd ed., ICRC, Geneva (1991).
[9] See generally Kalshoven, pp. 7-15; Pictet, pp. 25-31; and Shaw, pp. 1054-6.
[10] Text in IRC Handbook (1971) pp. 7-8.
[11] See Pictet, pp. 29-30.
[12] See generally Gasser, pp. 8-15; Kalshoven, chapter II; Nahlik, pp. 9-15; Pictet, chapter II; and Shaw, chapter 21.
[13] See Gasser, p. 10; and Shaw, p. 1065.
[14] See generally Gasser, pp. 10-12; and Kalshoven, pp. 11-16.
[15] Text in IRC Handbook (1953) p. 42.
[16] See Pictet, pp. 31-2.
[17] Text in IRC Handbook (1953) p. 18.
[18] Text in id. p. 59.
[19] Text in id. p. 71.
[20] See Gasser, p. 12.
[21] See Nahlik, p. 12; and Shaw, p. 1055.
[22] Text of these four Conventions in The Geneva Conventions of August 12, 1949, ICRC.
[23] See Gasser, pp. 13-4.
[24] Text in Protocols Additional to the Geneva Conventions of 12 August 1949, p. 3, ICRC, Geneva (1977).
[25] Text in Protocols Additional to the Geneva Conventions of 12 August 1949, p. 89, ICRC, rev. ed., Geneva (1996).
[26] See Gasser, pp. 14-15; and Kalshoven, pp. 17 & 23.
[27] Texts of relevant conventions in International Law Concerning the Conduct of Hostilities: Collection of Hague Conventions and Some Other International Instruments, rev. and updated ed., ICRC Geneva (1996).
[28] See supra, notes 22, 24 & 25.
[29] Nahlik, p.16.
[30] Id.
[31] Arts 1 & 2 common to the four 1949 Geneva Conventions.
[32] Art 4 of the 1st Convention; and art. 5 of the 2nd Convention
[33] Art. 2 common to the four 1949 Geneva Conventions.
[34] Art. 3 common to the four 1949 Geneva Conventions.
[35] Protocol II art. 1(1).
[36] Id. art. 1(2).
[37] Protocol I art. 1(4).
[38] 4th Convention art. 4.
[39] Protocol I art. 8(a); and 1st Convention arts. 12 & 13.
[40] Protocol I art. 8(a).
[41] Protocol I art. 8(b); and 2nd Convention arts. 12 & 123.
[42] Protocol I arts. 8(c) & 12.
[43] Id. art. 8(e); and 1st Convention art. 24.
[44] Protocol I arts. 8(c) & 9(2); and 1st Convention art. 26 & 27.
[45] Protocol I arts. 8(e ) & 9(2); 1st Convention arts. 19 & 20; and 2nd Convention arts. 38-40.
[46] Protocol I arts. 8(f ) & 21-23; 1st Convention arts. 35-37; and 2nd Convention art. 38-40.
[47] Protocol I art. 8(d).
[48] Id. art. 9(2).
[49] Id. art. 44(1).
[50] Id. art. 43(2).
[51] Protocol I art. 43(1); 1st Convention art. 13; 2nd Convention art. 13; and 3rd Convention art. 4.
[52] 1st Convention art. 13(2); 2nd Convention art. 13(2); and 3rd Convention art. 4(2).
[53] See Protocol I art. 50(1).
[54] Id. art. 50(2).
[55] See id. arts. 76-78.
[56] See id
[57] Protocol I art. 52.
[58] Id. art. 54.
[59] Protocol I art. 52(3).
[60] Id. art. 59.
[61] Id. art. 53.
[62] Id. art. 56.
[63] Id. art. 55.
[64] Id. art. 60.
[65] Art. 1 common to the four Geneva Convention; and Protocol I art. 1(1).
[66] Protocol I art. 80(1).
[67] Protocol I art. 80(2); 1st Convention art. 45; and 2nd Convention art. 46.
[68] 1st Convention art. 47; 2nd Convention art. 48; 3rd Convention art. 127; 4th Convention art. 144; Protocol I art. 83; and Protocol II art. 19.
[69] Id.
[70] 1st Convention art. 49; 2nd convention art. 50; 3rd Convention art. 129; and 4th Convention art. 146.
[71] Id.
[72] Id.
[73] Id.
[74] Protocol I art. 5.
[75] Id. art. 2(c).
[76] Id. arts. 2(d), 5(3) & (4).
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Default International Humanitarian Law

International Humanitarian Law

The rules of “Law of War”, dealt with in the previous chapter, which govern the resort to force in international relations (ius ad bellum), are intended to prohibit, or at least to restrict, the resort to war (armed force) in international relations. However, because it is not possible to fully prevent war (the use of armed force), attempts have been made to regulate the conducts of war in order to mitigate its extent. The attempts have succeeded in establishing rules to govern the actual conducts of war (ius in bello). These rules, to some legal scholars, are part of the Law of War, thus they are referred to as rules related to “Law of War”. However, to others they form a separate law known as “International Humanitarian Law”.
Because the prevailing view considers “International Humanitarian Law” to be a separate law, it is reasonable to deal with this law in a separate chapter. Thus, the present chapter is endeavored to the study of “International Humanitarian Law” (called also “Law of Armed Conflicts”).
As it has been apparent that prevention of war has not been possible, it has been apparent that the rules formulated in “International Humanitarian Law” would not be effective without attaching responsibilities in cases of their violations, and without having a mechanism to prosecute violators. Thus, “International Criminal Law” has come into existence, as a derivative of “International Humanitarian Law”.
“International Humanitarian Law” is the subject of this chapter, while “International Criminal Law” is the subject of the next chapter.
“International Humanitarian Law” (called also “Law of Armed Conflicts”) is that branch of International Law which regulates the conduct of armed conflicts (war). It is inspired by a feeling for humanity and is centered on the protection of human being in time of war (armed conflicts). It seeks to mitigate the effects of armed conflicts by limiting the choice of means and methods of conducting military operations and providing protections to persons and civilian objects during armed conflicts.
International Humanitarian Law compiles those rules of International Law which aim to protect persons, victims of the evils of armed conflicts, as well as, by extension, objects not directly serving military purposes. In this sense, it is apparent that there is a relation between International Humanitarian Law and the Law of Human Rights because both laws aim to guarantee to persons the enjoyment of rights and freedom and to protect them from evils. However, there is an essential difference between these two laws since International Humanitarian Law applies only in time of armed conflicts, while Law of Humanitarian rights applies in all time.
How does “International Humanitarian Law” emerge and develop? What are its sources, scope and content? How is it executed? These are the questions, which are answered in the following.

