Administrative Law Book

Administrative Law Handbook (By Ojijo)

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Administrative Law HandbookLocal Government Law, Municipal Law, Public International Law,

Human Rights Law, Constitutional Law, Judicial ReviewFIRST EDITION, 2012

ISBN: 978-9966-123-61-9

Copyright © 2010, Ojijo. All rights reserved. This work is copyrighted by the author.No parts of this publication maybe reproduced, stored in a retrieval system, or

transmitted in any form, without permission of the publisher.

Other Training Manuals

(ISBN 978-9966-123-50-3) Business Transactions & Contracts Law Handbook(ISBN 978-9966-123-51-0) Family Law Handbook(ISBN 978-9966-123-52-7) Intellectual Property Law Handbook(ISBN 978-9966-123-56-5) Alternative Dispute Resolution Law Handbook(ISBN 978-9966-123-57-2) Real Estate Law Handbook(ISBN 978-9966-123-58-9) Civil Litigation Law Handbook(ISBN 978-9966-123-59-6) Energy Law Handbook(ISBN 978-9966-123-60-2) Labour Relations Law Handbook(ISBN 978-9966-123-61-9) Administrative Law Handbook(ISBN 978-9966-123-62-6) Environmental Law Handbook(ISBN 978-9966-123-63-3) Criminal Litigation Law Handbook(ISBN 978-9966-123-21-3) Ojijo’s Financial Services Law(ISBN 978-9966-123-25-1) Rich Lawyers, Poor Lawyers - Law Firm Management Handbook(ISBN 978-9966-123-22-0) Luo Jurisprudence-Theories, Institutions and Procedures of Law and Justice (Introduction to Law & Jurisprudence)(ISBN 978-9966-123-48-0) Legal Rhetoric- A Guide to Legal Writing,Legal Arguments & Legal Interpretation(ISBN 978-9966-123-00-8) Policy & Legal Issues In E-Commerce & E-Governance (ICT Law)

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OJIJO’S 49 BOOKS

FINANCIAL LITERACY BOOKS1. Sell Something-5 Steps to Entrepreneurship (Bible for Entrepreneurs,

Entrepreneurship Trainers, and Business Coaches)2. Successful Saccos - Managers' Guide to Acquire, Retain and Grow Membership,

Savings and Assets3. Making Money Together: Ojijo’s Investment Club Manual4. Making My Child Financially Intelligent: Money Lessons by Age Group (from 3-

13yrs)5. Invest: Ojijo’s Guide to Financial Instruments & Alternative Investment

Products6. Retire Happy: 21 Questions to Plan My Retirement7. 69 Ways to Make Extra Money While Keeping My Day Job8. What Can I Sell? 101 Business Ideas for Youth in Africa 9. Double Your Money- From 100 shillings to 100 million in 100 days

PERSONAL BRANDING BOOKS10. Stupid Writers: Ojijo’s Guide to Writing Articles, Reports, Plans,

Profiles & Proposals11. Talanta: Ojijo’s Guide to Identifying, Developing & Selling My Talent 12. This Is How To Treat A Man (Fathers, Husbands, Lovers, Sons, Brothers)13. Soft Sweet Words: Romantic Whispers to My Woman14. Cause Action: Ojijo’s Public Speaking Handbook15. The Gift of E11even Moves to Make Me Wealthy16. Seventy-7 Moves of a Sexy Woman17. Self Discipline - What, Why & How18. 99 Ways to Make People Laugh

LAW BOOKS19. Business Transactions & Contracts Law Handbook20. Family Law Handbook21. Intellectual Property Law Handbook22. Alternative Dispute Resolution Law Handbook23. Real Estate Law Handbook24. Civil Litigation Law Handbook25. Energy Law Handbook26. Labour Relations Law Handbook27. Administrative Law Handbook28. Environmental Law Handbook29. Criminal Litigation Law Handbook30. Ojijo’s Financial Services Law31. Rich Lawyers, Poor Lawyers : Law Firm Management Handbook32. Luo Jurisprudence: Theories, Institutions and Procedures of Law and Justice

(Introduction to Law)33. Legal Rhetoric: Ojijo’s Guide to Legal Writing, Legal Arguments & Legal

Interpretation34. Policy & Legal Issues in E-Commerce & E-Governance (ICT Law)

POLITICS AND RELIGION35. Why Did Hitler Kill The Jews?36. Politics of Poverty: The Odinga Curse to the Luos37. Open Religion: My Religion is the Best Religion38. Garveyism: The Philosophy of Marcus Garvey39. 100 Upright Men: World’s Greatest Revolutionary Politicians40. The Mungiki: Terrorists, Victims, Saints: Three Sides of the Same Coin!


Table of ContentsDEFINITIONS & SCOPE OF ADMINISTRATIVE LAW........................................7

Scope & Sources of Administrative law........................................................................................................9Local Government Law................................................................................................................................ 10Public Law (Definition And Creation)..........................................................................................................19Public International Law............................................................................................................................. 26Sources Of International Law..................................................................................................................... 40Regional International Law or Community Law or Union Law................................................................69

PUBLIC INTERNATIONAL ORGANISATIONS /INTERGOVERNMENTAL ORGANISATIONS..................71Non State Actors........................................................................................................................................... 77Continental Unions...................................................................................................................................... 79Regional Bodies............................................................................................................................................ 82The United Nations...................................................................................................................................... 84

LAW OF GOVERNMENT INSTITUTIONS (CONSTITUTIONAL LAW).............................102Introducing Constitutional Law................................................................................................................ 102Public Institutions, Bureaucracy............................................................................................................... 105Citizenship.................................................................................................................................................. 110Local Government/Devolved Government...............................................................................................117Principles of Constitutionalism................................................................................................................. 121

HUMAN RIGHTS..............................................................132Rights of Foreigners................................................................................................................................... 132Human Rights............................................................................................................................................ 136

POWERS OF THE GOVERNMENT....................................................207Public Order Powers.................................................................................................................................. 207Administrative Power on the Sea.............................................................................................................. 214Sovereignty................................................................................................................................................. 229Diplomacy & International Relations.......................................................................................................262State Formation......................................................................................................................................... 275Rights & Duties of States in International Law........................................................................................284

DISPUTE RESOLUTION IN ENERGY LAW.............................................298Disputes & Dispute Resolution.................................................................................................................. 298Types of Disputes....................................................................................................................................... 302Elements of Effective Dispute Resolution Methods.................................................................................305Types of Dispute Resolution Methods......................................................................................................306International Litigation, Conflict Of Laws................................................................................................317International Arbitration........................................................................................................................... 319National Dispute Resolution Institutions.................................................................................................325International Dispute Resolution Institutions.........................................................................................329

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DISPUTE RESOLUTION MECHANISMS IN ADMINISTRATIVE LAW..............................331Holding Government Accountable (Judicial Review)...............................................................................331Suing Public Officers.................................................................................................................................. 367Dispute Resolution in Public International law.......................................................................................389Dispute Resolution (Union Law)................................................................................................................ 396Dispute Resolution in Local Government Law.........................................................................................421Suing the State in International Law........................................................................................................423

INDEX....................................................................426

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List of Authorities CasesEllen Street Estates v. Minister of Health 1 KB 590..........25Entick v. Carrington...........................................19, 102Kay v. Goodwin (1830) 6 Bing. 576, per Tindal C.J.............24Legality of the Threat or Use of Nuclear Weapons" - Advisory Opinion of 8 July 1996 - General List No. 95 (1995-1998), par. 67. http://www.icj-cij.org/docket/files/95/7494.pdf..........33

M v. Home Office..................................................19Nicaragua v. United States...........................................29North Sea Continental Shelf cases of 1969................................32North Sea Continental Shelf, Judgment, I.C.J. Reports 1969, pp. 3, 45, para. 78..............................................32

Pushpanathan v. Canada.......................................23, 387S.S. Lotus case...................................................32Vauxhall Estates, Ltd. v. Liverpool Corporation [3] 1 KB 733. .25Statutes1921 Anglo-Irish Treaty.......................................25California Civil Code.........................................22English Arbitration Act, 1996................................323Federal Arbitration Act......................................323International Court of Justice Statute........................28Interpretation Act 1978...................................24, 25Marine Insurance Act 1906.....................................22Orders in Council.........................................39, 54Poor Laws.....................................................25Statute of the International Court of Justice.............passimUNCITRAL Model Law on International Commercial Arbitration. . .323Other AuthoritiesBallentine's Law Dictionary...................................23Bill of Rights.................................................passimCode of Ur-Nammu..............................................22Corpus Iuris Civilis..........................................22Great Qing Legal Code.........................................22International Bill of Human Rights............................20

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Lex Duodecim Tabularum........................................22Parliament Acts of 1911 and 1949..................................19Petition of Right...................................................19Tang Code in AD 624...........................................22Torah.........................................................22Universal Declaration of Human Rights.....................passimRulesIBA Rules on the Taking of Evidence in International Arbitration............................................................323

ICDR Guidelines for Arbitrators Concerning Exchanges of Information.................................................323

Treatises1951 ILO Convention concerning Equal Remuneration for Men and Women Workers for Work of Equal Value....................13, 43

1985 Vienna Convention for the Protection of the Ozone Layer 15, 45

1987 Montreal Protocol on Substances that Deplete the Ozone Layer.........................................................15, 45

1989 Convention on the Rights of the Child...........13, 43, 1541992 Rio Declaration. Declarations........................13, 43Arab Convention on Commercial Arbitration....................320CAFTA...................................................321, 322Charter of the Organization of American States of 1952. . . .12, 42Charter of the United Nations of 1945.....................12, 42Convention on Biological Diversity of 1992................13, 43Energy Charter Treaty...................................303, 321European Convention (Geneva, 1961)...........................320Geneva Conventions...........................................passimHague Conventions of 1899 and 1907...........................passimHague Service Convention (1965)..............................317ICSID Convention........................................320, 321Inter-American Convention on International Commercial Arbitration............................................................320

International Covenant on Civil and Political Rights......passimInternational Covenant on Economic, Social and Cultural Rights.........................................................passim

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Magna Carta of 1215.......................................12, 42Moscow Convention (1972).....................................320NAFTA..............................................321, 322, 329New York Convention.....................................319, 320Optional Protocol to the International Covenant on Civil and Political Rights of 1966.................................14, 44

Panama Convention............................................320The Hague Convention on the Recognition and Enforcement of Foreign Judgments in Civil and Commercial Matters...........318

United Nations Charter....................................passimUnited Nations Convention on the Law of the Sea of 1982. . .13, 43Vienna Convention on Law of Treaties...................................27Vienna Convention on the Law of Treaties..................passimWashington or ICSID Convention...............................320

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Definitions & Scope of Administrative law

SCOPE & SOURCES OF ADMINISTRATIVE LAW

definition of administrative lawAdministrative law is the chief method for people to hold state

bodies to account. People can apply for judicial review of actionsor decisions by local councils, public services or governmentministries, to ensure that they comply with the law.

scope of administrative lawAdministrative law regulates the rights and duties of the

government. In so doing, it covers the relationships betweengovernment and the citizens (public law); relation betweengovernment and regional governments (union law); and therelationship between the government and other governments andinternational organisations (public international law).

Administrative law governs the activities of administrativeagencies of government. Government agency action can includerulemaking, adjudication, or the enforcement of a specificregulatory agenda. Administrative law is considered a branchof public law. As a body of law, administrative law deals withthe decision-making of administrative units of government (forexample, tribunals, boards or commissions) that are part of anational regulatory scheme in such areas as police law,international trade, manufacturing, the environment, taxation,broadcasting, immigration and transport. Administrative lawexpanded greatly during the twentieth century, as legislativebodies worldwide created more government agencies to regulatethe increasingly complex social, economic and politicalspheres of human interaction.

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LOCAL GOVERNMENT LAW

Sources of law local government lawSources of law means the origin from which rules of human conduct

come into existence and derive legal force or bindingcharacters. It also refers to the sovereign or the state fromwhich the law derives its force or validity. Several factorsof law have contributed to the development of law. Thesefactors are regarded as the sources of law.

Sources of ADR law are found in various areas, but mainyl limitedto statutes, constitution, statutes, and precedents.

These are explanined below:constitution A constitution is a set of fundamental principles or established

precedents according to which a state or other organization isgoverned.1 The constitution, whether written, or not written,is the grundnorm: the main source of law in any nation. Whenthese principles are written down into a single or set oflegal documents, those documents are called a writtenconstitution. Every country’s Constitution is the documentthat outlays the principles upon which it is to be run.

Precedents, judge-made law, case lawPrecedent is one of the sources of law. The judgements passed by

some of the learned jurists became another significant sourceof law. When there is no legislature on particular point whicharises in changing conditions, the judges depend on their ownsense of right and wrong and decide the disputes. Suchdecisions become authority or guide for subsequent cases of asimilar nature and they are called precedents. The dictionaryof English law defines a judicial precedent as a judgement ordecision of a court of law cited as an authority for deciding

1 The New Oxford American Dictionary, Second Edn., Erin McKean (editor), 2051 pages, May 2005, Oxford University Press, ISBN 0-19-517077-6.

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http://en.wikipedia.org/wiki/Special:BookSources/0195170776

http://en.wikipedia.org/wiki/Erin_McKean

http://en.wikipedia.org/wiki/New_Oxford_American_Dictionary


a similar state of fact in the same manner or on the sameprinciple or by analogy. Precedent is more flexible thanlegislation and custom. It is always ready to be used.

Customs , customary international law A custom is a rule which in a particular family or in a

particular district or in a particular section, classes ortribes, has from long usage obtained the force of law. Thedictionary of English law defines custom as a law not written,which being established by long use and consent of ourancestors has been and daily is put into practice. Custom as asource of law got recognition since the emergence ofsovereignty on the horizon of jurisprudence. It is anexemption to the ordinary law of the land, and every custom islimited in its application. They are practices that have to berepeated for a period of time.

LegislationLegislation is that source of law which consists in the

declaration of legal rules by a competent authority.Legislature is the direct source of law. Legislature framesnew laws, amends the old laws and cancels existing laws in allcountries. In modern times this is the most important sourceof law making. The term legislature means any form of lawmaking. Its scope has now been restricted to a particular formof law making. It not only creates new rules of law it alsosweeps away existing inconvenient rules.

From the definition of politician Mohamed Abdullahi Farmajo,defines legislation as Legislation (or "statutory law") is lawwhich has been promulgated (or "enacted") by a legislature orother governing body, or the process of making it. (Anothersource of law is judge-made law or case law.) Before an itemof legislation becomes law it may be known as a bill, and maybe broadly referred to as "legislation" while it remains underconsideration to distinguish it from other business.Legislation can have many purposes: to regulate, to authorize,

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to proscribe, to provide (funds), to sanction, to grant, todeclare or to restrict. It can also be redistricted.

Preparatory works, Legislative historyIn some legal cultures, some of the documents produced in the

process leading up to legislation are subsequently used asguidelines on how to interpret and understand an act oflegislation.

Treaties and declarations as sources of law The international legal promulgations, in the form of charters,

agreements, treaties, protocols, and declarations, can alsolead to change in municipal legal regime, through legaltrnaspation doctrine, domestication, codification, and ormonoist legal implementaion by member states.

AgreementsThe term "agreement" can have a generic and a specific meaning.

It also has acquired a special meaning in the law of regionaleconomic integration.

(a) Agreement as a generic term: The 1969 Vienna Convention onthe Law of Treaties employs the term "international agreement"in its broadest sense. On the one hand, it defines treaties as"international agreements" with certain characteristics. Onthe other hand, it employs the term "international agreements"for instruments, which do not meet its definition of "treaty".Its Art.3 refers also to "international agreements not inwritten form". Although such oral agreements may be rare, theycan have the same binding force as treaties, depending on theintention of the parties. An example of an oral agreementmight be a promise made by the Minister of Foreign Affairs ofone State to his counterpart of another State. The term"international agreement" in its generic sense consequentlyembraces the widest range of international instruments.

(b) Agreement as a particular term: "Agreements" are usuallyless formal and deal with a narrower range of subject-matter

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than "treaties". There is a general tendency to apply the term"agreement" to bilateral or restricted multilateral treaties.It is employed especially for instruments of a technical oradministrative character, which are signed by therepresentatives of government departments, but are not subjectto ratification. Typical agreements deal with matters ofeconomic, cultural, scientific and technical cooperation.Agreements also frequently deal with financial matters, suchas avoidance of double taxation, investment guarantees orfinancial assistance. The UN and other internationalorganizations regularly conclude agreements with the hostcountry to an international conference or to a session of arepresentative organ of the Organization. Especially ininternational economic law, the term "agreement" is also usedas a title for broad multilateral agreements (e.g. thecommodity agreements). The use of the term "agreement" slowlydeveloped in the first decades of this century. Nowadays byfar the majority of international instruments are designatedas agreements.

(c) Agreements in regional integration schemes: Regionalintegration schemes are based on general framework treatieswith constitutional character. International instruments whichamend this framework at a later stage (e.g. accessions,revisions) are also designated as "treaties". Instruments thatare concluded within the framework of the constitutionaltreaty or by the organs of the regional organization areusually referred to as "agreements", in order to distinguishthem from the constitutional treaty. For example, whereas theTreaty of Rome of 1957 serves as a quasi-constitution of theEuropean Community, treaties concluded by the EC with othernations are usually designated as agreements. Also, the LatinAmerican Integration Association (LAIA) was established by theTreaty of Montevideo of 1980, but the subregional instrumentsentered into under its framework are called agreements.

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Charters (international law)The term "charter" is used for particularly formal and solemn

instruments, such as the constituent treaty of aninternational organization. The term itself has an emotivecontent that goes back to the Magna Carta of 1215. Well-knownrecent examples are the Charter of the United Nations of 1945and the Charter of the Organization of American States of1952.

Conventions (international law)The term "convention" again can have both a generic and a

specific meaning. (a) Convention as a generic term: Art. 38 (1) (a) of the Statute

of the International Court of Justice refers to "internationalconventions, whether general or particular" as a source oflaw, apart from international customary rules and generalprinciples of international law and - as a secondary source -judicial decisions and the teachings of the most highlyqualified publicists. This generic use of the term"convention" embraces all international agreements, in thesame way as does the generic term "treaty". Black letter lawis also regularly referred to as "conventional law", in orderto distinguish it from the other sources of international law,such as customary law or the general principles ofinternational law. The generic term "convention" thus issynonymous with the generic term "treaty".

(b) Convention as a specific term: Whereas in the last centurythe term "convention" was regularly employed for bilateralagreements, it now is generally used for formal multilateraltreaties with a broad number of parties. Conventions arenormally open for participation by the international communityas a whole, or by a large number of states. Usually theinstruments negotiated under the auspices of an internationalorganization are entitled conventions (e.g. Convention onBiological Diversity of 1992, United Nations Convention on the

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Law of the Sea of 1982, Vienna Convention on the Law ofTreaties of 1969). The same holds true for instruments adoptedby an organ of an international organization (e.g. the 1951ILO Convention concerning Equal Remuneration for Men and WomenWorkers for Work of Equal Value, adopted by the InternationalLabour Conference or the 1989 Convention on the Rights of theChild, adopted by the General Assembly of the UN).

DeclarationsThe term "declaration" is used for various international

instruments. However, declarations are not always legallybinding. The term is often deliberately chosen to indicatethat the parties do not intend to create binding obligationsbut merely want to declare certain aspirations. An example isthe 1992 Rio Declaration. Declarations can however also betreaties in the generic sense intended to be binding atinternational law. It is therefore necessary to establish ineach individual case whether the parties intended to createbinding obligations. Ascertaining the intention of the partiescan often be a difficult task. Some instruments entitled"declarations" were not originally intended to have bindingforce, but their provisions may have reflected customaryinternational law or may have gained binding character ascustomary law at a later stage. Such was the case with the1948 Universal Declaration of Human Rights. Declarations thatare intended to have binding effects could be classified asfollows:

(a) A declaration can be a treaty in the proper sense. Asignificant example is the Joint Declaration between theUnited Kingdom and China on the Question of Hong Kong of 1984.

(b) An interpretative declaration is an instrument that isannexed to a treaty with the goal of interpreting orexplaining the provisions of the latter.

(c) A declaration can also be an informal agreement with respectto a matter of minor importance.

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(d) A series of unilateral declarations can constitute bindingagreements. A typical example are declarations under theOptional Clause of the Statute of the International Court ofJustice that create legal bonds between the declarants,although not directly addressed to each other. Another exampleis the unilateral Declaration on the Suez Canal and thearrangements for its operation issued by Egypt in 1957 whichwas considered to be an engagement of an internationalcharacter.

Exchange of NotesAn "exchange of notes" is a record of a routine agreement, that

has many similarities with the private law contract. Theagreement consists of the exchange of two documents, each ofthe parties being in the possession of the one signed by therepresentative of the other. Under the usual procedure, theaccepting State repeats the text of the offering State torecord its assent. The signatories of the letters may begovernment Ministers, diplomats or departmental heads. Thetechnique of exchange of notes is frequently resorted to,either because of its speedy procedure, or, sometimes, toavoid the process of legislative approval.

Memoranda of UnderstandingA memorandum of understanding is an international instrument of a

less formal kind. It often sets out operational arrangementsunder a framework international agreement. It is also used forthe regulation of technical or detailed matters. It istypically in the form of a single instrument and does notrequire ratification. They are entered into either by Statesor International Organizations. The United Nations usuallyconcludes memoranda of understanding with Member States inorder to organize its peacekeeping operations or to arrange UNConferences. The United Nations also concludes memoranda ofunderstanding on cooperation with other internationalorganizations.

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Modus VivendiA modus vivendi is an instrument recording an international

agreement of temporary or provisional nature intended to bereplaced by an arrangement of a more permanent and detailedcharacter. It is usually made in an informal way, and neverrequires ratification.

ProtocolsThe term "protocol" is used for agreements less formal than those

entitled "treaty" or "convention". The term could be used tocover the following kinds of instruments:

(a) A Protocol of Signature is an instrument subsidiary to atreaty, and drawn up by the same parties. Such a Protocoldeals with ancillary matters such as the interpretation ofparticular clauses of the treaty, those formal clauses notinserted in the treaty, or the regulation of technicalmatters. Ratification of the treaty will normally ipso factoinvolve ratification of such a Protocol.

(b) An Optional Protocol to a Treaty is an instrument thatestablishes additional rights and obligations to a treaty. Itis usually adopted on the same day, but is of independentcharacter and subject to independent ratification. Suchprotocols enable certain parties of the treaty to establishamong themselves a framework of obligations which reachfurther than the general treaty and to which not all partiesof the general treaty consent, creating a "two-tier system".The Optional Protocol to the International Covenant on Civiland Political Rights of 1966 is a well-known example.

(c) A Protocol based on a Framework Treaty is an instrument withspecific substantive obligations that implements the generalobjectives of a previous framework or umbrella convention.Such protocols ensure a more simplified and acceleratedtreaty-making process and have been used particularly in thefield of international environmental law. An example is the1987 Montreal Protocol on Substances that Deplete the Ozone

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Layer adopted on the basis of Arts.2 and 8 of the 1985 ViennaConvention for the Protection of the Ozone Layer.

(d) A Protocol to amend is an instrument that containsprovisions that amend one or various former treaties, such asthe Protocol of 1946 amending the Agreements, Conventions andProtocols on Narcotic Drugs.

(e) A Protocol as a supplementary treaty is an instrument whichcontains supplementary provisions to a previous treaty, e.g.the 1967 Protocol relating to the Status of Refugees to the1951 Convention relating to the Status of Refugees.

(f) A Proces-Verbal is an instrument that contains a record ofcertain understandings arrived at by the contracting parties.

Signatories and PartiesThe term “Parties", which appears in the header of each treaty,

in the publication Multilateral Treaties Deposited with theSecretary-General, includes both "Contracting States" and"Parties". For general reference, the term "ContractingStates" refers to States and other entities with treaty-makingcapacity which have expressed their consent to be bound by atreaty where the treaty has not yet entered into force orwhere it has not entered into force for such States andentities; the term "Parties" refers to States and otherentities with treaty-making capacity which have expressedtheir consent to be bound by a treaty and where the treaty isin force for such States and entities.)

TreatiesThe term "treaty" can be used as a common generic term or as a

particular term which indicates an instrument with certaincharacteristics.

(a) Treaty as a generic term: The term "treaty" has regularlybeen used as a generic term embracing all instruments bindingat international law concluded between international entities,regardless of their formal designation. Both the 1969 Vienna

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Convention and the 1986 Vienna Convention confirm this genericuse of the term "treaty". The 1969 Vienna Convention defines atreaty as "an international agreement concluded between Statesin written form and governed by international law, whetherembodied in a single instrument or in two or more relatedinstruments and whatever its particular designation". The 1986Vienna Convention extends the definition of treaties toinclude international agreements involving internationalorganizations as parties. In order to speak of a "treaty" inthe generic sense, an instrument has to meet various criteria.First of all, it has to be a binding instrument, which meansthat the contracting parties intended to create legal rightsand duties. Secondly, the instrument must be concluded bystates or international organizations with treaty-makingpower. Thirdly, it has to be governed by international law.Finally the engagement has to be in writing. Even before the1969 Vienna Convention on the Law of Treaties, the word"treaty" in its generic sense had been generally reserved forengagements concluded in written form.

delegated legislation, secondary legislation or subordinatelegislation or subsidiary legislation

Delegated legislation (also referred to as secondary legislationor subordinate legislation or subsidiary legislation) is lawmade by an executive authority under powers given to them byprimary legislation in order to implement and administer therequirements of that primary legislation. It is law made by aperson or body other than the legislature but with thelegislature's authority.

Often, a legislature passes statutes that set out broad outlinesand principles, and delegates authority to an executive branchofficial to issue delegated legislation that flesh out thedetails (substantive regulations) and provide procedures forimplementing the substantive provisions of the statute andsubstantive regulations (procedural regulations). Delegatedlegislation can also be changed faster than primary

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legislation so legislatures can delegate issues that may needto be fine-tuned through experience.

by-laws, code, bylaw, by law, byelaw , ordinance A by-law (sometimes also spelled bylaw, by law or byelaw) is a

rule or law established by an organization or community toregulate itself, as allowed or provided for by some higherauthority. The higher authority, generally a legislature orsome other governmental body, establishes the degree ofcontrol that the by-laws may exercise. By-laws may beestablished by entities such as a business corporation, aneighborhood association, or depending on the jurisdiction, amunicipality. Usually, the central government (and usually thestate governments) has no direct ability to regulate the scopeof the laws passed by the municipalities. As such terms suchas code, ordinance, or regulation, if not simply law are morecommon.

ordinance, By-law, Local ordinance, Act of ParliamentAn ordinance is an authoritative rule or law; a decree or

command. a public injunction or regulation: a city ordinanceagainst excessive horn blowing. something believed to havebeen ordained, as by a deity or destiny.

The ordiance can also be:¯ By-law, a rule established by an organization to regulate itself¯ Local ordinance, a law made by a municipality or other local authority¯ Act of Parliament, in some jurisdictions, such as England when the parliament

operated without regal sanction, and a number of British colonies.

regulation, self-regulation, co-regulation, legal restrictions A regulation is a legal norm intended to shape conduct that is a

byproduct of imperfection.2 A regulation may be used toprescribe or proscribe conduct ("command-and-control"regulation), to calibrate incentives ("incentive" regulation),or to change preferences ("preferences shaping" regulation").3

2 Orbach, Barak, What Is Regulation? 30 Yale Journal on Regulation Online 1 (2012)3 id.

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In statist mechanisms it can also be extended to monitoringand enforcement of rules as established by primary and/ordelegated legislation. In this form, it is generally a writteninstrument containing rules having the force of statist law.(as opposed to natural law). Other forms of regulation areself regulation. In general, regulations are written byexecutive agencies as a way to enforce laws passed by thelegislature. Because of the actual or potential interferencein choices, the idea of regulation and most issues related toregulation tend to be in controversy.4

Regulation creates, limits, constrains a right, creates or limitsa duty, or allocates a responsibility. Regulation can takemany forms: legal restrictions promulgated by a governmentauthority, contractual obligations that bind many parties (forexample, "insurance regulations" that arise out of contractsbetween insurers and their insureds), self-regulation by anindustry such as through a trade association, socialregulation (e.g. norms), co-regulation, third-partyregulation, certification, accreditation or market regulation.In its legal sense regulation can and should be distinguishedfrom primary legislation (by Parliament of elected legislativebody) on the one hand and judge-made law on the other.5

ministerial directives, ministerial orders, ministerial memorandaThe responsible Minister may issue directions from time to time

to clarify the management, reporting and otherresponsibilities of institute boards, and to give direction onthe employment of staff, charging fees, or other specificmatters. Some Directions are also given to ministries,departments, and agencies. The purposes of the Directions areto remake directions relating to employment of staff and torepeal earlier directions that are no longer required with themaking of the strategic planning guidelines and commercialguidelines.

4 Orbach (2012)5 Levi-Faur, David, Regulation and Regulatory Governance, Jerusalem Papers in Regulation and

Governance, No.1, 2010

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Executive Memoranda Copies of detailed information sent to CEOs of ministries,

departments, and agencies accompanying Ministerial Directions.Presidential directives Presidential directives are considered a form of executive order

issued by the President with the advice and consent of aministry, agency or department within the Executive branch ofgovernment.

presidential executive ordersThe Constitution refers to the title of President as the

executive. Presidents issue executive orders to help officersand agencies of the executive branch manage the operationswithin the government. Executive orders have the full force oflaw when they take authority from a legislative power whichgrants its power directly to the Executive by theConstitution, or are made pursuant to certain Acts ofCongress/Parliament that explicitly delegate to the Presidentsome degree of discretionary power (delegated legislation).Like both legislative statutes and regulations promulgated bygovernment agencies, executive orders are subject to judicialreview, and may be struck down if deemed by the courts to beunsupported by statute or the Constitution. Major policyinitiatives require approval by the legislative branch, butexecutive orders have significant influence over the internalaffairs of government, deciding how and to what degreelegislation will be enforced, dealing with emergencies, waging72-hour length strikes on enemies, and in general fine-tuningpolicy choices in the implementation of broad statutes.Mostexecutive orders use these Constitutional reasonings as theauthorization allowing for their issuance to be justified aspart of the President's sworn duties, the intent being to helpdirect officers of the Executive carry out their delegatedduties as well as the normal operations of the federal

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government: the consequence of failing to comply possiblybeing the removal from office.

decreesA decree is a rule of law usually issued by a head of state (such

as the president of a republic or a monarch), according tocertain procedures (usually established in a constitution). Ithas the force of law. The particular term used for thisconcept may vary from country to country. The executive ordersmade by the President of the United States, for example, aredecrees (although a decree is not exactly an order). In non-legal English usage, however, the term refers to anyauthoritarian decision. The Holy See uses decrees from thepope such as papal bull, papal brief or motu proprio aslegislative acts.

edict An edict is an announcement of a law, often associated with

monarchism. The Pope and various micronational leaders arecurrently the only persons who still issue edicts.

proclamation A proclamation (Lat. proclamare, to make public by announcement)

is an official declaration. Royal proclamation granting LordMayoralty to Oxford. In English law, a proclamation is aformal announcement ("royal proclamation"), made under thegreat seal, of some matter which the King in Council or Queenin Council desires to make known to his or her subjects: e.g.,the declaration of war, or state of emergency, the statementof neutrality, the summoning or dissolution of Parliament, orthe bringing into operation of the provisions of some statutethe enforcement of which the legislature has left to thediscretion of the king in the announcement.

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PUBLIC LAW (DEFINITION AND CREATION)

public law (definitionPublic law involves interrelations between the state and the

general population. In some cases these public statutes areknown as laws of public order, as private individuals do not havethe right to break them and any attempt to circumvent suchlaws is void as against public policy.

public law (scope)Areas of public law include:

و Constitutional law deals with the relationship between the stateand individual, and the relationships between differentbranches of the state, such as the executive, the legislativeand the judiciary. In most legal systems, these relationshipsare specified within a written constitutional document.However, in the United Kingdom of Great Britain and NorthernIreland (UK), due to historical and political reasons theredoes not exist one supreme, entrenched written document. TheUK has an unwritten constitution—the constitution of thisstate is usually found in statutes, such as the Magna Carta6,the Petition of Right, the Bill of Rights, the Act of Settlement 1700 and theParliament Acts of 1911 and 1949. The constitution is also foundin case-law, such as the historical decision in Entick v.Carrington7, a leading case in Common law establishing the civilliberties of individuals and limiting the scope of executivepower. The case has also been influential in other common lawjurisdictions and was an important motivation for the FourthAmendment to the United States Constitution, held to be a oneof the landmarks of English liberty, one of the permanentmonuments of the British Constitution,’ and a guide to anunderstanding of the Fourth Amendment. It is famous for the

6 see Holt, J.C., Magna Carta, 2nd edition 19927 (1765) 19 St Tr 1030

pg. 25


dictum of Camden LJ: ‘If it is law, it will be found in our books. If it not to befound there, it is not law’8’ and the landmark decision of M v. HomeOffice9, which laid the principle of separation of powers,stating that rule of law also requires that judges ensure the legality ofgovernment action; this function could not be fulfilled if the judges’ independencewas in doubt. It hence set constitutional precedence forjudicial control. Due to the lack of a written constitution,the idea of the legislative supremacy of Parliament and therule of law play an important role in the constitution10.Despite all this, in reality, much of the constitution is apolitical phenomenon, rather than a legal one.

Administrative law refers to the body of law which regulatesbureaucratic managerial procedures and defines the powers ofadministrative agencies. These laws are enforced by theexecutive branch of a government rather than the judicial orlegislative branches (if they are different in that particularjurisdiction). This body of law regulates international trade,manufacturing, pollution, taxation, and the like. This issometimes seen as a subcategory of Civil law and sometimesseen as public law as it deals with regulation and publicinstitutions.

Civil rights law and human rights law are important fields to guaranteeeveryone basic freedoms and entitlements. These are laid downin codes such as the Universal Declaration of Human Right11.

8 See also John Locke, Two Treatises of Government (1689) Ch XI, §§134-5.9 [9] 1 AC 377; [9] QB 270. 10 see A. V. Dicey, The Law of the Constitution (ed. E. C. S. Wade), 10th edition,

195911 The Universal Declaration of Human Rights (UDHR) is a declaration adopted

by the United Nations General Assembly (10 December 1948 at Palais de Chaillot, Paris). The Declaration arose directly from the experience of theSecond World War and represents the first global expression of rights to which all human beings are inherently entitled. It consists of 30 articles which have been elaborated in subsequent international treaties, regional human rights instruments, national constitutions and laws. The International Bill of Human Rights consists of the Universal Declaration ofHuman Rights, the International Covenant on Economic, Social and Cultural

pg. 26


Statutory law regulates behavior by setting rules, like speedlimits, and established rights and benefits, such as driver’slicense and Social Security benefits. A legislative branch ofgovernment writes this type of law.

civil procedure and criminal procedure concern the rules that courtsmust follow as a trial and appeals proceed. Both concern acitizen's right to a fair trial or hearing.

Evidence law involves which materials are admissible in courts fora case to be built.

Immigration law and nationality law concern the rights of foreigners tolive and work in a nation-state that is not their own and toacquire or lose citizenship. Both also involve the right ofasylum and the problem of stateless individuals.

Social security law refers to the rights people have to socialinsurance, such as jobseekers' allowances or housing benefits.

Criminal law is the law that provides for punishment of criminalsand offenders.

Consumer law could include anything from regulations on unfaircontractual terms and clauses to directives on airline baggageinsurance.

Environmental law is increasingly important, especially in light ofthe Kyoto Protocol and the potential danger of climate change.Environmental protection also serves to penalise polluterswithin domestic legal systems.

constitutional lawConstitutional law concerns both the relationships between the

executive, legislature and judiciary and the human rights orcivil liberties of individuals against the state. Most

Rights, and the International Covenant on Civil and Political Rights and its two Optional Protocols. In 1966 the General Assembly adopted the two detailed Covenants, which complete the International Bill of Human Rights; and in 1976, after the Covenants had been ratified by a sufficient number of individual nations, the Bill took on the force of international law.

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jurisdictions have a single codified constitution with a billof rights. A few, like the UK have no such single writtendocument, but rather, a collection of documents which togetherconstitute the constitution.

Constitutional law trumps statutory law which trumps the commonlaw. This means that our appellate courts have more power thanany other court. There can be a rehearing en banc (meaning thatthey want the ENTIRE set of judges to rehear the case).

Why should unelected justices have the power to overturn popularand legislative decisions? This question is known variously as‘the counter-majoritarian problem’ or the debate over‘judicial review.’

judicial reviewGovernment bodies and public officials are charged with the

responsibility to implement the ministerial and executivedirectives are;

¯ They make decisions

¯ They exercise discretion.

¯ They also resolve disputes

¯ They make laws, rules and regulations.

¯ They determine appeals

In performing the above duties, the bodies are required toconform to certain guidelines as to avoid conflict that arisesdue to the decisions wither by action or omission. It thenfollows that any contravention of such guidelines shall as ofright amount to a ground for an application for judicialreview.

The grounds of judicial review are divided into two, namely;Substantive grounds of review, which are a) Illegality, b)unreasonableness/irrationality, c) Proportionality/ fairness;and Procedural grounds of review, which arises out ofprocedural impropriety.

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Color (law)In United States law, the term color of law denotes the "mere

semblance of legal right", the "pretense or appearance of" right; hence, an action done under color of law colors (adjusts) the law tothe circumstance, yet said apparently legal action contravenes the law. Under color of authority is a legal phrase used in the US indicating that a person is claiming or implying the acts he or she is committing are related to and legitimized by his or her role as an agent of governmental power, especially if the acts are unlawful.

Color of law refers to an appearance of legal power to act but which may operate in violation of law. For example, though a police officer acts with the "color of law" authority to arrest someone, ifsuch an arrest is made without probable cause the arrest may actually be in violation of law. In other words, just because something is done with the "color of law", that does not mean that the action was lawful. When police act outside their lawful authority and violate the civil rights of a citizen, the FBI is tasked with investigating.

The Supreme Court has interpreted the United States Constitution to construct laws regulating the actions of the law enforcement community. Under "color of law", it is a crime for one or more persons using power given to him or her by a governmental agency (local, state or federal), to willfully deprive or conspire to deprive another person of any right protected by the Constitution orlaws of the United States. Criminal acts under color of law include acts within and beyond the bounds or limits of lawful authority. Off-duty conduct may also be covered if official status is asserted in some manner. Color of law may include public officials and non-governmental employees who are not law enforcement officers such as judges, prosecutors, and private security guards. Furthermore, in many states it is unlawful to falsely impersonate a police officer, a federal officer or employee, or any other public official or to use equipment used by law enforcement officers, such as flashing lights or a fake police badge. Possession of a firearm also can enhance the penalty for false impersonation of a police officer.

Color of officeColor of office refers to an act usually committed by a public

official under the appearance of authority, but which exceeds such

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authority. An affirmative act or omission, committed under color of office, is sometimes required to prove malfeasance in office.

ballot measure , Initiative, Popular referendum, Legislativereferral, legislative referendum

A ballot measure is a piece of proposed legislation to beapproved or rejected by eligible voters. Ballot measures arealso known as "propositions" or simply "questions".

Ballot measures differ from most legislation passed byrepresentative democracies; ordinarily, an elected legislaturedevelops and passes laws. Ballot measures, by contrast, are anexample of direct democracy.

In many states, ballot measures may originate by severaldifferent processes:

¯ Initiative, in which any citizen or organization may gather a predetermined numberof signatures to qualify a measure for the ballot;

¯ Popular referendum, in which a predetermined number of signatures (typicallylower than the number required for an initiative) qualifies a ballot measurerepealing a specific act of the legislature;

¯ Legislative referral (aka "legislative referendum"), in which the legislature putsproposed legislation up for popular vote (either voluntarily or, in the case of aconstitutional amendment as a required procedure)

codification In law, codification is the process of collecting and restating

the law of a jurisdiction in certain areas, usually bysubject, forming a legal code, i.e. a codex (book) of law.

Ancient Sumer's Code of Ur-Nammu was compiled circa 2100-2050 BC,and is the earliest known surviving civil code. Threecenturies later, the Babylonian king Hammurabi enacted the setof laws named after him.

Besides religious laws such as the Torah, important codificationswere developed in the ancient Roman Empire, with thecompilations of the Lex Duodecim Tabularum and much later theCorpus Iuris Civilis. These codified laws were the exceptions

pg. 30


rather than the rule, however, as during much of ancient timesRoman laws were left mostly uncodified.

The first permanent system of codified laws could be found inChina, with the compilation of the Tang Code in AD 624. Thisformed the basis of the Chinese criminal code, which was thenreplaced by the Great Qing Legal Code, which was in turnabolished in 1912 following the Xinhai Revolution and theestablishment of the Republic of China. The new laws of theRepublic of China were inspired by the German codified work,the Bürgerliches Gesetzbuch. A very influential example inEurope was the French Napoleonic code of 1804.

Another early system of laws is Hindu law framed by Manu andcalled as Manu Smriti, dating back to the 2nd century BC. Theuse of civil codes in Islamic Sharia law began with theOttoman Empire in the 16th century AD.

Codification of common law Contrary to popular belief, the common law has been codified in

many jurisdictions in many areas; examples include the Law ofGeneral Obligations of New York State, the English lawrelating to marine insurance in the Marine Insurance Act 1906,which was originally judge-made common law, and the CaliforniaCivil Code.

codification of international lawFollowing the First World War and the establishment of the League

of Nations, the need for codification of international lawarose. In September 1924, the General Assembly of the Leagueestablished a committee of experts for the purpose ofcodification of international law, which was defined by theAssembly as consisting of two aspects:

¯ Putting existing customs into written international agreements¯ Developing further rules

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RecodificationRecodification refers to a process where existing codified

statutes are reformatted and rewritten into a new codifiedstructure. This is often necessary as, over time, thelegislative process of amending statutes and the legal processof construing statutes by nature over time results in a codethat contains archaic terms, superseded text, and redundant orconflicting statutes. Due to the size of a typical governmentcode, the legislative process of recodification of a code canoften take a decade or longer.

Promulgation Promulgation is the act of formally proclaiming or declaring a

new statutory or administrative law after its enactment. Insome jurisdictions, this additional step is necessary beforethe law can take effect. After a new law is approved, it isannounced to the public through the publication of the text ofthe law in a government periodical and/or on officialwebsites. National laws of extraordinary importance to thepublic may be announced by the head of state on a nationalbroadcast. Local laws are usually announced in the localnewspapers and published in bulletins or compendia ofmunicipal regulations.

rule-making In administrative law, rule-making refers to the process that

executive and independent agencies use to create, orpromulgate, regulations. In general, legislatures first setbroad policy mandates by passing statutes, then agenciescreate more detailed regulations through rulemaking.

ministerial act A ministerial act is a government action "performed according to

legal authority, established procedures or instructions from asuperior, without exercising any individual judgment." It canbe any act a functionary or bureaucrat performs in aprescribed manner, without exercising any individual judgment

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or discretion.12 Under law, this would be classified under therubric of public policy. If a ministerial act is notperformed, then a court may issue a writ of mandamus to compelthe public official to perform said act. Absolute or sovereignimmunity does not apply to the performance or non-performanceof ministerial acts.

nondelegation doctrine, delegatus non potest delegateThe doctrine of nondelegation describes the theory that one

branch of government must not authorize another entity toexercise the power or function which it is constitutionallyauthorized to exercise itself. It is explicit or implicit inall written constitutions that impose a strict structuralseparation of powers. It is usually applied in questions ofconstitutionally improper delegations of powers of any of thethree branches of government to either of the other, to theadministrative state, or to private entities. Although it isusually constitutional for executive officials to delegateexecutive powers to executive branch subordinates, there canalso be improper delegations of powers within an executivebranch.

Polycentricity Polycentricity is a concept in Canadian administrative law.

According to the Supreme Court of Canada in Pushpanathan v.Canada, the concept is "well known to academic commentators".The court quotes a definition, a "polycentric issue is onewhich involves a large number of interlocking and interactinginterests and considerations", which they ascribe to the bookAn Introduction to Administrative Law (3rd ed. 1996), by P. Cane.

According to the court, academic commentators have suggested thatpolycentricity provides "the best rationale for judicialdeference to non-judicial agencies". The court explained that:

While judicial procedure is premised on a bipolar opposition ofparties, interests, and factual discovery, some problems

12 Ballentine's Law Dictionary, p. 341.

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require the consideration of numerous interestssimultaneously, and the promulgation of solutions whichconcurrently balance benefits and costs for many differentparties. Where an administrative structure more closelyresembles this model, courts will exercise restraint.

legislative veto The legislative veto describes features of at least two different

forms of government, monarchies and those based on theseparation of powers, applied to the authority of the monarchin the first and to the authority of the legislature in thesecond.

In the case of monarchy, legislative veto describes the right ofthe ruler to nullify the actions of a legislative body, forexample, the French monarch's claim to the right to vetoactions of the National Assembly at the start of the FrenchRevolution.13

In a parliamentary system with a bicameral legislature, it refersto the authority of the upper chamber, like Canada's Senate,to reject legislation or certain prescribed categories oflegislation.

repeal A repeal is the removal or reversal of a law. There are two basic

types of repeal, a repeal with re-enactment (or replacement)of the repealed law, or a repeal without replacement. Themotion to rescind, repeal, or annul is used in parliamentaryprocedure to cancel or countermand an action or orderpreviously adopted by the assembly. Removal of secondarylegislation is normally referred to as revocation rather thanrepeal in the United Kingdom and Ireland. Under the common lawof England and Wales, the effect of repealing a statute was"to obliterate it completely from the records of Parliament asthough it had never been passed."14 This, however, is now

13 Baker, Keith Michael (1990). Inventing the French Revolution: Essays on French PoliticalCulture in the Eighteenth Century. Cambridge University Press. pp. 280–1.

14 Kay v. Goodwin (1830) 6 Bing. 576, per Tindal C.J.

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subject to savings provisions within the Interpretation Act1978.

partial repeal or full repealsA partial repeal occurs when a specified part or provision of a

previous Act is repealed but other provisions remain in force.For example, the Acts of Union 1800, providing for the unionbetween the formerly separate kingdoms of Great Britain andIreland as the United Kingdom, was partially repealed in 1922,when (as a consequence of the 1921 Anglo-Irish Treaty),twenty-six of the thirty-two counties of Ireland wereconstituted as the Irish Free State, and ceased to form partof the United Kingdom.

A full repeal occurs where the entire Act in question isrepealed.

Repeal with re-enactment, Repeal without re-enactment A typical situation where an Act is repealed and re-enacted is

where the law in the area is being updated but the law beingrepealed needs to be replaced with one suitable for the modernera. Re-enactment can be with or without amendment, althoughrepeal and re-enactment without amendment normally occurs onlyin the context of a Consolidation Bill (a bill to consolidatethe law in a particular area).

For example the repeal of the Poor Laws in England in 1948reflected their replacement by modern social welfarelegislation.

A repeal without replacement is generally done when a law is nolonger effective, or it is shown that a law is having far morenegative consequences than were originally envisioned.

If a campaign for the repeal of a particular law gains particularmomentum, an advocate of the repeal might become known as a"repealer". This happened in 19th century Britain to a groupin favour of the re-separation of Ireland from the UnitedKingdom.

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Express repeal, implied repeal The repeal of a statute may be either express or implied.15

Express repeal occurs where express words are used in a statuteto repeal an earlier statute. They are now usually included ina table in a schedule to the statute, for reasons ofconvenience.

Implied repeal occurs where two statutes are mutuallyinconsistent. The effect is that the later statute repeals theearlier statute pro tanto (in so far as it is inconsistent).16

There is a presumption against implied repeal.17

Repeals with savings, Repeals without savingsRepeals can be with or without savings. A repeal without savings

eliminates the repealed statute completely. A repeal withsavings preserves the effect of the repealed statute forlimited purposes, such as acts already done or in hand, orregulations made under the repealed Act are continued inforce. In England and Wales, sections 15 to 17, and section19(2), of the Interpretation Act 1978 set out general savingsand similar provisions exist in the law of Ireland and othercommon law countries.

15 Vauxhall Estates, Ltd. v. Liverpool Corporation [3] 1 KB 73316 Vauxhall Estates, Ltd. v. Liverpool Corporation [3] 1 KB 73317 Ellen Street Estates v. Minister of Health 1 KB 590

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PUBLIC INTERNATIONAL LAW

international law International law is the set of rules generally regarded and

accepted as binding in relations between states and nations.18

It serves as the indispensable framework for the practice ofstable and organized international relations.19 Internationallaw differs from national legal systems in that it primarilyconcerns nations rather than private citizens. Internationallaw is consent-based governance. This means that a statemember of the international community is not obliged to abideby international law unless it has expressly consented to aparticular course of conduct.20 International law iscategorized into three areas of law: public international law, privateinternational law or conflict of laws and the law of supranationalorganizations.

The body of rules and customs by which sovereign states areguided in their relations with each other21. International lawdiffers from national legal systems in that it primarilyconcerns nations rather than private citizens. National lawmay become international law when treaties delegate nationaljurisdiction to supranational tribunals such as the EuropeanCourt of Human Rights or the International Criminal Court.Treaties such as the Geneva Conventions may require nationallaw to conform.

All relationships between states, between states andinternational organisations and between international privatepersons.

International law is consent-based governance. This means that astate member of the international community is not obliged toabide by international law unless it has expressly consented

18 See generally I Brownlie, Principles of Public International Law (OUP 2008). 19 Slomanson, William (2011). Fundamental Perspectives on Internationa Law. Boston, USA:

Wadsworth. pp. 4-5.20 Id p. 4. 21 Slomanson, William (2011). Fundamental Perspectives on Internationa Law. Boston, USA: Wadsworth.

pp. 4-5.; see also I Brownlie, Principles of Public International Law (OUP 2008)

pg. 37


to a particular course of conduct. This is an issue of statesovereignty.

The term "international law" can refer to three distinct legaldisciplines:

public international lawPublic international law, which governs the relationship between states

and international entities. It includes these legal fields:treaty law, law of sea, international criminal law, the lawsof war or international humanitarian law and internationalhuman rights law. Public international law concerns relationshipsbetween sovereign nations, both during peacetime and wartime.The sources for public international law development arecustom or practice and treaties between sovereign nations,such as the Geneva Conventions. Customs (customary internationallaw) refers to “a general and consistent practice of states followed by themfrom a sense of legal obligation.”22 Such a belief by states thatcertain practices are legally binding upon them is known asopinio juris, or opinio juris et necessitatis.23 Treaties, also known as an(international) agreement, protocol, covenant, convention orexchange of letters, among other terms, are express agreementsunder international law entered into by actors ininternational law, namely sovereign states.24Treaties aregoverned by the Vienna Convention on Law of Treaties, and are ofvarious types. Public international law can be formed byinternational organisations, such as the United Nations, theInternational Labour Organisation or the World Trade Organisation.Public international law has a special status as law becausethere is no international police force, and courts (e.g. theInternational Court of Justice as the primary UN judicialorgan) lack the capacity to penalise disobedience. Theprevailing manner of enforcing international law is stillessentially ‘self help’; that is the reaction by states to

22 Restatement (Third) § 102(2).23 Lee A. Casey and David B. Rivkin, Jr., “International Law and the Nation-State at the U.N.:

A Guide for U.S. Policymakers,” Heritage Foundation Backgrounder at 7 (Aug. 18, 2006).24 Shaw, Malcolm. (2003). International Law, pp. 88–92.

pg. 38


alleged breaches of international obligations by otherstates.25 However, a few bodies, such as the WTO, haveeffective systems of binding arbitration and disputeresolution backed up by trade sanctions.26 The publicinternational law that governs warfare is called humanitarianlaw, and are codified in the Hague Convention, and GenevaConventions on the Laws of War.

The law that governs relationship between and or amongst (1)states; (2) relationship between states and individuals; and(3) relationship between states and internationalorganisations. 27. International law differs from nationallegal systems in that it primarily concerns nations ratherthan private citizens. National law may become internationallaw when treaties delegate national jurisdiction tosupranational tribunals such as the European Court of HumanRights or the International Criminal Court. Treaties such asthe Geneva Conventions may require national law to conform.

International legal theory International legal theory comprises a variety of theoretical and

methodological approaches used to explain and analyse thecontent, formation and effectiveness of public internationallaw and institutions and to suggest improvements. Someapproaches center on the question of compliance: why statesfollow international norms in the absence of a coercive powerthat ensures compliance. Other approaches focus on the problemof the formation of international rules: why statesvoluntarily adopt international legal norms, that limit theirfreedom of action, in the absence of a world legislature.Other perspectives are policy oriented; they elaboratetheoretical frameworks and instruments to criticize the

25 Robertson, Crimes against Humanity, 90; Schermers-Blokker, International InstitutionalLaw, 900–901.

26 Petersmann, The GATT/WTO Dispute Settlement System International Criminal Court, 32

27 Slomanson, William (2011). Fundamental Perspectives on Internationa Law. Boston, USA: Wadsworth.pp. 4-5.; see also I Brownlie, Principles of Public International Law (OUP 2008)

pg. 39

http://www.law2lawyer.com/2011/07/21/international-criminal-court/


existing rules and make suggestions on how to improve them.Some of these approaches are based on domestic legal theory,others are interdisciplinary, while others have been developedexpressly to analyse international law.

scope of public international lawAll relationships between states, between states and

international organisations and between international privatepersons.

International law is consent-based governance. This means that astate member of the international community is not obliged toabide by international law unless it has expressly consentedto a particular course of conduct. This is an issue of statesovereignty.

The term "international law" can refer to three distinct legaldisciplines:

1. Public international law, which governs the relationship betweenstates and international entities. It includes these legalfields: treaty law, law of sea, international criminal law,the laws of war or international humanitarian law andinternational human rights law.

2. Private international law, or conflict of laws, which addresses thequestions of (1) which jurisdiction may hear a case, and (2)the law concerning which jurisdiction applies to the issues inthe case.

3. Supranational law or the law of supranational organizations, which concernsregional agreements where the laws of nation states may beheld inapplicable when conflicting with a supranational legalsystem when that nation has a treaty obligation to asupranational collective.

The two traditional branches of the field are:1. jus gentium — law of nations2. jus inter gentes — agreements between nations

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sources of international law The sources of international law, that is, where a decision maker

or researcher looks to verify the substantive legal rule orprinciple are listed under Article 38.1 of the Statute of theInternational Court. There are two classifications of thesources of international law. The three primary sources areTreaties, international customs, and general principles. Thesecondary sources, also refered to as subsidiary sources ofinternational law, are judicial decisions and scholarlywritings.

customary international law, consuetudinary law, unofficial lawCustomary international law are those aspects of international

law that derive from custom. Along with general principles oflaw and treaties, custom is considered by the InternationalCourt of Justice, jurists, the United Nations, and its memberstates to be among the primary sources of international law.The International Court of Justice Statute defines customaryinternational law in Article 38(1)(b) as "evidence of ageneral practice accepted as law."28 This is generallydetermined through two factors: the general practice of statesand what states have accepted as law.29

There are several different kinds of customary international lawsrecognized by states. Some customary international laws riseto the level of jus cogens through acceptance by theinternational community as non-derogable rights, while othercustomary international law may simply be followed by a smallgroup of states. States are typically bound by customaryinternational law regardless of whether the states havecodified these laws domestically or through treaties.

Some international customary laws have been codified throughtreaties and domestic laws, while others are recognized onlyas customary law.

28 Statute of the International Court of Justice"29 Yoram Dinstein. 2004. The Conduct of Hostilities under the Law of International Armed Conflict, pp. 5.

Cambridge: Cambridge University Press.

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The laws of war, also known as jus in bello, were long a matter ofcustomary law before they were codified in the Hague Conventionsof 1899 and 1907, Geneva Conventions, and other treaties.However, these conventions do not purport to legal mattersthat may arise during war. Instead, Article 1(2) of AdditionalProtocol I dictates that customary international law governslegal matters concerning armed conflict not covered by otheragreements.30

Customary international law "... consists of rules of law derived from theconsistent conduct of States acting out of the belief that the law required them to actthat way."31 It follows that customary international law can bediscerned by a "widespread repetition by States of similarinternational acts over time (State practice); Acts must occurout of sense of obligation (opinio juris); Acts must be takenby a significant number of States and not be rejected by asignificant number of States."32 A marker of customaryinternational law is consensus among states exhibited both bywidespread conduct and a discernible sense of obligation. TheInternational Court of Justice held in Nicaragua v. United States33that the elements of an international customary law would beOpinio Juris (Past Judge Decisions or works of the most highlyqualified publicists) which is then proven by existing statepractices.34

Customary law, unlike treaties, is not a written source. As such,there are two basic requirements for a custom to be elevatedto the status of law. First, there must be widespread andconsistent State practice – ie States must, in general, have a

30 Yoram Dinstein. 2004. The Conduct of Hostilities under the Law of International Armed Conflict, pp. 6-7.Cambridge: Cambridge University Press; see also "Protocol Additional to the GenevaConventions of 12 August 1949, and Relating to the Protection of Victims of InternationalArmed Conflicts (Protocol I)". 8 June 1977. http://www.icrc.org/ihl.nsf/full/470?opendocument. Retrieved 30 May 2012.

31 Rosenne, Practice and Methods of International Law, p. 55.32 http://internationallaw.uslegal.com/sources-of-international-law/customary-international-

law/33 Official name: Military and Paramilitary Activities in and against Nicaragua (Nicaragua v.

United States of America), Jurisdiction and Admissibility, 1984 ICJ REP. 392 June 27, 1986.34 Malcom Shaw. 2008. International Law (Sixth Edition). New York: Cambridge University Press,

pp. 72-93

pg. 42


practice of according immunity to a visiting Head of State.Secondly, there has to be what is called “opinio juris”,usually translated as “a belief in legal obligation; ie Statesmust accord immunity because they believe they have a legalduty to do so. As the ICJ has put it:-

‘Not only must the acts concerned be a settled practice, but they must also be such, orbe carried out in such a way, as to be evidence of a belief that this practice isrendered obligatory by the existence of a rule requiring it. … The States concernedmust feel that they are conforming to what amounts to a legal obligation.’35

A new rule of customary international law cannot be createdunless both of these elements are present. Practice alone isnot enough36. Nor can a rule be created by opinio juris withoutactual practice.37

Customary law (also, consuetudinary or unofficial law) existswhere:

¯ a certain legal practice is observed and¯ the relevant actors consider it to be law (opinio juris).

jus cogens

A peremptory norm (also called jus cogens, Latin for "compellinglaw") is a fundamental principle of international law which isaccepted by the international community of states as a normfrom which no derogation is ever permitted. These norms rootedfrom Natural Law principles,38 and any laws conflicting with itshould be considered null and void. Examples include variousinternational crimes; a state which carries out or permitsslavery, torture, genocide, war of aggression, or crimesagainst humanity is always violating customary internationallaw.39 Jus cogens and customary international law are not

35 North Sea Continental Shelf cases, ICJ Reps, 1969, p. 3 at 4436 – see, e.g., the Case of the SS Lotus (1927)37 – see, e.g., the Advisory Opinion on Nuclear Weapons (1996).38 Władysław Czapliński. Jus Cogens and the Law of Treaties. In C.Tomuschat and J.M. Thouvenin

(eds). 2006. The Fundamental Rules of the International Legal Order, pp. 83-98. Netherlands:Koninklijke Brill NV

39 M. Cherif Bassiouni.1998. International Crimes: jus cogens and Obligatio Erga Omnes, Law &Contemporary Problems, 59: 63-74

pg. 43


interchangeable. All jus cogens are customary international lawthrough their adoption by states, but not all customaryinternational laws rise to the level of peremptory norms.States can deviate from customary international law byenacting treaties and conflicting laws, but jus cogens are non-derogable.

foreign relations lawForeign relations law encompasses both International Law, which

embodies the rules that determine the rights and obligationsof states and international organizations, and that part ofthe domestic law that involves matters of significant concernto the foreign relations.

opinio juris sive necessitatis Opinio juris sive necessitatis ("an opinion of law or necessity") or

simply opinio juris ("an opinion of law") is the belief thatan action was carried out because it was a legal obligation.This is in contrast to an action being the result of differentcognitive reaction, or behaviors that were habitual to theindividual. This term is frequently used in legal proceedingssuch as a defense for a case.

Opinio juris is the subjective element of custom as a source oflaw, both domestic and international, as it refers to beliefs.The other element is state practice, which is more objectiveas it is readily discernible. To qualify as state practice,the acts must be consistent and general internationalpractice.

A situation where opinio juris would be feasible is a caseconcerning self-defense. A condition must be met where theusage of force is limited to the situation at hand. The act ofstriking an attacker may be done with legal justification;however, legal territory limits the acceptability of such aclaim. Even in this case, the usage of force must beacceptable to the conditions of the environment, the attacker,

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and the physical conditions of the people involved, as well asany weapons or tools used.

opinio juris (international law)In international law, opinio juris is the subjective element which

is used to judge whether the practice of a state is due to abelief that it is legally obliged to do a particular act.40

When opinio juris exists and is consistent with nearly allstate practice, customary international law emerges. Opiniojuris essentially means that states must act in compliancewith the norm not merely out of convenience, habit,coincidence, or political expediency, but rather out of asense of legal obligation.41 Article 38(1)(b) of the Statute ofthe International Court of Justice accepts “internationalcustom” as a source of law, but only where this custom is 1)“evidence of a general practice,” (the objective component)(2) “accepted as law.” (the opinio juris or subjectivecomponent)42 Thus, for example, while it may be observed thatheads of state virtually always shake hands when they firstmeet, it is highly unlikely that they do so because theybelieve that a rule of international law requires it. On theother hand, a state would almost certainly expect some form oflegal repercussions if it were to prosecute a foreignambassador without the consent of his or her home state, andin this sense opinio juris does exist for the internationallaw rule of diplomatic immunity.

Because opinio juris refers to the psychological state of thestate actor—asking why the state behaved as it did—it can bedifficult to identify and to prove. In practice, a variety ofsources tend to be used to demonstrate the existence of opinio

40 Bederman, David J., International Law Frameworks (New York, New York: Foundation Press, 2001) at15-16

41 The full phrase—opinio juris sive necessitatis—is Latin for “opinion (or belief) aboutwhether law or necessity.” In other words, the requirement of opinio juris means that thecourt should decide whether the state practice has arisen due to a belief that the practicewas legally required, or whether it has merely acted out of necessity or convenience.

42 David Harris, Cases and Materials on International Law, Seventh Edition, Sweet and MaxwellPublishers, 2010.

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juris, including evidence such as diplomatic correspondence,press releases and other government statements of policy,opinions of legal advisers, official manuals on legalquestions, legislation, national and international judicialdecisions, legal briefs endorsed by the state, a pattern oftreaties ratified by the state that all include the sameobligation(s), resolutions and declarations by the UnitedNations, and other sources. In the Paquete Habana case(decided by the United States Supreme Court in 1900 on thequestion of whether small coastal fishing boats are immunefrom capture during war time under customary internationallaw), evidence of opinio juris included medieval English royalordinances, agreements between European nations, orders issuedto the U.S. Navy in earlier conflicts, and the opinions oflegal treatise writers.

Finally, the context, circumstances, and manner in which thestate practice is carried out can also be used to infer theexistence of opinio juris. As the ICJ stated in the North SeaContinental Shelf cases of 1969, “Not only must the acts concernedamount to a settled practice, but they must also be such, orbe carried out in such a way, as to be evidence of a beliefthat this practice is rendered obligatory by the existence ofa rule of law requiring it.” 43Nonetheless, it should be notedthat a state's motives can change over time, and that it isnot necessary that opinio juris be a significant impetus foreach instance of action. As Judge Lachs noted in a dissentingopinion in the North Sea Continental Shelf cases, “Atsuccessive stages in the development of the [customary] rulethe motives which have prompted States to accept it havevaried from case to case. It could not be otherwise. At allevents, to postulate that all States, even those whichinitiate a given practice, believe themselves to be acting

43 North Sea Continental Shelf, Judgment, I.C.J. Reports 1969, pp. 3, 45, para. 77.http://www.icj-cij.org/docket/files/51/5535.pdf

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under a legal obligation is to resort to a fiction, and infact to deny the possibility of developing such rules.”44

As difficult as it can be to prove why an actor did act in acertain way, it is exponentially more difficult to prove whyit did not act. For this reason, the necessity ofdemonstrating that a behavior was prompted by a sense of legalobligation makes it particularly difficult for customaryinternational law to develop around the prohibition of apractice. One important case in the development of moderncustomary international law theory is the S.S. Lotus case, inwhich France attempted to protest Turkey's assertion ofcriminal jurisdiction over a French citizen for acts committedon the high seas (outside of Turkey's territory). Francepresented a number of historical examples to demonstrate thatthe state of nationality or the state whose flag the ship hadflown had exclusive jurisdiction in cases such as this.However, the Permanent Court of International Justice (aprecursor to the ICJ) declared that the evidence showed merelythat “States had often, in practice, abstained frominstituting criminal proceedings, and not that they recognizedthemselves as being obliged to do so; for only if suchabstention were based on their being conscious of having aduty to abstain would it be possible to speak of aninternational custom.”45 This reasoning was cited approvinglyin the North Sea Shelf Continental Cases, which similarlydeclined to find the existence of customary law regarding theproper method to delimit territorial claims to the continentalshelf extending from the coastline of states bordering theNorth Sea.46 The ICJ also declined to find evidence ofcustomary international law in an opinion on the legality ofthe use or threat of nuclear weapons, despite what some arguedto be uniform state practice. As in the North Sea Continental

44 North Sea Continental Shelf, 1969 I.C.J. 4, 232-33 (Feb. 20) (dissenting opinion of JudgeLachs).

45 S.S. Lotus Case, 1927 P.C.I.J. (Ser. A) No. 10 (Fr. v. Tur.).46 North Sea Continental Shelf, Judgment, I.C.J. Reports 1969, pp. 3, 45,

para. 78.

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Shelf cases, it found that the mere fact that no state hadused nuclear weapons against another state since World War IIdid not reflect opinio juris. Some jurisdictions had pointedout that a series of U.N. resolutions had been issued “thatdeal with nuclear weapons and that affirm, with consistentregularity, the illegality of nuclear weapons,” and arguedthat this signified “the existence of a rule of internationalcustomary law which prohibits recourse to those weapons.”47

Nonetheless, the ICJ noted that states possessing nuclearweapons had almost always objected to these resolutions, whichstrongly suggests that those states did not believe that acustomary law prohibiting their use existed. Moreover, itnoted that the non-use of nuclear weapons could actuallyprovide evidence of their “use” as a deterrent force.48

This logical framework makes sense for existing norms ofcustomary international law, but it becomes problematic in thecontext of new or emerging customary rules. If a practice isnot currently governed by customary international law, then itis illogical to inquire into a state's beliefs about thelegality of engaging in or abstaining from that practice,i.e., to ask whether it believed that its practice was incompliance with a law that does not yet exist. This paradoxmay be resolved to some extent by the idea of“crystallization” of customary international law, in whichpractice and legal obligation evolve jointly and eventuallyripen into law. Under one model, this process occurs in threestages: first, some jurisdictions engage in a given practicefor reasons other than a sense of legal obligation (e.g.political expediency, economic gain, courtesy, etc.); next,States reinforce the practice by engaging in it or makingclaims based upon it, creating loops of reciprocity andreliance based on expectations that the practice willcontinue; finally, as these relationships expand in number and

47 "Legality of the Threat or Use of Nuclear Weapons" - Advisory Opinion of 8 July 1996 -General List No. 95 (1995-1998), par. 68. http://www.icj-cij.org/docket/files/95/7494.pdf

48 "Legality of the Threat or Use of Nuclear Weapons" - Advisory Opinion of 8 July 1996 -General List No. 95 (1995-1998), par. 67. http://www.icj-cij.org/docket/files/95/7494.pdf

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complexity, they eventually harden into a general rule. Inthis final stage, as more States become aware of the conductand actively participate or at least passively acquiesce tothe practice, the States' actions begin to be undergirded by abelief that they are complying with an emerging customaryrule.

jus cogens

A peremptory norm (also called jus cogens, Latin for "compelling law")is a fundamental principle of international law which isaccepted by the international community of states as a normfrom which no derogation is ever permitted. These norms rootedfrom Natural Law principles,49 and any laws conflicting with itshould be considered null and void.50 Examples include variousinternational crimes; a state which carries out or permitsslavery, torture, genocide, war of aggression, or crimesagainst humanity is always violating customary internationallaw.51 Jus cogens and customary international law are notinterchangeable. All jus cogens are customary international lawthrough their adoption by states, but not all customaryinternational laws rise to the level of peremptory norms.States can deviate from customary international law byenacting treaties and conflicting laws, but jus cogens are non-derogable. However, treaties cannot purport to be contrary tojus cogens.

treaty A treaty is an express agreement under international law entered

into by actors in international law, namely sovereign statesand international organizations. A treaty may also be known asan (international) agreement, protocol, covenant, contract,convention, pact, or exchange of letters, among other terms.

49 Władysław Czapliński. Jus Cogens and the Law of Treaties. In C.Tomuschat and J.M. Thouvenin(eds). 2006. The Fundamental Rules of the International Legal Order, pp. 83-98. Netherlands:Koninklijke Brill NV

50 Article 53 of the Vienna Conventions on the Law of Treaties (1969)51 M. Cherif Bassiouni.1998. International Crimes: jus cogens and Obligatio Erga Omnes, Law &

Contemporary Problems, 59: 63-74

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Regardless of terminology, all of these forms of agreementsare, under international law, equally considered treaties andthe rules are the same. 52Treaties can be loosely compared tocontracts: both are means of willing parties assumingobligations among themselves, and a party to either that failsto live up to their obligations can be held liable underinternational law. Hence, whereas treaties create acontractual obligation, customary international laws lead tolegal obligations outside, and beyond contractual obligationsbetween or amongst the member states, to principles generallyapplicable. Treaties are not necessarily permanently bindingupon the signatory parties. As obligations in internationallaw are traditionally viewed as arising only from the consentof states, many treaties expressly allow a state to withdrawas long as it follows certain procedures of notification. Manytreaties expressly forbid withdrawal. Other treaties aresilent on the issue, and so if a state attempts withdrawalthrough its own unilateral denunciation of the treaty, adetermination must be made regarding whether permittingwithdrawal is contrary to the original intent of the partiesor to the nature of the treaty. Human rights treaties, forexample, are generally interpreted to exclude the possibilityof withdrawal, because of the importance and permanence of theobligations. However, the principles of customaryinternational law are permanently binding on the statemembers.

pacta sunt servandaThe doctrine of pacta sunt servanda under Article 26 of the

Vienna Convention, which establishes that ‘every internationalagreement in force is binding upon the parties to it and mustbe performed by them in good faith’ also reinforces states’obligations not to interpose their own domestic laws asjustifications for non-compliance with internationalagreements. However, several provisions of the law of treaties

52 Shaw, Malcolm. (2003). International Law, pp. 88–92.

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may require certain modifications before application tointernational organisations given the peculiarities. It isbecause of this recognition that the Vienna Convention of the Law ofTreaties provides at Article 5 that treaties constitutinginternational organisations and treaties adopted within aninternational organisation without prejudice to any relevantrules of the organisation.

amending treatyAn existing treaty can be amended, and which is not possible for

customary international law since the principles of customaryinternational law are permanently binding, and non derogable.

treaty execution or treaty implementationIn monoist legal regimes, treaties are 'self-executing', in that

merely becoming a party puts the treaty and all of itsobligations in action. However, in dualist legal systems, thetreaty has to be domesticated through a municipal legislation,or statute, to make it implementable. Further, certaintreaties may be so worded as to be self-executing. However,the principles of customary international law are applicablewithout need for country adoption, purely based on the factthat they are customs53.

treaty interpretation or principle of maximum effectiveness The language of treaties, like that of any law or contract, must

be interpreted when the wording does not seem clear or it isnot immediately apparent how it should be applied in a perhapsunforeseen circumstance. The Vienna Convention states thattreaties are to be interpreted “in good faith” according tothe “ordinary meaning given to the terms of the treaty intheir context and in the light of its object and purpose.”International legal experts also often invoke the 'principleof maximum effectiveness,' which interprets treaty language ashaving the fullest force and effect possible to establishobligations between the parties. No one party to a treaty can

53 Vienna Convention on the Law of Treaties, Article II, Reservations.

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impose its particular interpretation of the treaty upon theother parties. Consent may be implied, however, if the otherparties fail to explicitly disavow that initially unilateralinterpretation, particularly if that state has acted upon itsview of the treaty without complaint. Consent by all partiesto the treaty to a particular interpretation has the legaleffect of adding an additional clause to the treaty – this iscommonly called an 'authentic interpretation'. Internationaltribunals and arbiters are often called upon to resolvesubstantial disputes over treaty interpretations. To establishthe meaning in context, these judicial bodies may review thepreparatory work from the negotiation and drafting of thetreaty as well as the final, signed treaty itself. On theother hand, principles of customary international law are notinterpreted, but rather, used in the interpretation of treatyterms.

ultra vires treaty or null treatyA party's consent to a treaty is invalid if it had been given by

an agent or body without power to do so under that state'sdomestic law. States are reluctant to inquire into theinternal affairs and processes of other states, and so a“manifest” violation is required such that it would be“objectively evident to any State dealing with the matter". Astrong presumption exists internationally that a head of statehas acted within his proper authority. Consent is also invalidif it is given by a representative who ignored restrictions heis subject to by his sovereign during the negotiations, if theother parties to the treaty were notified of thoserestrictions prior to his signing. According to the preamblein The Law of Treaties, treaties are a source of internationallaw.54 A treaty is null and void if it is in violation of aperemptory norm. These norms, unlike other principles ofcustomary law, are recognized as permitting no violations andso cannot be altered through treaty obligations. These are

54 Nicolson, Harold. (1934). Diplomacy, p. 135.

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limited to such universally accepted prohibitions as thoseagainst genocide, slavery, torture, and piracy, meaning thatno state can legally assume an obligation to commit or permitsuch acts. This is a provision that does not apply tocustomary international law which has reached the level of juscogens55.

treaty registration The United Nations Charter states that treaties must be

registered with the UN to be invoked before it or enforced inits judiciary organ, the International Court of Justice. Thiswas done to prevent the proliferation of secret treaties thatoccurred in the 19th and 20th century. Section 103 of theCharter also states that its members' obligations under itoutweigh any competing obligations under other treaties.However, in matters concerning customary international law,there is neither a need, nor a register, of customaryinternational law.

codification of customary international lawSome international customary laws have been codified through

treaties and domestic laws, while others are recognized onlyas customary law. The laws of war, also known as jus in bello, werelong a matter of customary law before they were codified inthe Hague Conventions of 1899 and 1907, Geneva Conventions,and other treaties. However, these conventions do not purportto legal matters that may arise during war. Instead, Article1(2) of Additional Protocol I dictates that customaryinternational law governs legal matters concerning armedconflict not covered by other agreements.56 To this extent,treaties represent partial codification of customaryinternational law.

55 Article 3, Draft Articles on Responsibility of States for Internationally Wrongful ActsAdopted by ILC 53 session 2001.

56 "Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to theProtection of Victims of International Armed Conflicts (Protocol I)". 8 June 1977. Retrieved30 May 2012.; see also Yoram Dinstein. 2004. The Conduct of Hostilities under the Law ofInternational Armed Conflict, pp. 6-7. Cambridge: Cambridge University Press.

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monismMonists assume that the internal and international legal systems

form a unity. Both national legal rules and internationalrules that a state has accepted, for example by way of atreaty, determine whether actions are legal or illegal.57 Inmost monist states, a distinction between international law inthe form of treaties, and other international law, e.g. juscogens is made. International law does not need to betranslated into national law. The act of ratifying theinternational law immediately incorporates the law intonational law. International law can be directly applied by anational judge, and can be directly invoked by citizens, justas if it were national law. A judge can declare a nationalrule invalid if it contradicts international rules because, insome jurisdictions, the latter have priority. In other states,like in Germany, treaties have the same effect as legislation,and by the principle of lex posterior, only take precedence overnational legislation enacted prior to their ratification. Inits most pure form, monism dictates that national law thatcontradicts international law is null and void, even if itpredates international law, and even if it is theconstitution. From a human rights point of view, for example,this has some advantages. Suppose a country has accepted ahuman rights treaty - the International Covenant on Civil andPolitical Rights for instance - but some of its national lawslimit the freedom of the press. A citizen of that country, whois being prosecuted by his state for violating this nationallaw, can invoke the human rights treaty in a nationalcourtroom and can ask the judge to apply this treaty and todecide that the national law is invalid. He or she does nothave to wait for national law that translates internationallaw. His or her government can, after all, be negligent oreven unwilling to translate. The treaty was perhaps only

57 Pieter Kooijmans, Internationaal publiekrecht in vogelvlucht, Wolters-Noordhoff, Groningen, 1994, p. 82.

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http://en.wikipedia.org/wiki/Pieter_Kooijmans


accepted for political reasons, in order to please donor-countries for example.

‘So when someone in Holland feels his human rights are being violated he can go to aDutch judge and the judge must apply the law of the Convention. He must applyinternational law even if it is not in conformity with Dutch law’.58

dualismDualists emphasize the difference between national and

international law, and require the translation of the latterinto the former. Without this translation, international lawdoes not exist as law. International law has to be nationallaw as well, or it is no law at all. If a state accepts atreaty but does not adapt its national law in order to conformto the treaty or does not create a national law explicitlyincorporating the treaty, then it violates international law.But one cannot claim that the treaty has become part ofnational law. Citizens cannot rely on it and judges cannotapply it. National laws that contradict it remain in force.According to dualists, national judges never applyinternational law, only international law that has beentranslated into national law.

