Chapter 2: The Sources of International Law

What are the sources of international law?

1. International conventions whether general or particular

2. International custom
3. General principles of law recognized by civilized nations
4. Judicial decisions and writings of the most highly qualified publicists of the
various nations
5. Resolutions of international organizations

What are the types of sources based on functions in the legal

system and what is the difference between them? Give examples on
each type

Source type Definition Examples

Formal a process by which a legal - Custom
sources rule comes into existence. It - Treaties
is law creating - General principles of law
(if they have pre-existing
legal validity that is not
dependent on a treaty or
a custom)
Material Those sources of law - State practice
Sources concerned with the - The practice of
substance and content of international
the obligation. They are law organizations
identifying. they allow the - Practice of non-state
subjects of international law, actors
- Judicial decisions
the legal entities to whom
- Writing of jurists
the law is addressed, to be - General assembly
considerably certain about resolutions
what the law requires in a
specific content)
Evidential Sources that tell what a - State activity
sources state or another - Diplomatic memoranda
international legal person - Statements of
can or cannot do. government
representatives in
international

1
 organizations
- Actual text of treaties

What are the principles governing treaties?

1. Treaties are voluntary: no state can be bound by the terms of a treaty

without giving its consent by one of the methods specified (there are
limited exceptions such as treaties dealing with delimitation of
boundaries)
2. States that are parties to a treaty are bound by it in their
relations: but not in their relations with non-party states
3. When a treaty codifies customary law, it may be binding to all
states: party members will be bound by the treaty, the relations of party
and non-party members are governed by the customary law(same
obligation but different source)
4. Many multilateral treaties are a mixture of codified customary
law and progressive development of that law: in this case parties
will be bound by the obligations in the treaty while non-parties will only be
bound by obligations in the custom. If state practice developed in line
with the treaty obligations, a new customary rule would arise.

What is customary law? How does it evolve (its elements,

qualifications)?

Customary law is the law which has evolved from the practice or customs of
states

The following elements are required in order for customary law to evolve:

1. State practice: including state activity, statements made in respect of

concrete situations or disputes, statements of legal principles made in the
abstract, national legislation and the practice of international
organizations.

2. Consistency of practice: state practice must be reasonably consistent

and uniform. The degree of consistency vary according to the subject
matter. For example, positive obligations, where a state is required to do
something, requires a greater degree of consistency that negative
obligations when the state is required to refrain from doing something in
order for customary law to form.

2
3. Generality of practice: depending on the subject matter, the practice
must be common to a significant number of countries. Qualifications for
generality: a) special weight will be given to the practice of those states
whose interests are specifically affected by the subject matter of the rule,
b)Persistent objector: when a state objects from the onset on the
emerging practice, then this state is not bound by the custom, c)local
customary law developed between two states may complement or
derogate from the common custom

4. Duration of practice: this depends on the subject matter and

sometimes a single act can be the basis for custom
5. The belief in the obligatory nature of the practice, opinion juris: in
order for a practice to constitute custom, states must believe in the
obligatory nature of the practice

What are the advantages and disadvantages of customary law?

Advantages:

- It enables international law to develop in line with the needs of the time
- The scope of custom is as varied as the activities of states and therefore
its potential as a source of international law is virtually unlimited

Disadvantages:

- It has a certain amount of uncertainty

- Lacks the speed sometimes needed in developing new law
- It may not be suitable for more technical fields or where it is impossible to
divine any consistent or durable practice

How does customary law change?

- There must be sufficient state practice contrary to the existing rule

supported by the belief in its obligatory nature
- At the beginning, this new practice will be regarded as action in breach of
the existing law because the new custom would still not have developed
- If a state accepts the new practice by another state, this new rule will
govern their relations

What is the relationship between treaty and customary law?

The relationship could be complementary, or each could serve a

different purpose, a treaty could be a codification of existing custom or

3
 a progressive development of new custom. In all cases, a treaty is
superior to customary law.

When treaty and customary law complement each other: states

that are party to the treaty are bound by both the treaty and custom (if
they stipulate the same obligation), and states that are non-party to
the treaty are bound by custom

When treaty and customary law conflict:

- If the treaty was introduced later, and provided that it does not
contradict the fundamental principles of international law, then
states that are party to the treaty are bound by the treaty and non-
party states are governed by the custom (states will have different
rights and duties with different states in respect of the same subject
matter)
- If the custom developed after the treaty, the treaty will continue to
govern relations among its parties (the treaty could be modify if
there is consensus among its members)

A treaty is considered void if it contradicts the fundamental principle of

international law, jus cognes

What are the different interpretations of the general principles of

law?

General principles of law are:

- Natural law doctrines: rules derived from natural law are said to
have pre-existing legal validity irrespective of a treaty or custom
- Material sources: general principles of law may be purely
descriptive of general doctrines
- Rules and principles common to all legal systems: those
procedural and administrative rules which are inherent in the
concept of every legal system and therefore part of the law of every
state are included in international law to ensure that it is common to
all legal systems
- Principles of equality: they constitute part of international law
and have often been applied by international tribunals

4
 - General principles of international law: principles that are
fundamental in the international context such as state sovereignty
or a states jurisdiction within its own territory

How can judicial decisions be sources of law?

Judicial decisions are material sources of law as they are declaratory of

obligations in existing law.

How can UN resolutions and other international bodies be sources of

law?

- When UN resolutions are declaratory of existing customary law

- The legal rules of international relations could present new customary law

5
Chapter 3: Law of Treaties

What is the law of treaties?

Law of treaties is the body of international law which deals with the
procedural and substantive rules governing the use of treaties as a source of
international law. These rules deal with entry into force, termination,
interpretation, reservations and the relationship of treaty law to custom.
Most of the code of treaty law is found in treaty form supported by custom.

What is a treaty?

A treaty is a legally binding agreement governed by international law and

made voluntarily between those international legal persons recognized as
having treaty making capacity. Parties must have intended to make rights or
duties binding under international law judged objectively.

Why is treaty the most important source of international law?

Treaty is the most important source of international law because:

1. the International Law Commission is continuing to codify customary

law into treaty , treaties bring on board international custom and
norms, which are widely accepted by the international community, and
put them into treaty form.
2.
3. Because of its own legal procedures(negotiations, bargaining,
exclusions, and accession). Negotiations on treaty terms take a long
time.
4. They are the only means by which states can consciously create
binding law and they are often used for that purpose
5. they are conscious and deliberate and voluntary efforts so they are
more likely to be respect. Treaties are entered by two equal
international legal persons and states bound themselves by the terms
of a treaty voluntarily, therefore the level of commitment of states to it
is expected to be high.
6. It provides the certainty and speed that the process of customary law
formation lacks.

What are the other non-treaty circumstances giving rise to legally

binding obligations (that are regarded as treaty)?