Section 1: The Codification and Development of International Humanitarian Law
To protect man against the evils of war and cruel treatments is not a new idea. It goes back to the dawn of history.[8] In a distant past, some military leaders used to order their troops to spare the lives of enemy prisoners (soldiers and civilians) and to treat them well. Often upon the termination of war, the belligerent parties used to agree to exchange the prisoners in their hands. Throughout the history, such practices and likewise gradually evolved into a body of customary rules regulating the conduct of war.
Because the scope and content of the customary rules related to the conduct of war were somewhat vague and uncertain, a movement was initiated during the Nineteenth Century to embody such rules in binding international instruments. In 1864, mainly as a result of the pioneering effort of the Swiss businessman Henry Dunant, a diplomatic conference convened in Geneva by invitation of the Swiss Government for the purpose of codifying certain rules which would guarantee a better treatment of the wounded and facilitate the work of the medical personnel in the field of land-war. On August 22, 1864, the conference adopted the “Convention for the Amelioration of the Condition of the Wounded in Armies in the Field”.
The most important principles introduced by the 1864 Geneva Convention were: The neutrality of ambulances and military hospitals, as such, they are protected and respected by the belligerents as long as they accommodate wounded and sick; hospitals, ambulances and evacuation parties would be distinguished by a uniform flag or armlet bearing “a red cross on a white ground”; the exemption of hospital and ambulance personnel from being captured or being the target of fire; wounded and sick combatants should be collected and cared for; and civilians coming to the assistance of the wounded should be respected. This Convention was accepted by all the then independent States.
The 1864 Geneva Convention was the first modest step in the process of codifying rules of International Humanitarian Law. This step was followed by many other steps, before the “International Humanitarian Law” reached its present scope and content.
In 1868, the “Declaration of St Petersburg” came to prohibit the use of explosive or flammable bullets. This Declaration, in fact, added strength to the principle of the Law of War concerning the obligation of the belligerents to limit the use of force in meeting a legitimate military objective.
At the Hague Peace Conferences of 1899 and 1907, a series of conventions were adopted, codifying the law of war. The Conventions were intended to set legal limits to means and methods of land and naval warfare; such legal limits still form the basis of the existing rules. The Conventions emphasized that belligerents remained subject to the “Law of Nations.” They contained rules concerning the treatment of prisoners of war; the conduct of military operations, particularly in regard of means of injuring the enemy, sieges and bombardments, and occupied territory; and the rights and duties of neutral States. Moreover, One of these Conventions, namely the “1907 Hague Convention for the Adaptation to Maritime Warfare of the Principles of Geneva Convention” (the Tenth 1907 Hague Convention) expanded the protection of the 1906 Geneva Convention to the victims of war at sea.
The 1864 Geneva Convention was revised twice, before and after the First World War, in order to adapt its provisions to new realities. The first revision took place in 1906. The major achievement of the “1906 Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armies in the Field” was the development of the provisions for application of the principles formulated in the 1864 Convention, taking into account the changes in the world, particularly the growing development of the means of destruction, in order to make such principles more effective. The second revision was made in 1929, taking into account the experiences of the First World War, particularly those related to the treatment of the wounded, the sick, and the prisoners of war. Two Conventions were concluded in 1929: the “1929 Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armies in the Field”; and the “1929 Geneva Convention Relative to the Treatment of Prisoners of War”. The two Conventions made important improvements to the old provisions of the Law of Geneva. They formulated a clear and complete set of rules and principles on capture and captivity of prisoners of war, and on the treatment of the wounded and the sick. They introduced the ban on reprisals against the prisoners of war, and the principle that application of the rules of the Convention would be
open to international scrutiny. Notably, in this 1929 Diplomatic Conference, the “red crescent” was recognized as the symbol of Muslim countries in place of the “red cross”.
The atrocities of the Second World War provided the incentive for major revision and further development of the law of Geneva. In 1949 a diplomatic conference was convened in Geneva at the instigation of the International Committee of the Red Cross (ICRC) and by invitation of the Swiss Government for such purposes. The 1949 Geneva Conference led to the conclusion of four Conventions; three Conventions substituting the three Conventions in force, namely the Tenth 1907 Hague Convention and the two 1929 Geneva Conventions; and the Convention on the protection of civilian persons in time of war, which was the innovation of this Conference. The four 1949 Geneva Conventions deal respectively with the amelioration of the condition of the wounded and sick members of the armed forces in the field, the amelioration of the condition of the wounded, sick and shipwrecked members of the armed forces at sea, the treatment of prisoners of war, and the protection of civilian persons in time of war.
In 1977, two Additional Protocols to the 1949 Conventions were adopted at the closing of the 1974-1977 “Conference on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts” which was held in Geneva at the invitation of the Swiss Government. Protocol I deals with the protection of victims of international armed conflicts. It develops in detail the rules of Geneva Conventions and The Hague Conventions concerning the methods and means of warfare. Protocol II deals with the protection of victims of internal armed victims. It develops and supplements the rules of the 1949 Geneva Conventions concerning the non-international armed conflicts.
In addition to the 1949 Geneva Conventions and the 1977 Additional Protocols, several conventions related to the protection of persons and objects in time of war, and related to the prohibition of certain weapons, were adopted in the years after 1949. Among these conventions are: The 1954 Convention for the Protection of Cultural Property in the Event of Armed Conflict; the 1972 Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological (Biological) and Toxin Weapons and Their destruction; the 1980 Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons Which May be Deemed to Excessively Injurious or to Have Indiscriminate Effects; and the Chemical Weapons Treaty of 1993.

Section 2: Sources, Scope and Content of International Humanitarian Law

A. The Sources and Composition of International Humanitarian Law
All the conventions mentioned above could constitute the sources of the International Humanitarian law. The codification of the rules of International Humanitarian Law shows that this law consists of two branches: the Law of Geneva and the Law of The Hague. While the Law of Geneva has a precisely defined subject area, which is the protection of persons against abuse of force, the Law of The Hague covers all the other problems of the law of war.

(1) The Law of The Hague
The Law of The Hague consists of the several Conventions adopted at the Hague Peace Conferences of 1899 and 1907. The Hague Conventions regulates various aspects of the laws of war and neutrality. Almost all these conventions are still in force, although many of their provision have been overtaken by the modern conditions of warfare. The conventions regulates matters such as the opening of hostilities, the laws and customs of war on land, the rights and duties of neutral powers and persons in case of war on land, the status of enemy merchant ships at the outbreak of hostilities, the conversions of merchant ships into warships, the laying of automatic submarine contact mines, bombardment by naval force in time of war, capture in naval war, and rights and duties of neutral powers in naval war.

(2) The Law of Geneva
The Law of Geneva consists of four conventions of 1949 and two additional protocols of 1977.[28] The conventions are:
- The First Geneva Convention of 1949: Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field.
- The Second Geneva Convention of 1949: Geneva Convention for the Amelioration of the Condition of the Wounded, Sick and Shipwrecked Members of Armed Forces at Sea.
- The Third Geneva Convention of 1949: Geneva Convention relative to the Treatment of Prisoners of War.
- The Fourth Geneva Convention of 1949: Geneva Convention relative to the Protection of Civilian Persons in Time of War.
The additional protocols to the Geneva conventions are:
- Protocol I: Protocol Additional to the Geneva Conventions of 12 August 1949, and Related to the Protection of Victims of International Armed Conflicts.
- Protocol II: Protocol Additional to the Geneva Conventions of 12 August 1949, and Related to the Protection of Victims of Non-International Armed Conflicts.

B. The General Scope of International Humanitarian Law
All The Hague Conventions and the 1906 Geneva Convention include the general participation clause (clause si omnes) which states that the provisions of the Conventions shall be binding on the contracting parties only in case of hostilities between two or more of them and that those provisions shall cease to be binding if one of the belligerent powers is not a signatory to the Convention. Such a clause was generally accepted before the First World War.
However, the four 1949 Geneva Conventions specifically rejected such a clause. They state that the conventions shall be respected in all circumstances, and shall apply to all cases of declared war or any other armed conflict which may arise between two or more of the contracting parties, and that even if one of the powers in conflict is not a party to the Conventions, the powers who are parties to the Conventions shall remain bound by them in their mutual relations, and they shall furthermore be bound by the Conventions in relation to the said power, if the latter accepts and applies the provisions thereof. Furthermore, they provide that neutral powers shall apply by analogy the provisions of the Conventions to the concerned persons received or interned in their territory.
The Geneva Conventions expands their application to cases not involving armed conflict and cases of non-international armed conflict. They state that they apply to all cases of partial and total occupation of the territory of the contracting party even if the said occupation meets with no armed resistance. They also apply to cases of armed conflict not of an international character occurring in the territory of one of the contracting parties; in such cases, each party to the conflict shall be bound to apply, as a minimum the specified provisions of the Conventions which guarantee to the victims of this type of armed conflict at least the minimum protection. This position of the Geneva Conventions regarding the non-international armed conflict occurring in the territory of a contracting party constitutes derogation from the traditional principle of International Law concerning the application of a convention only between the contracting parties (sovereign States); such a position is reaffirmed in the 1977 Protocol II.
Protocol II provides that it apply to armed conflicts not covered by Protocol I, and to armed conflicts taken place in the territory of a contracting party between its armed forces and dissident armed forces or other organized armed groups which, under responsible command, exercise such control over a part of its territory as to enable them to carry out sustained and concerted military operations and to implement this Protocol. In this sense, Protocol II does not apply to situations of internal disturbances and tensions, such as riots, isolated and sporadic acts of violence and other acts of similar nature, as not being armed conflicts.
The 1977 Protocol I extends the application of the 1949 Geneva Conventions to include wars of national liberation. It provides that it apply to cases of armed conflicts in which peoples are fighting against colonial domination, alien domination and racist regimes in the exercise of their right of self determination in accordance with the Charter of the United Nations and the 1970 “Declaration on Principles of International Law….”
It is thus apparent from the above developments that the scope of International Humanitarian Law was gradually enlarged. Today this Law applies to all circumstances: in cases of armed conflicts involving contracting parties as well as non-contracting parties; in cases involving States as well as certain entities other than States; in cases of international armed conflicts and wars of national liberation as well as non-international armed conflicts (internal armed conflicts). This trend can be interpreted as modifying certain traditional concepts of International Law, particularly those related to the subjects of the Law.
Notably, International Humanitarian Law recognizes two different categories of armed conflicts, international armed conflicts and non-internal armed conflicts. International armed conflicts (known as Wars) are those involve two or more States; wars of national liberation are considered international armed conflicts. Non-international (internal) armed conflicts (usually known as civil wars) are those warlike hostilities which occur in the territory of a single State.

