Exploring the boundaries of international law



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W821_1

Exploring the boundaries of international law

About this free course

This free course is an adapted extract from the Open University course W821 Exploring the boundaries of international law: open.ac.uk/postgraduate/modules/w821.

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Contents

• Introduction

• Learning outcomes

• 1 Personality in international law

• 1.1 Non-state actors

• 1.2 Achieving legal personality

• 1.3 International organisations

• 1.4 Individuals

• 2 The concept of a state

• 2.1 What constitutes a state?

• 2.2 The recognition of a state

• 2.3 The effects of recognition

• 2.4 Self-determination

• 2.5 ‘Failed’ states

• 3 Sovereignty

• 4 Jurisdiction

• 4.1 General principles of jurisdiction

• 4.2 Types of jurisdiction

• 4.3 Principles of jurisdiction

• 4.4 Extraterritoriality – protective jurisdiction and the ‘effects doctrine’

• Conclusion

• Further reading

• Keep on learning

• References

• Acknowledgements

Introduction

This OpenLearn free course is designed to provide you with an introduction to key concepts which underpin the study of international law. It introduces the concept of international legal personality, explores the status of the state, examines the principle of sovereignty and summarises the principles of jurisdiction. The course focuses on areas which are of special relevance to contemporary events.

The course begins by considering how legal status is achieved in international law both for states and non-state actors. It then focuses on the concept of the state. It considers how a state is created and the implications of recognition or non-recognition of a state by other states. The topical issues of self-determination, secession, failed states and sovereignty are introduced. The course concludes by explaining the principles and implications of jurisdiction and considers some of its different and more controversial applications.

This OpenLearn course is an adapted extract from the Open University course W821 Exploring the boundaries of international law.

Learning outcomes

After studying this course, you should be able to:

• understand the concept of international legal personality and the identity of the subjects of international law

• understand the nature of a state and how a state is created and recognised in international law

• understand the principle of sovereignty and of the operation of jurisdiction

• critically engage with complex, current and emerging legal and international issues.

1 Personality in international law

States have long been, and still are, the principal actors in international relations. As such, they are recognised by customary international law as possessing certain international rights and duties and having the capacity to act internationally: they have legal personality. An international legal person has the capacity to make binding international agreements and to bring claims before international and national tribunals to enforce rights given by international law. Conversely, they are subject to obligations imposed by international law.

1.1 Non-state actors

Certain non-state actors, such as international organisations, are also recognised as being legal persons in international law. Other entities, such as non-governmental organisations (NGOs), and multinational corporations (MNCs), are active internationally, but have more limited international status. In recent years, human rights groups have highlighted the limitation of national law to control the activities of MNCs operating in states with poor governance, and have lobbied for the development of increased international corporate accountability. The United Nations (UN) Universal Declaration of Human Rights (UDHR) 1948 and subsequent UN conventions are framed in terms that are wide enough to encompass business organisations.

The Preamble to the UDHR declares that it is ‘a common standard of achievement for all peoples and all nations, to the end that every individual and every organ of society ’ are under an obligation to promote the ideals set out in the declaration. In 2011 the UN Human Rights Committee endorsed John Ruggie’s Guiding Principles for the implementation of the UN’s ‘Protect, Respect and Remedy’ Framework for the protection of human rights in the conduct of business.

John Ruggie, a Harvard professor, was appointed by the UN as the Secretary-General’s Special Representative (UN SRSG) for Business and Human Rights in 2005 to work on the issue of human rights and MNCs.

Only states have international capacity to the full degree. Other entities have international capacity to varying degrees depending on their role within the international legal system. This is indicated in Reparation for Injuries suffered in the Service of the United Nations Advisory Opinion ICJ Rep 1949, 178:

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The subjects of law in any legal system are not necessarily identical in their nature or the extent of their rights, and their nature depends upon the needs of the community.

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1.2 Achieving legal personality

The nature and degree of international legal personality is dependent on a complex set of factors. You will consider how states come into existence in more detail in Section 2 of this course. For the other subjects of international law, personality is achieved when it is conferred, accepted or recognised by states. It is ‘derived’ personality, rather than the ‘original’ personality, which states achieve. Legal personality has been granted to territories placed under mandates and also to populations of non-self-governing territories. Insurgents and national liberation movements, such as the Palestinian Liberation Organisation (PLO), are capable of acquiring a limited form of legal personality. This may enable them to enter binding legal agreements, be bound by the principles of humanitarian law and participate in the proceedings of the UN as observers. The PLO became an observer in November 1974.

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Figure 1 Yitzhak Rabin, prime minister of Israel, shaking hands with Yasser Arafat, PLO chairman, after signing the Oslo Accords in Washington, DC 1993

View description - Figure 1 Yitzhak Rabin, prime minister of Israel, shaking hands with Yasser Arafat, ...

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1.3 International organisations

The legal status of the UN was considered in the International Court of Justice’s Advisory Opinion in 1949 (quoted earlier).

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Activity 1

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Read Reparation for Injuries Suffered in the Service of the United Nations, Advisory Opinion ICJ Rep 1949, p. 178, from the third paragraph (‘But, in the international sphere ...’) to the end of the penultimate paragraph on p. 179 (‘... by bringing international claims’).

What conclusions did the ICJ come to on the question of whether the UN has international legal capacity? Summarise the court’s reasoning in this respect.

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View comment - Activity 1

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Since the Second World War there has been an expansion in the numbers and types of international organisation that are concerned with a wide variety of issues; in order to operate effectively, they are recognised as having a limited degree of international personality which varies according to their objectives.

The UN has confirmed that other international organisations are the subjects of international law, even though they do not possess general competence:

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international organizations are subjects of international law which do not, unlike States, possess a general competence. [But] are governed by the ‘principle of speciality’, that is to say, they are invested by the States which create them with powers, the limits of which are a function of the common interests whose promotion those States entrust to them.

(Legality of the Use by a State of Nuclear Weapons in Armed Conflict Advisory Opinion ICJ Rep 1996, 25)

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In this case the advisory opinion of the ICJ had been requested by the World Health Organization (WHO) on the question of the legality of the use by a state of nuclear weapons in armed conflict. The ICJ considered that it was unable to give this opinion as although the WHO was duly authorised under the UN Charter to request opinions from the court and the opinion requested was a legal question, it was not a question that was within the scope of the activities of the WHO. The question from WHO did not relate to the effects of the use of nuclear weapons on health but to the legality of these weapons in view of their effect on human health and the environment. However, the UN General Assembly was held to be competent to ask the question.

This case reveals that international organisations do not have international personality for all purposes; it is derived and so depends on the express powers included in the constitution of the organisation concerned and on the existence of implied powers which enable the organisation to achieve its purposes: ‘the necessities of international life may point to the need for organizations, in order to achieve their objectives, to possess subsidiary powers which are not expressly provided for in the basic instruments which govern their activities’ (Legality of the Use by a State of Nuclear Weapons in Armed Conflict Advisory Opinion ICJ Rep 1996, 25).