‘International law as such can confer no rights cognisable in the municipal courts. It isonly insofar as the rules of international law are recognized as included in the rulesof municipal law that they are allowed in municipal courts to give rise to rights andobligations’.59

The supremacy of international law is a rule in dualist systemsas it is in monist systems. Judge Sir Hersch Lauterpachtpointed out the Court's determination to discourage theevasion of international obligations, and its repeatedaffirmation of:

58 G.J. Wiarda, in Antonio Cassese, International Law in a Divided World, Clarendon Press, Oxford, 1992, p. 17.

59 James Atkin, Baron Atkin, in M. Akehurst, Modern Introduction to International Law, Harper Collins, London, p. 45.

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http://en.wikipedia.org/wiki/London

http://en.wikipedia.org/wiki/James_Atkin,_Baron_Atkin

http://en.wikipedia.org/wiki/Oxford

http://en.wikipedia.org/wiki/Antonio_Cassese


‘…the self-evident principle of international law that a State cannot invoke its municipallaw as the reason for the non-fulfillment of its international obligations’.60

If international law is not directly applicable, as is the casein dualist systems, then it must be translated into nationallaw, and existing national law that contradicts internationallaw must be ‘translated away’. It must be modified oreliminated in order to conform to international law.

Again, from a human rights point of view, if a human rightstreaty is accepted for purely political reasons, and states donot intend to fully translate it into national law or to takea monist view on international law, then the implementation ofthe treaty is very uncertain.61

In some countries, such as the UK for instance, the dualist viewis predominant. International law is only part of Britishnational law once it is accepted in national law. A treaty

‘has no effect in municipal law until an Act of Parliament is passed to give effect to it. Inother countries this distinction tends to be blurred. In the vast majority ofdemocratic countries outside the Commonwealth, the legislature, or part of thelegislature, participates in the process of ratification, so that ratification becomes alegislative act, and the treaty becomes effective in international law and inmunicipal law simultaneously. For instance, the Constitution of the United Statesprovides that the President 'shall have power, by and with the advice and consent ofthe Senate, to make treaties, provided two-thirds of the Senators present concur'.Treaties ratified in accordance with the Constitution automatically become part ofthe municipal law of certain jurisdictions (the US)A’.62

International law does not determine which point of view is to bepreferred, monism or dualism. Every state decides for itself,according to its legal traditions. International law onlyrequires that its rules are respected, and states are free to

60 See The Development of International Law by the International Court, Hersch Lauterpacht (ed), Cambridge University Press, 1982, ISBN 0521463327,page 262

61 A. Cassese, op. cit., p. 15.62 M. Akehurst, op. cit., p. 45.

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http://books.google.com/books?id=piU8AAAAIAAJ&lpg=PA261&ots=Og6Yhjh177&pg=PA262#v=onepage&q&f=false




decide on the manner in which they want to respect these rulesand make them binding on its citizens and agencies.

‘The transformation of international norms into domestic law is not necessary from thepoint of view of international law…the necessity of transformation is a question ofnational, not of international law’.63

Both a monist state and a dualist state can comply withinternational law. However, monist state is less at risk ofviolating international rules, because its judges can applyinternational law directly.64 Negligence or unwillingness totranslate international law, or delays of translation, ormisinterpretation of international law in national law canonly pose a problem in dualist states. States are free tochoose the way in which they want to respect internationallaw, but they are always accountable if they fail to adapttheir national legal system in a way that they can respectinternational law. Either they adopt a constitution thatimplements a monist system so that international law can beapplied directly and without transformation, or they do not.But then they have to translate all international law innational law. In a monist state we rely only on the judges andnot on the legislators, but judges can also be negligent andthey can also make mistakes. If a judge in a monist statesmakes mistakes when applying international law, then thecountry violates international law just as much as a dualistcountry that, for one reason or another, does not allow itsjudges to apply international law directly and fails totranslate or fails to translate correctly and effectively.65

One reason for preferring dualism is precisely the fear thatnational judges are not familiar with international law - a

63 Antonio Cassese, International Law in a Divided World, Clarendon Press, Oxford, 1992, p. 17.



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highly complex field of law - and hence are liable to makemistakes.

reception clauseAs part of the colonial legacy, in ex-colonies like Uganda,

foreign laws, which were either enacted by the legislatures offormer colonial powers or otherwise developed and introducedin the colony during the colonial period, continue to formpart of the laws applicable in the independent states. Theterm “Reception clause” therefore refers to the legalprovisions providing for the application or introduction oflaws which were in force in the colonizing country into thecolonies. This was by virtue of the Uganda Orders in Council.

lex posterior (international law)In dualist systems, international law must be translated into

national law, and existing national law that contradictsinternational law must be ‘translated away’. It must bemodified or eliminated in order to conform to internationallaw. However, the need for translation in dualist systemcauses a problem with regard to national laws voted after theact of translation. In a monist system, a national law that isvoted after an international law has been accepted and thatcontradicts the international law becomes automatically nulland void at the moment it is voted. The international rulecontinues to prevail. In a dualist system, however, theoriginal international law has been translated into nationallaw - if all went well - but this national law can then beoverridden by another national law on the principle of ‘lexposterior derogat legi priori’, the later law replaces the earlierone. This means that the country - willingly or unwillingly -violates international law.66 A dualist system requirescontinuous screening of all subsequent national law forpossible incompatibility with earlier international law.


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SOURCES OF INTERNATIONAL LAW

Sources of law definitionSources of law means the origin from which rules of human conduct

come into existence and derive legal force or bindingcharacters. It also refers to the sovereign or the state fromwhich the law derives its force or validity. Several factorsof law have contributed to the development of law. Thesefactors are regarded as the sources of law.

Sources of ADR law are found in various areas, but mainyl limitedto statutes, constitution, statutes, and precedents.

These are explanined below:constitution A constitution is a set of fundamental principles or established

precedents according to which a state or other organization isgoverned.67 The constitution, whether written, or not written,is the grundnorm: the main source of law in any nation. Whenthese principles are written down into a single or set oflegal documents, those documents are called a writtenconstitution. Every country’s Constitution is the documentthat outlays the principles upon which it is to be run.

Precedents, judge-made law, case lawPrecedent is one of the sources of law. The judgements passed by

some of the learned jurists became another significant sourceof law. When there is no legislature on particular point whicharises in changing conditions, the judges depend on their ownsense of right and wrong and decide the disputes. Suchdecisions become authority or guide for subsequent cases of asimilar nature and they are called precedents. The dictionaryof English law defines a judicial precedent as a judgement ordecision of a court of law cited as an authority for decidinga similar state of fact in the same manner or on the same


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principle or by analogy. Precedent is more flexible thanlegislation and custom. It is always ready to be used.

Customs , customary international law A custom is a rule which in a particular family or in a

particular district or in a particular section, classes ortribes, has from long usage obtained the force of law. Thedictionary of English law defines custom as a law not written,which being established by long use and consent of ourancestors has been and daily is put into practice. Custom as asource of law got recognition since the emergence ofsovereignty on the horizon of jurisprudence. It is anexemption to the ordinary law of the land, and every custom islimited in its application. They are practices that have to berepeated for a period of time.

LegislationLegislation is that source of law which consists in the

declaration of legal rules by a competent authority.Legislature is the direct source of law. Legislature framesnew laws, amends the old laws and cancels existing laws in allcountries. In modern times this is the most important sourceof law making. The term legislature means any form of lawmaking. Its scope has now been restricted to a particular formof law making. It not only creates new rules of law it alsosweeps away existing inconvenient rules.

From the definition of politician Mohamed Abdullahi Farmajo,defines legislation as Legislation (or "statutory law") is lawwhich has been promulgated (or "enacted") by a legislature orother governing body, or the process of making it. (Anothersource of law is judge-made law or case law.) Before an itemof legislation becomes law it may be known as a bill, and maybe broadly referred to as "legislation" while it remains underconsideration to distinguish it from other business.Legislation can have many purposes: to regulate, to authorize,

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to proscribe, to provide (funds), to sanction, to grant, todeclare or to restrict. It can also be redistricted.

Preparatory works, Legislative historyIn some legal cultures, some of the documents produced in the

process leading up to legislation are subsequently used asguidelines on how to interpret and understand an act oflegislation.

Treaties and declarations as sources of law The international legal promulgations, in the form of charters,

agreements, treaties, protocols, and declarations, can alsolead to change in municipal legal regime, through legaltrnaspation doctrine, domestication, codification, and ormonoist legal implementaion by member states.

AgreementsThe term "agreement" can have a generic and a specific meaning.

It also has acquired a special meaning in the law of regionaleconomic integration.

(a) Agreement as a generic term: The 1969 Vienna Convention onthe Law of Treaties employs the term "international agreement"in its broadest sense. On the one hand, it defines treaties as"international agreements" with certain characteristics. Onthe other hand, it employs the term "international agreements"for instruments, which do not meet its definition of "treaty".Its Art.3 refers also to "international agreements not inwritten form". Although such oral agreements may be rare, theycan have the same binding force as treaties, depending on theintention of the parties. An example of an oral agreementmight be a promise made by the Minister of Foreign Affairs ofone State to his counterpart of another State. The term"international agreement" in its generic sense consequentlyembraces the widest range of international instruments.

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(b) Agreement as a particular term: "Agreements" are usually lessformal and deal with a narrower range of subject-matter than"treaties". There is a general tendency to apply the term"agreement" to bilateral or restricted multilateral treaties.It is employed especially for instruments of a technical oradministrative character, which are signed by therepresentatives of government departments, but are not subjectto ratification. Typical agreements deal with matters ofeconomic, cultural, scientific and technical cooperation.Agreements also frequently deal with financial matters, suchas avoidance of double taxation, investment guarantees orfinancial assistance. The UN and other internationalorganizations regularly conclude agreements with the hostcountry to an international conference or to a session of arepresentative organ of the Organization. Especially ininternational economic law, the term "agreement" is also usedas a title for broad multilateral agreements (e.g. thecommodity agreements). The use of the term "agreement" slowlydeveloped in the first decades of this century. Nowadays byfar the majority of international instruments are designatedas agreements.

(c) Agreements in regional integration schemes: Regionalintegration schemes are based on general framework treatieswith constitutional character. International instruments whichamend this framework at a later stage (e.g. accessions,revisions) are also designated as "treaties". Instruments thatare concluded within the framework of the constitutionaltreaty or by the organs of the regional organization areusually referred to as "agreements", in order to distinguishthem from the constitutional treaty. For example, whereas theTreaty of Rome of 1957 serves as a quasi-constitution of theEuropean Community, treaties concluded by the EC with othernations are usually designated as agreements. Also, the LatinAmerican Integration Association (LAIA) was established by theTreaty of Montevideo of 1980, but the subregional instrumentsentered into under its framework are called agreements.

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Charters (international law)The term "charter" is used for particularly formal and solemn

instruments, such as the constituent treaty of aninternational organization. The term itself has an emotivecontent that goes back to the Magna Carta of 1215. Well-knownrecent examples are the Charter of the United Nations of 1945and the Charter of the Organization of American States of1952.

Conventions (international law)The term "convention" again can have both a generic and a

specific meaning. (a) Convention as a generic term: Art.38 (1) (a) of the Statute

of the International Court of Justice refers to "internationalconventions, whether general or particular" as a source oflaw, apart from international customary rules and generalprinciples of international law and - as a secondary source -judicial decisions and the teachings of the most highlyqualified publicists. This generic use of the term"convention" embraces all international agreements, in thesame way as does the generic term "treaty". Black letter lawis also regularly referred to as "conventional law", in orderto distinguish it from the other sources of international law,such as customary law or the general principles ofinternational law. The generic term "convention" thus issynonymous with the generic term "treaty".

(b) Convention as a specific term: Whereas in the last centurythe term "convention" was regularly employed for bilateralagreements, it now is generally used for formal multilateraltreaties with a broad number of parties. Conventions arenormally open for participation by the international communityas a whole, or by a large number of states. Usually theinstruments negotiated under the auspices of an internationalorganization are entitled conventions (e.g. Convention onBiological Diversity of 1992, United Nations Convention on the

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Law of the Sea of 1982, Vienna Convention on the Law ofTreaties of 1969). The same holds true for instruments adoptedby an organ of an international organization (e.g. the 1951ILO Convention concerning Equal Remuneration for Men and WomenWorkers for Work of Equal Value, adopted by the InternationalLabour Conference or the 1989 Convention on the Rights of theChild, adopted by the General Assembly of the UN).

DeclarationsThe term "declaration" is used for various international

instruments. However, declarations are not always legallybinding. The term is often deliberately chosen to indicatethat the parties do not intend to create binding obligationsbut merely want to declare certain aspirations. An example isthe 1992 Rio Declaration. Declarations can however also betreaties in the generic sense intended to be binding atinternational law. It is therefore necessary to establish ineach individual case whether the parties intended to createbinding obligations. Ascertaining the intention of the partiescan often be a difficult task. Some instruments entitled"declarations" were not originally intended to have bindingforce, but their provisions may have reflected customaryinternational law or may have gained binding character ascustomary law at a later stage. Such was the case with the1948 Universal Declaration of Human Rights. Declarations thatare intended to have binding effects could be classified asfollows:

(a) A declaration can be a treaty in the proper sense. Asignificant example is the Joint Declaration between theUnited Kingdom and China on the Question of Hong Kong of 1984.

(b) An interpretative declaration is an instrument that isannexed to a treaty with the goal of interpreting orexplaining the provisions of the latter.

(c) A declaration can also be an informal agreement with respectto a matter of minor importance.

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(d) A series of unilateral declarations can constitute bindingagreements. A typical example are declarations under theOptional Clause of the Statute of the International Court ofJustice that create legal bonds between the declarants,although not directly addressed to each other. Another exampleis the unilateral Declaration on the Suez Canal and thearrangements for its operation issued by Egypt in 1957 whichwas considered to be an engagement of an internationalcharacter.

Exchange of NotesAn "exchange of notes" is a record of a routine agreement, that

has many similarities with the private law contract. Theagreement consists of the exchange of two documents, each ofthe parties being in the possession of the one signed by therepresentative of the other. Under the usual procedure, theaccepting State repeats the text of the offering State torecord its assent. The signatories of the letters may begovernment Ministers, diplomats or departmental heads. Thetechnique of exchange of notes is frequently resorted to,either because of its speedy procedure, or, sometimes, toavoid the process of legislative approval.

Memoranda of UnderstandingA memorandum of understanding is an international instrument of a

less formal kind. It often sets out operational arrangementsunder a framework international agreement. It is also used forthe regulation of technical or detailed matters. It istypically in the form of a single instrument and does notrequire ratification. They are entered into either by Statesor International Organizations. The United Nations usuallyconcludes memoranda of understanding with Member States inorder to organize its peacekeeping operations or to arrange UNConferences. The United Nations also concludes memoranda ofunderstanding on cooperation with other internationalorganizations.

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Modus VivendiA modus vivendi is an instrument recording an international

agreement of temporary or provisional nature intended to bereplaced by an arrangement of a more permanent and detailedcharacter. It is usually made in an informal way, and neverrequires ratification.

ProtocolsThe term "protocol" is used for agreements less formal than those

entitled "treaty" or "convention". The term could be used tocover the following kinds of instruments:

(a) A Protocol of Signature is an instrument subsidiary to atreaty, and drawn up by the same parties. Such a Protocoldeals with ancillary matters such as the interpretation ofparticular clauses of the treaty, those formal clauses notinserted in the treaty, or the regulation of technicalmatters. Ratification of the treaty will normally ipso factoinvolve ratification of such a Protocol.

(b) An Optional Protocol to a Treaty is an instrument thatestablishes additional rights and obligations to a treaty. Itis usually adopted on the same day, but is of independentcharacter and subject to independent ratification. Suchprotocols enable certain parties of the treaty to establishamong themselves a framework of obligations which reachfurther than the general treaty and to which not all partiesof the general treaty consent, creating a "two-tier system".The Optional Protocol to the International Covenant on Civiland Political Rights of 1966 is a well-known example.

(c) A Protocol based on a Framework Treaty is an instrument withspecific substantive obligations that implements the generalobjectives of a previous framework or umbrella convention.Such protocols ensure a more simplified and acceleratedtreaty-making process and have been used particularly in thefield of international environmental law. An example is the1987 Montreal Protocol on Substances that Deplete the Ozone

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Layer adopted on the basis of Arts.2 and 8 of the 1985 ViennaConvention for the Protection of the Ozone Layer.

(d) A Protocol to amend is an instrument that containsprovisions that amend one or various former treaties, such asthe Protocol of 1946 amending the Agreements, Conventions andProtocols on Narcotic Drugs.

(e) A Protocol as a supplementary treaty is an instrument whichcontains supplementary provisions to a previous treaty, e.g.the 1967 Protocol relating to the Status of Refugees to the1951 Convention relating to the Status of Refugees.

(f) A Proces-Verbal is an instrument that contains a record ofcertain understandings arrived at by the contracting parties.

Signatories and PartiesThe term “Parties", which appears in the header of each treaty,

in the publication Multilateral Treaties Deposited with theSecretary-General, includes both "Contracting States" and"Parties". For general reference, the term "ContractingStates" refers to States and other entities with treaty-makingcapacity which have expressed their consent to be bound by atreaty where the treaty has not yet entered into force orwhere it has not entered into force for such States andentities; the term "Parties" refers to States and otherentities with treaty-making capacity which have expressedtheir consent to be bound by a treaty and where the treaty isin force for such States and entities.)

TreatiesThe term "treaty" can be used as a common generic term or as a

particular term which indicates an instrument with certaincharacteristics.

(a) Treaty as a generic term: The term "treaty" has regularlybeen used as a generic term embracing all instruments bindingat international law concluded between international entities,regardless of their formal designation. Both the 1969 Vienna

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Convention and the 1986 Vienna Convention confirm this genericuse of the term "treaty". The 1969 Vienna Convention defines atreaty as "an international agreement concluded between Statesin written form and governed by international law, whetherembodied in a single instrument or in two or more relatedinstruments and whatever its particular designation". The 1986Vienna Convention extends the definition of treaties toinclude international agreements involving internationalorganizations as parties. In order to speak of a "treaty" inthe generic sense, an instrument has to meet various criteria.First of all, it has to be a binding instrument, which meansthat the contracting parties intended to create legal rightsand duties. Secondly, the instrument must be concluded bystates or international organizations with treaty-makingpower. Thirdly, it has to be governed by international law.Finally the engagement has to be in writing. Even before the1969 Vienna Convention on the Law of Treaties, the word"treaty" in its generic sense had been generally reserved forengagements concluded in written form.

delegated legislation, secondary legislation or subordinatelegislation or subsidiary legislation

Delegated legislation (also referred to as secondary legislationor subordinate legislation or subsidiary legislation) is lawmade by an executive authority under powers given to them byprimary legislation in order to implement and administer therequirements of that primary legislation. It is law made by aperson or body other than the legislature but with thelegislature's authority.

Often, a legislature passes statutes that set out broad outlinesand principles, and delegates authority to an executive branchofficial to issue delegated legislation that flesh out thedetails (substantive regulations) and provide procedures forimplementing the substantive provisions of the statute andsubstantive regulations (procedural regulations). Delegatedlegislation can also be changed faster than primary

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legislation so legislatures can delegate issues that may needto be fine-tuned through experience.

by-laws, code, bylaw, by law, byelaw , ordinance A by-law (sometimes also spelled bylaw, by law or byelaw) is a

rule or law established by an organization or community toregulate itself, as allowed or provided for by some higherauthority. The higher authority, generally a legislature orsome other governmental body, establishes the degree ofcontrol that the by-laws may exercise. By-laws may beestablished by entities such as a business corporation, aneighborhood association, or depending on the jurisdiction, amunicipality. Usually, the central government (and usually thestate governments) has no direct ability to regulate the scopeof the laws passed by the municipalities. As such terms suchas code, ordinance, or regulation, if not simply law are morecommon.

ordinance, By-law, Local ordinance, Act of ParliamentAn ordinance is an authoritative rule or law; a decree or

command. a public injunction or regulation: a city ordinanceagainst excessive horn blowing. something believed to havebeen ordained, as by a deity or destiny.

The ordiance can also be:¯ By-law, a rule established by an organization to regulate itself¯ Local ordinance, a law made by a municipality or other local authority¯ Act of Parliament, in some jurisdictions, such as England when the parliament

operated without regal sanction, and a number of British colonies.

regulation, self-regulation, co-regulation, legal restrictions A regulation is a legal norm intended to shape conduct that is a

byproduct of imperfection.68 A regulation may be used toprescribe or proscribe conduct ("command-and-control"regulation), to calibrate incentives ("incentive" regulation),or to change preferences ("preferences shaping" regulation").69

68 Orbach, Barak, What Is Regulation? 30 Yale Journal on Regulation Online 1 (2012)69 id.

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In statist mechanisms it can also be extended to monitoringand enforcement of rules as established by primary and/ordelegated legislation. In this form, it is generally a writteninstrument containing rules having the force of statist law.(as opposed to natural law). Other forms of regulation areself regulation. In general, regulations are written byexecutive agencies as a way to enforce laws passed by thelegislature. Because of the actual or potential interferencein choices, the idea of regulation and most issues related toregulation tend to be in controversy.70

Regulation creates, limits, constrains a right, creates or limitsa duty, or allocates a responsibility. Regulation can takemany forms: legal restrictions promulgated by a governmentauthority, contractual obligations that bind many parties (forexample, "insurance regulations" that arise out of contractsbetween insurers and their insureds), self-regulation by anindustry such as through a trade association, socialregulation (e.g. norms), co-regulation, third-partyregulation, certification, accreditation or market regulation.In its legal sense regulation can and should be distinguishedfrom primary legislation (by Parliament of elected legislativebody) on the one hand and judge-made law on the other.71

ministerial directives, ministerial orders, ministerial memorandaThe responsible Minister may issue directions from time to time

to clarify the management, reporting and otherresponsibilities of institute boards, and to give direction onthe employment of staff, charging fees, or other specificmatters. Some Directions are also given to ministries,departments, and agencies. The purposes of the Directions areto remake directions relating to employment of staff and torepeal earlier directions that are no longer required with themaking of the strategic planning guidelines and commercialguidelines.

70 Orbach (2012)71 Levi-Faur, David, Regulation and Regulatory Governance, Jerusalem Papers in Regulation and

Governance, No.1, 2010

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Executive Memoranda Copies of detailed information sent to CEOs of ministries,

departments, and agencies accompanying Ministerial Directions.Presidential directives Presidential directives are considered a form of executive order

issued by the President with the advice and consent of aministry, agency or department within the Executive branch ofgovernment.

presidential executive ordersThe Constitution refers to the title of President as the

executive. Presidents issue executive orders to help officersand agencies of the executive branch manage the operationswithin the government. Executive orders have the full force oflaw when they take authority from a legislative power whichgrants its power directly to the Executive by theConstitution, or are made pursuant to certain Acts ofCongress/Parliament that explicitly delegate to the Presidentsome degree of discretionary power (delegated legislation).Like both legislative statutes and regulations promulgated bygovernment agencies, executive orders are subject to judicialreview, and may be struck down if deemed by the courts to beunsupported by statute or the Constitution. Major policyinitiatives require approval by the legislative branch, butexecutive orders have significant influence over the internalaffairs of government, deciding how and to what degreelegislation will be enforced, dealing with emergencies, waging72-hour length strikes on enemies, and in general fine-tuningpolicy choices in the implementation of broad statutes.Mostexecutive orders use these Constitutional reasonings as theauthorization allowing for their issuance to be justified aspart of the President's sworn duties, the intent being to helpdirect officers of the Executive carry out their delegatedduties as well as the normal operations of the federal

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government: the consequence of failing to comply possiblybeing the removal from office.

decreesA decree is a rule of law usually issued by a head of state (such

as the president of a republic or a monarch), according tocertain procedures (usually established in a constitution). Ithas the force of law. The particular term used for thisconcept may vary from country to country. The executive ordersmade by the President of the United States, for example, aredecrees (although a decree is not exactly an order). In non-legal English usage, however, the term refers to anyauthoritarian decision. The Holy See uses decrees from thepope such as papal bull, papal brief or motu proprio aslegislative acts.

edict An edict is an announcement of a law, often associated with

monarchism. The Pope and various micronational leaders arecurrently the only persons who still issue edicts.

proclamation A proclamation (Lat. proclamare, to make public by announcement)

is an official declaration. In English law, a proclamation isa formal announcement ("royal proclamation"), made under thegreat seal, of some matter which the King in Council or Queenin Council desires to make known to his or her subjects: e.g.,the declaration of war, or state of emergency, the statementof neutrality, the summoning or dissolution of Parliament, orthe bringing into operation of the provisions of some statutethe enforcement of which the legislature has left to thediscretion of the king in the announcement.

jus cogensA peremptory norm (also called jus cogens, Latin for "compelling law")

is a fundamental principle of international law which isaccepted by the international community of states as a norm

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from which no derogation is ever permitted. These norms rootedfrom Natural Law principles,72 and any laws conflicting with itshould be considered null and void.73 Examples include variousinternational crimes; a state which carries out or permitsslavery, torture, genocide, war of aggression, or crimesagainst humanity is always violating customary internationallaw.74 Jus cogens and customary international law are notinterchangeable. All jus cogens are customary international lawthrough their adoption by states, but not all customaryinternational laws rise to the level of peremptory norms.States can deviate from customary international law byenacting treaties and conflicting laws, but jus cogens are non-derogable. However, treaties cannot purport to be contrary tojus cogens.

pacta sunt servandaThe doctrine of pacta sunt servanda under Article 26 of the

Vienna Convention, which establishes that ‘every internationalagreement in force is binding upon the parties to it and mustbe performed by them in good faith’ also reinforces states’obligations not to interpose their own domestic laws asjustifications for non-compliance with internationalagreements. However, several provisions of the law of treatiesmay require certain modifications before application tointernational organisations given the peculiarities. It isbecause of this recognition that the Vienna Convention of the Law ofTreaties provides at Article 5 that treaties constitutinginternational organisations and treaties adopted within aninternational organisation without prejudice to any relevantrules of the organisation.

72 Władysław Czapliński. Jus Cogens and the Law of Treaties. In C.Tomuschat and J.M. Thouvenin(eds). 2006. The Fundamental Rules of the International Legal Order, pp. 83-98. Netherlands:Koninklijke Brill NV

73 Article 53 of the Vienna Conventions on the Law of Treaties (1969)74 M. Cherif Bassiouni.1998. International Crimes: jus cogens and Obligatio Erga Omnes, Law &

Contemporary Problems, 59: 63-74

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amending treatyAn existing treaty can be amended, and which is not possible for

customary international law since the principles of customaryinternational law are permanently binding, and non derogable.

treaty execution or treaty implementationIn monoist legal regimes, treaties are 'self-executing', in that

merely becoming a party puts the treaty and all of itsobligations in action. However, in dualist legal systems, thetreaty has to be domesticated through a municipal legislation,or statute, to make it implementable. Further, certaintreaties may be so worded as to be self-executing. However,the principles of customary international law are applicablewithout need for country adoption, purely based on the factthat they are customs75.

treaty interpretation or principle of maximum effectiveness The language of treaties, like that of any law or contract, must

be interpreted when the wording does not seem clear or it isnot immediately apparent how it should be applied in a perhapsunforeseen circumstance. The Vienna Convention states thattreaties are to be interpreted “in good faith” according tothe “ordinary meaning given to the terms of the treaty intheir context and in the light of its object and purpose.”International legal experts also often invoke the 'principleof maximum effectiveness,' which interprets treaty language ashaving the fullest force and effect possible to establishobligations between the parties. No one party to a treaty canimpose its particular interpretation of the treaty upon theother parties. Consent may be implied, however, if the otherparties fail to explicitly disavow that initially unilateralinterpretation, particularly if that state has acted upon itsview of the treaty without complaint. Consent by all partiesto the treaty to a particular interpretation has the legaleffect of adding an additional clause to the treaty – this is


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commonly called an 'authentic interpretation'. Internationaltribunals and arbiters are often called upon to resolvesubstantial disputes over treaty interpretations. To establishthe meaning in context, these judicial bodies may review thepreparatory work from the negotiation and drafting of thetreaty as well as the final, signed treaty itself. On theother hand, principles of customary international law are notinterpreted, but rather, used in the interpretation of treatyterms.

Jus tractatuum Jus tractatuum (or sometimes jus tractandi) is a Legal Latin term

commonly used in public international law and constitutionallaw that refers to the right to conclude treaties. It isusually referred to in English as treaty-making power. Asdefined in article 6 of the Vienna Convention on the Law ofTreaties, every state possesses the capacity to concludetreaties. International organizations as well as subnationalentities of federal states may have treaty-making power aswell. Jus tractatuum is linked to the concept of internationallegal personality.

ultra vires treaty or null treatyA party's consent to a treaty is invalid if it had been given by

an agent or body without power to do so under that state'sdomestic law. States are reluctant to inquire into theinternal affairs and processes of other states, and so a“manifest” violation is required such that it would be“objectively evident to any State dealing with the matter". Astrong presumption exists internationally that a head of statehas acted within his proper authority. Consent is also invalidif it is given by a representative who ignored restrictions heis subject to by his sovereign during the negotiations, if theother parties to the treaty were notified of thoserestrictions prior to his signing. According to the preamblein The Law of Treaties, treaties are a source of international

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law.76 A treaty is null and void if it is in violation of aperemptory norm. These norms, unlike other principles ofcustomary law, are recognized as permitting no violations andso cannot be altered through treaty obligations. These arelimited to such universally accepted prohibitions as thoseagainst genocide, slavery, torture, and piracy, meaning thatno state can legally assume an obligation to commit or permitsuch acts. This is a provision that does not apply tocustomary international law which has reached the level of juscogens77.

treaty registration The United Nations Charter states that treaties must be

registered with the UN to be invoked before it or enforced inits judiciary organ, the International Court of Justice. Thiswas done to prevent the proliferation of secret treaties thatoccurred in the 19th and 20th century. Section 103 of theCharter also states that its members' obligations under itoutweigh any competing obligations under other treaties.However, in matters concerning customary international law,there is neither a need, nor a register, of customaryinternational law.

codification of customary international lawSome international customary laws have been codified through

treaties and domestic laws, while others are recognized onlyas customary law. The laws of war, also known as jus in bello, werelong a matter of customary law before they were codified inthe Hague Conventions of 1899 and 1907, Geneva Conventions,and other treaties. However, these conventions do not purportto legal matters that may arise during war. Instead, Article1(2) of Additional Protocol I dictates that customaryinternational law governs legal matters concerning armed

76 Nicolson, Harold. (1934). Diplomacy, p. 135.77 Article 3, Draft Articles on Responsibility of States for Internationally Wrongful Acts

Adopted by ILC 53 session 2001.

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conflict not covered by other agreements.78 To this extent,treaties represent partial codification of customaryinternational law.

monismMonists assume that the internal and international legal systems

form a unity. Both national legal rules and internationalrules that a state has accepted, for example by way of atreaty, determine whether actions are legal or illegal.79 Inmost monist states, a distinction between international law inthe form of treaties, and other international law, e.g. juscogens is made. International law does not need to betranslated into national law. The act of ratifying theinternational law immediately incorporates the law intonational law. International law can be directly applied by anational judge, and can be directly invoked by citizens, justas if it were national law. A judge can declare a nationalrule invalid if it contradicts international rules because, insome jurisdictions, the latter have priority. In other states,like in Germany, treaties have the same effect as legislation,and by the principle of lex posterior, only take precedence overnational legislation enacted prior to their ratification. Inits most pure form, monism dictates that national law thatcontradicts international law is null and void, even if itpredates international law, and even if it is theconstitution. From a human rights point of view, for example,this has some advantages. Suppose a country has accepted ahuman rights treaty - the International Covenant on Civil andPolitical Rights for instance - but some of its national lawslimit the freedom of the press. A citizen of that country, whois being prosecuted by his state for violating this nationallaw, can invoke the human rights treaty in a national

78 "Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to theProtection of Victims of International Armed Conflicts (Protocol I)". 8 June 1977. Retrieved30 May 2012.; see also Yoram Dinstein. 2004. The Conduct of Hostilities under the Law ofInternational Armed Conflict, pp. 6-7. Cambridge: Cambridge University Press.


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http://en.wikipedia.org/wiki/Pieter_Kooijmans


courtroom and can ask the judge to apply this treaty and todecide that the national law is invalid. He or she does nothave to wait for national law that translates internationallaw. His or her government can, after all, be negligent oreven unwilling to translate. The treaty was perhaps onlyaccepted for political reasons, in order to please donor-countries for example.

‘So when someone in Holland feels his human rights are being violated he can go to aDutch judge and the judge must apply the law of the Convention. He must applyinternational law even if it is not in conformity with Dutch law’.80

dualismDualists emphasize the difference between national and

international law, and require the translation of the latterinto the former. Without this translation, international lawdoes not exist as law. International law has to be nationallaw as well, or it is no law at all. If a state accepts atreaty but does not adapt its national law in order to conformto the treaty or does not create a national law explicitlyincorporating the treaty, then it violates international law.But one cannot claim that the treaty has become part ofnational law. Citizens cannot rely on it and judges cannotapply it. National laws that contradict it remain in force.According to dualists, national judges never applyinternational law, only international law that has beentranslated into national law.

‘International law as such can confer no rights cognisable in the municipal courts. It isonly insofar as the rules of international law are recognized as included in the rulesof municipal law that they are allowed in municipal courts to give rise to rights andobligations’.81

The supremacy of international law is a rule in dualist systemsas it is in monist systems. Judge Sir Hersch Lauterpacht



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http://en.wikipedia.org/wiki/London

http://en.wikipedia.org/wiki/James_Atkin,_Baron_Atkin

http://en.wikipedia.org/wiki/Oxford

http://en.wikipedia.org/wiki/Antonio_Cassese


pointed out the Court's determination to discourage theevasion of international obligations, and its repeatedaffirmation of:

‘…the self-evident principle of international law that a State cannot invoke its municipallaw as the reason for the non-fulfillment of its international obligations’.82

If international law is not directly applicable, as is the casein dualist systems, then it must be translated into nationallaw, and existing national law that contradicts internationallaw must be ‘translated away’. It must be modified oreliminated in order to conform to international law.

Again, from a human rights point of view, if a human rightstreaty is accepted for purely political reasons, and states donot intend to fully translate it into national law or to takea monist view on international law, then the implementation ofthe treaty is very uncertain.83

In some countries, such as the UK for instance, the dualist viewis predominant. International law is only part of Britishnational law once it is accepted in national law. A treaty

‘has no effect in municipal law until an Act of Parliament is passed to give effect to it. Inother countries this distinction tends to be blurred. In the vast majority ofdemocratic countries outside the Commonwealth, the legislature, or part of thelegislature, participates in the process of ratification, so that ratification becomes alegislative act, and the treaty becomes effective in international law and inmunicipal law simultaneously. For instance, the Constitution of the United Statesprovides that the President 'shall have power, by and with the advice and consent ofthe Senate, to make treaties, provided two-thirds of the Senators present concur'.Treaties ratified in accordance with the Constitution automatically become part ofthe municipal law of certain jurisdictions (the US)A’.84

82 See The Development of International Law by the International Court, Hersch Lauterpacht (ed), Cambridge University Press, 1982, ISBN 0521463327,page 262

83 A. Cassese, op. cit., p. 15.84 M. Akehurst, op. cit., p. 45.

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International law does not determine which point of view is to bepreferred, monism or dualism. Every state decides for itself,according to its legal traditions. International law onlyrequires that its rules are respected, and states are free todecide on the manner in which they want to respect these rulesand make them binding on its citizens and agencies.

‘The transformation of international norms into domestic law is not necessary from thepoint of view of international law…the necessity of transformation is a question ofnational, not of international law’.85

Both a monist state and a dualist state can comply withinternational law. However, monist state is less at risk ofviolating international rules, because its judges can applyinternational law directly.86 Negligence or unwillingness totranslate international law, or delays of translation, ormisinterpretation of international law in national law canonly pose a problem in dualist states. States are free tochoose the way in which they want to respect internationallaw, but they are always accountable if they fail to adapttheir national legal system in a way that they can respectinternational law. Either they adopt a constitution thatimplements a monist system so that international law can beapplied directly and without transformation, or they do not.But then they have to translate all international law innational law. In a monist state we rely only on the judges andnot on the legislators, but judges can also be negligent andthey can also make mistakes. If a judge in a monist statesmakes mistakes when applying international law, then thecountry violates international law just as much as a dualistcountry that, for one reason or another, does not allow itsjudges to apply international law directly and fails totranslate or fails to translate correctly and effectively.87

One reason for preferring dualism is precisely the fear that85 Antonio Cassese, International Law in a Divided World, Clarendon Press,

Oxford, 1992, p. 17.86 Pieter Kooijmans, Internationaal publiekrecht in vogelvlucht, Wolters-

Noordhoff, Groningen, 1994, p. 82.

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national judges are not familiar with international law - ahighly complex field of law - and hence are liable to makemistakes.

reception clauseAs part of the colonial legacy, in ex-colonies, foreign laws,

which were either enacted by the legislatures of formercolonial powers or otherwise developed and introduced in thecolony during the colonial period, continue to form part ofthe laws applicable in the independent states. The term“Reception clause” therefore refers to the legal provisionsproviding for the application or introduction of laws whichwere in force in the colonizing country into the colonies.This was by virtue of the Orders in Council.

Ratification Ratification is a principal's approval of an act of its agent

where the agent lacked authority to legally bind theprincipal. The term applies to private contract law,international treaties, and constitutions in federations suchas the United States and Canada.

union law (sources)The three sources of Union law are primary law, secondary law and

supplementary law. The main sources of primary law are theTreaties establishing the European Union. Secondary sourcesinclude regulations and directives which are based on theTreaties. The legislature of the Union may establish secondarylaw to pursue the objective set out in the Treaties. Union lawis applied by the courts of member states and where the lawsof member states provide for lesser rights.


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customary international lawCustomary international law is a law that rises to the level of

jus cogens applies to all members of international community,without exception, as non-derogable rights.88

Customary international law, unlike treaties, is not a writtensource. Further, treaties are based on the principle ofcontract, or pacta sunt servanda, and only apply to the nationsthat have ratified the same, whereas customary internationalalw applies to all nations. As such, there are two basicrequirements for a custom to be elevated to the status of law.First, there must be widespread and consistent State practice– that is, States must, in general, have a practice ofaccording immunity to a visiting Head of State. Secondly,there has to be what is called “opinio juris”, usually translatedas “a belief in legal obligation; that is, States must accord immunitybecause they believe they have a legal duty to do so. As theICJ has put it:-

‘Not only must the acts concerned be a settled practice, but they must also be such, orbe carried out in such a way, as to be evidence of a belief that this practice isrendered obligatory by the existence of a rule requiring it. … The States concernedmust feel that they are conforming to what amounts to a legal obligation.’89

A new rule of customary international law cannot be createdunless both of these elements are present. Practice alone isnot enough90. Nor can a rule be created by opinio juris withoutactual practice.91

If an act or lack thereof is condemned under international law,the act will not assume international legality even ifapproved by internal law.92 This means that in case of aconflict with domestic law, international law will always

88 Yoram Dinstein. 2004. The Conduct of Hostilities under the Law of International ArmedConflict, pp. 5. Cambridge: Cambridge University Press.

89 North Sea Continental Shelf cases, ICJ Reps, 1969, p. 3 at 4490 – see, e.g., the Case of the SS Lotus (1927)91 – see, e.g., the Advisory Opinion on Nuclear Weapons (1996).92 ® Article 3, Draft Articles on Responsibility of States for Internationally Wrongful Acts

Adopted by ILC 53 session 2001.

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prevail.93 On the contrary, there is no requirement for consentof customary international law for their effect. Further, thefactors that make a treaty ultra vires can lead to nullity, orinvalidity, which is not possible for customary internationallaw.

hard lawHard law refers to actual binding legal instruments. In contrast

with soft law, hard law gives States and international actorsactual binding responsibilities as well as rights. Hard lawmeans binding laws. In international law, hard law includes self-executing treaties or international agreements, as well ascustomary laws. These instruments result in legallyenforceable commitments for countries (states) and otherinternational subjects. Sources of hard law include:

و Treaties (also known as conventions or international agreements)

و UN Security Council Resolutions

و Customary International Rules

soft lawThe term ‘soft law’ refers to quasi-legal instruments which do

not have any legally binding force, or whose binding force issomewhat ‘weaker’ than the binding force of traditional law,often contrasted with soft law by being referred to as ‘hardlaw’. Traditionally, the term ‘soft law’ is associated withinternational law, although more recently it has beentransferred to other branches of domestic law as well.94 Softlaw is attractive because it often contains aspirational goalsthat aim for the best of possible scenarios.95

93 Article 27, Vienna Convention on the Law of treaties, Vienna 23 May 1969 jfr. P 2, WorldT.R. 2007, 6(1), 45–87

94 Christians, Allison (Summer 2007). "Hard Law & Soft Law". Wisconsin International Law Journal 25 (2). SSRN 988782.

95 Roberto Andorno, "The Invaluable Role of Soft Law in the Development of Universal Norms in Bioethics", paper at a Workshop jointly organized by the

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In the context of international law, the term ‘soft law’ coverssuch elements as:

و Resolutions and Declarations of the UN General Assembly, for example, theUniversal Declaration of Human Rights;

و Statements, principles, codes of conduct, codes of practice etc.; often found as partof framework treaties; and

و Action plans (for example, Agenda 21).

In community law, the term ‘soft law’ is also often used todescribe various kinds of quasi-legal instruments of thecommunity: ‘codes of conduct’, ‘guidelines’, ‘communications’etc. In the area of law of the union, soft law instruments areoften used to indicate how the community intends to use itspowers and perform its tasks within its area of competence96.Soft law instruments are usually considered as non-bindingagreements which nevertheless hold much potential for morphinginto ‘hard law’ in the future. This ‘hardening’ of soft law mayhappen in two different ways.

1. One is when declarations, recommendations, etc. are the first step towards a treaty-making process, in which reference will be made to the principles already stated inthe soft law instruments.

2. Another possibility is that non-treaty agreements are intended to have a directinfluence on the practice of states, and to the extent that they are successful in doingso, they may lead to the creation of customary law.

Another useful aspect of the nature of soft law is that it oftencan be used to evidence opinio juris on applying or interpreting atreaty.97 Soft law has been very important in the field of

German Ministry of Foreign Affairs and the German UNESCO Commission, Berlin, 15 February 2007. Available at: http://www.unesco.de/1507.html

96 also Andrew T. Guzman & Timothy L. Meyer, "International Soft Law," 2 J. Legal Analysis 171 (2010), available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1353444.

97 Alan Boyle, "Some Reflections on the Relationship of Treaties and Soft Law", International and Comparative Law Quarterly, 1999, vol. 48, n° 4, p.

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international environmental law where states have beenreluctant to commit to many environmental initiatives whentrying to balance the environment against economic and socialgoals.

actus contrarius The Latin term actus contrarius (act contrary / opposite action)

states that for the legal treatment of a certain act isusually the same applies as for his (explicitly controlled)opposite. This applies only if the specific regulations forthe act in question does not exist. The Actus contrariustheory plays particularly in public law for the competence ofauthorities and courts play a role. For example, there is thejurisdiction of a court for the defendant is aadministrative , competence is also given if theadministrative act is revoked by the authority (and theapplicant applies here against). The withdrawal is alsoregarded as an administrative act. When an authorityresponsible for issuing an administrative act, this alsoapplies for the cancellation of the same.The act will be usedfor comparison as actus primus (Latin, roughly: Ausgangsakt)called.

accessionAccession is the act whereby a State that has not signed a treaty

expresses its consent to become a party to that treaty bydepositing an "instrument of accession". Accession has thesame legal effect as ratification, acceptance or approval. Theconditions under which accession may occur and the procedureinvolved depend on the provisions of the relevant treaty.Accession is generally employed by States wishing to expresstheir consent to be bound by a treaty where the deadline forsignature has passed. However, many modern multilateraltreaties provide for accession even during the period that thetreaty is open for signature.

901-913

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adoption (treaty)Adoption is the formal act by which negotiating parties establish

the form and content of a treaty. The treaty is adoptedthrough a specific act expressing the will of the States andthe international organizations participating in thenegotiation of that treaty, e.g., by voting on the text,initialing, signing, etc. Adoption may also be the mechanismused to establish the form and content of amendments to atreaty, or regulations under a treaty. Treaties that arenegotiated within an international organization are usuallyadopted by resolution of the representative organ of thatorganization. For example, treaties negotiated under theauspices of the United Nations, or any of its bodies, areadopted by a resolution of the General Assembly of the UnitedNations. Where an international conference is specificallyconvened for the purpose of adopting a treaty, the treaty canbe adopted by a vote of two thirds of the States present andvoting, unless they have decided by the same majority to applya different rule.

conventionWhereas in the last century the term "convention" was regularly

employed for bilateral agreements, it is now generally usedfor formal multilateral treaties with a broad number ofparties. Conventions are normally open for participation bythe international community as a whole, or by a large numberof States. Usually instruments negotiated under the auspicesof an international organization are entitled conventions. Thesame holds true for instruments adopted by an organ of aninternational organization.

preamble (treaty)A treaty typically begins with a preamble describing the

contracting parties and their joint objectives in executingthe treaty, as well as summarizing any underlying events (suchas a war). Modern preambles are sometimes structured as a

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single very long sentence formatted into multiple paragraphsfor readability, in which each of the paragraphs begins with averb (desiring, recognizing, having, and so on).

The contracting parties' full names or sovereign titles are oftenincluded in the preamble, along with the full names and titlesof their representatives, and a boilerplate clause about howtheir representatives have communicated (or exchanged) theirfull powers (i.e., the official documents appointing them toact on behalf of their respective states) and found them ingood or proper form.

The end of the preamble and the start of the actual agreement isoften signaled by the words "have agreed as follows."

Articles (treaty)After the preamble comes numbered articles, which contain the

substance of the parties' actual agreement. Each articleheading usually encompasses a paragraph. A long treaty mayfurther group articles under chapter headings.

Modern treaties, regardless of subject matter, usually containarticles governing where the final authentic copies of thetreaty will be deposited and how any subsequent disputes as totheir interpretation will be peacefully resolved.

end of a treaty, eschatocol, closing protocolThe end of a treaty, the eschatocol (or closing protocol), is

often signaled by a clause like "in witness whereof" or "infaith whereof," the parties have affixed their signatures,followed by the words "DONE at," then the site(s) of thetreaty's execution and the date(s) of its execution. The dateis typically written in its most formal, longest possibleform. For example, the Charter of the United Nations was "DONEat the city of San Francisco the twenty-sixth day of June, onethousand nine hundred and forty-five." If the treaty isexecuted in multiple copies in different languages, that factis always noted, and is followed by a stipulation that theversions in different languages are equally authentic.

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The signatures of the parties' representatives follow at the veryend. When the text of a treaty is later reprinted, such as ina collection of treaties currently in effect, an editor willoften append the dates on which the respective partiesratified the treaty and on which it came into effect for eachparty.

Bilateral treaty, multilateral treatyBilateral treaties are concluded between two states or entities.

It is possible, however, for a bilateral treaty to have morethan two parties; consider for instance the bilateral treatiesbetween Switzerland and the European Union (EU) following theSwiss rejection of the European Economic Area agreement. Eachof these treaties has seventeen parties. These however arestill bilateral, not multilateral, treaties. The parties aredivided into two groups, the Swiss ("on the one part") and theEU and its member states ("on the other part"). The treatyestablishes rights and obligations between the Swiss and theEU and the member states severally—it does not establish anyrights and obligations amongst the EU and its member states.

A multilateral treaty is concluded among several countries. Theagreement establishes rights and obligations between eachparty and every other party. Multilateral treaties are oftenregional. Treaties of "mutual guarantee" are internationalcompacts, e.g., the Treaty of Locarno which guarantees eachsignatory against attack from another.

declarationIn law, a declaration ordinarily refers to a judgment of the

court or an award of an arbitration tribunal is a bindingadjudication of the rights or other legal relations of theparties which does not provide for or order enforcement. Wherethe declaration is made by a court, it is usually referred toas a declaratory judgment. Less commonly, where declaratoryrelief is awarded by an arbitrator, it is normally called adeclaratory award. Declaratory relief is most commonly seen in

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circumstances where applications for declarations oflegitimacy, in family and probate legal proceedings.

However applications for declaratory relief in other areas havebecome more widespread, particularly in Europe. A key featurein relation to this development have been the Brussels andLugano Conventions on civil jurisdiction and judgmentsrelating to members of the EEA. In certain circumstances,jurisdiction is awarded under the conventions to the courtsfirst seised of the matter. This has led to a rise indefendants taking pre-emptive action by seeking declarationsof non-liability" in a race to the courthouse to ensure thatthe they choose the court first seised rather than waiting forthe claimant to do so.

Declaration is used (as a verb or a noun) in other ways incertain legal systems.

declaration (civil procedure) In some legal systems, a declaration is an alternative term for a

sworn affidavit. declaraiton (companies law)In relation to companies, declaration is the first step in

relation to distribution and payment of dividends. declaration (trust law) In trust law, a settlor who declares that he holds certain

property on trust is said to make a declaration of trust. declaration dying or dying declaration (evidence)Dying declarations are an exception to the rule against hearsay

in many legal systems. declaration against interest (evidence) Declarations against interest are also an exception to the rule

against hearsay in many legal systems.

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declaration (creditor-debor relationship)A formal declaration of default is required to enforce creditors'

security rights in some legal systems.interpretative declarationAn interpretative declaration is a declaration by a State as to

its understanding of some matter covered by a treaty or itsinterpretation of a particular provision. Unlike reservations,declarations merely clarify a State's position and do notpurport to exclude or modify the legal effect of a treaty.

The Secretary-General, as depositary, pays specific attention todeclarations to ensure that they do not amount toreservations. Usually, declarations are made at the time ofsignature or at the time of deposit of an instrument ofratification, acceptance, approval or accession. Politicaldeclarations usually do not fall into this category as theycontain only political sentiments and do not seek to express aview on legal rights and obligations under a treaty.

mandatory declarationA mandatory declaration is a declaration specifically required by

the treaty itself. Unlike an interpretative declaration, amandatory declaration is binding on the State making it.

optional declarationAn optional declaration is a declaration that a treaty

specifically provides for, but does not require. Unlike aninterpretative declaration, an optional declaration is bindingon the State making it.

entry into forceEntry into force of a treaty is the moment in time when a treaty

becomes legally binding on the parties to the treaty. Theprovisions of the treaty determine the moment of its entryinto force.

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definitive entry into forceThis may be a date specified in the treaty or a date on which a

specified number of ratifications, approvals, acceptances oraccessions have been deposited with the depositary. The datewhen a treaty deposited with the Secretary-General enters intoforce is determined in accordance with the treaty provisions.

entry into force for a stateA treaty that has already entered into force may enter into force

in a manner specified in it for a State or internationalorganization that expresses its consent to be bound by itafter its entry into force. See article 24 of the ViennaConvention 1969.

provisional entry into forceProvisional entry into force may be allowed by the terms of a

treaty, for example, in commodity agreements. Provisionalentry into force of a treaty may also occur when a number ofparties to a treaty that has not yet entered into force decideto apply the treaty as if it had entered into force. Once atreaty has entered into force provisionally, it createsobligations for the parties that agreed to bring it into forcein that manner.98

protocolA protocol, in the context of treaty law and practice, has the

same legal characteristics as a treaty. The term protocol isoften used to describe agreements of a less formal nature thanthose entitled treaty or convention. Generally, a protocolamends, supplements or clarifies a multilateral treaty. Aprotocol is normally open to participation by the parties tothe parent agreement. However, in recent times States havenegotiated a number of protocols that do not follow thisprinciple. The advantage of a protocol is that, while it islinked to the parent agreement, it can focus on a specificaspect of that agreement in greater detail.

98 See article 25(1) of the Vienna Convention 1969.

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ratification, acceptance, approvalRatification, acceptance and approval all refer to the act

undertaken on the international plane, whereby a Stateestablishes its consent to be bound by a treaty. Ratification,acceptance and approval all require two steps:

a. The execution of an instrument of ratification, acceptance or approval by the Headof State, Head of Government or Minister for Foreign Affairs, expressing the intent ofthe State to be bound by the relevant treaty; and

b. For multilateral treaties, the deposit of the instrument with the depositary; and forbilateral treaties, the exchange of the instruments between parties.

Ratification, acceptance or approval at the international levelindicates to the international community a State's commitmentto undertake the obligations under a treaty. This should notbe confused with the act of ratification at the nationallevel, which a State may be required to undertake inaccordance with its own constitutional provisions, before itconsents to be bound internationally. Ratification at thenational level is inadequate to establish the State's consentto be bound at the international level.

reservationA reservation is a statement made by a State by which it purports

to exclude or alter the legal effect of certain provisions ofa treaty in their application to that State. A reservation mayenable a State to participate in a multilateral treaty that itwould otherwise be unable or unwilling to participate in.States can make reservations to a treaty when they sign,ratify, accept, approve or accede to it. When a State makes areservation upon signing, it must confirm the reservation uponratification, acceptance or approval. Since a reservationpurports to modify the legal obligations of a State, it mustbe signed by the Head of State, Head of Government or Ministerfor Foreign Affairs. Reservations cannot be contrary to theobject and purpose of the treaty. Some treaties prohibitreservations or only permit specified reservations.

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signature

definitive signature (signature not subject to ratification)Definitive signature occurs where a State expresses its consent

to be bound by a treaty by signing the treaty without the needfor ratification, acceptance or approval. A State maydefinitively sign a treaty only when the treaty so permits. Anumber of treaties deposited with the Secretary-General permitdefinitive signature. See article 12 of the Vienna Convention1969.

simple signature (signature subject to ratification)Simple signature applies to most multilateral treaties. This

means that when a State signs the treaty, the signature issubject to ratification, acceptance or approval. The State hasnot expressed its consent to be bound by the treaty until itratifies, accepts or approves it. In that case, a State thatsigns a treaty is obliged to refrain, in good faith, from actsthat would defeat the object and purpose of the treaty.Signature alone does not impose on the State obligations underthe treaty.

treatyTreaty is a generic term embracing all instruments binding under

international law, regardless of their formal designation,concluded between two or more international juridical persons.Thus, treaties may be concluded between:

a. States;

b. International organizations with treaty-making capacity and States; or

c. International organizations with treaty-making capacity.

The application of the term treaty, in the generic sense,signifies that the parties intend to create rights andobligations enforceable under international law.

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The Vienna Convention 1969 defines a treaty as "an internationalagreement concluded between States in written form andgoverned by international law, whether embodied in a singleinstrument or in two or more related instruments and whateverits particular designation" (article 2(1)(a)). Accordingly,conventions, agreements, protocols, and exchange of letters ornotes may all constitute treaties. A treaty must be governedby international law and is normally in written form. Althoughthe Vienna Convention 1969 does not apply to non-writtenagreements, its definition of a treaty states that the absenceof writing does not affect the legal force of internationalagreements.

No international rules exist as to when an internationalinstrument should be entitled a treaty. However, usually theterm treaty is employed for instruments of some gravity andsolemnity.

bilateral treatyA bilateral treaty is a treaty between two parties.multilateral treatyA multilateral treaty is a treaty between more than two parties. Reservations (treaty)Reservations are essentially caveats to a state's acceptance of a

treaty. Reservations are unilateral statements purporting toexclude or to modify the legal obligation and its effects onthe reserving state.99 These must be included at the time ofsigning or ratification, i.e. "a party cannot add areservation after it has already joined a treaty".

Originally, international law was unaccepting of treatyreservations, rejecting them unless all parties to the treatyaccepted the same reservations. However, in the interest ofencouraging the largest number of states to join treaties, amore permissive rule regarding reservations has emerged. While

99 Vienna Convention on the Law of Treaties, Article 2 Sec. 1(d) Text of the Convention

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some treaties still expressly forbid any reservations, theyare now generally permitted to the extent that they are notinconsistent with the goals and purposes of the treaty.

When a state limits its treaty obligations through reservations,other states party to that treaty have the option to acceptthose reservations, object to them, or object and oppose them.If the state accepts them (or fails to act at all), both thereserving state and the accepting state are relieved of thereserved legal obligation as concerns their legal obligationsto each other (accepting the reservation does not change theaccepting state's legal obligations as concerns other partiesto the treaty). If the state opposes, the parts of the treatyaffected by the reservation drop out completely and no longercreate any legal obligations on the reserving and acceptingstate, again only as concerns each other. Finally, if thestate objects and opposes, there are no legal obligationsunder that treaty between those two state parties whatsoever.The objecting and opposing state essentially refuses toacknowledge the reserving state is a party to the treaty atall.100

Amendments (treaty)There are three ways an existing treaty can be amended. First,

formal amendment requires State parties to the treaty to gothrough the ratification process all over again. The re-negotiation of treaty provisions can be long and protracted,and often some parties to the original treaty will not becomeparties to the amended treaty. When determining the legalobligations of states, one party to the original treaty andone a party to the amended treaty, the states will only bebound by the terms they both agreed upon. Treaties can also beamended informally by the treaty executive council when thechanges are only procedural, technical change in customaryinternational law can also amend a treaty, where statebehavior evinces a new interpretation of the legal obligations


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under the treaty. Minor corrections to a treaty may be adoptedby a procès-verbal; but a procès-verbal is generally reservedfor changes to rectify obvious errors in the text adopted,i.e. where the text adopted does not correctly reflect theintention of the parties adopting it.

ProtocolsIn international law and international relations, a protocol is

generally a treaty or international agreement that supplementsa previous treaty or international agreement. A protocol canamend the previous treaty, or add additional provisions.Parties to the earlier agreement are not required to adopt theprotocol. Sometimes this is made clearer by calling it an"optional protocol", especially where many parties to thefirst agreement do not support the protocol.

Some examples: the United Nations Framework Convention on ClimateChange (UNFCCC) established a framework for the development ofbinding greenhouse gas emission limits, while the KyotoProtocol contained the specific provisions and regulationslater agreed upon.

Execution and implementation (treaties), Self-Executing TreatiesTreaties may be seen as 'Self-Executing Treaties ', in that

merely becoming a party puts the treaty and all of itsobligations in action. Other treaties may be non-self-executing and require 'implementing legislation'—a change inthe domestic law of a state party that will direct or enableit to fulfill treaty obligations. An example of a treatyrequiring such legislation would be one mandating localprosecution by a party for particular crimes.

The division between the two is often not clear and is oftenpoliticized in disagreements within a government over atreaty, since a non-self-executing treaty cannot be acted onwithout the proper change in domestic law. If a treatyrequires implementing legislation, a state may be in default

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of its obligations by the failure of its legislature to passthe necessary domestic laws.

InterpretationThe language of treaties, like that of any law or contract, must

be interpreted when the wording does not seem clear or it isnot immediately apparent how it should be applied in a perhapsunforeseen circumstance. The Vienna Convention states thattreaties are to be interpreted "in good faith" according tothe "ordinary meaning given to the terms of the treaty intheir context and in the light of its object and purpose."International legal experts also often invoke the 'principleof maximum effectiveness,' which interprets treaty language ashaving the fullest force and effect possible to establishobligations between the parties.

No one party to a treaty can impose its particular interpretationof the treaty upon the other parties. Consent may be implied,however, if the other parties fail to explicitly disavow thatinitially unilateral interpretation, particularly if thatstate has acted upon its view of the treaty without complaint.Consent by all parties to the treaty to a particularinterpretation has the legal effect of adding an additionalclause to the treaty – this is commonly called an 'authenticinterpretation'.

International tribunals and arbiters are often called upon toresolve substantial disputes over treaty interpretations. Toestablish the meaning in context, these judicial bodies mayreview the preparatory work from the negotiation and draftingof the treaty as well as the final, signed treaty itself.

Consequences of terminologyOne significant part of treaty making is that signing a treaty

implies recognition that the other side is a sovereign stateand that the agreement being considered is enforceable underinternational law. Hence, nations can be very careful aboutterming an agreement to be a treaty. For example, within the

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United States, agreements between states are compacts andagreements between states and the federal government orbetween agencies of the government are memoranda ofunderstanding.

Another situation can occur when one party wishes to create anobligation under international law, but the other party doesnot. This factor has been at work with respect to discussionsbetween North Korea and the United States over securityguarantees and nuclear proliferation.

The terminology can also be confusing because a treaty may andusually is named something other than a treaty, such as aconvention, protocol, or simply agreement. Conversely somelegal documents such as the Treaty of Waitangi areinternationally considered to be documents under domestic law.

Withdrawal (Ending treaty obligations)Treaties are not necessarily permanently binding upon the

signatory parties. As obligations in international law aretraditionally viewed as arising only from the consent ofstates, many treaties expressly allow a state to withdraw aslong as it follows certain procedures of notification. Forexample the Single Convention on Narcotic Drugs provides thatthe treaty will terminate if, as a result of denunciations,the number of parties falls below 40. Many treaties expresslyforbid withdrawal. Article 56 of the Vienna Convention on theLaw of Treaties provides that where a treaty is silent overwhether or not it can be denounced there is a rebuttablepresumption that it cannot be unilaterally denounced unless:

¯ it can be shown that the parties intended to admit the possibility, or¯ the right of withdrawal can be implied into the terms of the treaty.

The possibility of withdrawal depends on the terms of the treatyand its travaux preparatoire. It has, for example, been heldthat it is not possible to withdraw from the InternationalCovenant on Civil and Political Rights. When North Koreadeclared its intention to do this the Secretary-General of the

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United Nations, acting as registrar, said that that originalsignatories of the ICCPR had not overlooked the possibility ofexplicitly providing for withdrawal, but rather haddeliberately intended not to provide for it. Consequentlywithdrawal was not possible.101

If a state party's withdrawal is successful, its obligationsunder that treaty are considered terminated, and withdrawal byone party from a bilateral treaty of course terminates thetreaty. When a state withdraws from a multi-lateral treaty,that treaty will still otherwise remain in force among theother parties, unless, of course, otherwise should or could beinterpreted as agreed upon between the remaining statesparties to the treaty.

Suspension and termination (Ending treaty obligations)If a party has materially violated or breached its treaty

obligations, the other parties may invoke this breach asgrounds for temporarily suspending their obligations to thatparty under the treaty. A material breach may also be invokedas grounds for permanently terminating the treaty itself.102

A treaty breach does not automatically suspend or terminatetreaty relations, however. It depends on how the other partiesregard the breach and how they resolve to respond to it.Sometimes treaties will provide for the seriousness of abreach to be determined by a tribunal or other independentarbiter.103 An advantage of such an arbiter is that it preventsa party from prematurely and perhaps wrongfully suspending orterminating its own obligations due to another's allegedmaterial breach.

Treaties sometimes include provisions for self-termination,meaning that the treaty is automatically terminated if certaindefined conditions are met. Some treaties are intended by the

101 Final Clauses in Multilateral Treaties: Handbook. United Nations. 2003. p. 112. ISBN 92-1-133572-8.

102 Article 60 of the Vienna Convention on the Law of Treaties.103 Gomaa, Mohammed M. (1997). Suspension or termination of treaties on grounds of breach. The

Hague: M. Nijhoff. p. 142. ISBN 9789041102263.

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parties to be only temporarily binding and are set to expireon a given date. Other treaties may self-terminate if thetreaty is meant to exist only under certain conditions.

A party may claim that a treaty should be terminated, even absentan express provision, if there has been a fundamental changein circumstances. Such a change is sufficient if unforeseen,if it undermined the “essential basis” of consent by a party,if it radically transforms the extent of obligations betweenthe parties, and if the obligations are still to be performed.A party cannot base this claim on change brought about by itsown breach of the treaty. This claim also cannot be used toinvalidate treaties that established or redrew politicalboundaries.

Invalid treaties(Ending treaty obligations)There are several reasons an otherwise valid and agreed upon

treaty may be rejected as a binding international agreement,most of which involve problems created at the formation of thetreaty. For example, the serial Japan-Korea treaties of 1905,1907 and 1910 were protested;104 and they were confirmed as"already null and void" in the 1965 Treaty on Basic Relationsbetween Japan and the Republic of Korea.105

Ultra vires treaties(Ending treaty obligations)A party's consent to a treaty is invalid if it had been given by

an agent or body without power to do so under that state'sdomestic law. States are reluctant to inquire into theinternal affairs and processes of other states, and so a"manifest violation" is required such that it would be"objectively evident to any State dealing with the matter". Astrong presumption exists internationally that a head of statehas acted within his proper authority. It seems that no treatyhas ever actually been invalidated on this provision.

104 Korean Mission to the Conference on the Limitation of Armament, Washington, D.C., 1921–1922.(1922). Korea's Appeal to the Conference on Limitation of Armament, pp. 1–44.

105 "Treaty on Basic Relations between Japan and the Republic of Korea"; excerpt, "It isconfirmed that all treaties or agreements concluded between the Empire of Japan and theEmpire of Korea on or before August 22, 1910 are already null and void."

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Consent is also invalid if it is given by a representative whoignored restrictions he is subject to by his sovereign duringthe negotiations, if the other parties to the treaty werenotified of those restrictions prior to his signing.

According to the preamble in The Law of treaties, treaties are asource of international law. If an act or lack thereof iscondemned under international law, the act will not assumeinternational legality even if approved by internal law.106

This means that in case of a conflict with domestic law,international law will always prevail.107

misunderstanding(Ending treaty obligations), fraud(Ending treatyobligations), corruption(Ending treaty obligations),coercion(Ending treaty obligations)

Articles 46–53 of the Vienna Convention on the Law of Treatiesset out the only ways that treaties can be invalidated—considered unenforceable and void under international law. Atreaty will be invalidated due to either the circumstances bywhich a state party joined the treaty, or due to the contentof the treaty itself. Invalidation is separate fromwithdrawal, suspension, or termination (addressed above),which all involve an alteration in the consent of the partiesof a previously valid treaty rather than the invalidation ofthat consent in the first place.

A state's consent may be invalidated if there was an erroneousunderstanding of a fact or situation at the time ofconclusion, which formed the "essential basis" of the state'sconsent. Consent will not be invalidated if themisunderstanding was due to the state's own conduct, or if thetruth should have been evident.

Consent will also be invalidated if it was induced by thefraudulent conduct of another party, or by the direct or

106 Article 3, Draft Articles on Responsibility of States for Internationally Wrongful ActsAdopted by ILC 53 session 2001.

107 Article 27, Vienna Convention on the Law of treaties, Vienna 23 May 1969 jfr. P 2, WorldT.R. 2007, 6(1), 45–87

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indirect "corruption" of its representative by another partyto the treaty. Coercion of either a representative, or thestate itself through the threat or use of force, if used toobtain the consent of that state to a treaty, will invalidatethat consent.

Contrary to peremptory norms(Ending treaty obligations)A treaty is null and void if it is in violation of a peremptory

norm. These norms, unlike other principles of customary law,are recognized as permitting no violations and so cannot bealtered through treaty obligations. These are limited to suchuniversally accepted prohibitions as those against theaggressive use of force, genocide and other crimes againsthumanity, piracy, hostilities directed at civilian population,racial discrimination and apartheid, slavery and torture,108

meaning that no state can legally assume an obligation tocommit or permit such acts.109

108 Wood, Michael; Pronto, Arnold (2010). The International Law Commission 1999-2009. Oxford:Oxford University Press. p. 764. ISBN 9780199578979.

109 Articles 53 and 64 of the Vienna Convention on the Law of Treaties.

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REGIONAL INTERNATIONAL LAW OR COMMUNITY LAW OR UNION LAW

definition of union lawUnion or regional community or community law is a body of

treaties and legislation, such as Regulations and Directives,which have direct effect or indirect effect on the laws ofRegional Community/Union member states.

sources of union law The three sources of Union law are primary law, secondary law and

supplementary law. The main sources of primary law are theTreaties establishing the European Union. Secondary sourcesinclude regulations and directives which are based on theTreaties. The legislature of the Union may establish secondarylaw to pursue the objective set out in the Treaties. Union lawis applied by the courts of member states and where the lawsof member states provide for lesser rights.

enforcement of union lawUnion law can be enforced by the courts of member states.

Supplementary sources are laws which are not provided for bythe treaty, including case law by the Regional Court ofJustice, international law and general principles of Communitylaw.

supra national law, union lawSupranational law is a form of international law, based on the

limitation of the rights of sovereign nations between oneanother. It is distinguished from public international law,because in supranational law, nations explicitly submit theirright to make judicial decisions by treaty to a set of commontribunal. The United Nations Security Council and subordinateorganizations such as the International Court of Justice arethe only globally accepted supranational tribunals.

Union or regional community or community law is a body oftreaties and legislation, such as Regulations and Directives,

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which have direct effect or indirect effect on the laws ofRegional Community/Union member states.

Supranational law or the law of supranational organizations, which concernsregional agreements where the laws of nation states may beheld inapplicable when conflicting with a supranational legalsystem when that nation has a treaty obligation to asupranational collective.

The two traditional branches of the field are:1. jus gentium — law of nations2. jus inter gentes — agreements between nations

Community law /Regional law /Union law is supranational legalframework. Given the trend of increasing global economicintegration, many regional agreements are on track to followthe same model. In the community law, sovereign nations havegathered their authority in a system of courts and politicalinstitutions. These institutions are allowed the ability toenforce legal norms both against and for member states andcitizens in a manner which is not possible through publicinternational law.110

110 Schermers–Blokker, International Institutional Law, 943

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Public International Organisations /IntergovernmentalOrganisations

intergovernmental organization (or international governmentalorganization; IGO)

An intergovernmental organization (or international governmentalorganization; IGO) is an organization composed primarily ofsovereign states (referred to as member states), or of otherintergovernmental organizations. Intergovernmentalorganizations are often called international organizations,although that term may also include internationalnongovernmental organization such as international nonprofitorganizations or multinational corporations.

Intergovernmental organizations are an important aspect of publicinternational law. IGOs are established by treaty that acts asa charter creating the group. Treaties are formed when lawfulrepresentatives (governments) of several states go through aratification process, providing the IGO with an internationallegal personality.

Intergovernmental organizations in a legal sense should bedistinguished from simple groupings or coalitions of states,such as the G8 or the Quartet. Such groups or associationshave not been founded by a constituent document and exist onlyas task groups.

Intergovernmental organizations must also be distinguished fromtreaties. Many treaties (such as the North American Free TradeAgreement, or the General Agreement on Tariffs and Tradebefore the establishment of the World Trade Organization) donot establish an organization and instead rely purely on theparties for their administration becoming legally recognizedas an ad hoc commission. Other treaties have established anadministrative apparatus which was not deemed to have beengranted international legal personality.

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Types and purposes Intergovernmental organizations differ in function, membership

and membership criteria. They have various goals and scopes,often outlined in the treaty or charter. Some IGOs developedto fulfill a need for a neutral forum for debate ornegotiation to resolve disputes. Others developed to carry outmutual interests with unified aims to preserve peace throughconflict resolution and better international relations,promote international cooperation on matters such asenvironmental protection, to promote human rights, to promotesocial development (education, health care), to renderhumanitarian aid, and to economic development. Some are moregeneral in scope (the United Nations) while others may havesubject-specific missions (such as Interpol or theInternational Organization for Standardization and otherstandards organizations). Common types include:

Worldwide or global organizations - generally open to nationsworldwide as long as certain criteria are met. This categoryincludes the United Nations (UN) and its specialized agencies,the Universal Postal Union, Interpol, the World TradeOrganization (WTO), the World Customs Organization (WCO),World Nature Organization (WNO), and the InternationalMonetary Fund (IMF).

Regional organizations - open to members from a particular regionor continent of the world. This category includes the Councilof Europe (CoE), European Union (EU), Energy Community, NATO,Organization for Security and Co-operation in Europe, AfricanUnion (AU), Organization of American States (OAS), Associationof Southeast Asian Nations (ASEAN), Union of South AmericanNations, Asia Cooperation Dialogue (ACD), and Pacific IslandsForum.

Cultural, linguistic, ethnic, religious, or historicalorganizations - open to members based on some cultural,linguistic, ethnic, religious, or historical link. Examplesinclude the Commonwealth of Nations, Arab League, Organisation

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internationale de la Francophonie, Community of PortugueseLanguage Countries, Latin Union, Turkic Council, InternationalOrganization of Turkic Culture, Organisation of IslamicCooperation, and Commonwealth of Independent States (CIS).

Economic organizations - based on economic organization. Some arededicated to free trade, the reduction of trade barriers (theWorld Trade Organization) and International Monetary Fund.Others are focused on international development. Internationalcartels, such as OPEC, also exist. The Organisation forEconomic Co-operation and Development was founded as aneconomics-focused organization. An example of a recentlyformed economic IGO is the Bank of the South.

Educational organizations - centered around tertiary level study.Academy of European Law offers training in European law tolawyers, judges, barristers, solicitors, in-house counsel andacademics. EUCLID (university) chartered as a university andumbrella organization dedicated to sustainable development insignatory countries and United Nations University efforts toresolve the pressing global problems that are the concern ofthe United Nations, its Peoples and Member States.

Health and Population Organizations- based on the commonperceived health and population goals and to address thosechallenges collectively. An example is the intergovernmentalpartnership for population and development"Partners inPopulation and Development

Some organizations, such as NATO, have collective security ormutual defense provisions.

The Union of International Associations publishes an annualdirectory of organizations and provides ancillary informationon most international organizations, both intergovernmentaland non-governmental.

Privileges and immunitiesIntergovernmental organizations are provided with privileges and

immunities that are intended to ensure their independent and

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effective functioning. They are specified in the treaties thatgive rise to the organization (such as the Convention on thePrivileges and Immunities of the United Nations and theAgreement on the Privileges and Immunities of theInternational Criminal Court), which are normally supplementedby further multinational agreements and national regulations(for example the International Organizations Immunities Act inthe United States). The organizations are thereby immune fromthe jurisdiction of national courts.

Rather than by national jurisdiction, legal accountability isintended to be ensured by legal mechanisms that are internalto the intergovernental organization itself and access toadministrative tribunals. In the course of many court caseswhere private parties tried to pursue claims againstinternational organizations, there has been a gradualrealization that alternate means of dispute settlement arerequired, as states have fundamental human rights obligationsto provide plaintiffs with access to court in view of theirright to a fair trial. Otherwise, the organizations'immunities may be put in question in national andinternational courts. Some organizations hold proceedingsbefore tribunals relating to their organization to beconfidential, and in some instances have threateneddisciplinary action should an employee disclose any of therelevant information. Such confidentiality has been criticizedas a lack of transparency.

The immunities also extend to employment law. In this regard,immunity from national jurisdiction necessitates thatreasonable alternative means are available to effectivelyprotect employees' rights; in this context, a first instanceDutch court considered an estimated duration of proceedingsbefore the Administrative Tribunal of the International LabourOrganisation of 15 years to be too long.

Reasons for participation:

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Economic rewards: In the case of the North American Free TradeAgreement (NAFTA), many different countries receive economicbenefits from membership in the free trade agreement. Forexample, Mexican companies are given better access to U.S.markets due to their membership.

Political influence: Smaller countries, such as Portugal and theNetherlands, who do not carry much political clout on theinternational stage, are given a substantial increase ininfluence through membership in IGOs, such as the EuropeanUnion. Also for countries with more influence such as Franceand Germany they are beneficial as the nation increasesinfluence in the smaller countries' internal affairs andexpanding other nations dependence on themselves, so topreserve allegiance

Security: Membership in an IGO such as NATO gives securitybenefits to member countries. This provides an arena wherepolitical differences can be resolved.

Improve democracy and the likelihood of democratic survival: Ithas been noted that member countries experience a greaterdegree of democracy and those democracies survive longer.

strengths and weaknesses of IGOs These are some of the strengths and weaknesses of IGOs:Strengths:They hold state authority.Their institutions are permanent.They provide a forum for discussion.They are issue specific.They provide information.They allow multilateral cooperation.Weaknesses:

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Membership is limited. Prohibits the membership of privatecitizens. This makes IGOs undemocratic. In addition, not allIGOs allow universal membership.

IGOs often overlap resulting in a complex network.States have to give up part of their sovereignty, which weakens

the state's ability to assert its authority.Inequality among state members creates biases and can lead

powerful states to misuse these organizations.They can be deemed unfair as countries with a higher percentage

voting power have the right to veto any decision that is notin their favor, leaving the smaller countries powerless.

supranational union A supranational union is a type of multi-national organization

where negotiated power is delegated to an authority bygovernments of member states. The concept of supranationalunion is sometimes used to describe the European Union (EU),as a new type of political entity. The EU is the only entitywhich provides for international popular elections, goingbeyond the level of political integration normally afforded byinternational treaty. The term "supranational" is sometimesused in a loose, undefined sense in other contexts, sometimesas a substitute for international, transnational or global.Another method of decision-making in internationalorganisations is intergovernmentalism, in which stategovernments play a more prominent role.

non-aggression pact A non-aggression pact is a national treaty between two or more

states/countries agreeing to avoid war or armed conflictbetween them and resolve their disputes through peacefulnegotiations. Sometimes[when?] such a pact may include apledge of avoiding armed conflict even if participants findthemselves fighting third countries, including allies of oneof the participants.