C. The Persons Protected under International Humanitarian Law
The main aim of International Humanitarian Law is to protect persons, victims of the evils of armed conflicts. To this end, this Law formulates a set of protections to be provided to certain categories of persons who are called “protected persons”. Protected persons are those who, at a given moment and in any manner whatsoever, find themselves, in case of a conflict or occupation, in the hands of a party to the conflict or occupation power of which they are not nationals. The protected persons to whom the protections of International Humanitarian Law apply are the following:

1. The Wounded and the Sick
Wounded and sick are persons, whether military or civilian, who because of trauma, disease or other physical or mental disorder or disability, are in need of medical assistance or care and who refrain from any act of hostility.[39] They also include maternity cases, newborn babies and other persons who may be in need of immediate medical assistance or care, such as expectant mothers, and who refrain from any act of hostility.

2. Shipwrecked
Shipwrecked are persons, whether military or civilian, who are in peril at sea or in other waters as a result of misfortune affecting them or the vessel or aircraft carrying them and who refrain from any act of hostility.

3. Medical Personal
Medical personal are those persons, whether military or civilian, assigned, whether permanently or temporary, by a party to the conflict, exclusively to the medical purposes or to the administration of medical units or the operation or administration of medical transports. Medical purposes include the search for, the collection, transport and treatment of the wounded and sick.

Medical personnel also include: the medical personnel of national Red Cross (Red Crescent) societies and other national voluntary aid societies duly organized and authorized by a party to a conflict; the medical personnel of a neutral or of other State which is not a party to that conflict, or of a recognized and authorized aid society of such a State; and the medical personnel of an impartial international humanitarian organization.
“Medical units” means establishments and other units, whether military or civilian, organized for medical purposes, namely the search for, collection, transportation, diagnosis or treatments of the wounded, sick and shipwrecked or for the prevention of disease. This term includes hospitals and the likes, and various medical centers.
“Medical transports” means any means of transportation, such as vehicles, ships and aircrafts, whether military or civilian, permanent or temporary, assigned exclusively to medical transportation and under the control of a competent authority of a party to the conflict.

4. Religious Personnel
Religious personnel are military or civilian persons, such as chaplains, who are exclusively engaged in the work of their ministry and attached to the armed forces, medical units, medical transports, or civil defense organization of a party to the conflict. They also include: those assigned by a neutral or
other State which are not a party to that conflict, or by a recognized and authorized aid society of such a State; and those assigned by an impartial international humanitarian organization.

5. Prisoners of War
Prisoners of war are combatants who have fallen into the hands of the enemy, the adverse party to the conflict. Combatants are members of the armed forces of a party to a conflict other than medical and religious personnel. The armed forces of a party to a conflict consist of all organized armed forces, groups and units (militias or volunteer corps forming part of such armed forces) which are under a command responsible to that party for the conduct of its subordinates. Combatants also include members of other militias and members of other volunteer corps, including those of organized resistance movements, belonging to a party to the conflicts and operating in or outside their own territory, provided that such groups fulfill the conditions specified in the Third Geneva Convention, which are: 1) They are commanded by a person responsible for his subordinates; 2) They have a fixed distinctive sign recognizable at a distance; 3) They carry arms openly; and 4) They conduct their operations in accordance with the laws and customs of war.

6. Civilians and Civilian Population
Civilians mean persons who are not members of the armed forces of a party to the conflict, and not members of other militias and members of other volunteer corps, referred to them as combatants.[53] The civilian population comprises all persons who are civilians.
Among civilians, women and children (under fifteen years of age) are granted special status in International Humanitarian Law, and consequently special protections.

7. Other Protected Persons
There are certain categories of persons who have not appeared in situations of armed conflicts until quite recently. Although they are included within the meaning of civilians, they need special attention because they are exposed, in case of armed conflict, to extreme danger. These persons are the personnel of civilian defense organizations, and the journalists; Protocol I includes them within the protection of the International Humanitarian Law.

D. Objects Protected under International Humanitarian Law
The aim of International Humanitarian Law is not limited to the protection of persons only, but it is, by extension, aim to protect objects not directly serving military purposes. The objects to which, the protections of this Law apply are the following:
1) Objects Serving Medical Purposes
All objects serving medical purposes, whether civilian or military, are protected under International Humanitarian Law. These objects include: fixed or mobile medical establishments such as hospitals, the likes, centers and units; and medical transports such as vehicles, trains, ships and aircraft.
2. Civilian Objects
Civilian objects are those which are not used for any military purposes or objectives. In addition, they are objects not used for medical purposes; otherwise, they will be included within the meaning of medical objects. Civilian objects include:
- Objects which are indispensable to the survival of the civilian population, such as foodstuffs, crops, livestock, and drinking water installations and supplies.
- Civilian houses, schools and places of work.
- Undefended localities.
- Objects which constitute the cultural or spiritual heritage of peoples, such as historic monuments, works of arts, and places of worship.
- Works or installations containing dangerous forces, namely dams, dykes and nuclear electrical generating stations.
- Natural environment.
- Neutral and demilitarized zones.

E. The Fundamental Protections of International Humanitarian Law
The aim of International Humanitarian Law is to protect the human being and safeguard his dignity in time of armed conflicts. To this end, a multitude of rules regulating the conduct of States in armed conflicts, and which constitute the protections and guarantees to persons in time of armed conflicts, are formulated in this Law. These rules are of two types: injunctions, requiring the parties to the dispute thereto to act, and prohibitions, requiring the parties to abstain from acting.
The rules formulated in International Humanitarian Law do not come from a vacuum; they are inspired by other principles and rules expressly stated in other instruments of International Law or clearly implied from thereof, or are derived from the customary international law. The principles of the Law of Human Rights, such as the principle of inviolability, the principle of non-discrimination and the principle of security, inspire many rules and principles formulated in International Humanitarian Law. The principles of Human Law corollary to the Law of War, such as the principle of military necessity and the principles of limitation are also behind the rules and principles of International Humanitarian Law. The principle of neutrality provides the inspiration to the rules of International Humanitarian Law, particularly those related to the immunity and protection of the medical personnel and facilities.
The most important fundamental rules and principles formulated in International Humanitarian Law, which constitute protections and guarantees to persons under this Law, are the following:

1. Persons taking no active part in hostilities, including members of armed forces who have laid down their arms and those placed hors de combat (out of combat) by sickness, wound, detention, or any other cause, shall in all circumstances be protected and treated humanely, without any adverse distinction founded on race, color, religion or faith, sex, wealth, or any other similar criteria. Their lives, and their physical and moral integrity shall be respected. Women shall be especially protected against any attack on their honour, in particular against rape, enforced prostitution, or any form of indecent assaults.

2. The wounded, sick and shipwrecked shall be collected, cared for, and protected by the party to the conflict who has them in its power.

3. Medical personnel, establishments, transports and materials are protected. The emblems of the Red Cross and the Red Crescent are the signs of such protection and must be respected.

4. It is forbidden to kill or injure an enemy who surrenders or who is out of combat. Captured combatants and civilians under the authority of an adverse party are entitled to respect for their lives, dignity, personal rights and convictions. They shall at all times be humanely treated. They shall be protected against all acts of violence and reprisals. They shall have the rights to correspond with their families and receive relief.

5. Every person shall be entitled to benefit from the fundamental judicial guarantees. No one shall be responsible for an act he has not committed. No one shall be subjected to physical or mental torture, corporal punishment or cruel or degrading treatment.

6. Individual or mass forcible transfer, as well as deportations of persons from occupied territory to other territory are prohibited regardless of their motive.

7. Civilians and civilian population shall enjoy general protection against dangers from military operations. They shall not be the object of attack. Acts or threats of violence to spread terror among the civilian population are prohibited. Indiscriminate attacks are prohibited. Reprisals are prohibited.

8. Civilian objects shall not be the object of attack or reprisals.

9. Parties to a conflict and members of their armed forces do not have an unlimited choice of methods and means of warfare. They are prohibited from employing weapons or methods of warfare of the nature to cause unnecessary losses or excessive suffering.

10. Parties to a conflict shall at all times distinguish between combatants and civilian population in order to spare the civilian population. Attacks shall be directed solely against military objectives.

Section 3: Execution of International Humanitarian Law
The rules of International Humanitarian Law, like any of other laws, are meaningless if they are not executed. Since these rules constitute obligations imposed upon sovereign States, States have to execute its obligations. In executing its obligations, the State will be fulfilling its obligations under international Law, and consequently serving its own interests. Any breach of its obligations under International Law, the State will subject itself to sanctions. Sanctions will be applied against the State and individuals. The subject of individual criminal responsibility under International Law will not be dealt with in the present chapter, but in the next chapter.
International Humanitarian Law requires each State to execute its obligations under it in all circumstances, in time of peace and in the event of armed conflict. In addition, it attributes to the protecting powers (States) and substitute organizations such as the Red Cross societies, the authority to aid and assist in the execution of its rules.