6
 1. Declarations of acceptance under the optional system made by
states under the statute of the ICJ
2. Unilateral statements of states: if it is the intention of the state was to
make those statements binding
3. Legal binding acts in national law: when states enter into relations
legally binding in national laws, such as contracts with other states,
companies or even individuals. In this case, the law of either state will
apply. However, if this legal obligation take effect in international law
(the rights and duties arising under these obligations are regulated in
accordance with international legal principles), the source of that
obligation (i.e. the national law) might be regarded as a treaty.

4. Acts giving rise to customary law: including statements and vote at the
UN General Assembly to adopt assembly resolution give rise to norms
or customary law

What is the scope of the Vienna convention on the law of treaties?

1. The Vienna Convention applies only to treaties between states (not

non-state actors or international organizations)
2. Treaties in written form (not oral treaties)
3. It only applies to states that have accepted its terms (states party to
the treaty)

What is the relationship between the Vienna convention and

customary law?

The Vienna convention both accelerated the development of new customary

law similar to the terms in the convention and have codified existing
customary law which means non-party states are governed by similar legal
obligations to it comes to application and interpretation of treaties as party
states:

- The Convention explicitly preserves the operation of customary law by

stating that there noting that prevents the application of rules set out
in the Convention to treaties outside the scope of the Convention if
such rules exist independently of the Convention, that is in customary
law

- Some parts of the Convention are actually codification of customary

law

7
 - Other parts of the Convention lead to progressive development of new
customary law

What is the authority to conclude treaties according to the Vienna

convention?

- It is a matter of the national law of each state to decide which

government official or entity is competent to enter into international
treaties on its behalf. This, however, only affects the validity of the
treaty in national law only (a state cannot invoke its national law as
grounds for non-consent or non-fulfillment of the treaty unless a state
challenged the validity of the treaty on grounds of non-competence of
their representatives)
- The competence of an individual or entity to act on behalf of states in
concluding treaties is governed by the doctrine of full power: a
formal document containing the authority given by a state to its
representatives to conclude treaties on its behalf

What are the criteria for a treaty to create legally binding

obligations for the state?

1. State consent (to be bound by the treaty):

The manner of consent is determined in the Vienna Convention and

includes signature, exchange of instrument constituting a treaty,
ratification, acceptance, approval or accession.

Ratification is the process by which a state confirms that it accepts to be

pound by a treaty it has previously signed.

States that did not participate in the negotiations leading to the treaty
express their consent to be bound by the treaty through accession.

2. Entry into force:

The date of entry into force of a treaty is either determined by the treaty
or by the negotiating states. If not specified by either case, the Vienna
Convention states that a treaty enters into force once consent to be
bound is established by all negotiating states

A state is legally obliged to refrain from acts that defeat the object and
purpose of the treaty between its consent to be bound and ratification or

8
 expressing that it does not wish be party of the treaty and also between
consent and entry into force provided that the latter is not delayed. (pre-
treaty obligations).

What is the scope of legal obligation of treaties?

The legal obligation of a state under a treaty is bound by the following:

1. The fundamental rule: Every treaty in force is binding to its parties

in good faith and must be performed by them in good faith
2. Reservations: reservations are unilateral statements made by a state
at the time it gives its consent to be bound by the treaty and which are
intended to modify or exclude an otherwise binding treaty obligations
3. Interpretations: the meaning and scope of the terms of the treaty
based on literal meaning, intentions of the parties, object and purpose
of the treaty or the principle of effectiveness.
4. Third state: If the parties to a treaty intend an obligation arising from
a treaty to be binding to a third state. It becomes binding only if the
third state expressly accepts that obligation in writing. If, however, the
intention is to confer a right on a third state, it is presumed that the
state have consented to accepting the right unless the contrary is
indicated. Dispositive treaties or treaties which create legal regimes
bound for the whole world (such as delimitation of boundaries treaties)
are binding to third states.

5. Inconsistent treaties: if all the parties to a treaty conclude a later

treaty dealing with the same subject matter, then the prior treaty is
considered terminated if this is the intention of the parties or if the
provisions of the earlier treaty ae so incompatible that it is impossible
to apply the two treaties at the same time.

6. Rules of Jus Cognes: a treaty is void if it conflicts with an existing

rule of juscongnes (a general principle of international law that no
derogation from is permitted). or an emerging one

What are the rules governing reservations made by a state to a

treaty?

9
Reservations are unilateral statements made by a state at the time it gives
its consent to be bound by a treaty or later which are meant to modify or
exclude an otherwise binding treaty obligation. The pre

1. A state can make reservations to multi-lateral treaties unless

prohibited by the treaty or the specific attempt is incompatible with the
purpose of the treaty. A reservation is considered contrary to the object
and purpose of the treaty if: it goes to the substance of the treaty, or it
goes to a question of jurisdiction.

2. A reservation expressly authorized by the treaty does not require the

acceptance of other parties (unless stipulated otherwise)

3. If it appears by the small number of negotiating parties and the

substance of the treaty that the treaty obligations are to be
acceptance in their entirety, then a state reservation must be accepted
by all parties (the state is then a party to the treaty on the terms of its
reservation) otherwise the state cannot be party to the treaty

4. If one states reservation is accepted by another, the treaty becomes

binding between them on the terms of the reservation made by the
reserving state. Objection on a states reservation by another state
does not prevent entry into force of the treaty between them, unless
expressly stated by the objecting state. If a state objects to the
reservation of another state, the treaty is then not binding between
them.

What are the various approaches to the interpretation of treaties?

Approach Counter argument

1. Literal or textual approach: The natural and plain
terms of the treaty are interpreted meaning of words in a treaty
according to their natural or plain can be understood only in the
meaning context in which they are
used and it is a mistake to
believe that any treaty
phrase has one true meaning

2. Intentions of parties: terms of the This assumes that all parties

treaty are interested according to had the same intention and
the intention of the parties at the that it is possible to divine

10
 time the treaty was adopted what it was

3. Object and purpose or

teleological approach: the terms
of the treaty are to be interpreted in
a way that facilitates the attainment
of the objectives of the treaty as
desired by the parties
4. The principle of effectiveness:
that the treaty should be interpreted
in a way that ensures maximum
effectiveness in achieving the object
and purpose of the treaty

When does a treaty become binding to a third state?

1. If the parties to a treaty intend an obligation arising from a treaty to be

binding to a third state. It becomes binding only if the third state
expressly accepts that obligation in writing. If, however, the intention is
to confer a right on a third state, it is presumed that the state have
consented to accepting the right unless the contrary is indicated.

2. Dispositive treaties: treaties which create legal regimes bound for the
whole world (such as delimitation of boundaries treaties)

When does a treaty become void? Terminated or suspended?