1.4 Individuals

Under the Westphalian construct states assert sovereignty over individuals within their jurisdiction and there is little scope for the recognition of the individual in international law. International rights and/or obligations are not conferred on individuals directly. The events of the Second World War created renewed impetus to protect human rights and freedoms at the international level. The UDHR 1948 and subsequent conventions codified human rights for the first time at an international level; states are obliged to respect the rights of individuals. However, there are few mechanisms for enforcement of their rights by individuals. The right of challenge of infringements of international human rights is invariably via the state and/or by an international organisation’s application to the relevant international tribunal. In this sense individuals remain the objects of international law, rather than subjects with the right to take action.

On some occasions individuals may be able to institute criminal proceedings against those accused of international crimes in their national courts.

Example of war crimes in national law

The War Crimes Act 1991 allows prosecution of a person who is now a British citizen or who is now resident in the UK, for murder and related crimes in respect of violations of the laws and customs of war committed in the Second World War.

Under this Act the English courts have been given jurisdiction over matters which are offences in international law.

In practice, this type of remedy cannot be relied on by individuals who live in repressive regimes and in states with a record of poor governance.

Some treaty regimes provide for an individual right to petition an international body: this is referred to as ‘procedural personality’.

Examples of the right to petition international bodies

The European Convention on Human Rights (ECHR) 1950 permits individuals to make a claim to the European Court of Human Rights (ECtHR) alleging infringements of the rights embodied in the Convention.

Article 24 of the International Labour Organization (ILO) Constitution 1919 provides that employee and employer representatives can submit a complaint to the ILO Office demanding that member states comply with the terms of a ratified ILO Convention.

Individuals can bring the alleged infringements to the attention of the Prosecutor of the International Criminal Court (ICC), but they cannot institute proceedings.

The UN International Covenant on Civil and Political Rights (ICCPR) 1966 provides that an individual has the right to petition the Human Rights Committee directly as a victim of a violation of human rights – so long as the state of his/her nationality has signed the Optional Protocol.

These types of mechanism provide limited individual redress as in most cases they rely on the will of another body to act on them and are not available unless the state concerned is a party to the treaty providing the right of petition. Also, a state can, in theory, decide to terminate its membership of the treaty provisions, although the political and diplomatic ramifications of taking this step means that in practice withdrawal from treaty provisions are rare. Despite these reservations, if measured by the number of applications made to it, the ECtHR is a great success. There were approximately 151,600 applications pending on 1 January 2012. Many applications raise similar legal issues and are then considered jointly. In 2011 the ECtHR delivered 1157 judgments (ECtHR, 2012).

Example of affirmation of human rights by ICJ: the Palestinian people

In a 2004 advisory opinion the ICJ confirmed the right of the Palestinian people to self-determination and also Israel’s obligations under humanitarian and human rights law. It was considered that the construction of a wall in the Occupied Palestinian Territory severed and displaced Palestinian communities, restricted the movement of Palestinians, and reduced access to vital services and to work and amenities. Israel was required to make reparation for the damage suffered by individuals affected by the construction of a wall (Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory Advisory Opinion ICJ Rep 2004, 136)

Antonio Cassese aptly sums up the current position of the individual in international law:

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they have a lopsided position in the international community. As far as their obligations are concerned they are associated with all the other members of the international community; in contrast, they do not possess rights in relation to all members of that community. Plainly all States are willing to demand of individuals respect for some fundamental values, while they are less prepared to associate them to their international dealings, let alone grant them the power to sue States before international bodies.

(Cassese, 2005, p. 150)

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On some occasions international law imposes obligations on individuals separately from the obligation placed on the state which they represent and/or of which they are nationals/citizens. For instance, individuals may be personally accountable for war crimes, genocide and crimes against humanity.

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Figure 2 Trial of Radovan Karadžić – as President of Republika Srpska he sought unification with Serbia; he was indicted for war crimes committed against Bosnian Muslims and Bosnian Croats during the Siege of Sarajevo and ordering the Srebrenica massacre

View description - Figure 2 Trial of Radovan Karadžić – as President of Republika Srpska he sought unification ...

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Individual accountability is imposed regardless of the provisions of the national legal system to which the individual is subject, and in this way international law impinges directly on the individual.

2 The concept of a state

Under the Westphalian system, states are the principal actors and the primary subjects of international law. There are around 200 states of which some 193 are members of the UN. Under international law states are regarded as having equal status. Article 2(1) of the UN Charter provides that ‘the organization is based on the principle of the sovereign equality of all its Members’. This is regardless of the huge variations in size, population and economic wealth of different states, and the disparities in political and diplomatic power wielded by different states.

2.1 What constitutes a state?

For many centuries the concept of a state was ill-defined. In practice there was a degree of fluidity in the control of the territory and populations. A particular regime tended to be defined in terms of location rather than territorial boundaries. However, rivers, oceans and mountain ranges provided natural boundaries to early kingdoms. Hadrian’s Wall and the Great Wall of China are notable man-made demarcations of different kingdoms. Colonisation led to the creation of artificial boundaries between areas under the control of the different European states – most notably in Africa at the end of the nineteenth century. Many of these territories then became independent states, such as Zambia, Kenya and Sierra Leone.

The states of the Middle East have emerged in a variety of ways. At the end of the First World War the Sykes–Picot Agreement 1916 allocated the territories formerly under the control of the Ottoman Empire to the allies – such as France and the UK– as protectorates (mandates). Modern Iraq and Syria were both established by this process. Other states, such as Saudi Arabia, were formed from the amalgamation of territories held by different tribal leaders.

The Montevideo Convention on the Rights and Duties of States (the Montevideo Convention) 1933 sets out some generally accepted benchmarks and provides a good starting point for discussion; Article 1 provides that:

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The state as a person of international law should possess the following qualifications: (a) a permanent population; (b) a defined territory; (c) government; and (d) capacity to enter into relations with the other states.

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• Permanent population – this refers to a population that is linked to a specific piece of territory on a permanent basis. The population must be reasonably stable. In Western Sahara Advisory Opinion ICJ Rep 1975, 12, it was established that nomadic tribes qualified as a state, as they had links with the specific territory. There is no requirement for the population to be indigenous and the extent of social and cultural cohesion required is unclear. In practice, most of the population of a state will be its ‘nationals’ and have a right to reside in that state. The criteria of qualification for nationality is determined by national law. The size of the population is immaterial; it can be as small as San Marino at around 30,000 inhabitants, or as large as China at around 1.3bn.

• Defined territory – this refers to the territory over which control of the state is exercised, and which demarcates the state from its neighbours. The size of the territory of states can vary widely from Russia with 17 million km2 to the principality of Monaco with 2 km2. The borders of the state’s territory need to be reasonably determinate. The existence of border disputes does not necessarily affect the existence of statehood; for instance, India and Pakistan exist as states even though they have a long-standing territorial dispute in Kashmir. The refusal to define the extent of the state boundaries is not fatal to the existence of statehood either; Israel has refused to put maximum limits on its claims to the Palestinian territories, but there is no doubt that Israel is a state. The fact that territory is threatened or invaded by an aggressor does not preclude or destroy the existence of statehood. For instance, in 1990 Kuwait remained a state even when invaded by Iraq. In the case of a new state emerging out of civil war, the rebel group claiming sovereignty will need to show control over a sufficiently defined area to claim independent statehood, as was the case in East Timor in Southeast Asia, and South Sudan and Eritrea in Africa.