A. Execution by States
In all the Conventions and Protocols of International Humanitarian Law, States undertake to respect and ensure respect for them in all circumstances.States shall, therefore, take without delay all the necessary measures for the execution of their obligations under them. They also shall give orders and instruction to ensure observance of them, and shall supervise their execution.
States undertake, in time of peace as in time of war, to disseminate the Texts of the conventions as widely as possible in their respective countries. They undertake to include the study thereof in their military programmes and civil instructions, so that the principles thereof may become known to the entire population, in particular to the armed fighting forces, the medical personnel and the chaplains.
States undertake to enact any legislation necessary to provide effective penal sanctions for persons committing, or ordering to be committed, any of the grave breaches of the Conventions defined thereof. Each State is under the obligation to search for persons alleged to have committed, or to have ordered to be committed, such breaches, and shall bring such persons, regardless of their nationality, before its own courts. It may also, if it prefers, and in accordance with the provisions of its own legislation, hand such persons over for trail to another State concerned, provided such State has made out a prima facie case.
Each State is under the obligation to take measures necessary for the suppression of all acts contrary to the provisions of the Conventions other than the grave breaches defined thereof.

B. Protecting Powers
During an armed conflict, the execution of the provisions of the Conventions and the Additional Protocols should be ensured, to a certain extent, with the aid of the protecting powers entrusted to safeguard the interests of the parties to the conflict. The first obligation of a party to the conflict after the outbreak of armed conflict is to appoint a protecting power. “Protecting power” means a neutral or other State not a party to the conflict which has been designed by a party to the dispute and accepted by the adverse party and has agreed to carry out the humanitarian functions assigned to a protecting power under the Conventions and the Additional Protocols which aim to ensure protection and assistance to the victims of armed conflicts. In performing their functions, the protecting powers also help in the implementation of International Humanitarian Law.

C. Red Cross Societies
The protecting powers may be substituted by the International Committee of the Red Cross (ICRC) or other impartial humanitarian organizations which offer all guarantees of impartiality and efficacy. In addition to the humanitarian functions which the ICRC can perform in place of the protecting powers, it is granted a sort of right of initiative in humanitarian activities. Among the numerous functions which the ICRC can perform are the rights to visit all places where prisoners of war or civilian internees are kept, and to interview these protected persons without witnesses, personally or through an interpreter. Humanitarian functions can also be carried out by National Red Cross or Red Crescent Societies, and by other duly recognized and authorized charitable associations.


References:
[1] See generally H.P. Gasser, International Humanitarian Law: A Introduction, Henry Dunant Institute, Haupt (1993); J. Pictet, Development and Principles of International Humanitarian Law, Henry Dunant Institute, Geneva (1985); D. Schindler and J. Toman, The Laws of Armed Conflicts, Geneva (1981); and Shaw, chapter 21.
[2] Gasser, p. 3.
[3] Pictet, p. 1.
[4] Gasser, p. 3.
[5] See S.E. Nahlik, A Brief Outline of International Humanitarian Law, p. 7, (Extract from the International Review of the Red Cross, July-August 1984) [Separate print].
[6] Pictet, p. 3.
[7] Id.
[8] See generally, Pictet, pp. 5-58; and F. Kalshoven, Constraints on the Waging of War, chapter II, 2nd ed., ICRC, Geneva (1991).
[9] See generally Kalshoven, pp. 7-15; Pictet, pp. 25-31; and Shaw, pp. 1054-6.
[10] Text in IRC Handbook (1971) pp. 7-8.
[11] See Pictet, pp. 29-30.
[12] See generally Gasser, pp. 8-15; Kalshoven, chapter II; Nahlik, pp. 9-15; Pictet, chapter II; and Shaw, chapter 21.
[13] See Gasser, p. 10; and Shaw, p. 1065.
[14] See generally Gasser, pp. 10-12; and Kalshoven, pp. 11-16.
[15] Text in IRC Handbook (1953) p. 42.
[16] See Pictet, pp. 31-2.
[17] Text in IRC Handbook (1953) p. 18.
[18] Text in id. p. 59.
[19] Text in id. p. 71.
[20] See Gasser, p. 12.
[21] See Nahlik, p. 12; and Shaw, p. 1055.
[22] Text of these four Conventions in The Geneva Conventions of August 12, 1949, ICRC.
[23] See Gasser, pp. 13-4.
[24] Text in Protocols Additional to the Geneva Conventions of 12 August 1949, p. 3, ICRC, Geneva (1977).
[25] Text in Protocols Additional to the Geneva Conventions of 12 August 1949, p. 89, ICRC, rev. ed., Geneva (1996).
[26] See Gasser, pp. 14-15; and Kalshoven, pp. 17 & 23.
[27] Texts of relevant conventions in International Law Concerning the Conduct of Hostilities: Collection of Hague Conventions and Some Other International Instruments, rev. and updated ed., ICRC Geneva (1996).
[28] See supra, notes 22, 24 & 25.
[29] Nahlik, p.16.
[30] Id.
[31] Arts 1 & 2 common to the four 1949 Geneva Conventions.
[32] Art 4 of the 1st Convention; and art. 5 of the 2nd Convention
[33] Art. 2 common to the four 1949 Geneva Conventions.
[34] Art. 3 common to the four 1949 Geneva Conventions.
[35] Protocol II art. 1(1).
[36] Id. art. 1(2).
[37] Protocol I art. 1(4).
[38] 4th Convention art. 4.
[39] Protocol I art. 8(a); and 1st Convention arts. 12 & 13.
[40] Protocol I art. 8(a).
[41] Protocol I art. 8(b); and 2nd Convention arts. 12 & 123.
[42] Protocol I arts. 8(c) & 12.
[43] Id. art. 8(e); and 1st Convention art. 24.
[44] Protocol I arts. 8(c) & 9(2); and 1st Convention art. 26 & 27.
[45] Protocol I arts. 8(e ) & 9(2); 1st Convention arts. 19 & 20; and 2nd Convention arts. 38-40.
[46] Protocol I arts. 8(f ) & 21-23; 1st Convention arts. 35-37; and 2nd Convention art. 38-40.
[47] Protocol I art. 8(d).
[48] Id. art. 9(2).
[49] Id. art. 44(1).
[50] Id. art. 43(2).
[51] Protocol I art. 43(1); 1st Convention art. 13; 2nd Convention art. 13; and 3rd Convention art. 4.
[52] 1st Convention art. 13(2); 2nd Convention art. 13(2); and 3rd Convention art. 4(2).
[53] See Protocol I art. 50(1).
[54] Id. art. 50(2).
[55] See id. arts. 76-78.
[56] See id
[57] Protocol I art. 52.
[58] Id. art. 54.
[59] Protocol I art. 52(3).
[60] Id. art. 59.
[61] Id. art. 53.
[62] Id. art. 56.
[63] Id. art. 55.
[64] Id. art. 60.
[65] Art. 1 common to the four Geneva Convention; and Protocol I art. 1(1).
[66] Protocol I art. 80(1).
[67] Protocol I art. 80(2); 1st Convention art. 45; and 2nd Convention art. 46.
[68] 1st Convention art. 47; 2nd Convention art. 48; 3rd Convention art. 127; 4th Convention art. 144; Protocol I art. 83; and Protocol II art. 19.
[69] Id.
[70] 1st Convention art. 49; 2nd convention art. 50; 3rd Convention art. 129; and 4th Convention art. 146.
[71] Id.
[72] Id.
[73] Id.
[74] Protocol I art. 5.
[75] Id. art. 2(c).
[76] Id. arts. 2(d), 5(3) & (4).
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Default The Use of Force

The Use of Force


The term “law of war” refers to both the rules governing the resort to force (jus ad bellum) and the rules governing the actual conduct of force (jus in bello) in International Law. Because each of these two types of rules governs different subject matters, it is reasonable to deal with them separately. Therefore, this chapter is devoted to deal with the rules governing the resort to force; while the next chapter entitled “International Humanitarian Law” is devoted to deal with the rules governing the actual conduct of force.
The rules governing the resort to force form a central element within International Law. These rules together with other principles such as territorial sovereignty, independence and equality of States provide the framework for the international order. While a domestic system prescribes the monopoly on the use of force by a State, through its governmental institutions, in order to enable the State to preserve its authority and maintain its control within its territory, the International Law seeks to minimize and regulate the use of force by States in their international relations in order to preserve and maintain peace and security in the world community.
The position of International Law towards the use of force by States has not been the same throughout the history. Because of this fact, in the following sections we will deal with the use of force, first, before 1945, the establishment of the United Nations, and second, under the Charter of the United Nations.