5. If a treaty is inconsistent with a later treaty, it is terminated: A

treaty is terminated if all the parties to a treaty conclude to a later
treaty dealing with the same subject matter then the treaty is
considered terminated if this is the intention of the parties or if the
provisions of the earlier treaty are so incompatible with the terms of
the later treaty that it is impossible to apply the two treaties at the
same time. (where the earlier treaty is not terminated, only the terms
which are compatible with the later treaty remain effective)

6. If it conflicts with principles that form the norm of

international law, jus cognes: a treaty is void if it conflicts an
existing rule of jus cognes or an emerging rule of the same quality

Invalidity:

11
 7. If there is problem in formation, the treaty becomes invalid

Termination/ suspension:

8. If its purpose and object is achieved, a treaty is terminated

9. It could be terminated by consent

10. A treaty could be terminated by other parties conduct(which

goes against the substance of the treaty) whether by material breach
or change of circumstances that prevent the state from applying the
treaty

11. Material breach: leads to termination of treaty among all parties

or only for the defaulting state, or suspended between the state
affected by breach and the defaulting state

12. Supervening impossibility: when there is a permanent

disappearance or destruction of an object indispensable for the
execution of the treaty

13. Fundamental change of circumstances: when the original

circumstances constituted an essential basis for the state consent to
be bound by the treaty

14. A state could initiate the termination as a countermeasure

against another state that breached the obligations of the treaty

What are the circumstances under which a state can invoke the
invalidity of a treaty?

A state can invoke invalidity of a treaty on the basis of:

1. Non-compliance with national law but these are rare cases

2. Fraud
3. Corruption of representatives
4. Coercion of representatives
5. If treaty is procured under the unlawful use or threat of force

12
Chapter 4: International Law and National
Law

What are the main theories explaining the relationship between

international law and national law?

The two main theories explaining the relationship between international law
and national law are: Monism and Dualism. There is a third theory claiming
Different Subject Matter:

Monism:
1. International law and national law operate in the same sphere of
influence
2. the monist theory supposes that international law and national law are
simply two components of a single body of knowledge called law
3. They are both concerned with the same subject matter
4. Conflict between both laws: because they operate concurrently over
the same subject matter, a conflict may arise between the two
(international law may require one result and the provision of national
law another) when conflict arises, international law prevails.
5. The superiority of international law because: a) it is the basic norm of
all law and from which all law gains its validity (states should behave
as they should have customarily behaved), b) it is often seen as the
best guarantee for human rights as states are seen as a collection of
individuals and not a legal entity in its own right, national law cannot
be trusted with human rights as it is often used to prosecute them, c)
both systems are part of a hierarchical legal order with natural law at
the top, followed by international law then national law.
6. In case of conflict, states have legal responsibility to conform their
national legislation with international law and if they do not, national
courts should give effect to international law and not to its own
domestic law.

Dualism:
1. International law and national law do not operate in the same sphere
2. The dualist theory supposes that there are dual legal systems
operating simultaneously in respect of the same rights and obligations
with international law regulates the relations between states whereas

13
 national law regulates the rights and obligations of individuals within
states.
3. They both deal with the same subject matter
4. The effect of dualism is that a government may be behaving perfectly
lawfully within its own territory even though its conduct my entail
international responsibility. In other words, international law cannot
invalidate national law and vice versa and the rights and obligations
arising under one system are not automatically transferred to the other
5. Both laws are superior within their own jurisdictions the decision on
which one to use depends on the subject matter (but usually
international courts apply international law and national courts apply
national law)

6. The rationale for the dualist theory is to prevent the executive from
being able to create law for its citizens without observing the domestic
constitutional requirements necessary for law creation

Different subject matter:

1. Denies that international law and national law operate in the same
sphere
2. Denies that they deal with the same subject matter
3. Accordingly, they never contradict each other as systems of law (it is a
theory of coordination)
4. If a conflict arises, national courts give effect to obligations under
national law and international courts give effect to obligations
international law unless a rule in either law says otherwise

Why is international law superior in the monism theory?

The superiority of international law because:

a) it is the basic norm of all law and from which all law gains its validity
(states should behave as they should have customarily behaved)
b) it is often seen as the best guarantee for human rights as states are seen
as a collection of individuals and not a legal entity in its own right,
national law cannot be trusted with human rights as it is often used to
prosecute them
c) both systems are part of a hierarchical legal order with natural law at the
top, followed by international law then national law.

14
How could national law be used in front of international courts and
tribunals?

National law could be an issue before international laws and tribunals as:

1. sources: the decisions of national courts and some national law

concepts maybe used as sources in international law to help determine
the content of international law as a way of explaining the precise
scope of a states rights and duties under international law.

2. National law and international obligations: a state cannot invoke

its national law as justification for violating international law, or for
failure to perform an international obligation, or as justification for
actions that violate international law. When binding international
obligations exist for a state, it must fulfill them irrespective of whether
its national law permits it to do so or not. If the national law prevents
the state from fulfilling its international law, the state is under
international obligation to change its national law.

3. Defining concepts for use in international law: national law may

be used to settle disputes between two states according to
international law by reference to concepts defined in the national law
of either party.

4. Evidence before international tribunals: national law maybe

evidence that a state have accepted the applicability of international
law in a given state of affairs, or evidence of state practice helping
decide whether a customary rule has developed. In order to prove the
precise content of national law, the international tribunal will hear from
local law experts. This is not an interference in the internal affairs of
the state because even if an international tribunal deemed a national
law to be invalid, it will still valid in the domestic context.

5. National law as a basis for a tribunals decision: an international

tribunal might be given the jurisdiction to decide a dispute on the basis
of national law. In this case, the tribunal will refer to decisions of
municipal courts of the country and will select the interpretation it
considers in most conformity with the law of that state.

What are the doctrines/theories for the use of international law in

national legal system?

15
 Incorporation: a rule of international law becomes part of national law
without the need for legislation or national courts to expressly adopt it.
Transformation: in order for international law to become part of the
national legal system, it has to be expressly adopted by the state.

16
Chapter 5: Personality, statehood and
recognition

What is personality or subject under international law?

A subject of international law is a body or entity that is capable of possessing and

exercising rights and duties under international law. These include:

1. State
2. other territorial entities
3. international organizations
4. individuals
5. corporations
6. Other entities: governments in exile, insurgent communities (Kurdish
nationalists), representative organizations (PLO), historical bodies (holy sea).

What are the main capacities of the subject of international law (a legal
person)?

1. The ability to make claims before international (and national) tribunals in

order to prove rights given by international law
2. To be subject to some or all of the obligations imposed by international law
3. To have the power (authority) to make valid international agreements
(treaties) binding in international law
4. To enjoy some or all of the immunities from the jurisdiction of the national
courts of other states

Subjects of international law that have all of those capacities are states and
international organizations. Other subjects may have some or all of the capacities in
varying degrees and for particularly purposes.