• Government – statehood requires the existence of a government in control of territory and population. It needs to be effective. The degree of control that the government has is likely to affect a state’s chances of long-term survival. The structure and legitimacy of the government are relevant to this issue only. The Montevideo Convention does not demand that the government is democratic or legitimate. The control exercised by the government does not need to be total. Civil war may provide a serious challenge to effective government, but the state still exists in international law, as in Libya in 2011 and Syria in 2012.

• Capacity to enter relations with the other states – this element causes some difficulty, in theory, as it defines one of the consequences of statehood. It is helpful to focus on the requirement of legal capacity. Many territories fulfil the other requirements of the Montevideo Convention but are not states; for instance, Hong Kong and New South Wales. Their local/regional governments do not have the capacity to enter relations with other states. For legal capacity to exist there must be a degree of independence from any other state. The apartheid government of South Africa declared the black homelands (Bantustan), such as Transkei and Ciskei, to be independent self-governing states and so not within the borders of South Africa. This act was not recognised by the rest of the world, as in reality these areas were not independent of South African control. The degree of economic and social dependence on other states is not relevant to the existence of capacity; rather, it is a legal question of whether an entity has capacity to enter relations as a matter of right. An entity may satisfy the other criteria of the Montevideo Convention which are based on fact, but fail on this legal requirement.

2.2 The recognition of a state

A state may meet the requirements of the Montevideo Convention, but in practice its existence needs to be politically accepted by other states. Recognition of a state by another state signifies that the recognising state accepts the other as having the capacities of statehood. Recognition is an executive act; it is a decision invariably based on political, economic and legal considerations.

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Box 1 Acts of recognition

The act of recognition of a state may take different forms such as:

• formal pronouncement

• official letter to newly recognised entity

• statement before national court of the recognising state

• opening of diplomatic relations may infer recognition.

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Recognition may occur in different circumstances; for instance, it may be recognition of:

• independence from federal authorities, such as the recognition of the former republics of the Soviet Union and of Yugoslavia

• the right of self-determination of that state – such as the recognition of Eritrea as an independent state from Ethiopia.

Recognition applies not just to states but to governments. It may be recognition of a new government that has come to power unconstitutionally or through a civil war. In these cases the exercise by the new government of effective control over the state’s territory is crucial. The failure to gain recognition may limit that state’s or government’s position in the international system. It will have difficulty becoming a member of international organisations and participating in international conferences.

Recognition is a discretionary act. Unanimity of recognition is not required. In practice the attitude of other states, especially politically powerful states, is crucial to the success of an emerging state. For instance, after the civil war in Pakistan in 1971, the newly formed People’s Republic of Bangladesh received widespread support and was quickly recognised as a state by the majority of the international community. In contrast, recognition of the Palestinian territories has been much more circumspect. So far, the USA, UK and many other European states have not recognised its existence as a state and its attempt to become a UN member state stalled in 2011. It is a controversial candidate for recognition of statehood, in contrast to Bangladesh, which became a member of the UN relatively quickly after recognition in 1974.

Recognition implies a willingness to deal with the government of that state as a lawful representative of that state. Recognition has the potential to be used as a political tool by governments to express their approval or disapproval of the emergence of the new entity or government. The practice of the USA and many European states is to recognise states but not governments; this allows states to establish relations with a new regime but not officially approve of it. For instance, prior to 2001 few states recognised the Taliban as the government of Afghanistan but the existence of the Afghan state was recognised.

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Box 2 Degrees of recognition

Traditionally recognition may be:

• De jure – is the fullest kind of recognition and provides uncontested legality to the state or government.

• De facto – this recognises the factual existence of a state or government and the fact that the government exercises control over a territory. It is more tentative than de jure recognition; it suggests further enquiry into the stability of the state or government. For instance, following the Russian Revolution and the overthrow of the Tsars in 1917, the UK recognised the de facto existence of the Soviet Union in 1921, and de jure in 1924.

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2.3 The effects of recognition

The effect of recognition appears to be straightforward and is set out in the Montevideo Convention.

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Activity 2

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Read Articles 3 and 6 of the Montevideo Convention and summarise what you consider the effect of these articles to be.

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View comment - Activity 2

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The declaratory effect of Articles 3 and 6 may seem clear. However, it has been argued that recognition by other states is a vital part of statehood, providing something more significant and constitutive:

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The full international personality of rising communities [...] cannot be automatic [...] as its ascertainment requires prior determination of difficult circumstances of facts and law, there must be someone to perform their task. In the absence of a preferable solution, such as the setting up of an impartial international organ to perform that function, the latter must be fulfilled by States already existing.

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(Lauterpacht, 1978, p. 55)

The constitutive approach relies on the subjective and invariably self-interested assessment of other states to determine the existence of a state. It also raises questions about the degree of recognition required for statehood. For instance, does it require unanimity or would recognition by an international organisation be sufficient?

The declaratory approach views recognition as the acceptance of the factual occurrence of a state and not as a vital part of the existence of statehood:

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The existence or disappearance of the state is a question of fact [...] the effects of recognition by other states are purely declaratory.

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(Badinter, 1991, pp. 164–5)

This has been the preferred view and is supported by the wording of the Montevideo Convention.

States are usually reluctant to recognise ‘maverick’ states or governments who have breached international law as they risk damaging their own reputations by doing so.

As you read earlier, the Montevideo Convention does not stipulate that a state must have legitimacy and be democratic. In theory, recognition does provide an opportunity for states to demand more stringent standards of emerging states and governments in return for recognition. For instance, the EC set out the criteria for the recognition of the new post-Cold War Eastern European states in Annex 1 of their 1991 Declaration on the ‘Guidelines on the Recognition of New States in Eastern Europe and in the Soviet Union’ (Türk, 1993).

The UN, as an international organisation, does not possess authority to recognise states or governments, but it does require new states applying for membership to formally declare their acceptance of the obligations in the UN Charter. The granting of UN membership provides valuable evidence of statehood.

2.4 Self-determination

Entities seeking recognition often use the principle of self-determination as a justification for the creation of a new state or government. The concept was inserted into the UN Declaration on the Granting of Independence to Colonial Countries and Peoples 1960, adopted by UN General Assembly Resolution 1514 (XV) of 14 December 1960. Former colonial territories gained the right to independence by virtue of this principle (see Box 3).

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Box 3 UN Declaration on the Granting of Independence to Colonial Countries and Peoples 1960

The Declaration declares that:

1. The subjection of peoples to alien subjugation, domination and exploitation constitutes a denial of fundamental human rights, is contrary to the Charter of the United Nations and is an impediment to the promotion of world peace and co-operation.