Section 1: The Rules Related to the Use of Force Before 1945
“War” is the apparent manifestation of the use of force by States. It is a status or condition of armed hostility between States. It comes into existence either by a formal declaration or by acts of armed force between States without a formal declaration.
Early in History, war was resorted to for various reasons and causes without any distinction, and was conducted without any limitation and control. The distinction between “just war” (bellum justum) and “unjust war” (bellum justum) arose as a consequence of the Christianization of the Roman Empire and the abandonment by Christians of pacifism. The doctrine of “just war” was founded on the belief that force could be used if it complied with the divine will. Just war was to be employed as the ultimate sanction for the maintenance of an orderly society. St Augustine (354-430) defined the just war in terms of avenging of injuries suffered where the guilty party had refused to make reparation. War was to be employed to punish wrongs and restore the peaceful status quo, nothing further. Aggression was unjust. The resort to force should be strictly controlled. St Thomas Aquinas in the Thirteenth Century went a further step in the definition of just war by declaring that war could be justified provided it was waged by sovereign authority, it was accompanied by just cause, i.e. the punishment of wrongdoers, and it was supported by the right intentions on the part of the belligerents.
The teachings of the Christian theologians on distinguishing between just war and unjust war were eventually adopted by the early classical writers on “the law of nations”, such as Alberico Gentili (1552-1608) and his successor Hugo Grotius (1583-1645). However, all of these writers took a different approach on this question in the light of the rise of the European nation-states and eventually modified the doctrine of just war. The doctrine became linked with the sovereignty of States, and it was approached in the light of wars between Christian States, each side being convinced of the justice of its cause. The early writers on the law of nations approached the doctrine of just war from a purely subjective point of view, admitting the possibility of both sides having a just cause and believing in being in the right even though one of them might have been objectively wrong. Thus, the doctrine of just war could not be objectively applied to determine whether or not a war was just, and consequently the distinction between just war and unjust war never became part of the law of nations. Eventually, in the Eighteenth Century, the distinction was virtually abandoned by the law of nations.
The doctrine of the just war that arose with the increasing power of Christianity declined with the outbreak of the inter-Christian religious wars and the establishment of an order of secular national sovereign States in Europe.
In the Nineteenth Century, war in the practice of the European States was often represented as a last resort, as a means of dispute settlement. The resort to war was regarded as an attribute of statehood. War was a legal state of affairs in International Law. It was to be justified if it was fought for the defense of certain vital interests. Each State remained the sole judge of its vital interests. Vital interests constituted a source for political justifications and excuses used for propaganda purposes, not a legal criterion of the legality of war. There also existed other methods of employing force that fell short of war, such as reprisals and blockades.
The international jurists of the Nineteenth Century abandoned emphases on the legality of war (jus ad bellum), and concentrated on the legality of the conducts of war (jus in bello). Therefore during this century, a series of regulatory conditions and limitations on the conducts of war, or of force in general, were recognized under International Law in order to minimize the resort to war, or at least to restrict its application. There also existed legal consequences resulting from the exercise of the right to resort to war.
The unprecedented suffering of the First World War caused a revolutionary change in the attitudes towards war. The doctrine of just war was revived after this war. The creation of the League of Nations in 1919 constituted an effort by the world community to rebuild international affairs upon the basis of a general international institution which would oversee the conducts of the States to ensure that aggression could not happen again. The Covenant of the League of Nations, although it did not prohibit the resort to war altogether, it introduced a different attitude, than that existed previously, to the question of war in International Law. The Covenant set up procedures designated to restrict the resort to war to tolerable levels. It declared that members of the League agreed that they would submit their disputes, which likely to lead to a rupture, either to arbitration or judicial settlement, or to inquiry by the Council of the League. The members also agreed that in no case they would resort to war until the elapse of three months after the award by the arbitrators or the judicial decisions, or the report by the Council.
During the years following the creation of the League of Nations, various efforts were made to fill the gap in the League system, which is to transform the partial prohibition of war into total prohibition of war. These efforts resulted in the conclusion of the General Treaty for the Renunciation of War in 1928 (known as the Kellogg-Briand Pact or Pact of Paris). The parties to this multilateral treaty condemned recourse to war for the solution of international controversies, agreed to renounce war as an instrument of national policy in their relation with one another, and agreed to settle all disputes or conflicts only by pacific means. This trend was adopted by the Charter of the United Nations in 1945.

Section 2: The Use of Force under the Charter of the United Nations
The Charter of the United Nations establishes a fundamental distinction between legal and illegal resort to force. By this, it has, in a way, revived in International Law the old distinction between just and unjust war. Moreover, it goes further than the position of the classical international law towards the use of force. While the classical international law did not place any restriction on the right of States to use force and to go to war, the Charter of the United Nations provides provisions aiming to control the use of force, on one hand prohibiting the use of force, and on the other hand permitting the use of force in exceptional cases.

A. The Prohibition of the Use of Force
The preamble of the Charter of the United Nations starts with the determination of the peoples of the United Nations to save succeeding generations from the scourge of war, and their willingness to practice tolerance and live together in peace with one another as good neighbors, and not to use armed force except in the common interest. To this end Article 2(4) of the Charter provides:
All members shall refrain in their international relations from the threat
or use of force against the territorial integrity or political independence
of any state, or in any other manner inconsistent with the Purposes of
the United Nations.
This article formulates the principle of the prohibition of the use of force in International Law, by imposing upon the States members of the United Nations the basic obligation to refrain from the threat or use of force in their international relations. The provision of this article, which marks the general acceptance of the prohibition of the use of force in international relations, is of universal validity. The principle of prohibition of the use of force bounds the States members of the United Nations and the United Nations itself, as well as, the few States which are not members of this international organization since it is a principle of customary international law. Article 2(4) mentions the use of force not the resort to war; by this, it intends to include in the prohibition all sorts of hostilities, short of war, in which States may be engaged. It prohibits not only the use of force but also the threat of force.
The prohibition of the threat or use of force in international relations against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations, as stated in Article 2(4), is reinforced by other provisions of the Charter, particularly paragraph 3 of the same article. Article 2(3) imposes upon States the obligation to “settle their international disputes by peaceful means in such a manner that international peace and security, and justice, are not endangered.” Furthermore, this prohibition is elaborated as a principle of International Law in the 1970 General Assembly “Declaration on Principles of International Law Concerning Friendly relations and Co-Operation among States in According with the Charter of the United Nations.”
The 1970 Declaration on Principles of International Law provides that the threat or use of force constitutes a violation of International Law and the Charter of the United Nations and should not be employed as a means of settling international issues. It declares that a war of aggression constitutes a crime against peace, for which there is responsibility under International Law. It lists systematically the obligations of States in this regard. Every State has to refrain from propaganda for wars of aggression. It has to refrain from the threat or use of force to violate the existing international boundaries of another State, or the international lines of demarcation. It has to refrain from acts of reprisal involving the use of force. It has to refrain from any forcible action which deprives peoples of their right to self-determination, freedom and independence. It has to refrain from organizing, instigating, assisting or participating in acts of civil strife or terrorist acts in another state, or acquiescing in organized activities within its territory directed towards the commission of such acts.
The Declaration provides that the territory of a State shall not be the object of military occupation or acquisition by another State resulting from the threat or use of force, and that such territorial acquisition shall not be recognized as legal.
The Declaration obliges all States to comply in good faith with their obligations under the generally recognized principles and rules of International Law with respect to the maintenance of international peace and security, and to make the United Nations security system based upon the Charter more effective.
The Declaration, however, provides that its provisions shall not construed as enlarging or diminishing in any way the scope of the provisions of the Charter concerning cases in which the use of force is lawful. By this provision, the Declaration reaffirms the exceptions to the principle of the prohibition provided for in the Charter of the United Nations.

B. The Exceptions to the Prohibition of the Use of Force
The Charter of the United Nations formulates two exceptions to the principle of the prohibition of the use of force in international relations. The first exception is the use of force in a case of exercising the right of individual or collective self-defense under Article 51. The second exception is the use of force by authorization of the Security Council of the United Nations under Chapter VII.
The 1950 General Assembly “Uniting for Peace” Resolution formulates a third exception to the principle of the prohibition of the use of force, which is the use of force upon a recommendation of the General Assembly. A fourth exception is formulated by the 1974 General Assembly Resolution on “the Definition of Aggression” which entitles the people forcibly deprived of the right to self-determination, or under colonial domination or alien subjugation, to struggle to achieve their objectives in self determination and independence.