How is international personality achieved?

There are two types of personalities of international law based on the way they are
achieved:

1. Original personality: this belong to states ipso facto (exists whether we

recognize them or not) once they satisfy the criteria of state
2. Derived personality: subjects of international law other than states. These
subjects achieve their personality because it has been conferred, accepted or

17
 recognized by states that they may have some competence in the field of
international law.

How is derived personality achieved?

1. Territorial entities other than states: there are artificial territorial

entitiescreated either by international treaty such as Berlin between 1946
and 1990, autonomous administration territories where the territory is
administered jointly between two or more states such as Northern Cyprusand
territories per se that are governed by another states (such as protectorates
and mandates)

2. International organizations:such as the enjoy international personality to

the degree that will allow them to achieve their purposes

3. Individuals:individuals become international personalities when they have

personal obligations in international law separate from the state which they
are representing such as war crimes and crimes against humanity
(international criminal law). In addition, individuals become international
personalities in the form of rights, that is human rights.

4. Corporations:when states enter with corporations into commercial legal

relations governed by international law in cases such as oil extraction or if the
agreed dispute settlement mechanism states that.

How do states achieve statehood (international personality)? What are the

criteria /qualifications for statehood?

There are four criteria/ qualifications for statehood:

1. Permanent population: population linked to a specific piece of territory on

a more or less permanent basis that can be regarded as its inhabitants.

2. Defined territory: a state must have some definite physical existence that
marks it out clearly from its neighbors

3. Government: a practical identity primarily responsible for the international

rights and duties of the state. The government must have authority and must
be effective within the defined territory and exercise control over the
permanent population.

4. Capacity to enter into relations with other states: the territory must
have legal independence in order to be regarded as state (it must not be

18
 under the direct or indirect control of another state). In this case, states have
the legal capacity to enter relations with other states on their own behalf as a
matter of right

What is state recognition?

When a new state is created or a new form of government comes to power in an

existing state, other states recognize formally the existence of that state or
governmentde jure (as a right since the state met the criteria for statehood) or de
facto (as a fact because of the state or governments effective existence). A state
recognizes another state either by formal recognition such as formal
pronouncement or statement or an official letter to the newly recognized entity or
by implied recognition such as opening diplomatic missions or voting in favor of the
admission of the new state to the UN.

What are the theories on the effects of recognition on the legal status of
the recognized body?

1. Declaratory Theory:according to this theory, the international legal

personality of a state does not depend on other states recognition of the legal
personality of that state. The act of recognition is nothing more than an
acknowledgement (declaratory) of pre-existing legal capacity.

As such, the legal effects of the recognition are limited: 1) the act of recognition
is not decisive of the new entitys claim to statehood because that status is
conferred by operation of international law and 2) the state or government is
still entitled to the rights and subjects to the duties in international law whether
or not it is recognized by other states

2. Constitutive Theory: the act of recognition is a necessary precondition to the

existence of the capacities of statehood or government and to the international
personality status and thus international rights and obligations. Under this
theory, recognition constitutes statehood and does not emerge as a
consequence of statehood.

19
Chapter 6: Jurisdiction and Sovereignty

What is the general principle of state jurisdiction?

The general principle in state jurisdiction is that it is absolute: it is only

limited by positive limitation (a specific rule in international law that states
the contrary)

A state may not exercise its power (jurisdiction, authority) in any form
in the territory of another state

A state may exercise its jurisdiction in its own territory in respect of

any acts that took place abroad

States may extend their legislative jurisdiction to persons, property

and events taking place outside their territory (prescriptive jurisdiction)

What is the scope/types of state jurisdiction?

1. Jurisdiction to prescribe:it is the power of a state to assert/claim the

applicability of its national law to any person, property, territory or event,
wherever they may be situated or wherever they may occur. This
jurisdiction is limited by: international obligations that the state accepts
that limit this power, and by the jurisdiction to enforce.

2. Jurisdiction to enforce:the enforcement of the jurisdiction that the state

prescribes (or the actual exercise of that jurisdiction by operation of police
force or national courts) only takes place within its territory. A state
cannot enforce its prescriptive jurisdiction in the territory of another state
unless there is an actual agreement that stipulates otherwise.

The jurisdiction of the state within its territory (territorial jurisdiction) is

absolute and complete, this means:

1. the state has power over all persons, property and events occurring
within its territory.
2. No other power, including the United Nations may exercise and
enforcement jurisdiction in state territory

20
 3. Matters arising within the domestic jurisdiction cannot form the subject
matter of international claims, save in exceptional cases (such as when
a state violates human rights in it territory)
4. the nature of territorial jurisdiction can be modified either by general
principles of international law or by specific obligations freely taken by
the territorial sovereign (such diplomatic immunities, right of transit
passage in territorial water, military bases for foreign states)

What is the scope of territorial jurisdiction?

The jurisdiction of the state within its territory (territorial jurisdiction) is

absolute and complete, this means:

1. the state has power over all persons, property and events occurring
within its territory.
2. No other power, including the United Nations may exercise and
enforcement jurisdiction in state territory
3. Matters arising within the domestic jurisdiction cannot form the subject
matter of international claims, save in exceptional cases (such as when
a state violates human rights in it territory)
4. the nature of territorial jurisdiction can be modified either by general
principles of international law or by specific obligations freely taken by
the territorial sovereign (such diplomatic immunities, right of transit
passage in territorial water, military bases for foreign states)

What are the principles of state enforcement jurisdiction over

persons? OR when does a state have jurisdiction over persons?

1. Territorial jurisdiction: when any matter arises within the state

territory, the state has jurisdiction whether the individuals concerned are
nationals, friendly aliens or enemy aliens. The approaches to interpreting
territorial jurisdiction are: 1)objective jurisdiction: when the offences
are completed in its territory but some elements constituting the offence
took place abroad (objective jurisdiction), 2)subjective jurisdiction:
when the offenses commence in its territory even if some elements or the
completion of the offence takes place elsewhere (such as commercial
fraud of multinational corporations or computer hacking), and 3)extra-
territorial jurisdiction: when acts taking place abroad are offences in
local jurisdiction, in which case individuals concerned may be made
subject to local courts (such as terrorism acts) but this is an usual
jurisdiction

21
2. Nationality jurisdiction: a state may exercise jurisdiction over its
nationals wherever they may be when the offence took place. A national
is also entitled to the diplomatic protection of their state and at the same
time are subject to its civil and criminal jurisdiction. The jurisdiction will
not be exercised until the individual physically comes within the territory
of their state (unless the matter is dealt with by the state in whose
territory the event occurred although nationality jurisdiction has become a
recognized legal right for the state).