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It was a popular form of international agreement in the 1920s and1930s, but has largely fallen out of use after the SecondWorld War. Since the implementation of a non-aggression pactdepends on the good faith of the parties, the internationalcommunity following the Second World War adopted the norm ofmultilateral collective security agreements, such as thetreaties establishing NATO, ANZUS, SEATO and Warsaw Pact.

The most famous non-aggression pact is the 1939 Molotov–Ribbentrop Pact between the Soviet Union and Nazi Germany,which lasted until the 1941 German invasion of the SovietUnion in Operation Barbarossa. Its fame partly derives fromthe fact of being labelled as a military alliance by anti-communists.

multilateralismIn international relations, multilateralism is multiple countries

working in concert on a given issue. Multilateralism wasdefined by Miles Kahler as “international governance of the‘many,’” and its central principle was “opposition [of]bilateral discriminatory arrangements that were believed toenhance the leverage of the powerful over the weak and toincrease international conflict.” In 1990, Robert Keohanedefined multilateralism as “the practice of coordinatingnational policies in groups of three or more states.

Multilateralism, whether in the form of membership in an allianceor in international institutions, are necessary to bind thegreat power, discourage unilateralism, and give the smallpowers a voice and voting opportunities that they would nototherwise have. Especially, if control is sought by a smallpower over a great power, then the Lilliputian strategy ofsmall countries achieving control by collectively binding thegreat power is likely to be most effective. Similarly, ifcontrol is sought by a great power over another great power,then multilateral controls may be most useful. The great powercould seek control through bilateral ties, but this would becostly; it also would require bargaining and compromise with

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the other great power. Embedding the target state in amultilateral alliance reduces the costs borne by the powerseeking control, but it also offers the same binding benefitsof the Lilliputian strategy. Furthermore, if a small powerseeks control over another small power, multilateralism may bethe only choice, because small powers rarely have theresources to exert control on their own.

International organizations, such as the United Nations (UN) andthe World Trade Organization are multilateral in nature. Themain proponents of multilateralism have traditionally been themiddle powers such as Canada, Australia, Switzerland, theBenelux countries and the Nordic countries. Larger statesoften act unilaterally, while smaller ones may have littledirect power in international affairs aside from participationin the United Nations (by consolidating their UN vote in avoting bloc with other nations, for example). Multilateralismmay involve several nations acting together as in the UN ormay involve regional or military alliances, pacts, orgroupings such as NATO. As these multilateral institutionswere not imposed on states but were created and accepted bythem in order to increase their ability to seek their owninterests through the coordination of their policies, much ofthese international institutions lack tools of enforcementwhile instead work as frameworks that constrain opportunisticbehaviour and points for coordination by facilitating exchangeof information about the actual behaviour of states withreference to the standards to which they have consented.

The term "regional multilateralism" has been proposed suggestingthat "contemporary problems can be better solved at theregional rather than the bilateral or global levels" and thatbringing together the concept of regional integration withthat of multilateralism is necessary in today’s world.

The converse of multilateralism is unilateralism in terms ofpolitical philosophy.

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NON STATE ACTORS

Non-state actors (NSA) Non-state actors (NSA) are entities that participate or act in

international relations. They are organizations withsufficient power to influence and cause a change even thoughthey do not belong to any established institution of a state.

The admission of non-state actors into international relationstheory rebukes the assumptions of realism and other black boxtheories of international relations, which argue thatinteractions between states are the main relationships ofinterest in studying international events.

Non-governmental organizations (NGOs)typically considered a part of civil society.Multinational corporations (MNCs)for-profit organizations that operate in multiple sovereign

states.International MediaThese play role of international non state actors, as civil

society. Violent non-state actorsArmed groups, including groups such as Al-Qaeda or criminal

organizations, for example drug cartels. Williams identifiesvarious types of VNSAs:

¯ Warlords¯ Militias¯ Insurgencies¯ Terrorist organizations¯ Criminal organizations and gangs¯ Criminal organizations and gangs are essentially illegal business organizations.

("Crime for them is simply a continuation of business by other means".)

Religious Groups

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Quakers and other religious sects are quite active in theirinternational advocacy efforts. They have in part foundedother non-state actors such as Amnesty International,Greenpeace, and OXFAM.

Transnational diaspora communitiesEthnic or national communities that try to influence their

original and current territories.cell based actorsCell-based, independent intelligence agents.Cotonou AgreementThe term Non State Actors is widely used in development

cooperation, particularly under the Cotonou Agreement betweenthe European Union (EU) and African, Caribbean and Pacific ACPcountries. The agreement uses the term to refer to a widerange of nongovernmental development actors whoseparticipation in ACP-EU development cooperation is nowformally recognized. According to Article 6, non-state actorsinclude:

1. Civil society in all its diversity, according to national characteristics;2. Economic and social partners, including trade union organisations and;3. The private sector.

In practice, it means that participation is open to all kind ofactors, such as community-based organisations, women's groups,human rights associations, non-governmental organisations(NGOs), religious organizations, farmers' cooperatives, tradeunions, universities and research institutes, the media andthe private sector. Also included in this definition areinformal groups such as grassroots organizations, informalprivate sector associations, etc. The private sector, however,is considered only insofar as it is involved in non-profitactivities (e.g. private sector associations, chambers ofcommerce, etc.)

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CONTINENTAL UNIONS

continental union A continental union is an inter-governmental, supra-national, or

a federation of member states located in the same continent,or close to it. Continental unions are a relatively new typeof political entity in the history of human government.Throughout most of human history, political organization hasbeen at the local level (i.e. tribal, city state) and in morerecent centuries, the sub-regional ("regional")/sub-continental level (i.e. river system/basin empires, the modern"nation-state"); however, starting with the advent of bettertransportation, weapons and communication there was for thefirst time the ability for a union of member states toorganize at the continental level. After the devastation ofthe first and second world wars in the middle of the 1900sEurope slowly evolved from its founding as the "Coal and SteelCommunity" to become a political union covering much of theEuropean Continent (28 member states as of 2013).

Continentalism Continentalism refers to the agreements or policies that favor

the regionalization and/or cooperation between nations withina continent. The term is used more often in the European andNorth American contexts, but the concept has been applied toother continents including Australia, Africa and SouthAmerica.

Intergovernmentalism Intergovernmentalism is a term in political science with two

meanings. The first refers to a theory of regional integrationoriginally proposed by Stanley Hoffmann; the second treatsstates and the national government as the primary factors forintegration.

Intergovernmentalism treats states, and national governments inparticular, as the primary actors in the integration process.

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Intergovernmentalist approaches claim to be able to explainboth periods of radical change in the European Union (becauseof converging governmental preferences) and periods of inertia(due to diverging national interests). Intergovernmentalism isdistinguishable from realism and neorealism because of itsrecognition of both the significance of institutionalisationin international politics and the impact of domestic politicsupon governmental preferences.

Existing continental unionsThere are 3 current continental unions, each at different stages

of integration. The EU is the only supranational politico-economic union and not just an international organization.

African UnionThe African Union (AU) at a size of 29,757,900 square kilometres

(11,489,589 sq mi) and a population of 1 Billion is by far thelargest of the existing continental unions in terms of bothland mass and population. It includes all African countriesexcept Morocco, which withdrew after the AU recognized theSahrawi Arab Democratic Republic.

The African Union was formed as a successor to the Organizationof African Unity (OAU). The most important decisions of the AUare made by the Assembly of the African Union, a semi-annualmeeting of the heads of state and government of its memberstates. The AU's secretariat, the African Union Commission, isbased in Addis Ababa, Ethiopia. During the February 2009 Unionmeeting headed by former Libyan leader Gaddafi, it wasresolved that the African Union Commission would become theAfrican Union Authority.

The African Union is made up of both political and administrativebodies. The highest decision-making organ of the African Unionis the Assembly, made up of all the heads of state orgovernment of member states of the AU. As of 2013 the Assemblyis chaired by Hailemariam Desalegn. The AU also has arepresentative body, the Pan-African Parliament, which

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consists of 265 members elected by the national parliaments ofthe AU member states. The current president of the Pan AfricanParliament is Bethel Nnaemeka Amadi. Other politicalinstitutions of the AU include the Executive Council, made upof foreign ministers, which prepares decisions for theAssembly; the Permanent Representatives Committee, made up ofthe ambassadors to Addis Ababa of AU member states; and theEconomic, Social, and Cultural Council (ECOSOCC), a civilsociety consultative body.

European UnionThe European Union has the largest economy (GDP) of the existing

continental unions, and serves as the model which the AfricanUnion and the Union of South American Nations seek to follow.

The European Union (EU) is an economic and political union of 28member states in Europe. Committed to regional integration,the EU was established by the Treaty of Maastricht on 1November 1993 upon the foundations of the pre-existingEuropean Economic Community. A European Parliament has beencreated, directly elected by citizens of the EU. With almost500 million citizens, the EU combined generates an estimated30% share (US$18.4 trillion in 2008) of the nominal grossworld product.

The EU has developed a single market through a standardisedsystem of laws which apply in all member states, ensuring thefree movement of people, goods, services, and capital. Itmaintains common policies on trade, agriculture, fisheries andregional development. Nineteen member states have adopted acommon currency, the euro, constituting the Eurozone. The EUhas developed a limited role in foreign policy, havingrepresentation at the WTO, G8, G20 and at the UN. It enactslegislation in justice and home affairs, including theabolition of passport controls by an agreement between themember states which form the Schengen Area.

Union of South American Nations

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The Union of South American Nations (USAN) is anintergovernmental union integrating two existing customsunions: Mercosur and the Andean Community of Nations, as partof a continuing process of South American integration. It ismodeled on the European Union, and includes all of continentalSouth America, except for French Guiana (which is an overseasdepartment of France, and therefore part of the EuropeanUnion). Panama and Mexico hold observer status.

Unasur Constitutive Treaty was signed on May 23, 2008, at theThird Summit of Heads of State, held in Brasília, Brazil.According to it, the Secretariat headquarters will be locatedin Quito, Ecuador. The South American Parliament will belocated in Cochabamba, Bolivia, while the headquarters of theBank of the South (Portuguese: Banco do Sul, Spanish: Bancodel Sur, Dutch: Bank van het Zuiden) are to be located inCaracas, Venezuela. The South American Defence Council wasformed on July 20, 2008, and had its first meeting on March10, 2009. On May 4, 2010, the Heads of State of the MemberStates unanimously elected former Argentine President NéstorKirchner as the first Secretary General of UNASUR.

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REGIONAL BODIES

Regional organizations (ROs) Regional organizations (ROs) are, in a sense, international

organizations (IOs), as they incorporate internationalmembership and encompass geopolitical entities thatoperationally transcend a single nation state. However, theirmembership is characterized by boundaries and demarcationscharacteristic to a defined and unique geography, such ascontinents, or geopolitics, such aseconomic blocs. They havebeen established to foster cooperation and political andeconomic integration or dialogue amongst states or entitieswithin a restrictive geographical or geopolitical boundary.They both reflect common patterns of development and historythat have been fostered since the end of World War II as wellas the fragmentation inherent in globalization. Most ROs tendto work alongside well-established multilateral organizationssuch as the United Nations. While in many instances a regionalorganization is simply referred to as an internationalorganization, in many others it makes sense to use the termregional organization to stress the more limited scope of aparticular membership.

Examples of ROs include the African Union (AU), European Union(EU), the Organization of American States (OAS), the CaribbeanCommunity (CARICOM), the Arab League, Association of SoutheastAsian Nations (ASEAN) and South Asian Association for RegionalCooperation (SAARC)

Regional integration Regional integration is a process in which neighboring states

enter into an agreement in order to upgrade cooperationthrough common institutions and rules. The objectives of theagreement could range from economic to political toenvironmental, although it has typically taken the form of apolitical economy initiative where commercial interests arethe focus for achieving broader socio-political and security

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objectives, as defined by national governments. Regionalintegration has been organized either via supranationalinstitutional structures or through intergovernmentaldecision-making, or a combination of both.

Past efforts at regional integration have often focused onremoving barriers to free trade in the region, increasing thefree movement of people, labour, goods, and capital acrossnational borders, reducing the possibility of regional armedconflict (for example, through Confidence and Security-Building Measures), and adopting cohesive regional stances onpolicy issues, such as the environment, climate change andmigration.

Intra-regional trade refers to trade which focuses on economicexchange primarily between countries of the same region oreconomic zone. In recent years countries within economic-traderegimes such as ASEAN in Southeast Asia for example haveincreased the level of trade and commodity exchange betweenthemselves which reduces the inflation and tariff barriersassociated with foreign markets resulting in growingprosperity.

Regional integration initiatives should fulfil at least eightimportant functions:¯ the strengthening of trade integration in the region¯ the creation of an appropriate enabling environment for private sector

development¯ the development of infrastructure programmes in support of economic growth

and regional integration¯ the development of strong public sector institutions and good governance;¯ the reduction of social exclusion and the development of an inclusive civil society¯ contribution to peace and security in the region¯ the building of environment programmes at the regional level¯ the strengthening of the region’s interaction with other regions of the world.

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Regional Economic Communities (RECs) The Regional Economic Communities (RECs) in Africa group together

individual countries in subregions for the purposes ofachieving greater economic integration. They are described asthe 'building blocks' of the African Union (AU) and are alsocentral to the strategy for implementing the New Partnershipfor Africa's Development (NEPAD).

Currently, there are eight RECs recognised by the AU, eachestablished under a separate regional treaty. They are:

¯ Arab Maghreb Union (UMA)¯ Common Market for Eastern and Southern Africa (COMESA)¯ Community of Sahel-Saharan States (CEN-SAD)¯ East African Community (EAC)¯ Economic Community of Central African States (ECCAS)¯ Economic Community of West African States (ECOWAS)¯ Intergovernmental Authority on Development (IGAD)¯ Southern African Development Community (SADC)

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THE UNITED NATIONS

United Nations (UN) The United Nations (UN) is an intergovernmental organization

established 24 October 1945, to promote international co-operation. A replacement for the ineffective League ofNations, the organization was created following the SecondWorld War to prevent another such conflict. At its founding,the UN had 51 member states; there are now 193.

United Nations General Assembly observersIn addition to its 193 member states, the United Nations welcomes

many international organizations, entities, and non-memberstates (currently only two) as observers. Observer status isgranted by a United Nations General Assembly resolution. Thestatus of a Permanent Observer is based purely on practice,and there are no provisions for it in the United NationsCharter.

Observers have the right to speak at United Nations GeneralAssembly meetings, vote on procedural matters, serve assignatories on working papers, and sign resolutions, but notto sponsor resolutions or vote on resolutions of substantivematters. Various other rights (e.g., to speak in debates, tosubmit proposals and amendments, the right of reply, to raisepoints of order and to circulate documents, etc.) are givenselectively to some observers only. So far, the EU is the onlyinternational organisation to hold these enhanced powers.

There is a distinction between state and non-state observers.Non-Member States of the United Nations, which are members ofone or more specialized agencies, can apply for the status ofPermanent Observer state. The non-state observers are theinternational organizations and other entities.

UN Offices

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The headquarters of the United Nations is situated inManhattan,New York City, and enjoys extraterritoriality. Further mainoffices are situated in Geneva, Nairobi and Vienna.

UN financingThe organization is financed by assessed and voluntary

contributions from its member states. Its objectives includemaintaining international peace and security, promoting humanrights, fostering social and economic development, protectingthe environment, and providing humanitarian aid in cases offamine, natural disaster, and armed conflict.

Extraterritoriality (UN)Extraterritoriality is the state of being exempted from the

jurisdiction of local law, usually as the result of diplomaticnegotiations. Extraterritoriality can also be applied tophysical places, such as foreign embassies, military bases offoreign countries, or offices of the United Nations. The threemost common cases recognized today internationally relate tothe persons and belongings of foreign heads of state, thepersons and belongings of ambassadors and other diplomats, andships in foreign waters.

Extraterritoriality is often extended to friendly or alliedmilitaries, particularly for the purposes of allowing thatmilitary to simply pass through one's territory.

It is distinguished from personal jurisdiction in the sense thatextraterritoriality operates to the prejudice of localjurisdiction.

Some extraterritorialities include:¯ Antarctica¯ Embassy¯ Extraterrestrial real estate¯ International waters¯ International seabed¯ Moon

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¯ Outer Space¯ International zone¯ United Nations

international zone (UN)An international zone is a type of extraterritoriality governed

by international law, or similar treaty between two or morenations. They can be found within international airports andcan contain duty-free shopping. In areas of conflict there maybe international zones called green zones that form protectiveenclaves to keep diplomats safe. Countries in conflict mayalso have international zones separating each other.

international waters or trans-boundary waters The terms international waters or trans-boundary waters apply

where any of the following types of bodies of water (or theirdrainage basins) transcend international boundaries: oceans,large marine ecosystems, enclosed or semi-enclosed regionalseas and estuaries, rivers, lakes, groundwater systems(aquifers), and wetlands.

Oceans, seas, and waters outside of national jurisdiction arealso referred to as the high seas or, in Latin, mare liberum(meaning free seas).

Ships sailing the high seas are generally under the jurisdictionof the flag state (if there is one);111 however, when a shipis involved in certain criminal acts, such as piracy, 112 anynation can exercise jurisdiction under the doctrine ofuniversal jurisdiction. International waters can be contrastedwith internal waters, territorial waters and exclusiveeconomic zones.

International Seabed Authority (ISA) The International Seabed Authority (ISA) is an intergovernmental

body based in Kingston, Jamaica, that was established toorganize and control all mineral-related activities in the

111 UNCLOS article 92(1)112 UNCLOS article 105

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international seabed area beyond the limits of nationaljurisdiction, an area underlying most of the world’s oceans.It is an organization established by the Law of the SeaConvention.

Extraterrestrial real estate Extraterrestrial real estate is land on other planets or natural

satellites or parts of space that is sold either throughorganizations or by individuals. Ownership of extraterrestrialreal estate is not recognized by any authority. Nevertheless,some private individuals and organizations have claimedownership of celestial bodies, such as the Moon, and areactively involved in "selling" parts of them throughcertificates of ownership termed "Lunar deeds", "Martiandeeds" or similar. These "deeds" have no legal standing.

UN organsThe UN has six principal organs: the General Assembly (the main

deliberative assembly); the Security Council (for decidingcertain resolutions for peace and security); the Economic andSocial Council(ECOSOC) (for promoting international economicand social co-operation and development); the Secretariat (forproviding studies, information, and facilities needed by theUN); the International Court of Justice (the primary judicialorgan); and the United Nations Trusteeship Council (inactivesince 1994). UN System agencies include the World Bank Group,the World Health Organization, the World Food Programme,UNESCO, and UNICEF. The UN's most prominent officer is theSecretary-General, an office held by South Korean Ban Ki-moonsince 2007. Non-governmental organizations may be grantedconsultative status with ECOSOC and other agencies toparticipate in the UN's work.

UN CreationIn the century prior to the UN's creation, several international

treaty organizations and conferences had been formed toregulate conflicts between nations, such as the International

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Committee of the Red Crossand the Hague Conventions of 1899and 1907.113 Following the catastrophic loss of life in theFirst World War, the Paris Peace Conference established theLeague of Nations to maintain harmony between countries.114

This organization resolved some territorial disputes andcreated international structures for areas such as postalmail, aviation, and opium control, some of which would laterbe absorbed into the UN.115 However, the League lackedrepresentation for colonial peoples (then half the world'spopulation) and significant participation from several majorpowers, including the US, USSR, Germany, and Japan; it failedto act against the Japanese invasion of Manchuria in 1931, theSecond Italo-Ethiopian War in 1935, the Japanese invasion ofChina in 1937, and German expansions under Adolf Hitler thatculminated in the Second World War.116

UN officesThe General Assembly selected New York City as the site for the

headquarters of the United Nations, and the facility wascompleted in 1952. Its site—like UN headquarters buildings inGeneva, Vienna, and Nairobi—is designated as internationalterritory.117

international territoryAn international zone is a type of extraterritoriality governed

by international law, or similar treaty between two or morenations. They can be found within international airports andcan contain duty-free shopping. In areas of conflict there maybe international zones called green zones that form protectiveenclaves to keep diplomats safe. Countries in conflict mayalso have international zones separating each other.

United Nations System113 Kennedy, p. 5114 Kennedy, p. 8115 Kennedy, p. 10116 Kennedy, pp. 13–24117 Osmańczyk, Edmund Jan (February 2004). Encyclopedia of the United Nations and International Agreements: T to

Z. Taylor & Francis. p. 2445. ISBN 978-0415939249.

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http://en.wikipedia.org/wiki/Special:BookSources/978-0415939249

http://en.wikipedia.org/wiki/International_Standard_Book_Number

http://books.google.com/books?id=6AB2CadyN7QC&pg=PA2445

http://books.google.com/books?id=6AB2CadyN7QC&pg=PA2445


The United Nations' system is based on five principal organs:the General Assembly, the Security Council, the Economic andSocial Council (ECOSOC), the Secretariat, and theInternational Court of Justice. A sixth principal organ, theTrusteeship Council, suspended operations in 1994, upon theindependence of Palau, the last remaining UN trusteeterritory.118

Four of the five principal organs are located at the main UNHeadquarters in New York City. The International Court ofJustice is located in The Hague, while other major agenciesare based in the UN offices at Geneva, Vienna, andNairobi.Other UN institutions are located throughout theworld.

UN official languagesThe six official languages of the United Nations, used in

intergovernmental meetings and documents, are Arabic, Chinese,English, French, Russian, and Spanish. On the basis of theConvention on the Privileges and Immunities of the UnitedNations, the UN and its agencies are immune from the laws ofthe countries where they operate, safeguarding the UN'simpartiality with regard to the host and member countries.

General Assembly , United Nations General Assembly

The General Assembly is the main deliberative assembly of theUnited Nations. Composed of all United Nations member states,the assembly meets in regular yearly sessions, but emergencysessions can also be called.119 The assembly is led by apresident, elected from among the member states on a rotatingregional basis, and 21 vice-presidents. The first sessionconvened 10 January 1946 in the Methodist Central HallWestminster in London and included representatives of 51nations.

118 Fasulo, p. 8119 Fomerand, pp. 131–33

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When the General Assembly votes on important questions, a two-thirds majority of those present and voting is required.Examples of important questions include recommendations onpeace and security; election of members to organs; admission,suspension, and expulsion of members; and budgetary matters.All other questions are decided by a majority vote. Eachmember country has one vote. Apart from approval of budgetarymatters, resolutions are not binding on the members. TheAssembly may make recommendations on any matters within thescope of the UN, except matters of peace and security that areunder consideration by the Security Council.

Draft resolutions can be forwarded to the General Assembly byeight committees:

General Committee – a supervisory committee consisting of theassembly's president, vice-president, and committee heads

Credentials Committee – responsible for determining thecredentials of each member nation's UN representatives

First Committee (Disarmament and International Security) Second Committee (Economic and Financial) Third Committee (Social, Humanitarian, and Cultural) Fourth Committee (Special Political and Decolonization) Fifth Committee (Administrative and Budgetary) Sixth Committee (Legal)Security Council, United Nations Security CouncilThe Security Council is charged with maintaining peace and

security among countries. While other organs of the UnitedNations can only make "recommendations" to member states, theSecurity Council has the power to make binding decisions thatmember states have agreed to carry out, under the terms ofCharter Article 25. The decisions of the Council are known asUnited Nations Security Council resolutions.120

120 Fasulo, pp. 39–43

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The Security Council is made up of fifteen member states,consisting of five permanent members—China, France, Russia,the United Kingdom, and the United States—and ten non-permanent members—Angola (term ends 2016), Chad (2015), Chile(2015), Jordan (2015), Lithuania (2015), Malaysia (2016), NewZealand (2016), Nigeria (2015), Spain (2016), and Venezuela(2016). The five permanent members holdveto power over UNresolutions, allowing a permanent member to block adoption ofa resolution, though not debate. The ten temporary seats areheld for two-year terms, with member states voted in by theGeneral Assembly on a regional basis.121 The presidency of theSecurity Council rotates alphabetically each month.

UN Secretariat, United Nations Secretariat and Secretary-Generalof the United Nations

The UN Secretariat is headed by the Secretary-General, assistedby a staff of international civil servants worldwide.122 Itprovides studies, information, and facilities needed by UnitedNations bodies for their meetings. It also carries out tasksas directed by the Security Council, the General Assembly, theEconomic and Social Council, and other UN bodies.123

The Secretary-General acts as the de facto spokesperson andleader of the UN. The position is defined in the UN Charter asthe organization's "chief administrative officer". Article 99of the charter states that the Secretary-General can bring tothe Security Council's attention "any matter which in hisopinion may threaten the maintenance of international peaceand security", a phrase that Secretaries-General since TrygveLiehave interpreted as giving the position broad scope foraction on the world stage.124 The office has evolved into adual role of an administrator of the UN organization and a

121 Fasulo, pp. 40–41122 Fasulo, p. 21123 Fomerand, p. 285124 Meisler, pp. 31–32

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diplomat and mediator addressing disputes between memberstates and finding consensus to global issues.125

The Secretary-General is appointed by the General Assembly, afterbeing recommended by the Security Council, where the permanentmembers have veto power. There are no specific criteria forthe post, but over the years it has become accepted that thepost shall be held for one or two terms of five years, thatthe post shall be appointed on the basis of geographicalrotation, and that the Secretary-General shall not originatefrom one of the five permanent Security Council member states.The current Secretary-General is Ban Ki-moon, who replacedKofi Annan in 2007 and was elected for a second term toconclude at the end of 2016.

International Court of JusticeThe International Court of Justice (ICJ), located in The Hague,

in the Netherlands, is the primary judicial organ of the UN.Established in 1945 by the UN Charter, the Court began work in1946 as the successor to the Permanent Court of InternationalJustice. The ICJ is composed of 15 judges who serve 9-yearterms and are appointed by the General Assembly; every sittingjudge must be from a different nation.126127

It is based in the Peace Palace in The Hague, sharing thebuilding with the Hague Academy of International Law, aprivate centre for the study of international law. The ICJ'sprimary purpose is to adjudicate disputes among states. Thecourt has heard cases related to war crimes, illegal stateinterference, ethnic cleansing, and other issues. The ICJ canalso be called upon by other UN organs to provide advisoryopinions.

125 Kennedy, pp. 59–62126 Fomerand, p. 183127 Fasulo, pp. 100–01

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Economic and Social Council, United Nations Economic and SocialCouncil

The Economic and Social Council (ECOSOC) assists the GeneralAssembly in promoting international economic and social co-operation and development. ECOSOC has 54 members, which areelected by the General Assembly for a three-year term. Thepresident is elected for a one-year term and chosen amongstthe small or middle powers represented on ECOSOC. The councilhas one annual meeting in July, held in either New York orGeneva. Viewed as separate from the specialized bodies it co-ordinates, ECOSOC's functions include information gathering,advising member nations, and making recommendations.Owing toits broad mandate of co-ordinating many agencies, ECOSOC hasat times been criticized as unfocused or irrelevant.128

ECOSOC's subsidiary bodies include the United Nations PermanentForum on Indigenous Issues, which advises UN agencies onissues relating to indigenous peoples; the United NationsForum on Forests, which co-ordinates and promotes sustainableforest management; the United Nations Statistical Commission,which co-ordinates information-gathering efforts betweenagencies; and the Commission on Sustainable Development, whichco-ordinates efforts between UN agencies and NGOs workingtoward sustainable development. ECOSOC may also grantconsultative status to non-governmental organizations; by2004, more than 2,200 organizations had received thisstatus.129

Specialized agencies, specialized agencies of the United NationsThe UN Charter stipulates that each primary organ of the UN can

establish various specialized agencies to fulfill its duties.Some of the best-known agencies are the International AtomicEnergy Agency, the Food and Agriculture Organization,UNESCO(United Nations Educational, Scientific and Cultural

128 Fasulo, pp. 153–55129 Fasulo, p. 156

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Organization), the World Bank, and the World HealthOrganization (WHO). The UN performs most of its humanitarianwork through these agencies. Examples include mass vaccinationprogrammes (through WHO), the avoidance of famine andmalnutrition (through the work of the WFP), and the protectionof vulnerable and displaced people (for example, by UNHCR).

¯ Food and Agriculture Organization

¯ International Atomic Energy Agency

¯ International Civil Aviation Organization

¯ International Fund for Agricultural Development

¯ International Labour Organization

¯ International Maritime Organization

¯ International Monetary Fund

¯ International Telecommunication Union

¯ United Nations Educational, Scientific and Cultural Organization

¯ United Nations Industrial Development Organization

¯ World Tourism Organization

¯ Universal Postal Union

¯ World Bank Group

¯ World Food Programme

¯ World Health Organization

¯ World Intellectual Property Organization

¯ World Meteorological Organization

Food and Agriculture Organization The Food and Agriculture Organization of the United Nations (FAO;

French: Organisation des Nations unies pour l'alimentation etl'agriculture, Italian: Organizzazione delle Nazioni Unite perl'Alimentazione e l'Agricoltura) is an agency of the United

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Nations that leads international efforts to defeat hunger.Serving both developed and developing countries, FAO acts as aneutral forum where all nations meet as equals to negotiateagreements and debate policy. FAO is also a source ofknowledge and information, and helps developing countries andcountries in transition modernize and improve agriculture,forestry and fisheries practices, ensuring good nutrition andfood security for all. Its Latin motto, fiat panis, translatesas "let there be bread". As of 8 August 2013, FAO has 194member states, along with the European Union (a "memberorganization").

International Atomic Energy Agency The International Atomic Energy Agency (IAEA) is an international

organization that seeks to promote the peaceful use of nuclearenergy, and to inhibit its use for any military purpose,including nuclear weapons. The IAEA was established as anautonomous organization on 29 July 1957. Though establishedindependently of the United Nations through its owninternational treaty, the IAEA Statute, the IAEA reports toboth the United Nations General Assembly and Security Council.

The IAEA has its headquarters in Vienna, Austria. The IAEA hastwo "Regional Safeguards Offices" which are located inToronto, Canada, and in Tokyo, Japan. The IAEA also has twoliaison offices which are located in New York City, UnitedStates, and in Geneva, Switzerland. In addition, the IAEA hasthree laboratories located in Vienna and Seibersdorf, Austria,and in Monaco.

The IAEA serves as an intergovernmental forum for scientific andtechnical cooperation in the peaceful use of nucleartechnology and nuclear power worldwide. The programs of theIAEA encourage the development of the peaceful applications ofnuclear technology, provide international safeguards againstmisuse of nuclear technology and nuclear materials, andpromote nuclear safety (including radiation protection) andnuclear security standards and their implementation.

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International Civil Aviation Organization The International Civil Aviation Organization (ICAO,

pronounced /aɪˈkeɪoʊ/; French: Organisation de l'aviationcivile internationale, OACI), is a specialized agency of theUnited Nations. It codifies the principles and techniques ofinternational air navigation and fosters the planning anddevelopment of international air transport to ensure safe andorderly growth. Its headquarters are located in the QuartierInternational of Montreal, Quebec, Canada.

The ICAO Council adopts standards and recommended practicesconcerning air navigation, its infrastructure, flightinspection, prevention of unlawful interference, andfacilitation of border-crossing procedures for internationalcivil aviation. ICAO defines the protocols for air accidentinvestigation followed by transport safety authorities incountries signatory to the Convention on International CivilAviation (Chicago Convention).

The Air Navigation Commission (ANC) is the technical body withinICAO. The Commission is composed of 19 Commissioners,nominated by the ICAO's contracting states, and appointed bythe ICAO Council. Commissioners serve as independent experts,who although nominated by their states, do not serve as stateor political representatives. The development of AviationStandards and Recommended Practices is done under thedirection of the ANC through the formal process of ICAOPanels. Once approved by the Commission, standards are sent tothe Council, the political body of ICAO, for consultation andcoordination with the Member States before final adoption.

ICAO is distinct from the International Air Transport Association(IATA), a trade association representing 240 of the world’sairlines, also headquartered in Montreal, or with the CivilAir Navigation Services Organisation (CANSO), an organizationfor Air Navigation Service Providers (ANSPs) with itsheadquarters at Amsterdam Airport Schiphol in the Netherlands.

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These are trade associations representing specific aviationinterests, whereas ICAO is a body of the United Nations.

International Fund for Agricultural Development (IFAD) The International Fund for Agricultural Development (IFAD)

(French: Fonds international de développement agricole; FIDA)(Italian: Fondo Internazionale per lo Sviluppo Agricolo) is aspecialized agency of the United Nations dedicated toeradicating rural poverty in developing countries. It wasestablished as an international financial institution in 1977as one of the major outcomes of the 1974 World FoodConference. Seventy-five percent of the world's poor live inrural areas in developing countries, yet only 4% of officialdevelopment assistance goes to agriculture.

The strategic policy of IFAD is detailed in Strategic Frameworkfor IFAD 2011–2015: Enabling the Rural Poor to OvercomePoverty. Its headquarters is in Rome, Italy, and is a memberof the United Nations Development Group.

International Labour Organization The International Labour Organization (ILO) is a United Nations

agency dealing with labour issues, particularly internationallabour standards and decent work for all. 185 of the 193 UNmember states are members of the ILO.

In 1969, the organization received the Nobel Peace Prize forimproving peace among classes, pursuing justice for workers,and providing technical assistance to other developingnations.

The ILO registers complaints against entities that are violatinginternational rules; however, it does not impose sanctions ongovernments.

International Maritime Organization The International Maritime Organization (IMO), known as the

Inter-Governmental Maritime Consultative Organization (IMCO)

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until 1982, was established in Geneva in 1948 and came intoforce ten years later, meeting for the first time in 1959.

Headquartered in London, United Kingdom, the IMO is a specialisedagency of the United Nations with 171 Member States and threeAssociate Members. The IMO's primary purpose is to develop andmaintain a comprehensive regulatory framework for shipping andits remit today includes safety, environmental concerns, legalmatters, technical co-operation, maritime security and theefficiency of shipping. IMO is governed by an Assembly ofmembers and is financially administered by a Council ofmembers elected from the Assembly. The work of IMO isconducted through five committees and these are supported bytechnical subcommittees. Member organisations of the UNorganizational family may observe the proceedings of the IMO.Observer status is granted to qualified non-governmentalorganisations.

IMO is supported by a permanent secretariat of employees who arerepresentative of its members. The secretariat is composed ofa Secretary-General who is periodically elected by theAssembly, and various divisions such as those for marinesafety, environmental protection, and a conference section.

International Monetary Fund The International Monetary Fund (IMF) is an international

organization headquartered in Washington, D.C., in the UnitedStates, of 188 countries working to foster global monetarycooperation, secure financial stability, facilitateinternational trade, promote high employment and sustainableeconomic growth, and reduce poverty around the world. Formedin 1944 at the Bretton Woods Conference, it came into formalexistence in 1945 with 29 member countries and the goal ofreconstructing the international payment system. Countriescontribute funds to a pool through a quota system from whichcountries with payment imbalances can borrow. As of 2010, thefund had SDR476.8 billion, about US$755.7 billion at then-current exchange rates.

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Through this fund, and other activities such as statisticskeeping and analysis, surveillance of its members' economiesand the demand for self-correcting policies, the IMF works toimprove the economies of its member countries. Theorganization's objectives stated in the Articles of Agreementare: to promote international economic cooperation,international trade, employment, and exchange-rate stability,including by making financial resources available to membercountries to meet balance-of-payments needs.

International Telecommunication Union The International Telecommunication Union (ITU), originally the

International Telegraph Union (French: Union Internationaledes Télécommunications), is a specialized agency of the UnitedNations (UN) that is responsible for issues that concerninformation and communication technologies.

The ITU coordinates the shared global use of the radio spectrum,promotes international cooperation in assigning satelliteorbits, works to improve telecommunication infrastructure inthe developing world, and assists in the development andcoordination of worldwide technical standards. The ITU isactive in areas including broadband Internet, latest-generation wireless technologies, aeronautical and maritimenavigation, radio astronomy, satellite-based meteorology,convergence in fixed-mobile phone, Internet access, data,voice, TV broadcasting, and next-generation networks.

ITU also organizes worldwide and regional exhibitions and forums,such as ITU TELECOM WORLD, bringing together representativesof government and the telecommunications and ICT industry toexchange ideas, knowledge and technology.

ITU, based in Geneva, Switzerland, is a member of the UnitedNations Development Group. ITU has been an intergovernmentalpublic-private partnership organization since its inception.Its membership includes 193 Member States and around 700public and private sector companies as well as international

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and regional telecommunication entities, known as SectorMembers and Associates, which undertake most of the work ofeach Sector.

United Nations Educational, Scientific and Cultural Organization The United Nations Educational, Scientific and Cultural

Organization (French: Organisation des Nations unies pourl'éducation, la science et la culture; UNESCO; /juːˈnɛskoʊ/)is a specialized agency of the United Nations (UN). Itspurpose is to contribute to peace and security by promotinginternational collaboration through education, science, andculture in order to further universal respect for justice, therule of law, and human rights along with fundamental freedomproclaimed in the United Nations Charter. It is the heir ofthe League of Nations' International Committee on IntellectualCooperation.

UNESCO has 195 member states and nine associate members. Most ofits field offices are "cluster" offices covering three or morecountries; there are also national and regional offices.

UNESCO pursues its objectives through five major programs:education, natural sciences, social/human sciences, culture,and communication/information. Projects sponsored by UNESCOinclude literacy, technical, and teacher-training programmes;international science programmes; the promotion of independentmedia and freedom of the press; regional and cultural historyprojects; the promotion of cultural diversity; translations ofworld literature; international cooperation agreements tosecure the world cultural and natural heritage (World HeritageSites) and to preserve human rights, and attempts to bridgethe worldwide digital divide. It is also a member of theUnited Nations Development Group.

UNESCO's aim is "to contribute to the building of peace, theeradication of poverty, sustainable development andintercultural dialogue through education, the sciences,culture, communication and information". Other priorities of

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the organization include attaining quality Education For Alland lifelong learning, addressing emerging social and ethicalchallenges, fostering cultural diversity, a culture of peaceand building inclusive knowledge societies through informationand communication.

The broad goals and concrete objectives of the internationalcommunity — as set out in the internationally agreeddevelopment goals, including the Millennium Development Goals(MDG) — underpin all UNESCO's strategies and activities.

United Nations Industrial Development Organization The United Nations Industrial Development Organization (UNIDO),

French/Spanish/Portuguese acronym ONUDI, is a specializedagency in the United Nations system, headquartered in Vienna,Austria. The Organization's primary objective is the promotionand acceleration of industrial development in developingcountries and countries with economies in transition and thepromotion of international industrial cooperation. It is alsoa member of the United Nations Development Group.

World Tourism Organization The United Nations World Tourism Organization (UNWTO) is the

United Nations agency responsible for the promotion ofresponsible, sustainable and universally accessible tourism.It is the leading international organization in the field oftourism, which promotes tourism as a driver of economicgrowth, inclusive development and environmental sustainabilityand offers leadership and support to the sector in advancingknowledge and tourism policies worldwide. It encourages theimplementation of the Global Code of Ethics for Tourism tomaximize the contribution of tourism to socio-economicdevelopment, while minimizing its possible negative impacts,and is committed to promoting tourism as an instrument inachieving the United Nations Millennium Development Goals(MDGs), geared towards reducing poverty and fosteringsustainable development.

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UNWTO generates market knowledge, promotes competitive andsustainable tourism policies and instruments, fosters tourismeducation and training, and works to make tourism an effectivetool for development through technical assistance projects inover 100 countries around the world.

UNWTO’s membership includes 156 countries, 6 territories and over400 affiliate members representing the private sector,educational institutions, tourism associations and localtourism authorities. Its headquarters are located in Madrid,Spain.

Universal Postal Union The Universal Postal Union (UPU, French: Union postale

universelle) is a specialized agency of the United Nationsthat coordinates postal policies among member nations, inaddition to the worldwide postal system. The UPU contains fourbodies consisting of the Congress, the Council ofAdministration (CA), the Postal Operations Council (POC) andthe International Bureau (IB). It also oversees the Telematicsand EMS cooperatives. Each member agrees to the same terms forconducting international postal duties. The UPU’s headquartersare located in Bern, Switzerland.

French is the official language of the UPU. English was added asa working language in 1994. The majority of the UPU'sdocuments and publications – including its flagship magazine,Union Postale - are available in the United Nations' officiallanguages.[

World Bank Group The World Bank Group (WBG) is a family of five international

organizations that make leveraged loans to poor countries. Itis the largest and most famous development bank in the worldand is an observer at the United Nations Development Group.The bank is based in Washington, D.C. and provided around $30billion in loans and assistance to "developing" and transition

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countries in 2012. The bank's stated mission is to reducepoverty.

The World Bank's (the IBRD and IDA's) activities are focused ondeveloping countries, in fields such as human development(e.g. education, health), agriculture and rural development(e.g. irrigation and rural services), environmental protection(e.g. pollution reduction, establishing and enforcingregulations), infrastructure (e.g. roads, urban regeneration,and electricity), large industrial construction projects, andgovernance (e.g. anti-corruption, legal institutionsdevelopment). The IBRD and IDA provide loans at preferentialrates to member countries, as well as grants to the poorestcountries. Loans or grants for specific projects are oftenlinked to wider policy changes in the sector or the country'seconomy as a whole. For example, a loan to improve coastalenvironmental management may be linked to development of newenvironmental institutions at national and local levels andthe implementation of new regulations to limit pollution, ornot, such as in the World Bank financed constructions of papermills along the Rio Uruguay in 2006.

The World Bank Group consists of¯ International Bank for Reconstruction and Development (IBRD), ¯ International Finance Corporation (IFC),¯ International Development Association (IDA),¯ International Centre for Settlement of Investment Disputes (ICSID), ¯ Multilateral Investment Guarantee Agency (MIGA),

International Bank for Reconstruction and Development (IBRD), The International Bank for Reconstruction and Development (IBRD),

established in 1945, which provides debt financing on thebasis of sovereign guarantees;

International Finance Corporation (IFC), The International Finance Corporation (IFC), established in 1956,

which provides various forms of financing without sovereignguarantees, primarily to the private sector;

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International Development Association (IDA), The International Development Association (IDA), established in

1960, which provides concessional financing (interest-freeloans or grants), usually with sovereign guarantees;

International Centre for Settlement of Investment Disputes(ICSID),

The International Centre for Settlement of Investment Disputes(ICSID), established in 1965, which works with governments toreduce investment risk;

Multilateral Investment Guarantee Agency (MIGA), The Multilateral Investment Guarantee Agency (MIGA), established

in 1988, which provides insurance against certain types ofrisk, including political risk, primarily to the privatesector.

World Bank , World Bank Group or WBGThe term "World Bank" generally refers to just the IBRD and IDA,

whereas the term World Bank Group or WBG is used to refer toall five institutions collectively.

World Bank Institute The World Bank Institute is the capacity development branch of

the World Bank, providing learning and other capacity-buildingprograms to member countries.

World Food Programme The World Food Programme (WFP; French: Programme Alimentaire

Mondial; Italian: Programma Alimentare Mondiale; Spanish:Programa Mundial de Alimentos) is the food assistance branchof the United Nations and the world's largest humanitarianorganization addressing hunger and promoting food security. Onaverage, the WFP provides food to 90 million people per year,of whom 58 million are children. From its headquarters in Romeand more than 80 country offices around the world, the WFPworks to help people who are unable to produce or obtain

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enough food for themselves and their families. It is a memberof the United Nations Development Group and part of itsExecutive Committee.

World Health Organization The World Health Organization (WHO) is a specialized agency of

the United Nations (UN) that is concerned with internationalpublic health. It was established on 7 April 1948,headquartered in Geneva, Switzerland. WHO is a member of theUnited Nations Development Group. Its predecessor, the HealthOrganization, was an agency of the League of Nations. Theconstitution of the World Health Organization had been signedby 61 countries on 22 July 1946, with the first meeting of theWorld Health Assembly finishing on 24 July 1948. Itincorporated the Office International d'Hygiène Publique andthe League of Nations Health Organization. Since its creation,it has played a leading role in the eradication of smallpox.Its current priorities include communicable diseases, inparticular, HIV/AIDS, Ebola, malaria and tuberculosis; themitigation of the effects of non-communicable diseases; sexualand reproductive health, development, and aging; nutrition,food security and healthy eating; occupational health;substance abuse; and drive the development of reporting,publications, and networking. WHO is responsible for the WorldHealth Report, a leading international publication on health,the worldwide World Health Survey, and World Health Day (7April of every year).

World Intellectual Property Organization The World Intellectual Property Organization (WIPO) is one of the

17 specialized agencies of the United Nations. WIPO wascreated in 1967 "to encourage creative activity, to promotethe protection of intellectual property throughout the world."

WIPO currently has 188 member states, administers 26international treaties, and is headquartered in Geneva,Switzerland. The current Director-General of WIPO is Francis

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Gurry, who took office on October 1, 2008. 186 of the UNMembers as well as the Holy See and Niue are Members of WIPO.Non-members are the states of Marshall Islands, FederatedStates of Micronesia, Nauru, Palau, Solomon Islands, SouthSudan and Timor-Leste. Palestine has observer status.

World Meteorological OrganizationThe World Meteorological Organization (WMO) is an

intergovernmental organization with a membership of 191 MemberStates and Territories. It originated from the InternationalMeteorological Organization (IMO), which was founded in 1873.Established in 1950, WMO became the specialised agency of theUnited Nations for meteorology (weather and climate),operational hydrology and related geophysical sciences. It hasits headquarters in Geneva, Switzerland, and is a member ofthe United Nations Development Group. The current Secretary-General is Michel Jarraud. The current president is DavidGrimes.

Member states of the United NationsThe UN has 193 member states, including all undisputed

independent states apart from Vatican City.[e] The UN Charteroutlines the rules for membership:

1. Membership in the United Nations is open to all other peace-loving states that accept the obligations contained in thepresent Charter and, in the judgment of the Organization, areable and willing to carry out these obligations.

2. The admission of any such state to membership in the UnitedNations will be effected by a decision of the General Assemblyupon the recommendation of the Security Council. Chapter II,Article 4

In addition, there are two non-member observer states of theUnited Nations General Assembly: the Holy See (which holdssovereignty over Vatican City) and the State of Palestine. TheCook Islands and Niue, both states in free association withNew Zealand, are full members of several UN specialized

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agencies and have had their "full treaty-making capacity"recognised by the Secretariat.

Group of 77The Group of 77 at the UN is a loose coalition of developing

nations, designed to promote its members' collective economicinterests and create an enhanced joint negotiating capacity inthe United Nations. Seventy-seven nations founded theorganization, but by November 2013 the organization had sinceexpanded to 133 member countries. The group was founded 15June 1964 by the "Joint Declaration of the Seventy-SevenCountries" issued at the United Nations Conference on Tradeand Development (UNCTAD). The group held its first majormeeting in Algiers in 1967, where it adopted the Charter ofAlgiers and established the basis for permanent institutionalstructures.

Funding (UN)The UN is financed from assessed and voluntary contributions from

member states. The General Assembly approves the regularbudget and determines the assessment for each member. This isbroadly based on the relative capacity of each country to pay,as measured by its gross national income (GNI), withadjustments for external debt and low per capita income.

The Assembly has established the principle that the UN should notbe unduly dependent on any one member to finance itsoperations. Thus, there is a "ceiling" rate, setting themaximum amount that any member can be assessed for the regularbudget.

A large share of the UN's expenditure addresses its core missionof peace and security, and this budget is assessed separatelyfrom the main organizational budget. Special UN programmes notincluded in the regular budget, such as UNICEF and the WorldFood Programme, are financed by voluntary contributions frommember governments, corporations, and private individuals.

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international court of justice World Court or ICJ, Ad HocJudges , Permanent Court of International Justice

The International Court of Justice; commonly referred to as theWorld Court or ICJ) is the primary judicial branch of theUnited Nations. It is based in the Peace Palace in The Hague,Netherlands. Its main functions are to settle legal disputessubmitted to it by states and to provide advisory opinions onlegal questions submitted to it by duly authorizedinternational branches, agencies, and the UN General Assembly.The system of Ad Hoc Judges allows any party to a contentiouscase who otherwise does not have one of that party's nationalssitting on the Court to select one additional person to sit asa judge on that case only. It is possible that as many asseventeen judges may sit on one case. The key principle isthat the ICJ has jurisdiction only on the basis of consent.Article 36 outlines four bases on which the Court'sjurisdiction may be founded. The International Court does notenjoy a full separation of powers, with permanent members ofthe Security Council being able to veto enforcement of cases,even to which they consented to be bound.

Advisory opinion (ICJ)Audience of the "Accordance with International Law of the

Unilateral Declaration of Independence by the ProvisionalInstitutions of Self-Government of Kosovo"

An advisory opinion is a function of the Court open only tospecified United Nations bodies and agencies. On receiving arequest, the Court decides which States and organizationsmight provide useful information and gives them an opportunityto present written or oral statements. Advisory Opinions wereintended as a means by which UN agencies could seek theCourt's help in deciding complex legal issues that might fallunder their respective mandates.

In principle, the Court's advisory opinions are only consultativein character but are influential and widely respected. Whilst

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certain instruments or regulations can provide in advance thatthe advisory opinion shall be specifically binding onparticular agencies or states, they are inherently non-bindingunder the Statute of the Court. This non-binding characterdoes not mean that advisory opinions are without legal effect,because the legal reasoning embodied in them reflects theCourt's authoritative views on important issues ofinternational law and, in arriving at them, the Court followsessentially the same rules and procedures that govern itsbinding judgments delivered in contentious cases submitted toit by sovereign states.

An advisory opinion derives its status and authority from thefact that it is the official pronouncement of the principaljudicial organ of the United Nations.

international criminal courtThe International Criminal Court (ICC or ICCt) is an

intergovernmental organization and international tribunal thatsits in The Hague in the Netherlands. The ICC has thejurisdiction to prosecute individuals for the internationalcrimes of genocide, crimes against humanity, and war crimes.The ICC is intended to complement existing national judicialsystems and it may therefore only exercise its jurisdictionwhen certain conditions are met, such as when national courtsare unwilling or unable to prosecute criminals or when theUnited Nations Security Council or individual states referinvestigations to the Court. The ICC began functioning on 1July 2002, the date that the Rome Statute entered into force.The Rome Statute is a multilateral treaty which serves as theICC's foundational and governing document. States which becomeparty to the Rome Statute, for example by ratifying it, becomemember states of the ICC. Currently, there are 123 stateswhich are party to the Rome Statute and therefore members ofthe ICC.

The ICC has four principal organs: the Presidency, the JudicialDivisions, the Office of the Prosecutor, and the Registry. The

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President is the most senior judge chosen by his or her peersin the Judicial Division, which hears cases before the Court.The Office of the Prosecutor is headed by the Prosecutor whoinvestigates crimes and initiates proceedings before theJudicial Division. The Registry is headed by the Registrar andis charged with managing all the administrative functions ofthe ICC, including the headquarters, detention union, andpublic defense office.

permanent international court of justiceThe Permanent Court of International Justice, often called the

World Court, was an international court attached to the Leagueof Nations. Created in 1922 (although the idea of aninternational court was several centuries old), the Court wasinitially met with a good reaction from states and academicsalike, with many cases submitted to it for its first decade ofoperation. With the heightened international tension of the1930s the Court was used with decreasing regularity; by aresolution by the League of Nations on 18 April 1946, theCourt ceased to exist, being replaced by the InternationalCourt of Justice.

The Court's mandatory jurisdiction came from three sources; theOptional Clause of the League of Nations, generalinternational conventions and special bipartite internationaltreaties. Cases could also be submitted directly by states,but they were not bound to submit material unless it fell intothose three categories. The Court could issue either judgmentsor advisory opinions; judgments were directly binding, whileadvisory opinions were not. In practice member states of theLeague of Nations followed advisory opinions anyway, fearingthat to not do so could undermine the moral and legalauthority of the Court and League.

UN ResolutionUnited Nations resolutions are formal expressions of the opinion

or will of United Nations organs. They usually state a policy

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that the United Nations will undertake, but they also may bein the form of treaties, conventions and declarations in somebodies. They range from very general to very specific incontent. Depending on the body involved, they may call for orsuggest a course of action, condemn an action, or requireaction or sanctions in the part of the member states. TheGeneral Assembly and Economic and Social Council may only callfor or suggest actions. It should be noted that no one otherthan the Security Council may require action or sanctions frommember states.

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Law of Government Institutions (Constitutional Law)INTRODUCING CONSTITUTIONAL LAW

constitution A constitution is a set of fundamental principles or established

precedents according to which a state or other organization isgoverned.130 When these principles are written down into asingle or set of legal documents, those documents are called awritten constitution. Every country’s Constitution is thedocument that outlays the principles upon which it is to berun. For instance, Article 2(1) of 1995 Uganda Constitutionstates that, ‘This Constitution is the supreme law of Uganda and shall havebinding force on all authorities and persons throughout Uganda.’

A ‘constitution’ is simply those laws which constitute the bodypolitic, from statute, case law and convention. A case namedEntick v Carrington131 illustrates a constitutional principlederiving from the common law. Mr. Entick's house was searchedand ransacked by Sheriff Carrington. When Mr. Entickcomplained in court, Sheriff Carrington argued that a warrantfrom a Government minister, the Earl of Halifax, was validauthority. However, there was no written statutory provisionor court authority. The leading judge, Lord Camden, statedthat,

‘The great end, for which men entered into society, was to secure their property. Thatright is preserved sacred and incommunicable in all instances, where it has not beentaken away or abridged by some public law for the good of the whole ... If no excusecan be found or produced, the silence of the books is an authority against thedefendant, and the plaintiff must have judgment.’132

The fundamental constitutional principle, inspired by John Locke,holds that the individual can do anything but that which is


131 [6] EWHC KB J98132 Entick v. Carrington’. 19 Howell’s State Trials 1029 (1765). United

States: Constitution Society. Retrieved 2008-11-13.

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forbidden by law, and the state may do nothing but that whichis authorized by law.133

constitutionality Constitutionality is the condition of acting in accordance with

an applicable constitution.134 Acts that are not in accordancewith the rules laid down in the constitution are deemed to beultra vires. Again using example of Uganda, Article 2(2) of UgandaConstitution states that, ‘If any other law or any custom is inconsistentwith any of the provisions of this Constitution, the Constitution shall prevail, andthat other law or custom shall, to the extent of the inconsistency, be void.’

constitutionalism Constitutionalism, on the other hand, is the system of governance

where the governing organs operate to advance the interests ofthe people.135 According to Okoth-Ogendo, the paradox betweenconstitutions and constitutionalism in Africa consists in thefact that Afrikan ruling elites are attracted relentlessly tothe idea of constitutions since, in the first instance, thatis what ensures and guarantees the sovereignty of the stateand secondly what contains the laws for the governance of theparticular society in question. However, what has beenconcretely missing in the agenda of Afrikan ruling elites isthe classical and noble idea of constitutionalism, which isthe fidelity of governing regimes to the principle that theexercise of state power must seek to advance the ends ofsociety. To do this, government ought be based on popularconsent of the governed136 arising out of the citizens ‘socialcontract’ to live together 137 out of which we form a government

133 Chapter 9, Line 124, John Locke, Second Treatise on Government (1690)134 Collins English Dictionary – Complete and Unabridged © HarperCollins

Publishers 1991, 1994, 1998, 2000, 2003135 Okoth-Ogendo, H. W. O. “Constitutions without Constitutionalism: Reflections on an Afrikan

Political Paradox” in State and Constitutionalism An Afrikan Debate on Democracy, edited by Issa Shivji,Harare: SAPES Trust, 1991, pp. 3-25, at p. 5.

136 Id; see also Machiavelli, Niccolò (1996) Discourses on the First Ten Books of Titus Livy (Discorsi) NorthernIllinois University Press. Translated and edited by James B. Atkinson and David Sices.

137 Hobbes, Thomas. 1651a. Leviathan. C.B Macpherson (Editor). London: Penguin Books (1985); Seealso Locke, John. Two Treatises of Government and A Letter Concerning Toleration. Yale University Press

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and give it power to protect our lives and property andadvance our interests under a grundnorm138.

The exercise of state power must be beyond mere acts inaccordance to the constitution, that is, constitutionality,but betray fidelity to advance the ends of society. This isthe essence of constitutionalism139 which branchesrepublicanism from fascism; departs ‘might from right’140 andpillars modern constitutional republicanism141. Hence,constitutionalism is not just about applying the writtenconstitution (which is constitutionality), but making surethat the contents of the written constitution advances theinterests of the people, and then applying the contents toactually advance those interests.142 Constitutionalism is aculture, and it must be both present in the document, andlived in the application of governance. Uganda faces successesand challenges for her constitutional undertakings. Dialogueamongst all citizens must continue to ensure that the threeorgans of the state are strengthened and that mechanisms forenabling independent and effective functioning of each one ofthem are not eroded.

Constitutionalism, in its most general meaning, is "a complex ofideas, attitudes, and patterns of behavior elaborating theprinciple that the authority of government derives from and islimited by a body of fundamental law".143 A politicalorganization is constitutional to the extent that it

(2003); Rousseau, Jean-Jacques. The Basic Political Writings. (Trans. Donald A. Cress) HackettPublishing Company (1987) and Kant, Immanuel, 1785, Groundwork for the Metaphysics of Morals,translated by T. Abbott, revised and edited by L. Denis, Peterborough: Broadview Press, 2005.

138 Id; see also Hart, H.L.A. The Concept of Law. 1961: Clarendon Press139 Id140 Hobbes, Thomas. 1651a. Leviathan. C.B Macpherson (Editor). London: Penguin

Books (1985)141 Mill, John Stuart ‘On Liberty’ Penguin Classics, 2006 ISBN 978-0-14-

144147-4 pages 90–91142 Kanyeihamba G.W. (2002) Constitutional and Political History of Uganda,

Kampala: Centenary Publishers House Ltd.143 Don E. Fehrenbacher, Constitutions and Constitutionalism in the Slaveholding South (University of Georgia

Press, 1989) at p. 1. ISBN 978-0-8203-1119-7.

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"contain[s] institutionalized mechanisms of power control forthe protection of the interests and liberties of thecitizenry, including those that may be in the minority".144

why constitutionalism?The ideal form of government ought be based on popular consent of

the governed as argued by Machiavelli145 arising out of thecitizens ‘contract’ to live together as espoused by Rousseau146

in social contract theory out of which we form a governmentand give it power to protect our lives and property andadvance our interests under a grundnorm, so named by Kelsen147.The exercise of state power must be beyond mere acts inaccordance to the constitution, that is, constitutionality,but betray fidelity to advance the ends of society. This isthe essence of constitutionalism as written by Okoth-Ogendo148which branches republicanism from fascism; departs‘might from right’ as per Hobbes149 and pillars modernconstitutional republicanism as per Mill150.

middle-ground: representation-reinforcing reviewToo much judicial power undermines democracy; the risk of

majoritarian democracy is that it may consistently beat up onminorities. Therefore, the Court should intervene whenminority groups are systematically closed out of the politicalprocess.

144 Gordon, Scott (1999). Controlling the State: Constitutionalism from Ancient Athens to Today. HarvardUniversity Press. p. 4. ISBN 0-674-16987-5.

145 Machiavelli, Niccolò (1961), The Prince, London: Penguin, ISBN 978-0-14-044915-0. Translatedby George Bull.

146 Rousseau, Jean-Jacques. The Basic Political Writings. (Trans. Donald A. Cress) Hackett PublishingCompany (1987)

147 Hans, Kelsen. Pure Theory of Law, M. Knight, trans., Berkeley: University of CaliforniaPress.

148 Okoth-Ogendo, H. W. O. 1991, Constitutions without Constitutionalism (1991)149 Hobbes, Thomas. 1651a. Leviathan. C.B Macpherson (Editor). London: Penguin Books (1985)150 Mill, John Stuart ‘On Liberty’ Penguin Classics, 2006 ISBN 978-0-14-144147-4 pages 90–91

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http://en.wikipedia.org/wiki/Special:BookSources/0-674-16987-5



PUBLIC INSTITUTIONS, BUREAUCRACY

bureaucracy A bureaucracy is "a body of non-elective government officials"

and/or "an administrative policy-making group". Historically,bureaucracy referred to government administration managed bydepartments staffed with nonelected officials. In modernparlance, bureaucracy refers to the administrative systemgoverning any large institution. In his Philosophy of Right,Hegel had supported the role of specialized officials in therole of public administration, although he never used the term"bureaucracy" himself. Marx by contrast was opposed to thebureaucracy. He saw the development of bureaucracy ingovernment as a natural counterpart to the development of thecorporation in private society. Marx posited that while thecorporation and government bureaucracy existed in seemingopposition, in actuality they mutually relied on one anotherto exist. He wrote that "The Corporation is civil society'sattempt to become state; but the bureaucracy is the statewhich has really made itself into civil society."151

In the early 1860s, political scientist John Stuart Milltheorized that successful monarchies were essentiallybureaucracies, and found evidence of their existence inImperial China, the Russian Empire, and the regimes of Europe.Mill referred to bureaucracy as a distinct form of government,separate from representative democracy. He believedbureaucracies had certain advantages, most importantly theaccumulation of experience in those who actually conduct theaffairs.152 As the most efficient and rational way oforganizing, bureaucratization for Weber was the key part ofthe rational-legal authority, and furthermore, he saw it as

151 On Karl Marx: Hal Draper, Karl Marx's Theory of Revolution, Volume 1: State and Bureaucracy.New York: Monthly Review Press, 1979.; see also Marx comments on the state bureaucracy in hisCritique of Hegel's Philosophy of Right and Engels discusses the origins of the state inOrigins of the Family.

152 John Stuart Mill (1861). "VI—Of the Infirmities and Dangers to which RepresentativeGovernment is Liable". Considerations on Representative Government. Retrieved 12 October2012.

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the key process in the ongoing rationalization of the Westernsociety.153154 Although he is not necessarily an admirer ofbureaucracy, Weber does agree that bureaucracy constitutes themost efficient and (formally) rational way in which humanactivity can be organized, and that thus is indispensable tothe modern world.155

state State commonly refers to either the condition of a system or

entity, or to a governed entity (such as a country) orsubentity (such as an autonomous territory of a country).

government, administrationA government is the system by which a state or community is

governed.156 In the Commonwealth of Nations, the wordgovernment is also used more narrowly to refer to thecollective group of people that exercises executive authorityin a state. This usage is analogous to what is called an"administration" in American English. Furthermore, governmentis occasionally used in English as a synonym for governance.157

civil society Civil society is the "aggregate of non-governmental organizations

and institutions that manifest interests and will ofcitizens." Civil society includes the family and the privatesphere, referred to as the "third sector" of society, distinctfrom government and business.

153 Richard Swedberg; Ola Agevall (2005). The Max Weber dictionary: key words and centralconcepts. Stanford University Press. pp. 18–21. ISBN 978-0-8047-5095-0. Retrieved 23 March2011.

154 George Ritzer (29 September 2009). Contemporary Sociological Theory and Its Classical Roots:The Basics. McGraw-Hill. pp. 38–42. ISBN 978-0-07-340438-7. Retrieved 22 March 2011.

155 Weber, Max. The Theory of Social and Economic Organization. Translated by A.M. Henderson andTalcott Parsons. London: Collier Macmillan Publishers, 1947.

156 American Heritage Dictionary of the English Language (4th ed.). 222 Berkeley Street, Boston,MA 02116: Houghton Mifflin Company. ISBN 0-395-82517-2

157 Krader, Lawrence (1968). Formation of the State, in Foundations of Modern AnthropologySeries. Englewood Cliffs, N.J.: Prentice-Hall. x, 118 p.

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commissionA type of government agency that operates under the authority of

a board of commissioners. Statutory commission, a governmentauthority created by statutes of the legislature such as:

¯ Statutory authority¯ Independent agencies of the United States government¯ Regulatory agency¯ Public benefit corporation

election commission An election commission is a body charged with overseeing the

implementation of election procedures. The exact name usedvaries from country to country, including such terms as"electoral commission", "central election commission","electoral branch" or "electoral court". Election commissionscan be independent, mixed, judicial or governmental. They mayalso be responsible for electoral boundary delimitation. Infederations there may be a separate body for each subnationalgovernment.

sovereign state, country, nation, state In international law, a sovereign state is a nonphysical

juridical entity that is represented by one centralisedgovernment that has sovereignty over a geographic area.International law defines sovereign states as having apermanent population, defined territory, one government, andthe capacity to enter into relations with other sovereignstates.158 It is also normally understood that a state is

158 Shaw, Malcolm Nathan (2003). International law. Cambridge University Press. p. 178. Article1 of the Montevideo Convention on Rights and Duties of States, 1 lays down the most widelyaccepted formulation of the criteria of statehood in international law. It note that thestate as an international person should possess the following qualifications: '(a) apermanent population; (b) a defined territory; (c) government; and (d) capacity to enter intorelations with other states'; see also Jasentuliyana, Nandasiri, ed. (1995). Perspectives oninternational law. Kluwer Law International. p. 20. So far as States are concerned, thetraditional definitions provided for in the Montevideo Convention remain generally accepted.

pg. 158


neither dependent on nor subject to any other power orstate.159

The existence or disappearance of a state is a question of fact.While according to the declarative theory of state recognitiona sovereign state can exist without being recognised by othersovereign states, unrecognised states will often find it hardto exercise full treaty-making powers and engage in diplomaticrelations with other sovereign states.

In casual usage, the terms "country", "nation", and "state" areoften used as if they were synonymous; but in stricter usagethey can be distinguished:

"country" denotes a region of land defined by geographicalfeatures or political boundaries.

Nation denotes a people who are believed to or deemed to sharecommon customs, religion, language, origins, ancestry orhistory. However, the adjectives national and internationalare frequently used to refer to matters pertaining to what arestrictly sovereign states, as in national capital,international law.

State refers to the set of governing and supportive institutionsthat have sovereignty over a definite territory andpopulation. Sovereign states are legal persons.

159 Wheaton, Henry (1836). Elements of international law: with a sketch of the history of thescience. Carey, Lea & Blanchard. p. 51. A sovereign state is generally defined to be anynation or people, whatever may be the form of its internal constitution, which governs itselfindependently of foreign powers; see "sovereign", The American Heritage Dictionary of theEnglish Language (4th ed.) (Houghton Mifflin Company), 2004, retrieved 21 February 2010, adj.1. Self-governing; independent: a sovereign state; see also "sovereign", The New OxfordAmerican Dictionary (2nd ed.) (Oxford: Oxford University Press), 2005, ISBN 0-19-517077-6,adjective ... [ attrib. ] (of a nation or state) fully independent and determining its ownaffairs.

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international bodies, international organisations, Internationalnongovernmental organizations (INGOs), Intergovernmentalorganizations

An international organization is an organization with aninternational membership, scope, or presence. There are twomain types:160

International nongovernmental organizations (INGOs): non-governmental organizations (NGOs) that operateinternationally. These include international non-profitorganizations and worldwide companies such as the WorldOrganization of the Scout Movement, International Committee ofthe Red Cross, Médecins Sans Frontières and World Safeguardand Media Limited.

Intergovernmental organizations, also known as internationalgovernmental organizations (IGOs): the type of organizationmost closely associated with the term 'internationalorganization', these are organizations that are made upprimarily of sovereign states (referred to as member states).Notable examples include the United Nations (UN), Organisationfor Economic Co-operation and Development (OECD) Organizationfor Security and Co-operation in Europe (OSCE), Council ofEurope (CoE), European Union (EU; which is a prime example ofa supranational organization), and World Trade Organization(WTO). The UN has used the term "intergovernmentalorganization" instead of "international organization" forclarity.

member stateA member state is a state that is a member of an international

organisation or of a federation or confederation. The WorldTrade Organization (WTO) and the International Monetary Fund(IMF) include some members that are not sovereign states;

160 The Penguin Dictionary of International Relations divides modern international organizationsinto two "basic types, the 'public' variety known as intergovernmental organizations (IGOs)and the 'private' variety, the international non-governmental organization (INGOs)." (Evans,Graham, and Richard Newnham. Penguin Dictionary of International Relations. Penguin, 1998, p.270.)

pg. 160


thus, neither organization ever speaks of "members states";the WTO has simply "members"WTO members, whereas the IMF callsits members "member countries"

federated state A federated state (which may be referred to as a state, a

province, a canton, a Land, etc.) is a territorial andconstitutional community forming part of a federal union.161

Such states differ from fully sovereign states, in that theyhave transferred a portion of their sovereign powers to afederal government. Importantly, when states choose tofederate, they lose their standing as persons of internationallaw. Instead, the federal union as a single entity becomes thesovereign state for purposes of international law.162 Afederated state holds administrative jurisdiction over adefined geographic territory and is a form of regionalgovernment.

nation state A nation state is a geographical area that can be identified as

deriving its political legitimacy from serving as a sovereignnation.163 A state is a political and geopolitical entity,while a nation is a cultural and ethnic one. The term "nationstate" implies that the two coincide, but "nation state"formation can take place at different times in different partsof the world, and has become the dominant form of worldorganization. The concept of a nation state can be comparedand contrasted with that of the multinational state, city

161 The Australian National Dictionary: Fourth Edition, pg 1395. (2004) Canberra. ISBN 978-0-19-551771-2.162 Crawford, J. (2006). The Creation of States in International Law. Oxford, Clarendon Press.163 Such a definition is a working one: "All attempts to develop terminological consensus around

"nation" resulted in failure", concludes Tishkov, Valery (2000). "Forget the 'nation': post-nationalist understanding of nationalism". Ethnic and Racial Studies 23 (4): 625–650 [p. 6].doi:10.1080/01419870050033658.. Walker Connor, in [Connor, Walker (1978). "A Nation is aNation, is a State, is an Ethnic Group, is a...". Ethnic and Racial Studies 1 (4): 377–400.doi:10.1080/01419870.1978.9993240.] discusses the impressions surrounding the characters of"nation", "(sovereign) state", "nation state", and "nationalism". Connor, who gave the term"ethnonationalism" wide currency, also discusses the tendency to confuse nation and state andthe treatment of all states as if nation states. In Globalization and Belonging, Sheila L.Crouche discusses "The Definitional Dilemma" (pp. 85ff).

pg. 161



state,164 empire, confederation, and other state formationswith which it may overlap. The key distinction is theidentification of a people with a polity in the "nationstate."

164 Peter Radan (2002). The break-up of Yugoslavia and international law. Psychology Press. p. 14. ISBN 978-0-415-25352-9. Retrieved 25 November 2010; Alfred Michael Boll (2007). Multiple nationality and international law. MartinusNijhoff Publishers. p. 67.ISBN 978-90-04-14838-3. Retrieved 25 November 2010; see also Daniel Judah Elazar (1998). Covenant and civil society: the constitutional matrix of modern democracy. Transaction Publishers. p. 129. ISBN 978-1-56000-311-3. Retrieved25 November 2010.

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http://books.google.com/books?id=EiOpZbl0eXIC&pg=PA129

http://books.google.com/books?id=EiOpZbl0eXIC&pg=PA129

http://en.wikipedia.org/wiki/Special:BookSources/978-90-04-14838-3


http://books.google.com/books?id=Mr6Y45439A0C&pg=PA67


CITIZENSHIP

individuals, citizensPerson who by place of birth, nationality of one or both parents,

or by going through the naturalization process has swornloyalty to a nation. A citizen is subject to losing his/hercitizenship if he/she commits acts showing loyalty to anothercountry, including serving in armed forces potentiallyunfriendly to the country, or voting in a foreign county.However, if the foreign nation recognizes dual citizenship thecountry will overlook this duality of nationalities. Citizensare either native born or naturalized. Native citizens mayfill any office; naturalized citizens may be elected orappointed to any office under the constitution of the UnitedStates, except the office of president and vice-president.

Citizenship Citizenship is the status of a person recognized under the custom

or law of a state that bestows on that person (called acitizen) the rights and the duties of citizenship. That mayinclude the right to vote, work and live in the country, theright to return to the country, the right to own real estate,legal protections against the country's government, andprotection through the military or diplomacy. A citizen mayalso be subject to certain duties, such as a duty to followthe country's law, to pay taxes, or to serve in the military.A person may have multiple citizenships and a person who doesnot have citizenship of any state is said to be stateless.Nationality is often used as a synonym for citizenship inEnglish – notably in international law – although the term issometimes understood as denoting a person's membership of anation (a large ethnic group). In some countries, e.g. theUnited States, the United Kingdom, nationality and citizenshipcan have different meanings (for more information, seeNationality#Nationality versus citizenship).

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Nationality lawA person can be a citizen for several reasons. Usually

citizenship of the place of birth is automatic; in other casesan application may be required. Nationality law largelyfollows the jus sanguinis (citizenship by right of blood) asopposed to the jus soli (citizenship by right of birth withinthe territory).

Parents are citizens (jus sanguinis)., citizenship throughparents, citizenship by right of blood

If one or both of a person's parents are citizens of a givenstate, then the person may have the right to be a citizen ofthat state as well. [a] Formerly this might only have appliedthrough the paternal line, but sex equality became commonsince the late twentieth century. Citizenship is granted basedon ancestry or ethnicity, and is related to the concept of anation state common in China. Where jus sanguinis holds, aperson born outside a country, one or both of whose parentsare citizens of the country, is also a citizen. Statesnormally limit the right to citizenship by descent to acertain number of generations born outside the state. Thisform of citizenship is not common in civil law countries.

Born within a country (jus soli). citizenship through birth,citizenship by right of birth within the territory

Some people are automatically citizens of the state in whichthey are born. This form of citizenship originated in Englandwhere those who were born within the realm were subjects ofthe monarch (a concept pre-dating citizenship), and is commonin common law countries.

In many cases both jus solis and jus sanguinis hold; citizenshipeither by place or parentage (or of course both).

Multiple citizenship, also called dual citizenship or multiplenationality

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Multiple citizenship, also called dual citizenship or multiplenationality, is a person's citizenship status, in which aperson is concurrently regarded as a citizen of more than onestate under the laws of those states. There is nointernational convention which determines the nationality orcitizen status of a person, which is defined exclusively bynational laws, which vary and can be inconsistent with eachother. Multiple citizenship arises because different countriesuse different, and not necessarily mutually exclusive,criteria for citizenship. Colloquial speech refers to people"holding" multiple citizenship but technically each nationmakes a claim that this person be considered its national.

Some countries do not permit dual citizenship. This may be byrequiring an applicant for naturalisation to renounce allexisting citizenships, or by withdrawing its citizenship fromsomeone who voluntarily acquires another citizenship, or byother devices. Some permit a general dual citizenship whileothers permit dual citizenship but only of a limited number ofcountries.

Most countries which permit dual citizenship still may notrecognise the other citizenship of its nationals within itsown territory, for example in relation to entry into thecountry, national service, duty to vote, etc. Similarly, itmay not permit consular access by another country for a personwho is also its national. Some countries prohibit dualcitizenship holders from serving in their military, on policeforces or holding certain public offices.

citizenship based on religion Some countries grant citizenship based on religion: Israel gives

all Jews the right to immigrate to Israel, by the Law ofReturn, and fast-tracked citizenship. Dual citizenship ispermitted, but when entering the country the Israeli passportmust be used. The Algerian nationality law grants citizenshiponly to Muslims whose father and paternal grandfather wereMuslims. In the Maldives, on 7 August 2008, President Maumoon

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Abdul Gayoom enacted a law that allows only Muslims to becomecitizens of the Maldives (exceptions are persons born in theMaldives whose parents are already citizens, but the exerciseof religions other than Islam is illegal).

Citizenship by adoption A minor adopted from another country when at least one adoptive

parent is a citizen.Citizenship by investment Citizenship by investment. Some countries give citizenship to

people who make a substantial monetary investment in acountry. For example, Austria, Cyprus, Dominica and St. Kitts& Nevis grant citizenship immediately, without a requirementfor any presence in the country.

Citizenship by holding an office (jus oficii).Citizenship by holding an office (jus oficii). In the case of

Vatican City, citizenship is based on holding an office, withVatican citizenship held by the Pope, cardinals residing inVatican City, active members of the Holy See's diplomaticservice, and other directors of Vatican offices and services.Vatican citizenship is lost when the office term comes to anend, and children cannot inherit it from their parents. SinceVatican citizenship is time-limited, dual citizenship isallowed, and persons who would become stateless because ofloss of Vatican citizenship automatically become Italiancitizens.

Involuntary multiple citizenship, birth tourismInvoluntary multiple citizenship can happen in three ways:1. The parents have different citizenships or are multiple

citizens themselves.2. Some countries (e.g. Canada, the United States of America, and

most other American countries) regard all babies born thereautomatically as citizens even if the parents are illegalimmigrants (jus soli). For example, a baby born in the USA to

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Norwegian parents automatically has dual citizenship with theUSA and Norway, although Norway usually restricts/forbid dualcitizenship.

This has led to birth tourism, so some countries have abolishedjus soli or restricted it (at least one parent must be acitizen or a legal permanent resident who has lived in thecountry for several years).

3. Some countries forbid their citizens to renounce theircitizenship or try to discourage them from doing so.

A group of countries completely forbids their citizens torenounce their citizenship (e.g. Argentina, Bolivia, CostaRica).

Other countries allow the renunciation only if the citizenshipwas acquired involuntarily by birth there to non-citizenparents (e.g. Dominican Republic, Ecuador, Guatemala,Honduras, Mexico, Nicaragua, Uruguay).