2. All peoples have the right to self-determination; by virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.

3. Inadequacy of political, economic, social or educational preparedness should never serve as a pretext for delaying independence.

4. All armed action or repressive measures of all kinds directed against dependent peoples shall cease in order to enable them to exercise peacefully and freely their right to complete independence, and the integrity of their national territory shall be respected.

5. Immediate steps shall be taken, in Trust and Non-Self-Governing Territories or all other territories which have not yet attained independence, to transfer all powers to the peoples of those territories, without any conditions or reservations, in accordance with their freely expressed will and desire, without any distinction as to race, creed or colour, in order to enable them to enjoy complete independence and freedom.

6. Any attempt aimed at the partial or total disruption of the national unity and the territorial integrity of a country is incompatible with the purposes and principles of the Charter of the United Nations.

7. All States shall observe faithfully and strictly the provisions of the Charter of the United Nations, the Universal Declaration of Human Rights and the present Declaration on the basis of equality, non-interference in the internal affairs of all States, and respect for the sovereign rights of all peoples and their territorial integrity.

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The words in Paragraph 2 of this declaration were subsequently incorporated into Article 1 of the UN International Covenant of Civil and Political Rights (ICCPR) 1966 and Article 1 of the UN International Covenant of Economic, Social and Cultural Rights (ICESCR) 1966.

Self-determination is now a well-established principle of customary international law. The implications of the right of self-determination extend beyond the conventional colonial independence situations. Distinct ethnic and cultural groups within a state have relied on the right of self-determination to declare their independence from the existing state and assert statehood. In the case of the former federal state of Yugoslavia, the existing federation dissolved as different federal provinces, such as Croatia and Slovenia, each proclaimed sovereignty. More commonly in these situations, secession occurs; in this case the original state remains while the part claiming independence secedes and becomes a new state. The declaration of the Turkish Republic of Northern Cyprus is an example of an attempted secession from the parent state: the Republic of Cyprus.

Considerable uncertainty surrounds the right of self-determination. The interpretation of ‘all peoples’ is unclear; for instance, do ‘peoples’ need to be defined by ethnicity and/or geography? If so, what about citizens of a multi-ethnic state: can they be peoples? Does the claim to self-determination need to be legitimate in international law? What happens if it is made by force, as was the case with the Turkish military invasion of Northern Cyprus and the subsequent declaration of the Turkish Republic of Northern Cyprus?

Would a right of self-determination trump any claim that the state may have to ensure its continued existence? In other words: is it in effect a right of secession? If so, then it would seem that the right of self-determination has the potential to undermine the integrity of the state in international law. Aggrieved groups within states would be encouraged to make claims to secession that may be unrealistic, encouraging internal instability in many states. There is also concern for the possible political and economic implications for global stability of a proliferation of micro-states, as it is likely that international consensus would be much harder to achieve. A narrower interpretation of self-determination is preferred by many (see Box 4).

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Box 4 Declaration on Principles of International Law Concerning Friendly Relations and Co-operation among States in Accordance with the Charter of the United Nations, passed by UN General Assembly Resolution 2625 of 24 October 1970 (commonly known as the Friendly Relations Declaration)

The Friendly Relations Declaration declares that:

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Nothing in the foregoing paragraphs shall be construed as authorizing or encouraging any action which would dismember or impair, totally or in part, the territorial integrity or political unity of sovereign and independent States conducting themselves in compliance with the principle of equal rights and self-determination of peoples as described above and thus possessed of a government representing the whole people belonging to the territory without distinction as to race, creed or colour.

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(p. 124)

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The Friendly Relations Declaration indicates that the right of self-determination is not a right of secession, and is limited to the self-government of peoples or internal self-determination rather than being a right of external self-determination. However, this is caveated by the requirement that existing states respect the rights and the self-determination of peoples. It is asserted that where a state does not respect internal self-determination, people have recourse to what is referred to as ‘remedial’ secession and external self-determination may be an option.

The Arbitration Commission of the EC Conference on Yugoslavia 1991–93 (often called the Badinter Commission, after its Chair, Robert Badinter), which dealt with matters arising after the dissolution of the federal state of Yugoslavia, provided their opinion on the nature of self-determination.

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Activity 3

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Read Opinion No. 2 of the Arbitration Commission, EC Conference on Yugoslavia, in Pellet, A. (1992) ‘The Opinions of the Badinter Arbitration Committee: A Second Breath for the Self-Determination of Peoples’, European Journal of International Law, vol. 92, no. 1, pp. 183–4, and consider its wider implications for the principle of self-determination.

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View comment - Activity 3

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The moral imperative for the right of self-determination is difficult to deny. However, the adoption of a wide interpretation of the right of self-determination risks encouraging secessionist movements, with the consequent proliferation of micro-states.

The recognition of the secession of a new state/government has the potential to convert an internal rebellion or civil war into an international conflict under which states are bound by the UN Charter prohibitions on the use or threat of force.

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Example of secession: Republic of Kosovo

Kosovo was an autonomous province until 1989. Its population is approximately two million, of which some 90% are ethnic Albanians with a Serb minority. After the dissolution of Yugoslavia the province became part of Montenegro. Albanians in Kosovo agitated for independence throughout the 1990s and this was suppressed with military action by the Serbs. As a consequence NATO intervened with air strikes to force the withdrawal of Serbian forces. The UN Security Council passed Resolution 1244 of 10 June 1999 authorising the UN administration of the region and a framework for resolving the political and legal status of the region.

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The negotiations between Serbia and Kosovo failed to reach any agreement and the parliament of Kosovo declared independence from Serbia in February 2008.

The USA, UK, France, Germany and many other states recognised Kosovo as a state. At the time of writing (November 2012) it had received some 95 diplomatic recognitions. In 2008 (18 February) the US Secretary of State, Condoleezza Rice, stressed that it was a unique situation:

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The unusual combination of factors found in the Kosovo situation – including the context of Yugoslavia’s breakup, the history of ethnic cleansing and crimes against civilians in Kosovo, and the extended period of UN administration – are not found elsewhere and therefore make Kosovo a special case. Kosovo cannot be seen as a precedent for any other situation in the world today.

End of Quote

(Rice, 2008)

However, this view was not held by the Russia who regarded it as breach of international law. Serbia and Montenegro challenged the validity of Kosovo’s independence and the UN General Assembly requested an advisory opinion from the ICJ.

Start of Activity

Activity 4

Start of Question

Read Accordance with International Law of the Unilateral Declaration of Independence in respect of Kosovo (Request for an Advisory Opinion) ICJ Rep 2010, 141. You need to focus only on Section IV: ‘The Question Whether The Declaration Of Independence Is In Accordance With International Law’ at paragraph 78.

Consider how the ICJ answered the question asked of it: ‘Is the unilateral declaration of independence by the Provisional Institutions of Self-Government of Kosovo in accordance with international law?’ (paragraph 1).