(1) The Right of Self-Defense
Article 51 of the Charter of the United Nations provides:
Nothing in the present Charter shall impair the inherent right of individual
or collective self-defense if an armed attack occurs against a Member of the
United Nations, until the Security Council has taken the measures necessary
to maintain international peace and security. Measures taken by Members in
the exercise of this right of self-defense shall be immediately reported to the
Security Council and shall not in any way affect the authority and
responsibility of the Security Council under the present Charter to take at any
time such action as it deems necessary in order to maintain or restore
international peace and security.
This article formulates the major exception to the prohibition of the use of force in international relations. It indicates that the right of individual and collective self-defense, which existed under customary international law, is reserved to the extent it is qualified therein and elsewhere in the Charter of the United Nations.
The right of self-defense, as formulated by the Charter, is a subject of an extensive controversy as regards its precise extent. Does Article 51 clarify or qualify the right of self-defense which exists in the customary international law? Is the anticipatory (preventive or preemptive) self-defense included within the meaning of the right of self-defense formulated in Article 51? What is the meaning of the term “armed attack”?
There are two conflicting interpretations of the right of self-defense formulated in Article 51 of the Charter of the United Nations, namely the restrictive view and the broad (extensive) view. The restrictive view indicates that all use of force is illegal except in the exercise of the right of self-defense if and only if an armed attack occurs. This means that the right of self-defense does not exist against an action which does not constitute an armed attack, whatever the nature and extent of such action. Moreover, this implies that anticipatory (preventive or preemptive) self-defense is not permitted under Article 51 of the Charter of the United Nations. The argument for this view is that the principle of effectiveness requires a restrictive interpretation of Article 51. Such interpretation is consistent with Article 2(4) of the Charter which intends only to clarify the prohibition on the use of force and not to qualify it. It is also consistent with the view that Article 51 is intended to modify the right of self-defense which has existed in customary international law; Article 51 qualifies the existing right of self-defense.
The broad (extensive) view indicates that the use of force in self-defense is excluded from the scope of Article 2(4). The right of self-defense, which has existed as an inherent and natural right in customary international law, is over and above the specific provisions of Article 51 which refer only to the case where an armed attack has occurred. The right of self-defense is allowed against an armed attack as well as against any other hostile action short of an armed attack. This implies that anticipatory self-defense comes within the meaning of Article 51, which does not intend to impair the scope of the inherent right of self-defense existing in customary international law. Accordingly, the protection of nationals abroad, the protection of property situated abroad, an attack against an individual-national abroad, the war against terrorism, or the existence of weapon of mass destruction in a given State, may justify the exercise of the right of self-defense.
Whatever the view concerning the right of self-defense, it is well recognized that for the exercise of this right customary international law requires three basic legal requirements: the use of peaceful procedures--if they are available, necessity and proportionality. These three requirements represent three central elements which must be complied with under customary international law in order to invoke self-defense lawfully against illegally initiated force.
Self-defense is justified only when the necessity for action is instant, overwhelming, and leaves no choice of means and no moment for deliberation. Acts done in self-defense must not be unreasonable or excessive, since the acts justified by a necessity of self-defense must be limited to that necessity and
kept within it. Proportionality in coercion requires that the responding coercion be limited in intensity and magnitude to what is reasonably necessary promptly to secure the permissible objectives of self-defense.
Article 51 of the Charter seems to demand a higher degree of necessity than the customary international law. Under this article, the right of self-defense does not exist against any form of action which does not constitute “armed attack”. Self-defense is justified against an actual danger, something that has taken place, not against a threat of use of force. Nothing less than “armed attack” shall constitute a justifying act for the exercise of the right of self-defense. So “preventive war” is prohibited under this article.
Article 51 adds a forth requirement to the three requirements of customary international law for justifying the exercise of self-defense. It requires the Member State to report immediately the measures taken in the exercise of the right of self-defense to the Security Council, and to stop its action when the Security Council takes the necessary measures in this regard.
In conclusion, the Charter recognizes the right of member States, acting individually or collectively, to declare war against an aggressor and to take military action against him until the Security Council takes the measures necessary to maintain international peace and security.
(2) The Use of Force by Authorization of the Security Council
The second exception to the prohibition of the use of force in international relations is formulated in Article 42 of Chapter VII of the Charter of the United Nations. Article 42 provides that the Security Council may take such coercive military action by air, sea, or land forces as may be necessary to maintain or restore international peace and security. Such action may include demonstrations, blockades, and other operations by air, sea, or land forces of Members of the United Nations. This means that the Security Council has the power to order or authorize the use of force or, in traditional terminology, the resort to war. However, the Council is required to fellow the procedures provided for in Chapter VII of the Charter of the United Nations.
(3) The Use of Force upon a Recommendation of the General Assembly
The “Uniting for Peace” Resolution, adopted by the General Assembly on November 3, 1950, grants the General Assembly of the United Nations the power to act in place of the Security Council if the latter fails to discharge its primary responsibility in maintaining international peace and security. Under this resolution, the General Assembly may do by recommendations anything that the Security Council can do by decisions under Chapter VII. The Assembly can make appropriate recommendations to members for collective measures, including the use of armed force, if the Council in any case where there appears to be a threat to the peace, breach of the peace or act of aggression fails to exercise its responsibility, because of the lack of unanimity of its permanent members.
(4) The Use of Force by Peoples for Self Determination and Independence
Article 7 of the 1974 General Assembly Resolution on “the Definition of Aggression” grants the peoples forcibly deprived of their right of self-determination, freedom and independence, particularly
peoples under colonial and racist regime or other forms of alien domination, the right to struggle for the purpose of achieving their self determination, freedom and independence. This implies that those peoples can use armed force in their struggle, and this is a forth exception to the principle of prohibition of the use of force in international relations.


References:
[1] See generally Brownlie, chapter 33; Y. Dinstein, War, Aggression and Self-Defence, 3rd ed., Cambridge (2001); T.M. Franck, Recourse to Force, Cambridge (2002); C. Gray, International Law and the Use of Force, Oxford (2001); Malanczuk, chapter 19; and Shaw, chapter 20.
[2] See Malanczuk, p. 306.
[3] Shaw, p. 1013.
[4] Id.
[5] Shaw, pp. 1013-4.
[6] Id. p. 1014.
[7] See S. Bailey, Prohibitions and Restraints in War, p. 9, Oxford (1972); and Von Elbe, The Evolution of the Concept of the Just War in International Law, 33 A.J.I.L. 669 (1939).
[8] See Bledsoe & Boczek, p. 336; also Malanczuk, pp. 306-7; and Shaw, pp. 1014-5.
[9] Shaw. p. 1014.
[10] Bledsoe & Boczek, p. 336.
[11] Id.
[12] Id.; and Malanczuk, p. 307.
[13] Shaw, p. 1016.
[14] Brownlie, p. 697.
[15] See Shaw, p. 1016.
[16] Bledsoe & Boczek, p. 336.
[17] Formulated in The Hague Conventions of 1899.
[18] Malanczuk, p. 308
[19] L.N Covenant art. 12(1).
[20] Id.
[21] See Malanczuk, p. 308-9; and Shaw, p. 1017.
[22] Text in 94 L.N.T.S. 57 (1929).
[23] G.A. Res. 2625 (XX!), 25 GAOR, Supp. 28, U.N. Doc. A/8028, at 121 (1970). [hereinafter cited as the “Declaration on the Principles of International Law”]
[24] G.A. Res. 337(a) (V), 5 GAOR Supp. 20, U.N. Doc. A/1775, at 10 (1950).
[25] G.A. Res. 3314 (XXIX), 29 GAOR Supp. 31, U.N. Doc. A/9631, at 142 (1974).
[26] Id. art. 7.
[27] See generally D.W. Bowett, Self-Defence in International Law, Manchester (1958); Brownlie, pp. 701-3; Dinstein, chapters 7 and 8; Franck, chapters 3-7; Gray, chapter 4; Malanczuk, pp. 311-18; and Shaw, pp. 1024-32;
[28] See e.g. H. Kelsen, The Law of the United Nations, pp. 914, London (1950); and J.L. Kunz, The Changing Law of Nations, pp. 563-74 (1968);
[29] See e.g. J. L. Brierly, The Law of Nations, pp. 417-8, 6th ed., Oxford (1963); McDougal & Feliciano, pp. 217-44; and D.P. O’Connell, International Law, p. 317, 2nded., London (1970).
[30] See C.C. Hyde, I International Law, pp. 237-40 & 821-22, 2nd ed., Boston (1945).
[31] Id.
[32] Id.
[33] See McDougal & Feliciano, at 242.
[34] See Kunz, at 571; and Kelsen, at 269.
[35] Kunz, id.; and Kelsen, id.
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Default Introductory Topics on International Organizations