A third group of countries (e.g. Afghanistan, Algeria, Angola,Cuba, Eritrea, Iran, Iraq, Lebanon, Morocco, Nigeria, Syria,Thailand, Tunisia) has very difficult/humiliating/expensiverenunciation processes to discourage their citizens fromrenouncing their citizenship.

This is why a person wanting to give up his/her old citizenshipfor a new one, or born with several citizenships and wantingto renounce one or more of them, sometimes cannot do that,even if one or several countries of which he/she is or wantsto become a citizen do not allow multiple citizenship.

For example, Germany usually requires non-EU/non-Swiss citizensborn and grown up abroad to renounce their old citizenshipbefore they can become German citizens. But a Mexican citizenborn to Mexican parents cannot renounce his/her Mexicancitizenship, even if he/she wants to, and so an exception ismade, and he/she will be naturalized in Germany also withoutthe renunciation of the Mexican citizenship.

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Partial citizenshipMany countries allow foreigners or former citizens to live and

work indefinitely there. However, for voting, being voted andworking for the public sector or the national security in acountry, citizenship of the country concerned is almost alwaysrequired.

Supra-national citizenshipIn European Union law, there is the concept of EU citizenship

which flows from citizenship of a member state. A citizen ofan EU country is free to live and to work in another EUcountry for an unlimited period of time, but member states mayreserve the right to vote in national elections, stand fornational election, become a public servant in highly sensitiveministries (Defence for example), etc. only for theircitizens. An EU state may place restrictions on the freemovement rights of citizens of newly admitted states forseveral years, such provisions remain in force mostly fornationals of Croatia (no later than 2020); in the past, and toa lesser extent, such provisions also affected Estonia,Latvia, Lithuania, Poland, the Czech Republic, Slovakia,Hungary, Slovenia, Bulgaria and Romania.

The Commonwealth of Nations has a Commonwealth citizenship forthe citizens of its members. Some member states (such as theUnited Kingdom) allow non-nationals who are Commonwealthcitizens to vote and stand for election while resident there.Others make little or no distinction between citizens of otherCommonwealth nations and citizens of non-Commonwealth nations.

Renunciation If an adult makes a declaration of renunciation of citizenship,

he loses citizenship. In addition, any minor child of thatperson also loses Indian citizenship from the date ofrenunciation. When the child reaches the age of eighteen, heor she has the right to have his or her citizenship restored.The provisions for making a declaration of renunciation under

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Indian citizenship law require that the person making thedeclaration be "of full age and capacity".

Termination Any citizen of India who by naturalisation or registration

acquires the citizenship of another country shall cease to bea citizen. Notably, the termination provision differs from therenunciation provision because it applies to "any citizen "and is not restricted to adults. Children therefore alsoautomatically lose their claim to citizenship if at any timeafter birth they acquire a citizenship of another country by,for example, naturalisation or registration — even if theacquisition of another citizenship was done as a result ofactions by the child's parents. The acquisition of anothercountry's passport is also deemed under the Citizenship Rules,to be voluntary acquisition of another country’s nationality.

Marriage to a citizen (jure matrimonii). citizenship throughmarriage

Many countries fast-track naturalization based on the marriage ofa person to a citizen. Countries which are destinations forsuch immigration often have regulations to try to detect shammarriages, where a citizen marries a non-citizen typically forpayment, without them having the intention of living as manand wife.

Naturalization. States normally grant citizenship to people who have entered the

country legally and been granted permit to stay, or beengranted political asylum, and also lived there for a specifiedperiod. In some countries naturalization is subject toconditions which may include passing a test demonstratingreasonable knowledge of the language or way of life of thehost country, good conduct (no serious criminal record),swearing allegiance to their new state or its ruler, andrenouncing their prior citizenship. Some states allow dual

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citizenship and do not require naturalized citizens torenounce any other citizenship.

Excluded categories. In the past there have been exclusions on entitlement to

citizenship on grounds such as skin color, ethnicity, sex, andfree status (not being a slave). Most of these exclusions nolonger apply in most places. Modern examples include some Arabcountries which rarely grant citizenship to non-Muslims, e.g.Qatar is known for granting citizenship to foreign athletes,but they all have to profess the Islamic faith in order toreceive citizenship.

Honorary citizenship Honorary citizenship is a status bestowed by a country on a

foreign individual whom it considers to be especiallyadmirable or otherwise worthy of the distinction.

Historically, many states limited citizenship to only aproportion of their population, thereby creating a citizenclass with political rights superior to other sections of thepopulation, but equal with each other.

nationalityNationality is membership of a nation or sovereign state, usually

determined by their citizenship, but sometimes by ethnicity orplace of residence, or based on their sense of nationalidentity.

Nationality can refer to membership in a nation (collective ofpeople sharing a national identity, usually based on ethnicand cultural ties and self-determination) even if that nationhas no state, such as the Basques, Kurds, and Tamils.Individuals may also be considered nationals of groups withautonomous status which have ceded some power to a largergovernment, such as the federally recognized tribes of NativeAmericans in the United States.

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Article 15 of the Universal Declaration of Human Rights statesthat ‘Everyone has the right to a nationality,’ and ‘No oneshall be arbitrarily deprived of his nationality nor deniedthe right to change his nationality.’ By custom, it is theright of each state to determine who its nationals are. Suchdeterminations are part of nationality law. In some cases,determinations of nationality are also governed by publicinternational law—for example, by treaties on statelessnessand the European Convention on Nationality.

citizenship Citizenship is determined by jus soli, jus sanguinis, or naturalization,

which affords the state jurisdiction over the person andaffords the person the protection of the state. The wordcitizenship is often used in a different sense fromnationality. The most common distinguishing feature ofcitizenship is that citizens have the right to participate inthe political life of the state, such as by voting or standingfor election. The term national can include both citizens andnon-citizens.

There are various ways through which a person can be declared acitizen of a country, namely: naturalization, descent, birth,and registration.

naturalization, naturalisationNaturalization (or naturalisation) is the acquisition of

citizenship and nationality by somebody who was not a citizenof that country at the time of birth. In general, basicrequirements for naturalization are that the applicant hold alegal status as a full-time resident for a minimum period oftime and that the applicant promise to obey and uphold thatcountry's laws, to which an oath or pledge of allegiance issometimes added. Some countries also require that anaturalized national must renounce any other citizenship thatthey currently hold, forbidding dual citizenship, but whetherthis renunciation actually causes loss of the person's

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original citizenship will again depend on the laws of thecountries involved.

denaturalizationDenaturalization is the reverse of naturalization, when a state

deprives one of its citizens of his or her citizenship. Fromthe point of view of the individual, denaturalization means‘revocation’ or ‘loss’ of citizenship. Denaturalization can bebased on various legal justifications. The most severe form isthe ‘stripping of citizenship’ when denaturalization takesplace as a penalty for actions considered criminal by thestate, often only indirectly related to nationality, forinstance for having served in a foreign military. In countriesthat enforce single citizenship, voluntary naturalization inanother country will lead to an automatic loss of the originalcitizenship; the language of the law often refers to suchcases as ‘giving up one's citizenship’ or (implicit)renunciation of citizenship. Another case, affecting onlyforeign-born citizens, denaturalization can refer to the lossof citizenship by an annulment of naturalization, also knownas ‘administrative denaturalization’ where the original act ofnaturalization is found to be invalid, for instance due to anadministrative error or if it had been based on fraud(including bribery).165

165 Weil, Patrick. "Comparing Twenty-Five Nationality Laws." Citizenship Today: Global Perspectives and Practices. Washington, D.C.: Brookings Institution Press, 2001. 16-35. Print

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LOCAL GOVERNMENT/DEVOLVED GOVERNMENT

local government, devolved governmentLocal government is a form of public administration which in a

majority of contexts, exists as the lowest tier ofadministration within a given state. The term is used tocontrast with offices at state level, which are referred to asthe central government, national government, or (whereappropriate) federal government and also to supranationalgovernment which deals with governing institutions betweenstates. Local governments generally act within powersdelegated to them by legislation or directives of the higherlevel of government. In federal states, local governmentgenerally comprises the third (or sometimes fourth) tier ofgovernment, whereas in unitary states, local governmentusually occupies the second or third tier of government, oftenwith greater powers than higher-level administrativedivisions.

charterA charter is the grant of authority or rights, stating that the

granter formally recognizes the prerogative of the recipientto exercise the rights specified. It is implicit that thegranter retains superiority (or sovereignty), and that therecipient admits a limited (or inferior) status within therelationship, and it is within that sense that charters werehistorically granted, and that sense is retained in modernusage of the term.

The word entered the English language from the Old French charte(ultimately from the Latin word for "paper"), but the conceptis universal and transcends language. It has come to besynonymous with the document that lays out the granting ofrights or privileges.

The term is used for a special case (or as an exception) to aninstitutional charter. A charter school, for example, is one

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that has different rules, regulations, and statutes from astate school.

Charter is sometimes used as a synonym for 'tool' or 'lease', asin the 'charter' of a bus or boat by an organization, intendedfor a similar group destination.

A charter member of an organization is an original member; thatis, one who became a member when the organization received itscharter.

Charter colony The British Empire used three main types of colonies as it sought

to expand its territory to distant parts of the earth. Thesethree types were royal colonies, proprietary colonies, andcorporate colonies. A charter colony by definition is a"colony…chartered to an individual, trading company, etc., bythe British crown." Although charter colonies were not themost prevalent of the three types of colonies in the BritishEmpire, they were by no means insignificant.

Congressional charter A congressional charter is a law passed by the United States

Congress that states the mission, authority and activities ofa group. Congress issued federal charters from 1791 until 1992under Title 36 of the United States Code.

Municipal charterA municipal corporation is the legal term for a local governing

body, including (but not necessarily limited to) cities,counties, towns, townships, charter townships, villages, andboroughs. Municipal incorporation occurs when suchmunicipalities become self-governing entities under the lawsof the state or province in which they are located. Often,this event is marked by the award or declaration of amunicipal charter.

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Royal charterIn medieval Europe, royal charters were used to create cities

(i.e., localities with recognised legal rights andprivileges). The date that such a charter was granted isconsidered to be when a city was "founded", regardless of whenthe locality originally began to be settled. At one time aroyal charter was the only way in which an incorporated bodycould be formed, but other means (such as the registrationprocess for limited companies) are generally now used instead.

paramountcy doctrineThe doctrine of paramountcy is the legal principle that

reconciles contradicting or conflicting laws in a federaliststate. Where both the central government and the provincial orstate governments have the power to create laws in relation tothe same matters, the laws of one government will be givenpriority over the other through the doctrine.

mootnessArticle I's mootness doctrine requires that the three elements of

standing (injury in fact, causation, and redressability) existthroughout the judicial review process. The federal courtsrefuse to hear cases in which there is no present dispute orinjury due to a lapse of time or other changed circumstances,even though a controversy originally existed. Defunis v.Odegaard,166. In Defunis, a law student attacked a law school'sadmission policy on the grounds of reverse discrimination.While the case was en route to the Supreme Court, Defunis wasadmitted and graduated from law school. The Court dismissedthe appeal: "A determination by this Court of the legal issuestendered by the parties is no longer necessary to compel[Defunis' admission], and could not serve to prevent it."

EXAMPLE:A student at a public high school challenged the school's

requirement of ROTC military instruction on the grounds that166 416 U.S. 312 (1974)

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it violated his First Amendment rights. While the action waspending, he graduated. The action was then dismissed based onthe Mootness Doctrine. Sapp v. Renfroe, 167

equal protection standingIn affirmative action litigation challenging government barriers

toward one group, the Court has relaxed the standingrequirement; "the 'injury in fact’ in an equal protection caseof this variety is the denial of equal treatment resultingfrom the imposition of the barrier, not the ultimate inabilityto obtain the benefit." Northeastern Florida Chapter of the AssociatedGeneral Contractors v. City of Jacksonville168

Thus, where a municipality had a 10% set aside program forminority owned businesses, the plaintiff did not have to showthat it would have received a successful bid but for the setaside; rather, the plaintiff only had to show it regularly bidon such construction jobs and that it would have bid on theset aside projects but for the restriction.

case and controversyThe Constitution requires that federal cases involve a genuine

dispute or controversy which can only be resolved by aconclusive legal decree; federal courts will not hearhypothetical, advisory or moot questions. An alleged "fear" ofadverse consequences resulting from governmental activity isinsufficient. Thus, even one who has been injured bygovernment activity in the past must show that a similarinjury is likely to occur to him again in order to establish a"case and controversy" sufficient to seek an injunctionagainst the activity.169.

The requirement that a real "case" or "controversy" existsderives its origins from then Secretary of State ThomasJefferson's attempt to submit twenty-nine abstract questions

167 511 F.2d 172 (5th Cir. 1975).168 , 113 S.Ct. 2297, 2303 (1993).169 City of Los Angeles v. Lyons, 461 U.S. 95 (1983)

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of law to the Supreme Court. The Court refused to proffer anadvisory opinion because there was no real dispute involved.

ripenessA case will be dismissed for lack of ripeness if the suit is

premature, that is, if no real harm has yet been done. A suitchallenging a statute as unconstitutional on its face is lesslikely to be dismissed on ripeness grounds than one based onunconstitutional application. However, if it fails this test,then the petition will be dismissed ad limini, since there willbe nothing less than an injustice of a trail.

EXAMPLE:A Connecticut doctor attacked a statute which proscribed giving

birth control advice. Since Connecticut was admittedly notenforcing the statute, the Court summarily dismissed the suitas lacking ripeness; there was no real harm or imminent dangerof harm. Poe v. Ullman,170.

To overcome a ripeness challenge, there must be more than ageneralized threat of a chilling effect resulting from themere existence of the statute.

abstention ruleAbstention is a form of judicial self-restraint. The federal

courts may defer to a state court's ability to decide andinterpret in the first instance the constitutionality of astate statute. Remember, state courts are the final authorityin interpreting state statutes, as long as the statute, asinterpreted, does not violate the United States Constitution.The abstention doctrine is most frequently invoked when issuesinvolving the interpretation of a state statute reach thefederal court while another case involving the same issue ispending in the state court. Sugar v. Curtis Circulation Co., 171 Wherethere is no ambiguity in the state statute, for example,because of the clear statutory language or because of a prior

170 367 U.S. 497 (1961)171 383 F. Supp. 643 (S.D.N.Y. 1974).

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definitive construction by a state appellate court, then thefederal court should not abstain, but should decide theFederal constitutional issue.

quasi in remQuasi in rem (Latin, ‘as if against a thing’) is a legal term referring

to a legal action based on property rights of a person absentfrom the jurisdiction. In most jurisdictions, the state canassert power over an individual simply based on the fact thatthis individual has property (bank account, debt, share ofstock, land) in the state. A quasi in rem action is commonlyused when jurisdiction over the defendant is unobtainable dueto his/her absence from the state. Any judgment will affectonly the property seized, as in personam jurisdiction isunobtainable.172 Of note, in a quasi in rem case the court maylack personal jurisdiction over the defendant, but it hasjurisdiction over the defendant's property. The property couldbe seized to obtain a claim against the defendant.173 Ajudgment based on quasi in rem jurisdiction generally affectsrights to the property only between the persons involved anddoes not ‘bind the entire world’ as does a judgment based on‘jurisdiction in rem‘. The claim does not have to be related to theproperty seized, but the person must have minimum contactswith the forum state in order for jurisdiction to be proper.

172 Yeazell, Stephen (2008). Civil Procedure (7th Ed. ed.). Frederick, MD: Aspen Publishers. p. 85. ISBN 9780735569256.

173 Ibidem

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PRINCIPLES OF CONSTITUTIONALISM

principles of constitutionalismIn the last Century, Professor Okoth-Ogendo, H. W. O wrote in his

classical masterpiece, Constitutions Without Constitutionalism174, that ‘Afrikan ruling elites are attracted relentlessly to the idea of constitutions… missingthe noble idea of constitutionalism.’ He added that the exercise ofstate power must seek to advance the ends of society, and thatthe country that satisfies that rule is a country that has aculture of constitutionalism; thus he definedconstitutionalism.

Various scholars, including Ray175, Onyango176, Walubiri177 andJohari178, have labored to state the essentials ofconstitutionalism. These can be crystallized into five coreprinciples which lead to an a system of political rules thatbind political rulers and citizens179; a culture of meetingpeoples choices180; a political order governed by rules andregulations181; and a political order that determines validityof executive and legislative promulgations 182. The fiveprinciples are principles of sovereignty; devolution; rule oflaw; separation of powers; and checks and balances which oughtto be practiced to render republicanism credential.

174 Id 175 Ray S.N. (2004) Modern Comparative Politics: Approaches, Methods and

Issues. New Delhi. India: Prentice Hall of India Private Ltd.176 Oloka-Onyango J, (2001). Constitutionalism in Africa: Creating

Opportunities, Facing Challenges. Kampala. Fountain Publishers. 177 Walubiri, Peter Mkiibi ‘Liberating Afrikan Civil Soceity: Towards a New

Conext fo Afrikan Citizen Particiaption and Progressive Constitutionalism,’in Oloka-Onyango J, (2001). Constitutionalism in Africa: Creating Opportunities, Facing Challenges. Kampala. Fountain Publishers.

178 Johari, J.C. (2000) Comparative Politics. New Delhi: Sterling Publishers Private Limited.

179 Id 180 Id 181 Id 182 Id

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parliamentary sovereignty (constitutional law)According to AV Dicey in An Introduction to the Study of the Law of the

Constitution 1885, Parliamentary Sovereignty consists of 4elements:

و Parliament may introduce any law it wishes

و Parliament can not bind future Parliaments

و Laws made by Parliament override all other forms of law

و The courts must apply the laws made by Parliament.

Parliament is only limited in its actions by political, media andpublic pressure. This contrasts with other jurisdictions wherethere exists a Bill of Rights granting the courts powers toadvance the rights of the citizens above that of Parliament.However when we joined the regional unions, Parliament handsover sovereignty to the Union, to the extent thatcommunity/union law now takes precedence over Acts ofParliament.

The principle of sovereignty reposes the final authority ingovernment on the people as the only authority on whichgovernment has a right to exist in any country.183 It is thebedrock of republicanism and the cornerstone of participatorypolitics, ‘government of the people, by the people and for thepeople’. The people take part in governance through (in)direct exercise of sovereignty, by electing public officialsin a representative government. It is enshrined inconstitutions, which states, ‘All power belongs to the people who shallexercise their sovereignty in accordance with this Constitution.’184

183 Ross, David (1925). Aristotle The Nicomachean Ethics: Translated with an Introduction. Oxford: Oxford University Press. ISBN 0-19-283407-X.. Re-issued 1980, revised by J. L. Ackrill and J. O. Urmson.

184 See for instance, Article 1(2) of 1995 Uganda Constitution (As Amended)

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http://en.wikipedia.org/wiki/Special:BookSources/0-19-283407-X



Further, constitutions and constitutional documents also providesfor realization of sovereignty through ‘regular, free and fair electionsof their representatives or through referenda.’

Sovereignty is the quality of having independent authority over ageographic area, such as a territory185. The modern concept ofsovereignty186 is the supreme, perpetual, and indivisiblepower, marked by the ability to make law without the consentof any other. An important factor of sovereignty is its degreeof absoluteness. A sovereign power has absolute sovereigntywhen it is not restricted by a constitution, by the laws ofits predecessors, or by custom, and no areas of law or policyare reserved as being outside its control.

divine right of kings, or divine-right theory of kingship The divine right of kings, or divine-right theory of kingship, is

a political and religious doctrine of royal and politicallegitimacy. It asserts that a monarch is subject to no earthlyauthority, deriving the right to rule directly from the willof God. The king is thus not subject to the will of hispeople, the aristocracy, or any other estate of the realm,including (in the view of some, especially in Protestantcountries) the Church. According to this doctrine, only Godcan judge an unjust king. The doctrine implies that anyattempt to depose the king or to restrict his powers runscontrary to the will of God and may constitute a sacrilegiousact. It is often expressed in the phrase "by the Grace ofGod," attached to the titles of a reigning monarch.

absolute sovereigntyInternational law; policies and actions of neighboring states;

cooperation and respect of the populace; means of enforcement;

185 Bateman, C.G. (15 February 2011). Nicaea and Sovereignty: Constantine's Council of Nicaea asan Important Crossroad in the Development of European State Sovereignty. University ofBritish Columbia. pp. 54–91.

186 Bodin, Jean. On Sovereignty: Four Chapters from The Six Books of the Commonwealth.Edited and translated by Julian H. Franklin. Cambridge, U.K., and New York,1992.

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and resources to enact policy are factors that might limitsovereignty. For example, parents are not guaranteed the rightto decide some matters in the upbringing of their childrenindependent of societal regulation, and municipalities do nothave unlimited jurisdiction in local matters, thus neitherparents nor municipalities have absolute sovereignty.Theorists have diverged over the desirability of increasedabsoluteness. A key element of sovereignty in a legalisticsense is that of exclusivity of jurisdiction. Specifically,the degree to which decisions made by a sovereign entity mightbe contradicted by another authority187. Along these lines, theGerman sociologist Max Weber proposed that sovereignty is acommunity's monopoly on the legitimate use of force; and thusany group claiming the same right must either be brought underthe yoke of the sovereign, proven illegitimate, or otherwisecontested and defeated for sovereignty to be genuine188.International law, competing branches of government, andauthorities reserved for subordinate entities (such asfederated states or republics) represent legal infringementson exclusivity. Social institutions such as religious bodies,corporations, and competing political parties might representde facto infringements on exclusivity.

de jure sovereignty, or legal sovereignty De jure, or legal, sovereignty concerns the expressed and

institutionally recognised right to exercise control over aterritory.

de facto sovereignty, or actual sovereignty De facto, or actual, sovereignty is concerned with whether control in

fact exists. Cooperation and respect of the populace; controlof resources in, or moved into, an area; means of enforcementand security; and ability to carry out various functions ofstate all represent measures of de facto sovereignty. When

187 Mälksoo, Lauri (2003). Illegal Annexation and State Continuity: The Case of theIncorporation of the Baltic States by the USSR. M. Nijhoff Publishers. p. 193.

188 ewton, Kenneth. Foundations of comparative politics: democracies of the modern world.Cambridge: Cambridge University Press, 2005.

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control is practiced predominately by military or police forceit is considered coercive sovereignty189.

rule of lawThe Rule of law is considered to be fundamental to all democratic

legal systems and dates back to Aristotle, althoughpopularized by AV Dicey190. It encompasses basic freedomsincluding no punishment without infringement of the law,freedom from arbitrary power and arbitrary laws. The laws mustbe certain, legible and accessible to comply with the rule oflaw. It also militates against retrospective laws. The Rule ofLaw requires equality before the law i.e. all citizens aresubject to the same law no matter what their rank or stationin life.

The rule of law principle recognizes that the government hasextensive powers and hence the need for agencies and officialsto operate within the dictates of law.191

These principles are threesome, namely,

و rule by regular law which prohibits discretionary actions in theadministration of justice (this is enshrined in article 2(1)which states that the constitution is the supreme law andother laws must be derived from it);

و equality before the law, which brings both governed andgovernors under the law, usually enshrined thus: ‘All persons areequal before and under the law in all spheres of political, economic, social andcultural life and in every other respect and shall enjoy equal protection of the law’);and

189 Talmon, Stefan (1998). Recognition of Governments in International Law. Oxford Monographs inInternational Law Series. Oxford University Press. p. 50.

190 Read Albert Venn Dicey (1915) Introduction to the Study of the Law of the Constitution (8th Edition with new Introduction). P. 138

191 See also Cosgrove, Richard A. (1980). The Rule of Law: Albert Venn Dicey, Victorian jurist. London: Macmillan. pp. xv, 319p.

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و Guarantee and protection of individual rights both asentitlements and freedoms (this is covered in chapter IV ofthe constitution which provides for, ‘Protection and promotion offundamental and other human rights and freedoms’). This third pillaralso requires the empowerment of the citizen to enforce hisrights in the courts of law or like-institutions. The courtsare ably established by the judiciary. However, despite thepronunciation of the rule of law in the constitution, thesituation is dire on the ground.

devolutionThe principle of devolution recognizes citizens as the founders

of the nation and their right to manage own local affairsthrough participation in public affairs.192 Devolution hencerenders devolved units independent in control over finances,administration (of justice) and legislation while guaranteeingequitable sharing of national resources. Devolution shouldseek to promote the interests and rights of minorities andmarginalized groups; and promotes social and economicdevelopment through proximate provision of services. Whiledecentralization involves the shifting of implementationrather than power away from the centre, devolution goesfurther and involves the downwards transfer of fullresponsibility for the provision and delivery of publicservices to the lowest level of governance capable of thesetasks.

Decentralization Decentralization (or decentralisation) is the process of

redistributing or dispersing functions, powers, people orthings away from a central location or authority. Whilecentralization, especially in the governmental sphere, is

192 Michael Keating (2001) The Government of Scotland: Public Policy Making after Devolution (Edinburgh University Press, 2005), The Independence of Scotland (Oxford University Press, 2001)

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widely studied and practiced, there is no common definition orunderstanding of decentralization.

Political decentralizationPolitical decentralization aims to give citizens or their elected

representatives more power. It may be associated withpluralistic politics and representative government, but italso means giving citizens, or their representatives, moreinfluence in the formulation and implementation of laws andpolicies. Depending on the country, this may requireconstitutional or statutory reforms, the development of newpolitical parties, increased power for legislatures, thecreation of local political units, and encouragement ofadvocacy groups.

Administrative decentralizationFour major forms of administrative decentralization have been

described.Deconcentration Deconcentration, the weakest form of decentralization, shifts

responsibility for decision-making, finance and implementationof certain public functions from officials of centralgovernments to those in existing districts or, if necessary,new ones under direct control of the central government.

Delegation Delegation passes down responsibility for decision-making,

finance and implementation of certain public functions tosemi-autonomous organizations not wholly controlled by thecentral government, but ultimately accountable to it. Itinvolves the creation of public-private enterprises orcorporations, or of "authorities", special projects or servicedistricts. All of them will have a great deal of decision-making discretion and they may be exempt from civil servicerequirements and may be permitted to charge users forservices.

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Devolution Devolution transfers all responsibility for decision-making,

finance and implementation of certain public functions to thesub-national level, such as a regional, local, or stategovernment.

Devolution is the statutory granting of powers from the centralgovernment of a sovereign state to government at a subnationallevel, such as a regional, local, or state level. It is a formof decentralization. Devolved territories have the power tomake legislation relevant to the area.

Devolution differs from federalism in that the devolved powers ofthe subnational authority may be temporary and ultimatelyreside in central government, thus the state remains, de jureunitary. Legislation creating devolved parliaments orassemblies can be repealed or amended by central government inthe same way as any statute.

Federal systems, or federations, differ in that state orprovincial government is guaranteed in the constitution.Australia, Canada, India, and the United States have federalsystems, and have constitutions (as do some of theirconstituent states or provinces). They also have territories,with less power and authority than a state or province. Non-English-speaking federations include Mexico, Germany, andSwitzerland.

Divestment, privatizationDivestment, also called privatization, may mean merely

contracting out services to private companies. Or it may meanrelinquishing totally all responsibility for decision-making,finance and implementation of certain public functions.Facilities will be sold off, workers transferred or fired andprivate companies or non-for-profit organizations allowed toprovide the services. Many of these functions originally weredone by private individuals, companies, or associations andlater taken over by the government, either directly, or by

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regulating out of business entities which competed with newlycreated government programs.

Federalism Federalism is a political concept in which a group of members is

bound together by covenant (Latin: foedus, covenant) with agoverning representative head. The term "federalism" is alsoused to describe a system of government in which sovereigntyis constitutionally divided between a central governingauthority and constituent political units (such as states orprovinces). Federalism is a system based upon democratic rulesand institutions in which the power to govern is sharedbetween national and provincial/state governments, creatingwhat is often called a federation. The term federalistdescribes several political beliefs around the world. Also, itmay refer to the concept of parties; its members or supporterscalled themselves Federalists.

Home rule Home rule is the power of a constituent part (administrative

division) of a state to exercise such of the state's powers ofgovernance within its own administrative area that have beendecentralized to it by the central government.

In the United Kingdom, it traditionally referred to self-government, devolution or independence of its constituentnations—initially Ireland, and later Scotland, Wales, andNorthern Ireland. In the United States and other countriesorganised as federations of states, the term usually refers tothe process and mechanisms of self-government as exercised bymunicipalities, counties, or other units of local governmentat the level below that of a federal state (e.g., US state, inwhich context see special legislation). It can also refer tothe similar system under which Greenland and the Faroe Islandsare associated with Denmark.

Home rule is not, however, comparable with federalism. Whereasstates in a federal system of government (e.g., Canada,

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Federal Republic of Germany, Switzerland, Brazil, Ethiopia andthe United States of America) have a guaranteed constitutionalexistence, a devolved home rule system of government iscreated by ordinary legislation and can be reformed, or evenabolished, by repeal or amendment of that ordinarylegislation.

A state legislature may, for example, create home rule for acounty or parish (or its townships), so that a countycommission or board of supervisors may have jurisdiction overits unincorporated areas, including important issues likezoning. (Without this, a US county is simply an extension ofstate government.) The legislature can also establish oreliminate municipal corporations, which have home rule withintown or city limits through the city council. The stategovernment could also abolish counties/townships, or theirgovernments, according to the state constitution and statelaws.

Subsidiarity Subsidiarity holds that social problems should be dealt with at

the most immediate (or local) level consistent with theirsolution. The Oxford English Dictionary defines subsidiarityas the idea that a central authority should have a subsidiary(that is, a supporting, rather than a subordinate) function,performing only those tasks which cannot be performedeffectively at a more immediate or local level. The concept isapplicable in the fields of government, political science,neuropsychology, cybernetics, management and in militarycommand (Mission Command). In political theory, the principleof subsidiarity is sometimes viewed as an aspect of theconcept of federalism, although the two have no necessaryconnection. The principle of subsidiarity plays an importantrole in the political rhetoric of the European Unionconcerning the relationship between the EU governing bodiesand the member states.

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presumption of constitutionalityPresumption of constitutionality shifts the burden of proof from

the government to the citizen, requiring them to prove that astatute is unconstitutional.

In Federalist 78, Alexander Hamilton wrote that courts should onlybe able strike down a statute as unconstitutional if there isan ‘irreconcilable variance’ between the statute and theConstitution. 193 Likewise, at the 1787 PhiladelphiaConvention, Virginia delegate George Mason said, judges ‘coulddeclare an unconstitutional law void. But with regard to every law, however unjust,oppressive or pernicious, which did not come plainly under this description, theywould be under the necessity as Judges to give it a free course.’ 194

Professor Randy Barnett argues that such a presumption is itselfunconstitutional, and suggests that government should beforced to prove that laws violating liberty are necessary andproper, in what he calls the ‘presumption of liberty’.195

separation of powersSee Westminster doctrine westminster doctrine French Constitutional theorist, Montesquieu introduced the

concept of the separation of powers in Spirit of the Laws196.According to Montesquieu, an ideal state should be divided into three separate arms; the legislature (parliament), theexecutive (Government and Local Authorities) and the

193 Hamilton, Alexander. Federalist #78 (1788-06-14). Otherwise, a statute should be upheld.

194 ‘Founders’ Constitution, Article 1, Section 7, Clauses 2 and 3’, Records ofthe Federal Convention (1787-06-04).

195 ‘Barnett, Randy. Restoring the Lost Constitution: The Presumption of Liberty (Princeton University Press 2004)

196 de Secondat, Charles, Baron de Montesquieu. Montesquieu: Spirit of the Laws. Eds. Anne M. Cohler, Basia Carolyn Miller, and Harold Samuel Stone. Cambridge Texts in the History of Political Thought. Cambridge:Cambridge UP, 1989. ISBN 0521369746 (10). ISBN 978-0521369749 (13). (Paperback ed.; 808 pp.)

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judiciary. Each of the arms should have their own separatefunction: Legislature - make law, executive - administer thelaw, Judiciary - apply the law. Each arm is to remain separateand not impinge on the others function. They should bebalanced and able to check and limit the power of the otherarms. Accordingly, if one arm of the state became all toopowerful this would be indicative of an oppressive state andto the detriment of citizens. The government carries out threemajor tasks, being legislation; design and implementation ofpolices; and resolution of disputes.197 The principle ofseparation of powers provides for the division of the nationalgovernment into three branches to avoid abuse of powers198: thelegislative, the executive, and the judicial to make the law;implement the law and solve disputes arising respectively.

Of import is the role of this principle in preventing theexecutive from exercising para-constitutional, extra-judicial,and quasi-legislative roles; in the name of efficientadministration and execution of functions.

The doctrine of the separation of powers divides the institutionsof government into three branches: legislative, executive andjudicial: the legislature makes the laws; the executive putthe laws into operation; and the judiciary interprets thelaws. The powers and functions of each are separate andcarried out by separate personnel. No single agency is able toexercise complete authority, each being interdependent on theother. Power thus divided should prevent absolutism (as inmonarchies or dictatorships where all branches areconcentrated in a single authority) or corruption arising fromthe opportunities that unchecked power offers. The doctrinecan be extended to enable the three branches to act as checksand balances on each other. Each branch’s independence helps

197 Okoth-Ogendo, H. W. O. 1991, Constitutions without Constitutionalism (1991)198 Baron De Montesquieu (1731) The Spirit of Laws. (Baton Rouge: Louisiana State

University Press, 1941; reprint, New York: Octagon Books, 1961).

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keep the others from exceeding their power, thus ensuring therule of law and protecting individual rights.

Obviously under the Westminster System – the parliamentary systemof government Australia adopted and adapted from England –this separation does not fully exist. Certainly in Australiathe three branches exist: legislature in the form ofparliaments; executive in the form of the ministers and thegovernment departments and agencies they are responsible for;and the judiciary or the judges and courts. However, since theministry (executive) is drawn from and responsible to theparliament (legislature) there is a great deal ofinterconnection in both personnel and actions. The separationof the judiciary is more distinct.

In his Second Treatise of Civil Government, English philosopher JohnLocke199noted the temptations to corruption that exist where ‘...the same persons who have the powers of making laws to have also in their handsthe power to execute them ...‘.200 Locke’s views were part of a growingEnglish radical tradition, but it was French philosopher,Baron de Montesquieu, who articulated the fundamentals of theseparation doctrine as a result of visiting England in 1729-31. In his The Spirit of Laws201, Montesquieu considered thatEnglish liberty was preserved by its institutionalarrangements. He saw not only separations of power between thethree main branches of English government, but within them,such as the decision-sharing power of judges with juries; orthe separation of the monarch and parliament within thelegislative process.

state of emergency A state of emergency is a governmental declaration which usually

suspends a few normal functions of the executive, legislativeand judicial powers, alert citizens to change their normal

199 Infra.200 Locke, John. Two Treatises of Government. Ed. Peter Laslett. Cambridge:

Cambridge University Press (1988), 137201 Infra.

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behaviors, or order government agencies to implement emergencypreparedness plans. It can also be used as a rationale forsuspending rights and freedoms, even if guaranteed under theconstitution. Such declarations usually come during a time ofnatural or man made disaster, during periods of civil unrest,or following a declaration of war or situation ofinternational or internal armed conflict. In some countries,the state of emergency and its effects on human rights andfreedoms and governmental procedure are regulated by theconstitution and/or a law that limits the powers that may beinvoked. Rights and freedoms may be suspended during anemergency, for instance, freedom of movement, but not non-derogable rights. In many countries it is illegal to modifythe emergency law or the constitution during the emergency.Though fairly uncommon in democracies, dictatorial regimesoften declare a state of emergency that is prolongedindefinitely for the life of the regime, or for extendedperiods of time so that derogations can be used to overridehuman rights of their citizens usually protected by theInternational Covenant on Civil and political rights.202 Insome situations, martial law is also declared, allowing themilitary greater authority to act. In other situations,emergency is not declared and de facto measures taken ordecree-law adopted by the government. Article 4 to theInternational Covenant on Civil and Political Rights (ICCPR),permits states to derogate from certain rights guaranteed bythe ICCPR in "time of public emergency".

separation of state and church doctrine The doctrine of separation of Church and State provides that as

between the State and religion each had its own sphere, theformer of law making for the public good, and the latter moralwelfare of individuals and their God or creator.203 The

202 See (Judson, 2012, "Where is R2P grounded in international law".)http://otago.ourarchive.ac.nz/handle/10523/2279.

203 Lambert, Frank (2003). The founding fathers and the place of religion in America. Princeton University Press. p. 288. ISBN 978-0-691-08829-7.

pg. 192

http://otago.ourarchive.ac.nz/handle/10523/2279


phrase ‘separation of church and state’ is derived from aletter written by President Thomas Jefferson in 1802 toBaptists from Danbury, Connecticut, and published in aMassachusetts newspaper soon thereafter. In that letter,referencing the First Amendment to the United StatesConstitution, Jefferson wrote:

Believing with you that religion is a matter which lies solely between Man & his God,that he owes account to none other for his faith or his worship, that the legitimatepowers of government reach actions only, & not opinions, I contemplate withsovereign reverence that act of the whole American people which declared that theirlegislature should ‘make no law respecting an establishment of religion, orprohibiting the free exercise thereof’, thus building a wall of separation betweenChurch and State.204

a secular stateThe concept of the separation of church and state refers to the

distance in the relationship between organized religion andthe nation state. The concept of separation has been adoptedin a number of countries, to varying degrees depending on theapplicable legal structures and prevalent views toward theproper role of religion in society. The degree of separationvaries from total separation mandated by a constitution, to anofficial religion with total prohibition of the practice ofany other religion.

checks and balancesThe principle of checks and balances seeks to give each arm of

the government and the citizens the power to hold the variousarms of government accountable.205 The courts ensure that allactions by executive and parliament are constitutional. Theparliament holds the Prime Minister and Head of stateaccountable through, inter alia, threat of vote of noconfidence or impeachment, accountability committees and

204 Jefferson, Thomas (1802-01-01). ‘Jefferson's Letter to the Danbury Baptists’. U.S. Library of Congress. Retrieved 2006-11-31.

205 Baron De Montesquieu (1731) The Spirit of Laws. (Baton Rouge: Louisiana State University Press, 1941; reprint, New York: Octagon Books, 1961).

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ratification of treatises and appointments by the executive.The national assembly is also checked by the senate to nibdictatorship by the majority.206 The executive also checksparliament through veto powers. Parliament also has powers tovet Presidential appointments and even has powers to impeach aPresident.

supremacy of the constitutionThe doctrine of constitutionalism is crystallized in five core

principles of sovereignty; devolution; rule of law; separationof powers; and checks and balances which ought to be practicedto render republicanism credential.

federalism Federalism is a political concept in which a group of members are

bound together by covenant (Latin: foedus, covenant) with agoverning representative head. The term ‘federalism’ is alsoused to describe a system of the government in whichsovereignty is constitutionally divided between a centralgoverning authority and constituent political units (likestates or provinces). Federalism is a system based upondemocratic rules and institutions in which the power to governis shared between national and provincial/state governments,creating what is often called a federation. Proponents areoften called federalists.

In almost all federations the central government enjoys thepowers of foreign policy and national defense. Were this notthe case a federation would not be a single sovereign state,per the UN definition. Beyond this the precise division ofpower varies from one nation to another. The constitutions ofGermany and the United States provide that all powers notspecifically granted to the federal government are retained bythe states. The Constitution of some countries like Canada andIndia, on the other hand, state that powers not explicitly

206 Thoreau, H. D. Civil Disobedience (Resistance to Civil Government)

pg. 194


granted to the provincial governments are retained by thefederal government.

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Human Rights

RIGHTS OF FOREIGNERS

expatriationAn expatriate (in abbreviated form, expat) is a person

temporarily or permanently residing in a country and cultureother than that of the person's upbringing. The word comesfrom the Latin terms ex (‘out of’) and patria (‘country,fatherland’).

In its broadest sense, an expatriate is any person living in adifferent country from where he or she is a citizen. In commonusage, the term is often used in the context of professionalssent abroad by their companies, as opposed to locally hiredstaff. The differentiation found in common usage usually comesdown to socio-economic factors, so skilled professionalsworking in another country are described as expatriates,whereas a manual labourer who has moved to another country toearn more money might be labelled an 'immigrant'. There is noset definition and usage does vary depending on context andindividual preferences and prejudices. 'Expatriation' has alsobeen used in a legal sense to mean 'renunciation ofallegiance;' the Expatriation Act of 1868 said in itspreamble, 'the right of expatriation is a natural and inherentright of all people, indispensable to the enjoyment of therights of life, liberty and the pursuit of happiness.'207

immigrationImmigration (derived from Latin: migratio) is the act of

foreigners passing or coming into a country for the purpose ofpermanent residence. Immigration is made for many reasons,including economic, political, family re-unification, natural

207 Siegfried Grundmann, The Einstein Dossiers: Science and Politics—Einstein's Berlin Period Springer Verlag. Berlin, Heidelberg, New York (2004), p. 294. Translated by Ann M. Hentschel. ISBN 3-540-25661-X. Retrieved December 4, 2011

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disaster, poverty or the wish to change one's surroundingsvoluntarily.

One theory of immigration distinguishes between Push and Pull.Push factors refer primarily the motive for emigration fromthe country of origin. In the case of economic migration(usually labor migration), differentials in wage rates areusual. If the value of wages in the new country surpasses thevalue of wages in one’s native country, he or she may chooseto migrate as long as the costs are not too high. The cost ofemigration, which includes both the explicit costs, the ticketprice, and the implicit cost, lost work time and loss ofcommunity ties, also play a major role in the pull ofemigrants away from their native country.

right to fly national flag on shipsForeign firms and foreigners are not allowed to own, or to be

part owners, of ships navigating under the Soviet flag, or ofjoint-stock companies possessing such ships. Exception is madewith regard to mixed companies if such rights have beenconceded in their statutes or by special decrees.

right to own, and operate a businessForeign firms desiring to carry on trade operations or to open

offices, agencies, etc must make application, with payment ofthe established stamp duty, to the Commissariat for Trade andCommerce, giving all particulars of the proposed enterprise,including management, ownership and proof of legal existencein the country of domicile, of the applicant firm.

Right to use landForeigners have the right to the use of land for agricultural

purposes on the same basis as citizens.Domiciled foreigners Domiciled foreigners are defined as those who for a period of not

less than 18 months have lawfully resided in the Union andhave been engaged in any lawful industry or business.

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right to healthcare Foreign citizens present within the national territory, although

not complying with the entry and residence provisions inforce, shall be guaranteed - within both public and accreditedhealthcare facilities - urgent or essential outpatient andhospital care, although continued, in case of diseases andinjuries; furthermore, preventive care programs safeguardingindividual and collective health shall also be provided.

urgent care Urgent care means the treatments that cannot be delayed without

endangering the lives or causing damage to the health ofindividuals;

essential care Essential care means the healthcare, diagnostic and therapeutic

services relating to pathologies that are not dangerousimmediately and in the short term, but that over the timemight determine a higher risk for human health or lives(complications, chronic conditions or worsening).

principle of the continuity of urgent and essential care The principle of the continuity of urgent and essential care was

reaffirmed, in the sense of providing patients with a completetherapeutic and rehabilitative cycle relating to the possibleelimination of the disease.

right to due processAll foreigners have the right to the legal procedures under the

law inc ases where their rights are to be determined in acivil, criminal, or administrative trial.

Suffrage, right to vote Suffrage, the right to vote in a particular country, generally

derives from citizenship. In most countries, the right to voteis reserved to those who possess the citizenship of thecountry in question. Some countries, however, have extended

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suffrage rights to non-citizens. Suffrage rights extended tonon-citizens are often restricted or limited in some ways,with the details of the restrictions or limitations varyingfrom one country to another.

immigration rightsThis is the entitlement of a foreigner to move intoa country, and

if they are here long enough, be allowed to stay on ascitizen, and enjoy services like health care, voting, andsocial security.

equal access to rights within countriesA fundamental principle of human rights is that all human beings

are equal and equally entitled to human rights. No one may bediscriminated against in their enjoyment of human rights, andso everyone has a duty of non-discrimination. Foreigners aregenerally discriminated against within a country by beingdenied rights such as access to work and to education andsocial services and to a say in the government of thecommunities of which they are a part.

economic rightsEconomic rights include rights such as the right to work, to

food, to an adequate standard of living including health care.Associated with this deprivation is a violation of other humanrights such as the right to life and the right to education.Citizenship is the primary determining factor in whether onehas access to such rights.

Rights of the ChildChildren have always been recognised as especially entitled to

protection, a principle embodied in the United NationsConvention on the Rights of the Child. Childrendisproportionally suffer denial of human rights, including theright to life.

Discrimination Against Women.

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Women are also disproportionately represented amongst the poorand people denied their human rights. The citizenship of awoman is an important determining factor as to whether she maylive in poverty.

freedom of movementIndividuals are discriminated against in being denied a right to

cross international boundaries on the basis of theircitizenship, and particularly on the basis of being a non-citizen of the country seeking to deny access.

Freedom of MovementForeigners are subject to detention and expulsion for attempting

to exercise their freedom of movement contrary to lawsprohibiting the crossing of national boundaries. Often suchindividuals are asylum seekers or refugees even under limitedinternational recognition of refugee status.

Right to LifeThousands of people have lost their lives trying to cross

international boundaries and reach countries where they canrealise their human rights. Crossing an international boundarywithout a visa (an instrument invented by the Nazi’s isconsidered illegal.

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HUMAN RIGHTS

definition of human rights Human rights are commonly understood as ‘inalienable fundamental rights

to which a person is inherently entitled simply because she or he is a humanbeing.’208 Human rights are thus conceived as universal(applicable everywhere) and egalitarian (the same foreveryone). These rights may exist as natural rights or as legalrights, in both national and international law.209

natural rights and legal rightsNatural and legal rights are two types of rights theoretically

distinct according to philosophers and political scientists.Natural rights are rights not contingent upon the laws,customs, or beliefs of any particular culture or government,and therefore universal and inalienable. In contrast, legalrights are those bestowed onto a person by a given legalsystem. Natural rights, in particular, are considered beyondthe authority of any government or international body todismiss.

Nature of human Rights, first generational rights, secondgenerational rights, third generational rights

The Bill of Rights guarantees various rights and freedoms thatdiffer in nature. There are first generational rights known ascivil and political rights, second generational rightscommonly known as social, economic and cultural rights andthird generational rights commonly referred to as grouprights. Civil and political rights have been classified byscholars as immunities since they protect againstencroachments of government. There application is easier inthat such negative restraints can be secured by fairly simplelegislation. Economic, social and cultural rights, on the

208 Sepúlveda et al. 2004, p. 3209 Blattberg, C (2010). ‘The Ironic Tragedy of Human Rights’. Patriotic

Elaborations: Essays in Practical Philosophy. McGill-Queen's University Press. pp. 43–59. ISBN 0-7735-3538-1.

pg. 201


other hand are rights in which affirmative action bygovernment is necessary. Others have termed them as mereaspirations.210 They are viewed as claims upon the governmentswhich may or may not be realized depending on such factors asavailability of resources and other conditions. Due to theirdiverse nature, these fundamental rights and freedoms havedifferent enforcement mechanisms.

A succinct plea for interdependence of civil and political rightsand economic and social rights is found in the observation ofAndre Amalrik that a man who is hungry is not free, but aslave with a full belly is still a slave. Daniel PatrickMoynihan has argued that economic and social rights are likelyto prosper more in societies which promote civil and politicalrights.

Many scholars have given arguments on the prioritization of theserights. Some argue that civil and political rights which aretermed as immunities deserve preference over contingent claimsor expectations. Communist and developing countries assert thereverse. They argue that economic or social claims have apriority among the classes of rights. They state that theachievement of economic and social rights is a pre-conditionfor other rights, that is, until the economic and socialrights are realized a state is not in a condition to providecivil and political rights. Many assign an equal andinterdependent status to civil and political rights andeconomic and social rights even if they have a different juralstatus.

Civil and Political Rights, immunitiesAlso referd to as immunities, because they protect the citixen

from government interference with person or property, theserights are enumerated in various constitutions, or statutes,and include: The right to life; the right to equality andfreedom from discrimination; right to be accorded human

210 See Government of the Republic of South Africa & Others v Grootboom & Others (CCT11/00) [2000] ZACC 19; 2001 (1) SA 46; 2000 (11) BCLR 1169 (4 October 2000).

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dignity; right not to be held in slavery, servitude and forcedlabour; the freedom and security of the person; the right toprivacy; right to the freedom of conscience, religion, beliefand opinion, right to freedom of expression; freedom of themedia; freedom of association; right to peaceful assembly,demonstration, picketing and petition right to access toinformation; freedom of movement and residence; protection ofright to property; right to fair hearing, ejusdem generis.

Economic, Social And Cultural Rights , Aspirational rights,progressive rights

Also refered to as aspirational rights, or progressive rights,these are entitlements which governments aspire to provide tothe citizen’s base don their economic abilities. They include(a) to the highest attainable standard of health, whichincludes the right to health care services, includingreproductive health care; (b) to accessible and adequatehousing, and to reasonable standards of sanitation; (c) to befree from hunger, and to have adequate food of acceptablequality; (d) to clean and safe water in adequate quantities;(e) to social security; and (f) to education.

These rights are the cornerstone of economic empowerment and thusthe development of the country. The availability of healthcare services, housing, food, water, social security andeducation is the bedrock of development in any country. TheConstitution goes ahead to state that a person shall not bedenied emergency medical treatment. It shall also provideappropriate social security to persons who are unable tosupport themselves and their dependants.

Group Rights , third generation rightsThese are rights commonly referred to as the third generational

rights. They are associated with groups. They include theright to a clean and healthy environment and consumer rights;consumer protection rights; children rights; rights of peoplewith disabilities; elderly people’s rights; rights of

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indigenious communities; and such other rights as culturalrights; etc.

jurisdiction (human rights enforcement), personal jurisdiction,territorial jurisdiction, locum, subjectum

In law, jurisdiction is the practical authority granted to aformally constituted legal body or to a political leader todeal with and make pronouncements on legal matters and, byimplication, to administer justice within a defined area ofresponsibility. It is thus the courts power to decide a caseor issue a decree.211

There are three main principles of judicial jurisdiction, namely,personal (personam), territorial (locum), and subject matter(subjectam). Personal jurisdiction is the court’s power tobring a person into its adjudicative process, jurisdictionover a defendant’s personal rights, rather than merely overproperty interests.212 Territorial jurisdiction is the onearising in or involving persons residing within a definedterritory.213 It normally includes the sense of proper venue asit pertains to matters of law and of equity. On the otherhand, subject-matter jurisdiction is the jurisdiction over thenature of the case and the type of relief sought the extent towhich a court can rule on the conduct of persons or the statusof things.214 The subject matter in the context of this paperis the enforcement of fundamental rights and freedoms. Courtsmay also have jurisdiction that is exclusive, or concurrent.Where a court has exclusive jurisdiction over a territory or asubject matter, it is the only court that is authorized toaddress that matter. Where a court has concurrent or sharedjurisdiction, more than one court can adjudicate the matter.Where a concurrent jurisdiction exists in a civil case, aparty may attempt to engage in forum shopping, by bringing the

211 Supra, note 1, p 867.212 Supra, note 1, p 870.213 Supra, note 1, p 871214 Supra, note 1, p 870.

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case to a court or venue which it presumes would rule in itsfavor.

Locus Standi (human rights enforcement)It may be defined as the existence of a right of an individual or

group of individuals to have a court enter upon anadjudication of an issue before that court by proceedingsinstigated by the individual or group.215 It is the right tobring an action or to be heard in a given forum also known asstanding.

Where any right or fundamental freedom provided for in theConstitution is denied, violated or infringed or threatened, aperson so affected or likely to be affected, may make anapplication to a Subordinate Court or to the High Court. Thisshows that every person has the right to institute courtproceedings claiming that a right or fundamental freedom inthe Bill of Rights has been denied, violated or infringed, oris threatened.216

In addition to a person acting in their own interest, courtproceedings may be instituted by: a person acting on behalf ofanother person who cannot act in their own name; a personacting as a member of, or in the interest of, a group or classof persons; a person acting in the public interest; or anassociation acting in the interest of one or more of itsmembers.217

From the above provisions, the locus standi in institutingproceedings on matters touching on the enforcement offundamental rights and freedoms is on an individual or group.The courts have an obligation to entertain any matters broughtby either the individual or group as the case may be. Theyalso have a role to entertain public interest litigation ifthe subject matter of such proceedings includes the enjoyment

215 See Stein Leslie, Locus Standi (1979) Sydney: Law Book Company. 364 Supra, note 1, p 960. 365Supra, note 360, s 4.

216 Supra, note 360, s 22(1).217 Supra, note 129, Article 22 (1) and (2).

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of the rights and fundamental freedoms of a significant numberof people.218 Consequently, the courts will be alive to theirsacrosanct role to enforce fundamental rights and freedoms.

Remediation (enforcement of human rights)Every breach of law and or a right, whether constitutional or

not, ought to be remedied. The failure by the courts toprovide an effective system of remedies has been decried allover the world. John Jeffries writes in, ‘The Right-Remedy Gapin Constitutional Law’: …ever since John Marshall insisted that for everyviolation of right, there must be remedy, American constitutionalists have decriedthe right remedy gap in constitutional law. Everyone agrees that victims ofconstitutional violation should have effective address.219 This was enunciatedby John Marshall who stated that:

The essence of civil liberty consists in the right of every individual to claim the protectionof the laws whenever he receives an injury. One of the first duties of government isto afford that protection. The government of the United States has beenemphatically termed as a government of laws, and not of men. It will certainly ceaseto deserve this appellation if the laws furnish no remedy for the violation of a vestedright.220

John Marshall also quoted Blackstone’s more familiar formulationwhich says that:

…it is a general and indisputable rule, that where there is a legal right, there is also alegal remedy, but suit or action of law, whenever that right is invaded.221

There has to be an adequate system of remediation for everyviolation of a right, as a right will be meaningless if itcannot be vindicated by way of adequate remediation.Therefore, many areas of law are buttressed by systems ofremedies for the victim who suffer violation of their rightsunder these systems.222 According to Richard Fallon and DanielMeltzer, there is need for a general structure of

218 Supra, note 360, s 28(a).219 (1999) 109 Yale Law Journal p 87220 Marbury v Madison, (1803) 5 U.S (1 Cranch) pp 137, 163221 Richard Fallon and Daniel Meltzer, ‘New Law, Retroactivity and Constitutional Remedies’

(1999) 104 Harvard Law Review, p 36.222 Ibid.

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constitutional remedies adequate to keep government within thebounds of law.223

The Constitution of Kenya, 2010 provides that in any proceedingsbrought in the enforcement of the Bill of Rights, a court maygrant appropriate relief,224 including:

(a) A declaration of rights’225 (b) An injunction;226

(c) A conservatory order;227

(d) A declaration of invalidity of any law that denies, violates, infringes, or threatens aright or fundamental freedom in the Bill of Rights and is not justified under Article24;228

(e) An order for compensation;229 and (f) An order of judicial review.230

Compensation (human rights remedies)A person whose rights or fundamental freedoms have been infringed

may seek compensation. This is done through provision ofdamages by the court. Damages can be defined as the moneyclaimed by or ordered to be paid to a person as compensationfor loss or injury.231 It goes without saying that the award ofdamages is discretionary upon the courts. The courts areobligated to exercise this discretion accordingly. They may begeneral damages, special damages among others. However, thisaward is dependent on the nature and the case itself. Damagesawarded in a matter of this nature should reflect theseriousness of violation of a citizen’s Constitutional right.Fundamental rights and freedoms which are expressly laid outin the Constitution must never be given casual observance orbreached with impunity by the government or its servants. If

223 Ibid.224 Supra, note 129, Article 23 (3).225 Ibid.226 Ibid.227 Ibid.228 Ibid.229 Ibid.230 Ibid.231 Supra, note 1, p 416.

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we show disrespect to the supreme law of the land and fail topunish or penalize those who violate important provision ofthe Constitution we will be encouraging such violation.232 Theaward of damages should thus always reflect the seriousness ofviolation of the constitutional rights and freedoms. Courtshave a role to assess this seriousness on infringement andaward damages accordingly. The High Court in its recentdecisions has risen to the occasion by awarding damages uponinfringement of fundamental rights and freedoms. The court inIsaac Gathungu Wanjohi and another v The Attorney General and six others233

awarded general damages to the petitioners amounting to a sumof Kshs. 2,000,000 for breach of Article 47 of theConstitution.234

Injunctions (human rights remedies)An injunction is an equitable remedy in the form of a court order

that requires a party to do, or to refrain from doing, certainacts. It is thus a court order commanding or preventing anaction. A party that fails to comply with an injunction facescriminal or civil penalties and may have to pay damages oraccept sanctions. In some cases, breaches of injunctions areconsidered serious criminal offences that merit arrest andpossible prison sentence.

Injunctions are issued only when the remedy at law is inadequate.They are issued to stop the defendant from continuing hisallegedly harmful actions. Permanent injunctions are issued asa final judgment in a case. Interim injunctions are issuedduring the proceedings of the case. Failure to comply with aninjunction may result in being held in contempt of court aswas held in Roe v Wade.235 An injunction is available only in caseof in-personam, a Latin phrase meaning, ‘directed towards aparticular person’, that is, it is personal jurisdiction.

232 Ibid.233 See Petition number 154 of 2011, 30 March 2012 (unreported).234 Ibid; See also Petition number 256 of 2011, 30 March 2012 (unreported) Joseph Sitonik v The

Attorney General and another Petition number 29 of 2011, 3 February 2012 (unreported) and Elly OnyangoGumba v R Petition number 167 of 2011, 3 February 2012 (unreported).

235 See Roe v Wade, 410, U.S. 113 (1973).

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Any Kenyan can institute proceedings in the courts seeking aninjunction as a remedy for a party to do or to refrain fromdoing certain acts that are to the effect of infringing on hisfundamental rights and freedoms guaranteed in theConstitution. The courts have a role to give the injunctionsin appropriate cases, thus safeguarding the enforcement of thefundamental rights and freedoms.

Judicial Review (human rights remediation)The term judicial review refers to a court’s power to review the

actions of other branches or levels of government, especiallythe courts’ power to invalidate legislative and executiveactions as being unconstitutional.236 It may also be defined asthe means by which High Court judges scrutinize public lawfunctions intervening as a matter of discretion to quash,prevent, require, and/or clarify not because they disagreewith the judgement, but so as to right a recognizable publiclaw wrong.237 The most common form of judicial review is thereview of a lower court’s decision by a higher court. Courtsusually review these decisions in the appeal process, when alosing party in a case claims an error was made and appeals tothe higher court to examine the decision.

Judicial review has got several functions which include: allowingjustice to be served by striking down erroneous decisions bythe lower court; appellate courts monitor the performance oflower courts; incentive to apply the law correctly if thepossibility exists that the decision may be overturned; andimportant controversies regarding the law are examined andresolved for the future guidance of courts and individuals.238

This is the primary concern of the highest court, which inmost cases agrees to hear appeals only at their discretions.Upon abridgement of fundamental rights and freedoms, a partycan bring a case before court through judicial review fordetermination. The courts have the obligation to entertain

236 Supra, note 1, p 864.237 See PLO Lumumba, Judicial Review in Kenya (2nd ed, 2006) LawAfrica, p 3.238 Ibid

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these actions in the process of trying to remedy thesituation. They ought to be forceful in situations of breachof fundamental rights and freedoms. In doing this, they willbe promoting and protecting the constitutional guaranteesbestowed upon people.

Conservatory Order (human rights remedies)A conservatory order is granted to human rights’ victims with

main purpose of preserving their status quo.239 It furtherprotects human rights’ victims from future violations of theirrights, hence acting as a conservatory measure towards them.It is upon the applicant to prove and thus be granted aconservatory order to rebut the threat to infringe his rightsand fundamental freedoms.

Declaration of invalidity of any law (human rights remedies)The High Court is empowered to declare any law that denies,

violate, infringes, or threatens a right or fundamentalfreedom in the Bill of Rights invalid.240 This couples with thesupremacy clause which states that any law, includingcustomary law that is inconsistent with the Constitution isvoid to the extent of the inconsistency, and any act oromission in contravention of the Constitution is invalid.241

Citizens ought to be at liberty in bringing actions beforecourts to invalidate laws that are deemed to infringe orthreaten rights or fundamental freedoms. It is an obligationof the court to ensure they invalidate these laws for theenjoyment of fundamental rights and freedoms.

Declaration of Rights (human rights remedies)Every Kenyan has the locus standi to engage the courts to make a

declaration of his rights.242 This may be to enable him to seekthe enforcement of these rights and fundamental freedoms by

239 Supra, note 129, Article 23 (3)240 Supra, note 129, Article 165.241 Supra, note 129, Article 2.242 Supra, note 129, Article 22.

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the courts.243 This is common as the majority are legallyilliterate and most of them do not know their rights. This isexacerbated by the lack of the will by the government toconduct civic education. This imposes a great role upon thecourts to make declarations of rights. The courts are thusobligated to ensure the rights and freedoms are protected bydeclaring them whenever an action seeking declaration ofrights is brought before the courts.

principles of human rights Human rights are universal and inalienable; indivisible;

interdependent and interrelated. They are universal becauseeveryone is born with and possesses the same rights,regardless of where they live, their gender or race, or theirreligious, cultural or ethnic background. Inalienable becausepeople’s rights can never be taken away. Indivisible andinterdependent because all rights – political, civil, social,cultural and economic – are equal in importance and none canbe fully enjoyed without the others. They apply to allequally, and all have the right to participate in decisionsthat affect their lives. They are upheld by the rule of lawand strengthened through legitimate claims for duty-bearers tobe accountable to international standards.

principles of human rights (Universality)Human rights must be afforded to everyone, without exception. The

entire premise of the framework is that people are entitled tothese rights simply by virtue of being human.

principles of human rights (Indivisibility)Human rights are indivisible and interdependent, which means that

in order to guarantee civil and political rights, a governmentmust also ensure economic, social and cultural rights (andvisa versa). The indivisibility principle recognizes that if agovernment violates rights such as health, it necessarily

243 Ibid.

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affects people’s ability to exercise other rights such as theright to life.

principles of human rights (Participation)People have a right to participate in how decisions are made

regarding protection of their rights. This includes but is notlimited to having input on government decisions about rights.To ensure human rights, governments must engage and supportthe participation of civil society on these issues.

principles of human rights (Transparency)Transparency means that governments must be open about all

information and decision-making processes related to rights.People must be able to know and understand how major decisionsaffecting rights are made and how public institutions, such ashospitals and schools, which are needed to protect rights, aremanaged and run.

principles of human rights (Non-Discrimination)Human rights must be guaranteed without discrimination of any

kind. This includes not only purposeful discrimination, butalso protection from policies and practices which may have adiscriminatory effect. Non-discrimination is a cross-cuttingprinciple in international human rights law. The principle ispresent in all the major human rights treaties and providesthe central theme of some of international human rightsconventions such as the International Convention on theElimination of All Forms of Racial Discrimination and theConvention on the Elimination of All Forms of Discriminationagainst Women. The principle applies to everyone in relationto all human rights and freedoms and it prohibitsdiscrimination on the basis of a list of non-exhaustivecategories such as sex, race, colour and so on. The principleof non-discrimination is complemented by the principle ofequality, as stated in Article 1 of the Universal Declarationof Human Rights: “All human beings are born free and equal indignity and rights.”

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principles of human rights (Rule of Law)Universal human rights are often expressed and guaranteed by law,

in the forms of treaties, customary international law ,general principles and other sources of international law.International human rights law lays down obligations ofGovernments to act in certain ways or to refrain from certainacts, in order to promote and protect human rights andfundamental freedoms of individuals or groups.

principles of human rights (Both Rights and Obligations) Human rights entail both rights and obligations. States assume

obligations and duties under international law to respect, toprotect and to fulfil human rights. The obligation to respectmeans that States must refrain from interfering with orcurtailing the enjoyment of human rights. The obligation toprotect requires States to protect individuals and groupsagainst human rights abuses. The obligation to fulfil meansthat States must take positive action to facilitate theenjoyment of basic human rights. At the individual level,while we are entitled our human rights, we should also respectthe human rights of others.

principles of human rights (Accountability): States and other duty-bearers are answerable for the observance

of human rights. In this regard, they have to comply with thelegal norms and standards enshrined in international humanrights instruments. Where they fail to do so, aggrievedrights-holders are entitled to institute proceedings forappropriate redress before a competent court or otheradjudicator in accordance with the rules and proceduresprovided by law. Individuals, the media, civil society and theinternational community play important roles in holdinggovernments accountable for their obligation to uphold humanrights. Governments must create mechanisms of accountabilityfor the enforcement of rights. It is not enough that rightsare recognized in domestic law or in policy rhetoric, there

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must actually be effective measures put in place so that thegovernment can be held accountable if those rights standardsare not met.

International protection and promotion of human rights,International human rights law

In the aftermath of the atrocities of World War II, there wasincreased concern for the social and legal protection of humanrights as fundamental freedoms. The foundation of the UnitedNations and the provisions of the United Nations Charterprovided a basis for a comprehensive system of internationallaw and practise for the protection of human rights. Sincethen, international human rights law has been characterized bya linked system of conventions, treaties, organisations, andpolitical bodies, rather than any single entity or set oflaws.

United Nations CharterThe provisions of the United Nations Charter provided a basis for

the development of international human rights protection. Thepreamble of the charter provides that the members "reaffirmfaith in fundamental human rights, in the equal rights of menand women" and Article 1(3) of the United Nations charterstates that one of the purposes of the UN is: "to achieveinternational cooperation in solving international problems ofan economic, social, cultural, or humanitarian character, andin promoting and encouraging respect for human rights and forfundamental freedoms for all without distinction as to race,sex, language, or religion". Article 55 provides that:

The United Nations shall promote: a) higher standards of living,full employment, and conditions of economic and socialprogress and development; b) solutions of internationaleconomic, social, health, and related problems; c)international cultural and educational cooperation; d)universal respect for, and observance of, human rights and

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fundamental freedoms for all without distinction as to race,sex, language, or religion.

Universal Declaration of Human Rights

"It is not a treaty...[In the future, it] may well become theinternational Magna Carta." Eleanor Roosevelt with the Spanishtext of the Universal Declaration in 1949.

The Universal Declaration of Human Rights (UDHR) was adopted bythe United Nations General Assembly in 1948, partly inresponse to the atrocities of World War II. It is generallyviewed as the preeminent statement of international rights andhas been identified as being a culmination of centuries ofthinking along both secular and religious lines. Although theUDHR was a non-binding resolution, it is now considered bysome to have acquired the force of international customary lawwhich may be invoked in appropriate circumstances by nationaland other judiciaries. The UDHR urges member nations topromote a number of human, civil, economic and social rights,asserting these rights as part of the "foundation of freedom,justice and peace in the world." The declaration was the firstinternational legal effort to limit the behaviour of statesand press upon them duties to their citizens following themodel of the rights-duty duality.

...recognition of the inherent dignity and of the equal andinalienable rights of all members of the human family is thefoundation of freedom, justice and peace in the world.

—Preamble to the Universal Declaration of Human Rights, 1948International treatiesIn 1966, the International Covenant on Civil and Political Rights

(ICCPR) and the International Covenant on Economic, Social andCultural Rights (ICESCR) were adopted by the United Nations,between them making the rights contained in the UDHR binding

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on all states that have signed this treaty, creating human-rights law.

Since then numerous other treaties (pieces of legislation) havebeen offered at the international level. They are generallyknown as human rights instruments. Some of the mostsignificant, referred to (with ICCPR and ICESCR) as "the sevencore treaties", are:

Convention on the Elimination of All Forms of DiscriminationAgainst Women (CEDAW) (adopted 1979, entry into force: 1981)

Convention on the Elimination of All Forms of RacialDiscrimination (CERD) (adopted 1966, entry into force: 1969)

Convention on the Rights of Persons with Disabilities (CRPD)(adopted 2006, entry into force: 2008)

Convention on the Rights of the Child (CRC) (adopted 1989, entryinto force: 1989)

United Nations Convention Against Torture (CAT) (adopted 1984,entry into force: 1984)

International Convention on the Protection of the Rights of AllMigrant Workers and Members of their Families (ICRMW or moreoften MWC) (adopted 1990, entry into force: 2003)

role of law in human rightsThe role of law, in the field of human rights, is to provide for

the human rights by codifying the rights and duties; topromote the human rights by providing for education andgeneral awareness of rights, and to protect the rights byproviding for dispute resolution mechanisms and institutions.

Customary international law (human rights protection)In addition to protection by international treaties, customary

international law may protect some human rights, such as theprohibition of torture, genocide and slavery and the principleof non-discrimination.

International humanitarian law, : Geneva Conventions

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The Geneva Conventions came into being between 1864 and 1949 as aresult of efforts by Henry Dunant, the founder of theInternational Committee of the Red Cross. The conventionssafeguard the human rights of individuals involved in armedconflict, and build on the Hague Conventions of 1899 and 1907,the international community's first attempt to formalize thelaws of war and war crimes in the nascent body of secularinternational law. The conventions were revised as a result ofWorld War II and readopted by the international community in1949.

United Nations system (human rights protection)Under the mandate of the UN charter, the and the multilateral UN

human rights treaties, the United Nations (UN) as anintergovernmental body seeks to apply internationaljurisdiction for universal human-rights legislation. Withinthe UN machinery, human-rights issues are primarily theconcern of the United Nations Security Council and the UnitedNations Human Rights Council, and there are numerouscommittees within the UN with responsibilities forsafeguarding different human-rights treaties. The most seniorbody of the UN in the sphere of human rights is the Office ofthe High Commissioner for Human Rights. The United Nations hasan international mandate to:

achieve international co-operation in solving internationalproblems of an economic, social, cultural, or humanitariancharacter, and in promoting and encouraging respect for humanrights and for fundamental freedoms for all withoutdistinction as to race, gender, language, or religion.

—Article 1–3 of the United Nations CharterUnited Nations Security Council(human rights protection)The United Nations Security Council has the primary

responsibility for maintaining international peace andsecurity and is the only body of the UN that can authorize theuse of force. It has been criticised for failing to take

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action to prevent human rights abuses, including the Darfurcrisis, the Srebrenica massacre and the Rwandan Genocide. Forexample, critics blamed the presence of non-democracies on theSecurity Council for its failure regarding.

On April 28, 2006 the Security Council adopted resolution 1674that reaffirmed the responsibility to protect populations fromgenocide, war crimes, ethnic cleansing and crimes againsthumanity" and committed the Security Council to action toprotect civilians in armed conflict.

United Nations General Assembly (human rights protection)The United Nations General Assembly, under Article 13 of the UN

Charter, has the power to initiate studies and makerecommendations on human rights issues. Under this provision,the general assembly passed the Universal Declaration of HumanRights in 1948, and since then a wide variety of other humanrights instruments. The assembly has several subsidiary organsthat deal with specific human rights issues, such as theSpecial Committee on Decolonisation and the Special Commissionagainst Apartheid (no longer operational). In addition thegeneral assembly has set up a number of subsidiary organs thatconsider human rights issues in a number of high-profilecontexts: such as the UN Council on Namibia, the SpecialCommittee to Investigate Israeli Practises in the Occupiedterritories and the Committee on the Exercise of theInalienable rights of the Palestine People.

Human Rights Council (human rights protection), United NationsHuman Rights Council

The United Nations Human Rights Council, created at the 2005World Summit to replace the United Nations Commission on HumanRights, has a mandate to investigate violations of humanrights. The Human Rights Council is a subsidiary body of theGeneral Assembly and reports directly to it. It ranks belowthe Security Council, which is the final authority for theinterpretation of the United Nations Charter. Forty-seven of

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the one hundred ninety-one member states sit on the council,elected by simple majority in a secret ballot of the UnitedNations General Assembly. Members serve a maximum of six yearsand may have their membership suspended for gross human rightsabuses. The Council is based in Geneva, and meets three timesa year; with additional meetings to respond to urgentsituations.

Independent experts (rapporteurs) are retained by the Council toinvestigate alleged human rights abuses and to provide theCouncil with reports.

The Human Rights Council may request that the Security Counciltake action when human rights violations occur. This actionmay be direct actions, may involve sanctions, and the SecurityCouncil may also refer cases to the International CriminalCourt (ICC) even if the issue being referred is outside thenormal jurisdiction of the ICC.

Treaty bodies(human rights protection)In addition to the political bodies whose mandate flows from the

UN charter, the UN has set up a number of treaty-based bodies,comprising committees of independent experts who monitorcompliance with human rights standards and norms flowing fromthe core international human rights treaties. They aresupported by and are created by the treaty that they monitor,With the exception of the CESCR, which was established under aresolution of the Economic and Social Council to carry out themonitoring functions originally assigned to that body underthe Covenant, they are technically autonomous bodies,established by the treaties that they monitor and accountableto the state parties of those treaties - rather thansubsidiary to the United Nations. Though in practise they areclosely intertwined with the United Nations system and aresupported by the UN High Commissioner for Human Rights(UNHCHR) and the UN Center for Human Rights.

Human Rights Committee

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The Human Rights Committee promotes participation with thestandards of the ICCPR. The eighteen members of the committeeexpress opinions on member countries and make judgments onindividual complaints against countries which have ratified anOptional Protocol to the treaty. The judgments, termed"views", are not legally binding.

Committee on Economic, Social and Cultural Rights The Committee on Economic, Social and Cultural Rights monitors

the ICESCR and makes general comments on ratifying countriesperformance. It will have the power to receive complaintsagainst the countries that opted into the Optional Protocolonce it has come into force. It is important to note thatunlike the other treaty bodies, the economic committee is notan autonomous body responsible to the treaty parties, butdirectly responsible to the Economic and Social Council andultimately to the General Assembly. This means that theEconomic Committee faces particular difficulties at itsdisposal only relatively "weak" means of implementation incomparison to other treaty bodies. Particular difficultiesnoted by commentators include: perceived vagueness of theprinciples of the treaty, relative lack of legal texts anddecisions, ambivalence of many states in addressing economic,social and cultural rights, comparatively few non-governmentalorganisations focused on the area and problems with obtainingrelevant and precise information.

Committee on the Elimination of Racial Discrimination The Committee on the Elimination of Racial Discrimination

monitors the CERD and conducts regular reviews of countries'performance. It can make judgments on complaints againstmember states allowing it, but these are not legally binding.It issues warnings to attempt to prevent seriouscontraventions of the convention.

Committee on the Elimination of Discrimination against Womenmonitors the CEDAW

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The Committee on the Elimination of Discrimination against Womenmonitors the CEDAW. It receives states' reports on theirperformance and comments on them, and can make judgments oncomplaints against countries which have opted into the 1999Optional Protocol.

Committee Against Torture The Committee Against Torture monitors the CAT and receives

states' reports on their performance every four years andcomments on them. Its subcommittee may visit and inspectcountries which have opted into the Optional Protocol.

Committee on the Rights of the Child The Committee on the Rights of the Child monitors the CRC and

makes comments on reports submitted by states every fiveyears. It does not have the power to receive complaints.

Committee on Migrant Workers The Committee on Migrant Workers was established in 2004 and

monitors the ICRMW and makes comments on reports submitted bystates every five years. It will have the power to receivecomplaints of specific violations only once ten member statesallow it.

Committee on the Rights of Persons with Disabilities The Committee on the Rights of Persons with Disabilities was

established in 2008 to monitor the Convention on the Rights ofPersons with Disabilities. It has the power to receivecomplaints against the countries which have opted into theOptional Protocol to the Convention on the Rights of Personswith Disabilities.

Each treaty body receives secretariat support from the HumanRights Council and Treaties Division of Office of the HighCommissioner on Human Rights (OHCHR) in Geneva except CEDAW,which is supported by the Division for the Advancement ofWomen (DAW). CEDAW formerly held all its sessions at UnitedNations headquarters in New York but now frequently meets at

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the United Nations Office in Geneva; the other treaty bodiesmeet in Geneva. The Human Rights Committee usually holds itsMarch session in New York City.

Regional human rights regimesInternational human rights regimes are in several cases "nested"

within more comprehensive and overlapping regional agreements.These regional regimes can be seen as relatively independentlycoherent human rights sub-regimes. Three principal regionalhuman rights instruments can be identified; the AfricanCharter on Human and Peoples' Rights, the American Conventionon Human Rights (the Americas) and the European Convention onHuman Rights. The European Convention on Human Rights hassince 1950 defined and guaranteed human rights and fundamentalfreedoms in Europe. All 47 member states of the Council ofEurope have signed the Convention and are therefore under thejurisdiction of the European Court of Human Rights inStrasbourg.

Human rights promotionHuman rights continue to be promoted around the world through

governmental organizations and museums including the CanadianMuseum for Human Rights in Winnipeg, Manitoba.

Non-governmental actors, Non-governmental organizationInternational non-governmental human rights organizations such as

Amnesty International, Human Rights Watch, InternationalService for Human Rights and FIDH monitor what they see ashuman rights issues around the world and promote their viewson the subject. Human rights organizations have been said to""translate complex international issues into activities to beundertaken by concerned citizens in their own community".Human rights organizations frequently engage in lobbying andadvocacy in an effort to convince the United Nations,supranational bodies and national governments to adopt theirpolicies on human rights. Many human-rights organizations haveobserver status at the various UN bodies tasked with

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protecting human rights. A new (in 2009) nongovernmentalhuman-rights conference is the Oslo Freedom Forum, a gatheringdescribed by The Economist as "on its way to becoming a human-rights equivalent of the Davos economic forum." The samearticle noted that human-rights advocates are more and moredivided amongst themselves over how violations of human rightsare to be defined, notably as regards the Middle East.