End of Question

View comment - Activity 4

End of Activity

2.5 ‘Failed’ states

Traditionally, once a state becomes a state, it remains one even when there is a loss of control by the government and subsequent lack of law and order, with the possibility of anarchy. However, the concept of a ‘failed state’ has developed, although as yet, there is no accepted definition of what constitutes a failed state. Zartman describes it as referring ‘to a situation where the structure, authority (legitimate power), law, and political order have fallen apart’ (Zartman, 1995, p. 1).

Such states invariably exhibit a range of humanitarian, legal and security problems, such as civil wars, ethnic cleansing, mass migration, environmental degradation and pandemics. These states may have legal, but not actual sovereignty. The concept of state failure is not reserved for cases of complete state collapse into civil war or anarchy. It is a spectrum and arguably may include states that are weak and struggling to meet their responsibilities, such as Haiti, and, in the past, states such as Afghanistan and Sierra Leone. In many cases failed states can no longer control their territory and borders. Politically, they invariably lack legitimacy and accountability and fail to protect the basic rights and freedoms of their citizens. Economically, they are ineffectual and corrupt.

The failure of a state is likely to have a wider regional and international impact. Lawlessness is often not just confined within the boundaries of the failed state; transnational crimes such as drug smuggling, human trafficking and terrorism are able to flourish. In Somalia, a commonly cited example of a failed state, the lack of internal control allows piracy to flourish along the western seaboard of the Indian Ocean.

The international community has become increasingly concerned about the threat to global political and economic security and stability posed by the instability of failed states. International responses have been practical in the form of aid and, more controversially, in offers of reconstruction, which involves a degree of foreign intervention in the governance of the failed state. Humanitarian interventions have been legitimised in certain situations. In principle, however, the fact that a state has ‘failed’ is not a justification for disregarding the sovereignty of the state. It allows a limited international response, but then it risks failing to address the international ramifications of the failed state. For instance, an attack on the land bases of the Somalian pirates within Somalia by foreign forces risks breaching international law.

3 Sovereignty

States are the main actors in the international system. The sovereignty of the state is pivotal in the international system; it provides the state with extensive power and authority. Traditionally, sovereignty encompasses:

• Sovereign equality – states are regarded as equal in international law regardless of their size, population or wealth.

• Jurisdiction – states have authority to create laws and enforce them.

• Power – to freely use and dispose of the territory under the state’s jurisdiction and to perform activities deemed necessary to the population.

• Duty of non-intervention – no other state should intrude into the state’s territory – ius excludendi alios (the right to exclude others).

• Sovereign immunity – the right of immunity from the jurisdiction of foreign courts for acts performed by the state in its sovereign capacity.

• Diplomatic immunity – the right of state representatives acting in their official capacity to immunity from the legal system of the state in which they are operating.

• Rights – to respect for life and property of the state’s nationals and state officials abroad.

Despite being central to the operation of the international system the concept of sovereignty defies precise definition and has been the subject of wide-ranging criticism. 

4 Jurisdiction

An inherent element of sovereignty is the power to govern and to legislate through the creation and application of domestic laws which prescribe, proscribe, adjudicate and enforce over individuals, subject to the jurisdiction of that state. In this section you will explore the application and limits of state jurisdiction. For instance, while it may seem obvious that jurisdiction extends to events which occur within a state, it is less obvious whether a state can extend its jurisdiction to its citizens/nationals when abroad or to actions which although occurring abroad have an adverse impact on the security of the state in question.

4.1 General principles of jurisdiction

The traditional starting place for a consideration of jurisdiction is the judgment in the Lotus case, which you will look at in the next activity.

Start of Activity

Activity 5

Start of Question

Read pages 18–19 of Lotus (SS) Case (France v Turkey) PCIJ Rep Series A 1927, no. 10 (the material is replicated in both English and French), then summarise the court’s view on the nature and extent of a state’s jurisdiction.

End of Question

View comment - Activity 5

End of Activity

4.2 Types of jurisdiction

A distinction is made between prescriptive jurisdiction and the jurisdiction to adjudicate and to enforce (Figure 3).

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View description - Uncaptioned figure

End of Figure

Figure 3 Types of jurisdiction

A state has prescriptive jurisdiction to enact laws that are applicable to individuals, property and events, both within and outside its territory. National laws are able to bind its nationals abroad and may be applicable to certain events or conduct abroad that affect the state asserting jurisdiction. For instance, a state may legislate for crimes that occur abroad which it considers a threat to its security or to its economic interests. It is this type of jurisdiction to which the second part of the excerpt from the Lotus judgment refers.

Example of prescriptive jurisdiction: treason in the United Kingdom

In the UK the offence of treason may be committed by any person who owes allegiance to the Crown, wherever the act of treason took place.

The jurisdiction to adjudicate (the power to hear and settle legal disputes) and the jurisdiction to enforce (the power to ensure compliance with legal commands) are territorially limited. In practice, this limits prescriptive jurisdiction as a state cannot enforce its prescriptive jurisdiction within another state; the operation of the police and the courts system are limited to the territory of the state. It is this type of jurisdiction to which the first part of the Lotus Judgment refers. A state cannot in the absence of permission exercise prescriptive jurisdiction outside of its territory. However, there are some rare occasions where states agree that this should occur.

Example of adjudicative jurisdiction: the UK/Netherlands Agreement 1999 permitted the trial of the two Libyan Lockerbie bombing suspects by a Scottish court, according to Scots law, in the Netherlands.

You will look at this case in more detail in Section 4.3.1 of this course.

4.3 Principles of jurisdiction

There are several customary international principles which help to determine jurisdiction in different situations.

4.3.1 Territorial principle

States have complete and absolute jurisdiction over people, property and events in their territory. This encompasses objective and subjective territoriality.

Part 1: Objective territoriality

• A state has jurisdiction over offences completed within its territory.

Start of Example

Example of objective territoriality

In the Lotus case a collision occurred between a French steamship, the SS Lotus, and the Turkish steamship, the SS Boz-Kourt on the high seas, which resulted in the deaths of people on the Turkish ship. When the French ship went into a Turkish port the French officer of the watch was arrested. The PCIJ held that Turkey was entitled to assert jurisdiction as the collision involved deaths which occurred on a vessel flying the Turkish flag to which, under customary international law, Turkish domestic jurisdiction applied. Ships and aircraft are treated for jurisdictional purposes as if they are floating territory of the state of registration and so the act of the Lotus in colliding with the Turkish ship was therefore regarded as an act completed within Turkish territorial jurisdiction.

The objective approach has on occasions been extended to encompass the state in which the effect of the crime occurs, even though the crime may have been planned and committed in another jurisdiction. This is sometimes referred to as the ‘effects doctrine’. Its application can be controversial and will be considered in more detail in Section 4.4 of this course.

End of Example

Part 2: Subjective territoriality

• A state has jurisdiction over offences and matters commencing in its territory, even if other elements of the offence take place in another state.