3. Universal jurisdiction: when the crime is regarded as so destructive of

the international order and are considered crimes under international law
that any state may exercise jurisdiction in respect of it irrespective of
where the act constituting the crime takes place and the national of the
person committing it (such as piracy, violations of human rights such as
genocide, torture, war crimes, crimes against humanity)

4. Protective jurisdiction: a state may assert its authority and operate its
national law over acts that produce damaging effects on that particular
state irrespective of where those acts took place or who committed them.

5. Passive personality jurisdiction: a state would have jurisdiction over

all crimes where the victim was a national irrespective of the place where
the crime was committed or the nationality of the offender.

What are the approaches to state territorial jurisdiction over

individuals?

A state may claim territorial jurisdiction for all matters arising within its
territory. The approaches to interpreting territorial jurisdiction are:

1. Objective jurisdiction: when the offences are completed in its territory

but some elements constituting the offence took place abroad (objective
jurisdiction)

2. Subjective jurisdiction: when the offenses commence in its territory

even if some elements or the completion of the offence takes place
elsewhere (such as commercial fraud of multinational corporations or
computer hacking

22
3. Extra-territorial jurisdiction: when acts taking place abroad are
offences in local jurisdiction, in which case individuals concerned may be
made subject to local courts (such as terrorism acts) but this is an usual
jurisdiction

What are the issues/criticism arising from passive personality

jurisdiction?

There are two issues that arise from the claim to passive personality
jurisdiction:

1. The occasions to exercise this jurisdiction would be limited as the great

majority of criminal matters will necessarily fall within the jurisdiction
of at least one other state under the other principles of jurisdiction.
Accordingly, to decline passive personality jurisdiction would not
produce a significant gap in the international law enforcement.
2. The practical effect of this jurisdiction is that a national carries the
protection of his national law which is an unnecessary extension of
state jurisdiction and could cause practical problems such as if the act
committed is a crime in the passive personalitys home state but is not
a crime in the state where it took place or in the home state of the
perpetrator.

What are the means of acquisition of sovereignty over territory?

1. The exercise of effective control occupation and prescription:

through effective occupation: when the exercise of authority takes
place in a territory that does not belong to any other state, or
prescription: when the exercise of authority takes place in a territory
that formally belongs to another state. The control over territory is
considered effective if there is:1) apparent display of sovereignty, 2)
the intention to acquire sovereignty, 3) continuous display, 4) peaceful
display, and 5) the control took place before 1945.

2. Discovery: discovery of previously uninhibited territories followed up

by acts of effective occupation including: 1) apparent display of
sovereignty, 2) the intention to acquire sovereignty, 3) continuous
display, 4) peaceful display, and 5) the control took place before 1945
within a reasonable period of time leads to title to territory maturing
into full sovereignty.

23
3. Cession and treaty: when one state cedes (gives up) a piece of
territory to another by treaty. The state seizing the territory must be
the legitimate sovereign of that territory in order for the acquiring state
to gain title to territory.

4. Use of force- conquest: a title acquired by force prior to 1945

cannot now be challenged except in cases of self-determination.

5. Accretion and avulsion: accretion is the extension of sovereignty

over new territory by reason of a gradual increase in a states land
mass through geographical means such as deposit in river deltas or
land reclamation such as an increase in territorial waters. Avulsion is
a more dramatic increase in state territory such as the creation of new
islands in existing territorial waters as a result of volcanic activity. In
both cases, title to the new territory arises by reason of its relation to
territory over which the claimant state already enjoys sovereignty.

6. Judicial decisions: judicial decisions to settle disputes on title of

territory is one way of crystallizing a title that has been in doubt.

7. territorial acquisition principles: These include the continuity

principle where a state is entitled to sovereignty over the land adjacent
to and extending from an area of territory already under its control,
and contiguity principle where a state may claim title to territory not
forming part of its land mass such as islands by virtue of being the
nearest sovereign state. Also, these principles include the principle
that the frontier of newly independent states are to follow the frontier
of the old colonial territories from which they emerged and they can
only be altered by a treaty.

8. Self-determination: the principle of self-determination started as a

political philosophy and was codified into a legal right for colonial
territories in 1960. Today, it is a well-established principle of customary
international law and may well be a rule of jus cognes. The principle is
concerned with which people are entitled to exercise sovereignty
over a piece of territory. In cases of self-determination, the territory
either becomes an independent separate state, affiliated to another
state by a federal system or by simply being added to the territory of
that state. This right is available as an exception to the people of a

24
 territory that is part of a state provided that they can achieve the
prerequisites for statehood identified in international law. Ethnic groups
seeking autonomy in their states may enjoy a second level of self-
determination in that their culture, social organization and religious
preferences are respected by the state which they are part of.

What are the conditions/requirements for effective control over

territory?

1. Apparent display of sovereignty: the state claiming the title must

have exercised the powers of a state within the territory such as by
setting up effective local administration, control and protection of the
population, and establishing a system of national law.

2. The intention to acquire sovereignty: where extensive display of

authority is not possible, the state must make clear its sovereign
intentions by other means such as the publication of notices of
sovereignty in various journals, the declared application of national
law, and environmental protection and navigation like provision of
lighthouses.

3. Continuous display: the display of sovereignty must be ongoing up

to the critical date; the date at which the question of sovereignty is to
be assessed.

4. Peaceful display: the display of authority must not be challenged by

other states and it must proceed in uninterrupted fashion. In the case
of prescription, the ousted state must refer the matter to a judicial
tribunal within a reasonable period of time or object through diplomatic
protests, statements in international organizations, or the enactment of
national legislation applying to the territory; otherwise the exercise of
power by another state cannot be subsequently challenged.

5. The control took place before 1945: the acquisition of territory

became illegal in 1945. Accordingly, title to territory acquired by
conquest prior to 1945 is not open to challenge even though it is illegal
under the current international law (intertemporal law).

25
When can a state have rights and/or jurisdiction in the territory of
another state?

There are cases when a state grants limited rights to another state over its
territory by treaty or by way of customary law. These rights include the right
of passage in the states territorial waters, fishing rights, and right to
establish military basis. The case of military basis also includes granting of
limited jurisdiction.

What are the areas outside the jurisdiction of any state? How is the
use of these territories regulated?

1. Outer space: states enjoy exclusive jurisdiction over the airspace

immediately above its territory and territorial sea. However, state
sovereignty does not extend upwards infinitely and that sovereignty
ceases where outer space begins, which is between 150 and 200 miles
up from Earth. International treaties were developed to establish that
the outer space and celestial bodies are not open to acquisition by any
state and states cannot claim sovereignty over them.Also, these
treaties stipulate that no weapons of mass destruction and are to be
used for peaceful purposes only.