There is criticism of human-rights organisations who use theirstatus but allegedly move away from their stated goals. Forexample, Gerald M. Steinberg, an Israel-based academic,maintains that NGOs take advantage of a "halo effect" and are"given the status of impartial moral watchdogs" by governmentsand the media. Such critics claim that this may be seen atvarious governmental levels, including when human-rightsgroups testify before investigation committees.

Human rights defenderA human rights defender is someone who, individually or with

others, acts to promote or protect human rights. Human rightsdefenders are those men and women who act peacefully for thepromotion and protection of those rights, and most of thisactivity happens within a nation as opposed tointernationally.

Right to lifeEvery human being has the inherent right to life. This right

shall be protected by law. No one shall be arbitrarilydeprived of his life.

—Article 6.1 of the International Covenant on Civil and PoliticalRights

The right to life is the essential right that a human being hasthe right not to be killed by another human being. The conceptof a right to life is central to debates on the issues ofabortion, capital punishment, euthanasia, self defense andwar. According to many human rights activists, the deathpenalty violates this right. The United Nations has called on

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states retaining the death penalty to establish a moratoriumon capital punishment with a view to its abolition. Stateswhich do not do so face considerable moral and politicalpressure.

Freedom from tortureThroughout history, torture has been used as a method of

political re-education, interrogation, punishment, andcoercion. In addition to state-sponsored torture, individualsor groups may be motivated to inflict torture on others forsimilar reasons to those of a state; however, the motive fortorture can also be for the sadistic gratification of thetorturer, as in the Moors murders.

Torture is prohibited under international law and the domesticlaws of most countries in the 21st century. It is consideredto be a violation of human rights, and is declared to beunacceptable by Article 5 of the UN Universal Declaration ofHuman Rights. Signatories of the Geneva Conventions of 1949and the Additional Protocols I and II of 8 June 1977officially agree not to torture captured persons in armedconflicts, whether international or internal. Torture is alsoprohibited by the United Nations Convention Against Torture,which has been ratified by 156 countries.

National and international legal prohibitions on torture derivefrom a consensus that torture and similar ill-treatment areimmoral, as well as impractical. Despite these internationalconventions, organizations that monitor abuses of human rights(e.g. Amnesty International, the International RehabilitationCouncil for Torture Victims) report widespread use condoned bystates in many regions of the world. Amnesty Internationalestimates that at least 81 world governments currentlypractice torture, some of them openly.

Freedom from slaveryFreedom from slavery is internationally recognized as a human

right. Article 4 of the Universal Declaration of Human Rights

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states:No one shall be held in slavery or servitude; slavery and the

slave trade shall be prohibited in all their forms.Despite this, the number of slaves today is higher than at any

point in history, remaining as high as 12 million to 27million, Most are debt slaves, largely in South Asia, who areunder debt bondage incurred by lenders, sometimes even forgenerations. Human trafficking is primarily for prostitutingwomen and children into sex industries.

Groups such as the American Anti-Slavery Group, Anti-SlaveryInternational, Free the Slaves, the Anti-Slavery Society, andthe Norwegian Anti-Slavery Society continue to campaign to ridthe world of slavery.

Right to a fair trialEveryone is entitled in full equality to a fair and public

hearing by an independent and impartial tribunal, in thedetermination of his rights and obligations and of anycriminal charge against him.

The right to a fair trial has been defined in numerous regionaland international human rights instruments. It is one of themost extensive human rights and all international human rightsinstruments enshrine it in more than one article. The right toa fair trial is one of the most litigated human rights andsubstantial case law has been established on theinterpretation of this human right. Despite variations inwording and placement of the various fair trial rights,international human rights instrument define the right to afair trial in broadly the same terms. The aim of the right isto ensure the proper administration of justice. As a minimumthe right to fair trial includes the following fair trialrights in civil and criminal proceedings:

the right to be heard by a competent, independent and impartialtribunal

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the right to a public hearingthe right to be heard within a reasonable timethe right to counselthe right to interpretationFreedom of speechFreedom of speech is the freedom to speak freely without

censorship. The term freedom of expression is sometimes usedsynonymously, but includes any act of seeking, receiving andimparting information or ideas, regardless of the medium used.In practice, the right to freedom of speech is not absolute inany country and the right is commonly subject to limitations,such as on libel, slander, obscenity, incitement to commit acrime, etc. The right to freedom of expression is recognizedas a human right under Article 19 of the Universal Declarationof Human Rights and recognized in international human rightslaw in the International Covenant on Civil and PoliticalRights (ICCPR). Article 19 of the ICCPR states that"[e]veryone shall have the right to hold opinions withoutinterference" and "everyone shall have the right to freedom ofexpression; this right shall include freedom to seek, receiveand impart information and ideas of all kinds, regardless offrontiers, either orally, in writing or in print, in the formof art, or through any other media of his choice".

Freedom of thought, Freedom of Conscience and Freedom of religionEveryone has the right to freedom of thought, conscience and

religion; this right includes freedom to change his religionor belief, and freedom, either alone or in community withothers and in public or private, to manifest his religion orbelief in teaching, practice, worship and observance.

—Article 18 of the International Covenant on Civil and PoliticalRights

Freedom of thought, conscience and religion are closely relatedrights that protect the freedom of an individual or community,

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in public or private, to think and freely hold conscientiousbeliefs and to manifest religion or belief in teaching,practice, worship, and observance; the concept is generallyrecognized also to include the freedom to change religion ornot to follow any religion. The freedom to leave ordiscontinue membership in a religion or religious group—inreligious terms called "apostasy"—is also a fundamental partof religious freedom, covered by Article 18 of the UniversalDeclaration of Human Rights.

Human rights groups such as Amnesty International organisescampaigns to protect those arrested and or incarcerated as aprisoner of conscience because of their conscientious beliefs,particularly concerning intellectual, political and artisticfreedom of expression and association. In legislation, aconscience clause is a provision in a statute that excuses ahealth professional from complying with the law (for examplelegalising surgical or pharmaceutical abortion) if it isincompatible with religious or conscientious beliefs.

Freedom of movementFreedom of movement asserts that a citizen of a state in which

that citizen is present has the liberty to travel, reside in,and/or work in any part of the state where one pleases withinthe limits of respect for the liberty and rights of others,and to leave that state and return at any time.

Right to keep and bear armsThe right to keep and bear arms for defense is described in the

philosophical and political writings of Aristotle, Cicero,John Locke, Machiavelli, the English Whigs and others. Incountries with an English common law tradition, a long-standing common law right to keep and bear arms has long beenrecognized, as pre-existing in common law, prior even to theexistence of national constitutions.

Sexual orientation and gender identity

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Sexual orientation and gender identity rights relate to theexpression of sexual orientation and gender identity based onthe right to respect for private life and the right not to bediscriminated against on the ground of "other status" asdefined in various human rights conventions, such as article17 and 26 in the United Nations International Covenant onCivil and Political Rights and article 8 and article 14 in theEuropean Convention on Human Rights.

As of 2011, homosexual behaviour is illegal in 76 countries andpunishable by execution in seven countries. Thecriminalization of private, consensual, adult sexualrelations, especially in countries where corporal or capitalpunishment is involved, is one of the primary concerns of LGBThuman rights advocates.

Other issues include: government recognition of same-sexrelationships, LGBT adoption, sexual orientation and militaryservice, immigration equality, anti-discrimination laws, hatecrime laws regarding violence against LGBT people, sodomylaws, anti-lesbianism laws, and equal age of consent for same-sex activity.

A global charter for sexual orientation and gender identityrights has been proposed in the form of the 'YogyakartaPrinciples', a set of 29 principles whose authors say theyapply International Human Rights Law statutes and precedent tosituations relevant to LGBT people's experience. Theprinciples were presented at a United Nations event in NewYork on November 7, 2007, co-sponsored by Argentina, Braziland Uruguay.

The principles have been acknowledged with influencing the Frenchproposed UN declaration on sexual orientation and genderidentity, which focuses on ending violence, criminalizationand capital punishment and does not include dialogue aboutsame-sex marriage or right to start a family. The proposal wassupported by 67 of the then 192 member countries of the UnitedNations, including all EU member states and the United States.

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An alternative statement opposing the proposal was initiatedby Syria and signed by 57 member nations, including all 27nations of the Arab League as well as Iran and North Korea.[1]

Right to waterThe right to water has been recognized in a wide range of

international documents, including treaties, declarations andother standards. For instance, the 1979 Convention on theElimination of All Forms of Discrimination Against Women(CEDAW) requires State parties to ensure to women the right to“enjoy adequate living conditions, particularly in relation to[…] water supply”. The 1989 Convention on the Rights of theChild (CRC) requires States parties to combat disease andmalnutrition “through the provision of adequate nutritiousfoods and clean drinking-water”.

The most clear definition of the Human right to water has beenissued by the UN Committee on Economic, Social and CulturalRights. This treaty body interpreting legal obligations ofState parties to the International Covenant on Economic,Social and Cultural Rights (ICESCR) issued in 2002 a non-binding interpretation affirming that access to water was acondition for the enjoyment of the right to an adequatestandard of living and inextricably related to the right tothe highest attainable standard of health (see ICESCR Art.11 &12) and therefore a human right:

The human right to water entitles everyone to sufficient, safe,acceptable, physically accessible and affordable water forpersonal and domestic uses.

—United Nations Committee on Economic, Social and Cultural RightsOn July 28, 2010, the United Nations General Assembly declared

water and sanitation as human rights. Today all States have atleast ratified one human rights convention which explicitly orimplicitly recognizes the right, and they all have signed atleast one political declaration recognizing this right.

reproductive rights

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Reproductive rights are rights relating to reproduction andreproductive health. The World Health Organisation definesreproductive rights as follows:

Reproductive rights rest on the recognition of the basic right ofall couples and individuals to decide freely and responsiblythe number, spacing and timing of their children and to havethe information and means to do so, and the right to attainthe highest standard of sexual and reproductive health. Theyalso include the right of all to make decisions concerningreproduction free of discrimination, coercion and violence.

—World Health OrganisationReproductive rights were first established as a subset of human

rights at the United Nations 1968 International Conference onHuman Rights. The sixteenth article of the resultingProclamation of Teheran states, "Parents have a basic humanright to determine freely and responsibly the number and thespacing of their children."

Reproductive rights may include some or all of the followingrights: the right to legal or safe abortion, the right tocontrol one's reproductive functions, the right to qualityreproductive healthcare, and the right to education and accessin order to make reproductive choices free from coercion,discrimination, and violence.

Reproductive rights may also be understood to include educationabout contraception and sexually transmitted infections, andfreedom from coerced sterilization and contraception,protection from gender-based practices such as female genitalcutting (FGC) and male genital mutilation (MGM).

Right to Internet access and Digital rightsIn October 2009, Finland's Ministry of Transport and

Communications announced that every person in Finland wouldhave the legal right to Internet access. Since July 2010, thegovernment has legally obligated telecommunications companiesto offer broadband Internet access to every permanent

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residence and office. The connection must be "reasonablypriced" and have a downstream rate of at least 1 Mbit/s.

In March 2010, the BBC, having commissioned an opinion poll,reported that "almost four in five people around the worldbelieve that access to the internet is a fundamental right."The poll, conducted by the polling company GlobeScan for theBBC World Service, collated the answers of 27,973 adultcitizens across 26 countries to find that 79% of adults eitherstrongly agreed or somewhat agreed with the statement: "accessto the internet should be a fundamental right of all people".

environmental human rights There are two basic conceptions of environmental human rights in

the current human rights system. The first is that the rightto a healthy or adequate environment is itself a human right(as seen in both Article 24 of the African Charter on Humanand Peoples' Rights, and Article 11 of the San SalvadorProtocol to the American Convention on Human Rights). Thesecond conception is the idea that environmental human rightscan be derived from other human rights, usually – the right tolife, the right to health, the right to private family lifeand the right to property (among many others). This secondtheory enjoys much more widespread use in human rights courtsaround the world, as those rights are contained in many humanrights documents.

The onset of various environmental issues, especially climatechange, has created potential conflicts between differenthuman rights. Human rights ultimately require a workingecosystem and healthy environment, but the granting of certainrights to individuals may damage these. Such as the conflictbetween right to decide number of offspring and the commonneed for a healthy environment, as noted in the tragedy of thecommons. In the area of environmental rights, theresponsibilities of multinational corporations, so farrelatively unaddressed by human rights legislation, is ofparamount consideration.[]

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Environmental rights revolve largely around the idea of a rightto a livable environment both for the present and the futuregenerations.

National security and Anti-terrorism legislationWith the exception of non-derogable human rights (international

conventions class the right to life, the right to be free fromslavery, the right to be free from torture and the right to befree from retroactive application of penal laws as non-derogable), the UN recognises that human rights can be limitedor even pushed aside during times of national emergency –although

the emergency must be actual, affect the whole population and thethreat must be to the very existence of the nation. Thedeclaration of emergency must also be a last resort and atemporary measure.

—United Nations. The ResourceRights that cannot be derogated for reasons of national security

in any circumstances are known as peremptory norms or juscogens. Such United Nations Charter obligations are binding onall states and cannot be modified by treaty.

Examples of national security being used to justify human rightsviolations include the Japanese American internment duringWorld War II, Stalin's Great Purge, and the modern-day abusesof terror suspects rights by some countries, often in the nameof the War on Terror.

Cultural relativism, Moral relativism and Moral universalism

Relativists argue that human rights must avoid pushing the valuesof a single culture at the expense of others. "The White Man'sBurden" is seen as an example of the West using the spread ofWestern culture as a justification for colonization.

Universalists argue that some practices violate the norms of allhuman cultures. They point out that although Female genital

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mutilation is prevalent in Africa, no religion supports thepractice, and the tradition is in violation of women's rights.

The UDHR enshrines universal rights that apply to all humansequally, whichever geographical location, state, race orculture they belong to. However, in academia there is adispute between scholars that advocate moral relativism andscholars that advocate moral universalism. Relativists do notargue against human rights, but concede that human rights aresocial constructed and are shaped by cultural andenvironmental contexts. Universalists argue that human rightshave always existed, and apply to all people regardless ofculture, race, sex, or religion.

More specifically, proponents of cultural relativism argue foracceptance of different cultures, which may have practicesconflicting with human rights. Relativists caution thatuniversalism could be used as a form of cultural, economic orpolitical imperialism. The White Man's Burden is used as anexample of imperialism and the destruction of local culturesjustified by the desire to spread Eurocentric values. Inparticular, the concept of human rights is often claimed to befundamentally rooted in a politically liberal outlook which,although generally accepted in Europe, Japan or North America,is not necessarily taken as standard elsewhere.[]

Opponents of relativism argue that some practices exist thatviolate the norms of all human cultures. A common example isfemale genital mutilation, which occurs in different culturesin Africa, Asia and South America[]. It is not mandated by anyreligion, but has become a tradition in many cultures. It isconsidered a violation of women's and girl's rights by much ofthe international community, and is outlawed in somecountries.

The former Prime Ministers of Singapore, Lee Kuan Yew, and ofMalaysia, Mahathir bin Mohamad both claimed in the 1990s thatAsian values were significantly different from Western valuesand included a sense of loyalty and foregoing personal

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freedoms for the sake of social stability and prosperity, andtherefore authoritarian government is more appropriate in Asiathan democracy. Lee Kuan Yew argued that:

What Asians value may not necessarily be what Americans orEuropeans value. Westerners value the freedoms and libertiesof the individual. As an Asian of Chinese cultural background,my values are for a government which is honest, effective, andefficient.

—Lee Kuan Yew, 'Democracy, Human Rights and the Realities',Tokyo, Nov 10, 1992

In response, critics have pointed out that cultural relativismcould be used as a justification for authoritarianism. Anexample is in 1981, when the Iranian representative to theUnited Nations, Said Rajaie-Khorassani, articulated theposition of his country regarding the Universal Declaration ofHuman Rights by saying that the UDHR was "a secularunderstanding of the Judeo-Christian tradition", which couldnot be implemented by Muslims without trespassing the Islamiclaw. The Asian Values argument was criticized by Mahathir'sformer deputy:

To say that freedom is Western or unAsian is to offend ourtraditions as well as our forefathers, who gave their lives inthe struggle against tyranny and injustices.

—A. Ibrahim in his keynote speech to the Asian Press Forum titleMedia and Society in Asia, December 2, 1994

and by Singapore's opposition leader Chee Soon Juan, who statesthat it is racist to assert that Asians do not want humanrights.

Defenders of moral universalism argue that relativistic argumentsneglect the fact that modern human rights are new to allcultures, dating back no further than the UDHR in 1948. Theyargue that the UDHR was drafted by people from many differentcultures and traditions, including a US Roman Catholic, aChinese Confucian philosopher, a French zionist and a

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representative from the Arab League, amongst others, and drewupon advice from thinkers such as Mahatma Gandhi. MichaelIgnatieff has argued that cultural relativism is almostexclusively an argument used by those who wield power incultures which commit human rights abuses, and that thosewhose human rights are compromised are the powerless. Thisreflects the fact that the difficulty in judging universalismversus relativism lies in who is claiming to represent aparticular culture.

Although the argument between universalism and relativism is farfrom complete, it is an academic discussion in that allinternational human rights instruments adhere to the principlethat human rights are universally applicable. The 2005 WorldSummit reaffirmed the international community's adherence tothis principle:

The universal nature of human rights and freedoms is beyondquestion.

—2005 World Summit, paragraph 121International human rights law International human rights law is the body of international law

designed to promote and protect human rights at theinternational, regional, and domestic levels. As a form ofinternational law, international human rights law is primarilymade up of treaties, agreements between states intended tohave binding legal effect between the parties that have agreedto them; and customary international law, rules of law derivedfrom the consistent conduct of states acting out of the beliefthat the law required them to act that way. Otherinternational human rights instruments while not legallybinding contribute to the implementation, understanding anddevelopment of international human rights law and have beenrecognised as a source of political obligation.

Enforcement of international human rights law can occur on eithera domestic, a regional or an international level. States that

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ratify human rights treaties commit themselves to respectingthose rights and ensuring that their domestic law iscompatible with international legislation. When domestic lawfails to provide a remedy for human rights abuses, parties maybe able to resort to regional or international mechanisms forenforcing human rights.

The relationship between international human rights law andhumanitarian law is disputed among international law scholars.This discussion forms part of a larger discussion onfragmentation of international law. While pluralist scholarsconceive international human rights law as being distinct frominternational humanitarian law, proponents of theconstitutionalist approach regard the latter as a subset ofthe former. In a nutshell, those who favors separate, self-contained regimes emphasize the differences in applicability;international humanitarian law applies only during armedconflict. On the other hand, a more systemic perspectiveexplains that international humanitarian law represents afunction of international human rights law; it includesgeneral norms that apply to everyone at all time as well asspecialized norms which apply to certain situations such asarmed conflict and military occupation (i.e. IHL) or tocertain groups of people including refugees (e.g. the 1951Refugee Convention), children (the Convention on the Rights ofthe Child), and prisoners of war (the 1949 Geneva ConventionIII).

Regional protection and institutionsRegional systems of international human rights law supplement and

complement national and international human rights law byprotecting and promoting human rights in specific areas of theworld. There are three key regional human rights instrumentswhich have established human rights law on a regional basis:

the African Charter on Human and Peoples' Rights for Africa of1981, in force since 1986;

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the American Convention on Human Rights for the Americas of 1969,in force since 1978; and

the European Convention on Human Rights for Europe of 1950, inforce since 1953.

Universal jurisdiction Universal jurisdiction is a controversial principle in

international law, whereby states claim criminal jurisdictionover persons whose alleged crimes were committed outside theboundaries of the prosecuting state, regardless ofnationality, country of residence or any other relationship tothe prosecuting country. The state backs its claim on thegrounds that the crime committed is considered a crime againstall, which any state is authorised to punish. The concept ofuniversal jurisdiction is therefore closely linked to the ideathat certain international norms are erga omnes, or owed tothe entire world community, as well as the concept of juscogens.

In 1993, Belgium passed a "law of universal jurisdiction" to giveits courts jurisdiction over crimes against humanity in othercountries. In 1998, Augusto Pinochet was arrested in Londonfollowing an indictment by Spanish judge Baltasar Garzón underthe universal-jurisdiction principle.

The principle is supported by Amnesty International and otherhuman rights organisations, which believe that certain crimespose a threat to the international community as a whole, andthat the community has a moral duty to act.

Others, like Henry Kissinger, argue that "widespread agreementthat human rights violations and crimes against humanity mustbe prosecuted has hindered active consideration of the properrole of international courts. Universal jurisdiction riskscreating universal tyranny—that of judges".244

244 Kissinger, Henry (July–August 2001). "The Pitfall of Universal Jurisdiction". Foreign Affairs.

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Human rights obligations, obligation to respect, obligation toprotect, obligation to fulfil

Human rights entail both rights and obligations. States assumeobligations and duties under international law to respect, toprotect and to fulfil human rights. The obligation to respectmeans that States must refrain from interfering with orcurtailing the enjoyment of human rights. The obligation toprotect requires States to protect individuals and groupsagainst human rights abuses. The obligation to fulfil meansthat States must take positive action to facilitate theenjoyment of basic human rights. At the individual level,while we are entitled our human rights, we should also respectthe human rights of others.

It is this obligatioriness of rights that give rise to the needfor a system, institutional, legal, policy, and programmatic,that ensures the rights are guaranteed, protected andpromoted. This is the sum total of the human rights protectionsystem.

human rights protection system The human rights protection system provides an avenue for greater

collaboration among institutions involved in the human rightsfield – governments, national human rights institutions, localnon-governmental organizations, and the country offices of theinternational human rights institutions, namely, the UNspecialized agencies and regional specialised agencies, suchas African Union.

national human right institutionsNational Human Rights Institutions (NHRIs) are created and funded

by the state as (semi-) autonomous position 245 to providecrucial oversight and contribute to the accountability ofstate organs. They should be seen as an indispensable elementof the human rights protection regime as they are involved in

245 ICHRP, 2005

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strengthening all other elements of the NHRPS and providecrucial oversight of state organs.

Legal SystemThe judicial system is the judiciary, including the judges,

courts, lawyers, prosecutors and attorneys-general. They arethe centres of enforcing the law. If rights are breached, itis the judiciary to apportion duties and blame.246.

As well as upholding civil and political rights, they play anincreasingly important role in addressing poverty. Other legalinstitutions – less well known but that similarly (althoughmore indirectly) contribute to the overall human rightsprotection– include notaries, court clerks, paralegals, lawfaculties and training centres.

Weak legal institutions, or lack of access to these institutions,simply imply that human rights guarantees that exist on paperare a dead letter. Independent courts and other legal actorsallow a state’s human rights performance to be monitored andenable individuals to claim their rights. Legal institutionshave a key role to play in ensuring accountability, addressingimpunity and ensuring remedies to the victims of human rightsviolations247.

As well as upholding civil and political rights, legalinstitutions play a role in addressing poverty and corruptionin various ways. Justice mechanisms are crucial for overcomingdeprivation, fighting discrimination and protecting propertyrights, and they increase participation and empowerment.Access to legal institutions is therefore especially relevantfor the poor and most marginalised in society. A well-functioning legal profession also contributes to further caselaw on ESC rights, such as access to food, health oreducation. Finally, legal institutions are able to influenceand amend government policies in these fields 248.

246 v UNDP, 2003247 Amnesty International, 1998248 Ewa Wojkowska, 2006

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Policing AgenciesThe policing agencies include the prisons, police, army, and

intelligence services. These are an arm of government, and keyto enforcement of the law, by threat of sanctions,punishments, or physical harm. Unclear dividing lines oroverlap between different security institutions exist in manycountries, and the institutional organisation and respectivemandates of the security actors are determined by historic andpolitical developments249. A professional and accountablesecurity sector is a crucial element of human rightsprotection. All security bodies should operate within a legalframework that guarantees human rights, accountability andthat sets standards for the use of force. Security sectorreform is hence vital, both for increased security andprotection of human rights, but also as a precondition forsustainable development.

All security bodies should operate within a legal framework thatguarantees accountability and human rights and that setsstandards with regard to the use of force250. In many countriesthe applicable legislative framework is outdated or stems fromrepressive regimes that have limited accountability andoversight of security actors.

Local Government Institutions States possess the prime responsibility for protecting human

rights, and accountability relates to all levels ofgovernment. Local governments play a prime role in thisduty251. In Uganda, whereas the central government is thelegally and morally responsible entity for the protection andpromotion of human rights, local governments have severalduties, as centers of service delivery. However, there arewide gaps in many countries between laws and policies at thecentral level, including on human rights, and the actual

249 UNDP, 2004250 United Nations, 2008251 ICHRP, 2005

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practice and implementation thereof at the lower state level .In its service delivery tasks, local government is responsiblefor respecting and protecting basic human rights.

Policies on Human RightsUganda also has human rights policies and action plans that have

human rights components, as content enhancement, or as partand parcel of the documents, which guide various agenda. Forinstance, the gender policies provide extensive for women’sright to participation in development, health, and education.The youth policies on the other hand, provides for support ofyouth to participate in development through capacity building,and financing of youth ventures.

courts (human rights)A court is a tribunal, often a governmental institution, with the

authority to adjudicate legal disputes between parties andcarry out the administration of justice in civil, criminal,and administrative matters in accordance with the rule oflaw.252 In both common law and civil law legal systems, courtsare the central means for dispute resolution, and it isgenerally understood that all persons have an ability to bringtheir claims before a court. Similarly, the rights of thoseaccused of a crime include the right to present a defensebefore a court. The system of courts that interprets andapplies the law is collectively known as the judiciary. Theplace where a court sits is known as a venue. The room wherecourt proceedings occur is known as a courtroom, and thebuilding as a courthouse; court facilities range from simpleand very small facilities in rural communities to largebuildings in cities.

252 Walker, David (1980). The Oxford companion to law. Oxford: Oxford University Press. p. 301. ISBN 0-19-866110-X.

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http://en.wikipedia.org/wiki/Oxford_University_Press

http://en.wikipedia.org/wiki/Oxford_University_Press

http://books.google.com/?id=4GgYAAAAIAAJ


national commissionsThe National Human Rights Commissions are statutory, with the

powers and functions for monitoring and promoting human rightsprotection. The Commissions have responsibilities under theRacial Discrimination, the Sex Discrimination, the DisabilityDiscrimination, and the Age Discrimination. The principle ofnon-discrimination is a fundamental one in human rights law -all human rights should be enjoyed by everyone regardless offactors such as race, sex or disability.

ombudsmanAn ombudsman or public advocate is usually appointed by the

government or by parliament, but with a significant degree ofindependence, who is charged with representing the interestsof the public by investigating and addressing complaints ofmaladministration or a violation of rights.

civil society organisations (human rights)Human rights activists and organizations have proliferated all

over the world in the past few decades. They serve as thevoice for the oppressed and the underprivileged, organizingthem, taking collective action on their behalf, and fightingfor their rights. These organizations empathize with thedowntrodden and occupy the roles of advocate and facilitatorin their quest for greater empowerment.

charge (public)A public charge is a person who has been made a ward of the state

who requires public support due to illness or poverty.negative human rights vis-a-vis positive human rightsPhilosophers and political scientists make a distinction between

negative and positive rights (not to be confused with thedistinction between negative and positive liberties).According to this view, positive rights permit or obligeaction, whereas negative rights permit or oblige inaction.These permissions or obligations may be of either a legal or

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moral character. Likewise, the notion of positive and negativerights may be applied to either liberty rights or claimrights, either permitting one to act or refrain from acting,or obliging others to act or refrain from acting.

To take an example involving two parties in a court of law:Adrian has a negative right to x against Clay if and only ifClay is prohibited from acting upon Adrian in some wayregarding x. In contrast, Adrian has a positive right to xagainst Clay if and only if Clay is obliged to act upon Adrianin some way regarding x. A case in point, if Adrian has anegative right to life against Clay, then Clay is required torefrain from killing Adrian; while if Adrian has a positiveright to life against Clay, then Clay is required to act asnecessary to preserve the life of Adrian.

Rights considered negative rights may include civil and politicalrights such as freedom of speech, private property, freedomfrom violent crime, freedom of worship, habeas corpus, a fairtrial, freedom from slavery. Rights considered positiverights, as initially proposed in 1979 by the Czech juristKarel Vasak, may include other civil and political rights suchas police protection of person and property and the right tocounsel, as well as economic, social and cultural rights suchas food, housing, public education, employment, nationalsecurity, military, health care, social security, and aminimum standard of living. In the ‘three generations’ accountof human rights, negative rights are often associated with thefirst generation of rights, while positive rights areassociated with the second and third generations.

individual rights vis-a-vis group rightsGroup rights are rights held by a group rather than by its

members separately, or rights held only by individuals withinthe specified group; in contrast, individual rights are rightsheld by individual people regardless of their group membershipor lack thereof. Group rights have historically been used bothto infringe upon and to facilitate individual rights, and the

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concept remains controversial.253 Group rights are notstraightforwardly human rights because they are group-differentiated rather than universal to all people just byvirtue of being human.

three generations of human rightsThis categorization, offered by Karel Vasak, is that there are

three generations of human rights: first-generation civil andpolitical rights (right to life and political participation),second-generation economic, social and cultural rights (rightto subsistence) and third-generation solidarity rights (rightto peace, right to clean environment). Out of thesegenerations, the third generation is the most debated andlacks both legal and political recognition. Thiscategorisation is at odds with the indivisibility of rights,as it implicitly states that some rights can exist withoutothers. Prioritisation of rights for pragmatic reasons ishowever a widely accepted necessity. Human rights expertPhilip Alston argues:

If every possible human rights element is deemed to be essentialor necessary, then nothing will be treated as though it istruly important.254

He, and others, urge caution with prioritisation of rights:The call for prioritizing is not to suggest that any obvious violations of rights can be

ignored.

—Philip Alston255

Priorities, where necessary, should adhere to core concepts (such as reasonableattempts at progressive realization) and principles (such as non-discrimination,equality and participation.

—Olivia Ball, Paul Gready256

253 Group Rights, Peter Jones 2005254 Alston 2005, p. 807255 Id 256 Ball & Gready 2006, p. 42

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Some human rights are said to be ‘inalienable rights’. The term inalienable rights (orunalienable rights) refers to ‘a set of human rights that are fundamental, are notawarded by human power, and cannot be surrendered.’

The so-called first generation rights refer to liberty andparticipation in political life. They are fundamentally civiland political in nature and serve to protect the individualfrom excess of the state. The first generation (human) rightsinclude among others (the freedom of speech, fair trial,voting, religion and expression.

The second generation human rights are related to equality andbegan to be recognized by governments after ) freedom ofspeech, the right to a fair trial, freedom of voting andreligion. They are fundamentally social, economic andcultural. They include the right to employment, the right tohousing and health care and social security. This generationof human rights is also, together with the first gen. rightscovered covert by the Universal declaration of Human Rights.

The third generation Rights are those which who go beyond themere civil and social as expressed in many progressivedocuments of international law. This generation containsrights like the right to self-determination, the right toeconomic and social development, the right to a healthyenvironment, the right to natural resources, the right tointergenerational equity and sustainability and of course theright to solidarity. The term “third generation” is used todescribe a category of human rights that are historicallynewer rights. Of course this does not necessarily connote anychronological difference or hierarchy of human rights.

An explanation for the term “third generation rights” or“collective rights” derives from the political divisions atthe time of the Cold War. The so-called “first generationrights” (civil and political rights) were championed by thewest. The “second generation” rights (economic, social andcultural rights) were promoted by the East. Finally the “third

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generation” rights or ‘solidarity rights’ were proposed by the thirdworld developing countries.

typology of obligationsStates are the traditional actors within the international legal

system and have the primary responsibility for implementinghuman rights. The international human rights framework makesit clear that governments have responsibilities in relation tothe realisation of human rights. Further, a state’sresponsibility to implement human rights involves more thanavoiding conduct that infringes the rights of persons withinits territory. States’ implementation responsibilities havethree aspects: to respect, protect and fulfill human rights.

International human rights law is often described as imposingthree levels or types of obligations: obligations to respect,protect and fulfill. This tripartite typology was introducedby Henry Shue in his book Basic Rights: Subsistence, Affluence and U.S.Foreign Policy257 and then developed by Asbjørn Eide, who acted asthe UN’s Special Rapporteur for Food during the early 1980s.

Eide described the obligations as follows:1. the obligation to ‘respect’ requires states to abstain from

violating a right; 2. the obligation to ‘protect’ requires states to prevent third

parties from violating that right; and 3. the obligation to ‘fulfill’ requires the state to take measures to

ensure that the right is enjoyed by those within the state’sjurisdiction.258

These three levels of obligation place distinct obligations onstates with respect to each human right contained in theInternational Covenant on Civil and Political Rights (‘ICCPR’)259 and theInternational Covenant on Economic Social and Cultural Rights (‘ICESCR’),260

257 Henry Shue, Basic Rights: Subsistence, Affluence and U.S. Foreign Policy (2nd ed, 1996) 52. 258 Asbjørn Eide, UN Special Rapporteur for the Right to Food, The Right to Adequate Food as a Human

Right: Final Report submitted by Asbjørn Eide, UN Doc E/CN.4/Sub.2/1987/23 (1987) –. 259 Opened for signature 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976).260 Opened for signature 16 December 1966, 999 UNTS 3 (entered into force 3 January 1976).

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and arguably to those in other human rights treaties as well.Article 28 of the ICESCR and art 50 of the ICCPR expresslyprovide that the obligations of the Covenants are binding andmust extend across all state without any limitations orexceptions. This means that all branches of government(legislative, executive and judicial) and other public orgovernmental authorities, at whatever level — national, stateor local — must act to respect, protect and fulfill humanrights.261

Today a number of UN human rights bodies have incorporated thetripartite typology into their language. For example, inrelation to the right to adequate food, the Committee onEconomic, Social and Cultural Rights (‘CESCR’), has statedthat:

و The right to adequate food, like any other human right, imposes three types or levelsof obligations on States parties: the obligations to respect to protect and to fulfill. Inturn, the obligation to fulfill incorporates both an obligation to facilitate and anobligation to provide. The obligation to respect existing access to adequate foodrequires States parties not to take any measures that result in preventing suchaccess. The obligation to protect requires measures by the State to ensure thatenterprises or individuals do not deprive individuals of their access to adequatefood. The obligation to fulfill (facilitate) means the State must pro-actively engage inactivities intended to strengthen people’s access to and utilization of resources andmeans to ensure their livelihood, including food security. Finally, where anindividual or group is unable, for reasons beyond their control, to enjoy the right toadequate food by means at their disposal, States have an obligation to fulfill(provide) that right directly …262

261 Human Rights Committee, General Comment 31: Nature of the General Legal Obligation Imposed on States Parties tothe Covenant, UN Doc CCPR/C/21/Rev.1/Add13 (2004), . See also art 27 of the Vienna Convention onthe Law of Treaties, opened for signature 23 May 1969, 1155 UNTS 331 (entered into force 27 January1980) (‘VCLT’), which provides that a state party ‘may not invoke the provisions of itsinternal law as justification for its failure to perform a treaty’.

262 CESCR, General Comment 12: The Right to Adequate Food, UN Doc E/C.12/1999/5 (1995) (citationsomitted) available at http://www.ohchr.org/english/bodies/cescr/comments.htm.

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و The Human Rights Committee, while not expressly using the language of thetripartite typology, has also remarked that states parties have more than a mereobligation to ‘respect’ the right to life guaranteed in the ICCPR:263

و The Committee considers that States have the supreme duty to prevent wars, acts ofgenocide and other acts of mass violence causing arbitrary loss of life. Theexpression ‘inherent right to life’ cannot properly be understood in a restrictivemanner, and the protection of this right requires that States adopt positivemeasures. In this connection, the Committee considers that it would be desirable forStates parties to take all possible measures to reduce infant mortality and toincrease life expectancy, especially in adopting measures to eliminate malnutritionand epidemics.

The tripartite typology is also commonly referred to by legalscholars and non-governmental organisations.264

equality as a fundamental human rightInternational law has also another, not less important,

expression of the principle of equality and non-discrimination, namely as a fundamental human right which isgiven a prominent place in a great number of human rightstreaties and documents.265 Among the best-known examples –apart from Articles 2 and 7 of the Universal Declaration ofHuman Rights266 - are Article 26 of the International Covenant

263 Human Rights Committee, General Comment 6: The right to life, available athttp://www.ohchr.org/english/bodies/hrc/comments.htm.

264 See generally Ida Elisabeth Koch, ‘Dichotomies, Trichotomies or Waves of Duties?’ (2005) 5Human Rights Law Review 81.

265 M. Chemillier-Gendreau, ‘Principe d’égalité et libertés fondamentales en droit international’, in E. Yakpo and T. Boumedra (eds.), Liber Amicorum Mohammed Bedjaoui (Deventer, Kluwer Law International 1999), 661, considers the principle of equality of all humans to be ‘au coeur du droitinternational’ and speaks of it as a ‘une valeur fondamentale du pactesocial universel en cours de construction’.

266 See, on the origins of these provisions and especially the influence of the communist countries on their drafting, J. Morsink, The Universal Declaration of Human Rights. Origins, Drafting and Intent, (Philadelphia, University of Penssylvania Press 1999), 93-96. As to their contents, see inter alia Ph. Vegleris, ‘Le principe d’égalité dans la Déclaration universelle et la

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on Civil and Political Rights267 (hereinafter ‘ICCPR’), whichprovides that ‘all persons are equal before the law and areentitled without any discrimination to the equal protection ofthe law’268 and, at the Africa level, Article 14 of the AfrikanCharter of Human and Peoples Rights (ACHPR) (BanjulCharter)269which requires that ‘the enjoyment of the rights andfreedoms set forth in this Convention shall be secured withoutdiscrimination on any ground’.270

Convention européenne des droits de l’homme’, in Miscellanea W.J. Ganshof van der Meersch (Brussels, Bruylant 1972), I, 565-588.

267 The International Covenant on Civil and Political Rights (ICCPR) is a multilateral treaty adopted by the United Nations General Assembly on December 16, 1966, and in force from March 23, 1976. It commits its partiesto respect the civil and political rights of individuals, including the right to life, freedom of religion, freedom of speech, freedom of assembly,electoral rights and rights to due process and a fair trial. As of March 2012, the Covenant had 74 signatories and 167 parties. UN Treaty Collection: International Covenant on Civil and Political Rights’. UN. 2012-03-06. Retrieved 2012-03-06.

268 See on this provision inter alia M. Bossuyt, Guide to the ‘travaux préparatoires’ of the International Covenant on Civil and Political Rights (Dordrecht, Nijhoff 1987), 479-492; C. Tomuschat, ‘Equality and Non-Discrimination under the International Covenant on Civil and Political Rights’, in I. Von Münch (ed.), Festschrift für Hans-Jürgen Schlochauer (Berlin, De Gruyter 1981),691-716; see also, on Article26 in relationship with Articles 2(1) and 3 and other provisions of theICCPR, B.G. Ramcharan, ‘Equality and Nondiscrimination’, in L. Henkin (ed.), The International Billof Rights. The Covenant on Civil and Political Rights (New York, Columbia University Press 1981),246-269.

269 An international human rights instrument that is intended to promote and protect human rights and basic freedoms in the Afrikan continent adopted June 27, 1981, OAU Doc. CAB/LEG/67/3 rev. 5, 21 I.L.M. 58 (1982), entered intoforce Oct. 21, 1986. Available at http://www1.umn.edu/humanrts/instree/z1afchar.htm retrieved on March 31, 2012

270 See inter alia M. Bossuyt, ‘Article 14’, in L.-E. Pettiti, E. Decaux and P.-H. Imbert (eds.), La Convention européenne des droits de l’homme. Commentaire article par article (Paris, Economica1999, 2nd ed.), 475-488; M. Melchior, ‘Le principe de non-discrimination dans la Conventioneuropéenne des droits de l’homme’, in Egalité et non-discrimination, 3-31. On 4 November 2000, aProtocol No 12 to theEuropean Convention on Human Rights was signed (European Treaty Series, No177),

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freedom of association Freedom of association, not to be confused with free association,

is the individual right to come together with otherindividuals and collectively express, promote, pursue anddefend common interests. 271 The right to freedom of associationhas been included in a number of national constitutions andhuman rights instruments, including the United States Bill ofRights, European Convention on Human Rights and the AfrikanCharter on Human and Poeples Rights (Banjul Charter). Freedomof association in the sense of workers' right to organize isalso recognized in the Universal Declaration of Human Rightsand International Labor Organization Conventions, and thelatter also protects collective bargaining in the conventionson freedom of association. The right to freedom of associationis sometimes used interchangeably with the freedom ofassembly. More specifically the freedom of assembly isunderstood in a political context, although depending on thesource (constitution, human rights instrument, etc.) the rightto freedom of association may be understood to include theright to freedom of assembly.

academic freedomThe right, without outside interference or censorship, of freedom

of teaching, discussions, research, the expression of academicopinion, and to participate in professional or representativeacademic bodies.

which proclaims a general prohibition of discrimination (Article 1). It maybe noted that the thirdrecital of the Protocol’s preamble reaffirms ‘that the principle of non-discrimination does not preventStates Parties from taking measures in order to promote full and effective equality, provided that thereis an objective and reasonable justification for those measures’.See, with reference to otherinternational human rights treaty texts in which this principle already appears, the Explanatory Reportto the Protocol, para. 16.

271 Aleksandar Pavkovic and Peter Radan, In Pursuit of Sovereignty and Self-determination: Peoples, States and Secession in the International Order, Index of papers, Macquerie University Law Journal, 1, 2003.

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freedom of associationFreedom of association is the individual right to come together

with other individuals and collectively express, promote,pursue and defend common interests.272 The right to freedom ofassociation has been included in a number of nationalconstitutions and human rights instruments, including theUnited States Bill of Rights, European Convention on HumanRights and the Canadian Charter of Rights and Freedoms.Freedom of association in the sense of workers' right toorganize is also recognized in the Universal Declaration ofHuman Rights and International Labor Organization Conventions,and the latter also protects collective bargaining in theconventions on freedom of association. The right to freedom ofassociation is sometimes used interchangeably with the freedomof assembly. More specifically the freedom of assembly isunderstood in a political context, although depending on thesource (constitution, human rights instrument, etc.) the rightto freedom of association may be understood to include theright to freedom of assembly.

intimate associationA fundamental element of personal liberty is the right to choose

to enter into and maintain certain intimate humanrelationships. These intimate human relationships areconsidered forms of ‘intimate association.’ The paradigmaticexample of ‘intimate association’ is the family. Depending onthe jurisdiction it may also extend to abortion, birth controland private, adult, non-commercial and consensual sexualrelationships.

expressive associationExpressive associations are groups that engage in activities

protected by the First Amendment—speech, assembly, press,272 Article 19 of the International Covenant on Civil and Political Rights,

Office of the United Nations High Commissioner for Human Rights, adopted and opened for signature, ratification and accession by UN General Assemblyresolution 2200A (XXI) of 16 December 1966, entry into force 23 March 1976

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petitioning government for a redress of grievances, and thefree exercise of religion. In Roberts v. United StatesJaycees, the Supreme Court held that associations may notexclude people for reasons unrelated to the group'sexpression. However, in the subsequent decisions of Hurley v.Irish-American Gay, Lesbian, and Bisexual Group of Boston, theCourt ruled that a group may exclude people from membership iftheir presence would affect the group's ability to advocate aparticular point of view. The government cannot, through theuse of anti-discrimination laws, force groups to include amessage that they do not wish to convey.

real risk’ testThe real risk test requires that a complainant prove that the act or

words created a real risk of prejudicing the administration ofjustice.273 The main reason for the adoption of the moreliberal real risk test in these jurisdictions is the need toprotect the right to freedom of speech and expression, as thebroader test of inherent tendency is seen to inhibit the rightto an unjustifiable degree.274

inherent tendency’ testDespite the practice in other jurisdictions, in Singapore an

‘inherent tendency’ test has been held to strike the rightbalance between the right to freedom of speech and expression,and the need to protect the dignity and integrity of thecourts. To establish the offence, it is sufficient if theclaimant can prove beyond reasonable doubt that the act orwords complained of have an inherent tendency to interferewith the administration of justice.275 An act or statement hassuch an inherent tendency if it conveys to an average

273 Tan Liang Joo John, p. 1138, para. 12. See also Ahnee, p. 306: ‘There must be a real risk of undermining public confidence in the administration of justice.’

274 Hertzberg, p. 1125, para. 32.275 Wain, p. 101, para. 54; Chee Soon Juan, p. 661, para. 31; Hertzberg, pp. 1125–

1126, para. 34.

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reasonable reader or viewer allegations of bias, lack ofimpartiality, impropriety or any wrongdoing concerning a judge(and a fortiori, a court) in the exercise of his judicialfunction.276 Thus, it is scandalizing the court to allege thatit can be swayed by external pressures and made servile toothers.277

The inherent tendency test does not call for detailed proof ofwhat in many instances will be unprovable, namely, that publicconfidence in the administration of justice was reallyimpaired by the relevant publication. In addition, the testenables the court to step in before the damage – theimpairment of public confidence in the administration ofjustice – actually occurs.278

unacceptable risk testIn deciding what is in the best interests of a child, the Court

is frequently called upon to assess and evaluate thelikelihood or possibility of events or occurrences which, ifthey come about, will have a detrimental impact on the child’swelfare. In devising these tests the courts have endeavoured,in their efforts to protect the child’s paramount interests,to achieve a balance between the risk of detriment to thechild from abuse and the possibility of benefit to the childfrom parental access. To achieve a proper balance, the test isbest expressed by saying that a court will not grant custodyor access to a parent if that custody or access would exposethe child to an unacceptable risk of abuse.

The test principles are279:

276 Hertzberg, pp. 1124–1125, para. 31.277 Gallagher v. Durack (1983) 45 A.L.R. 53 at paras. 55–56, High Court

(Australia),Attorney-General v. Zimmerman [85–198] S.L.R.(R.) 476 at 479, para. 9, H.C.;Attorney-General v. Lingle [9] 1 S.L.R.(R.) 199 at 202–203, paras. 3–8, H.C., cite inHertzberg, p. 1128, para. 43.

278 Hertzberg, p. 1125, para. 33.279 The Hon Chief Justice Alastair Nicholson, ‘Child sexual abuse - problems

in family law’ (1989) 4 Australian Family Lawyer, 1-5, at p 3.

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http://en.wikipedia.org/wiki/Australian_Law_Reports


a) It is [not] necessary to make a positive finding of child abuse and the Court shouldavoid doing so except in the most obvious cases.280

b) If such a finding is made, the standard of proof to be apply is that provided inBriginshaw v Briginshaw281.

c) In resolving the issue as to what form of order is in the best interests of the child, thecourt must determine whether on the evidence there is a risk of abuse occuring ifcustody or access be granted and assessing the magnitude of that risk.

d) If the risk is assessed to be unacceptable, then custody or access should not begranted.

freedom of expression or freedom of speechFreedom of speech is the political right to communicate one's

opinions and ideas via speech. The term freedom of expressionis sometimes used synonymously, but includes any act ofseeking, receiving and imparting information or ideas,regardless of the medium used. In practice, the right tofreedom of speech is not absolute in any country and the rightis commonly subject to limitations, as with libel, slander,obscenity and incitement to commit a crime. The right tofreedom of expression is recognized as a human right underArticle 19 of the Universal Declaration of Human Rights andrecognized in international human rights law in theInternational Covenant on Civil and Political Rights (ICCPR).Article 19 of the ICCPR states that ‘[e]veryone shall have theright to hold opinions without interference’ and ‘everyoneshall have the right to freedom of expression; this rightshall include freedom to seek, receive and impart informationand ideas of all kinds, regardless of frontiers, eitherorally, in writing or in print, in the form of art, or throughany other media of his choice’. Article 19 goes on to say thatthe exercise of these rights carries ‘special duties andresponsibilities’ and may ‘therefore be subject to certainrestrictions’ when necessary ‘[f]or respect of the rights or

280 (1938) 60 CLR 336.281 (1938) 60 CLR 336

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reputation of others’ or ‘[f]or the protection of nationalsecurity or of public order (order public), or of publichealth or morals’.282

freedom of informationFreedom of information is an extension of freedom of speech where

the medium of expression is the Internet. Freedom ofinformation may also refer to the right to privacy in thecontext of the Internet and information technology. As withthe right to freedom of expression, the right to privacy is arecognised human right and freedom of information acts as anextension to this right.283 Freedom of information may alsoconcern censorship in an information technology context, i.e.the ability to access Web content, without censorship orrestrictions.284

right to work The right to work is the concept that people have a human right

to work, or engage in productive employment, and may not beprevented from doing so. The right to work is enshrined in theUniversal Declaration of Human Rights and recognized ininternational human rights law through its inclusion in theInternational Covenant on Economic, Social and CulturalRights, where the right to work emphasizes economic, socialand cultural development.

right to self-determination The right of nations to self-determination, or in short form, the

right to self-determination is the cardinal principle inmodern international law principles of international law (juscogens), binding, as such, on the United Nations as

282 Article 19 of the International Covenant on Civil and Political Rights, Office of the United Nations High Commissioner for Human Rights, adopted and opened for signature, ratification and accession by UN General Assemblyresolution 2200A (XXI) of 16 December 1966, entry into force 23 March 1976.

283 Protecting Free Expression Online with Freenet – Internet Computing, IEEE284 Pauli, Darren (January 14, 2008). Industry rejects Australian gov't

sanitized Internet measure. The Industry Standard.

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authoritative interpretation of the Charter’s norms. 285 Itstates that nations based on respect for the principle ofequal rights and fair equality of opportunity have the rightto freely choose their sovereignty and international politicalstatus with no external compulsion or interference286.

"National aspirations must be respected; people may now be dominated andgoverned only by their own consent. Self determination is not a mere phrase; it is animperative principle of action. . . . "

—Woodrow Wilson with his famous self-determination speech on11 February 1918 after he announced his Fourteen Points on 8January 1918.

By extension the term self-determination has come to mean thefree choice of one's own acts without external compulsion. 287

Karl Marx supported such nationalism, believing it might be a"prior condition" to social reform and internationalalliances. 288 In 1914 Vladimir Lenin wrote:

"It would be wrong to interpret the right to self-determination as meaning anything butthe right to existence as a separate state." 289

Thomas Jefferson further promoted the notion that the will of thepeople was supreme, especially through authorship of theUnited States Declaration of Independence which inspiredEuropeans throughout the 19th century. 290 John Locke arguedthat this right to national and democratic self-determination

285 See: United Nations General Assembly Resolution 1514 in Wikisource states; see also McWhinney, Edward (2007). Self-Determination of Peoples and Plural-Ethnic States in Contemporary International Law: Failed States, Nation-Building and the Alternative, Federal Option. Martinus Nijhoff Publishers. p. 8. ISBN 9004158359.

286 See: Chapter I - Purposes and Principles of Charter of the United Nations287 Jackson J. Spielvogel, Western Civilization: Since 1500 , p. 767, Cengage

Learning, 2008, ISBN 0-495-50287-1, ISBN 978-0-495-50287-6.288 Erica Benner, ‘’Really existing nationalisms: a post-communist view from

Marx and Engels’‘, p. 188, Oxford University Press, 1995 ISBN 0-19-827959-0, ISBN 978-0-19-827959-4

289 "What Is Meant By The Self-Determination of Nations?". Marxists.org. Retrieved 2012-03-04.

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was an explicit invocation of natural law, the natural rightsof man, as well as the consent of, and sovereignty by, thepeople governed. 291

National self-determination appears to challenge the principle ofterritorial integrity (or sovereignty) of states as it is thewill of the people that makes a state legitimate. This impliesa people should be free to choose their own state and itsterritorial boundaries.

Pavkovic and Radan describe three theories of internationalrelations relevant to self-determination.

The realist theory of international relations insists that territorial sovereignty ismore important than national self-determination. This policy was pursued by themajor powers during the Cold War.

Liberal internationalism has become an alternative since that time. It promotes theabolition of war among states as well as increased individual liberty within states,and holds the expansion of global markets and cross-border cooperation diminishesthe significance of territorial integrity, allowing for somewhat greater recognition ofgreater self-determination of peoples.

Cosmopolitan liberalism calls for political power to shift to a world governmentwhich would make secession and change of boundaries a relatively easyadministrative matter. However, also would mean the de facto end of self-determination of national groups. 292

free association Free association (also called free association of producers or,

as Marx often called it, a community of freely associatedindividuals) is a relationship among individuals where thereis no state, social class or authority and private property of

290 Betty Miller Unterberger, Self-Determination, Encyclopedia of American Foreign Policy, 2002.

291 See generally Antonio Cassese, Self-Determination of Peoples: A Legal Reappraisal (Hersch Lauterpacht Memorial Lectures), Cambridge University Press, 1999. See also Locke, John. Treatise of Government.

292 Lambert, Frank (2003). The founding fathers and the place of religion in America. Princeton University Press. p. 288. ISBN 978-0-691-08829-7.

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means of production. Once private property is abolished,individuals are no longer deprived of access to means ofproduction enabling them to freely associate (without socialconstraint) to produce and reproduce their own conditions ofexistence and fulfill their individual and creative needs anddesires. The term is used by anarchists and Marxists and isoften one considered a defining feature of a fully developedcommunist society.

The concept of free association, however, becomes more cleararound the concept of the proletariat. The proletarian issomeone who has no property nor any means of production and,therefore, to survive, sells the only thing that he has, hisabilities (the labour power), to those owning the means ofproduction. The existence of individuals deprived of property,deprived of livelihood, allows owners (or capitalists) to findin the market an object of consumption that thinks and acts(human abilities), which they use in order to accumulateincreasingly capital in exchange for the wage that maintainsthe survival of the proletarians. The relationship betweenproletarians and owners of the means of production is therebya forced association in which the proletarian is only free tosell his labor power, in order to survive. By selling hisproductive capacity in exchange for the wage which ensuressurvival, the proletarian puts his practical activity underthe will of the buyer (the owner), becoming alienated fromhis/her own actions and products, in a relationship ofdomination and exploitation. Free association would be theform of society created if private property was abolished inorder to allow individuals to freely dispose of the means ofproduction, which would bring about an end to class society,i.e. there would be no more owners neither proletarians, norstate, but only freely associated individuals.

The abolition of private property by a free association ofproducers is the original goal of the communists andanarchists: it is identified with anarchy and Communismitself. However, the evolution of various trends have led some

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to virtually abandon the goal or to put it in the backgroundin face of other tasks, while others trends consider freeassociation as something that should guide the all practicalactivity of the contestation of the status quo.

self determination Other categories of wars of national liberation based on the

principle of self-determination could also be considered to becovered by this provision.293 The UN Charter and theDeclaration on Friendly Relations are very clear upon theright to self-determination, granting it to all people equallyand in every respect. This means that wars of nationalliberation or in other words struggles for self-determinationcannot be limited to the cases listed in Article 1 (4).However, at the same time, and in order to limit the use offorce, ICRC comments on this provision, arguing that it shouldbe regarded as an exhaustive and complete list of thesituations in which a people, in order to exercise its rightof self-determination, must resort to the use of force againstanother people, or a racist regime.294

right to developmentThe freedoms and entitlements of the populace in the process of

development are captured clearly in the 1986 Seoul Declarationon the Right to Development,295 which stated unequivocally thatthe right to development is a human right; and the Second UNWorld Conference on Human Rights in Vienna, 1993. It is alsoimportant to note that the concept of human development as ahuman right is supported by “social contract” philosophicalpronouncements of natural rights theorists, Hobbes296; Locke297

293 Ibid. See CDDH /I/ SR. 22 (14)294 Sandoz, Swinarski & Zimmerman 1987, pp. 54-55295 The Declaration on the Right to Development was adopted by the United

Nations General Assembly, resolution 4/128 on December 4, 1986 (http://www.unhchr.ch/html/menu3/b/74.htm). The Universal Declaration of Human Rights was adopted by UN General Assembly Resolution 217 (A) II on December 10, 1948.

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and Rousseau298, but were best exemplified by Locke’s claimduring the English Revolution of 1688 that ‘…certain rights like theright to life, liberty, and property belonged to individuals as human beings becausethey existed in the state of nature before human beings entered civil society.’

Professor Dudley Seers 299 argues that development is aboutoutcomes, that is, development occurs with the reduction andelimination of poverty, inequality, and unemployment within agrowing economy. As per the doctrine of participation,development is both a process and a result, hence outcome.

right to participation in development Participation is a human rights principle, and as such, it is not

a gift or privilege bestowed by government.300 In other words,it is a right for all citizens – especially the mostmarginalized and vulnerable in society. “there is nothing morebasic to the development process than participation,”301

“Effective participation” is that which helps ensureefficiency and economic growth on the one hand, and equity andsocial justice on the other.302

Article 12 of the UN Convention on the Rights of the Child303 laysdown the principle and purpose of meaningful participation ofchildren and young people, and Article 7 of CEDAW on women’srights.

296 Hobbes, Thomas. Leviathan: Or the Matter, Forme, and Power of a Common-WealthEcclesiasticall and Civill, ed. by Ian Shapiro (Yale University Press; 2010).

297 John Locke, (1664) Questions Concerning the Law of Nature, edited. Ithaca: CornellUniversity Press, 1990.

298 Rousseau (1712-1778), 'The Social Contract' and Other Later Political Writings, trans. Victor Gourevitch. Cambridge: Cambridge University Press, 1997.

299 Dudley Seers, (1971) Development in a Devided World” Oxford Univeristy Press

300 See UDHR, Art 1.301 J. Brian Atwood, U.S. Agency for Int’l Dev., Statement of Principles on

Participatory Development (1993), http://pdf.usaid.gov/pdf_docs/PNACF577.pdf.302 id303 Adopted and opened for signature, ratification and accession by General Assembly resolution 44/25

of 20 November 1989

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The Millennium Declaration304 in Article 25 reaffirms thecommitment to work collectively for more inclusive politicalprocesses, allowing genuine participation by all citizens (andin this case, children and young people included) in allcountries.

The World Fit for Children in para 32 (i) adopted at the UNGeneral Assembly Special Session on Children made a strongcommitment towards increasing participation of children.

As noted above, participation is a non-negotiable right. Citizenswhose rights are not realized have claims (as “claim-holders”)against those whose responsibility it is to act on it (asduty-bearers”) – viz, communities, civil society organizations,governments, etc.

A human rights approach to participation implies five key rolesfor citizens:

a) identifying unfulfilled rights and acting on them

b) claiming of rights

c) identifying capacity gaps in rights not realized and duties not performed

d) participating in the implementation of solutions

e) involving in monitoring, evaluating and reporting

Participation is also important for guaranteeing developmentalprogrammes – a principle that has been adopted as a “commonunderstanding” within the UN system.

Participation is fundamental to human-rights based approach toprogramming and it is laid down as one of the five basicelements of the Human Rights Based Approach, HRBA (othersinclude: express linkage to rights, accountability, equalityand non-discrimination, and empowerment).

304 UNGA R 55/2

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In the Common Understanding Document305 it is stated that “developmentcooperation contributes to the development of the capacities of 'duty bearers’ tomeet their obligations and/or of ‘right holders’ to claim their rights”.

Capacities for human rights promotion and protection can be onlyacquired by rights-holders through the process of their activeparticipation in all parts of development programming.Participation is central to the developmental approach as thedevelopment is “a process of expanding the real freedoms thatpeople enjoy”. The goal of development is to be free and beable to choose and live the sort of life one wants to live. Acommunity can be considered developed to the extent that itensures that its entire people are in a position toparticipate and shape a life of dignity.

Participation is also important for personal development. It isonly through participation that humans develop self-confidenceand skills, build competencies, form aspirations, gainconfidence and attain valuable resources. Learning - throughexperience – to make informed decisions, to develop stablerelationships and to take on the responsibilities ofdemocratic citizenship, is an important component ofparticipation.

Participation is an essential component of successful and lastingdevelopment. Therefore, the right to development is fulfilledthrough popular participation as echoed in the ArushaDeclaration:

In our view, popular participation is both a means and an end. As an instrument ofdevelopment, popular participation provides the driving force for collectivecommitment for the determination of people-based development processes andwillingness by the people to undertake sacrifices and expand their social energiesfor its execution. As an end in itself, popular participation is the fundamental rightof the people to fully participate effectively in the determination of the decisionwhich affect their lives at all levels and at all times.306

305 Developed at the Inter-Agency Workshop on a human rights-based approach inthe context of UN reform, 3 to 5 May 2003

306 http://www.crvp.org/book/Series02/II-8/chapter_ix.htm#_edn

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The Organization of Afrikan Unity (O.A.U) is determined topromote and protect human and peoples’ rights especially theright of people to freely participate, by its affirmation inthe Afrikan Charter on Human and Peoples’ Rights that: “Everycitizen has the right to participate freely in the government of his or her country,either directly or through freely chosen representatives in accordance with theprovision of the law (Article 13.1).”

Further, the role of public participation in economic and humandevelopment was enshrined in the 1990 Afrikan Charter for PopularParticipation in Development and Transformation. 307 This is a landmarkdocument in promoting right to participatory development.

Here every Afrikan country is supposed to enact relevant laws inthis respect. Member states of the O. A. U are bound toaffirm the right to development and encourage the right toparticipation in their different countries. Popularparticipation, however, depends on the nature of the state andthe ability of government to respond to popular demands. Thisis possible where the government allows the people freedom indecision making.

development as a human rightThe conception of right is of fundamental import in law because

of the enforceability of particular rights. Human rights areclassified into three categories as per the trio-classification of rights by Vasak.308 The first generationrights relate to the civil and political rights, guaranteed bythe ICCPR; the second generations of rights relate to thesocial, economic and cultural rights, guaranteed by theICESCR; and the third category of rights involves thecollective rights and includes inter alia the right todevelopment and the right to a healthy living and environment.

307 Adopted in February 1990 at the "International Conference on Popular Participation in theRecovery and Development Process in Africa", Arusha, Tanzania, and available athttp://apic.igc.org/afrikan-initiatives/chartall.htm accessed on June 11, 2011

308 Vasak Karel, a 30 years struggle, UNESCO Corner (1977) p. 96

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The modern poverty reduction and development programmes oftenhave dignity as a central theme. Dignity is also a centraltheme of the Universal Declaration of Human Rights, the veryfirst article of which states that:

"All human beings are born free and equal in dignity and rights.”309

The concept of dignity in development has been extensivelyexplored by many, and related to all of the developmentsectors. For example, in Development with Dignity310 Amit Bhaduriargues that full employment with dignity for all is bothimportant and possible in India, while the UN MillenniumProject's task force on Water and Sanitation links the sectordirectly to dignity in the report Health, Dignity and Development:What will it take?311.

The Asian Human Rights Commission released a statement claimingthat "Human dignity is the true measure of humandevelopment."312

The UN Charter states in its preamble that: “...mankind thirsts for peace and development and it is in the interests of mankind that

international law directs the actions of states by imposing on them the duty tocooperate...”

The Universal Declaration reflected the immediate post-warconsensus about human rights based on what President Rooseveltdescribed as four freedoms—including the freedom from want—which he wanted to be incorporated in an International Bill ofRights. There was no ambiguity at that time about politicaland economic rights being interrelated and interdependentcomponents of human rights, and no disagreement that “true

309 Article 1 UDHR310 Amit Bhaduri, (2005) Development with Dignity HB, Print Price: 200.00.

Author: ISBN: 81-237-4597-4. Publication: 30-11-2005 311 Goal 1 of the United Nation Millennium Development Goals312 Communiqué issue on on July 27, 2006

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individual freedom cannot exist without economic security andindependence.”313

Mrs. Eleanor Roosevelt, who was the head of the U.S. delegationduring the drafting of the Universal Declaration, firstidentified and advocated for the right to development when shestated, “[W]e are writing a bill of rights for the world,and . . . one of the most important rights is the opportunityfor development.”314

The 1986 Seoul Declaration on the Right to Development,315 whichstated unequivocally that the right to development is a humanright. This declaration sees development as a constanteconomic, political and social process which aims toconstantly improve the wellbeing of the entire population ofindividuals by their active participation in the developmentalprocess and in the distribution of the benefits therefrom. Thefirst article of the text of the Declaration on the Right toDevelopment succinctly puts forward the concept of the rightto development. It states:

“The right to development is an inalienable human right by virtue of which everyhuman person and all peoples are entitled to participate in and contribute to andenjoy economic, social, cultural, and political development in which all human rightsand fundamental freedoms can be fully realized.”

The right to development is a hence human right, by virtue ofwhich “every human person and all peoples are entitled toparticipate in, contribute to and enjoy” that processes ofdevelopment. Further, the legal justification of the right to

313 State of the Union Message to Congress by President Roosevelt, January 11, 1944.

314 M. Glen Johnson, “The Contributions of Eleanor and Franklin Roosevelt to the Development of International Protection for Human Rights,” Human Rights Quarterly 9.1 (1987): 19–48.

315 The Declaration on the Right to Development was adopted by the United Nations General Assembly, resolution 4/128 on December 4, 1986 (http://www.unhchr.ch/html/menu3/b/74.htm). The Universal Declaration of Human Rights was adopted by UN General Assembly Resolution 217 (A) II on December 10, 1948.

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development is found in article 2(2) of the UN Charter whichaffirms that:

“...all human beings have a responsibility for development, individually and collectivelytaking into a count...their duty to their community...”

Also, Article 1 of the UNGA Resolution 41/128 of 1986 reaffirmsthat right in clear and categorized terms stating that:

“...the right to development is an inalienable right by virtue of which every humanbeing and all persons are entitled to participate in and enjoy social, economic andpolitical development...”

The process of development, “in which all human rights andfundamental freedoms can be fully realized,” would lead to,according to Article 2(3) “the constant improvement of thewell-being of the entire population and of all individuals, onthe basis of their active free and meaningful participation in developmentand in the fair distribution of benefits resulting therefrom [emphasisadded].” Article 8 elaborates this point further by statingthat the measures for realizing the right to development shallensure “equality of opportunity for all” in their access tobasic resources, education, health services, food, housing,employment and in the fair distribution of income.

The realization of the right would also require that “appropriateeconomic and social reforms should be carried out with a viewto eradicating all social injustices.”

The primary responsibility for the creation of national andinternational conditions favorable to the realization of theright to development” is of the states, as Article 3categorically suggests. This responsibility is complementaryto the individual’s responsibility as mentioned above, and isonly for the creation of conditions for realizing the rightand not for actually realizing the right itself. Only theindividuals themselves can realize the right.

In regards to the obligation of the states operating at theinternational level, the Declaration emphasizes the crucialimportance of international cooperation. First, the states

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have a duty “to cooperate with each other in ensuringdevelopment and diminishing obstacles to development . . . andfulfill these duties in such a manner as to promote a newinternational economic order based on sovereign equality,interdependence, [and] mutual interest . . .” (Article 3,Clause 3). This has been further reiterated in Article 6,which states that “all states should cooperate with a view topromoting, encouraging and strengthening universal respect forand observance of all human rights and fundamental freedoms.”

The Declaration on the Right to Development316 consists of the followingfour main propositions:

i. The right to development is a human right;

ii. The human right to development is a right to a particular process of development inwhich all human rights and fundamental freedoms can be fully realized—whichmeans that it combines all the rights enshrined in both the covenants and each ofthe rights has to be exercised with freedom;

iii. The meaning of exercising these rights consistently with freedom implies free,effective, and full participation of all the individuals concerned in the decisionmaking and the implementation of the process. Therefore, the process must betransparent and accountable, individuals must have equal opportunity of access tothe resources for development and receive fair distribution of the benefits ofdevelopment (and income); and

iv. Finally, the right confers unequivocal obligation on duty-holders: individuals in thecommunity, states at the national level, and states at the international level.National states have the responsibility to help realize the process of developmentthrough appropriate development policies. Other states and international agencieshave the obligation to cooperate with the national states to facilitate the realizationof the process of development.

The International Covenant on Economic, Social and CulturalRights (ICESCR)317, in article 1 recognizes the right of allpeoples to self-determination, including the right to "freely

316 Id 317 Adopted by the United Nations General Assembly on December 16, 1966, and in force from

January 3, 1976.

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determine their political status"318, right participateeffectively in society (Articles 13 and 14); and right toparticipation in cultural life (Article 15)

The Universal Declaration of Human Rights, 319UDHR guarantees theright to participate in cultural life and to enjoy thebenefits of social progress in article 27. Article 21 outlinesthe right to participate in government and in free elections.

Participation, and particularly and explicitly participation ofthe poorest and most vulnerable participants is a human rightand an inherent and indivisible component of pro-poordevelopment strategies and empowerment. Long (1999) arguesthat participation in development leads to the involvement ofthe primary stakeholders in the development process. Suchinvolvement, the author posits, enhances ownership, andsustainability of the development programs.

The 'UN System Network on Rural Development and Food Security'320 describesparticipation as one of the ends as well as one of the means of development.Participation is hence useful in all the stages of developmentprogram, right from conceptualization, planning,implementation, monitoring and evaluation.

Article 1 of the Convention on Access to Information, Public Participation inDecision-Making and Access to Justice in Environmental Matters321 states that,

“In order to contribute to the protection of the right of every person of present andfuture generations to live in an environment adequate to his or her health and well-being, each Party shall guarantee the rights of access to information, publicparticipation in decision-making, and access to justice in environmental matters inaccordance with the provisions of this Convention.”

Further, Article 3 of the same convention provides that,“Such participation shall lead to mobilization of the community and their

transformation into prefects of their development."

318 ICESCR, Article 1.2319 Adopted in 1948320 Available at www.rdfs.net/ accessed on June 14th 2011 321 Adopted At Aarhus, Denmark, on 25 June 1998

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In Africa, the Afrikan countries have made major strides indemocratizing governance since the 1990 Arusha Conference,which produced the Afrikan Charter for Popular Participation in Developmentand Transformation322. The Arusha document was a milestone as itidentified the lack of popular participation in development ascentral to the dismal state of Afrikan economies and cause ofpolitical instability and social calamity. Popularparticipation is both a means and an end. Popularparticipation is recognized in the document as a fundamentalright of the people to fully and effectively participate inthe determination of the decisions which affect their lives atall levels and at all times.

Further, Afrikan [Banjul] Charter on Human and Peoples' Rights 323

ACHPR in article 13(1) provides that every citizen shall havethe right to participate freely in the government of hiscountry, either directly or through freely chosenrepresentatives in accordance with the provisions of the law.

A critical analysis of the above international human rightsdocuments exposes 5 (five) core principles for effectivecitizens’ participation, namely, mass literacy;democratization; freedom of association, politicalaccountability of leadership; and decentralization ofdecision-making processes and institutions.

human rights approach to developmentIf development depends upon policy and not just in the

spontaneous play of market forces, then any approach thatfacilitates, if not ensures, more than another theformulation, adoption, and implementation of appropriatepolicies to realize the objectives of development would beregarded as superior. When development is seen as a humanright, it obligates the authorities, both nationally and

322 adopted in February 1990 at the "International Conference on Popular Participation in theRecovery and Development Process in Africa", Arusha, Tanzania

323 Adopted June 27, 1981, OAU Doc. CAB/LEG/67/3 rev. 5, 21 I.L.M. 58 (1982), entered into force Oct. 21, 1986

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internationally, to fulfill their duties in delivering (or, inhuman rights language, promoting, securing, and protecting)that right in a country. The adoption of appropriate policiesfollows from that obligation.

The fundamental problem with according the right to participatorydevelopment status as a customary international law, however,is that there are too many unknowns with respect to whatconstitutes this purported right.324 Further, there is nogenerally agreed upon definition of the right.325 ArjunSengupta goes so far as to state that “the right todevelopment . . . involves the realization of all the civil,political, economic, social, and cultural rights.”326 TheICESCR speaks of signatories taking affirmative steps torealize economic, social, and cultural rights, but does notfurther break down the content of these steps.327 The 1986Declaration similarly contains a discussion of participatorydevelopment which is “internally contradictory, duplicative ofother already clearly codified rights, and devoid ofidentifiable parties bearing clear obligations.”

As Arjun Sengupta, one of the foremost proponents of the right todevelopment, acknowledges, “the primary responsibility forimplementing the right to development will belong tostates.”328 There is little evidence to indicate, though, thatstates accept participatory development as obligatory as amatter of international law.

born alive rule The "born alive" rule is a common law legal principle that holds

that various criminal laws, such as homicide and assault,apply only to a child that is "born alive". Some courts haveoverturned this rule, citing recent advances in science and

324 Id. at 1.325 See generally Michael M. Cernea ed., 1985 Putting People First: Sociological

Variables In Rural Development.326 Sengupta, supra note 46, at 857327 See ICESCR, supra note 48, arts. 2, 3.328 Sengupta, supra note 46, at 855.

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medicine; and in several states, feticide statutes have beenexplicitly framed or amended to include fetuses in utero.Abortion, that is, “the deliberate termination of a human pregnancy” isstill governed by the born alive rule, as courts continue tohold to its foundational principles in various judisdictions.In 1996 the Law Lords confirmed the rule applied in Englishlaw but that alternative charges existed in lieu, such as acharge of unlawful or negligent manslaughter instead ofmurder.329 The born alive rule was originally a principle atcommon law in England that was carried to the United Statesand other former colonies of the British Empire. Firstformulated by William Staunford, it was later set down byEdward Coke in his Institutes of the Laws of England. Cokesays:

"If a woman be quick with childe, and by a potion or otherwise killeth it in her wombe,or if a man beat her, whereby the child dyeth in her body, and she is delivered of adead childe, this is great misprision, and no murder; but if he childe be born aliveand dyeth of the potion, battery, or other cause, this is murder; for in law it isaccounted a reasonable creature, in rerum natura, when it is born alive.330

equality and self-determination of peoplesThe content of this principle, first disclosed in the Declaration

of 1970: ‘Creating an independent state, free association with an independentstate or unification with him, or any other political status freely determined by apeople constitute modes of implementing these people’s right to self-determination.’Initially, this principle was conceived in close connectionwith the broader processes of decolonization in the secondhalf of this Century. Thus, this principle should beunderstood as a very subtle relationship demands self-determination and integrity that is achieved only in a stablesociety. However, as the imperative are two requirements forthe already established states:

329 Attorney General's Reference No 3 of 1994 Attorney General's Reference No 3 of 1994 [9] UKHL 31, [9] 1 Cr AppRep 91, [9] 3 All ER 936, [9] 3 WLR 421, [9] Crim LR 829, [9] AC 245 (24 July 1997), House ofLords

330 Cited in “The New “Fetal Protection”: The Wrong Answer to the Crisis of Inadequate HealthCare for Women and Children”, Linda Fentiman, 2006, note 119.

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1) State has the duty to refrain from any forcible action which deprives peoples of theirright to self-determination;

2) State has the duty to refrain from any action aimed at the partial or total disruptionof territorial integrity and unity of any state.

full belly thesis It conforms to the rationale that, ‘"Principles have no real force except

when one is well-fed." Which has been stated by the Chinese that, ‘donot teach a man morals until you fill his empty stomach, and clothe his bare back.’

universality and inalienability: Human rights are universal and inalienable. All people everywhere in the

world are entitled to them. The universality of human rightsis encompassed in the words of Article 1 of the UniversalDeclaration of Human Rights: ‘All human beings are born free andequal in dignity and rights.’

Indivisibility: Human rights are indivisible. Whether they relate to civil,

cultural, economic, political or social issues, human rightsare inherent to the dignity of every human person.Consequently, all human rights have equal status, and cannotbe positioned in a hierarchical order. Denial of one rightinvariably impedes enjoyment of other rights. Thus, the rightof everyone to an adequate standard of living cannot becompromised at the expense of other rights, such as the rightto health or the right to education.

Interdependence and Interrelatedness:

Human rights are interdependent and interrelated. Each one contributesto the realization of a person’s human dignity through thesatisfaction of his or her developmental, physical,psychological and spiritual needs. The fulfilment of one rightoften depends, wholly or in part, upon the fulfilment ofothers. For instance, fulfilment of the right to health maydepend, in certain circumstances, on fulfilment of the rightto development, to education or to information.

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Equality and Non-discrimination:

All individuals are equal as human beings and by virtue of theinherent dignity of each human person. No one, therefore,should suffer discrimination on the basis of race, colour,ethnicity, gender, age, language, sexual orientation,religion, political or other opinion, national, social orgeographical origin, disability, property, birth or otherstatus as established by human rights standards.

non-discrimination (human rights)All human rights instruments prohibit any discrimination—

distinction, exclusion, restriction or preference—in theprovision, protection and promotion of rights. In other words,everyone has the human rights in these treaties, irrespectiveof their race, sex, religion, national origin or any othertrait. The Race Convention wholly prohibits discriminationbased on race, national origin or ethnicity and outlines stepsthat governments must take to end it. The Women’s Conventionlikewise calls for an end to discrimination, based on sex, andoutlines specific areas of life in which women must be treatedequally in order to eliminate discrimination;

principle of participation and inclusion

All people have the right to participate in and accessinformation relating to the decision-making processes thataffect their lives and well-being. Rights-based approachesrequire a high degree of participation by communities, civilsociety, minorities, women, young people, indigenous peoplesand other identified groups.

principle of accountability and rule of law

States and other duty-bearers are answerable for the observanceof human rights. In this regard, they have to comply with thelegal norms and standards enshrined in international humanrights instruments. Where they fail to do so, aggrievedrights-holders are entitled to institute proceedings forappropriate redress before a competent court or other

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adjudicator in accordance with the rules and proceduresprovided by law. Individuals, the media, civil society and theinternational community play important roles in holdinggovernments accountable for their obligation to uphold humanrights.

state’s duty to protect human rightsIt is settled that human rights generate three levels of duty for

the state: to respect, protect and fulfil human rights.331 The relevant dutyfor our purposes is the duty to protect. This duty enjoins thestate to take positive action to protect citizens and otherpeople within its jurisdiction from violations that may beperpetrated by private actors or other states.