Start of Example

Examples of subjective territoriality

With regard to ‘Lockerbie’, a bomb was put on board an American plane, Pan Am Flight 103, in Malta and this entitled Malta to claim jurisdiction. The UK asserted jurisdiction on an objective territorial basis; as the bomb exploded over Lockerbie in Scotland the offence had been completed in UK territory. Section 59 of the Terrorism Act 2000 gives the UK jurisdiction over the offence of incitement to commit certain terrorist offences if the incitement occurs within the UK, even if the crime is completed outside UK territory.In the past, the UK has taken a restrictive approach to subjective territoriality, even though international law permitted its use. However, in recent years, with increased emphasis on transnational crimes such as terrorism, money laundering, drug and people trafficking, there has been a move towards subjective territoriality.

Some states now assert territorial jurisdiction based on peripheral contact with the territory. For instance, the US Foreign Corrupt Practices Act 1977 requires only limited territorial connection – a US bank account, foreign transaction using dollars and financial transactions routed through the US banking system have been enough to engage US jurisdiction.The absolute nature of territorial jurisdiction is on occasions modified by international law and by agreement. The common example given is diplomatic immunity, i.e. it is accepted that the state does not exercise its jurisdiction over foreign diplomats on its territory.

End of Example

4.3.2 Nationality principle

• States are able to assert jurisdiction over their nationals even when they are abroad.

Start of Example

Examples of the assertion of the nationality principle

In the Trial of the Earl of Russell (1901) AC 446, a UK national was convicted of bigamy even though the second marriage took place outside the UK. This nationality principle also applies to the crime of murder. For example, a British national can be prosecuted in the UK for a murder committed abroad.Corporations are deemed to be subject to the jurisdiction of the state in which they are incorporated and ships and aircraft are subject to the jurisdiction of the state in which they have registered.Jurisdiction cannot be exercised until the national comes within the territory of his or her state.

In the majority of cases the state will decide to take no action where the matter has already been dealt with by the state in whose territory the events occurred. Nationality jurisdiction is rarely relied on in practice. However, it is useful in resolving issues of jurisdiction in places beyond the territorial jurisdiction of any state, such as on the high seas where jurisdiction is determined by the country of registration of the vessel.

Another example is that of Antarctica where the nationality of the camp or expedition concerned determines the jurisdiction to be applied.Territoriality and nationality are discrete independent bases of jurisdiction. However, there can be an overlap. The same conduct or activity may provide a basis for exercise of jurisdiction by the territorial state and by the state of nationality. Territoriality is considered the normal, and nationality an exceptional basis for the exercise of jurisdiction.

End of Example

4.3.3 Passive personality

Some states have asserted ‘passive personality’ jurisdiction, which is determined by the nationality of the victim. For instance, in the Lotus case, Turkey’s additional ground for claiming jurisdiction was that the victims were Turkish. The potential application of this principle is far reaching and controversial. However, its application does help address the issue highlighted in 1985 when the Italian cruise ship, the Achille Lauro, was hijacked in Egyptian waters by Palestinian terrorists demanding the release of Palestinian prisoners by the Israeli government. Their only victim was a Jewish, US national. At the time, Israel, the state against whom the act of terrorism was directed, did not have any jurisdiction and so couldn’t take action.

However, in recent years the passive personality principle has begun to receive limited international recognition and it has been incorporated into international agreements; treaties addressing the various aspects of terrorism now, on occasion, encompass the passive personality principle.

Start of Box

Box 5 UN Convention Against Torture and Other Cruel, Inhuman Treatment or Punishment 1984

Article 5 states that:

Each State Party shall take such measures as may be necessary to establish its jurisdiction over the offences referred to in article 4 in the following cases:

a. When the offences are committed in any territory under its jurisdiction or on board a ship or aircraft registered in that State.

b. When the alleged offender is a national of that State.

c. When the victim is a national of that State if that State considers it appropriate.

End of Box

4.3.4 Protective principle

• States may assert that they have authority over matters that constitute a threat to state security and from which the state needs to protect itself.

Start of Example

Example of the protective principle

The protective principle was argued in DPP v Joyce [1946] AC 347 – that the actions of William Joyce (Lord Haw-Haw), a British national, in broadcasting Nazi propaganda from Germany were harmful to the interests of the UK.States have developed the protective principle to claim jurisdiction over those who are not nationals but whose actions have an adverse effect on the state irrespective of where those actions have been committed. It has been applied in cases such as espionage, counterfeiting of currency and drug trafficking.

End of Example

4.3.5 Universality

A few crimes are considered so serious that it is in the interest of all states to proscribe them. Certain crimes have traditionally been regarded as universal crimes and the jurisdiction to try them is international.

Examples of universal crimes, piracy and hijacking, war crimes, crimes against humanity and genocide.

The scope and application of universal jurisdiction is uncertain. Although states recognise the universality principle, there are few cases where states are prepared to assert jurisdiction where there is no connection with the proscribed act or the individual accused of committing it. For instance, in recent years Kenya has been reluctant to try suspected Somali pirates who commit acts of piracy on the high seas. Kenyan domestic jurisdiction extends only to acts of piracy in territorial waters. Although the UN Convention on the Law of the Sea (UNCLOS) 1982 allows states to arrest pirates wherever they are operating and bring them to trial in the state’s domestic judicial system, it requires states to enact the appropriate domestic legislative provisions in order to do so. Courts in several European states have asserted jurisdiction on this basis over the officials of foreign governments accused of torture and crimes against humanity in other states and this has the potential to cause political and diplomatic tension.

Start of Example

Example of crimes against humanity: General Pinochet

In 1998, General Pinochet, the former military dictator of Chile, was arrested in London on an arrest warrant issued in Spain on charges of torture and genocide committed in Chile during his rule in the 1970s.

The UN and the European Parliament supported the extradition request. The government of Chile was ambivalent to the situation as it highlighted the divisions within their political elite. The UK government, while condemning the Pinochet regime was loath to upset the Chilean government, in view of the UK’s lucrative arms trade with the country and in the light of Chile’s support against the Argentinian invasion of the Falklands in 1982.

The attempt to hold Pinochet accountable eventually failed in 2000 when the UK government decided not to proceed with the extradition and released Pinochet on the grounds of ill health.

One of the controversial issues in the Pinochet case was whether such an approach violated the immunity of foreign government officials when travelling abroad. Pinochet was a former head of state, but in Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v Belgium) ICJ Rep 2002, 11 the ICJ held that an arrest warrant issued by the Belgian authorities against the Minister of Foreign Affairs of the DRC for war crimes and crimes against humanity did not respect his immunity from criminal jurisdiction under international law. This case and other similar prosecutions in Belgian courts caused considerable controversy, and under international pressure Belgium repealed the provisions of its domestic legislation that made such prosecutions possible.

The application of universal jurisdiction in these cases gives rise to some complex questions, some of which are highlighted in the next activity.

End of Example

Start of Activity

Activity 6

Start of Question

Read Orentlicher, D. F. (2004) ‘Whose Justice? Reconciling Universal Jurisdiction with Democratic Principles’, Georgetown Law Journal, vol. 92, no. 6, pp. 1057–1134.

This is a long article and for the purposes of this activity you need only read Section I. Then consider the nature of the issues raised by the author in that section of the article.