2. The Antarctic: because the area is rich in natural and mineral

resources, it is subject to claims of sovereignty by seven states. These
states signed an agreement and meet regularly to discuss the issue
and come up with recommendations.

3. The arctic: the arctic area is subject to the same legal regime as the
high seas, meaning it is only to be used for the common good of
mankind, it is not to be used for nuclear weapon testing and
excavation of natural resources is regulated by an international body.

26
Chapter 7: Immunities from National
Jurisdiction
What does the principle of state immunity entail?/ What is state
immunity?

The principle of state (or sovereign) immunity is a rule in international law

that a foreign sovereign state is entitled to certain immunities from the
jurisdiction of the host state. A violation of any of those immunities by the
host state gives rise to international responsibility. These immunities include
the rights and privileges accorded to a state, its government,
representatives, property and communication within a national legal system;
namely from the jurisdiction of the courts and from enforcement of court
orders.

What is the difference between immunity and non-justiciability?

- Immunity is in issues that are justiciable in the national courts of host

states but that the foreign state has rights and privileges accorded
within the national legal system of the host state; namely from the
jurisdiction of the courts and from enforcement of court orders.
Immunity is operationalized based on the identity of the litigant.

- Non-justiciability is concerned with the subject matter and it is on

matters that are not within the national court jurisdiction. These issues
can be:

1. Issues that can only be raised in the courts of the concerned states
such as the validity of constitutional or legislative acts of a state.
2. Issues that do not raise questions of national law at all such as the
validity of treaties
3. Actions of states within their own territory (especially with regard to
their own nationals) or actions of states in the conduct of their own
foreign affairs

What is the rationale of state immunity? What is the basis for

immunity? Why is immunity given to sates?

There are five views on the rationale behind/ basis of state immunity:

1. Under international law, states are legal equals no state has authority
over another state which means states has immunities from the

27
 jurisdiction of other states. The sovereign equality of states may even
be a rule of jus cognes. In other words, it is legally impossible for one
sovereign power to exercise authority by means of its legal system
over another sovereign power.
2. Even though each state has absolute territorial sovereignty, that state
waives that right and forgoes its absolute right voluntarily as a
privilege for the other state that acts within its territory. The reason is
that without such privilege, no foreign state would be willing to
conduct trade with the nationals of any other state.

3. National courts should not look into matters of policy issues where a
foreign state is concerned

4. The judgment of a national court cannot be enforced against a foreign

state even if the concerned state had no immunity from the jurisdiction
of the host state. In other words, there is very little chance that the
foreign state will respect the decision of national courts of another
state. Accordingly, immunity is only a reflection of the practical
difficulty involved in enforcing court orders against foreign states.

5. The grant of immunity between states is said to result from a desire to

foster international cooperation and avoid unnecessary disputes
between states to protect foreign states from the varying national legal
systems.

What is the difference between Absolute Immunity and Restrictive

Immunity?

- Absolute Immunity means that whenever a foreign state was

prosecuted or sued before a national court, it is able to claim immunity
from the exercise of jurisdiction because of its status as a foreign
sovereign state regardless of the subject matter.

- Restrictive Immunity means the state has immunity from the

jurisdiction of a local court only in respect of acts of sovereign nature.
As for state acts of commercial nature, the state does not have
immunity and is treated as a normal litigant. This type of immunity
achieves a compromise between the desire to ensure that the state as
a foreign sovereign is protected from the exercise and enforcement of
jurisdiction of national courts and to provide a forum for settling
disputes about national law that involved states.

28
What are the grounds/basis used to distinguish between state
commercial acts and sovereign acts? What is the criticism of each?

The grounds used to distinguish between sovereign acts and commercial

acts are as follows:

1. Purpose of the act:the purpose of the act determines whether the

state is granted immunity or not. If the purpose is of sovereign
capacity to achieve an act of sovereignty or in other words if it is for
public use of the government of a state then there is immunity.
Otherwise, the state is considered to be acting in its private capacity.
For example, if the state is purchasing cement to build army units, then
this falls under immune acts. If, however, the state is purchasing
cement to build offices, it is considered a commercial or private act.
The criticism for this approach is that all acts of a sovereign can be
said to have a public purpose.

2. Nature of the act: if the act is in its nature a commercial transaction,

then it does not establish immunity. If the act in its nature is a
sovereign matter, then immunity is granted. For example, the supply of
cement is a commercial act whereas the supply of currency is a
sovereign act. The criticism for this approach is that some commercial
acts can only be done by states such as battleship. Also, this test does
not protect states seeking to boost its economy through normal
commercial contracts.

3. Subject matter: states acts are classified to sovereign and

commercial acts based on the subject matter regardless of their
purpose or the manner in which they were concluded. It is not left to
the court to decide on the nature or purpose of the act. For example,
administrative acts, legislative acts, economic acts and military acts all
fall under sovereign acts. The criticism of this test is that it does not
take into consideration the particularities of each case and it could
result in arbitrary or discriminatory choices.

4. The two-stage test: contextual approach: this test involves

looking into the initial act that represents the transaction between the
two parties to the dispute in terms of nature then looking into the act
that gave rise to the dispute or the context in which the initial act
operated. If both acts are private law acts, then the act is determined
as private.

29
What are the types of state immunities?

1. Immunity for state government in acts of sovereign nature

2. Immunity for the head of state: to protect the person, property and
dignity of the head of state. Ex-heads of states also have continuing
immunity with respect to acts done while they were in office in their
official capacity. Private acts done while in office lose immunity once
the head of state ceases to be head of state and are under the
jurisdiction of national courts.
3. Immunities relating to persons: diplomatic and consular
immunities are designed to enable the state personnel to carry out
their functions in representing their states effectively. This includes
privileges for the individuals under the legal system of the receiving
state except for matters of private real property and obligations for the
receiving state to protect those individuals and their property. There
are also immunities for private or personal matters to ensure diplomats
are not under any pressure by the receiving state. Persons that enjoy
those immunities are the head of the mission, members of the
diplomatic staff, members of the administrative and technical staff,
members of the service and private servants. The most extensive
immunities are accorded to head of mission and diplomatic staff with a
descending scale for the other staff categories whose immunity from
civil jurisdiction extends only to matters arising from their official
functions. In some cases, families of staff get the same immunities as
the head of mission. As for staff that are nationals of the receiving
country, they only get immunity with regards to matters arising from
their official functions.
4. Immunities relating to property: the premises of the mission are
inviolable and agents of the receiving state may not enter them
without the consent of the head of mission. These include the embassy
building, surrounding land, residence of the head of mission, residence
of diplomatic staff, means of transportation of the mission and
correspondence. These are all immune from search and seizure and
the receiving state has a duty to protect this property. Correspondence
and papers of diplomatic staff are immune unless they are related to
matters for which the diplomatic staff is subject to civil jurisdiction.