A survey of international and regional human rights instruments,declarations and resolutions assists in defining the natureand scope of this duty. Article 2 of the International Covenant onCivil and Political Rights332 enjoins States Parties ‘to respect and to ensureto all individuals within its territory and subject to its jurisdiction the rightsrecognized in the Covenant’. The duty to ‘ensure’ suggests that stateshave the obligation to take positive steps to guarantee theenjoyment of human rights. The provisions of the ICCPR suggestthat this duty has two limbs.

1. The first is the duty to take preventive measures against occurrences of violations ofhuman rights by private actors.

2. The second is the duty to take remedial measures once the violations haveoccurred.333

331 Asbjørn Eide, ‘Economic, Social and Cultural Rights as Human Rights’ in Asbjørn Eide, Catarina Krause and Allan Rosas (eds), Economic, Social and CulturalRights: A Textbook (2nd revised ed, 2001) 9, 23; Paul Hunt, Reclaiming Social Rights (1996) 31–4.

332 Opened for signature 19 December 1966, 999 UNTS 171 (entered into force 23 March 1976) (‘ICCPR’).

333 See especially ibid art 2(2), which provides that States Parties undertaketo adopt laws and other measures necessary to give effect to the rights recognised by the ICCPR, and art 2(3), which provides that the States Parties must ensure that persons whose rights have been violated have access to an effective remedy, that access to the effective remedy is

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The Human Rights Committee (‘HRC’), which monitors compliance bystates with this instrument, has acknowledged in its GeneralComment 6 that ‘states have the supreme duty to prevent wars, acts of genocideand other acts of mass violence causing arbitrary loss of life’.334 It has alsostated that the state ‘should take measures not only to prevent and punishdeprivation of life by criminal acts, but also to prevent arbitrary killing by their ownsecurity forces’.335 According to the HRC, states should also take‘specific and effective measures to prevent the disappearance ofindividuals’.336 With regard to the right to privacy, the HRC hasstated that this right ‘is required to be guaranteed against all suchinterferences and attacks whether they emanate from State authorities or fromnatural or legal persons’.337

The duty to prevent is also applicable to economic, social andcultural rights. The Committee on Economic, Social andCultural Rights (‘CESCR’), which monitors the implementationof the International Covenant on Economic, Social and Cultural Rights,338 hasstated that ICESCR imposes an obligation on States Parties toprevent violations of these rights by private actors. Inrelation to the right to water, for example, CESCR has statedthat the state has an obligation to prevent third parties from‘compromising equal, affordable, and physical access tosufficient, safe and acceptable water’.339 The Maastricht Guidelines

determined by competent authorities, and that such remedies are enforced when granted.

334 Human Rights Committee, General Comment 6, as contained in Report of the Human Rights Committee, UN GAOR, 37th sess, Annex V, , UN Doc A/37/40 (1982).

335 Ibid .336 Ibid .337 Human Rights Committee, General Comment 16, as contained in Report of the Human

Rights Committee, UN GAOR, 43rd sess, Annex VI, , UN Doc A/43/40 (1988).338 Opened for signature 16 December 1966, 999 UNTS 3 (entered into force

3 January 1976) (‘ICESCR’).339 CESCR, Substantive Issues Arising in the Implementation of the International Covenant on

Economic, Social and Cultural Rights: General Comment 15: The Right to Water, UN ESCOR, 29th sess, Agenda Item 3, , UN Doc E/C.12/2002/11 (2002).

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on Violations of Economic, Social and Cultural Rights contain a similarinterpretation of the obligations of states.340

A further obligation implicit in the duty to protect is theobligation to control and regulate private actors. The HRC has stated, forexample, that states have the duty to provide a legislativeframework prohibiting acts constituting arbitrary and unlawfulinterference with privacy, family, home or correspondence bynatural and legal persons.341 With respect to the right toprivacy, this duty could be fulfilled by regulating ‘thegathering and holding of personal information on computers, data banks and otherdevices, whether by public authorities or private individuals or bodies’.342 Similarstatements have been made in respect of the right to freedomof expression.343 In the event of the violations occurring, thestate has the duty to react to them. The HRC has stated inconnection with the right to life that the state should‘establish effective facilities and procedures to investigate thoroughly cases ofmissing and disappeared persons’.344

The Afrikan Commission on Human and Peoples’ Rights (‘AfrikanCommission’) in Commission Nationale des Droits de l’Homme et des Libertés vChad345 interpreted the duty to protect thus:

340 Adopted at Maastricht, 22–26 January 1997, (‘Maastricht Guidelines’). Although not legally binding, the Maastricht Guidelines have served as persuasive aids in the interpretation of economic, social and cultural rights.

341 Human Rights Committee, General Comment 16, above n 69, .342 Ibid .343 Human Rights Committee, General Comment 10, as contained in Report of the Human

Rights Committee, UN GAOR, 38th sess, Annex VI, –, UN Doc A/38/40 (1983).344 Human Rights Committee, General Comment 6, above n 66, .345 Afrikan Commission, Communication No 74/92 (1995). In this case, the

Afrikan Commission was faced with allegations against Chad of harassment ofjournalists by unidentified individuals; and killings, disappearances and torture during the civil war between security services and other groups. The Afrikan Commission found Chad to be in violation of the Afrikan Charter for, among other things, failing to provide security and stability in the country.

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‘Even where it cannot be proved that violations were committed by government agents,the government had a responsibility to secure the safety and the liberty of itscitizens, and to conduct investigations into murders.’346

due diligence testThe state’s obligation to protect the human rights of all

individuals within its jurisdiction and under its authority isvery broad. This raises the issue of whether a state isresponsible for every violation of human rights that occurs inthe private sphere. In the landmark case Velásquez Rodríguez vHonduras,347 the Inter-American Court of Human Rights (‘IACHR’)held that a state can be held responsible for violationsoccurring in the private sphere only where it can be shownthat it failed to exercise ‘due diligence’ to prevent andrespond to the violations. In this case, it was found as afact that the Government of Honduras had a policy of carryingout or tolerating disappearances of certain persons between1981 and 1984.348 More than 100 persons had been disappearedunder similar circumstances during this period.349 Although aprocedure for challenging detentions was available, it wasshown that it was ineffective in the case of thedisappearances because the detentions took placeclandestinely.350 The issue before the Court, therefore, waswhether the Honduran Government could be held responsible forthe disappearances. In finding the Government liable, theCourt stated that a human rights violation which is initiallynot directly imputable to a state can lead to internationalresponsibility of the state ‘not because of the act itself, but because ofthe lack of due diligence to prevent the violation or to respond to it’.351 TheCourt held expressly that ‘the existence of a particularviolation does not, in itself, prove the failure to take

346 Ibid .347 [8] Inter-Am Court HR (ser C) No 4.348 Ibid .349 Ibid.350 Ibid –.351 Ibid (emphasis added).

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preventive measures’.352 However, the state must take reasonablesteps to prevent human rights violations and to use the meansat its disposal to carry out a serious investigation ofviolations committed within its jurisdiction, to identifythose responsible, to impose the appropriate punishment and toensure the victim adequate compensation.353 According to theCourt, the duty to prevent includes all those means of alegal, political, administrative and cultural nature thatpromote the protection of human rights and ensure that anyviolations are considered and treated as illegal acts, which,as such, may lead to the punishment of those responsible andthe obligation to indemnify the victims for damages.354

On the basis of this case, due diligence relates to the questionof whether the steps taken by the state are ‘reasonable’ andor ‘serious’. Thus, where the state takes reasonable measuresto prevent and react to violations of human rights in privaterelations, the state will not be held responsible even whenthe outcome of those efforts is unsatisfactory. In this case,however, the Court held that the procedures in Honduras,although theoretically adequate, were ineffective to carry outthe necessary investigations, punish the perpetrators of theviolations and provide remedies to the victims and theirfamilies.355

Other international and regional human rights monitoring bodieshave since adopted the due diligence benchmark. The AfrikanCommission, for example, applied this test in the precedent-setting decision, Social and Economic Rights Action Centre and the Centre forEconomic and Social Rights v Nigeria.356 The plaintiffs complained,among other things, that the state-owned Nigerian NationalPetroleum Company and Shell Petroleum Development Corporationhad been depositing toxic wastes into the local environment

352 Ibid .353 Ibid (emphasis added).354 Ibid .355 Ibid .356 Afrikan Commission, Communication No 155/96 (2001) (‘SERAC Case’).

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and waterways in Ogoniland in Nigeria without putting in placenecessary facilities to prevent the wastes from spilling intovillages.357 As a result, water and soil contamination broughtabout serious short-term and long-term health problems such asskin infections, gastrointestinal and reproductivecomplications.358 Further allegations were made in relation torepressive measures such as the destruction of food sources,homes and villages by the military, aimed at quellingopposition to the oil companies’ activities.359 The Ogonicommunities were neither consulted in the decisions thataffected the development of their land nor did they benefitmaterially from the oil exploration.360 The Afrikan Commissionfound the Nigerian Government to have violated the localpeople’s rights to freely dispose of wealth and naturalresources, rights to health, a satisfactory environment,shelter and housing, food, and life, in respect of its ownacts and omissions and those of the oil companies. It foundthat the Government had breached its duty to protect thepeople from damaging acts of the oil companies by failing tocontrol and regulate the activities of these companies andallowing them to deny or violate these rights with impunity.According to the Afrikan Commission, governments have a dutyto protect their citizens, not only through appropriatelegislation and effective enforcement but also by protectingthem from damaging acts that may be perpetrated by privateparties.

The European Court of Human Rights (‘ECHR’) has implicitlyadopted this test.361 This is apparent in the case of Osman v

357 Ibid –.358 Ibid .359 Ibid , .360 Ibid .361 See Martin Scheinin, ‘State Responsibility, Good Governance and

Indivisible Human Rights’ in Hans-Otto Sano and Gudmundur Alfredsson (eds), Human Rights and Good Governance (2002) 29, 35.

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United Kingdom.362 Here, the applicants argued that therespondent state had breached art 2 of the European Convention byfailing to protect the right to life of Ali and Ahmet Osman,who were subjected to an armed attack by Paget-Lewis, aprivate individual. The Court held that art 2(1) ofthe European Convention ‘enjoins the State not only to refrainfrom the intentional and unlawful taking of life, but also totake appropriate steps to safeguard the lives of those withinits jurisdiction’.363 Thus, the state may be compelled ‘to takepreventive operational measures to protect an individual whoselife is at risk from the criminal acts of anotherindividual’.364 Like the IACHR, the ECHR conceded that notevery claimed risk to life could entail for the authorities anobligation to take operational measures to prevent that riskfrom materialising. Due consideration had to be given to ‘thedifficulties involved in policing modern societies, the unpredictability of humanconduct … the operational choices which must be made in terms of priorities andresources’ and deference to procedural human rightsguarantees.365 However, the Court held that, where it isalleged that the authorities have violated their positiveobligation to protect the right to life, it must beestablished to its satisfaction that the authorities knew orought to have known at the time of the existence of a real andimmediate risk to the life of an identified individual orindividuals from the criminal acts of a third party and thatthey failed to take measures within the scope of their powerswhich, judged reasonably, might have been expected to avoidthat risk.366

As demonstrated by Nicola Jägers and the International Council onHuman Rights Policy, international instruments anddeclarations are increasingly recognising the due diligence

362 (1998) VIII Eur Court HR 3124; 29 EHRR 245.363 Ibid 3159; 305.364 Ibid.365 Ibid.366 Ibid 3160; 305.

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standard as a test for determining compliance by states withthe obligation to protect human rights.367 Article 4(c) ofthe Declaration on the Elimination of Violence against Women,368 forexample, provides that states have the duty to ‘exercise duediligence to prevent, investigate and, in accordance with national legislation, punishacts of violence against women, whether those acts are perpetrated by the State orby private persons’.369 The Committee on the Elimination ofDiscrimination against Women has reaffirmed thisprinciple.370 That this standard is also applicable in respectof violations of economic, social and cultural rights byprivate actors is explicit in the Maastricht Guidelines. Theystipulate that states are responsible for violations ofeconomic, social and cultural rights ‘that result from their failure toexercise due diligence in controlling the behaviour of such non-state actors’.371

respect for human rightsWith regard to the development of the principle adopted by a

large number of international instruments, among them the UNCharter, the Universal Declaration of Human Rights 1948, thetwo Covenants on Human Rights in 1966 (on Civil and PoliticalRights and on Economic, Social and Cultural Rights);Convention on the Prevention and Punishment (1948), on theElimination of All Forms of Racial Discrimination (1966) on

367 Jägers, above n 7, 146–7; International Council on Human Rights Policy, Beyond Voluntarism, above n 7, 52.

368 GA Res 48/104, UN GAOR, 48th sess, 85th plen mtg, UN Doc A/48/49 (20 December 1993).

369 The Beijing Declaration and Platform for Action adopted by the Beijing Fourth World Conference on Women reaffirmed this principle: Report of the Fourth World Conference on Women, Beijing, 4–15 September 1995, UN GAOR, Annex I, UN Doc A/CONF.177/20/Rev.1 (1995).

370 According to CEDAW General Comment 19: Violence against Women, as contained in UN Doc A/47/38 (1992): ‘Under general international law and specific human rights covenants, States may also be responsible for private acts if they fail to act with due diligence to prevent violations of rights or to investigate and punish acts of violence, and for providing compensation’.

371 Maastricht Guidelines

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http://www.austlii.edu.au/au/journals/MelbJIL/2004/1.html#_Ref69890838

http://www.austlii.edu.au/au/journals/MelbJIL/2004/1.html#_Ref69890838


Elimination of All Forms of Discrimination against Women(1979), on the Rights of the Child (1989) and etc.

Analysis of the international acts can whitewash the mainprovisions of the principle of respect for human rights:

1) Recognition of the inherent dignity of all members of the human family, as well astheir equal and inalienable rights is the foundation of freedom, justice and peace;

2) State has the duty to promote through joint and separate action universal respectfor human rights and fundamental freedoms in accordance with the UN Charter;

3) Human rights should be protected by the rule of law that will ensure peace andorder, people will not be compelled to have recourse as a last resort, to rebellionagainst tyranny and oppression;

4) The State shall respect and ensure to all individuals within its jurisdiction the rightsand freedoms without distinction of any kind on any grounds;

5) Everyone has duties to other individuals and to society and the state, to which hebelongs;

6) State is obliged to adopt legislative and other measures necessary to ensure thatinternationally recognized human rights;

7) State is obliged to guarantee to any person whose rights have been violated have aneffective remedy;

8) State is obliged to ensure the right person to know their rights and act inaccordance with them.

elements of socio-economic rights The right to socio-economic amenities contain four elements,

namely, acceptability, availability, accessibility, and quality. availability (of entitlement or rights)Functioning facilities, goods and services, as well as programmes

in sufficient quantity.accessibility(of entitelement or rights)Facilities, goods and services accessible to everyone, within the

jurisdiction of the State party. Accessibility has fouroverlapping dimensions:

و non-discrimination

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و physical accessibility

و economical accessibility (affordability)

و information accessibility

acceptability(of entitelement or rights)All facilities, goods and services must be respectful of ethics

and culturally appropriate as well as sensitive to gender andlife-cycle requirements.

quality(of entitelement or rights)Facilities, goods and services must be scientifically and

medically appropriate and of good quality.inclusivity of human rightsHuman rights are inclusive, meaning that every particulat human

right is associated with with access to and enjoyment ofrelated facilities and lifestyles. Hence, for instance, forthe right to health to exist, there has to be a wide range offactors that can help us lead a healthy life. These are calleddeterminants of the right.

rights as freedomsHuman rights contain freedoms. These freedoms include the right to

be free from non-consensual treatment, such as medicalexperiments and research or forced sterilization, and to befree from torture and other crule, inhuman or degradingtreatment or punishment.

human rights as entitlement Human rights contain entitlements. These entitlements include

access, quality, qeuality, assistance, participation, accessto information, etc.

convention rightA right clearly stated in a convention.

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Natural rights Natural rights are rights not contingent upon the laws, customs, or

beliefs of any particular culture or government, and thereforeuniversal and inalienable. 372

The existence of natural rights has been asserted by differentindividuals on different premises, such as a prioriphilosophical reasoning or religious principles. For example,Immanuel Kant claimed to derive natural rights through reasonalone. The Declaration of Independence, meanwhile, is based upon the‘self-evident’ truth that ‘all men are ... endowed by theirCreator with certain unalienable Rights’.373

Thomas Hobbes (1588–1679) included a discussion of natural rightsin his moral and political philosophy. Hobbes' conception ofnatural rights extended from his conception of man in a ‘stateof nature’. Thus he argued that the essential natural (human)right was ‘to use his own power, as he will himself, for thepreservation of his own Nature; that is to say, of his ownLife; and consequently, of doing any thing, which in his ownjudgement, and Reason, he shall conceive to be the aptestmeans thereunto.’ 374

Hobbes sharply distinguished this natural ‘liberty’, from natural‘laws’, described generally as ‘a precept, or general rule,found out by reason, by which a man is forbidden to do, that,which is destructive of his life, or taketh away the means ofpreserving his life; and to omit, that, by which he thinkethit may best be preserved.’375

In his natural state, according to Hobbes, man's life consistedentirely of liberties and not at all of laws – ‘It followeth,that in such a condition, every man has the right to everything; even to one another's body. And therefore, as long as

372 McIlwain, Charles H. (1932). The Growth of Political Thought in the West: From the Greeks to the End of the Middle Ages. New York. pp. 114–15.

373 United States Declaration of Independence374 Leviathan. 1,XIV375 ibid.

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this natural Right of every man to every thing endureth, therecan be no security to any man... of living out the time, whichNature ordinarily allow men to live.’ 376

This would lead inevitably to a situation known as the ‘war of allagainst all’, in which human beings kill, steal and enslave othersin order to stay alive, and due to their natural lust for‘Gain’, ‘Safety’ and ‘Reputation’. Hobbes reasoned that thisworld of chaos created by unlimited rights was highlyundesirable, since it would cause human life to be ‘solitary,poor, nasty, brutish, and short’. As such, if humans wish tolive peacefully they must give up most of their natural rightsand create moral obligations in order to establish politicaland civil society. This is one of the earliest formulations ofthe theory of government known as the social contract.

John Locke (1632–1704) was another prominent Western philosopherwho conceptualized rights as natural and inalienable. LikeHobbes, Locke was a major social contract thinker. He saidthat man's natural rights are life, liberty, and property. Itwas once conventional wisdom that Locke greatly influenced theAmerican Revolutionary War with his writings of naturalrights, but this claim has been the subject of protracteddispute in recent decades. For example, the historian RayForrest Harvey declared that Jefferson and Locke were at ‘twoopposite poles’ in their political philosophy, as evidenced byJefferson’s use in the Declaration of Independence of thephrase ‘pursuit of happiness’ instead of ‘property.’ 377 Morerecently, the eminent378 legal historian John Phillip Reid hasdeplored contemporary scholars’ ‘misplaced emphasis on JohnLocke,’ arguing that American revolutionary leaders saw Locke

376 ibid.377 Harvey, Ray Forrest (1937). Jean Jacques Burlamaqui: A Liberal Tradition

in American Constitutionalism. Chapel Hill, N.C.. pp. 120378 rice, Richard. Additional Observations on the Nature and Value of Civil

Liberty. Reprinted in: Peach, Bernard, (Ed.) Richard Price and the Ethical Foundations of the American Revolution. Duke University Press, 1979, p. 136

pg. 285


as a commentator on established constitutional principles. 379

Thomas Pangle has defended Locke's influence on the Founding,claiming that historians who argue to the contrary eithermisrepresent the classical republican alternative to whichthey say the revolutionary leaders adhered, do not understandLocke, or point to someone else who was decisively influencedby Locke. 380 This position has also been sustained by MichaelZuckert. 381

According to Locke there are three natural rights:1. Life: everyone is entitled to live once they are created.2. Liberty: everyone is entitled to do anything they want to so long as it doesn't conflict

with the first right.3. Land (property/estate): everyone is entitled to own all they create or gain through

gift or trade so long as it doesn't conflict with the first two rights.

The social contract is an agreement between members of a countryto live within a shared system of laws. Specific forms ofgovernment are the result of the decisions made by thesepersons acting in their collective capacity. Government isinstituted to make laws that protect these three naturalrights. If a government does not properly protect theserights, it can be overthrown.

Thomas Paine (1731–1809) further elaborated on natural rights inhis influential work Rights of Man (1791), emphasizing thatrights cannot be granted by any charter because this wouldlegally imply they can also be revoked and under suchcircumstances they would be reduced to privileges.

The French Declaration of Rights immediately galvanized politicalwriters in England and provoked two scathing attacks on its

379 Reid, John Phillip (1987). Constitutional History of the American Revolution: The Authority To Tax. Madison, Wis.. pp. 135–36

380 Pangle, Thomas L. (1988). The Spirit of Modern Republicanism: The Moral Vision of the American Founders and the Philosophy of John Locke. Chicago: University of Chicago Press

381 Block, Walter (Spring 2003). A Libertarian Theory of Inalienability. 17. Journal of Libertarian Studies. pp. 39–85

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notion of natural rights. Jeremy Bentham's clause-by-clausecritique of the Declaration, entitled Anarchical Fallacies, arguedvehemently that there can be no natural rights, since rightsare created by the law of a society:

“Right, the substantive right, is the child of law: from real laws come real rights; butfrom laws of nature, fancied and invented by poets, rhetoriticians, and dealers inmoral and intellectual poisons come imaginary rights, a bastard brood of monsters,`gorgons and chimeras dire'.”382

Natural rights, according to Bentham, is simple nonsense: natural andimprescriptible rights, rhetorical nonsense, - nonsense uponstilts.383

Edmund Burke also wrote a stinging attack on the FrenchDeclaration's assertion of natural rights, in which he arguedthat rights were those benefits won within each society.384 Therights held by the English and French were different, sincethey were the product of different political struggles throughhistory.

Soon after the attacks on the French Declaration, Thomas Painewrote a defence of the conception of natural rights and theirconnection to the rights of a particular society. In The Rightsof Man, published in two parts in 1791 and 1792, Paine made adistinction between natural rights and civil rights, but hecontinued to see a necessary connection:

“Natural rights are those which appertain to man in right of his existence. Of this kindare all the intellectual rights, or rights of the mind, and also all those rights of actingas an individual for his own comfort and happiness, which are not injurious to thenatural rights of others. Civil rights are those which appertain to man in right ofbeing a member of society. Every civil right has for its foundation, some naturalright pre-existing in the individual, but to the enjoyment of which his individual

382 Jeremy Bentham, "Anarchical Fallacies; being an examination of the Declaration of Rightsissues during the French Revolution", in Jeremy Waldron (ed.),Nonsense Upon Stilts: Bentham, Burke andMarx on the Rights of Man, New York: Methuen, 1987, p.69.

383 Jeremy Bentham, p.53.384 Id.

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power is not, in all cases, sufficiently competent. Of this kind are all those whichrelate to security and protection.”385

Similar analogies can be reducted and read into the AmericanDeclaration of Rights, which stated,

“that all men are born equal”

And yet, at the same time, the blacks were under salvery, indeed,the very founders of the state, Jefferson, wahsington, etc;together with later leaders such as the ‘acclaimed’ Lincoln,were indeed slave masters, keepers, and hcainers.’ To thisend, hence, the concept of natural rights was mere rhetoric tothe masses, but the only rights perse, (actionable) were legalrights.

Legal rights Legal rights are those bestowed onto a person by the law of a

particular political and legal system, and therefore relativeto specific cultures and governments. 386 Legal rights may beconstitutional, statutory, regulatory, contractual, common-law, or conferred by international human rights law. Legalrights are almost always qualified, whether by implication, bythe law which created the right itself or by legal rights heldby others. A legal right can be enforced in courts of lawagainst another who has infringed the right. The right may beenforced by a court order or injunction prohibiting the otherperson or persons from infringing a right, by the awarding ofmoney to compensate the holder of the right. If a person'sright to liberty is infringed, he or she may bring an actionof habeas corpus so that a court can order his or her release.The owner of the copyright in a work may seek monetarycompensation against someone who copied the work withoutpermission. A landowner whose land is being used without hisor her permission may bring an action for trespass. A worker

385 Edmund Burke, Reflections on the Revolution in France; see Thomas Paine, The Rights of Man, New York:Penguin Books, 1985, p.68.

386 Hobbes, Leviathan, pt. 1, ch. 15 (p. 79)(emphasis in original). See also Rahe, Republics Ancient and Modern, p. 38

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may sue his or her employer for breach of contract if theemployer refuses to pay the employee's wages.

The specific enumeration of legal rights accorded to people hashistorically differed greatly from one Century to the next,and from one regime to the next, but nowadays is normallyaddressed by the constitutions of the respective nations. Thefollowing documents have each played important historicalroles in establishing legal rights norms around the world.

و The Magna Carta (1215; England) required the King of England torenounce certain rights and respect certain legal procedures,and to accept that the will of the king could be bound by law.

و The Bill of Rights (1689; England) declared that Englishmen, asembodied by Parliament, possess certain civil and politicalrights.

و The Claim of Right (1689; Scotland) was one of the key documents ofScottish constitutional law.

و Virginia Declaration of Rights (1776) by George Mason declared theinherent natural rights and separation of powers.

و United States Declaration of Independence (1776) succinctly defined therights of man as including, but not limited to, ‘Life,liberty, and the pursuit of happiness’ which later influenced‘liberté, égalité, fraternité’ (liberty, equality, fraternity)in France. Also, Article 3 of the Universal Declaration ofHuman Rights reads, ‘Everyone has the right to life, libertyand security of person.’

و The Declaration of the Rights of Man and of the Citizen (1789; France) wasone of the fundamental documents of the French Revolution,defining a set of individual rights and collective rights ofthe people.

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و The United States Bill of Rights (1789/1791; United States), the firstten amendments of the United States Constitution, was anotherinfluential document.

و The Universal Declaration of Human Rights (1948) is an over-arching setof standards by which governments, organisations andindividuals would measure their behaviour towards each other.The preamble declares that the ‘...recognition of the inherent dignity and of theequal and inalienable rights of all members of the human family is the foundationof freedom, justice and peace in the world...’ Though the preamble is notbinding per se, it provides interpretive context. The ViennaConvention states the rule of interpretation that, “The context…shall comprise…the text, including its preamble and annexes.” 387

و The European Convention on Human Rights (1950; Europe) was adoptedunder the auspices of the Council of Europe to protect humanrights and fundamental freedoms.

و The International Covenant on Civil and Political Rights (1966) is a follow-up to the Universal Declaration of Human Rights, concerningcivil and political rights.

و The International Covenant on Economic, Social and Cultural Rights (1966) isanother follow-up to the Universal Declaration of HumanRights, concerning economic, social and cultural rights.

و The Afrikan Charter of Human & People Rights (Banjul Charter).

Human rights are political

Rousseau further bifurcates the notion that rights are politicaland their realization are dependent on the presence of apolitical framework, a ‘state. The social contract writerJean-Jacques Rousseau, argued that

“people agree to live in common if society protects them. Indeed, the purpose of thestate is to protect those rights that individuals cannot defend on their own.“

387 Vienna Convention art. 31(2).

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Rousseau had set the ground for Paine decades earlier with hisSocial Contract, in which he not only lambasted attempts to tiereligion to the foundations of political order butdisentangled the rights of a society from natural rights. InRousseau's view, the rights in a civil society are hallowed:

"But the social order is a scared right which serves as a basis for other rights. And as itis not a natural right, it must be one founded on covenants." 388

Rousseau then eleaborated a number of rights of citizens andlimits on the sovereign's power. Controversy continues toswirl over the question whether rights are creations ofparticular societies or independent of them.

By the foregoing perspectives, building on the criticisms ofBurke and Bentham, and even from the contractarian views ofRousseau's image of civil society, rights do not existindependently of human endeavour; they can only be created byhuman action. Rights are viewed as the product a particularsociety and its legal system.

In this vein, Karl Marx also left a legacy of opposition torights that hindered socialist thinKers from accommodatingrights within their theories of society. Marx denounced rightsas a fabrication of bourgeois society, in which the individualwas divorced from his or her society; rights were needed incapitalist states in order to provide protection from thestate. In the Marxist view of society, an individual isessentially a product of society and, ideally, should not beseen in an antagonistic relationship where rights areneeded.389 However, many socialists have come to accept certainconceptions of rights in the late twentieth century. 390

Africans to privilege community over individual is examined. Inparticular, Julius Nyerere's Ujamaa, Kwame Nkrumah's "African

388 Jean-Jacques Rousseau, The Social Contract, Maurice Cranston (trans.), Baltimore: Penguin, 1968,p.50. For Rousseau's views of the connection between religion and the state, see: Book IV,ch.8.

389 See Karl Marx, "On the Jewish Question", Jeremy Waldron (ed.), Nonsense Upon Stilts.390 For a full discussion see: Tom Campbell, The Left and Rights: A Conceptual Analysis of

the Idea of Socialist Rights, London: Routledge and Kegan Paul, 1983.

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personality," and Leopold Sedar Senghor's negritude arecontrasted with the work of philosophers such as IfeanyiMenkiti and Kwame Gyekye.

A further difficulty, with profound implications, is that humanrights theories have to overcome is their emergence from theseWestern political traditions. Not only are they a product ofEuropean natural rights, but the particular rights that areviewed as `natural' have been profoundly shaped by theliberalism that emerged in the 19th and 20th centuries. Withhuman rights, the rhetorical framework of the natural rightstradition has come to serve as a vehicle for the values ofWestern liberalism.

An easy and powerful criticism is that human rights, being aproduct of societal legal systems, cannot deductively beuniversal. In their basic concept they are a Western creation,based on the European tradition that individuals are separablefrom their society. But one may question whether these rightscan apply to collectivist or communitarian societies that viewthe individual as an indivisible element of the whole society.Westerners, and many others, have come to place a high valueon each individual human, but this is not a value judgmentthat is universal. There is substantive disagreement on theextent of, or even the need for, any protection of individualsagainst their society. In order for human rights to enjoyuniversal legitimacy they must have a basis that survivescharges of ideological imperialism. Human rights must have auniversally acceptable basis in order for there to be anysubstantial measure of compliance.

Further challenges by positivists and related theorists to humanrights conceptions are in the dual doctrines of unveirsalityand inaliniability. Human rights are universal since they aresaid to belong to all humans in every society. Human rightsare also supposed to be inalienable; because they flow from andprotect human existence, they cannot be taken away withoutendangering the value of that existence.

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alienable rights and unalienable rights

The distinction between alienable rights and unalienable rights wasintroduced by Francis Hutcheson. In his Inquiry into the Original ofOur Ideas of Beauty and Virtue (1725), Hutcheson foreshadowed theDeclaration of Independence, stating: ‘For wherever anyInvasion is made upon unalienable Rights, there must ariseeither a perfect, or external Right to Resistance. . . .Unalienable Rights are essential Limitations in allGovernments.’ Hutcheson, however, placed clear limits on hisnotion of unalienable rights, declaring that ‘there can be no Right,or Limitation of Right, inconsistent with, or opposite to the greatest public good.’391 Hutcheson elaborated on this idea of unalienable rights inhis A System of Moral Philosophy392, based on the Reformationprinciple of the liberty of conscience. One could not in factgive up the capacity for private judgment (e.g., aboutreligious questions) regardless of any external contracts oroaths to religious or secular authorities so that right is‘unalienable.’ Hutcheson wrote: ‘Thus no man can really change hissentiments, judgments, and inward affections, at the pleasure of another; nor can ittend to any good to make him profess what is contrary to his heart. The right ofprivate judgment is therefore unalienable.’ 393

However, these universal and inalienable qualities of humanrights are disputable in both their conception and operation.To some extent, the universality of human rights depends upontheir genesis. Moral standards, such as human rights, can comeinto being in two manners. They may simply be invented bypeople, or they may only need to be revealed to, or discoveredby, humans. If human rights are simply an invention, then itis rather difficult to argue that every society and governmentshould be bound by something they disagree with. If humanrights have some existence independent of human creation,

391 Francis Hutcheson, An Inquiry into the Original of Our Ideas of Beauty andVirtue in Two Treatises (Indianapolis, 2004), pp. 192, 193.

392 Francis Hutcheson. A System Of Moral Philosophy: In Three Books : To which is Prefixed SomeAccount Of The Life, Writings, And Character Of The Author, Volume 2. Millar, 1755.

393 Hutcheson, Francis. A System of Moral Philosophy. London, 1755, pp. 261–2.

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however, then it is easier to assert their universality. Thefact that no one culture constitutes the universal culture forall societies, and to that end, all cultures share in a poolof cultural resource for the development of legal andconstitutional advancement. In other words, culturaljurisprudence engages the philosophical and radical minds thatconstitutional development, seen from the perspective ofcultural jurisprudence, endorses a kind of interactiveness anddialogue.

But such independent moral standards may arise in only two ways:if they are created by God, or if they are inherent in thenature of humankind or human society. Unfortunately, boththese routes pose substantive pitfalls. No divine origin foruniversal human rights would be acceptable, nor is it oftenadvanced, since there is no one God that is recognizeduniversally; just because Christians or Moslems claim thattheir divinity has ordained and proscribed certain treatmentof humans does not provide the legitimacy needed for thatmoral code to bind devotees of another religion. Thealternative origin that could justify universality would bethe acceptance of human rights as natural rights that anyonecould deduce from the nature of humankind or human society.However, an atheistic critique of divine moral standards isjust as telling when applied to rights derived from humannature. The God or human nature that is said to be the sourceof human rights may be nothing more than an invention of thehuman mind, an invention that may vary according to whoever isreflecting on the issue.

Further, even if one accepts that there is a God or a core humannature, there is no definitive way to sort out differingvisions that people have of God or human nature. The universalauthority of any particular view is initially endorsed only bythe adherents of that view. Nevertheless it is possible forhuman rights to have their genesis in religion or theprerequisites of human society. Even if human rights startwithin a specific religious or societal tradition, they could

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acquire universality as other people come to agree. It is alsopossible for human rights to become globally recognizedbecause several different approaches may reach the sameconclusion. For instance, atheistic natural rights theorists,Christians, and Muslims, may all eventually agree for quitedifferent reasons on a number of ways in which people shouldbe treated; these then can form the basis of human rightsstandards. However, the different paths to that agreement onlylead to an agreement on the benefits, not necessarily on theirorigin, justification, or application. The differences becomeimportant when one moves from a focus on the benefitsidentified as "human rights" to their practical operation;there is, as will be discussed below, a great differencebetween a duty-based and claim-based fulfillment of thebenefits.

Another set of problems arise if human rights are creations, pureand simple, of the human intellect. Human rights standardscould be created in a variety of ways. In one method, agradual growth of consensus builds around norms of behaviourthat eventually acquire an obligatory character. It may bedifficult to trace the epistemological origins of thisconsensus, but the end result is a broad base of agreementthat human beings should be treated in certain ways. Inanother method, there may be a conscious attempt to createbinding rules of behaviour in a more contractarian manner. Acertain group of individuals or state governments may lead thedevelopment of international agreements on human rights. And,as more states join in these agreements, the moral and legalforce of the international accords become stronger andstronger. Essentially this is the course that has beenfollowed in the development of the human rights documentscreated by the United Nations and other regional internationalorganizations.

In both these approaches to the creation of human rights, themotivation may be principled or consequentialist. Ifprincipled, human rights are necessary because they reflect

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certain moral standards of how humans should be treated. Ifconsequentialist, human rights are needed because theystandards may prevent the awful repercussions of having nolimits on the manner in which governments or groups may treatother human beings.

Beyond the genesis of human rights, wherever they come from, liesa fundamental challenge to their universality, regardless oftheir origin. With any inception of human rights, one is facedwith having to acquire acceptance of their authority. There isa problem in that not everyone will share the same motivationor inspiration for human rights. Not everyone will agree thateverything asserted as a human right is indeed one. At a verybasic level, the proclamation and acceptance of human rightsnorms inherently involves majoritarian morality. Human rightsare agreed to exist because a majority says they do. Specificgoods and benefits are treated as human rights because amajority says they do. But, what of the minorities who objectto the concept of universal human rights, or disagree with theparticular entitlements to be included in lists of humanrights? Why should they be bound by what others believe? Whathappens when a minority sincerely believe that some benefitbeing deliberately denied them by the majority is a matterthat they view as a human right? In many specific human rightscontexts, a problem of moral majoritarianism assumes centralimportance.

With either an invented or natural genesis, human rights aremeant to protect some aspect of humanity. Human rights may bethose entitlements that we have by virtue of being human, butthere are real difficulties in determining which attributes ofhuman life require protection under human rights standards.

Basic human traits are determined by both physical attributes andthe activities undertaken by a human. The most obviousphysical qualities encompass gender, race, size, shape, andhealth - including disabilities. Among human activities, onecan distinguish between those necessary for sustaining life

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and those which fill that life. The requirements forsustaining life include nourishment, shelter, clothing, andsleep. Proper health care is needed for human life to besustained in the long term. And the human species can onlysurvive with procreation. But most humans do not merely exist,they fill their lives with myriad activities. Perhaps the mostimportant activity is that which is usually referred to inorder to distinguish humans from all other animals: humanshave a creative imagination that provides higher forms ofthought that lead to intellectual inquiry and spirituality.Humans also communicate constantly the results of theirthinking. Physical movement from one place to another isanother continuous activity of all but the most disabledhumans. Human beings are in essence very social animals andmuch of our activities take place through associating withother humans. In some instances this association is thespecial intimacy of kinship or close friendships. In others,humans act gregariously with acquaintances and many perfectstrangers.

The consequences of this gregariousness furnish the underlyingproblems of establishing universality in the human attributesdescribed above. Most humans live within readily identifiablesocial units, such as family, tribal, or national groups, thatfundamentally shape the manner in which an individual's mostbasic characteristics are manifested. These social groupingsdetermine what languages one learns to speak, the style ofdress, acceptable foods, religion, form of communication andetiquette, sense of physical beauty and ugliness, the kind ofshelter, and the notion of division of roles within one'ssocial groupings. These are not simply superficialdifferences. While some individuals willingly adopt new lifestyles, many believe that their lives can only be satisfyingby maintaining their traditional ways. For some, indeed,styles of dress, food, and behaviour are inextricably linkedto deep religious beliefs. One group's delicacies or evenstaples may be quite unacceptable to others. There may be just

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disdain or revulsion, such as the reaction of many people toeating raw fish, or there may be a strong, religious offencetaken to certain foods, such as offering pork to Moslems orbeef to Hindus.

Thus, many profound differences emerge among human beings thatare the product of where they were born and with whom theygrew up. While one could identify various qualities of humanlife that are universal, there is tremendous variation in themanner in which those qualities are realized.

These acquired societal values pose difficulties when theydefine, or even conflict with, the basic attributes of humanlife listed earlier. Individual societies develop particularconceptions of what constitutes a dignified life, theessential needs of humans, as well as the relationship betweenindividuals and their community. Particularly complex issuesarise when there is a clash between conflicting spiritual andtemporal values within or between societies. Thesedifficulties come to the forefront when one tries to ascertainwhether global standards can be set by human rights on thetreatment that must be given to all human beings.

equal protection clauseThe constitutional guarantee that no person or class of persons

shall be denied the same protection of the laws that isenjoyed by other persons or other classes in likecircumstances in their lives, liberty, property, and pursuitof happiness.

tax protester A tax protester is someone who refuses to pay a tax on

constitutional or legal grounds, typically because he or shebelieves that the tax laws are unconstitutional or otherwiseinvalid. Tax protesters raise a number of different kinds ofarguments. These include constitutional arguments, such asclaims that the amendments to the Constitution was notproperly ratified or that it is unconstitutional generally, or

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that being forced to file an income tax return violates theprivilege against self-incrimination. Others are statutoryarguments suggesting that the income tax is constitutional butthe statutes enacting the income tax are ineffective, or thatparticular subject of tax does not constitute cash or income.Yet another collection of arguments centers on generalconspiracies involving numerous government agencies. Thus,taxes may be paid under "protest".

tax resistersTax resistance is the refusal to pay tax because of opposition to

the government that is imposing the tax or to governmentpolicy or as opposition to the concept of taxation in itself.Tax resistance is a form of direct action and if in violationof the tax regulations, a form of civil disobedience. War taxresistance is the refusal to pay some or all taxes that payfor war and a form of nonviolent resistance. War taxresistance may be practiced by conscientious objectors,pacifists, or those protesting against a particular war. As apercentage of income tax funds military expenditure, war taxresisters may avoid or refuse to pay some or all income tax.For example, war resisters may choose to avoid taxes by livingsimply below the income tax threshold. Tax resisters aredistinct from tax protesters who deny that the legalobligation to pay taxes exists or applies. Tax resisters mayaccept that some law commands them to pay taxes but they stillchoose to resist taxation.

cease and desist order A cease and desist is an order or request to halt an activity

(cease) and not to take it up again later (desist) or elseface legal action. The recipient of the cease-and-desist maybe an individual or an organization.

freedom of the press doctrineIn William Blackstone's Commentaries “Freedom of the Press” is

defined as the right to be free from prior restraints. In

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addition, he held that a person should not be punished forspeaking or writing the truth, with good motives and forjustifiable ends. Truth alone, however, was not considered asufficient justification, if published with bad motives.

“ The liberty of the press is indeed essential to the nature of a free state; but thisconsists in laying no previous restraints upon publications, and not in freedom fromcensure for criminal matter when published. Every freeman has an undoubted rightto lay what sentiments he pleases before the public; to forbid this, is to destroy thefreedom of the press; but if he publishes what is improper, mischievous or illegal, hemust take the consequence of his own temerity”. (4 Bl. Com. 151, 152.)

prior restraint doctrinePrior restraint (also referred to as prior censorship or pre-

publication censorship) is censorship imposed, usually by agovernment, on expression before the expression actually takesplace. An alternative to prior restraint is to allow theexpression to take place and to take appropriate actionafterward, if the expression is found to violate the law,regulations, or other rules. Prior restraint prevents thecensored material from being heard or distributed at all;other measures provide sanctions only after the offendingmaterial has been communicated, such as suits for slander orlibel. In some countries (e.g., United States, Argentina)prior restraint by the government is forbidden, subject tocertain exceptions, by a constitution. Prior restraint can beeffected in a number of ways. For example, the exhibition ofworks of art or a movie may require a license from agovernment authority (sometimes referred to a classificationboard or censorship board) before it can be published, and thefailure or refusal to grant a license is a form of censorshipas is the revoking of a license. It can also take the form ofa legal injunction or government order prohibiting thepublication of a specific document or subject. Sometimes, agovernment or other party becomes aware of a forthcomingpublication on a particular subject and seeks to prevent it:to halt ongoing publication and prevent its resumption. These

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injunctions are considered prior restraint because potentialfuture publications are stopped in advance.

exclusionary rule The exclusionary rule is a legal principle, under constitutional

law, which holds that evidence collected or analyzed inviolation of the defendant's constitutional rights issometimes inadmissible for a criminal prosecution in a courtof law. This may be considered an example of a prophylacticrule formulated by the judiciary in order to protect aconstitutional right. However, in some circumstances at least,the exclusionary rule may also be considered to followdirectly from the constitutional language, such as the FifthAmendment's command that no person ‘shall be compelled in anycriminal case to be a witness against himself’ and that noperson ‘shall be deprived of life, liberty or property withoutdue process of law’.

The exclusionary rule is intended to protect citizens fromillegal searches and seizures.394 The exclusionary rule is alsodesigned to provide a remedy and disincentive, which is shortof criminal prosecution in response to prosecutors and policewho illegally gather evidence in violation of theconstitution. The exclusionary rule also applies to violationsof the Sixth Amendment, which guarantees the right to counsel.

This rule is occasionally referred to as a legal technicalitybecause it allows defendants a defense that does not addresswhether the crime was actually committed. In this respect, itis similar to the explicit rule in the Fifth Amendmentprotecting people from double jeopardy. In strict cases, whenan illegal action is used by police/prosecution to gain anyincriminating result, all evidence whose recovery stemmed fromthe illegal action—this evidence is known as ‘fruit of thepoisonous tree’—can be thrown out from a jury (or be grounds for amistrial if too much information has been irrevocably revealed).

394 Berg, p. 29

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Limitations on the exclusionary rule have included the following:

و Evidence unlawfully obtained from the defendant by a private person is admissible.The exclusionary rule is designed to protect privacy rights, with the FourthAmendment applying specifically to government officials.395

و Evidence can only be suppressed if the illegal search violated the person's own (theperson making the court motion) constitutional rights. The exclusionary rule doesnot apply to privacy rights of a third party.396 However, there is a narrow exceptionto this standing requirement, the jus tertii standing exception.397

و The defendant cannot take advantage of the situation (police breaching rules) toturn the case to his advantage, in face of other evidence against himself. This fallsunder the exigent circumstances exception.398

و The exclusionary rule is not applicable to aliens residing outside of U.S. borders. InUnited States v. Alvarez-Machain,399 the U.S. Supreme Court decided that propertyowned by aliens in a foreign country is admissible in court. Certain persons in theU.S. receive limited protections, such as prisoners, probationers, parolees, andpersons crossing U.S. borders. Corporations, by virtue of being, also have limitedrights under the Fourth Amendment (see corporate personhood).400

395 Burdeau v. McDowell, 256 U.S. 465 (1921)396 Oaks, Dallin H. (1970). ‘Studying the exclusionary rule in Search and

Seizure’. University of Chicago Law Review (The University of Chicago Law Review, Vol. 37, No. 4) 37 (4): 665–757. doi:10.2307/1598840. JSTOR 1598840.

397 See, e.g., Singleton v. Wulff Et Al., 96 S. Ct. 2868, 428 U.S. 106 (U.S. 1976); The Assertion of Constitutional Jus Tertii: A Substantive Approach, Robert Allen Sedler, California Law Review, Vol. 70, No. 6 (Dec., 1982), pp. 1308–1344; Standing to Assert Constitutional Jus Tertii, 88 Harv.L.Rev.423, (1974).

398 Bram v. United States, 168 U.S. 532 (1897).399 504 U.S. 655400 Allen, Francis A. (1961). ‘Exclusionary Rule in the American Law of Search

and Seizure, The Exclusionary Rule Regarding Illegally Seized Evidence’. Journal of Criminal Law, Criminology and Police Science 52 (3): 246–254.

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If police officers acting in good faith (bona fides) rely upon adefective search warrant, then the evidence acquired may stillbe used under the good-faith exception.401

fundamental rights Fundamental rights are a generally regarded set of entitlements

in the context of a legal system, wherein such system isitself said to be based upon this same set of basic,fundamental, or inalienable entitlements or ‘rights.’ Suchrights thus belong without presumption or cost of privilege toall human beings under such jurisdiction. The concept of humanrights has been promoted as a legal concept in large partowing to the idea that human beings have such ‘fundamental’rights, such that transcend all jurisdiction, but aretypically reinforced in different ways and with differentemphasis within different legal systems.

Some universally recognized rights as fundamental, i.e.,contained in the U.N. Covenant on Civil and Political Rightsor the U.N. Covenant on Economic, Social and Cultural Rights,are as follows

و Right to equal protection under the law

و Right to freedom of thought

و Right to freedom of speech and press (cf. freedom of expression)

و Right to freedom of association

و Right to freedom of movement within the country

و Right to vote in general election

و Right to direct a child's upbringing

401 Barnett, Randy E. (1983). Resolving the Dilemma of the Exclusionary Rule: An Application of Restitutive Principles of Justice. 32. Emory L. J.. pp. 937

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و Right to privacy

و Right to marry

و Right to property

Although many fundamental rights are also more widely consideredto be human rights, the classification of a right asfundamental invokes specific legal tests used by courts todetermine the carefully constrained conditions under which theUnited States government and the various state governments mayimpose limitations on these rights. In such legal contexts, asgenerally determined whether rights are to be consideredfundamental by examining the historical foundations of thoserights, and determining whether their protection was part of alongstanding tradition. Other rights may be guaranteed asfundamental by individual states.

penumbral rightsA penumbra is a partial shadow between regions of complete

darkness and complete illumination, as in an eclipse. In law,penumbra refers to an area in which something exists in alesser or uncertain degree. Penumbral rights are rights thatthe Constitution does not specifically mention, but may beimplied by the rights that are enumerated. The idea ofpenumbral rights is not foreign to the Constitution. The 9thAmendment assures that ‘The enumeration in the Constitution,of certain rights, shall not be construed to deny or disparageothers retained by the people.’

necessary in a democratic societyThe test of ‘necessity in a democratic society’ requires the

Court to determine whether the interference corresponded to apressing social need. The Contracting States have a certainmargin of appreciation in assessing whether such a needexists, but it goes hand in hand with European supervision,embracing both the legislation and the decisions applying it,

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even those delivered by independent courts. The Court istherefore empowered to give the final ruling on whether a‘restriction’ is reconcilable with freedom of expression.

What the Court has to do is to look at the interferencecomplained of in the light of the case as a whole, includingthe content of the statements held against the applicant andthe context in which he or she has made them.In particular,the Court must determine whether the reasons adduced by thenational authorities to justify the interference were relevantand sufficient and whether the measure taken was proportionateto the legitimate aims pursued. In doing so, the Court has tosatisfy itself that the national authorities, basingthemselves on an acceptable assessment of the relevant facts,applied standards which were in conformity with the principlesof freedom of expression. Finally, the Court must alsoascertain whether the domestic authorities struck a fairbalance between the protection of freedom of expression andthe protection of the reputation of those against whomallegations have been made, a right which, as an aspect ofprivate life, is protected by the Convention.’ 402

referendum A referendum (also known as a plebiscite or a vote on a ballot

question) is a direct vote in which an entire electorate isasked to either accept or reject a particular proposal,usually a piece of legislation which has been passed into lawby the local legislative body and signed by the pertinentexecutive official(s). This may result in the adoption of anew constitution, a constitutional amendment, a law, therecall of an elected official or simply a specific governmentpolicy. It is a form of direct democracy.

A number of referendums are routinely held in variousjurisdictions:

Foreign policy-oriented referendum

402 Bozhkov v Bulgaria [1] ECHR 700 (an Article 10 case.)

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و Independence (also known as Political status, devolution, sovereignty, etc.) - areferendum which is held to determine how a jurisdiction relates to either anincumbent outside nation-state or to other nation-states.

و Treaty (also known as Accession, membership) - a referendum to approve theproposed accession of the nation-state to a treaty or intergovernmental relationship

Domestic policy-oriented referendum

و Constitutional (or charter) - a referendum which is held to ratify a proposedconstitution or constitutional amendment

و Prohibition - a referendum which is held to prohibit an action by private parties in ajurisdiction

و Rights - a referendum to determine the status of a class of people within ajurisdiction

federalismA system of government which has created, by written agreement, a

central and national government to which it has distributedspecified legislative (law-making) powers, and called thefederal government, and regional governments (or sometimescalled provinces or states) governments to which isdistributed other, specified legislative powers.

federal paramountcyA doctrine of constitutional law which gives priority to the

application of a federal statute where those terms conflictwith the operation of a provincial statute.

first amendmentThe amendment to US Constitution which sets out freedom of

expression.

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fourteenth amendmentA 1868, post-USA civil war amendment to US Constitution designed

to, inter alia, give full civil and legal rights to formerslaves.

fourth amendmentUS constitutional protection against unreasonable search or

arrest.open fields doctrineThere is no constitutionally protected expectation of privacy in

open spaces.democracyA form of government in which the people freely govern

themselves; where the executive (or administrative) and law-making (or legislative) power is given to persons chosen bythe population; the free people.

constitutional supremacyA system of government in which the law-making freedom of

parliamentary supremacy cedes to the requirements of aConstitution.

proportional representation Proportional representation (PR) is a concept in voting systems

used to elect an assembly or council. PR means that the numberof seats won by a party or group of candidates isproportionate to the number of votes received. For example,under a PR voting system if 30% of voters support a particularparty then roughly 30% of seats will be won by that party. PRis an alternative to voting systems based on single memberdistricts or on bloc voting; these non-PR systems tend toproduce disproportionate outcomes and to have a bias in favourof larger political groups. PR systems tend to produce aproliferation of political parties, while single memberdistricts encourage a two-party system.

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There are many different forms of proportional representation.Some are focused solely on achieving the proportionalrepresentation of different political parties (such as listPR) while others permit the voter to chose between individualcandidates (such as PR-STV). The degree of proportionalityalso varies; it is determined by factors such as the preciseformula used to allocate seats, the number of seats in eachconstituency or in the elected body as a whole, and the levelof any minimum threshold for election.

representative democracy Representative democracy is a variety of democracy founded on the

principle of elected people representing a group of people, asopposed to direct democracy.403 For example, two countrieswhich use representative democracy are the United Kingdom (aconstitutional monarchy) and Germany (a federal republic). Itis an element of both the parliamentary system andpresidential system of government and is typically used in alower chamber such as the House of Commons (UK) or Bundestag(Germany), and is generally curtailed by constitutionalconstraints such as an upper chamber. It has been described bysome political theorists as Polyarchy.

reverse incorporation (constitutional law)A similar legal doctrine to incorporation is that of reverse

incorporation. Whereas incorporation applies the Bill ofRights to the states though the Due Process Clause of theFourteenth Amendment, in reverse incorporation, the EqualProtection Clause of the Fourteenth Amendment has been held toapply to the federal government through the Due Process Clauselocated in the Fifth Amendment. 404 For example, in Bolling v.

403 Victorian Electronic Democracy : Glossary’. 28 July 2005. Archived from the original on 13 December 2007. Retrieved 14 December 2007.

404 Curtis, Michael Kent (1994) [8]. No State Shall Abridge (Second printing in paperback ed.). Duke University Press. pp. 5, 202. ISBN 0-8223-0599-2.

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Sharpe, 405, which was a companion case to Brown v. Board ofEducation406, the schools of the District of Columbia weredesegregated even though Washington is federal. Likewise, inAdarand Constructors, Inc. v. Peña407, an affirmative action program bythe federal government was subjected to strict scrutiny basedon equal protection.

405 347 U.S. 497 (1954)406 83 U.S. 36 (1873).407 515 U.S. 200 (1995)

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Powers of the GovernmentPUBLIC ORDER POWERS

harm principleIt holds that the actions of individuals should only be limited

to prevent harm to other individuals. John Stuart Mill firstarticulated this principle in On Liberty, where he argued that‘the only purpose for which power can be rightfully exercised over any member of acivilized community, against his will, is to prevent harm to others.’408

non-aggression principle, non-aggression axiom, anti-coercionprinciple, zero aggression principle, non-initiation of force,NAP

The non-aggression principle (also called the non-aggressionaxiom, the anti-coercion principle, the zero aggressionprinciple, the non-initiation of force), or NAP for short, isa moral stance which asserts that aggression is inherentlyillegitimate. Aggression, for the purposes of the NAP, isdefined as the initiation or threatening of violence against aperson or legitimately owned property of another.Specifically, any unsolicited actions of others thatphysically affect an individual’s property, including thatperson’s body, no matter if the result of those actions isdamaging, beneficiary or neutral to the owner, are consideredviolent when they are against the owner’s free will andinterfere with his right to self-determination, as based onthe libertarian principle of self-ownership. Supporters of NAPuse it to demonstrate the immorality of theft, vandalism,assault, and fraud. In contrast to pacifism, the non-aggression principle does not preclude violence used in self-defense or defense of others.409

408 John Stuart Mill (1859). On Liberty. Oxford University. pp. 21–22.409 Walter Block. ‘The Non-Aggression Axiom of Libertarianism

(LewRockwell.com, February 17, 2003)’. Retrieved 2011-11-12.

pg. 310


state of emergency A state of emergency is a governmental declaration that may

suspend some normal functions of the executive, legislativeand judicial powers, alert citizens to change their normalbehaviours, or order government agencies to implementemergency preparedness plans. It can also be used as arationale for suspending rights and freedoms, even ifguaranteed under the constitution. Such declarations usuallycome during a time of natural or man made disaster, duringperiods of civil unrest, or following a declaration of war orsituation of international or internal armed conflict.Justitium is its equivalent in Roman law. In some countries,the state of emergency and its effects on human rights andfreedoms and governmental procedure are regulated by theconstitution and/or a law that limits the powers that may beinvoked. Rights and freedoms may be suspended during anemergency, for instance, freedom of movement, but not non-derogable rights.410 In many countries it is illegal to modifythe emergency law or the constitution during the emergency.

emergency powersPresidential emergency powers should be distinguished into two

categories, even though the boundary between them is sometimesobscure: the power to act in a crisis based entirely on thepresident's own prerogative; and the power to act inaccordance with laws that give the executive special powers ina declared emergency. The latter is a long‐standing feature ofAmerican law; the former is, from the standpoint ofconstitutional theory, more problematic.411

410 Non derogable Rights and States of emergency", edited by D. Prémont, C. Stenersen, I. Oseredczuk, Bruylant, Brussells, 1996, 644p., ISBN 2-8027-0766-3, www.bruylant.be

411 U.S. Congress, The National Emergencies Act (Public Law 94–412). Source Book: Legislative History, Texts, and Other Documents (1976)

pg. 311


para-constitutional powersPresidential powers which are laws which are close to the

Constitution, such as minority legislation or electoral law. extra judicial powersPower of the president to order the hearing of a case to be

dropped, or the conviction to be set aside, or sentence to becommuted. This is power which is not within the regularjudcial process.

declaration of warAn explicit warning from one state to another, in the form either

of a reasoned intent to commence hostilities or of anultimatum which carries the same result.

decreeA decision or order of government or judicial body.unitary executive theory The unitary executive theory is a theory of American

constitutional law holding that the President controls theentire executive branch. The doctrine is based uponConstitution, which vests "the executive power" in thePresident. Although that general principle is widely accepted,there is disagreement about the strength and scope of thedoctrine.412 It can be said that some favor a "stronglyunitary" executive, while others favor a "weakly unitary"executive.413 The former group argue, for example, thatParliament's power to interfere with intra-executive decision-making (such as firing executive branch officials) is limited,and that the President can control policy-making by allexecutive agencies within the limits set for those agencies byCongress. Still others agree that the Constitution requires a

412 Lessig, Lawrence and Sunstein, Cass. "The President and the Administration," Columbia LawReview, Volume 94 (1994).

413 Id

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unitary executive, but believe this is a bad thing, andpropose its abolition by constitutional amendment.414

state of exception A state of exception is a concept in the legal theory of Carl

Schmitt, similar to a state of emergency, but based in thesovereign's ability to transcend the rule of law in the nameof the public good.

decree (executive order)A decree is a rule of law issued by a head of state (such as the

president of a republic), according to certain procedures(usually established in a constitution). It has the force oflaw. The particular term used for this concept may vary fromcountry to country—the executive orders made by the Presidentof the United States, for example, are decrees (although adecree is not exactly an order). In non-legal English usage,however, the term refers to any authoritarian decision and, inthis sense, it is often derogatory.

edictA decree or law of major import promulgated by a king, queen, or

other sovereign of a government. An edict can be distinguishedfrom a public proclamation in that an edict puts a new statuteinto effect whereas a public proclamation is no more than adeclaration of a law prior to its actual enactment.

proclamationA proclamation (Lat. proclamare, to make public by announcement)

is an official declaration. In English law, a proclamation isa formal announcement (‘royal proclamation’), made under thegreat seal, of some matter which the King in Council or QueenRegnant in Council desires to make known to his or hersubjects: e.g., the declaration of war, or state of emergency,

414 Berry, Christopher and Gersen, Jacob. “The Unbundled Executive”, University of Chicago Law Review(2008): "We certainly do not claim that the most sensible or even any plausibleinterpretation of the US Constitution establishes a plural unbundled executive; but perhapsit should."

pg. 313


the statement of neutrality, the summoning or dissolution ofParliament, or the bringing into operation of the provisionsof some statute the enforcement of which the legislature hasleft to the discretion of the king in the announcement .

rule by decreeRule by decree is a style of governance allowing quick,

unchallenged creation of law by a single person or group, andis used primarily by dictators and absolute monarchs, althoughphilosophers such as Giorgio Agamben have argued that it hasbeen generalized since World War I in all modern states,including representative democracies.

The expression is also sometimes used as a pejorative andpolemical hyperbole when describing actions of democraticgovernments that are perceived to unduly bypassparliamentarian or popular scrutiny.

Rule by decree allows the ruler to arbitrarily create law,without approval by a legislative assembly.

When states of emergency such as martial law are in place, ruleby decree is common. While rule by decree is easilysusceptible to the whims and corruption of the person inpower, it is also highly efficient: a law can take weeks ormonths to pass in a legislature, but can be created with thestroke of a pen by a leader ruling by decree. This is whatmakes it valuable in emergency situations.

moratoriumA moratorium is a delay or suspension of an activity or a law. In

a legal context, it may refer to the temporary suspension of alaw to allow a legal challenge to be carried out. For example,Animal rights activists and conservation authorities mayrequest fishing or hunting moratoriums to protect endangeredor threatened animal species. These delays, or suspensions,prevent people from hunting or fishing the animals indiscussion. Another instance is a delay of legal obligationsor payment. A legal official can order a delay of payment due

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to extenuating circumstances, which render one party incapableof paying another.

detention‘Detainee’ comes to us from the French détenus and its original

reference point was the French ‘police state’ of theeighteenth century. In particular, given the militarizedcontext of the wider ‘war on terror’, the detainee also smacksof regimes which employ the military as a means of policingcivil order. Symptomatically, detainees are usually also heldin spaces, camps or prisons controlled by the military. Thedetainee, in other words, is an emblematic figure of martiallaw. Indeed, detention, as a legal act, seeks to separate thestatus of the detained from that of both ‘prisoner’ and‘prisoner of war’, and hence form the basis central to thelegal manipulation of attempts to free them or even tocriticize their treatment. The detainee necessarily involvesderogation by the state from the fundamental norms of humanrights. In this sense the detainee is central to precisely thekind of rule against which liberal democracy purports to setitself: forms of ‘totalitarian’ rule or ‘police states’ ingeneral. Leaving aside the obvious fact that many of thosebeing detained have been tortured and almost all have beensubject to inhumane treatment, the central issue surroundingthem concerns one of the supposed foundation stones of liberaldemocracy: the principle of habeas corpus. The writ of habeascorpus has been used to reform and argue for release ofprisoners interned without charge or trial, affront to afundamental right of liberty and the associated belief thatany form of imprisonment must follow the rule of law.

cabinet collective responsibility Cabinet collective responsibility is constitutional convention in

governments using the Westminster System that members of theCabinet must publicly support all governmental decisions madein Cabinet, even if they do not privately agree with them.This support includes voting for the government in the

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legislature. In the United Kingdom, the doctrine applies toall members of the government, from members of the cabinetdown to Parliamentary Private Secretaries. Some politicalparties apply the convention to their central committee. Itsinner workings are set out in the Ministerial Code. It isrelated to the fact that, if a vote of no confidence is passedin parliament, the government is responsible collectively, andthus the entire government resigns. The consequence will bethat a new government will be formed, or parliament willdissolve and a general election will be called. Cabinetcollective responsibility is not the same as individualministerial responsibility, which states that ministers areresponsible and therefore culpable for the running of theirdepartments.

executive privilege doctrine Executive privilege is the power claimed by the President and

other members of the executive branch to resist certainsubpoenas and other interventions by the legislative andjudicial branches of government. The concept of executiveprivilege is not mentioned explicitly in the United StatesConstitution, but the Supreme Court of the United States ruledit to be an element of the separation of powers doctrine,and/or derived from the supremacy of executive branch in itsown area of Constitutional activity.415

The Supreme Court confirmed the legitimacy of this doctrine inUnited States v. Nixon416, but only to the extent of confirming thatthere is a qualified privilege. Once invoked, a presumption ofprivilege is established, requiring the Prosecutor to make a‘sufficient showing’ that the ‘Presidential material’ is‘essential to the justice of the case.’417. Chief JusticeBurger further stated that executive privilege would most

415 David and Jeanne Heidler, Henry Clay: The Essential American (2010) p.264416 418 U.S. 683 (1974)417 418 U.S. at 713-14

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effectively apply when the oversight of the executive wouldimpair that branch's national security concerns.

Historically, the uses of executive privilege underscore theuntested nature of the doctrine, since Presidents havegenerally sidestepped open confrontations with the UnitedStates Congress and the courts over the issue by firstasserting the privilege, then producing some of the documentsrequested on an assertedly voluntary basis.

censorship (internet)The concept of freedom of information has emerged in response to

state sponsored censorship, monitoring and surveillance of theinternet. Internet censorship includes the control orsuppression of the publishing or accessing of information onthe Internet.418 A widely publicized example of internetcensorship is the ‘Great Firewall of China’ (in reference bothto its role as a network firewall and to the ancient GreatWall of China). The system blocks content by preventing IPaddresses from being routed through and consists of standardfirewall and proxy servers at the Internet gateways. Thesystem also selectively engages in DNS poisoning whenparticular sites are requested. The government does not appearto be systematically examining Internet content, as thisappears to be technically impractical.419 Internet censorshipin the People's Republic of China is conducted under a widevariety of laws and administrative regulations. In accordancewith these laws, more than sixty Internet regulations havebeen made by the People's Republic of China (PRC) government,and censorship systems are vigorously implemented by

418 Deibert, Robert; Palfrey, John G; Rohozinski, Rafal; Zittrain, Jonathan (2008). Access denied: the practice and policy of global Internet filtering. MIT Press.

419 Watts, Jonathan (February 20, 2006). "War of the words". London: The Guardian.

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provincial branches of state-owned ISPs, business companies,and organizations.420

delegated legislationDelegated legislation (also referred to as secondary legislation

or subordinate legislation) is law made by an executiveauthority under powers given to them by primary legislation inorder to implement and administer the requirements of thatprimary legislation. It is law made by a person or body otherthan the legislature but with the legislature's authority.

ministerial responsibilityMinisterial responsibility or individual ministerial

responsibility is a constitutional convention in governmentsusing the Westminster System that a cabinet minister bears theultimate responsibility for the actions of their ministry ordepartment. Individual ministerial responsibility is not thesame as cabinet collective responsibility, which statesmembers of the cabinet must approve publicly of its collectivedecisions or resign. This means that a motion for a vote of‘no confidence’ is not in order should the actions of an organof Government fail in the proper discharge of theirresponsibilities. Where there is ministerial responsibility,the accountable Minister is expected to take the blame andultimately resign, but the majority or coalition withinParliament of which the Minister is part, is not held to beanswerable for that Minister's failure. The principle isconsidered essential, as it is seen to guarantee that anelected official is answerable for every single governmentdecision. It is also important to motivate ministers toclosely scrutinize the activities within their departments.One rule coming from this principle is that each cabinetmember answers for their own ministry in QuestionTime/Question Period. The reverse of ministerialresponsibility is that civil servants are not supposed to take

420 II. How Censorship Works in China: A Brief Overview". Human Rights Watch. Retrieved 2006-08-30.

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credit for the successes of their department, allowing thegovernment to claim them.

oath of alegienceAn oath of allegiance is an oath whereby a subject or citizen

acknowledges a duty of allegiance and swears loyalty tomonarch or country. In republics, modern oaths specifyallegiance to the country's constitution. However, in aconstitutional monarchy, oaths are sworn to the monarch. Oathsof allegiance are commonly required of newly-naturalisedcitizens, members of the armed forces, and those assumingpublic (particularly parliamentary and judicial) office.

prerogative ordersAn Order in Council made under the Royal Prerogative is primary

legislation, and does not depend on any statute for itsauthority, although it may be overridden by an Act ofParliament. 421 This type has become less common with thepassage of time, as statutes encroach on areas which used toform part of the Royal Prerogative.

delegated legislationExecutive order (United States), an order by the President of the

United States to officers and employees of the executivebranch which is sometimes incorrectly considered equivalent toan Order-in-Council. In fact, Article, I of US Constitutionreserves all federal legislative authority to the UnitedStates Congress except for the Presidential veto and even thatcan be overridden by Congress.

orders in councilAn Order in Council is a type of legislation in many countries,

typically those in the Commonwealth of Nations. In the UnitedKingdom this legislation is formally made in the name of the

421 Council of Civil Service Unions v. Minister for the Civil Service [8] 374 at 399, per Lord Fraser of Tullybelton

.

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Queen by the Privy Council (Queen-in-Council), but in othercountries the terminology may vary. The term should not beconfused with Order of Council.

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ADMINISTRATIVE POWER ON THE SEA

york-antwerp rulesA set of internationally-accepted rules, first published in 1890,

proposing points of detail in the application of the maritimelaw principle of general average.

international convention on salvage, 1989An international treaty which standardizes, for signatories, the

rules related to salvage and the compensation thereof.high seasA term of international and maritime law; the open ocean, not

part of the exclusive economic zone, territorial sea orinternal waters of any state.

international jurisdiction (territorial waters)The exclusive jurisdiction of the flag state422 is not absolute.

There are several exceptions by which other states are grantedin varying degrees a share of legislative or enforcementjurisdiction with the flag state. This sharing of jurisdictionis related in four cases to offences and in two cases to thenationality of vessels. These provisions are not derived from acommon structure, although some of them are of ancient origin.

Only two basic principles in these provisions find some generalapplication.

1. One is that the states are required to co-operate in the repression of theoffences of piracy,423 illicit drug trade,424 and unauthorized broadcasting;425 co-

422 Art. 92, Para. 1423 Art. 100424 Art. 108, Para. 1425 Art. 109, Para. 1

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operation is not, on the other hand, expected for the prevention of transport ofslaves.426

2. Secondly, warships and other vessels and aircraft clearly on government service427 havea right of visit on foreign vessels suspected of involvement in piracy, the slave trade, orunauthorized broadcasting.428

Government vessels also have a right of visit on vessels withoutnationality (important in the case of vessels which sail underthe flags of two or more states429) and on vessels of apparentlythe same nationality as the government ship, even though flyinga different flag or refusing to show any flag at all,430 inreality a question of flag state jurisdiction. In the case ofships involved in illicit drug trade, the jurisdiction of theflag state remains in this respect unchallenged.431 But the flagstate may request co-operation from another state, including theconducting of a visit on board.432

The jurisdiction of other states on foreign vessels as granted inthe right to visit by duly authorized government vessels islimited to cases of suspicion of certain activities (piracy,slave trade, unauthorized broadcasting, sailing withoutnationality, practicing deception with regard tonationality);433 the boarding vessel may verify the right of theship to fly the flag. By checking its documents and, ifsuspicion remains, proceed to a further investigation.434 Onlyin cases of piracy and unauthorized broadcasting are the rightsof other states considerably extended.435 It is significant thatthe definition of piracy presumes the involvement of at least

426 Art. 99427 Art. 110, Para. 1, 4, 5428 Art. 110, Subpara. 1(a-c)429 Art. 92, Para. 2 (110, 1(d))430 Art. 110, Subpara. 1(e)431 Art. 108, 110432 Art. 108, Para. 2433 Art. 110, Para. 1434 Art. 110, Para. 2435 Art. 101-107; 109

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two vessels, a pirate vessel and a victim vessel,436 thusexcluding hijacking as it has been practiced in recent yearsfrom being treated as piracy. Piracy is the only case in whichevery state's official vessels may carry out a seizure437 andthe state exercises full jurisdiction with regard to penaltiesto be imposed and action to be taken.438 Actions of arrest andseizure due to unauthorized broadcasting, on the other hand,may be carried out only by states affected by unlawfulbroadcasting.439

hot pursuitThe right of hot pursuit440 has developed of itself. It allows an

official vessel to extend the sovereignty of the coastal statebeyond the territorial sea by maintaining an uninterruptedchase of a fleeing merchant vessel. The pursuing vessel must beauthorized to make arrests. Hot pursuit may commence when thecoastal state has good reason to believe that the foreignvessel has violated the state's laws and regulations and thevessel has disobeyed a clear order to stop. The chase mustbegin within the limits of the territorial sea or, whererelevant rights have been violated, in zones further out. Theright of hot pursuit ceases when the chase is interrupted orthe vessel reaches the territorial sea of its own state or athird state.

law of the flag principleA principle of maritime and international law; that the sailors

and vessel will be subject to the laws of the statecorresponding to the flag flown by the vessel.

In US v Jho441, Justice Garza wrote:436 Art. 101437 Art. 107; see also Bernaerts’ Guide To The 1982 United Nations Convention

On The Law Of The Sea. 438 Art. 105439 Art. 109, Para.3-4440 Art. 111441 Id.

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‘The law of the flag doctrine ... provides that a merchant ship is part of the territory ofthe country whose flag she flies, and that actions aboard that ship are subject to thelaws of the flag state.

‘However ... jurisdiction may be exercised concurrently by a flag state and a territorialstate.’

‘The law of the flag doctrine does not mandate that anything thatoccurs aboard a ship must be handled by the flag state.... Thelaw of the flag doctrine does not completely trump asovereign's territorial jurisdiction to prosecute violationsof its laws. The law of the flag doctrine is chieflyapplicable to ships on the high seas, where there is noterritorial sovereign; and as respects ships in foreignterritorial waters it has little application beyond what isaffirmatively or tacitly permitted by the local sovereign.

‘The flag state's jurisdiction is not exclusive when the ship isin a port or internal waters of another state.’

port state jurisdictionIn international law the control and detention of ships by a port

State for events occurring within the port can be readilyjustified, for 'the port', an inland water of Australia, ispart of the territory of Australia and under international lawthe principle of territorial sovereignty generates/bestowsjurisdiction over events happening within that territory. Inshort the fact that ports are within Australian territorygives the Australian State jurisdiction over what happens inthem. It is important though at the outset to make thedistinction between jurisdiction over ships for eventsoccurring in port and the jurisdiction the LOSC confers overships when in port in relation to actions occurring beforethey enter port. The former jurisdiction goes with theterritory, the latter is extra-territorial and thereforeextraordinary; the LOSC confers the latter442.

442 (1995) 11MLAANZ Journal — Part 1

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freedom of the high seasThe dominant theme in the international law of the sea dating

from the late eighteenth Century has been that the high seasare res cornmunis — common property — and not capable ofacquisition by any one State. Before the eighteenth Century anotion of closed seas had existed in which acquisition of thehigh seas was possible. Commercial and naval interests thoughbrought an end to mare clausum and ushered in the concept ofmare liberum — freedom of the seas443.

Remembering the classic presumption in international law is thatif you have sovereignty over the territory you havejurisdiction over the events occurring in that territory, itwas natural to presume that no one nation could havejurisdiction over ships navigating and fishing on the highseas because the high seas could not be acquired by any onenation as territory. However international law had alsodeveloped the notion of flag state jurisdiction; that is theState whose flag the ship carried had jurisdiction over theship wherever it may be, including the high seas. This wasvital to maintaining public order for without flag statejurisdiction, ships on the high seas would have been beyondall commands.444

Of course there were limited exceptions — piracy, flying withouta flag and hot pursuit gave some jurisdiction to non flagstates. And more recently the Intervention Convention 1969which allowed coastal states to intervene in disastersoccurring on the high seas that threatened their coasts (andnow embodied in Article 221 LOSC). However the generalprinciple was that what happened to ships on the high seasremained in the control of the flag state.

443 Shearer I., 'Problems of Jurisdiction and Law Enforcement Against Delinquent Vessels' (1986)35ICLQ 320.

444 See Brownlie supra n 3 at 178 and 233-4; see the modern restatement in LOSC Article 87.

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flag-stateThe ship shall always carry a flag of a State. This is regularly

the flag of a State in whose register the ship is. As well asidentifying the nationality of the ship, the flag alsoindicates which State is authorized to exercise flag Statejurisdiction over the vessel. The principle that the flagState has the primary responsibility for the regulation of theship carrying its flag is still intact.

legislative jurisdiction State legislative jurisdiction is the State’s ‘sovereignty’ and

thereby the competence to adopt laws and regulations. freedom of navigationFreedom of navigation is a principle of customary international

law that, apart from the exceptions provided for ininternational law, ships flying the flag of any sovereignstate shall not suffer interference from other states.445 Thisright is now also codified as article 87(1)a of the 1982United Nations Convention on the Law of the Sea. However, notall UN member states have ratified the convention; notably,the United States has signed, but not ratified theconvention446.

flag state principle According to this principle, the flag state is responsible for

the reports from all vessels carrying its flag. The flagstate principle ensures that vessels on the high seas will notbe interfered by other states than the state of the flag thatit is flying. Accordingly, reconsideration of the flag stateprinciple essentially extends to that of the freedom ofnavigation.

445 Campbell, "USS Caron’s Black Sea Scrape Furthered International Law, National Interest", THEVIRGINIAS-PILOT AND THE LEDGER STAR", June 12, 1988, at C3, col. 1.

446 Dupuy, R.J., Vignes, D. (1991) A handbook on the new law of the sea. Martinus Nijhoff Publishers, ISBN 0-7923-1063-2

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equidistance principle/ meridian principle The equidistance principle or principle of equidistance is a

legal concept stating that a nation's maritime boundariesshould conform to a median line equidistant from the shores ofneighboring nation-states.447 This concept was developed in theprocess of settling disputes where the borders of adjacentnations were located on a contiguous continental shelf.