End of Question

View comment - Activity 6

End of Activity

4.4 Extraterritoriality – protective jurisdiction and the ‘effects doctrine’

The second part of the Lotus judgment would appear not to require a nexus between the state and the exercise of prescriptive jurisdiction outside the state – subject only to the existence of any rules of international law prohibiting it. In practice, states asserting extraterritorial jurisdiction usually have some connection with the person or events over which they are claiming jurisdiction. As you saw earlier, both nationality and territoriality jurisdiction allow the state on certain occasions to assert extraterritorial jurisdiction over acts that take place outside the territory of the state and over the activities of non-nationals. In recent years many states, most notably the USA, have used the ‘effects doctrine’ to claim jurisdiction over matters that have an effect, however distant in their territory.

The use of extraterritorial jurisdiction has the potential to cause international tension. The discord created is aptly illustrated by the extraterritorial impact of US anti-competition legislation that encompasses foreign cartels, formed in many cases with the express approval of national governments of the corporations concerned. These cartels have no direct connection with the USA, but have been considered as indirectly connected, as their existence and operation affect world prices and therefore affect the USA. This was regarded by many in Europe as aggressive promotion of the USA’s economic interests. The EU and European states responded by enacting ‘blocking’ legislation.

Globalisation poses challenges to the effectiveness of territorially based jurisdiction and states recognise that, on occasion, effective regulation of activities within their territories demands a degree of control over private activities beyond their borders. When used cooperatively extraterritorial jurisdiction has the potential to fill certain regulatory and accountability gaps. For instance, there is growing acceptance of the need for an increased regulation of transnational businesses. Extraterritoriality has been used for the control of bribery; the US Foreign Corrupt Practices Act 1977 and the UK Bribery Act 2010 both have extraterritorial reach. Its use has been promulgated by John Ruggie, UN SRSG in the UN’s ‘Protect, Respect and Remedy’ Framework (UN, 2011) as a means of increasing the accountability of MNCs for their activities in the developing world.

States are also increasingly prepared to use extraterritorial jurisdiction in relation to criminal activity which has international reach, such as terrorism, money laundering, corruption, grave human rights breaches and human trafficking.

In conclusion, the customary international law principles of jurisdiction are complex and at times controversial in their application, as they are evolving and adapting to a world where individuals and corporations increasingly act and produce effects across state borders.

Conclusion

In this course you have explored the concept of international legal personality and the different subjects of international law. You have considered how a state is created and recognised. You then considered the implications of sovereignty and explored the principles of jurisdiction and their application. In doing so, you will have critically engaged with complex, current and emerging legal and international issues.

Further reading

IBA (2008) Report of the Task Force on Extraterritorial Jurisdiction, International Bar Association, Legal Practice Division.

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References

Badinter, R. (1991) ‘Opinion No. 1’, Arbitration Commission, EC Conference on Yugoslavia, International Law Reports, vol. 92, pp. 162–6.

Badinter, R. (1992) ‘Opinion No. 2’, Arbitration Commission, EC Conference on Yugoslavia, International Law Reports, vol. 92, pp. 167–9.

Cassese, A. (2005) International Law, 2nd edn, Oxford, Oxford University Press.

ECtHR (2012) The European Court of Human Rights in Facts and Figures 2011, Strasbourg, European Court of Human Rights Public Relations Unit; available via

Lauterpacht, H. (1978) Recognition in International Law, New York, AMS Press.

Orentlicher, D.F. (2004) ‘Whose Justice? Reconciling Universal Jurisdiction with Democratic Principles’,Georgetown Law Journal, vol. 92, no. 6, pp. 1057–1134.

Pellet, A. (1992) ‘The Opinions of the Badinter Arbitration Committee: A Second Breath for the Self-Determination of Peoples’, European Journal of International Law, vol. 92, no. 1, pp. 178–85.

Rice, C. (2008) ‘U.S. Recognizes Kosovo as Independent State’, Washington DC, U.S. Department of State[Online]. Available at (accessed 18 December 2012).

Türk, D. (1993) ‘Annex 1: Declaration on the "Guidelines on the Recognition of New States in Eastern Europe and in the Soviet Union"’ (16 December 1991), European Journal of International Law, vol. 4, no. 1, p. 72.

UN (2011) Guiding Principles on Business and Human Rights: Implementing the United Nations ‘Protect, Respect and Remedy’ Framework, United Nations Human Rights, Office of the High Commissioner, HR/PUB/11/04, New York and Geneva, United Nations.

Zartman, I.W. (ed.) (1995) Collapsed States: The Disintegration and Restoration of Legitimate Authority, Boulder, CO, Lynne Rienner Publishers.

Cases

UK

Trial of the Earl of Russell [1901] AC 446

DPP v Joyce [1946] AC 347.

Other jurisdictions

ICJ

Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo (Request for an Advisory Opinion) ICJ Rep 2010.

Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v Belgium) ICJ Rep 2002

Legality of the Use by a State of nuclear weapons in armed conflict Advisory Opinion ICJ Rep 1996

Reparation for Injuries Suffered in the Service of the United Nations Advisory Opinion ICJ Rep 1949

Western Sahara Advisory Opinion ICJ Rep 1975

PCIJ

Lotus (SS) Case (France v Turkey) PCIJ Rep Series A 1927, no. 10.

Legislation

UK

War Crimes Act 1991

Terrorism Act 2000

Bribery Act 2010.

USA

Foreign Corrupt Practices Act 1977.

Treaties and conventions

Sykes–Picot Agreement 1916

International Labour Organization Constitution 1919 (as amended)

Montevideo Convention on the Rights and Duties of States 1933

UN Charter 1945

UN Universal Declaration of Human Rights 1948

European Convention on Human Rights 1950

UN Declaration on the Granting of Independence to Colonial Countries and Peoples 1960

UN International Covenant on Civil and Political Rights 1966

UN International Covenant on Economic, Social and Cultural Rights 1966

UN Convention on the Law of the Sea 1982

UN Convention Against Torture and Other Cruel, Inhuman Treatment or Punishment 1984

Oslo Accords 1993

UK/Netherlands Agreement 1999.

Resolutions

United Nations

UN Security Council

UNSC Res 1244 of 10 June 1999.

UN General Assembly

UNGA Res 1514(XV) of 14 December 1960

UNGA Res 2625 of 24 October 1970.

Acknowledgements

This course was written by Amanda Zambellas.

Except for third party materials and otherwise stated in the acknowledgements section, this content is made available under a Creative Commons Attribution-NonCommercial-ShareAlike 4.0 Licence.

The material acknowledged below is Proprietary and used under licence (not subject to Creative Commons Licence). Grateful acknowledgement is made to the following sources for permission to reproduce material in this course:

Images

Course image: Woody Hibbard in Flickr made available under Creative Commons Attribution 2.0 Licence.

Figure 1: GPO U.S. Government Printing Office,

Figure 3: © Stringer/AFP/Getty Images.

Text

Activity 1: Courtesy of the International Court of Justice

Activity 4: Courtesy of the International Court of Justice

Badinter, R. (1992) ‘Opinion No. 2’, Arbitration Commission, EC Conference on Yugoslavia, International Law Reports, vol. 92, pp. 167–9.