Introductory Topics on International Organizations


I. Genesis of International Organizations
The formation of international organizations has been a notable feature of the international relations since 1945. Perhaps the most feature of international scene today, in comparison with a century ago, is the proliferation of international organizations of all types. This growth has responded in part to the need for maintaining international peace and security, and in a greater part to the pressing demands of nations for cooperation in the economic, social and technical fields.
The League of Nations was the first universal comprehensive organizations formed by the international community of nations. It was created in 1919, after the First World War. This creation marked a turning point in the evolution of world affairs. Until the creation of the League of Nations, world affairs were to a large extent influenced by the periodic international conferences that were held in Europe. The system of conferences dealing with problems that concerned two or more states had dominated the European affairs during the nineteenth century. Although the Peace Conference of Westphalia of 1648, which ended the Thirty-Year War (religious war) in Europe, was the first conference held in Europe, the Congress of Vienna of 1815 initiated the era of international conferences and multilateral treaties. The Congress of Vienna, which terminated the Napoleonic Wars, was a significant turning point because it marked the first systematic attempt to regulate international affairs by means of regular international conferences. The system of Congress of Vienna lasted for a century and institutionalized not only the balance of power approach to international relations and politics, but also a semi-formal international order.
The concept of international conference was introduced as a form of extended diplomacy because the diplomatic contacts were unable alone to cope completely with the complexities of international affairs. International conferences and diplomatic contacts were used by European nations during the nineteenth century as forms of cooperation to introduce or promote their political and economic relations, and to face world issues. In many cases, conferences resulted in international treaties or formal peace. European nations held several conferences in the nineteenth century, the major conferences were: the Paris Conference of 1856, the Berlin Gathering of 1871 and the Berlin conference of 1878 which dealt with the questions of the Balkans; and the Berlin Conferences of 1884 and of 1885 which dealt with the European interests in Africa.
During the course of time, conferences proved that they were inadequate to fulfill the objectives they were intended to achieve. A conference could only be convened at the initiative of one or more states involved, usually following international crises. Only invited states could attend. An invited state involved might refuse to attend. Decisions could not be taken except by unanimous agreements. These factors severely restricted the use and effectiveness of conferences as methods of state cooperation. However, conferences constituted an important prelude to the establishment of international institutions.
In the nineteenth century, several inter-governmental institutions were also established covering transportation, communications, health and economic cooperation. Examples of such institutions were the commission of the Rhine (1831), the Commission of the Danube (1856), the International Telegraphic Union (1865) and the Universal Postal Union (1874). Such international institutions were not comprehensive ones, but functional ones joining together governmental departments or administrations for specific purposes. They were created by multilateral treaties. The powers entrusted to them varied, but most of them performed important administrative and legislative functions. They combined permanent bureaus or secretariats and periodic conferences. Their decisions could be taken by majority vote. These features constituted a step forward in state cooperation since they enable the institutions to overcome the weaknesses of conferences, particularly the principle of unanimity.
The nineteenth century also witnessed the creation of several international non-governmental institutions dealing with specific matters. Examples of such institutions were the International Committee of the Red Cross (founded in 1863) and the International Law Association (founded in 1873). Such private institutions created the machinery for regular meetings and many established permanent secretariats. The works of these institutions were, and remain, of considerable value in influencing governmental activities and stimulating world action in specific matters of international concern.
The establishment of international institutions in the nineteenth century was significant since they paved the way for international organizations of the twentieth century. The innovation of the twentieth century was the creation of universal comprehensive organizations, such as the League of Nations and the United Nations.
Just as the First World War had led to the establishment of the League of Nations, the Second World War led to the establishment of the United Nations. In these two cases, States developed ways for maintaining international peace and security and for cooperations between nations. These two organizations laid the foundation for the system of international organizations.
Today, the United Nations forms the key-stone of the system of international organizations. Affiliated with the United Nations are the specialized agencies. Beside these organizations, there are many regional organizations of various types and forms, in Europe, in America, in Asia, in Africa, and in the Pacific.

II. Definition and Classification of International Organizations
International organizations are either intergovernmental organizations, known as public international organizations, or nongovernmental organizations (NGOs), known as private international organizations. Intergovernmental organization is different from nongovernmental organization; while the first is set up by agreement between states, the second is set up by individuals.
However, the term “international organization” is usually used to describe an organization established by agreement between two or more States. In this sense, international organization may be defined as an association of states, established by a treaty between two or more states, it has international character and scope, its functions transcend national boundaries, and it is a subject of International Law.
Today, there are some 500 international organizations of various types. The organizations can be classified under the following criteria:

(A) Classification according to their membership: Organizations may be:

1. Organization with open membership: These organizations are universal (global) in their membership. Their membership is open to all states. The United Nations (UN) is the most important global organization; other examples are the specialized agencies affiliated with the United Nations, and the World Trade Organization.

2. Organizations with restricted membership: Organizations of this type may be: (a) Regional organizations of which membership is restricted to states who belong to a particular continent or geographical region; examples are the European Union EU), the Organization of American States(OAS), the League of Arab States, and the Association of South East Asian Nations (ASEAN). (b) Organizations with membership based on religious, cultural, or historical link; examples are the Organization of Islamic Conference, La Francophonie, the Commonwealth of Nations, and the Commonwealth of Independent States.

(B) Classification according to their geographical location: Organizations
may be:

1. Global (universal) organizations: Organizations of the type mentioned
above [(A) 1].

2. Regional organizations: Organizations of the type mentioned above
[(A) 2 (a)].
(C) Classification according to their functions and tasks: Organizations
may be classified into:

1. Organizations of (a) general purposes or, (b) particular (specific) purposes. Examples of general purposes organizations are the United Nations, the European Union, the Arab League, and the Organization of American States. Examples of particular purposes organizations are the specialized agencies of the United Nations, the World Trade Organization (WTO), the North Atlantic Treaty Organization (NATO), and the Organization of Petroleum Exporting Countries (OPEC).

2. Organizations of (a) political purposes, such as the UN, the EU, the Arab League; (b) economic (trade and financial) purposes, such as the WTO, the World Bank Group, The International Monetary Fund (IMF), and the OPEC; (c) social purposes, such as the United Nations Educational, Scientific and Cultural Organization (UNESCO), the International Labour Organization (ILO), and the Food and Agriculture Organization (FAO); (d) technical purposes, such as the International Civil Aviation Organization (ICAO), the Universal Postal Organization (UPU), and the International Telecommunication Union (ITU), (e) Judicial purposes, such as the International Criminal Court; and (f) military purposes (defense alliances), such as the NATO, and the dissolved Warsaw Pact.

(D) Classification according to the nature of their structural organization:
Organizations may be:

1. Traditional organizations: This type of organizations is in essence based on inter-governmental cooperation of states which retain control of the decision-making process and finance of the organization; all the existing organizations, except the EU, are of this type.

2. Supranational organization: In this type of organizations, the transfer of sovereignty from the member states to the organization is extensive as to the scope and nature of delegated powers. The supranational organization is characterized mainly by the following elements: its organs are composed of persons who are not government representatives, its decisions can be taken by majority vote, its decisions have binding force on the member states, as well as, have direct effect on persons within them. The only example of such a type of organizations is the European Union which sufficiently meets all the requirements of a supranational organization.

III. International Organizations as Subjects of International Law
When we say that an entity is a legal person, or that it is a subject of the law, we mean that it has a capacity to enter into legal relations and to have legal rights and duties. In this sense, a subject of International Law is an entity who possesses international legal personality, i.e., capable of possessing rights and obligations and having the capacity to take certain types of action on the international level. Traditionally, states have been the only subjects or persons of International Law. While states have remained the predominant persons of International Law, the position has changed since the mid-twentieth century. With the establishment of international organizations, it has become necessary that a sort of international legal personality be granted to these entities. Thus, international organizations have acquired some degree of international legal personality, and have become subjects or persons of International Law (as well as individuals, groups and companies).
The problem of including international organizations in the international legal system is reflected in the very concept of legal personality, the central issues of which have been primarily related to the capacity to conclude international agreements, to bring claims arising from the violations of International Law, and to enjoy privileges and immunities from national jurisdictions.
The leading judicial authority on the legal personality of international organizations is the advisory opinion of the International Court of Justice (ICJ) in the Reparation for Injuries Case of 1949. The case arose out of the murder of the United Nations mediator in Palestine Count Bernadotte by Zionist terrorists in 1948. The United Nations considered that Israel had been negligent in failing to prevent or punish the murderers, and wished to make a claim for compensation under International Law against Israel. However, it was uncertain whether the United Nations had the legal capacity to make such a claim. The United Nations requested the opinion of the Court on this problem. In its opinion, the ICJ held that the United Nations was an international person, although not a state, and therefore not having the same rights and duties of a state. The United Nations had an international personality; its functions and powers were so important that the Organization could not carry out them unless it had some degree of international personality. The United Nations could perform legal acts such as entering into agreements with member states and with other international organizations, concluding contracts and bringing claims before the Court. Such capacity to perform legal acts is a prerequisite of international legal personality.
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.
Generally, the treaty creating an international organization indicates its nature, status, 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. 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.
The legal personality acquired by international organizations necessarily imports consequences as to international responsibility, both to and by the organization. When an infringement occurs, the organization can call upon the responsible state to remedy its default, and to obtain from the state reparation for the damage caused by the default. Thus, the organization has the capacity to claim adequate reparation for the damage suffered by its or by its agents. Whereas the right of a state to assert a claim on behalf of a victim is based on the link of nationality, in the case of an international organization, the necessary link relates to the requirements of the organization and therefore the fact that the victim was acting on behalf of the organization in exercising one of its functions. The organization possesses a right of functional protection in respect of its agents.
Just as a state can be held responsible for injury to an organization, so can the organization be held responsible for injury to a state, when the injury arises out of a breach by the organization of an international obligation deriving from a treaty provision or principle of International Law. The question of responsibility has particularly arisen in the context of United Nations peacekeeping operations and liability for the activities for the members of such forces. In such cases, the United Nations has accepted responsibility and offered compensation for wrongful acts.