An equidistance line is one for which every point on the line isequidistant from the nearest points on the baselines beingused. The equidistance principle is a methodology that hasbeen endorsed by the UNCLOS treaty, but predates the treatyand has been used by the Supreme Court of the United States,states, and nations to equitably establish boundaries. 448

The principle of equidistance represents one aspect of customaryinternational law, but its importance is evaluated in light ofother factors,449 such as history:

‘Historic rights’ or titles of some or another kind will acquire enhanced, rather thandiminished, importance as a result of the narrowing of the 'physical' rather than the'legal' sources of right. The identification of a 'status quo' or 'modus vivendi' line inTunisia–Libya was of decisive importance in confirming the equitableness of the firststage of delimitation. States will scrupulously avoid, more than ever, anyappearance of acquiescence where acquiescence is not intended; prudentcoordination can be expected between petroleum and mining ministries and thelegal advisers of foreign ministries.’ 450

447 Dorinda G. Dallmeyer and Louis De Vorsey. (1989). Rights to Oceanic Resources: Deciding and Drawing Maritime Boundaries. Dordrecht: Martinus Nijhoff Publishers. 10-ISBN 079230019X/13-ISBN 9780792300199; OCLC 18981568

448 Kaye, Stuart B. (1995). Australia's maritime boundaries. Wollongong, New South Wales: Centre for Maritime Policy (University of Wollongong). 10-ISBN0864183925/13-ISBN 9780864183927; OCLC 38390208, pp. 12, 172.

449 Highet, Keith. (1989). "Whatever became of natural prolongation," in Rights to Oceanic Resources: Deciding and Drawing Maritime Boundaries, (Dorinda G. Dallmeyer et al., editors), pp. 97 at Google Books.

450 Id

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International law refers to equidistance. For example, Article 6of the 1958 Geneva Convention on the Continental Shelfexplains:

‘Where the same continental shelf is adjacent to the territories of two or more Stateswhose coasts are opposite each other, the boundary of the continental shelfappertaining to such States shall be determined by agreement between them. In theabsence of agreement, and unless another boundary line is justified by specialcircumstances, the boundary is the median line, every point of which is equidistantfrom the nearest points of the baselines from which the breadth of the territorial seaof each State is measured.’451

natural prolongation principleThe natural prolongation principle or principle of natural

prolongation is a legal concept sgating that a nation'smaritime boundaries should reflect the 'natural prolongation'of where its land territory reaches the coast.452 This conceptwas developed in the process of settling disputes where theborders of adjacent nations were located on a contiguouscontinental shelf. 453

The phrase natural prolongation was established as a concept inthe North Sea Continental Cases454 in 1969. 455

The relevance and importance of natural prolongation as a factorin delimitation disputes and agreements has declined during

451 Dorinda G. Dallmeyer and Louis De Vorsey. (1989). Rights to Oceanic Resources: Deciding and Drawing Maritime Boundaries. Dordrecht: Martinus Nijhoff Publishers. 10-ISBN 079230019X/13-ISBN 9780792300199; OCLC 18981568

452 Highet, Keith. (1989). "Whatever became of natural prolongation," in Rights to Oceanic Resources: Deciding and Drawing Maritime Boundaries, (Dorinda G. Dallmeyer et al., editors), pp. 87–100. at Google Books

453 Capaldo, Giuliana Ziccardi. (1995). Répertoire de la jurisprudence de la cour internationale de justice (1947–1992). p. 409. at Google Books.

454 North Sea Continental Shelf Cases (Federal Republic of Germany v Denmark; Federal Republic of Germany v Netherlands) ICJ Reports 4 at 42.

455 Kaye, Stuart B. (1995). Australia's maritime boundaries. Wollongong, New South Wales: Centre for Maritime Policy (University of Wollongong). 10-ISBN0864183925/13-ISBN 9780864183927; OCLC 38390208, pp. 12, 172.

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the period in which international acceptance of UNCLOS III hasexpanded. 456

The Malta/Libya Case457 in 1985 is marked as the eventual demiseof the natural prolongation principle being used in delimitingbetween adjoining national maritime boundaries. 458

duty to assist at sea The duty to assist at sea is a fundamental part of U.S. maritime

law. In Caminiti v. Tomlinson Fleet Corp.,459 passengers wentoverboard from their pleasure craft and two ships passed byand didn't stop, with one of the ships even shining itsspotlight on the men struggling in the water before callouslyproceeding on. The men drowned. The shipping companies deniedthey had any obligation to assist the drowning men. The Courtdisagreed, finding that the ‘law of the sea has always demanded a higherdegree of care, vigilance and diligence.’ The duty to rescue ‘strangers in peril’exists even if the ships did not cause the peril in the firstplace. The Court stated that to accept the shipping companies'argument would create a situation ‘shocking to humanitarianconsiderations and the commonly accepted code of social conduct.’

Currently, there are several international conventions whichimpose a duty on ships to assist individuals in distress atsea.

1) The Search and Rescue (SAR) Convention of 1979 gives a cleardefinition of the term ‘Rescue’. It involves not only ‘anoperation to retrieve persons in distress, provide for theirinitial medical or other needs’ but also to ‘deliver them to aplace of safety’. This obligation to initiate action isactivated once the responsible authorities of a State Party

456 Highet, pp. 89–90. at Google Books; 457 Case Concerning the Continental Shelf (Libyan Arab Jamahiriya v Malta)

(Judgment) [8] ICJ Reports 13 at 29458 See Francalanci, Giampiero; Tullio Scovazzi; and Daniela Romanò. (1994).

Lines in the Sea. Dordrecht: Martinus Nijhoff Publishers. 10-ISBN 0792328469; 13-ISBN 9780792328469; OCLC 30400059

459 1981 MAC 201 (E.D. Ohio)

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receive information that any person is, or appears to be, indistress at sea. It further states that, once a State Partyhas accepted responsibility to provide search and rescueservices for a specified area, it is obliged to use search andrescue units and other available facilities for providingassistance to anyone in distress at sea, and that suchassistance is to be provided ‘regardless of the nationality orstatus of such a person or the circumstances in which thatperson is found’.

2) The Safety of Life at Sea Convention (SOLAS) spells out theobligation on ships' masters to render assistance. It says,‘The master of a ship at sea which is in a position to be able to provide assistance,on receiving a signal from any source that persons are in distress at sea, is bound toproceed with all speed to their assistance, if possible informing them or the searchand rescue service that the ship is doing so.’ Elsewhere, it stipulates that contractingGovernments should undertake ‘to ensure that necessary arrangements are made …for the rescue of persons in distress at sea around its coasts.’

The Salvage Convention of 1989, while primarily concerned withthe salvage of property and the prevention of marinepollution, nevertheless restates the SOLAS obligation on themaster to render assistance to any person in danger of beinglost at sea.

The Convention on Facilitation of International Maritime Traffic(FAL Convention) sets forth special facilitation measures forships calling at ports in order to put ashore sick or injuredcrew members, passengers or other persons for emergencymedical treatment.

The LOSC provides for duty to assist persons in distress at sea;a long-established rule of customary international law. Itextends both to other vessels and coastal States in thevicinity, and all persons, including irregular maritimemigrants, remain protected. It has been codified in LOSC,which prescribes relevant duties for both the flag and the

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coastal States. First, with regard to flag States, article 98 (1)of LOSC provides that:

‘Every State shall require the master of a ship flying its flag, in so far as he can do sowithout serious danger to the ship, the crew, or the passengers … to renderassistance to any person found at sea in danger of being lost … and to proceed tothe rescue of persons in distress, if informed of their need for assistance, in so far assuch action may be reasonably be expected of him.’

Then, with regard to coastal States, article 98 (2) of LOSCstipulates:

‘Every coastal State shall promote the establishment, operation and maintenance of anadequate and effective search and rescue service regarding safety on and over thesea and, where circumstances so require, by way of mutual regional arrangementscooperate with neighbouring States for this purpose’

All the conventions essentially state that a captain of a shiponce notified of persons in distress shall proceed with allspeed to their assistance.

continental shelfThe continental shelf is the extended perimeter of each continent

and associated coastal plain. Much of the shelf was exposedduring glacial periods, but is now submerged under relativelyshallow seas (known as shelf seas) and gulfs, and wassimilarly submerged during other interglacial periods.

The continental margin, between the continental shelf and theabyssal plain, comprises a steep continental slope followed bythe flatter continental rise. Sediment from the continentabove cascades down the slope and accumulates as a pile ofsediment at the base of the slope, called the continentalrise. Extending as far as 500 km from the slope, it consistsof thick sediments deposited by turbidity currents from theshelf and slope.460 The continental rise's gradient is

460 Gross, Grant M. Oceanography: A View of the Earth. Englewood Cliffs: Prentice-Hall, Inc., 1972. ISBN 0-13-629659-9

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intermediate between the slope and the shelf, on the order of0.5-1°.461

Under the United Nations Convention on the Law of the Sea, thename continental shelf was given a legal definition as thestretch of the seabed adjacent to the shores of a particularcountry to which it belongs. Such shores are also known asterritorial waters.

cannon shot' ruleThe rule by which a state has territorial sovereignty of that

coastal sea within three miles of land. Its name derives fromthe fact that in the 17th century this limit roughlycorresponded to the outer range of coastal artillery weaponsand therefore reflected the principle terrae dominum finitur,ubi finitur armorium vis (the dominion of the land ends wherethe range of weapons ends). The rule is now not widelyrecognized: many nations have established a 6- or 12-milecoastal limit. See also territorial waters.

high seas doctrineHigh seas, in maritime law, are all parts of the mass of

saltwater surrounding the globe that are not part of theterritorial sea or internal waters of a state. For severalcenturies beginning in the European Middle Ages, a number ofmaritime states asserted sovereignty over large portions ofthe high seas. Well-known examples were the claims of Genoa inthe Mediterranean and of Great Britain in the North Sea andelsewhere.

The doctrine that the high seas in time of peace are open to allnations and may not be subjected to national sovereignty(freedom of the seas) was proposed by the Dutch jurist HugoGrotius as early as 1609. It did not become an acceptedprinciple of international law, however, until the 19thcentury. Freedom of the seas was ideologically connected with

461 Pinet, Paul R. (1996) Invitation to Oceanography. St. Paul, MN: West Publishing Co., 1996. ISBN 0-7637-2136-0 (3rd ed.)

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other 19th-century freedoms, particularly laissez-faireeconomic theory, and was vigorously pressed by the greatmaritime and commercial powers, especially Great Britain.Freedom of the high seas is now recognized to include freedomof navigation, fishing, the laying of submarine cables andpipelines, and overflight of aircraft.

By the second half of the 20th century, demands by some coastalstates for increased security and customs zones, for exclusiveoffshore-fishing rights, for conservation of maritimeresources, and for exploitation of resources, especially oil,found in continental shelves caused serious conflicts. Thefirst United Nations Conference on the Law of the Sea, meetingat Geneva in 1958, sought to codify the law of the high seasbut was unable to resolve many issues, notably the maximumpermissible breadth of the territorial sea subject to nationalsovereignty. A second conference (Geneva, 1960) also failed toresolve this point; and a third conference began in Caracas in1973, later convening in Geneva and New York City.

visit and search Procedure adopted by a belligerent warship to ascertain whether

a merchant vessel is liable to seizure. If an inspection ofthe papers shows the ship to be an enemy vessel or to becarrying contraband, breaking blockade, or engaging inunneutral service, it is immediately captured. More oftenthere is merely suspicion of such activities, in which casethe vessel may be searched. If the searchers are satisfied thevessel is innocent, it is allowed to proceed. If suspicionremains, it may be brought into port for a more thoroughsearch. If it is finally declared innocent and a prize courtconsiders there was no probable cause for capture, the courtmay order damages to be paid.

As the size of modern ships makes it impossible to search themthoroughly on the high seas, the practice of taking themautomatically into port for search was adopted by Britishwarships in World War I. The United States, however, protested

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on the ground that international law did not permit diversionof the vessel unless search at sea showed probable cause forcapture. As a result, the British adopted the navicert systemin 1916. The navicert issued by the belligerent’srepresentative in a neutral country was tantamount to a ship’spassport, possession of which ensured, in the absence ofsuspicious circumstances, that the vessel would be allowed toproceed on its way.

While the principle of freedom of the seas normally forbids visitand search of foreign merchant vessels on the high seas intime of peace, the practice has occasionally been extended to“pacific blockades” instituted as measures of reprisal,usually by a large state against a small one. On Oct. 23,1962, for example, U.S. Pres. John F. Kennedy proclaimed a“quarantine” of Cuba, under which any vessel suspected ofcarrying prohibited materials, especially missiles, to Cubawould be intercepted within a designated zone around Cuba,stopped, visited, searched, and, if found to be carrying suchmaterials, diverted. If it attempted to escape or resist, itwould be shot at and perhaps sunk. A few Soviet vessels werediverted, but none were sunk, and the crisis was soonterminated. This procedure, which resembled pacific blockade,was criticized as contrary to the UN Charter, which prohibitedthe use or threat of force except in defense against armedattack.

navicert systemNavicert is a certificate specifying the contents of a neutral

ship's cargo, issued esp in time of war by a blockading power.The navicert issued by the belligerent’s representative in aneutral country was tantamount to a ship’s passport,possession of which ensured, in the absence of suspiciouscircumstances, that the vessel would be allowed to proceed onits way.

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prize courtA municipal (national) court in which the legality of captures of

goods and vessels at sea and related questions are determined.During time of war private enemy ships and neutral merchantmen

carrying contraband are subject to seizure. Title to suchvessels and their cargoes does not immediately pass to thecaptor state but, under international law, must be adjudicatedby the captor state’s prize court, which may condemn them aslawful prizes. Enemy warships, enemy public ships (such asprison ships), and neutral ships participating in hostilities,on the other hand, are subject to capture. Title in thempasses immediately to the captor state and is not subject tocondemnation by a prize court.

Although prize courts are municipal courts, and their characterand organization are thus determined by national tradition andlaw, they apply customary and conventional international law.There is a practice of long standing for belligerents, at theoutbreak of war, to enact prize law through statutorylegislation; such enactments are presumed to be declaratory ofinternational law but are, in any event, binding on thecourts.

In the 20th century, unrestricted sea warfare involving thedestruction of merchant shipping has reduced the role of prizecourts. The United States has held no prize courts since 1899for the additional reason of its more liberal policy ofrequisitioning foreign vessels with compensation rather thanappropriating them as prizes.

mare liberum principleThe United Nations Convention on the Law of the Sea (UNCLOS),

also called the Law of the Sea Convention or the Law of theSea treaty, is the international agreement that resulted fromthe third United Nations Conference on the Law of the Sea(UNCLOS III), which took place between 1973 and 1982. The Lawof the Sea Convention defines the rights and responsibilities

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of nations in their use of the world's oceans, establishingguidelines for businesses, the environment, and the managementof marine natural resources.462

The UNCLOS replaces the older and weaker 'freedom of the seas'concept, dating from the 17th century: national rights werelimited to a specified belt of water extending from a nation'scoastlines, usually three nautical miles, according to the'cannon shot' rule developed by the Dutch jurist Cornelius vanBynkershoek. All waters beyond national boundaries wereconsidered international waters: free to all nations, butbelonging to none of them (the mare liberum principlepromulgated by Grotius).

internal watersCovers all water and waterways on the landward side of the

baseline. The coastal state is free to set laws, regulate use,and use any resource. Foreign vessels have no right of passagewithin internal waters.

territorial watersOut to 12 nautical miles (22 kilometres; 14 miles) from the

baseline, the coastal state is free to set laws, regulate use,and use any resource. Vessels were given the right of innocentpassage through any territorial waters, with strategic straitsallowing the passage of military craft as transit passage, inthat naval vessels are allowed to maintain postures that wouldbe illegal in territorial waters. "Innocent passage" isdefined by the convention as passing through waters in anexpeditious and continuous manner, which is not "prejudicialto the peace, good order or the security" of the coastalstate. Fishing, polluting, weapons practice, and spying arenot "innocent", and submarines and other underwater vehiclesare required to navigate on the surface and to show theirflag. Nations can also temporarily suspend innocent passage in

462 "The United Nations Convention on the Law of the Sea (A historical perspective)". UnitedNations Division for Ocean Affairs and the Law of the Sea. Retrieved April 30, 2009.

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specific areas of their territorial seas, if doing so isessential for the protection of its security.

archipelagic state An archipelagic state is any internationally recognized state or

country that comprises a series of islands that form anarchipelago. The term is defined by the United NationsConvention on the Law of the Sea in order to define whatborders such states should be allowed to claim.

In various conferences of the United Nations on the Law of theSea (UNCLOS),463 Indonesia, the Philippines, Papua New Guinea,Fiji and the Bahamas are the five sovereign nations thatobtained approval in the UN Convention on the Law of the Sea(UNCLOS) held in Jamaica on December 10, 1982 and qualified asArchipelagic States.464

Archipelagic States are states that are composed of groups ofislands forming a state as a single unit, with the islands andthe waters within the baselines as internal waters. Under thisconcept ("Archipelagic doctrine"), an archipelago shall beregarded as a single unit, so that the waters around, between,and connecting the islands of the archipelago, irrespective oftheir breadth and dimensions, form part of the internal watersof the state, and are subject to its exclusive sovereignty.

The approval of the United Nations for the 5 countries asArchipelagic States respect465 existing agreements with otherStates and shall recognize traditional fishing rights andother legitimate activities of the immediately adjacentneighboring States in certain areas falling withinarchipelagic waters. The terms and conditions for the exerciseof such rights and activities, including the nature, theextent and the areas to which they apply, shall, at the

463 "Preamble to the United Nations Convention on the Law of the Sea: Article 46 - Use ofTerms". United Nations. May 13, 2013.

464 "United Nations Convention on the Law of the Sea of 10 December 1982". United Nations. May13, 2013.

465 "2 laws UNLCOS 200 and Archipelagic States to End Spratlys Disputes: THE ARCHIPELAGICSTATES". Rebuilding for the Better Philippines. May 13, 2013.

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http://www.betterphils.blogspot.com/2011/10/2-laws-unlcos-200-and-archipelagic.html

http://www.betterphils.blogspot.com/2011/10/2-laws-unlcos-200-and-archipelagic.html

http://en.wikipedia.org/wiki/United_Nations

http://www.un.org/Depts/los/convention_agreements/convention_overview_convention.htm


http://www.un.org/depts/los/convention_agreements/texts/unclos/part4.htm



request of any of the States concerned, be regulated bybilateral agreements between them. Such rights shall not betransferred to or shared with third States or theirnationals.466

archipelagic watersThe convention set the definition of Archipelagic States in Part

IV, which also defines how the state can draw its territorialborders. A baseline is drawn between the outermost points ofthe outermost islands, subject to these points beingsufficiently close to one another. All waters inside thisbaseline are designated Archipelagic Waters. The state hasfull sovereignty over these waters (like internal waters), butforeign vessels have right of innocent passage througharchipelagic waters (like territorial waters).

contiguous zoneBeyond the 12-nautical-mile (22 km) limit, there is a further 12

nautical miles (22 km) from the territorial sea baselinelimit, the contiguous zone, in which a state can continue toenforce laws in four specific areas: customs, taxation,immigration and pollution, if the infringement started withinthe state's territory or territorial waters, or if thisinfringement is about to occur within the state's territory orterritorial waters.467 This makes the contiguous zone a hotpursuit area.

exclusive economic zones (eezs)These extend from the edge of the territorial sea out to 200

nautical miles (370 kilometres; 230 miles) from the baseline.Within this area, the coastal nation has sole exploitationrights over all natural resources. In casual use, the term mayinclude the territorial sea and even the continental shelf.The EEZs were introduced to halt the increasingly heated

466 "PART IV ARCHIPELAGIC STATES: Article 51 - Existing agreements, traditional fishing rightsand existing submarine cables". United Nations. May 13, 2013.

467 "SECTION 4. CONTIGUOUS ZONE, Article 33". UNCLOS PART II – TERRITORIAL SEA AND CONTIGUOUSZONE. United Nations. Retrieved 2012-01-19.

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clashes over fishing rights, although oil was also becomingimportant. The success of an offshore oil platform in the Gulfof Mexico in 1947 was soon repeated elsewhere in the world,and by 1970 it was technically feasible to operate in waters4000 metres deep. Foreign nations have the freedom ofnavigation and overflight, subject to the regulation of thecoastal states. Foreign states may also lay submarine pipesand cables.

continental shelfThe continental shelf is defined as the natural prolongation of

the land territory to the continental margin’s outer edge, or200 nautical miles (370 km) from the coastal state’s baseline,whichever is greater. A state’s continental shelf may exceed200 nautical miles (370 km) until the natural prolongationends. However, it may never exceed 350 nautical miles (650kilometres; 400 miles) from the baseline; or it may neverexceed 100 nautical miles (190 kilometres; 120 miles) beyondthe 2,500 meter isobath (the line connecting the depth of2,500 meters). Coastal states have the right to harvestmineral and non-living material in the subsoil of itscontinental shelf, to the exclusion of others. Coastal statesalso have exclusive control over living resources "attached"to the continental shelf, but not to creatures living in thewater column beyond the exclusive economic zone.

freedom of the seasFreedom of the seas is a principle in the international law and

law of the sea. It stresses freedom to navigate the oceans. Italso disapproves of war fought in water. The freedom is to bebreached only in a necessary international agreement. Thedoctrine that the high seas in time of peace are open to allnations and may not be subjected to national sovereignty( freedom of the seas) was proposed by the Dutch jurist HugoGrotius as early as 1609. It did not become an acceptedprinciple of international law, however, until the 19thcentury. Today, the concept of "freedom of the seas" can be

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found in the United Nations Convention on the Law of the Sea"under Article 87(1) which states: "the high seas are open toall states, whether coastal or land-locked." Article 87(1) (a)to (f) gives a non-exhaustive list of freedoms includingnavigation, overflight, the laying of submarine cables,building artificial islands, fishing and scientific research.

possessory action (admiralty practice )A possessory suit is one which is brought to recover the

possession of a vessel, had under a claim of title. admiralty law or maritime law admiralty law (also referred to as maritime law) is a distinct

body of law which governs maritime questions and offenses. Itis a body of both domestic law governing maritime activities,and private international law governing the relationshipsbetween private entities which operate vessels on the oceans.It deals with matters including marine commerce, marinenavigation, shipping, sailors, and the transportation ofpassengers and goods by sea. admiralty law also covers manycommercial activities, although land based or occurring whollyon land, that are maritime in character.

admiralty law is distinguished from the Law of the Sea, which isa body of public international law dealing with navigationalrights, mineral rights, jurisdiction over coastal waters andinternational law governing relationships between nations.

Although each legal jurisdiction usually has its own enactedlegislation governing maritime matters, admiralty law ischaracterized by a significant amount of international lawdeveloped in recent decades, including numerous multilateraltreaties.

right of access Landlocked states are given a right of access to and from the

sea, without taxation of traffic.468 468 Jennifer Frakes, The Common Heritage of Mankind Principle and the Deep Seabed, Outer Space,

and Antarctica: Will Developed and Developing Nations Reach a Compromise? Wisconsin

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law of the sea Law of the Sea, branch of international law concerned with public

order at sea. Much of this law is codified in the UnitedNations Convention on the Law of the Sea, signed Dec. 10,1982. The convention, described as a “constitution for theoceans,” represents an attempt to codify international lawregarding territorial waters, sea-lanes, and ocean resources.It came into force in 1994 after it had been ratified by therequisite 60 countries; by the early 21st century theconvention had been ratified by more than 150 countries.

According to the 1982 convention, each country’s sovereignterritorial waters extend to a maximum of 12 nautical miles(22 km) beyond its coast, but foreign vessels are granted theright of innocent passage through this zone. Passage isinnocent as long as a ship refrains from engaging in certainprohibited activities, including weapons testing, spying,smuggling, serious pollution, fishing, or scientific research.Where territorial waters comprise straits used forinternational navigation (e.g., the straits of Gibraltar,Mandeb, Hormuz, and Malacca), the navigational rights offoreign shipping are strengthened by the replacement of theregime of innocent passage by one of transit passage, whichplaces fewer restrictions on foreign ships. A similar regimeexists in major sea-lanes through the waters of archipelagos(e.g., Indonesia).

sovereignty (law of the sea) The Montevideo Convention 19331 codified largely accepted

principles of customary international law and defines a Stateas an entity having a permanent population, a definedterritory, a government and enjoying the capacity to enterinto relations with other States. The existence of a Stateappears to be a question of fact because article 3 of theMontevideo Convention provides that ‘’ the political existenceof the state is independent of recognition by the otherInternational Law Journal. 2003; 21:409

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states’’. The modern concept of State sovereignty is oftentraced back to the Treaty of Westphalia which laid down thebasic principles for the recognition of a State as being asovereign State: territorial integrity, border inviolability,the supremacy of the State and a supreme law making bodywithin the territory. The concept of sovereignty lies at theheart of the existence of all States. It is a reflection oftheir ‘’exclusive, supreme and inalienable legal authority toexercise power within their area of governance’’. A sovereignState possesses legal, executive and judicial powers and hasauthority over its subjects within its territory, to theexclusion of all other States. Sovereignty is the basis forthe doctrines of responsibility, nationality andjurisdiction.4 Article 2(2) of the Charter of the UnitedNations recognizes that all States are equal and sovereignbecause they are all politically independent). The UnitedNations Convention on the Law of the Sea6 provides that thesovereignty of States extends over 12 nautical miles, calledthe territorial sea (article 3). Following the theory laiddown by Hugo Grotius in his Mare Liberum, it was establishedunder international customary law that the high seas cannot beappropriated by any State. In other words, no State can claimsovereign rights above these regions. The right of innocentpassage was recognized for all civil and military ships of allStates. Moreover States must not infringe upon the rights ofthe coastal State or disrupt the peace or represent a securitythreat for this State (Convention on the law of the Sea,articles 17 and 19).

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SOVEREIGNTY

Sovereignty Sovereignty means a state or a governing body has the full right

and power to govern itself without any interference fromoutside sources or bodies. In political theory, sovereignty isa substantive term designating supreme authority over somepolity.469 It is a basic principle underlying the dominantWestphalian model of state foundation.

The concept of sovereignty has been discussed throughout history,from the time before recorded history through to the presentday.470 It has changed in its definition, concept, andapplication throughout, especially during the Age ofEnlightenment. The current notion of state sovereigntycontains four aspects consisting of territory, population,authority and recognition.471 According to Stephen D. Krasner,the term could also be understood in four different ways:

domestic sovereignty domestic sovereignty – actual control over a state exercised by

an authority organized within this state,472

interdependence sovereignty interdependence sovereignty – actual control of movement across

state's borders, assuming the borders exist,473

international legal sovereignty international legal sovereignty – formal recognition by other

sovereign states,474

469 Biersteker, Thomas; Weber, Cynthia (1996). State Sovereignty as Social Construct. CambridgeStudies in International Relations 46. Cambridge University Press. ISBN 9780521565998.

470 Núñez, Jorge Emilio. "About the Impossibility of Absolute State Sovereignty". InternationalJournal for the Semiotics of Law.

471 Biersteker, Thomas; Weber, Cynthia (1996). State Sovereignty as Social Construct. CambridgeStudies in International Relations 46. Cambridge University Press. ISBN 9780521565998.

472 Krasner, Professor Stephen D. (2001). Problematic Sovereignty: Contested Rules and PoliticalPossibilities. pp. 6–12. ISBN 9780231121798.


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Westphalian sovereignty Westphalian sovereignty – lack of other authority over state than

the domestic authority (examples of such other authoritiescould be a non-domestic church, a non-domestic politicalorganization, or any other external agent).475

Often, these four aspects all appear together, but this is notnecessarily the case – they are not affected by one another,and there are historical examples of states that were non-sovereign in one aspect while at the same time being sovereignin another of these aspects.476 According to ImmanuelWallerstein, another fundamental feature of sovereignty isthat it is a claim that must be recognised by others if it isto have any meaning: "Sovereignty is more than anything else amatter of legitimacy [...that] requires reciprocalrecognition. Sovereignty is a hypothetical trade, in which twopotentially conflicting sides, respecting de facto realitiesof power, exchange such recognitions as their least costlystrategy."477

Absolute sovereignty The sovereign must be hedged in with obligations and conditions,

must be able to legislate without his (or its) subjects'consent, must not be bound by the laws of his predecessors,and could not, because it is illogical, be bound by his ownlaws.

Perpetual sovereigntySovereignty must be perpetual because anyone with the power to

enforce a time limit on the governing power must be above the




477 Wallerstein, Immanuel (2004). World-Systems Analysis: An Introduction. Duke UniversityPress. p. 44. ISBN 9780822334422.

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governing power, which would be impossible if the governingpower is absolute.

transference of sovereignty , social contract theory,contractarian theory, sovereignty vis-a-vis social contract,popular sovereignty

This is the concept that the people transfer sovereignty to thesovereign, as per Lockean and Hobbesian theories of socialcontract.

The social contract or political contract is a theory or model,originating during the Age of Enlightenment, that typicallyaddresses the questions of the origin of society and thelegitimacy of the authority of the state over the individual.For the name social contract (or original contract) oftencovers two different kinds of contract, and, in tracing theevolution of the theory, it is well to distinguish them. Bothwere current in the 17th century and both can be discovered inGreek political thought generally involved some theory of theorigin of the state. The second form of social contract may bemore accurately called the contract of government, or thecontract of submission. Generally, it has nothing to do withthe origins of society, but, presupposing a society alreadyformed, it purports to define the terms on which that societyis to be governed: the people have made a contract with theirruler which determines their relations with him. They promisehim obedience, while he promises his protection and goodgovernment. While he keeps his part of the bargain, they mustkeep theirs, but if he misgoverns the contract is broken andallegiance is at an end.478 Modern revivals of social contracttheories have not been as concerned with the origin of thestate.

Social contract arguments typically posit that individuals haveconsented, either explicitly or tacitly, to surrender some oftheir freedoms and submit to the authority of the ruler ormagistrate (or to the decision of a majority), in exchange for

478 J. W. Gough, The Social Contract (Oxford: Clarendon Press, 1936), pp. 2–3.

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protection of their remaining rights. The question of therelation between natural and legal rights, therefore, is oftenan aspect of social contract theory. Hugo Grotius (1625)479,Thomas Hobbes (1651)480, Samuel Pufendorf (1673)481, John Locke(1689)482, and Jean-Jacques Rousseau (1762)483, are among themost prominent of 17th- and 18th-century theorists of socialcontract and natural rights. Each solved the problem ofpolitical authority in a different way. Grotius posited thatindividual human beings had natural rights; Hobbes assertedthat humans consent to abdicate their rights in favor of theabsolute authority of government (whether monarchial orparliamentary); Pufendorf disputed Hobbes's equation of astate of nature with war.484 Locke believed that naturalrights were inalienable, and that the rule of God thereforesuperseded government authority; and Rousseau believed thatdemocracy (self-rule) was the best way of ensuring the generalwelfare while maintaining individual freedom under the rule oflaw.

Consent of the governed theory (sovereignty)An early critic of social contract theory was Rousseau's friend,

the philosopher David Hume, who in 1742 published an essay "OfCivil Liberty". The second part of this essay, entitled "Ofthe Original Contract485", stresses that the concept of a"social contract" is a convenient fiction:

As no party, in the present age can well support itself without aphilosophical or speculative system of principles annexed to

479 Grotius, Hugo The Rights of War and Peace Book I, Introduction by Tuck, Richard:Indianapolis: Liberty Fund, 2005.

480 Hobbes, Thomas. Leviathan. 1651.481 Pufendorf, Samuel, James Tully and Michael Silverthorne. Pufendorf: On the Duty of Man and

Citizen according to Natural Law. Cambridge Texts in the History of Political Thought.Cambridge University Press 1991.

482 Locke, John. Second Treatise on Government 1689.483 Rousseau, Jean-Jacques. The Social Contract, or Principles of Political Right (1762)484 Patrick Riley, The Social Contract and Its Critics, chapter 12 in The Cambridge History of

Eighteenth-Century Political Thought, Eds. Mark Goldie and Robert Wokler, Vol 4 of TheCambridge History of Political Thought (Cambridge University Press, 2006), pp. 347–75.

485 Stallybrass, William Teulon Swan (1918). "A society of states: Or, Sovereignty,independence, and equality in a league of nations".

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its political or practical one; we accordingly find that eachof the factions into which this nation is divided has rearedup a fabric of the former kind, in order to protect and coverthat scheme of actions which it pursues. ... The one party[defenders of the absolute and divine right of kings, orTories], by tracing up government to the DEITY, endeavor torender it so sacred and inviolate that it must be little lessthan sacrilege, however tyrannical it may become, to touch orinvade it in the smallest article. The other party [the Whigs,or believers in constitutional monarchy], by foundinggovernment altogether on the consent of the PEOPLE supposethat there is a kind of original contract by which thesubjects have tacitly reserved the power of resisting theirsovereign, whenever they find themselves aggrieved by thatauthority with which they have for certain purposesvoluntarily entrusted him.

—David Hume, "On Civil Liberty" [II.XII.1]486

Hume argued that consent of the governed was the ideal foundationon which a government could rest, but that it had not actuallyoccurred this way in general.

My intention here is not to exclude the consent of the peoplefrom being one just foundation of government where it hasplace. It is surely the best and most sacred of any. I onlycontend that it has very seldom had place in any degree andnever almost in its full extent. And that therefore some otherfoundation of government must also be admitted.

—Ibid II.XII.20Tacit consent theory (sovereignty)The theory of an implicit social contract holds that by remaining

in the territory controlled by some society, which usually hasa government, people give consent to join that society and be

486 Stallybrass, William Teulon Swan (1918). "A society of states: Or, Sovereignty,independence, and equality in a league of nations".

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governed by its government, if any. This consent is what giveslegitimacy to such government.

However, other writers have argued that consent to join thesociety is not necessarily consent to its government. Forthat, the government must be according to a constitution ofgovernment that is consistent with the superior unwrittenconstitutions of nature and society.487

Voluntarism theory (sovereignty)According to the will theory of contract, a contract is not

presumed valid unless all parties agree to it voluntarily,either tacitly or explicitly, without coercion. LysanderSpooner, a 19th-century lawyer and staunch supporter of aright of contract between individuals, argued in his essay NoTreason that a supposed social contract cannot be used tojustify governmental actions such as taxation, becausegovernment will initiate force against anyone who does notwish to enter into such a contract. As a result, he maintainsthat such an agreement is not voluntary and therefore cannotbe considered a legitimate contract at all.

Modern Anglo-American law, like European civil law, is based on awill theory of contract, according to which all terms of acontract are binding on the parties because they chose thoseterms for themselves. This was less true when Hobbes wroteLeviathan; then, more importance was attached toconsideration, meaning a mutual exchange of benefits necessaryto the formation of a valid contract, and most contracts hadimplicit terms that arose from the nature of the contractualrelationship rather than from the choices made by the parties.Accordingly, it has been argued that social contract theory ismore consistent with the contract law of the time of Hobbesand Locke than with the contract law of our time, and thatfeatures in the social contract which seem anomalous to us,such as the belief that we are bound by a contract formulated

487 O. A. Brownson (1866). "'The American Republic: its Constitution, Tendencies, and Destiny".Retrieved 2011-02-13.

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by our distant ancestors, would not have seemed as strange toHobbes' contemporaries as they do to us.488

Natural law theory (sovereignty)Legal scholar Randy Barnett has argued489 that, while presence in

the territory of a society may be necessary for consent, it isnot consent to any rules the society might make regardless oftheir content. A second condition of consent is that the rulesbe consistent with underlying principles of justice and theprotection of natural and social rights, and have proceduresfor effective protection of those rights (or liberties). Thishas also been discussed by O.A. Brownson,490 who argued that,in a sense, three "constitutions" are involved: first theconstitution of nature that includes all of what the Founderscalled "natural law"; second the constitution of society, anunwritten and commonly understood set of rules for the societyformed by a social contract before it establishes agovernment; by which it does establish the third, aconstitution of government. To consent, a necessary conditionis that the rules be constitutional in that sense.

Bodin rejected the notion of transference of sovereignty frompeople to sovereign; natural law and divine law confer uponthe sovereign the right to rule491. And the sovereign is notabove divine law or natural law. He is above (ie. not boundby) only positive law, that is, laws made by humans. The factthat the sovereign must obey divine and natural law imposesethical constraints on him. Bodin also held that the loisroyales, the fundamental laws of the French monarchy whichregulated matters such as succession, are natural laws and arebinding on the French sovereign. How divine and natural lawcould in practice be enforced on the sovereign is a

488 Joseph Kary, "Contract Law and the Social Contract: What Legal History Can Teach Us Aboutthe Political Theory of Hobbes and Locke", 31 Ottawa Law Review 73 (Jan. 2000)

489 Restoring the Lost Constitution: The Presumption of Liberty, Randy Barnett (2004)490 O. A. Brownson (1866). "'The American Republic: its Constitution, Tendencies, and Destiny " .

Retrieved 2011-02-13.491 Bodin J., La Response de Joan Bodin a M. De Malestroit, 1568. Cited in European Economic

History: Documents and Reading, p. 22. (1965). Editors: Clough SB, Moiide CG.

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problematic feature of Bodin's philosophy: any person capableof enforcing them on him would be above him.

Despite his commitment to absolutism, Bodin held some moderateopinions on how government should in practice be carried out.He held that although the sovereign is not obliged to, it isadvisable for him, as a practical expedient, to convene asenate from whom he can obtain advice, to delegate some powerto magistrates for the practical administration of the law,and to use the Estates as a means of communicating with thepeople

With his doctrine that sovereignty is conferred by divine law,Bodin predefined the scope of the divine right of kings.

Thomas Hobbes, in Leviathan (1651) borrowed Bodin's definition ofsovereignty, which had just achieved legal status in the"Peace of Westphalia", and explained its origin. He createdthe first modern version of the social contract (orcontractarian) theory, arguing that to overcome the "nasty,brutish and short" quality of life without the cooperation ofother human beings, people must join in a "commonwealth" andsubmit to a "Soveraigne Power" that is able to compel them toact in the common good. Hobbes' hypothesis—that the ruler'ssovereignty is contracted to him by the people in return forhis maintaining their physical safety—led him to conclude thatif and when the ruler fails, the people recover their abilityto protect themselves by forming a new contract.

Hobbes's theories decisively shape the concept of sovereigntythrough the medium of social contract theories. Jean-JacquesRousseau's (1712–1778) definition of popular sovereignty (withearly antecedents in Francisco Suárez's theory of the originof power), provides that the people are the legitimatesovereign. Rousseau considered sovereignty to be inalienable;he condemned the distinction between the origin and theexercise of sovereignty, a distinction upon whichconstitutional monarchy or representative democracy isfounded. John Locke, and Montesquieu are also key figures in

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the unfolding of the concept of sovereignty; their viewsdiffer with Rousseau and with Hobbes on this issue ofalienability. This expediency argument attracted many of theearly proponents of sovereignty. Hobbes strengthened thedefinition of sovereignty beyond either Westphalian orBodin's, by saying that it must be indivisible and absolute.

Absolute theory of sovereigntyThoams Hobbes argued that sovereignty must be absolute, since

conditions could only be imposed on a sovereign if there weresome outside arbitrator to determine when he had violatedthem, in which case the sovereign would not be the finalauthority.

Indivisible theory of sovereigntyThomas Hobbes argued that the sovereign is the only final

authority in his territory; he does not share final authoritywith any other entity. Hobbes held this to be true becauseotherwise there would be no way of resolving a disagreementbetween the multiple authorities.

The second book of Jean-Jacques Rousseau's Du Contrat Social, ouPrincipes du droit politique (1762) deals with sovereignty andits rights. Sovereignty, or the general will, is inalienable,for the will cannot be transmitted; it is indivisible, sinceit is essentially general; it is infallible and always right,determined and limited in its power by the common interest; itacts through laws. Law is the decision of the general will inregard to some object of common interest, but though thegeneral will is always right and desires only good, itsjudgment is not always enlightened, and consequently does notalways see wherein the common good lies; hence the necessityof the legislator. But the legislator has, of himself, noauthority; he is only a guide who drafts and proposes laws,but the people alone (that is, the sovereign or general will)has authority to make and impose them

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Rousseau, in his 1763 treatise Of the Social Contract492 argued,"the growth of the State giving the trustees of publicauthority more and means to abuse their power, the more theGovernment has to have force to contain the people, the moreforce the Sovereign should have in turn in order to containthe Government," with the understanding that the Sovereign is"a collective being of wonder" (Book II, Chapter I) resultingfrom "the general will" of the people, and that "what any man,whoever he may be, orders on his own, is not a law" (Book II,Chapter VI) – and furthermore predicated on the assumptionthat the people have an unbiased means by which to ascertainthe general will. Thus the legal maxim, "there is no lawwithout a sovereign."493

Absoluteness (sovereignty)An important factor of sovereignty is its degree of

absoluteness.494 A sovereign power has absolute sovereigntywhen it is not restricted by a constitution, by the laws ofits predecessors, or by custom, and no areas of law or policyare reserved as being outside its control. International law;policies and actions of neighboring states; cooperation andrespect of the populace; means of enforcement; and resourcesto enact policy are factors that might limit sovereignty. Forexample, parents are not guaranteed the right to decide somematters in the upbringing of their children independent ofsocietal regulation, and municipalities do not have unlimitedjurisdiction in local matters, thus neither parents normunicipalities have absolute sovereignty. Theorists havediverged over the desirability of increased absoluteness.

492 Jean-Jacques Rousseau, Oeuvres complètes, ed. B. Gagnebin and M. Raymond (Paris, 1959–95), III,361; The Collected Writings of Rousseau, ed. C. Kelley and R. Masters (Hanover, 1990–), IV, 139.

493 Hume, Essays, Moral, Political, and Literary, Part II, Essay XII, OF THE ORIGINAL CONTRACT |Library of Economics and Liberty". Econlib.org. Retrieved 2011-01-20.

494 Núñez, Jorge Emilio. "About the Impossibility of Absolute State Sovereignty". International Journal for the Semiotics of Law; see also Núñez, Jorge Emilio. "About the Impossibility of Absolute State Sovereignty: The Middle Ages". International Journal for the Semiotics of Law.

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Exclusivity theory of sovereigntyA key element of sovereignty in a legalistic sense is that of

exclusivity of jurisdiction. Specifically, the degree to whichdecisions made by a sovereign entity might be contradicted byanother authority. Along these lines, the German sociologistMax Weber proposed that sovereignty is a community's monopolyon the legitimate use of force; and thus any group claimingthe same right must either be brought under the yoke of thesovereign, proven illegitimate, or otherwise contested anddefeated for sovereignty to be genuine.495 International law,competing branches of government, and authorities reserved forsubordinate entities (such as federated states or republics)represent legal infringements on exclusivity. Socialinstitutions such as religious bodies, corporations, andcompeting political parties might represent de factoinfringements on exclusivity.

De jure sovereignty and de facto sovereigntyDe jure, or legal, sovereignty concerns the expressed and

institutionally recognised right to exercise control over aterritory. De facto, or actual, sovereignty is concerned withwhether control in fact exists. Cooperation and respect of thepopulace; control of resources in, or moved into, an area;means of enforcement and security; and ability to carry outvarious functions of state all represent measures of de factosovereignty. When control is practiced predominately bymilitary or police force it is considered coercivesovereignty.

Sovereignty and independenceState sovereignty is sometimes viewed synonymously with

independence, however, sovereignty can be transferred as alegal right whereas independence cannot.496 A state can achievede facto independence long after acquiring sovereignty, such

495 Restoring the Lost Constitution: The Presumption of Liberty, Randy Barnett (2004)496 Talmon, Stefan (1998). Recognition of Governments in International Law. Oxford Monographs in

International Law Series. Oxford University Press. p. 50. ISBN 9780198265733.

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as in the case of Cambodia, Laos and Vietnam.497 Additionally,independence can also be suspended when an entire regionbecomes subject to an occupation such as when Iraq had beenoverran by the forces to take part in the Iraq War of 2003,Iraq's sovereignty during this period was not contested by anystate including those present on the territory. Alternatively,independence can be lost completely when sovereignty itselfbecomes the subject of dispute. The pre-World War IIadministrations of Latvia, Lithuania and Estonia maintained anexile existence (and considerable international recognition)whilst the entities were annexed by the Soviet Union andgoverned locally by their pro-Soviet functionaries. When in1991 Latvia, Lithuania and Estonia re-enacted independence, itwas done so on the basis of continuity directly from the pre-Soviet republics.498 Another complicated sovereignty scenariocan arise when regime itself is the subject of dispute. In thecase of Poland, the People's Republic of Poland which governedPoland from 1945 to 1989 is now seen to have been an illegalentity by the modern Polish administration. The post-1989Polish state claims direct continuity from the Second PolishRepublic which ended in 1939. For other reasons however,Poland maintains its communist-era outline as opposed to itspre-World War II shape which included areas now in Belarus,Lithuania and Ukraine but did not include some of its westernregions that were then in Germany.

Internal sovereigntyInternal sovereignty is the relationship between a sovereign

power and its own subjects. A central concern is legitimacy:by what right does a government exercise authority? Claims of

497 Talmon, Stefan (1998). Recognition of Governments in International Law. Oxford Monographs inInternational Law Series. Oxford University Press. p. 50. ISBN 9780198265733.

498 Talmon, Stefan (1998). Recognition of Governments in International Law. Oxford Monographs in International Law Series. Oxford University Press. p. 50. ISBN 9780198265733; see also Mälksoo, Lauri (2003). Illegal Annexation and State Continuity: The Case of the Incorporation of the Baltic States bythe USSR. M. Nijhoff Publishers. p. 193. ISBN 9041121773.

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legitimacy might refer to the divine right of kings or to asocial contract (i.e. popular sovereignty)

With Sovereignty meaning holding supreme, independent authorityover a region or state, Internal Sovereignty refers to theinternal affairs of the state and the location of supremepower within it.499 A state that has internal sovereignty isone with a government that has been elected by the people andhas the popular legitimacy. Internal sovereignty examines theinternal affairs of a state and how it operates. It isimportant to have strong internal sovereignty in relation tokeeping order and peace. When you have weak internalsovereignty organization such as rebel groups will underminethe authority and disrupt the peace. The presence of a strongauthority allows you to keep agreement and enforce sanctionsfor the violation of laws. The ability for leadership toprevent these violations is a key variable in determininginternal sovereignty.500 The lack of internal sovereignty cancause war in one of two ways, first, undermining the value ofagreement by allowing costly violations and second requiringsuch large subsidies for implementation that they render warcheaper than peace.501 Leadership needs to be able to promisemembers, especially those like armies, police forces, orparamilitaries will abide by agreements. The presence ofstrong internal sovereignty allows a state to deter oppositiongroups in exchange for bargaining. It has been said that amore decentralized authority would be more efficient inkeeping peace because the deal must please not only theleadership but also the opposition group. While the operationsand affairs within a state are relative to the level ofsovereignty within that state, there is still an argumentbetween who should hold the authority in a sovereign state.

499 Heywood, Andrew. "Political Theory". pg. 92. Palgrave Macmillan. Retrieved 25 June 2011.500 Wolford, Rider, Scott, Toby. "War, Peace, and Internal Sovereignty". pg.1. Retrieved 19 June

2011.501 Wolford, Rider, Scott, Toby. "War, Peace, and Internal Sovereignty". pg.3. Retrieved 19 June

2011.

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This argument between who should hold the authority within asovereign state is called the traditional doctrine of publicsovereignty. This discussion is between an internal sovereignor an authority of public sovereignty. An internal sovereignis a political body that possesses ultimate, final andindependent authority; one whose decisions are binding uponall citizens, groups and institutions in society. Earlythinkers believe sovereignty should be vested in the hands ofa single person, a monarch. They believed the overriding meritof vesting sovereignty in a single individual was thatsovereignty would therefore be indivisible; it would beexpressed in a single voice that could claim final authority.An example of an internal sovereign or monarch is Louis XIV ofFrance during the seventeenth century; Louis XIV claimed thathe was the state. Jean-Jacques Rousseau rejected monarchicalrule in favor of the other type of authority within asovereign state, public sovereignty. Public Sovereignty is thebelief that ultimate authority is vested in the peoplethemselves, expressed in the idea of the general will. Thismeans that the power is elected and supported by its members,the authority has a central goal of the good of the people inmind. The idea of public sovereignty has often been the basisfor modern democratic theory.502

Modern internal sovereigntyWithin the modern governmental system, internal sovereignty is

usually found in states that have public sovereignty andrarely found within a state controlled by an internalsovereign. A form of government that is a little differentfrom both is the UK parliament system. From 1790 to 1859 itwas argued that sovereignty in the UK was vested neither inthe Crown nor in the people but in the "Monarch inParliament". This is the origin of the doctrine ofparliamentary sovereignty and is usually seen as thefundamental principle of the British constitution. With these

502 Heywood, Andrew. "Political Theory". pg. 93. Palgrave Macmillan. Retrieved 21 June 2011.

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principles of parliamentary sovereignty majority control cangain access to unlimited constitutional authority, creatingwhat has been called "elective dictatorship" or "modernautocracy". Public sovereignty in modern governments is a lotmore common with examples like the USA, Canada, Australia andIndia where government is divided into different levels.503

External sovereigntyExternal sovereignty concerns the relationship between a

sovereign power and other states. For example, the UnitedKingdom uses the following criterion when deciding under whatconditions other states recognise a political entity as havingsovereignty over some territory. External sovereignty isconnected with questions of international law – such as: when,if ever, is intervention by one country onto another'sterritory permissible?

territorial sovereignty , Westphalian sovereignty, statesovereignty

Following the Thirty Years' War, a European religious conflictthat embroiled much of the continent, the Peace of Westphaliain 1648 established the notion of territorial sovereignty as anorm of noninterference in the affairs of other nations, so-called Westphalian sovereignty, even though the actual treatyitself reaffirmed the multiple levels of sovereignty of theHoly Roman Empire. This resulted as a natural extension of theolder principle of cuius regio, eius religio (Whose realm, hisreligion), leaving the Roman Catholic Church with littleability to interfere with the internal affairs of manyEuropean states. It is a myth, however, that the Treaties ofWestphalia created a new European order of equal sovereignstates.504

Westphalian sovereignty is the principle of international lawthat each nation-state has sovereignty over its territory and

503 Heywood, Andrew. "Political Theory". pgs. 94–95. Palgrave Macmillan. Retrieved 21 June 2011.504 Andreas Osiander, "Sovereignty, International Relations, and the Westphalian Myth",

International Organization Vol. 55 No. 2 (Spring 2001), pp. 251–287.

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domestic affairs, to the exclusion of all external powers, onthe principle of non-interference in another country'sdomestic affairs, and that each state (no matter how large orsmall) is equal in international law. The doctrine is namedafter the Peace of Westphalia, signed in 1648, which ended theThirty Years' War, in which the major continental Europeanstates – the Holy Roman Empire, Spain, France, Sweden and theDutch Republic – agreed to respect one another's territorialintegrity. As European influence spread across the globe, theWestphalian principles, especially the concept of sovereignstates, became central to international law and to theprevailing world order.505

Scholars of international relations have identified the modern,Western originated, international system of states,multinational corporations, and organizations, as having begunat the Peace of Westphalia.506 Both the basis and theconclusion of this view have been attacked by some revisionistacademics and politicians, with revisionists questioning thesignificance of the Peace, and some commentators andpoliticians attacking the Westphalian system of sovereignnation-states.

sovereignty (international law)In international law, sovereignty means that a government

possesses full control over affairs within a territorial orgeographical area or limit. Determining whether a specificentity is sovereign is not an exact science, but often amatter of diplomatic dispute. There is usually an expectationthat both de jure and de facto sovereignty rest in the sameorganisation at the place and time of concern. Foreigngovernments use varied criteria and political considerationswhen deciding whether or not to recognise the sovereignty of a

505 Henry Kissinger (2014). "Introduction and Chpt 1". World Order: Reflections on the Character of Nationsand the Course of History. Allen Lane. ISBN 0241004268.

506 Gabel, Medard; Henry Bruner (2003), Global Inc.: An Atlas of the Multinational Corporation, New York: The New Press, p. 2, ISBN 1-56584-727-X

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state over a territory Membership in the United Nationsrequires that "[t]he admission of any such state to membershipin the United Nations will be effected by a decision of theGeneral Assembly upon the recommendation of the SecurityCouncil."507

Sovereignty may be recognized even when the sovereign bodypossesses no territory or its territory is under partial ortotal occupation by another power. The Holy See was in thisposition between the annexation in 1870 of the Papal States byItaly and the signing of the Lateran Treaties in 1929, a 59-year period during which it was recognised as sovereign bymany (mostly Roman Catholic) states despite possessing noterritory – a situation resolved when the Lateran Treatiesgranted the Holy See sovereignty over the Vatican City.Another case, sui generis, though often contested, is theSovereign Military Order of Malta, the third sovereign entityinside Italian territory (after San Marino and the VaticanCity State) and the second inside the Italian capital (sincein 1869 the Palazzo di Malta and the Villa Malta receiveextraterritorial rights, in this way becoming the only"sovereign" territorial possessions of the modern Order),which is the last existing heir to one of several oncemilitarily significant, crusader states of sovereign militaryorders. In 1607 its Grand masters were also made Reichsfürst(princes of the Holy Roman Empire) by the Holy Roman Emperor,granting them seats in the Reichstag, at the time the closestpermanent equivalent to a UN-type general assembly; confirmed1620). These sovereign rights were never deposed, only theterritories were lost. 100 modern states still maintain fulldiplomatic relations with the order508 (now de facto "the mostprestigious service club"), and the UN awarded it observerstatus.509

507 UN Chart, Article 2". Retrieved 4 October 2011.508 Bilateral diplomatic relations of the Sovereign Military Order of Malta509 United Nations General Assembly Session 48 Resolution 265. Observer status for the Sovereign

Military Order of Malta in the General Assembly A/RES/48/265 {{{date}}}. Retrieved 10September 2007.

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The governments-in-exile of many European states (for instance,Norway, Netherlands or Czechoslovakia) during the Second WorldWar were regarded as sovereign despite their territories beingunder foreign occupation; their governance resumed as soon asthe occupation had ended. The government of Kuwait was in asimilar situation vis-à-vis the Iraqi occupation of itscountry during 1990–1991.510 The government of Republic ofChina was recognized as sovereign over China from 1911 to 1971despite that its mainland China territory became occupied byCommunist Chinese forces since 1949. In 1971 it lost UNrecognition to Chinese Communist-led People's Republic ofChina and its sovereign and political status as a state becamedisputed and it lost its ability to use "China" as its nameand therefore became commonly known as Taiwan.

The International Committee of the Red Cross is commonly mistakento be sovereign. It has been granted various degrees ofspecial privileges and legal immunities in many countries,[which?] that in cases like Switzerland are considerable,511

which are described. The Committee is a private organisationgoverned by Swiss law. On the other hand Switzerland does notrecognize ICRC issued passports.

Shared sovereignty and pooled sovereigntyJust as the office of head of state can be vested jointly in

several persons within a state, the sovereign jurisdictionover a single political territory can be shared jointly by twoor more consenting powers, notably in the form of acondominium

Likewise the member states of international organizations mayvoluntarily bind themselves by treaty to a supranational

510 Nolan, Cathal J. (2002). The Greenwood Encyclopedia of International Relations. Volume 4.Greenwood Publishing Group. p. 1559.

511 By formal agreement between the Swiss government and the ICRC, Switzerland grants fullsanctity of all ICRC property in Switzerland including its headquarters and archive, grantsmembers and staff legal immunity, exempts the ICRC from all taxes and fees, guarantees theprotected and duty-free transfer of goods, services, and money, provides the ICRC with securecommunication privileges at the same level as foreign embassies, and simplifies Committeetravel in and out of Switzerland.

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organization, such as a continental union. In the case of theEuropean Union members states this is called "pooledsovereignty".

Nation-states sovereignty A community of people who claim the right of self-determination

based on a common ethnicity, history and culture might seek toestablish sovereignty over a region, thus creating a nation-state. Such nations are sometimes recognised as autonomousareas rather than as fully sovereign, independent states.

Parliamentary sovereignty Parliamentary sovereignty refers to a representative democracy

where the parliament is ultimately sovereign and not theexecutive power nor the judiciary.

Federation sovereignty In a federal system of government, sovereignty also refers to

powers which a constituent state or republic possessesindependently of the national government. In a confederationconstituent entities retain the right to withdraw from thenational body, but in a federation member states or republicsdo not hold that right.

Different interpretations of state sovereignty in the UnitedStates of America, as it related to the expansion of slaveryand fugitive slave laws, led to the outbreak of the AmericanCivil War. Depending on the particular issue, sometimes bothnorthern and southern states justified their politicalpositions by appealing to state sovereignty. Fearing thatslavery would be threatened by results of the federalelection, eleven slave states declared their independence fromthe federal Union and formed a new confederation. The UnitedStates government rejected the secessions as rebellion,declaring that secession from the Union by an individual statewas unconstitutional, as the states were part of anindissolvable federation.

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autonomous administrative division, autonomous area, autonomouszone

An autonomous administrative division is an administrativedivision of a country that has a degree of autonomy, orfreedom from an external authority. Typically it is eithergeographically distinct from the rest of the country orpopulated by a national minority. Decentralization of self-governing powers and functions to such divisions is a way fora national government to try to increase democraticparticipation or administrative efficiency and/or to defuseinternal conflicts. Countries that include autonomous areasmay be federacies, federations, or confederations. Autonomousareas can be divided into territorial autonomies, subregionalterritorial autonomies, and local autonomies.

Air sovereignty Air sovereignty is the fundamental right of a sovereign state to

regulate the use of its airspace and enforce its own aviationlaw - in extremis by the use of fighter aircraft.

Airspace above the land and sea areas of a state generally formspart of the sovereign state area. Flights by some civilaircraft into the airspace of a UN member state does not needprior permission (Convention on International Civil Aviation).

The upper limit of national airspace is not defined by law.Acquisition of sovereigntyA number of modes of acquisition of sovereignty are presently or

have historically been recognised by international law aslawful methods by which a state may acquire sovereignty overterritory. The classification of these modes originallyderived from Roman property law and from the 15th and 16thcentury with the development of international law. The modesare:512

Cession

512 McPherson, James, Battle Cry of Freedom, (1988) pp. 40, 195, 214, 241

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¯ Cession is the transfer of territory from one state to another usually by means oftreaty;

Occupation

¯ Occupation is the acquisition of territory that belongs to no state, or terra nullius;

Prescription

¯ Prescription is the effective control of territory of another acquiescing state;

Operations of nature

¯ Operations of nature is the acquisition of territory through natural processes likeriver accretion or volcanism;

Adjudication

¯ Adjudication is where a dispute resolution body demarcates a territory. anddetermines sovereignty.

Conquest

¯ Conquest is where a country practices and enforces sovereignty over a territoryacquired as a result of war.

Limits of national jurisdiction and Limits of sovereigntyThere are several limits on national sovereignty, or national

jurisdiction, as below:full national jurisdiction and sovereigntyFull national jurisdiction is exercisable on:national airspacethe portion of the atmosphere controlled by a country above its

territory, including its territorial waters or, moregenerally, any specific three-dimensional portion of theatmosphere. It is not the same as aerospace, which is thegeneral term for Earth's atmosphere and the outer space in itsvicinity.

¯ land territory surface¯ internal waters surface¯ internal waters

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¯ territorial waters¯ land territory underground¯ Continental Shelf underground

restrictions on national jurisdiction and sovereigntyThe restrictions on national sovereignty are on the areas of:¯ territorial waters airspace¯ contiguous zone airspace¯ contiguous zone surface¯ Exclusive Economic Zone surface¯ Continental Shelf surface¯ Exclusive Economic Zone

international jurisdiction per common heritage of mankindThe following areas are governed by international law, and no

specific country has jurisdiction. ¯ international airspace¯ international waters surface¯ international seabedsurface¯ international seabed underground¯ international waters

Freedom of the Seas, mare liberumFreedom of the seas (Latin: mare liberum, lit. "free sea") is a

principle in the international law and law of the sea. Itstresses freedom to navigate the oceans. It also disapprovesof war fought in water. The freedom is to be breached only ina necessary international agreement.

This principle was one of U.S. President Woodrow Wilson'sFourteen Points proposed during the First World War. In hisspeech to the Congress, the president said:

Absolute freedom of navigation upon the seas, outside territorialwaters, alike in peace and in war, except as the seas may beclosed in whole or in part by international action for theenforcement of international covenants.

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The United States' allies Britain and France were opposed to thispoint, as France was also a considerable naval power at thetime. As with Wilson's other points, freedom of the seas wasrejected by the German government.

Today, the concept of "freedom of the seas" can be found in theUnited Nations Convention on the Law of the Sea under Article87(1) which states: "the high seas are open to all states,whether coastal or land-locked." Article 87(1) (a) to (f)gives a non-exhaustive list of freedoms including navigation,overflight, the laying of submarine cables, buildingartificial islands, fishing and scientific research.

registration (High seas)According to International law, Article 92 of the convention

which describes ships shall sail under the flag of one stateonly and, save in exceptional cases expressly provided for ininternational treaties or in this Convention, shall be subjectto its exclusive jurisdiction on the high seas; however, whena ship is involved in certain criminal acts, such as piracy,any nation can exercise jurisdiction under the doctrine ofuniversal jurisdiction. High seas were defined as any part ofthe sea that was not either territorial sea or internalwaters, territorial waters and exclusive economic zones.Article 88 of the 1982 Convention states that the high seasshall be reserved for peaceful purpose. Many countries engagein military maneuvers and the testing of conventional weaponsand nuclear weapons on the high seas. In order to deliver theright punishment to the right person or state, the ships needto be registered to a country to show proof of ownership. Theowner of the vessel sometimes prefers to pay the lowerregistration fees by picking countries such as Panama,Bermuda, Italy, Malta and the Netherlands. According to CruiseLines International Association, 90% of commercial vesselscalling on U.S. ports fly foreign flags. To avoid the highcost with more rules and regulations, ships and tankerssometime prefer lower cost registration with a lower standard

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of inspection and regulation by picking a country thatexercises less control over their registered ships, thoughmany ships are owned by individuals or companies in anothercountry (most commonly Japan and Greece) under a system called'flag of convenience'. Registering a ship in Panama means thatthe ship is governed by the maritime rules of Panama ratherthan the ship owner's country. Ship owners do this becausePanama has low taxes and fewer labor and safety regulationsthan most other countries. Ship owners can make their staffwork longer hours in less safe environments, and thereforemaximize their profits. Other countries, including Liberia,Cyprus and the Bahamas also offer flags of convenience, butPanama has the most ships registered under the scheme. Shipsregistered with the US will cost more, and the employee wageswill be even higher. Freedom of the seas allows a ship to movefreely on the ocean as long as it follows the internationallaw.

internal waters A nation's internal waters include waters on the landward side of

the baseline of a nation's territorial waters, except inarchipelagic states.513 It includes waterways such as riversand canals, and sometimes the water within small bays.According to the United Nations Convention on the Law of theSea, the coastal nation is free to set laws, regulate any use,and use any resource. Foreign vessels have no right of passagewithin internal waters, and this lack of right to innocentpassage is the key difference between internal waters andterritorial waters.514

International Seabed Authority (ISA) The International Seabed Authority (ISA) is an intergovernmental

body based in Kingston, Jamaica, that was established toorganize and control all mineral-related activities in theinternational seabed area beyond the limits of national

513 Article 8 Internal waters, Part II, UN Convention on the Law of the Sea514 Article 2, Part II, UN Convention on the Law of the Sea

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jurisdiction, an area underlying most of the world’s oceans.It is an organization established by the Law of the SeaConvention.

international waters, trans-boundary waters, Internationalwaterways

The terms international waters or trans-boundary waters applywhere any of the following types of bodies of water (or theirdrainage basins) transcend international boundaries: oceans,large marine ecosystems, enclosed or semi-enclosed regionalseas and estuaries, rivers, lakes, groundwater systems(aquifers), and wetlands.

Oceans, seas, and waters outside of national jurisdiction arealso referred to as the high seas or, in Latin, mare liberum(meaning free seas).

Ships sailing the high seas are generally under the jurisdictionof the flag state (if there is one);however, when a ship isinvolved in certain criminal acts, such as piracy, any nationcan exercise jurisdiction under the doctrine of universaljurisdiction. International waters can be contrasted withinternal waters, territorial waters and exclusive economiczones.

International waterwaysThese are narrow channels of marginal sea or inland waters

through which international shipping has a right of passage.Several international treaties have established freedom of

navigation on semi-enclosed seas. The Copenhagen Convention of 1857 opened access to the Baltic

by abolishing the Sound Dues and making the Danish Straits aninternational waterway free to all commercial and militaryshipping.

Several conventions have opened the Bosporus and Dardanellesto shipping. The latest, the Montreux Convention Regarding the

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Regime of the Turkish Straits, maintains the straits' statusas an international waterway.

Other international treaties have opened up rivers, which are nottraditionally international waterways.

The Danube River is an international waterway so thatlandlocked Austria, Hungary, Serbia, and Slovakia can havesecure access to the Black Sea.

In International Law, international waterways are straits,canals, and rivers that connect two areas of the high seas orenable ocean shipping to reach interior ports on internationalseas, gulfs, or lakes that otherwise would be land-locked.International waterways also may be rivers that serve asinternational boundaries or traverse successively two or morestates. Ships have a right of passage through internationalwaterways. This right is based on customary international lawand treaty arrangements.

StraitsSome straits are more important than others because they are the

sole connecting links between oceans and interior waters. Forexample, the Strait of Gibraltar gives access from theAtlantic Ocean to the Mediterranean and Aegean Seas. Otherstraits are not as important. The availability of alternateroutes does not in itself deprive a strait of its character asan international waterway. In the Corfu Channel case, 1949I.C.J. 4, 1949 WL 1 (I.C.J.), the International Court ofJustice rejected the test of essentiality as the only route,ruling that "the decisive criterion is rather [the strait's]geographic situation as connecting two parts of the high seasand the fact of its being used for international navigation."

The 1958 geneva convention on the Territorial Sea and ContiguousZone (516 U.N.T.S. 205, 15 U.S.T. 1606, T.I.A.S. No. 5639)does not deal comprehensively with international waterways,but does provide that "[t]here shall be no suspension ofinnocent passage of foreign ships through straits which are

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used for international navigation between one part of the highseas and another part of the high seas or the territorial seaof a foreign state" (art. 16, § 4). A territorial sea is thewater that comes under the sovereign control of a state.

A coastal state has somewhat greater control of innocent passagethrough its territorial seas than of innocent passage througha strait joining two areas of high seas. Passage may besuspended through Territorial Waters when essential forsecurity. This means that warships are free to pass throughstraits but may be denied access to territorial seas.

Since the 1960s a great majority of coastal states have extendedtheir claims on territorial seas from three miles to 12 milesfrom the low-water mark, some even farther. This change hasbeen a matter of concern to the U.S. government, as a 12-milelimit converts 121 straits to territorial seas, some of whichhave strategic military importance.

CanalsWith respect to international marine traffic, canals joining

areas of the high seas or waters leading to them aregeographically in the same position as straits. However, thesignificant canals have been constructed in accordance withinternational treaties or later placed under conventionallegal regimes. The Suez Canal, located in Egypt, and thePanama Canal are the two most important canals ininternational commerce.

The United States played the major role in the construction ofthe Panama Canal, which joins the Atlantic and Pacific Oceansacross the Isthmus of Panama. The canal is over 40 miles longand has a minimum width of three hundred feet.

In 1903, after several European-financed efforts to build a canalacross the isthmus had failed, the U.S. government negotiatedthe Hay-Bunau-Varilla Treaty (T.S. No. 431, 33 Stat. 2234, 10Bevans 663). Under this treaty the United States guaranteedthe independence of Panama (which had just broken away from

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Colombia) and secured a perpetual lease on a ten-mile stripfor the canal. Panama was to receive an initial payment of $10million and an Annuity of $250,000, beginning in 1913.

In 1906, President Theodore Roosevelt directed construction ofthe canal to begin under the supervision of the U.S. ArmyCorps of Engineers. The Panama Canal was completed in 1914 andofficially opened by President woodrow wilson on July 12,1920.

The Hay-Bunau-Varilla Treaty stated that the canal was to beneutralized and free and open to vessels of commerce and waron terms of equality, and without discrimination as to tollsor conditions of passage. However, it did not mandate openaccess in times of war. The United States decided, in 1917, toclose the canal and the territorial waters of the canal zone(the ten-mile-wide strip of land that contained the canal) tovessels of enemy states and their allies whenever the UnitedStates is a belligerent. This was done in World Wars I and II.

From the 1920s to the 1970s, the United States and Panama hadmany disputes concerning control of the Panama Canal Zone.Panamanians came to regard the zone as part of their countryand believed that the 1903 treaty was unfairly favorable tothe United States. In 1971, the two countries begannegotiations for a new treaty to replace the 1903 agreement.

In 1977, Panama and the United States concluded the TreatyGoverning the Permanent Neutrality and Operation of the PanamaCanal, and the Panama Canal Treaty (both Washington, D.C.,1977, in force 1979; Digest of United States Practice inInternational Law, 1978, at 1028–560). The treaties providedthat the United States would relinquish control andadministration of the canal to Panama by December 31, 1999,and stipulated an interim period for the training of, andprogressive transfer of functions to, Panamanian personnelunder the supervision of a mixed Panama Canal Commission.

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The first treaty declared that the canal would be permanentlyneutralized (as would any other international waterway laterconstructed wholly or partly in Panamanian territory), withthe object of securing it for peaceful transit in time ofpeace or of war for vessels of all nations on equal terms(arts. 1, 2). The right of passage extends not only tomerchant ships but to vessels of war and auxiliary vessels innoncommercial service of all nations "at all times,"irrespective of their internal operations, means ofpropulsion, origin, destination, or armament (art. 3, § 1[e]).

In early December 1999, a United States delegation, headed byformer U.S. president jimmy carter (who signed the originaltreaty in 1977), attended the official transfer of the canalinto Panamanian hands. Other attendees included Spain's KingJuan Carlos, and the presidents of Bolivia, Columbia, Ecuador,and Mexico. As of 2000, it was estimated that approximately1,400 ships pass through the canal annually.

RiversCustomary international law has never granted equal access and

rights to countries that share navigable rivers either asboundaries between them or as waterways that traverse themsuccessively. Freer use of international rivers has occurredin the nineteenth and twentieth centuries through thenegotiation of treaties.

The St. Lawrence Seaway, opened for navigation by large ships in1959, is an example of a legal and an administrative regimewholly devised and controlled by the two states (the UnitedStates and Canada) that share it. Based on a river in part,the seaway was developed with the construction of bypasscanals, locks, and channel improvements, sometimes whollywithin the territory of one state. In 1909, Canada and theUnited States consolidated and extended a number of earlierpiecemeal arrangements in the Boundary Waters Treaty (36 Stat.2448, 12 Bevans 359), to give both nations equal liberty ofnavigation in the St. Lawrence River, the Great Lakes, and the

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canals and waterways connecting the lakes. An internationalboundary line was drawn generally along the median line of thelakes (with some variation in Lake Michigan), but both nationswere to exercise concurrent admiralty and criminaljurisdiction over the whole of the lakes and their connectingwaterways. The admiralty jurisdiction reflected a dispositionto treat the lakes as the high seas. This view was supportedby the U.S. Supreme Court in United States v. Rodgers, 150U.S. 249, 14 S. Ct. 109, 37 L. Ed. 1071 (1893), when itreferred to the "high seas of the lakes."

The building of the St. Lawrence Seaway was complicated by thefailure of Canada and the United States to negotiate anagreement for the creation of a joint international authorityto supervise the project. Instead, each country establishedits own national agency to construct the canals, locks, andother works required for the 27-foot channel, making eachagency responsible for work on its own side of the river. Theagencies coordinated their work in a series of internationalagreements and informal arrangements. Where works extendedover the international boundary, the two commissions allocatedresponsibility through the coordination of work at thetechnical level. They agreed on uniform rules of navigation,coordination of pilotage services, uniform tolls, andarrangements for collection.

Seagoing merchant vessels from other countries use the seawayregularly. Their right to do so rests not on any generalprinciple of free navigation, but on national agreements andArticle V of the General Agreement on Tariffs and Trade, whichmandates freedom of transit for merchant ships through theterritories of signatories for traffic to or from theterritory of other signatories. As the Great Lakes are inlandwaters and have been demilitarized since the Rush-BagotAgreement of 1817 (T.S. No. 110½, 2 Miller 645, 12 Bevans 54),it is unlikely that foreign warships will request or receivepermission to visit their ports.

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littoral zone The littoral zone is the part of a sea, lake or river that is

close to the shore. In coastal environments the littoral zoneextends from the high water mark, which is rarely inundated,to shoreline areas that are permanently submerged. It alwaysincludes this intertidal zone and is often used to mean thesame as the intertidal zone. However, the meaning of "littoralzone" can extend well beyond the intertidal zone.

There is no single definition. What is regarded as the fullextent of the littoral zone, and the way the littoral zone isdivided into subregions, varies in different contexts (lakesand rivers have their own definitions). The use of the termalso varies from one part of the world to another, and betweendifferent disciplines. For example, military commanders speakof the littoral in ways that are quite different from marinebiologists.

The adjacency of water gives a number of distinctivecharacteristics to littoral regions. The erosive power ofwater results in particular types of landforms, such as sanddunes, and estuaries. The natural movement of the littoralalong the coast is called the littoral drift. Biologically,the ready availability of water enables a greater variety ofplant and animal life, and particularly the formation ofextensive wetlands. In addition, the additional local humiditydue to evaporation usually creates a microclimate supportingunique types of organisms.

The word "littoral" is used both as a noun and an adjective. Itderives from the Latin noun litus, litoris, meaning "shore".(The doubled 't' is a late medieval innovation and the word issometimes seen in the more classical-looking spelling'litoral'.)

Supralittoral zoneThe supralittoral zone (also called the splash, spray or

supratidal zone) is the area above the spring high tide line

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that is regularly splashed, but not submerged by ocean water.Seawater penetrates these elevated areas only during stormswith high tides. Organisms here must cope also with exposureto fresh water from rain, cold, heat and predation by landanimals and seabirds. At the top of this area, patches of darklichens can appear as crusts on rocks. Some types ofperiwinkles, Neritidae and detritus feeding Isopoda commonlyinhabit the lower supralittoral.

Eulittoral zone, Intertidal zoneThe eulittoral zone (also called the midlittoral or mediolittoral

zone) is the intertidal zone also known as the foreshore. Itextends from the spring high tide line, which is rarelyinundated, to the spring low tide line, which is rarely notinundated. The wave action and turbulence of recurring tidesshapes and reforms cliffs, gaps, and caves, offering a hugerange of habitats for sedentary organisms. Protected rockyshorelines usually show a narrow almost homogenous eulittoralstrip, often marked by the presence of barnacles. Exposedsites show a wider extension and are often divided intofurther zones. For more on this, see intertidal ecology.

Sublittoral zone, Neritic zoneThe sublittoral zone starts immediately below the eulittoral

zone. This zone is permanently covered with seawater and isapproximately equivalent to the neritic zone.

In physical oceanography, the sublittoral zone refers to coastalregions with significant tidal flows and energy dissipation,including non-linear flows, internal waves, river outflows andoceanic fronts. In practice, this typically extends to theedge of the continental shelf, with depths around 200 meters.

In marine biology, the sublittoral refers to the areas wheresunlight reaches the ocean floor, that is, where the water isnever so deep as to take it out of the photic zone. Thisresults in high primary production and makes the sublittoralzone the location of the majority of sea life. As in physical

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oceanography, this zone typically extends to the edge of thecontinental shelf. The benthic zone in the sublittoral is muchmore stable than in the intertidal zone; temperature, waterpressure, and the amount of sunlight remain fairly constant.Sublittoral corals do not have to deal with as much change asintertidal corals. Corals can live in both zones, but they aremore common in the sublittoral zone.

Within the sublittoral, marine biologists also identify thefollowing:

The infralittoral zone is the algal dominated zone to maybefive metres below the low water mark.

The circalittoral zone is the region beyond theinfralittoral, that is, below the algal zone and dominated bysessile animals such as oysters.

Shallower regions of the sublittoral zone, extending not far fromthe shore, are sometimes referred to as the subtidal zone.

Boundary delimitation, delimitation Boundary delimitation (or simply delimitation) is the drawing of

boundaries, particularly of electoral precincts, states,counties or other municipalities. In the context of elections,it can be called redistribution and is used to preventunbalance of population across districts. Unbalanced ordiscriminatory delimitation is called "gerrymandering."Thoughthere are no internationally agreed processes that guaranteefair delimitation, several organizations, such as theCommonwealth Secretariat, the European Union and theInternational Foundation for Electoral Systems have proposedguidelines for effective delimitation.

national delimitation In international law, national delimitation is the process of

legally establishing the outer limits ("borders") of a statewithin which full territorial or functional sovereignty isexercised. Occasionally this is used when referring to the

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maritime boundaries as well, in this case called maritimedelimitation.