ECtHR (2012) European Court of Human Rights in Facts and Figures 2011, Strasbourg, European Court of Human Rights Public Relations Unit; available via

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Activity 1

Comment

The ICJ confirmed that the UN is an international person. It had been created with organs and given special tasks. Its members are required to assist it in carrying out its tasks and to accept and carry out the decisions of the UN Security Council. The UN General Assembly is authorised to make recommendations to the members and the organisation has been given legal capacity and privileges and immunities in the territory of its members. It is party to various conventions, distinct from its members to whom it has a duty to remind of their obligations, if required.

The ICJ distinguished between the status of the UN and that of states, but emphasised that the UN is a subject of international law and is capable of possessing international rights and duties and maintaining its rights by bringing international claims.

The UN was created with objective personality – it does not rely on the recognition of states, and as such it is a subject of international law even in respect of states that have come into existence after its creation and also non-member states.

Back to Session 1 Activity 1

Activity 2

Comment

Article 3 states that the political existence of the state is independent of recognition by the other states. Even before recognition, the state has the right to defend its integrity and independence, to provide for its conservation and prosperity, and consequently to organise itself as it sees fit – to legislate upon its interests, administer its services, and to define the jurisdiction and competence of its courts.

Article 6 states that the recognition of a state merely signifies that the state which recognises it accepts the personality of the other with all the rights and duties determined by international law. Recognition is unconditional and irrevocable.

Articles 3 and 6 indicate that statehood is a fact, irrespective of whether a state is recognised. Recognition is the acknowledgement or declaration of the existing legal capacity of that state, rather than being a decisive factor in the creation of statehood.

Back to Session 2 Activity 1

Activity 3

Comment

This Opinion has a particular application in that it relates to the position of the Serbian minorities in Croatia and Bosnia–Herzegovina. In this the Commission adopted a narrow view of the right of self-determination; it relates to the right of groups to be recognised within a state and the right of individuals to choose to belong to that group. This includes, if appropriate, the right to choose their nationality. In this more narrow form of self-determination; minority groups have the right for their culture, social organisation and religions to be respected by the state of which they are a part.

On a broader level, the Badinter Commission accepted the right of self-determination for the former territories of the federal state of Yugoslavia, which fulfilled the traditional requirements of statehood.

Back to Session 2 Activity 2

Activity 4

Comment

The ICJ considered that state practice did not indicate the existence of a prohibition of declarations of independence. In the latter part of the twentieth century the law of self-determination had developed to recognise the right of independence of non-self-governing territories and there were also instances of declarations outside this context.

The ICJ rejected the argument that the prohibition of unilateral declarations of independence is implicit in the principle of territorial integrity enshrined in Article 2(4) UN Charter: ‘All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations’, as the scope of the principle is limited to relations between states.

The ICJ also rejected the argument that a general principle could be derived from the condemnation by the UN Security Council of other declarations of independence such as Southern Rhodesia and Northern Cyprus. These determinations had been made in response to a particular exceptional situation rather than because of a violation of a norm of international law. In paragraph 84 the ICJ stated that the Kosovo declaration of independence of 17 February 2008 did not violate international law.

The ICJ acknowledged the argument that the population of Kosovo may be entitled to independence as the circumstances provided a right to remedial secession but did not provide their opinion on the matter as it was not part of the question asked of it.

Back to Session 2 Activity 3

Activity 5

Comment

In the judgment, the Permanent Court of International Justice (PCIJ) states that the most important restriction imposed by international law upon a state is that it must not exercise its power in any form in the territory of another state unless there is a permissive rule, deriving from custom or treaty, to the contrary. This reflects the positivist approach to sovereignty; that is, that the jurisdiction of a state within its territory is absolute. The state has power over people, property and events within its territorial boundaries.

The PCIJ then explains that there is no prohibition in international law against states extending their jurisdiction to persons, property and events taking place outside their territory, so long as it is not limited by a contrary principle of international law.

At first sight these statements appear mutually exclusive. The apparent contradiction in the Lotus judgment is resolved when you consider that jurisdiction takes different forms and is subject to customary international law principles which determine the extent of a state’s jurisdiction in different circumstances.

Back to Session 4 Activity 1

Activity 6

Comment

The author reviews the increasing use of universal jurisdiction and considers the concerns of those sceptics and positivists who question whether foreign courts should be passing judgment on crimes committed in another state as it risks increasing international tensions and internal discontent. The author also highlights the concerns of those who argue that universal jurisdiction has the potential to cause diplomatic controversy as, by indicting foreign officials, it in effect censures the behaviour of their governments. She also considers the argument that, in exercising universal jurisdiction the prosecutors and courts of the state concerned lack democracy and accountability as they are not accountable to the state of the indicted foreign official. Therefore, the application of universal jurisdiction intrudes into the internal governance of the foreign state. While not adopting these views as her own, the author concedes that they highlight the paradox that the application of universal jurisdiction is a means of enforcing human rights laws but that international human rights laws also uphold the right of societies to govern themselves.

The use of universal jurisdiction by states highlights the lack of international judicial bodies with jurisdiction over the individual. The Nuremberg, Tokyo and the Yugoslavian and Rwandan War Crimes Tribunals are notable exceptions, but they are ad hoc bodies, established to deal with events that occurred during particular conflicts. Hence the significance of the creation of the ICC in 2002 with general jurisdiction over individuals accused of serious international crimes.

Back to Session 4 Activity 2

Figure 1 Yitzhak Rabin, prime minister of Israel, shaking hands with Yasser Arafat, PLO chairman, after signing the Oslo Accords in Washington, DC 1993

Description

Figure 1 is a colour photograph of Yitzhak Rabin, prime minister of Israel, on the left, shaking hands with Yasser Arafat, PLO chairman, on the right, with President Clinton behind both men. Taken at the signing of the Oslo Accords in Washington, D.C

Back to Session 1 Figure 1

Figure 2 Trial of Radovan Karadžić – as President of Republika Srpska he sought unification with Serbia; he was indicted for war crimes committed against Bosnian Muslims and Bosnian Croats during the Siege of Sarajevo and ordering the Srebrenica massacre

Description

Figure 2 is a colour photograph of Radovan Karadžić, the former president of the Republika Srpska, speaking while sitting in behind a microphone and computer screen in a courtroom at the International Court of Justice in The Hague. Taken at his trial for war crimes against Bosnian Muslims and Bosnian Croats during the Siege of Sarajevo and the ordering of the Srebrenica massacre

Back to Session 1 Figure 2

Uncaptioned figure

Description

Figure 3 is a diagram showing four boxes. One is positioned centrally at the top of the diagram, the other three are in a horizontal line below it. For each of these three a one-way arrow flows from the top box to them. The top box contains the text ‘jurisdiction’. The three lower boxes read ‘prescriptive jurisdiction’, ‘adjudicative jurisdiction’ and ‘enforcement jurisdiction’.

Back to Session 4 Figure 1

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