5. Immunities relating to freedom of communication and

correspondence: the receiving state is under obligation to permit and
protect the mobility of diplomatic staff except in zones prohibited for
national security reasons. The receiving state is also required to permit

30
 and protect free communication for official purposes with the home
state. The correspondence to the mission is also inviolable and the
diplomatic bag must not be opened or detained.

What are the implications of the abuse of immunities?

1. It is the duty of all persons enjoying immunities to respect the laws of

the receiving states
2. The premises of the mission may not be used for purposes
incompatible with its functions
3. Members of the mission are under a duty not to interfere in the
international affairs of the receiving state
4. Abuse of privileges does not entail loss of those privileges
5. The receiving state may declare a diplomat persona non grata

31
Chapter 8: The Law of the Sea

What are the sources of the law of the sea I international law?

The current body of international law governing the law of the sea is a
mixture of customary law and treaty law both bilateral and multilateral. The
key sources of the law of the sea are:

1. The 1958 Geneva conventions: The Territorial Sea and Contiguous Zone,
The Continental Shelf, The High Seas, The Fishing and Conversation of
Living Resources of the High Seas

2. The 1982 Convention on the Law of the Sea and the 1994 Agreement on
the Deep Sea Bed

3. Customary law, bilateral treaties and other multilateral treaties

What is the relation between the 1982 law of the sea treaty and the
1958 Geneva conventions?

Many of the articles are repeated verbatim (in the exact same words) or with
minor modifications

- However, there is overlap between the treaty regimes.

- Accordingly, the relations of states that are parties to both is governed by

the 1982 Convention

- If both are parties to the 1958 conventions but only one is party to the
1982 convention, their relation is governed by the 1958 conventions (for
example, the US is member to the 1958 Conventions but they are not as
comprehensive as the 1982 Convention)

- If a state is not party to any of the conventions, its relations with every
other state is governed by customary law

What is the relation between 1958 conventions and 1982 law of the
sea treaty on one hand and the customary law of the sea on the
other?

32
 1. The 1958 conventions and the 1982 convention have contributed to
the development of customary law

2. Many of the provisions are simply codified customary law existing at

the time they were drafted

3. If the rules do not exist in any of the conventions or were not

developed as customary rules by the conventions, they are binding to
states as with the case of all other customary rules

4. Other specific bilateral and multilateral treaties: these both regulate

relations among states on specific matters and may contribute to
development of international customary law when applicable

What are the territorial water areas and high sea areas for each
coastal state?

1. The Territorial Sea and Contiguous Zone

2. The Exclusive Economic Zone
3. The Continental Shelf
4. The Deep Sea Bed
5. The High Seas

What are coastal state rights in the territorial sea?

In the territorial sea, the state has territorial rights (sovereign rights) and not
just functional rights. These rights include:

- Delimitation: territorial sea length is not exceeding 12 nautical miles in

width (22.2 km)

- For adjacent or opposite states: the length is halfway between the

coasts and up to 12 nautical miles each, unless historictitle, geographic
or other factors apply

- Sovereignty over airspace

- Sovereignty over subsoil

- Full legislation jurisdiction similar to land territory (with limitations on

exercise related to rights of other states)

- Warships and other government ships have sovereign immunity in the

territorial sea

33
What are coastal state obligations (other state rights) in the
territorial sea?

- Under 1958 Geneva convention: states must grant all foreign ships the
right of innocent passage (a suspendable right)

- Under the 1982 law of the sea, states must grant foreign ships the
right of passage (which is non-suspendable)

- The state may not exercise criminal jurisdiction over foreign vessels in
territorial sea (with exceptions)

- The state should not stop or divert foreign ships for purposes of
exercising civil jurisdiction

What is Innocent Passage in the territorial sea?

Passage: progress towards territorial sea amounts as passage if it is

for the purpose of travelling across the sea or entering internal waters
and includes anchorage when necessary for normal navigation

Innocent: refers to the manner of passage rather than intent or

purpose, a passage is innocent so long as it is not prejudicial to the
peace, good order or security of the coastal state

Acts prejudicial to peace, good order and security: fishing

activities, any acts aimed at collecting information in relation to the
security or defense of the coastal state, the carrying out of research or
survey activities, and any other activity not having a direct bearing on
passage

What is the contiguous zone?

A zone of waters beyond the outer edge of the territorial sea contiguous to
(sharing common borders with) coast and territorial water and measured
from the baseline of the territorial water

- Delimitation: Maximum of 12 miles from baseline of territorial sea (in the

1958 Convention) and a maximum of 24 miles from baseline of territorial
sea (in the 1982 Convention)

What are the coastal state rights in the contiguous zone?

State rights in the contiguous zone are jurisdictional rights (functional rights)
for limited purposes and not sovereign rights. They include:

34
- Delimitation: Maximum of 12 miles from baseline of territorial sea (in the
1958 Convention) and a maximum of 24 miles from baseline of territorial
sea (in the 1982 Convention)

- Custom, fiscal, immigration, sanitary purposes (in the 1958 Convention)

- Enforcement rights against foreign registered ships (in the 1958

Convention)

35
What is the Exclusive Economic Zone (EEZ)?

The EEZ is a belt of sea, adjacent to the coast, extending up to 200 miles
from the baseline of the territorial sea (it is 188 miles in width)

- Delimitation: the EEZ extends up to 200 miles from the baseline of the
territorial sea for adjacent or opposite states: determined case by case
in a way that achieves an equitable solution or the great good in line
with international law

What are the coastal state rights in the EEZ?

State rights in the EEZ are sovereign rights but not sovereignty: state has
exclusivity but not control and ownership (in other words, many of the
freedoms of the high sea for all states reserved). The right is also not
inherent in statehood (it must be claimed). These rights include:

- Exploring and exploiting living and non-living natural resources

- Establishing artificial islands

- Conducting research

- Utilizing the super-adjacent waters

- Other states lose the freedom to fish (since state has sovereign rights)

- State can arrest foreign vessels violating its exclusive rights to the
natural resources

- Other states shall have due regard to the coastal states rights and
duties and shall comply with the states laws and regulations

- Delimitation: the EEZ extends up to 200 miles from the baseline of the
territorial sea for adjacent or opposite states: determined case by case
in a way that achieves an equitable solution or the great good in line
with international law

What are coastal state obligations (other state rights) in the

territorial sea?

The coastal state:

36
 - cannot interfere in commercial activities of other states (e.g. by
enforcing customs)

- must conserve natural living resources of the EEZ

- must determine the allowable catch: If the state cannot harvest the
predetermined allowable catch, it shall give other states access to the
living resources up to the limit of the allowable catch

- cannot interfere in other states right to navigation, overflight, lying of

submarine cables (communication cables) and conducting military
manoeuvers (as long as they do not interfere with the coastal state
right of exploration and exploitation)

What is the continental shelf?