IV. Constituting Instruments of International Organizations
International organizations are created by states by formal decisions laid down in constituting instruments. These constituting instruments create international organizations as well as define their nature, status, purposes, functions and powers. In this sense, such instruments have a dual nature, conventional and constitutional nature. They are multilateral treaties establishing principles, rights and obligations binding on states parties. They are also treaties of a particular type since their object is to create new subjects of international law endowed with certain autonomy, to which the parties entrust the tasks of realizing common goals. Such constituting instruments fall within the framework of the international law of treaties. They are to be interpreted and applied according to International Law.

V. Applicable Law of International Organizations
Since the constituting instruments of international organizations fall within the framework of International Law, accordingly, as a general rule, the applicable or “proper” law of international organizations is the International Law. In addition, an organization may enter into treaty relationship with a particular state, for example, a headquarters agreement. In such a case, such relationship will also be governed by International Law.
However, the applicable law in particular circumstances may be national law. When an organization enters into private transactions such as contracting for equipments and services, or purchasing or leasing land, these transactions will normally be subject to the appropriate national law. Tortious liability as between the organization and a private person will generally be subject to national law.
The internal law of the organization governs its internal affairs and matters such as employment relations, the establishment and functioning of subsidiary organs, and the management of administrative services. The Internal law of an organization, which includes its constituting instrument, regulations, norms and contractual arrangements, may in fact be considered as a special and particular part of International Law, since it is founded upon the constituting instrument of the organization that draws its validity and applicability from the rules of International Law.

VI. Privileges and 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.

VII. Acts of International Organizations as Sources of International Law
The growth of international organizations since the First World War has been accompanied by suggestions that the acts of these organizations should be recognized as a source of International Law. The question involved hereto is whether the decisions of the organs of these organizations can be regarded as a separate source of International Law.
Decisions of the organs of international organizations may be binding or non-binding. An organ may be authorized to take decisions which are binding on member states; only these binding decisions are regarded as a source of the International Law. The only clear example of binding decisions is the resolutions which the Security Council of the United Nations are authorized to take under Chapter Seven (VII) of the Charter of the United Nations dealing with actions related to threats to the peace, breaches of the peace, and acts of aggression.
However, there is a controversy concerns the non-binding decisions of the organs of the international organizations. Since almost all the organs of the international organizations are composed of representatives of member states and their acts are merely the acts of the states represented in these organs, they would probably constitute an evidence of customary law because they reflect the views of the state voting for them. The obvious examples of such type of acts are the resolutions and declarations of the General Assembly of the United Nations. When the vast majority of States, in the General Assembly, consistently vote for resolutions and declarations on a certain topic, a state practice will be established and a binding rule of customary International Law will emerge. Thus, these resolutions and declarations will constitute an evidence of the existence of customary International Law. Examples of such resolutions and declarations regarded as examples of State Practice which have led to binding rules of customary International Law are: “the Resolution on Prohibition of the Use of Nuclear Weapons for War Purposes”, “the Declaration on Granting of Independence to Colonial Countries and Peoples”, “the Declaration on Permanent Sovereignty over Natural Resources” and “the Declaration of Legal Principles Governing Activities of States in the Exploration and Use of Outer Space”.
Resolutions and declarations of the General Assembly may also provide a basis for the progressive development of the International Law and the speedy adaptation of customary law to the conditions of modern life.Moreover, in some instances, a resolution or declaration may have direct legal effects as an authoritative interpretation and application of the principles stated in the Charter of the United Nations.

VIII. The Role of International Organizations in the Development of International Law
The establishment of the League of Nations in 1919, following the First World War, and the establishment of the United Nations in 1945, following the Second World War, represented two significant turning points in the development of the International Law. The development was characterized by a new departure in the evolution of this Law. International Law began its evolution from being primarily a system of regulating relations between states towards becoming also a system of international cooperation.
The League of Nations was the first international organization established primarily for the purpose of maintaining international peace and security. The establishment of the International Labor Organization (ILO), affiliated with the League of Nations, in 1919 signaled the end of an era in which International Law was, with few exceptions, confined to the regulation of relations between states. The ILO was the first permanent international organization concerned with the improvement of labor conditions and social welfare at the international level. In 1921, the Permanent Court of International Justice (PCIJ) was established as the first permanent international judicial organ with an international judicial jurisdiction.
The establishment of the United Nations in 1945 led to a progressive development of International Law. During the post-United Nations’ era, the development of International Law has been influenced by two major events effected the international community. The first major event has been the expansion in the membership of the international community. New States, mostly representing non-western civilization, have joined the club of family of nations, which was previously exclusively limited to states belonging to Western Civilization. The concerns and priorities of these states have been different from those of other states; they have been occupied with the development of their political, economic and social systems. The second major event has been the massive expansion of international organizations for cooperation. Numerous specialized agencies of the United Nations and other international organizations, universal as well as regional, have been established. This event has confirmed the evolution International Law from its traditional nature to its contemporary nature of being a system of organized collective efforts for cooperation.
Since the establishment of the United Nations, a great number of international treaties covering all aspects of international affairs have been concluded. Law-making treaties have been contributing extensively to the rapid development of Public International Law. They have led to may important new developments in Public International Law, and greatly increased its scope. Apart of the law-making treaties, international courts, the present International Court of Justice (ICJ), its forerunner the Permanent Court of International Justice (PCIJ), and others, have been also contributing to the development of Public International Law. Moreover, the International Law Commission created in 1947, the organs of the United Nations and its specialized agencies have been playing a significant role in developing and expanding Public International Law.


References:
[1] See M. Shaw, International Law, pp. 1161-63, 5th edn., Cambridge (2003).
[2] Examples of the NGOs are: The International Committee of the Red Cross (ICRC), Amnesty International, Greenpeace, Doctors Without Frontiers, the International Chamber of Commerce (ICC), and the International Air Transport Association (IATA).
[3] See P. Malanczuk, Akehurst’s Modern Introduction to International Law, pp. 95-96, 7th rev. edn., New York (1997).
[4] See generally Shaw, International Law, pp. 1187-93 & 1199-1201; I. Brownlie, Principles of Public International Law, pp. 648-50, 6th edn., Oxford (2003); Malanczuk, pp. 91-96; and M.W. Abdulrahim, Introduction to Public International Law, pp. 34-35, Beirut (2006).
[5] 1949 ICJ Reports, p. 174.
[6] Text of the 1946 Convention on the Privileges and Immunities of the United Nations in 1 U.N.T.S 15.
[7] 1949 ICJ Reports, p. 184.
[8] See generally Shaw, pp. 1193-95.
[9] See the Advisory Opinion of the ICJ in the Legality of the Use by a State of Nuclear Weapons in Armed Conflict Case, 1997 ICJ, pp. 66, 74-5.
[10] See generally Shaw, pp. 1198-99.
[11] See generally Shaw, pp. 1205-12; Brownlie, pp. 652-4; Malanczuk, pp. 127-8; and Abdulrahim, Introduction to Public International Law, pp. 88-89.
[12] See Malanczuk, p. 127.
[13] See id. pp.127-8; Brownlie, p. 652; and Shaw, p, 1205.
[14] Malanczuk, p. 128.
[15] Text in 1 U.N.T.S. 15.
[16] Id. section 2.
[17] Id. sections 3,4 & 4.
[18] Id. sections 7 & 8.
[19] Id. section 18(b).
[20] Id. sections 17-20.
[21] Id. sections 18 & 20.
[22] Id. sections 11-15.
[23] Text in 69 A.J.I.L (1974), 730.
[24] See Abdulrahim, Introduction to Public International Law, pp. 25-27.
[25] Id. p. 52.
[26] See UN Charter arts. 39-51. Article 25 of the UN Charter provides: “The Members of the United Nations agree to accept and carry out the decisions of the Security Council in accordance with the present Charter.”
[27] See Malanczuk, p. 52.
[28] See Malanczuk, p. 53; Shaw, pp. 108-9; and Brownlie, 14 -5.
[29] G.A. Res. 1653 (XVI) of 24 Nov. 1961; G.A. Res. 1514 (XV) of 14 Dec. 1960; G.A. Res. 1803 (XVII) of 14 Dec. 1962; and G.A. Res. 1962 (XVIII) of 13 Dec. 1963.
[30] Brownlie, p. 15.
[31] Id.; and Shaw, p. 109.
[32] See Abdulrahim, Introduction to Public International Law, pp. 14-16.
[33] See Henkin & Associates, A Concise History of the Law of Nations, p. 7, rev. edn., New York (1954).
[34] See id, pp. 8-9.
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