A relatively shallow plateau of land (highland) adjacent to the coast but

outside the territorial sea, followed by a steep slope (a surface falling
sharply) going to near the ocean floor and then a gradual incline going to the
ocean itself

- Delimitation: The inner edge of the shelf is the outer edge of the territorial
sea. Its length is up to 200 nautical miles (370.4 km) from the baseline of
the territorial sea (or beyond). For adjacent or opposite states: shelf is
divided on basis of natural prolongation in order to achieve an equitable
result

What are the coastal state rights in the continental shelf?

The state has sovereign rights (exclusivity but not sovereignty) and waters
above the shelf retain their status as high seas(unless the EEZ regime is
operated). The right to a continental shelf is inherent in statehood (does not
have to be claimed or recognized by other states). These rights include:

- Exploring and exploiting natural non-living and sedentary resources of the

area (oil, gas, living resources that are immobile or living on or in the sea
floor: crab, sponges, oysters, lobsters, coral)

- Other states need permission to explore and exploit the resources of the
area

- Delimitation: The inner edge of the shelf is the outer edge of the territorial
sea. Its length is up to 200 nautical miles (370.4 km) from the baseline of
the territorial sea (or beyond). For adjacent or opposite states: shelf is

37
 divided on basis of natural prolongation in order to achieve an equitable
result

What are the advantages and disadvantages of the single maritime

zone delimitation rule?

Advantages:

It minimizes future jurisdictional conflicts by providing a single

maritime boundary that is easily and clearly located

It minimizes the possibility of conflict over the exercise of different

substantive rights that exist in territorial sea, EEZ and continental shelf
zones

Issues/ disadvantages:

Lack of consistency of a single maritime boundary in relation to the

separate and different legal regimes of territorial sea, EEZ and
continental shelf rights

Rules governing each regime (median line for territorial sea, equity
principle for EEZ and the shelf) should not be discarded in favor of a
general rule unless the facts in the specific case justify this as a matter
of international law

What is the deep sea bed?

The bottom of the sea outside the territorial water (in the high sea) starting
at the outer edge of the juridical continental shelf used for exploration of
mineral resources (oil, manganese, cobalt and copper)

What are the changes in the deep sea bed regime between the 1958
Convention and the 1982 Convention? / What are the objections of
industrial states to the 1982 deep sea bed regime?

In the 1958 convention

The sea and ocean floor were not open to acquisition by any state

38
 Doctrine of the freedom of the sea: any state is permitted to take
whatever resources it is capable of harvesting so long as it did not
interfere unduly with the legitimate uses of the sea by other states

Current regime (1982 Convention & 1994 Agreement amending the

deep sea bed regime)

Deep sea bed is not susceptible to the sovereignty of any state

Principle of common heritage: the sea bed is the common heritage

of mankind, it is to be used for peaceful purposes only and for the
benefit of mankind as a whole, it is not open to the acquisition or
sovereignty of any state, mining activities in the sea bed are governed
by the International Sea-Bed Authority

Concerns of industrialized states:: the International Authority does not

have weight to enforce regulations, industrialized nations did not have a
weight in the decision making process, the mining schemes were
commercially unfair and unviable

What are the high seas?

All parts of the sea except internal waters, the territorial sea, the EEZ and
archipelagic waters of an archipelagic state

39
What are state rights in the high seas?

All states have the following rights:

- Freedom to navigation and overflight

- Freedom to fish

- Freedom to lay submarine cables and pipelines

- Freedom to construct artificial islands

- Flag states have criminal and civil jurisdiction in respect of their

national ships

- Flag states have Jurisdiction over other ships in exceptional cases

including: piracy, hot pursuit from territorial sea or contiguous zone,
certain pollution matters, as a residual right in cases of collisions on the
high seas, under the right of visit of ships of unknown nationality (to
counter piracy, slave trade, unauthorized broadcasting,)

What is the scope of the right of passage in straits?

State right to transit passage through straits was defined in the 1982
Convention. Before that, states had a non-suspendable right to innocent
passage. The scope of the transit passage right is as follows:

It applies only to those straits which pass through the territorial sea

It encompasses: freedom of navigation and overflight

It is only binding for states that are parties to the 1982 Convention. It
did not develop to customary law (non-party states have non-
suspendable innocent passage right)

The scope to the right of transit passage excludes:

Straits where the waters are high seas or EEZ

Straits in territorial sea formed by a coast and an Island (where there is

another route round the Island in the high sea or EEZ territory)

Straits that are already governed by long-standing international

conventions in force

40
41
What are archipelagos?

A group of islands (including parts of islands, interconnecting waters and

other natural features) which are so closely interrelated that they form an
intrinsic geographical, economic and political entity, or which historically
have been regarded as such 1982 Law of the Sea Convention

Delimitation

States may use straight baselines to join the outer islands to enclose
its territory.

These baselines will be the baselines from which the territorial sea is
measured.

Archipelagic waters: waters inside the baselines

What are state rights in Archipelagos?

State has full sovereignty over archipelagic waters

The 1958 Convention stipulates that other states have the right of
innocent passage through archipelagic waters

State has the right to suspend the right of innocent passage in order to
avert a threat to security

The 1982 Convention stipulates that other states have an archipelagic

sea lane passage, similar to transit passage, in respect of routes
normally used for international navigation and overflight and this right
is non-suspendable

What is the definition of Islands?

An Island is a naturally formed area of land which is above water at high tide.
Rocks which cannot sustain human habitation or economic life of their own
are not covered in the definition and shall have no economic zone or
continental shelf

Delimitation

Islands may have a territorial sea of their own

They may cause a seaward extension of the main territorial sea (if they
are close to the coast of a state)

42
 May be used as points from which to draw straight baselines (is the
coast is indented)

Significant effect on the delimitation of continental shelf between

opposite or adjacent states

What is the definition of Bays?

A Bay is a large indentation (more than a mere deviation from the coast line)
along a states sea coast

Delimitation:

There are two cases for delimitation of territorial water in relation to the bay:

If a bay can be enclosed by a baseline (for the territorial sea) across its
mouth, this means the bay is considered internal waters for the coastal
state and an extension to its territorial water. In this case, the territorial
water starts from the bay closing line. (this is currently the customary
international law)

If the starting point for measurement of the territorial sea is around the
coast of the bay, both areas for internal waters and territorial water is
reduced.

What are state jurisdiction and obligations when it comes to

protection of marine environment?

Jurisdictions

Flag state: legislates for and enforces pollution control measures

against ships of their nationality

Coastal state: pollution control and management

Obligations

Prevent serious harm, pollution from ships, dumping of radioactive

waste, pollution of the sea by oil, oil spillages

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44