Territorial waters, territorial sea Territorial waters, or a territorial sea, as defined by the 1982

United Nations Convention on the Law of the Sea, is a belt ofcoastal waters extending at most 12 nautical miles (22.2 km;13.8 mi) from the baseline (usually the mean low-water mark)of a coastal state. The territorial sea is regarded as thesovereign territory of the state, although foreign ships (bothmilitary and civilian) are allowed innocent passage throughit; this sovereignty also extends to the airspace over andseabed below. Adjustment of these boundaries is called, ininternational law, maritime delimitation. The term"territorial waters" is also sometimes used informally todescribe any area of water over which a state hasjurisdiction, including internal waters, the contiguous zone,the exclusive economic zone and potentially the continentalshelf.

Baseline, Baseline (sea)Normally, the baseline from which the territorial sea is measured

is the low-water line along the coast as marked on large-scalecharts officially recognized by the coastal state. This iseither the low-water mark closest to the shore, oralternatively it may be an unlimited distance from permanentlyexposed land, provided that some portion of elevations exposedat low tide but covered at high tide (like mud flats) iswithin 12 nautical miles (22 km; 14 mi) of permanently exposedland. Straight baselines can alternatively be definedconnecting fringing islands along a coast, across the mouthsof rivers, or with certain restrictions across the mouths ofbays. In this case, a bay is defined as "a well-markedindentation whose penetration is in such proportion to thewidth of its mouth as to contain land-locked waters andconstitute more than a mere curvature of the coast. Anindentation shall not, however, be regarded as a bay unless

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its area is as large as, or larger than, that of the semi-circle whose diameter is a line drawn across the mouth of thatindentation". The baseline across the bay must also be no morethan 24 nautical miles (44 km; 28 mi) in length.

Internal watersInternal and external territorial waters of the Philippines prior

to the adoption of new baselines in 2009.Internal watersWaters landward of the baseline are defined as internal waters,

over which the state has complete sovereignty: not eveninnocent passage is allowed. Lakes and rivers are consideredinternal waters. All "archipelagic waters" within theoutermost islands of an archipelagic state such as Indonesiaor the Philippines are also considered internal waters, andare treated the same with the exception that innocent passagethrough them must be allowed. However, archipelagic states maydesignate certain sea lanes through these waters.

Territorial seaA state's territorial sea extends up to 12 nautical miles (22.2

km; 13.8 mi) from its baseline. If this would overlap withanother state's territorial sea, the border is taken as themedian point between the states' baselines, unless the statesin question agree otherwise. A state can also choose to claima smaller territorial sea.

Conflicts still occur whenever a coastal nation claims an entiregulf as its territorial waters while other nations onlyrecognize the more restrictive definitions of the UNconvention. Two recent conflicts occurred in the Gulf of Sidrawhere Libya has claimed the entire gulf as its territorialwaters and the U.S. has twice enforced freedom of navigationrights, in the 1981 and 1989 Gulf of Sidra incidents.

Contiguous zone

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The contiguous zone is a band of water extending from the outeredge of the territorial sea to up to 24 nautical miles (44.4km; 27.6 mi) from the baseline, within which a state can exertlimited control for the purpose of preventing or punishing"infringement of its customs, fiscal, immigration or sanitarylaws and regulations within its territory or territorial sea".This will typically be 12 nautical miles (22 km; 14 mi) wide,but could be more (if a state has chosen to claim aterritorial sea of less than 12 nautical miles), or less, ifit would otherwise overlap another state's contiguous zone.However, unlike the territorial sea, there is no standard rulefor resolving such conflicts and the states in question mustnegotiate their own compromise. The United States invoked acontiguous zone out to 24 nmi on 24 September 1999.

exclusive economic zoneAn exclusive economic zone extends from the outer limit of the

territorial sea to a maximum of 200 nautical miles (370.4 km;230.2 mi) from the territorial sea baseline, thus it includesthe contiguous zone. A coastal nation has control of alleconomic resources within its exclusive economic zone,including fishing, mining, oil exploration, and any pollutionof those resources. However, it cannot prohibit passage orloitering above, on, or under the surface of the sea that isin compliance with the laws and regulations adopted by thecoastal State in accordance with the provisions of the UNConvention, within that portion of its exclusive economic zonebeyond its territorial sea. Before 1982, coastal nationsarbitrarily extended their territorial waters in an effort tocontrol activities which are now regulated by the exclusiveeconomic zone, such as offshore oil exploration or fishingrights (see Cod Wars). Indeed, the exclusive economic zone isstill popularly, though erroneously, called a coastal nation'sterritorial waters.

Continental shelf

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Article 76 of UNCLOS gives the legal definition of continentalshelf of coastal countries. For the physical geographydefinition, see the continental shelf page.

The continental shelf of a coastal nation extends out to theouter edge of the continental margin but at least 200 nauticalmiles (370 km; 230 mi) from the baselines of the territorialsea if the continental margin does not stretch that far. Theouter limit of a country's continental shelf shall not stretchbeyond 350 nautical miles (650 km; 400 mi) of the baseline, orbeyond 100 nautical miles (190 km; 120 mi) from the 2,500metres (8,200 ft) isobath, which is a line connecting thedepths of the seabed at 2,500 meters.

The outer edge of the continental margin for the purposes of thisarticle is defined as:

a series of lines joining points not more than 60nautical miles (110 km; 69 mi) apart where the thickness ofsedimentary rocks is at least 1% of the height of thecontinental shelf above the foot of the continental slope; or

a series of lines joining points not more than 60nautical miles apart that is not more than 60 nautical milesfrom the foot of the continental margin.

The foot of the continental slope is determined as the point ofmaximum change in the gradient at its base.

The portion of the continental shelf beyond the 200 nautical milelimit is also known as the extended continental shelf.Countries wishing to delimit their outer continental shelfbeyond 200 nautical miles have to submit information on theirclaim to the Commission on the Limits of the ContinentalShelf. The Commission must make recommendations on mattersrelated to the establishment of the outer limits of theircontinental shelf. The limits established based on theserecommendations shall be final and binding.

Countries were supposed to lodge their submissions to extendtheir continental shelf beyond 200 nautical miles within ten

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years of UNCLOS coming into force in the country, or by 13 May2009 for countries where the convention had come into forcebefore 13 May 1999. As of 1 June 2009, 51 submissions havebeen lodged with the Commission, of which eight have beendeliberated by the Commission and have had recommendationsissued. The eight are (in the order of date of submission):Russian Federation; Brazil; Australia; Ireland; New Zealand;the joint submission by France, Ireland, Spain and the UnitedKingdom; Norway and Mexico.

Rights over the continental shelfArticles 77 to 81 of UNCLOS define the rights of a country over

its continental shelf.A coastal nation has control of all resources on or under its

continental shelf, living or not, but no control over anyliving organisms above the shelf that are beyond its exclusiveeconomic zone. This gives it the right to conduct petroleumdrilling works and lay submarine cables or pipelines in itscontinental shelf.

An example of this is the ongoing dispute over resources in theArctic area, which will be decided by the exact mapping of thecontinental shelves.

Airspace , national airspaceAirspace is the portion of the atmosphere controlled by a country

above its territory, including its territorial waters or, moregenerally, any specific three-dimensional portion of theatmosphere. It is not the same as aerospace, which is thegeneral term for Earth's atmosphere and the outer space in itsvicinity.

Controlled airspace Controlled airspace exists where it is deemed necessary that air

traffic control has some form of positive executive controlover aircraft flying in that airspace (however, air traffic

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control does not necessarily control traffic operating undervisual flight rules (VFR) within this airspace).

Uncontrolled airspace Uncontrolled airspace is airspace in which air traffic control

does not exert any executive authority, although it may act inan advisory manner.

Airspace may be further subdivided into a variety of areas andzones, including those where there are either restrictions onflying activities or complete prohibition of flyingactivities.

Special designations of airspace.Horizontal boundaryBy international law, the notion of a country's sovereign

airspace corresponds with the maritime definition ofterritorial waters as being 12 nautical miles (22.2 km) outfrom a nation's coastline. Airspace not within any country'sterritorial limit is considered international, analogous tothe "high seas" in maritime law. However, a country may, byinternational agreement, assume responsibility for controllingparts of international airspace, such as those over theoceans. For instance, the United States provides air trafficcontrol services over a large part of the Pacific Ocean, eventhough the airspace is international.

Vertical boundaryThere is no international agreement on the vertical extent of

sovereign airspace (the boundary between outer space—which isnot subject to national jurisdiction—and national airspace),with suggestions ranging from about 30 km (19 mi) (the extentof the highest aircraft and balloons) to about 160 km (99 mi)(the lowest extent of short-term stable orbits). TheFédération Aéronautique Internationale has established theKármán line, at an altitude of 100 km (62 mi), as the boundarybetween the Earth's atmosphere and the outer space, while the

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United States considers anyone who has flown above 50 miles(80 km) to be an astronaut; indeed descending space shuttleshave flown closer than 80 km (50 mi) over other nations, suchas Canada, without requesting permission first. Nonethelessboth the Kármán line and the U.S. definition are merelyworking benchmarks, without any real legal authority overmatters of national sovereignty.

The boundary between public airspace and private air rights isdefined by national or local law.

freedoms of the air The freedoms of the air are a set of commercial aviation rights

granting a country's airlines the privilege to enter and landin another country's airspace, formulated as a result ofdisagreements over the extent of aviation liberalisation inthe Convention on International Civil Aviation of 1944, knownas the Chicago Convention. The terms 'freedom' and 'right' area shorthand way of referring to the type of internationalservices permitted between two or more countries. The UnitedStates had called for a standardized set of separate airrights to be negotiated between states, but most othercountries were concerned that the size of the U.S. airlineswould dominate air travel if there were not strict rules. Thefreedoms of the air are the fundamental building blocks of theinternational commercial aviation route network. The use ofthe terms "freedom" and "right" confer entitlement to operateinternational air services only within the scope of themultilateral and bilateral treaties (air services agreements)that allow them.

The first two freedoms concern the passage of commercial aircraftthrough foreign airspace and airports, the other freedoms areabout carrying people, mail and cargo internationally. Thefirst through fifth freedoms are officially enumerated byinternational treaties, especially the Chicago Convention.Several other freedoms have been added, and although most arenot officially recognised under broadly applicable

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international treaties they have been agreed to by a number ofcountries. The lower-numbered freedoms are relativelyuniversal while the higher-numbered ones are rarer and morecontroversial. Liberal open skies agreements often representthe least restrictive form of air services agreements and mayinclude many if not all freedoms. They are relatively rare butexamples include the recent single aviation markets in theEuropean Union and between Australia and New Zealand.

1st freedomthe right to fly over a foreign country without landing2nd freedomthe right to refuel or carry out maintenance in a foreign country

without embarking or disembarking passengers or cargo[4]

3rd freedomthe right to fly from one's own country to another[4]

4th freedomthe right to fly from another country to one's own[4]

5th freedomthe right to fly between two foreign countries on a flight

originating or ending in one's own country[4]

6th freedomthe right to fly from a foreign country to another while stopping

in one's own country for non-technical reasons. 7th freedomthe right to fly between two foreign countries while not offering

flights to one's own country[4]

8th freedomthe right to fly inside a foreign country, continuing to one's

own country[4]

9th freedom

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the right to fly inside a foreign country without continuing toone's own country[4]

Transit rights The first and second freedoms grant rights to pass through a

country without carrying traffic that originates or terminatesthere and are known as 'transit rights'.[2]:146 The ChicagoConvention drew up a multilateral agreement in which the firsttwo freedoms, known as the International Air Services TransitAgreement (IASTA) or "Two Freedoms Agreement", were open toall signatories. As of mid-2007, the treaty was accepted by129 countries.

A country granting transit rights may impose fees for theprivilege. The reasonableness of such fees has causedcontroversy at times.

Traffic rightsIn contrast to transit rights, 'traffic rights' allow commercial

international services between, through and in some caseswithin the countries that are parties to air servicesagreements or other treaties. While it was agreed that thethird to fifth freedoms shall be negotiated between states,the International Air Transport Agreement (or "Five FreedomsAgreement") was also opened for signatures, encompassing thefirst five freedoms. The remaining four freedoms are madepossible by some air services agreements but are not'officially' recognized because they are not mentioned by theChicago Convention.

Beyond rightsBeyond rights allow the carriage of traffic between (and

sometimes within) countries that are foreign to the airlinesthat operate them. Today, the most controversial of these arefifth freedom rights. Less controversial but still restrictedat times, though relatively more common are sixth freedomrights.

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Beyond rights also encompass international flights with a foreignintermediate stop where passengers may only embark anddisembark at the intermediate point on the leg of the flightthat serves the origin of an airline operating it. It alsoincludes 'stopover' traffic where passengers may embark ordisembark at an intermediate stop as part of an itinerarybetween the endpoints of a multi-leg flight or connectingflights. Some international flights stop at multiple points ina foreign country and passengers may sometimes make stopoversin a similar manner, but because the traffic being carrieddoes not originate in the country where the flight takes placeit is not cabotage but another form of beyond rights.

bilateral air transport agreement , bilateral air serviceagreement

A bilateral air transport agreement (also sometimes called abilateral air service agreement or ATA or ASA) is an agreementwhich two nations sign to allow international commercial airtransport services between their territories.

The bilateral system has its basis under the Chicago conventionand associated multilateral treaties. The Chicago Conventionwas signed in December 1944 and has governed international airservices since then. the convention also has a range ofannexes covering issues such as aviation security, safetyoversight, air worthiness, navigation, environmentalprotection and facilitation (expediting and departure atairports).

In 1913, in what was probably the earliest such agreement, abilateral Exchange of Notes was signed between Germany andFrance to provide for airship services.

One of the first ATAs following World War II was the BermudaAgreement, which was signed in 1946 by the United Kingdom andthe United States. Features of this agreement became modelsfor the thousands of such agreements that were to follow,although in recent decades some of the traditional clauses in

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such agreements have been modified (or "liberalized") inaccordance with "open skies" policies adopted by somegovernments, notably the United States.

In principle all ATAs should be registered by the InternationalCivil Aviation Organization in DAGMAR but this source is notabsolutely comprehensive.

Air Service Agreements (ASA)are formal treaties betweencountries- accompanying Memoranda of Understanding (MoU)andexchanges of formal diplomatic notes. It is not mandatory tohave an ASA in place for international services to operate,but the cases where services exist without treaty are rare.

ASAs cover the basic framework under which airlines are grantedeconomic bilateral rights to fly two countries. The frequency,the designated airlines of the two signing countries, originand intermediate points,Traffic rights, Type of aircraft andtax issues are normally covered by MoUs.

Open skies Open skies is an international policy concept that calls for the

liberalization of the rules and regulations of theinternational aviation industry—especially commercial aviation—in order to create a free-market environment for the airlineindustry. Its primary objectives are:

to liberalize the rules for international aviation markets andminimize government intervention as it applies to passenger,all-cargo, and combination air transportation as well asscheduled and charter services; and

to adjust the regime under which military and other state-basedflights may be permitted.

For open skies to become effective, a bilateral (and sometimesmultilateral) Air Transport Agreement must be concludedbetween two or more nations.

Multilateral Air Transport Agreement

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A multilateral air services agreement is the same as bilateralagreement, the only difference being that it involves morethan two contracting states.

Justification of sovereignty There exist vastly differing views on the moral basis of

sovereignty. A fundamental polarity is between theories thatassert that sovereignty is vested directly in the sovereign bydivine or natural right and theories that assert it originatesfrom the people. In the latter case there is a furtherdivision into those that assert that the people transfer theirsovereignty to the sovereign (Hobbes), and those that assertthat the people retain their sovereignty (Rousseau)

During the brief period of Absolute monarchies in Europe, thedivine right of kings was an important competing justificationfor the exercise of sovereignty. The Mandate of Heaven hadsome similar implications in China.

republic A republic is a form of government in which the people, or some

significant portion of them, retain sovereignty over thegovernment and where offices of state are not granted throughheritage.515 A common modern definition of a republic is agovernment having a head of state who is not a monarch.516

Democracy Democracy is based on the concept of popular sovereignty. In a

direct democracy the public plays an active role in shapingand deciding policy. Representative democracy permits atransfer of the exercise of sovereignty from the people to alegislative body or an executive (or to some combination oflegislature, executive and Judiciary). Many representativedemocracies provide limited direct democracy throughreferendum, initiative, and recall.

515 Malanczuk, Peter. Akehurst's Modern Introduction to International Law. Internationalpolitics/Public international law. Routledge. pp. pp147–152. ISBN 9780415111201.

516 Montesquieu, The Spirit of the Laws (1748), Bk. II, ch. 1.

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Parliamentary sovereignty Parliamentary sovereignty refers to a representative democracy

where the parliament is ultimately sovereign and not theexecutive power nor the judiciary.

Views on sovereigntyClassical Liberals(sovereignty) such as Stuart Mill consider

every individual as sovereign on him- or herself.Realists (sovereignty) view sovereignty as being untouchable and

as guaranteed to legitimate nation-statesRationalists (sovereignty) see sovereignty similarly to Realists.

However, Rationalism states that the sovereignty of a nation-state may be violated in extreme circumstances, such as humanrights abuses

Internationalists (sovereignty) believe that sovereignty isoutdated and an unnecessary obstacle to achieving peace, inline with their belief of a 'global community'. In the lightof the abuse of power by sovereign states such as Hitler'sGermany or Stalin's Soviet Union, they argue that human beingsare not necessarily protected by the state whose citizens theyare, and that the respect for state sovereignty on which theUN Charter is founded is an obstacle to humanitarianintervention.517

Anarchists(sovereignty) deny the sovereignty of states andgovernments. Anarchists often argue for a specific individualkind of sovereignty, such as the Anarch as a sovereignindividual. Salvador Dalí, for instance, talked of "anarcho-monarchist" (as usual for him, tongue in cheek); AntoninArtaud of Heliogabalus: Or, The Crowned Anarchist; Max Stirnerof The Ego and Its Own; Georges Bataille and Jacques Derridaof a kind of "antisovereignty". Therefore, anarchists join aclassical conception of the individual as sovereign ofhimself, which forms the basis of political consciousness. The

517 Andreas Osiander, "Sovereignty, International Relations, and the Westphalian Myth",International Organization Vol. 55 No. 2 (Spring 2001), pp. 251–287.

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unified consciousness is sovereignty over one's own body, asNietzsche demonstrated (see also Pierre Klossowski's book onNietzsche and the Vicious Circle). See also sovereignty of theindividual and self-ownership.

Imperialists (sovereignty) hold a view of sovereignty where powerrightfully exists with those states that hold the greatestability to impose the will of said state, by force or threatof force, over the populace or other states with weakermilitary or political will. They effectively deny thesovereignty of the individual in deference to either the'good' of the whole, or to divine right

According to Matteo Laruffa "sovereignty resides in every publicaction and policy as the exercise of executive powers byinstitutions open to the participation of citizens to thedecision-making processes"518

sovereignty and rule of lawAnother topic is whether the law is held to be sovereign, that

is, whether it is above political or other interference.Sovereign law constitutes a true state of law, meaning theletter of the law (if constitutionally correct) is applicableand enforceable, even when against the political will of thenation, as long as not formally changed following theconstitutional procedure. Strictly speaking, any deviationfrom this principle constitutes a revolution or a coup d'état,regardless of the intentions.519

law of spaceSpace law is an area of the law that encompasses national and

international law governing activities in outer space.International lawyers have been unable to agree on a uniformdefinition of the term "outer space", although most lawyersagree that outer space generally begins at the lowest altitude

518 Matteo Laruffa, "The European Integration and National Interests: from an intergovernmentalmodel to a Constitutional Agreement"(Hungarian Academy of Social Sciences, Budapest, 3rd July2014)

519 Herbermann, Charles, ed. (1913). Catholic Encyclopedia. Robert Appleton Company.

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above sea level at which objects can orbit the Earth,approximately 100 km (60 mi).

The inception of the field of space law began with the launch ofthe world's first artificial satellite by the Soviet Union inOctober 1957. Named Sputnik 1, the satellite was launched aspart of the International Geophysical Year. Since that time,space law has evolved and assumed more importance as mankindhas increasingly come to use and rely on space-basedresources.

Beginning in 1957, nations began discussing systems to ensure thepeaceful use of outer space.520 Bilateral discussions betweenthe United States and USSR in 1958 resulted in thepresentation of issues to the UN for debate.521 In 1959, the UNcreated the Committee on the Peaceful Uses of Outer Space(COPUOS). COPUOS in turn created two subcommittees, theScientific and Technical Subcommittee and the LegalSubcommittee. The COPUOS Legal Subcommittee has been a primaryforum for discussion and negotiation of internationalagreements relating to outer space.

Five international treaties have been negotiated and drafted inthe COPUOS:

1. The 1967 Treaty on Principles Governing the Activities ofStates in the Exploration and Use of Outer Space, includingthe Moon and Other Celestial Bodies (the "Outer SpaceTreaty").

2. The 1968 Agreement on the Rescue of Astronauts, the Return ofAstronauts and the Return of Objects Launched into Outer Space(the "Rescue Agreement").

3. The 1972 Convention on International Liability for DamageCaused by Space Objects (the "Liability Convention").

4. The 1975 Convention on Registration of Objects Launched intoOuter Space (the "Registration Convention").

520 UN website UN Resolution 1148 (XII).521 Google books Nuclear Weapons and Contemporary International Law N.Singh, E. WcWhinney

(p.289); SEE ALSO UN website UN Resolution 1348 (XIII).

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5. The 1979 Agreement Governing the Activities of States on theMoon and Other Celestial Bodies (the "Moon Treaty").

The five treaties and agreements of international space law cover"non-appropriation of outer space by any one country, armscontrol, the freedom of exploration, liability for damagecaused by space objects, the safety and rescue of spacecraftand astronauts, the prevention of harmful interference withspace activities and the environment, the notification andregistration of space activities, scientific investigation andthe exploitation of natural resources in outer space and thesettlement of disputes."522

The United Nations General Assembly adopted five declarations andlegal principles which encourage exercising the internationallaws, as well as unified communication between countries. Thefive declarations and principles are:

law of airspaceAirspace means the portion of the atmosphere controlled by a

country above its territory, including its territorial watersor, more generally, any specific three-dimensional portion ofthe atmosphere. It is not the same as aerospace, which is thegeneral term for Earth's atmosphere and the outer space in itsvicinity.

ٮ Controlled airspace exists where it is deemed necessary that air traffic control hassome form of positive executive control over aircraft flying in that airspace (however,Air traffic control does not necessarily control traffic operating under visual flightrules within this airspace).

ٮ Uncontrolled airspace is airspace in which air traffic control does not exert anyexecutive authority, although it may act in an advisory manner.

Airspace may be further subdivided into a variety of areas andzones, including those where there are either restrictions on

522 United Nations Office for Outer Space Affairs. "United Nations Treatiesand Principles on Space Law.". Retrieved 16 February 2011.

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flying activities or complete prohibition of flyingactivities.

By international law, the notion of a country's sovereignairspace corresponds with the maritime definition ofterritorial waters as being 12 nautical miles (22.2 km) outfrom a nation's coastline. Airspace not within any country'sterritorial limit is considered international, analogous tothe "high seas" in maritime law. However, a country may, byinternational agreement, assume responsibility for controllingparts of international airspace, such as those over theoceans. For instance, the United States provides air trafficcontrol services over a large part of the Pacific Ocean, eventhough the airspace is international.

There is no international agreement on the vertical extent ofsovereign airspace (the boundary between outer space—which isnot subject to national jurisdiction—and national airspace),with suggestions ranging from about 30 km (19 mi) (the extentof the highest aircraft and balloons) to about 160 km (99 mi)(the lowest extent of short-term stable orbits).

air lawThis is the body of law directly or indirectly concerned with

civil aviation. Aviation in this context extends to bothheavier-than-air and lighter-than-air aircraft. Air-cushionvehicles are not regarded as aircraft by the InternationalCivil Aviation Organization (ICAO), but the practice ofindividual states in this regard is not yet settled. Theearliest legislation in air law was a 1784 decree of the Parispolice forbidding balloon flights without a special permit.

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DIPLOMACY & INTERNATIONAL RELATIONS

Jus legationis A Legal Latin term meaning the capacity to send and receive

consuls and diplomats.diplomacy diplomacy, the established method of influencing the decisions

and behaviour of foreign governments and peoples throughdialogue, negotiation, and other measures short of war orviolence. Diplomatic practices pioneered in Europe had beenadopted throughout the world, and diplomacy had expanded tocover summit meetings and other international conferences,parliamentary diplomacy, the international activities ofsupranational and subnational entities, unofficial diplomacyby nongovernmental elements, and the work of internationalcivil servants. Diplomacy is the principal substitute for theuse of force or underhanded means in statecraft; it is howcomprehensive national power is applied to the peacefuladjustment of differences between states. It may be coercive(i.e., backed by the threat to apply punitive measures or touse force) but is overtly nonviolent. Its primary tools areinternational dialogue and negotiation, primarily conducted byaccredited envoys (a term derived from the French envoyé,meaning “one who is sent”) and other political leaders. Unlikeforeign policy, which generally is enunciated publicly, mostdiplomacy is conducted in confidence, though both the factthat it is in progress and its results are almost always madepublic in contemporary international relations.

informal diplomacy, track II diplomacy Informal diplomacy (sometimes called Track II diplomacy) has been

used for centuries to communicate between powers. Mostdiplomats work to recruit figures in other nations who mightbe able to give informal access to a country's leadership.

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This occurs in situations where governments wish to expressintentions or to suggest methods of resolving a diplomaticsituation, but do not wish to express a formal position. TrackII diplomacy is a specific kind of informal diplomacy, inwhich non-officials (academic scholars, retired civil andmilitary officials, public figures, social activists) engagein dialogue, with the aim of conflict resolution, orconfidence-building. Sometimes governments may fund such TrackII exchanges. Sometimes the exchanges may have no connectionat all with governments, or may even act in defiance ofgovernments; such exchanges are called Track III.

Preventive diplomacyPreventive diplomacy is action to prevent disputes from arising

between parties, to prevent existing disputes from escalatinginto conflicts and to limit the spread of the latter when theyoccur. Since the end of the Cold War the internationalcommunity through international institutions has been focusingon preventive diplomacy.

Public diplomacyPublic diplomacy is exercising influence through communication

with the general public in another nation, rather thanattempting to influence the nation's government directly. Thiscommunication may take the form of propaganda, or more benignforms such as citizen diplomacy, individual interactionsbetween average citizens of two or more nations. Technologicaladvances and the advent of digital diplomacy now allow instantcommunication with foreign publics, and methods such asFacebook diplomacy and Twitter diplomacy are increasingly usedby world leaders and diplomats.

Soft power, hearts and minds diplomacySoft power, sometimes called hearts and minds diplomacy, as

defined by Joseph Nye, is the cultivation of relationships,respect, or even admiration from others in order to gaininfluence, as opposed to more coercive approaches.

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Monetary diplomacy, Dollar diplomacyMonetary diplomacy is the use of foreign aid or other types of

monetary policy as a means to achieve a diplomatic agenda.Counterinsurgency diplomacyCounterinsurgency diplomacy, developed by diplomats deployed to

civil-military stabilization efforts in Iraq and Afghanistan,employs diplomats at tactical and operational levels, outsidetraditional embassy environments and often alongside militaryor peacekeeping forces. Counterinsurgency diplomacy mayprovide political environment advice to local commanders,interact with local leaders, and facilitate the governanceefforts, functions and reach of a host government. 523

Gunboat diplomacyGunboat diplomacy is the use of conspicuous displays of military

strength as a means of intimidation in order to influenceothers.

AppeasementAppeasement is a policy of making concessions to an aggressor in

order to avoid confrontation.Nuclear diplomacyNuclear diplomacy is the area of diplomacy related to preventing

nuclear proliferation and nuclear war. One of the most well-known (and most controversial) philosophies of nucleardiplomacy is Mutually Assured Destruction (MAD).

foreign policyForeign policy establishes goals, prescribes strategies, and sets

the broad tactics to be used in their accomplishment. It mayemploy secret agents, subversion, war, or other forms ofviolence as well as diplomacy to achieve its objectives. Thepurpose of foreign policy is to further a state’s interests,which are derived from geography, history, economics, and the

523 Green, Dan. "Counterinsurgency Diplomacy: Political Advisors at the Operational and Tacticallevels." , Military Review, May-June 2007.

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distribution of international power. Safeguarding nationalindependence, security, and integrity—territorial, political,economic, and moral—is viewed as a country’s primaryobligation, followed by preserving a wide freedom of actionfor the state. The political leaders, traditionally ofsovereign states, who devise foreign policy pursue what theyperceive to be the national interest, adjusting nationalpolicies to changes in external conditions and technology.

non-interference in internal affairsThe theory or system of government that upholds the autonomous

character of the economic order, believing that governmentshould intervene as little as possible in the direction ofeconomic affairs. The practice or doctrine of noninterferencein the affairs of others, especially with reference toindividual conduct or freedom of action, is a chief foreignpolicy tool of certain nations, especially China.

terra nullius Terra nullius is a Latin expression deriving from Roman law

meaning ‘land belonging to no one’ (or ‘no man's land’),524 which isused in international law to describe territory which hasnever been subject to the sovereignty of any state, or overwhich any prior sovereign has expressly or implicitlyrelinquished sovereignty. Sovereignty over territory which isterra nullius may be acquired through occupation, 525 though insome cases doing so would violate an international law ortreaty. The colonialists used the same concept to deprive theaboriginal/indigenous peoples their rights to land. In itscelebrated Mabo judgment of 1992, the High Court of Australiaoverturned the concept of terra nullius and said that

524 Connor, Michael. "The invention of terra nullius", Sydney: Macleay Press, 2005.

525 See W. Schivelbusch, The Culture of Defeat at page 106 (Henry Holt and Co.2001). Emperor Napoleon III had declared and lost the war, and, in the Treaty of Frankfurt, France lost Alsace-Lorraine, previously annexed by King Louis XIV in the 17th century.

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Aboriginal people did have a common law legal title to landthey had a long, strong and continuous connection to undercustomary law. Later High Court judgments such as Wik furtherclarified the position by deciding that pastoral rights ofsettler-farmers could co-exist with native title and in somecases supercede them.

estrada doctrineThe doctrine was the most influential and representative

instrument in the country's foreign policy for seventy years,it claims that foreign governments should not judge,positively or negatively, the governments or changes ingovernment of other nations, in that such action would imply abreach to their sovereignty.526 This policy was said to bebased on the principles of non-intervention, peacefulresolution of disputes and self-determination of allnations.527

castañeda doctrineThe Castañeda Doctrine is a term used as reference to Mexico's

foreign policy during the presidency of Vicente Fox. Its namederives from Jorge G. Castañeda, proponent of the policy.President Fox appointed Castañeda to be his Secretary ofForeign Affairs at the beginning of his term. Castañedaimmediately broke with the old-style foreign policy, known asthe Estrada Doctrine. The new foreign policy called for anopenness and an acceptance of criticism from the internationalcommunity, and the increase of Mexican involvement in foreignaffairs. However, after a series of foreign policy blunders,among which include Mexico's temporary rift with Cuba andcriticism from many Latin American countries such as Argentinaand Venezuela for adopting a pro-US stance with this doctrine,

526 Pereña-García, Mercedes (2001). Las Relaciones Diplomáticas de México. Plaza y Valdés, p. 94. ISBN 968-856-917-8.

527 Secretariat of Foreign Affairs (2005) La Política Exterior Mexicana en la Transición. FCE, SRE, p. 281. ISBN 968-16-7745-5.

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the Castañeda has been effectively, if not officially,discontinued under the Calderón administration.

diplomatic missionA diplomatic mission is a group of people from one state or an

international inter-governmental organisation (such as theUnited Nations) present in another state to represent thesending state/organisation in the receiving state. 528 Inpractice, a diplomatic mission usually denotes the permanentmission, namely the office of a country's diplomaticrepresentatives in the capital city of another country. Aswell as being a diplomatic mission to the country in which itis situated, it may also be a non-resident permanent missionto one or more other countries. There are thus resident andnon-resident embassies.529

embassy A permanent diplomatic mission is typically known as an embassy,

and the person in charge of the mission is known as anambassador. The term ‘embassy’ is often used to refer to thebuilding or compound housing an ambassador's offices andstaff. Technically, however, ‘embassy’ refers to thediplomatic delegation itself, while the office building inwhich they work is known as a chancery.

Ambassadors can reside within or outside of the chancery; forexample, American diplomatic missions maintain separatehousing for their ambassadors apart from their embassies.Ambassadors residing outside of the chancery retain specialprotection from the host country's security forces and theambassadorial residences enjoy the same rights as missions.Like embassies, such residences are considered inviolable and,extraterritorial. The residences of high commissioner, who aresimilar to ambassadors, have the same rights.

528 Tom Nierop, Systems and Regions in Global Politics (Wiley, John and Sons 1994 ISBN 978-0-471-94942-8), p. 67).;

529 see also Deon Geldenhuys, Isolated States: A Comparative Analysis (University of Cambridge 1990 ISBN 0-521-40268-9), p. 158

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consulate A consulate is similar to (but not the same as) a diplomatic

office, but with focus on dealing with individual persons andbusinesses, as defined by the Vienna Convention on ConsularRelations. A consulate or consulate general is generally arepresentative of the embassy in locales outside of thecapital city. For instance, the United Kingdom has its Embassyof the United Kingdom in Washington, D.C., but also maintainsseven consulates-general and four consulates elsewhere in US.The person in charge of a consulate or consulate-general isknown as a consul or consul-general, respectively. Similarservices may also be provided at the embassy (to serve theregion of the capital) in what is sometimes called a consularsection.

extra territorialityExtraterritoriality is the state of being exempt from the

jurisdiction of local law, usually as the result of diplomaticnegotiations. Extraterritoriality can also be applied tophysical places, such as military bases of foreign countries,or offices of the United Nations. The three most common casesrecognized today internationally relate to the persons andbelongings of foreign heads of state, the persons andbelongings of ambassadors and certain other diplomatic agents,and ships in foreign waters.

Extraterritoriality is often extended to friendly or alliedmilitaries, particularly for the purposes of allowing thatmilitary to simply pass through one's territory.

It is distinguished from personal jurisdiction in the sense thatextraterritoriality operates to the prejudice of localjurisdiction530.

530 DeVorsey, Louis,1966,The Indian Boundaries in the Southern Colonies, 1763–1775 (Chapel Hill: Univ. of North Carolina Press); Sutton, Imre, 1976, "Sovereign States and the Changing Definition of the Indian Reservation," Geographical Review,66(3):281-95.

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protocolsThere are two meanings of the word protocol. In the legal sense,

it is defined as an international agreement that supplementsor amends a treaty. In the diplomatic sense, the term refersto the set of rules, procedures, conventions and ceremoniesthat relate to relations between states. In general, protocolrepresents the recognized and generally accepted system ofinternational courtesy. The term protocol is derived from theGreek word protokollan (first glue). This comes from the actof gluing a sheet of paper to the front of a document topreserve it when it was sealed, which imparted additionalauthenticity to it. In the beginning, the term protocolrelated to the various forms of interaction observed inofficial correspondence between states, which were oftenelaborate in nature. In course of time, however, it has cometo cover a much wider range of international relations.

1. The 1949 conventions have been modified with three amendment protocols:2. Protocol I (1977) relating to the Protection of Victims of International Armed

Conflicts3. Protocol II (1977) relating to the Protection of Victims of Non-International Armed

Conflicts4. Protocol III (2005) relating to the Adoption of an Additional Distinctive Emblem.

protecting powersA protecting power is a state that is not taking part in the

armed conflict, but that has agreed to look after theinterests of a state that is a party to the conflict. Theprotecting power is a mediator enabling the flow ofcommunication between the parties to the conflict. Theprotecting power also monitors implementation of theseConventions, such as by visiting the zone of conflict andprisoners of war. The protecting power must act as an advocatefor prisoners, the wounded, and civilians.

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hamburg rulesThe Hamburg Rules are a set of rules governing the international

shipment of goods, resulting from the United NationsInternational Convention on the Carriage of Goods by Seaadopted in Hamburg on 31 March 1978. The Convention was anattempt to form a uniform legal base for the transportation ofgoods on oceangoing ships. A driving force behind theconvention was the attempt of developing countries' to levelthe playing field.

government in exileA government in exile is a political group which claims to be a

country's legitimate government, but is unable to exerciselegal power and instead resides in a foreign country.Governments in exile usually plan to one day return to theirnative country and regain formal power. A government in exilediffers from a rump state in the sense that a rump statecontrols at least part of its former territory. For example,during World War I, nearly all of Belgium was occupied byGermany, but Belgium and its allies held on to a small slicein the country's west. A government in exile, conversely, haslost all its territory. Governments in exile frequently occurduring wartime occupation, or in the aftermath of a civil war,revolution, or military coup.

gunboat diplomacy or big stick diplomacyIn international politics, gunboat diplomacy (also referred to as

Big Stick Diplomacy) refers to the pursuit of foreign policyobjectives with the aid of conspicuous displays of militarypower — implying or constituting a direct threat of warfare,should terms not be agreeable to the superior force. The termcomes from the period of colonial imperialism, where theEuropean powers would intimidate other states into grantingtrade or other concessions (unequal treaties) through ademonstration of their superior military power. A countrynegotiating with a European power would notice that a warship

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or fleet of ships had appeared off its coast. The mere sightof such power almost always had a considerable effect, and itwas rarely necessary for such boats to use other measures,such as demonstrations of cannon fire. Aside from militaryconquest, gunboat diplomacy was the dominant way to establishnew trade partners, colonial outposts and expansion ofempire.531

Diplomatic recognition Diplomatic recognition in international law is a unilateral

political act with domestic and international legalconsequences, whereby a state acknowledges an act or status ofanother state or government in control of a state (may be alsoa recognized state). Recognition can be accorded either defacto or de jure, usually by a statement of the recognizinggovernment. Recognition can be implied by other acts, like thevisit of the head of state, or the signing of a bilateraltreaty. Though used as a factor in judging sovereignty,Article 3 of the Montevideo Convention states, "The politicalexistence of the state is independent of recognition by otherstates."

Diplomatic immunity Diplomatic immunity is a form of legal immunity that ensures that

diplomats are given safe passage and are considered notsusceptible to lawsuit or prosecution under the host country'slaws, although they can still be expelled. It was agreed asinternational law in the Vienna Convention on DiplomaticRelations (1961), though the concept and custom have a muchlonger history. Many principles of diplomatic immunity are nowconsidered to be customary law. Diplomatic immunity as aninstitution developed to allow for the maintenance ofgovernment relations, including during periods of difficultiesand even armed conflict. When receiving diplomats—who formally

531 J. Cable, Gunboat diplomacy, 1919-1991: political applications of limited naval force (third edition), Basingstoke: Macmillan/IISS, 1994, p.14.

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represent the sovereign—the receiving head of state grantscertain privileges and immunities to ensure they mayeffectively carry out their duties, on the understanding thatthese are provided on a reciprocal basis.

Military occupation Military occupation is effective provisional control of a certain

ruling power over a territory which is not under the formalsovereignty of that entity, without the volition of the actualsovereign.532 The intended temporary nature of occupation, whenno claim for permanent sovereignty is made by the occupyingentity, distinguishes occupation from annexation.533 The HagueConvention of 1907 specify that "[t]erritory is consideredoccupied when it is actually placed under the authority of thehostile army." The form of administration by which anoccupying power exercises government authority over occupiedterritory is called "military government." Neither the HagueConventions nor the Geneva Conventions specifically define ordistinguish an act of "invasion." The terminology of"occupation" is used exclusively.

Military government Military government may be broadly characterized as the

administration or supervision of occupied territory, or as thegovernmental form of such an administration. Militarygovernment is distinguished from martial law, which is thetemporary rule by domestic armed forces over disturbed areas.The rules of military government are delineated in variousinternational agreements, primarily the Hague Convention of1907, the Geneva Conventions of 1949, as well as establishedstate practice. The relevant international conventions, theInternational Committee of the Red Cross (ICRC) Commentaries,and other treaties by military scholars provide guidelines onsuch topics as rights and duties of the occupying power,

532 A Roberts. Prolonged Military Occupation: The Israeli-Occupied Territories Since 1967 - Am.J. Int'l L., 1990, p. 47.

533 David M. Edelstein. Occupational Hazards: Why Military Occupations Succeed or Fail. Journal ofPeace Research 2010; 47; 59

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protection of civilians, treatment of prisoners of war,coordination of relief efforts, issuance of travel documents,property rights of the populace, handling of cultural and artobjects, management of refugees, and other concerns which arevery important both before and after the cessation ofhostilities. A country that establishes a military governmentand violates internationally agreed upon norms runs the riskof censure, criticism, or condemnation. In the current era,the practices of military government have largely become apart of customary international law, and form a part of thelaws of war.

Annexation Annexation (Latin ad, to, and nexus, joining) is the forcible

acquisition of a state's territory by another state.534

Usually, it is implied that the territory and population beingannexed is the smaller, more peripheral, and weaker of the twomerging entities, barring physical size. It can also imply acertain measure of coercion, expansionism or unilateralism onthe part of the stronger of the merging entities. Because ofthis, more positive euphemisms like politicalunion/unification or reunification are sometimes seen indiscourse. Annexation differs from cession and amalgamation,because unlike cession where territory is given or soldthrough treaty, or amalgamation (where the authorities of bothsides are asked if they agree with the merge), annexation is aunilateral act where territory is seized and held by one stateand legitimized via general recognition by the otherinternational bodies (i.e. countries and intergovernmentalorganisations).535 During World War II, the use of annexationdeprived whole populations of the safeguards provided byinternational laws governing military occupations. The authorsof the Fourth Geneva Convention made a point of "giving these

534 Hofmann, Rainer (February 2013). "Annexation". Max Planck Encyclopedia of PublicInternational Law. Oxford University Press.

535 Chisholm, Hugh, ed. (1911). "Annexation". Encyclopædia Britannica (11th ed.). CambridgeUniversity Press.

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http://en.wikipedia.org/wiki/Encyclop%C3%A6dia_Britannica_Eleventh_Edition

http://en.wikisource.org/wiki/1911_Encyclop%C3%A6dia_Britannica/Annexation


rules an absolute character", thus making it much moredifficult for a state to bypass international law through theuse of annexation.536

exclusive mandate An exclusive mandate is a government's assertion of its

legitimate authority over a certain territory, part of whichanother government controls with stable, de facto sovereignty.It is also known as a claim to sole representation or anexclusive authority claim. The concept was particularlyimportant during the Cold War period when a number of stateswere divided on ideological grounds.

Uncontacted peoples, isolated peoples, lost tribes, voluntaryisolation

Uncontacted peoples, also referred to as isolated peoples or losttribes, are communities who live, or have lived, either bychoice (peoples living in voluntary isolation) or bycircumstance, without significant contact with globalizedcivilization. Few peoples have remained totally uncontacted byglobal civilization. Indigenous rights activists call for suchgroups to be left alone, stating that it will interfere withtheir right to self-determination. Most uncontactedcommunities are located in densely forested areas in SouthAmerica, New Guinea and India.

EmpireAn empire is a multi-ethnic state, multinational state, or a

group of nations with a central government established usuallythrough coercion (on the model of the Roman Empire). An empireoften includes self-governing regions, but these will possessautonomy only at the sufferance of the central government. Onthe other hand, a political entity that is an empire in name,may in practice consist of multiple autonomous kingdomsorganised together in a federation, with a high king

536 Convention (IV) relative to the Protection of Civilian Persons in Time of War. Geneva, 12August 1949.Commentary on Part III : Status and treatment of protected persons #Section III :Occupied territories Art. 47 by the ICRC

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designated as an emperor. One example of this was ImperialGermany.

federal government The federal government is the common or national government of a

federation. A federal government may have distinct powers atvarious levels authorized or delegated to it by its memberstates. The structure of federal governments vary. Based on abroad definition of a basic federalism, there are two or morelevels of government that exist within an establishedterritory and govern through common institutions withoverlapping or shared powers as prescribed by a constitution.

Federal government is the government at the level of thesovereign state. Usual responsibilities of this level ofgovernment are maintaining national security and exercisinginternational diplomacy, including the right to sign bindingtreaties. Basically, a modern federal government, within thelimits defined by its constitution, has the power to make lawsfor the whole country, unlike local governments.

Devolved stateA federation differs from a devolved state, such as Indonesia,

the United Kingdom and the Kingdom of Spain, because, in adevolved state, the central government can revoke theindependence of the subunits (Scottish Parliament, WelshNational Assembly, Northern Ireland Assembly in the case ofthe UK) without changing the constitution.

Associated StatesA federation also differs from an associated state, such as the

Federated States of Micronesia (in free association with theUnited States) and Cook Islands and Niue (which form part ofthe Realm of New Zealand). There are two kinds of associatedstates: in case of Micronesia, association is concluded bytreaty between two sovereign states; in case of Cook Islandsand Niue, association is concluded by domestic legalarrangements.

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Crown dependenciesThe relation between the Crown dependencies of the Isle of Man

and the bailiwicks of Guernsey and Jersey in the ChannelIslands and the United Kingdom is very similar to a federaterelation: the Islands enjoy independence from the UnitedKingdom, which, via The Crown, takes care of their foreignrelations and defence – although the UK Parliament does haveoverall power to legislate for the dependencies. However, theislands are neither an incorporated part of the UnitedKingdom, nor are they considered to be independent orassociated states. The Isle of Man does not have a monarch,per se; rather, the British Monarch is, ex officio, Lord ofMann (irrespective of the incumbent's sex).

Overseas territoriesOverseas territories, such as the British overseas territories,

are vested with varying degrees of power; some enjoyconsiderable independence from the sovereign state, which onlytakes care of their foreign relations and defence. However,they are neither considered to be part of it, nor recognisedas sovereign or associated states.

de facto federationsThe distinction between a federation and a unitary state is often

quite ambiguous. A unitary state may closely resemble afederation in structure and, while a central government maypossess the theoretical right to revoke the autonomy of aself-governing region, it may be politically difficult for itto do so in practice. The self-governing regions of someunitary states also often enjoy greater autonomy than those ofsome federations. For these reasons, it is sometimes arguedthat some modern unitary states are de facto federations. Defacto federations, or quasi-federations, are often termed"regional states".

federation

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A federation (from Latin: foedus, gen.: foederis, "covenant"),also known as a federal state, is a political entitycharacterized by a union of partially self-governing states orregions under a central (federal) government. In a federation,the self-governing status of the component states, as well asthe division of power between them and the central government,are typically constitutionally entrenched and may not bealtered by a unilateral decision of either party, the statesor the federal political body.

federacy A federacy is essentially an extreme case of an asymmetric

federation, either due to large differences in the level ofautonomy, or the rigidity of the constitutional arrangements.The term federacy is more often used for the relation betweenthe sovereign state and its autonomous areas.

confederation A confederation, in modern political terms, is usually limited to

a permanent union of sovereign states for common action inrelation to other states. The closest entity in the world to aconfederation at this time is the European Union.

unitary state, unitary governmentA unitary state is a state governed as one single unit in which

the central government is supreme and any administrativedivisions (subnational units) exercise only powers that theircentral government chooses to delegate. The great majority ofstates in the world have a unitary system of government. Aunitary state is sometimes one with only a single,centralised, national tier of government. However, unitarystates often also include one or more self-governing regions.The difference between a federation and this kind of unitarystate is that in a unitary state the autonomous status ofself-governing regions exists by the sufferance of the centralgovernment, and may be unilaterally revoked.

Multiculturalism

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Multiculturalism is an official policy in many states,establishing the ideal of peaceful existence among multipleethnic, cultural, and linguistic groups. Many nations havelaws protecting minority rights.

nation state A nation state is a geographical area that can be identified as

deriving its political legitimacy from serving as a sovereignnation. A state is a political and geopolitical entity, whilea nation is a cultural and ethnic one. The term "nation state"implies that the two coincide, but "nation state" formationcan take place at different times in different parts of theworld, and has become the dominant form of world organization.

The concept of a nation state can be compared and contrasted withthat of the multinational state, city state empire,confederation, and other state formations with which it mayoverlap. The key distinction is the identification of a peoplewith a polity in the "nation state."

federalism The governmental or constitutional structure found in a

federation is known as federalism. It can be considered theopposite of another system, the unitary state. Germany withsixteen Länder is an example of a federation, whereasneighboring Austria and its Bundesländer was a unitary statewith administrative divisions that became federated, andneighboring France by contrast has always been unitary.

country A country is a region identified as a distinct entity in

political geography. A country may be an independent sovereignstate or one that is occupied by another state, as a non-sovereign or formerly sovereign political division, or ageographic region associated with sets of previouslyindependent or differently associated peoples with distinctpolitical characteristics. Regardless of the physicalgeography, in the modern internationally accepted legal

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definition as defined by the League of Nations in 1937 andreaffirmed by the United Nations in 1945, a resident of acountry is subject to the independent exercise of legaljurisdiction.

nation A nation refers to a large group of people who share a common

language, culture, ethnicity, descent, or history.[ micronation A micronation, sometimes referred to as a model country or new

country project, is an entity that claims to be an independentnation or state but is not officially recognized by worldgovernments or major international organizations.

Micronations are distinguished from imaginary countries and fromother kinds of social groups (such as eco-villages, campuses,tribes, clans, sects, and residential community associations)by expressing a formal and persistent, even if unrecognized,claim of sovereignty over some physical territory.

Several micronations have issued coins, flags, postage stamps,passports, medals, and other items, which are rarely acceptedoutside of their own community.

In international law, the Montevideo Convention on the Right andDuties of States sets down the criteria for statehood inarticle 1: The state as a person of international law should possess thefollowing qualifications: (a) a permanent population; (b) a defined territory; (c)government; and (d) capacity to enter into relations with the other states.

The first sentence of article 3 of the Montevideo Conventionexplicitly states that "The political existence of the state is independent ofrecognition by the other states."

Under these guidelines, any entity which meets all of thecriteria set forth in article 1 can be regarded as sovereignunder international law, whether or not other states haverecognized it.

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The Sovereign Military Order of Malta, as an independent subjectof international law does not meet all the criteria forrecognition as a State (however it does not claim itself aState either), but is and has been recognized as a sovereignnation for centuries.

Territorial integrity of StatesThe doctrine of territorial integrity does not effectively

prohibit unilateral secession from established states ininternational law, per the relevant section from the text ofthe Final Act of the Conference on Security and Cooperation inEurope, also known as the Helsinki Final Act, Helsinki Accordsor Helsinki Declaration:

The participating States will respect the territorial integrityof each of the participating States.

Accordingly, they will refrain from any action inconsistent withthe purposes and principles of the Charter of the UnitedNations against the territorial integrity, politicalindependence or the unity of any participating State, and inparticular from any such action constituting a threat or useof force.

The participating States will likewise refrain from making eachother's territory the object of military occupation or otherdirect or indirect measures of force in contravention ofinternational law, or the object of acquisition by means ofsuch measures or the threat of them. No such occupation oracquisition will be recognized as legal.

In effect, this states that other states (i.e., third parties),may not encourage secession in a state. This does not make anystatement as regards persons within a state electing to secedeof their own accord.

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STATE FORMATION

travaux prepatoiresThe travaux préparatoires (French: ‘preparatory works’, in the

plural) are the official record of a negotiation. Sometimespublished, the ‘travaux’ are often useful in clarifying theintentions of a treaty or other instrument. This is reflectedin Article 32 of the Vienna Convention on the Law of Treaties (VCLT).537

When interpreting treaties, the VCLT places this form ofinterpretation as secondary or less important than looking tothe ordinary meaning (see Articles 31 and 32). The travauxare often available to the public on the websites created fora specific treaty (such as the Rome Statute) or on the UnitedNations website.

rump state A rump state is the remnant of a once-larger government.Some states labeled as rump states, or that today would be

considered rump states, at one point or another are listedbelow.

tobar doctrineA political principle proscribing the extension of recognition to

any government that accedes to power by other thanconstitutional means. Tobar proposed that the American statessign an agreement allowing for intervention in the internalaffairs of Latin American countries with such a government.

de facto and de jure statesMost sovereign states are states de jure and de facto (i.e. they

exist both in law and in reality). However, sometimes statesexist only as de jure states in that an organisation isrecognised as having sovereignty over and being the legitimate

537 Jonathon Green, Dictionary of Jargon, Routledge, 1987, ISBN 0-7100-9919-3,p. 567.

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government of a territory over which they have no actualcontrol. Many continental European states maintainedgovernments-in-exile during the Second World War whichcontinued to enjoy diplomatic relations with the Allies,notwithstanding that their countries were under Nazioccupation. A present day example is the State of Palestine,which is recognized by multiple states, but doesn't havecontrol over any of its claimed territory in Palestine538 andpossess only extraterritorial areas (i.e. embassies andconsulates). Other states may have sovereignty over aterritory but lack international recognition; these areconsidered by the international community to be only de factostates (they are considered de jure states only according totheir own Law and by states that recognize them). Somalilandis commonly considered to be such a state.539

dependant stateA dependent territory, dependent area or dependency is a

territory that does not possess full political independence orsovereignty as a sovereign state, and remains politicallyoutside of the controlling state's integral area.540

A dependency is commonly distinguished from other subnationalentities in that they are not considered to be part of theintegral territory of the governing State. A subnationalentity typically represents a division of the State proper,while a dependent territory often maintains a great degree ofautonomy from the controlling State. Historically, mostcolonies were considered to be dependencies of theircontrolling State. Most of these have either become

538 Staff writers (20 February 2008). "Palestinians 'may declare state'". BBC News(BritishBroadcasting Corporation). Retrieved 2011-01-22.:"Saeb Erekat, disagreed arguing that thePalestine Liberation Organisation had already declared independence in 1988. "Now we needreal independence, not a declaration. We need real independence by ending the occupation. Weare not Kosovo. We are under Israeli occupation and for independence we need to acquireindependence".

539 Gold, Dore; Institute for Contemporary Affairs (26 August 2005). "Legal Acrobatics: ThePalestinian Claim that Gaza is Still "Occupied" Even After Israel Withdraws". Jerusalem IssueBrief, Vol. 5, No. 3. Jerusalem Center for Public Affairs. Retrieved 2010-07-16.

540 United Nations General Assembly Resolution 1514

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independent, by joining neighbouring independent countries, orassimilated into the conquering state. The dependencies thatremain generally maintain a very high degree of politicalautonomy. Although dependencies retain a degree of autonomy,not all autonomous entities are considered to bedependencies.541

Many political entities have a special position recognized byinternational treaty or agreement resulting in a certain levelof autonomy or differences in immigration rules. These aresometimes542 considered dependencies, but are officiallyconsidered by their controlling states to be integral parts ofthe state.543 Examples are Åland of Finland, Svalbard ofNorway, the Azores and Madeira of Portugal, and Hong Kong andMacau of China.

dependent state, independent state, controlling state orprotecting state

States can be classified into two general categories: dependentand independent. A dependent state does not exercise the fullrange of power over external affairs that an independent statepossesses under International Law. The controlling orprotecting state may also regulate some of the internalaffairs of the dependent state. Formal treaties and theconditions under which the status of dependency has beenrecognized by other states govern the balance of sovereignpowers exercised by the protecting state and the dependentstate. Various terms have been used to describe differenttypes of dependent states, such as condominium, mandate,protectorate, and vassal state. Since 1945 there has beenstrong international pressure to eliminate forms of dependencyassociated with colonialism.

541 United Nations Trusteeship Council542 United Nations General Assembly 15th Session - The Trusteeship System and

Non-Self-Governing Territories (pages:509-510)543 Id

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constituetive theory A sovereign state (or simply state) is classically defined as a

state with a defined territory on which it exercises internaland external sovereignty,544 a permanent population, agovernment, and the capacity to enter into relations withother sovereign states.545 It is also normally understood to bea state which is neither dependent on nor subject to any otherpower or state.546 The existence or disappearance of a state isa question of fact.547 While according to the declaratorytheory of state recognition a sovereign state can existwithout being recognised by other sovereign states,unrecognised states will often find it hard to exercise fulltreaty-making powers and engage in diplomatic relations withother sovereign states.

The word ‘country’ is often colloquially used to refer tosovereign states, although it means, originally, only ageographic region, and subsequently its meaning becameextended to the sovereign polity which controls the geographicregion. Up until the 19th Century, the radicalised concept ofa ‘standard of civilisation’ was routinely deployed todetermine that certain peoples in the world were

544 Bateman, C.G. (15 February 2011). Nicaea and Sovereignty: Constantine's Council of as anImportant Crossroad in the Development of European State Sovereignty. University of BritishColumbia. pp. 54–91. SSRN 1759006.

545 Shaw, Malcolm Nathan (2003). International law. Cambridge University Press. p. 178. "Article1 of the Montevideo Convention on Rights and Duties of States, 1933 lays down the most widelyaccepted formulation of the criteria of statehood in international law. It note that thestate as an international person should possess the following qualifications: '(a) apermanent population; (b) a defined territory; (c) government; and (d) capacity to enter intorelations with other states'"; see also Jasentuliyana, Nandasiri, ed. (1995). Perspectives oninternational law. Kluwer Law International. p. 20. "So far as States are concerned, thetraditional definitions provided for in the Montevideo Convention remain generally accepted."

546 Wheaton, Henry (1836). Elements of international law: with a sketch of the history of thescience. Carey, Lea & Blanchard. p. 51. "A sovereign state is generally defined to be anynation or people, whatever may be the form of its internal constitution, which governs itselfindependently of foreign powers."; see also "sovereign", The American Heritage Dictionary ofthe English Language (Houghton Mifflin Company), 2004, retrieved 21 February 2010, "adj. 1.Self-governing; independent: a sovereign state."; see also "sovereign", The New OxfordAmerican Dictionary (Oxford: Oxford University Press), ISBN 0-19-517077-6, "adjective ...[ attrib. ] (of a nation or state) fully independent and determining its own affairs."

547 Lalonde, Suzanne (2002). "Notes to pages". Determining boundaries in a conflicted world: therole of uti possidetis. McGill-Queen's Press - MQUP. p. 181. ISBN 978-0-7735-2424-8.

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‘uncivilised’, and lacking organised societies. That positionwas reflected and constituted in the notion that their‘sovereignty’ was either completely lacking, or at least of aninferior character when compared to that of ‘civilised’people.’548

state recognitionState recognition signifies the decision of a sovereign state to

treat another entity as also being a sovereign state.549

Recognition can be either express or implied and is usuallyretroactive in its effects. It does not necessarily signify adesire to establish or maintain diplomatic relations.

There is no definition that is binding on all the members of thecommunity of nations on the criteria for statehood. In actualpractice, the criteria are mainly political, not legal.550 L.C.Green cited the recognition of the unborn Polish and Czechstates in World War I and explained that ‘since recognition ofstatehood is a matter of discretion, it is open to any existing State to accept as astate any entity it wishes, regardless of the existence of territory or of an establishedgovernment.’551

In international law, however, there are several theories of whena state should be recognized as sovereign.552

constitutive theoryThe constitutive theory of statehood defines a state as a person

of international law if, and only if, it is recognized assovereign by other states. This theory of recognition wasdeveloped in the 19th Century. Under it, a state was sovereign

548 Ralph Wilde, 'From trusteeship to self-determination and back again: the role of the HagueRegulations in the evolution of international trusteeship, and the framework of rights andduties of occupying powers,' Fall, 2009, 31 Loy. L.A. Int'l & Comp. L. Rev. 85, page 94,

549 Crawford, James. The Creation of States in International Law. Oxford University Press, 2005.ISBN 0-19-825402-4, pp. 15–24.

550 See B. Broms, "IV Recognition of States", pp 47-48 in International law: achievements andprospects, UNESCO Series, Mohammed Bedjaoui(ed), Martinus Nijhoff Publishers, 1991, ISBN 92-3-102716-6

551 Thomas D. Grant, The recognition of states: law and practice in debate and evolution(Westport, Connecticut: Praeger, 1999), chapter 1.

552 Hillier, Tim (1998). Sourcebook on Public International Law. Routledge. pp. 201–2. ISBN 1-85941-050-2.

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if another sovereign state recognized it as such. Because ofthis, new states could not immediately become part of theinternational community or be bound by international law, andrecognized nations did not have to respect international lawin their dealings with them.553 In 1815 at the Congress ofVienna the Final Act only recognised 39 sovereign states inthe European diplomatic system, and as a result it was firmlyestablished that in future new states would have to berecognized by other states, and that meant in practicerecognition by one or more of the great powers.554

One of the major criticisms of this law is the confusion causedwhen some jurisdictions recognize a new entity, but otherstates do not. Hersch Lauterpacht, one of the theory's mainproponents, suggested that it is a state's duty to grantrecognition as a possible solution. However, a state may useany criteria when judging if they should give recognition andthey have no obligation to use such criteria. Manyjurisdictionsmay only recognize another state if it is totheir advantage.555

In 1912, L. F. L. Oppenheim had the following to say onconstitutive theory:

“...International Law does not say that a State is not in existence as long as it is notrecognised, but it takes no notice of it before its recognition. Through recognitiononly and exclusively a State becomes an International Person and a subject ofInternational Law.”556

declarative theoryBy contrast, the ‘declarative’ theory defines a state as a person

in international law if it meets the following criteria: 1) adefined territory; 2) a permanent population; 3) a governmentand 4) a capacity to enter into relations with other states.

553 Shaw, Malcolm Nathan (2003). International law. Cambridge University Press. p. 369.554 Kalevi Jaakko Holsti Taming the Sovereigns p. 128.555 Hillier, Tim (1998). Sourcebook on Public International Law. Routledge. pp. 201–2. ISBN 1-

85941-050-2.556 Lassa Oppenheim, Ronald Roxburgh (2005). International Law: A Treatise. The Lawbook

Exchange, Ltd.. pp. 135. ISBN 1-58477-609-9, 9781584776093.

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According to declarative theory, an entity's statehood isindependent of its recognition by other states. Thedeclarative model was most famously expressed in the 1933Montevideo Convention. Article 3 of the Convention declaresthat statehood is independent of recognition by other states.In contrast, recognition is considered a requirement forstatehood by the constitutive theory of statehood.

A similar opinion about ‘the conditions on which an entity constitutes a state’is expressed by the European Economic Community Opinions ofthe Badinter Arbitration Committee, which found that a statewas defined by having a territory, a population, and apolitical authority.

state practiceState practice relating the recognition states typically falls

somewhere between the declaratory and constitutiveapproaches.557 International law does not require a state torecognise other states.558 Recognition is often withheld when anew state is seen as illegitimate or has come about in breachof international law. Almost universal non-recognition by theinternational community of Rhodesia and Northern Cyprus aregood examples of this. In the former case, recognition waswidely withheld when the white minority seized power andattempted to form a state along the lines of Apartheid SouthAfrica, a move that the United Nations Security Councildescribed as the creation of an ‘illegal racist minority régime’.559 Inthe latter case, recognition was widely withheld from a statecreated in Northern Cyprus on land illegally invaded by Turkeyin 1974.560

sovereign state Asovereign state is a nonphysical juridical entity of the

international legal system that is represented by one

557 Shaw, Malcolm Nathan (2003). International law. Cambridge University Press. p. 369.558 Opinion No. 10. of the Arbitration Commission of the Conference on Yugoslavia.559 United Nations Security Council Resolution 216560 United Nations Security Council Resolution 541

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centralized government that has supreme independent authorityover a geographic area. International law defines sovereignstates as having a permanent population, defined territory,one government, and the capacity to enter into relations withother sovereign states. It is also normally understood to bea state which is neither dependent on nor subject to any otherpower or state. The existence or disappearance of a state isa question of fact. While according to the declarative theoryof state recognition a sovereign state can exist without beingrecognised by other sovereign states, unrecognised states willoften find it hard to exercise full treaty-making powers andengage in diplomatic relations with other sovereign states.

Westphalian sovereigntyWestphalian sovereignty is the concept of nation-state

sovereignty based on territoriality and the absence of a rolefor external agents in domestic structures. It is aninternational system of states, multinational corporations,and organizations that began with the Peace of Westphalia in1648.

Sovereignty is a term that is frequently misused.561 Up until the19th century, the radicalised concept of a "standard ofcivilisation" was routinely deployed to determine that certainpeoples in the world were "uncivilised", and lacking organisedsocieties. That position was reflected and constituted in thenotion that their "sovereignty" was either completely lacking,or at least of an inferior character when compared to that of"civilised" people."562 Lassa Oppenheim said "There existsperhaps no conception the meaning of which is morecontroversial than that of sovereignty. It is an indisputablefact that this conception, from the moment when it wasintroduced into political science until the present day, has

561 Krasner, Stephen D. (1999). Sovereignty: Organized Hypocrisy. Princeton University Press.ISBN 0-691-00711-X.

562 Wilde, Ralph (2009). "From Trusteeship to Self-Determination and Back Again: The Role of theHague Regulations in the Evolution of International Trusteeship, and the Framework of Rightsand Duties of Occupying Powers". Loy. L.A. Int'l & Comp. L. Rev. 31: 85–142 [p. 9].

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never had a meaning which was universally agreed upon."563 Inthe opinion of H. V. Evatt of the High Court of Australia"sovereignty is neither a question of fact, nor a question oflaw, but a question that does not arise at all." 564

Sovereignty has taken on a different meaning with the developmentof the principle of self-determination and the prohibitionagainst the threat or use of force as jus cogens norms ofmodern international law. The United Nations Charter, theDraft Declaration on Rights and Duties of States, and thecharters of regional international organisations express theview that all states are juridically equal and enjoy the samerights and duties based upon the mere fact of their existenceas persons under international law.565 The right of nations todetermine their own political status and exercise permanentsovereignty within the limits of their territorialjurisdictions is widely recognised.566

In political science, sovereignty is usually defined as the mostessential attribute of the state in the form of its completeself-sufficiency in the frames of a certain territory, that isits supremacy in the domestic policy and independence in theforeign one.567

In casual usage, the terms "country", "nation", and "state" areoften used as if they were synonymous; but in a more strictusage they can be distinguished:[]

Nation denotes a people who are believed to or deemed to sharecommon customs, religion, language, origins, ancestry or

563 Lassa Oppenheim, International Law 66 (Sir Arnold D. McNair ed., 4th ed. 1928)564 Akweenda, S. (1997). "Sovereignty in cases of Mandated Territories". International law and

the protection of Namibia's territorial integrity. Martinus Nijhoff Publishers. p. 40. ISBN90-411-0412-7.

565 "Chapter IV Fundamental Rights and Duties of States". Charter of the Organization ofAmerican States. Secretariat of The Organization of American States. Retrieved 21 November2010. See also "Draft Declaration on Rights and Duties of States". UN Treaty Organization.1949. Retrieved 21 November 2010.

566 Schwebel, Stephen M., The Story of the U.N.'s Declaration on Permanent Sovereignty overNatural Resources, 49 A.B.A. J. 463 (1963)

567 Grinin L. E. Globalization and Sovereignty: Why do States Abandon their SovereignPrerogatives? Age of Globalization. Number 1 / 2008

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history. However, the adjectives national and international arefrequently used to refer to matters pertaining to what arestrictly sovereign states, as in national capital, international law.

State refers to the set of governing and supportiveinstitutions that have sovereignty over a definite territoryand population. Sovereign states are legal persons.

State practiceState practice relating the recognition states typically falls

somewhere between the declaratory and constitutiveapproaches.568 International law does not require a state torecognise other states.569

Recognition is often withheld when a new state is seen asillegitimate or has come about in breach of international law.Almost universal non-recognition by the internationalcommunity of Rhodesia and Northern Cyprus are good examples ofthis. In the former case, recognition was widely withheld whenthe white minority seized power and attempted to form a statealong the lines of Apartheid South Africa, a move that theUnited Nations Security Council described as the creation ofan "illegal racist minority régime".570 In the latter case,recognition was widely withheld from a state created inNorthern Cyprus on land illegally invaded by Turkey in 1974.571

De facto states and de jure statesMost sovereign states are states de jure and de facto (i.e. they

exist both in law and in reality). However, sometimes statesexist only as de jure states in that an organisation isrecognised as having sovereignty over and being the legitimategovernment of a territory over which they have no actualcontrol. Many continental European states maintainedgovernments-in-exile during the Second World War which

568 Shaw, Malcolm Nathan (2003). International law (5th ed.). Cambridge University Press. p.369. ISBN 0-521-53183-7.

569 Opinion No. 10. of the Arbitration Commission of the Conference on Yugoslavia.570 s:United Nations Security Council Resolution 216571 s:United Nations Security Council Resolution 541

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continued to enjoy diplomatic relations with the Allies,notwithstanding that their countries were under Nazioccupation. The State of Palestine, which is recognized bymost states doesn't have control over any of its claimedterritory in Palestine and possess only extraterritorial areas(i.e. embassies and consulates). Other states may havesovereignty over a territory but lack internationalrecognition; these are considered by the internationalcommunity to be only de facto states (they are considered dejure states only according to their own Law and by states thatrecognize them). Somalilandis commonly considered to be such astate.572 For a list of entities that wish to be universallyrecognized as sovereign states, but do not have completeworldwide diplomatic recognition.

Relationship Between State and GovernmentAlthough the terms "state" and "government" are often used

interchangeably,573 international law is predicated on adistinction between nonphysical states and their governments,and in fact, the concept of "government-in-exile" ispredicated upon the distinction between states and theirgovernments.574 States are nonphysical juridical entities, andnot organizations of any kind,575 though, ordinarily, only thegovernment of a state is allowed to obligate or bind it, forexample by treaty.576

State ExtinctionGenerally speaking, states are durable entities, though it is

possible for them to be become extinguished, either throughvoluntary means or by military conquest. Because states are

572 Arieff, Alexis (2008). "De facto Statehood? The Strange Case of Somaliland". Yale Journal ofInternational Affairs 3: 60–79. Retrieved 2010-01-04.

573 Id 574 Crawford, J. (2006). The Creation of States in International Law (2nd ed.). Oxford:

Clarendon Press. ISBN 0-19-826002-4.575 Robinson, Edward Heath (2010). "An Ontological Analysis of States: Organizations vs. Legal

Persons". Applied Ontology 5: 109–125.576 Crawford, J. (2006). The Creation of States in International Law (2nd ed.). Oxford:

Clarendon Press. ISBN 0-19-826002-4.

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nonphysical juridical entities, their extinction cannot be dueto only physical force alone.577 Instead the physical actionsof the military must be associated with the correct social orjudiciary actions in order to abolish a state.

government in exile A government in exile is a political group which claims to be a

country's legitimate government, but is unable to exerciselegal power and instead resides in a foreign country.Governments in exile usually plan to one day return to theirnative country and regain formal power. A government in exilediffers from a rump state in the sense that a rump statecontrols at least part of its former territory. For example,during World War I, nearly all of Belgium was occupied byGermany, but Belgium and its allies held on to a small slicein the country's west. A government in exile, conversely, haslost all its territory.

Governments in exile frequently occur during wartime occupation,or in the aftermath of a civil war, revolution, or militarycoup. For example, during German expansion in World War II,some European governments sought refuge in the United Kingdom,rather than face destruction at the hands of Nazi Germany. Agovernment in exile may also form from widespread belief inthe illegitimacy of a ruling government. For instance, theNational Coalition for Syrian Revolutionary and OppositionForces was formed as a result of the Syrian civil war, whichsought to end the rule of the ruling Ba'ath Party.

The effectiveness of a government in exile depends primarily onthe amount of support it can receive, either from foreigngovernments or from the population of its own country. Somegovernments in exile develop into a formidable force, posing aserious challenge to the incumbent regime of the country,while others are maintained chiefly as a symbolic gesture.

577 Robinson, Edward Heath (2011). "The Involuntary Extinction of States: An Examination of theDestruction of States though the Application of Military Force by Foreign Powers since theSecond World War". The Journal of Military Geography 1: 17–29.

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The phenomenon of a government in exile predates formal use ofthe term. In periods of monarchical government, exiledmonarchs or dynasties sometimes set up exile courts—as theHouse of Stuart did when driven from their throne by OliverCromwell and at the Glorious Revolution, or the House ofBourbon did during the French Revolution and the rule ofNapoleon. With the spread of constitutional monarchy,monarchical governments in exile started to include a primeminister, such as the Dutch government during World War IIheaded by Pieter Sjoerds Gerbrandy.

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RIGHTS & DUTIES OF STATES IN INTERNATIONAL LAW

common external tarrifWhen a group of countries form a customs union they must

introduce a common external tariff. The same customs duties,import quotas, preferences or other non-tariff barriers totrade apply to all goods entering the area, regardless ofwhich country within the area they are entering. It isdesigned to end re-exportation; but it may also inhibitimports from countries outside the customs union and therebydiminish consumer choice and support protectionism ofindustries based within the customs union. Important examplesof common external tariff are that of the Mercosur countries(Brazil, Argentina, Venezuela, Paraguay and Uruguay) as wellas the Common Customs Tariff of the Customs Union of Belarus,Kazakhstan and Russia.

proportionality (community law)The principle of proportionality is a political maxim which

states that no layer of government should take any action thatexceeds that which is necessary to achieve the objective ofgovernment (Regardless of intent of objective).

It is a fundamental principle of European Union law. According tothis principle, the EU may only act to exactly the extent thatis needed to achieve its objectives, and no further. Thisprinciple has underpinned the European Communities since theirinception in 1957. In the presently applicable primary law,the principle of proportionality is clearly formulated in thethird paragraph of Article 5 of the Treaty establishing theEuropean Community as follows:

Any action by the Community shall not go beyond what is necessaryto achieve the objectives of this Treaty.

This principle is also explicitly specified in the new Treaty ofLisbon.

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Proportionality is a principle in law which covers two distinct(although related) concepts. Within municipal (domestic) lawit is used to convey the idea that the punishment of anoffender should fit the crime. Under internationalhumanitarian law governing the legal use of force in an armedconflict, proportionality and distinction are importantfactors in assessing military necessity.578

complementarity(community law)Enshrined in article 1 of the ICC statute, and various

regional/union laws; this principle gives both national andinternational courts jurisdiction over international crimessuch as crimes against humanity, war crimes, genocide,apartheid, torture and other international humanitarianviolations. It applies to criminal, as opposed to civilmatters.

proportionality test (community law)The proportionality test was first developed in the High State

Administrative Courts (Oberlandesgericht) in Germany in thelate 19th Century, to review actions by the police.579

In European Union law there generally acknowledged to be fourstages to a proportionality test, namely,580

(i) there must be a legitimate aim for a measure(ii) the measure must be suitable to achieve the aim (potentially with a requirement of

evidence to show it will have that effect)(iii) the measure must be necessary to achieve the aim, that there cannot be any less

onerous way of doing it(iv) the measure must be reasonable, considering the competing interests of different

groups at hand

578 Eric Engle, The History of the General Principle of Proportionality579 Lothar Hirschberg, Der Grundsatz der Verhältnismaßigkeit (Schwarz 1981)580 P Craig and G de Burca, EU Law (5th edn OUP 2011) 526

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It is, however, often seen that the third and fourth criterionare often merged into one by the European Court of Justice,depending on the margin of discretion that the Court sees asbeing afforded to the member state. Examples are found in R(Seymour-Smith) v Secretary of State for Employment581, where the ECJpoints out that a member state has some discretion in thepolicies it pursues, surrounding unfair dismissal, in reducingunemployment.

odious debt In international law, odious debt is a legal theory that holds

that the national debt incurred by a regime for purposes thatdo not serve the best interests of the nation, should not beenforceable. Such debts are, thus, considered by this doctrineto be personal debts of the regime that incurred them and notdebts of the state. In some respects, the concept is analogousto the invalidity of contracts signed under coercion. Thedoctrine was formalized in a 1927 treatise by Alexander NahumSack,582 a Russian émigré legal theorist, based upon 19th-Century precedents including Mexico's repudiation of debtsincurred by Emperor Maximilian's regime, and the denial by theUnited States of Cuban liability for debts incurred by theSpanish colonial regime.

According to Sack:When a despotic regime contracts a debt, not for the needs or in the interests of the

state, but rather to strengthen itself, to suppress a popular insurrection, etc, thisdebt is odious for the people of the entire state. This debt does not bind the nation; itis a debt of the regime, a personal debt contracted by the ruler, and consequently itfalls with the demise of the regime. The reason why these odious debts cannotattach to the territory of the state is that they do not fulfil one of the conditionsdetermining the lawfulness of State debts, namely that State debts must be incurred,and the proceeds used, for the needs and in the interests of the State. Odious debts,contracted and utilised for purposes which, to the lenders' knowledge, are contrary

581 [0] UKHL 12 and (1999) C-167/97582 Graeme Smith A new euro crisis strategy: deny the debt The Globe and Mail

20 November 201

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to the needs and the interests of the nation, are not binding on the nation – when itsucceeds in overthrowing the government that contracted them – unless the debt iswithin the limits of real advantages that these debts might have afforded. Thelenders have committed a hostile act against the people, they cannot expect anation which has freed itself of a despotic regime to assume these odious debts,which are the personal debts of the ruler.583

In a Policy Analysis for the Cato Institute, Patricia Adams suggested thatthe debts incurred by the Iraqi state during the rule ofSaddam Hussein are odious, as the money borrowed was spent onweapons, instruments of repression and palaces. 584

A recent article by economists Seema Jayachandran and MichaelKremer has renewed interest in this topic. They propose thatthe idea can be used to create a new type of economic sanctionto block further borrowing by dictators.585 Jayachandranproposed her new recommendations November 2010 at the 10thanniversary of the Jubilee movement held at the Center forGlobal Development in Washington, D.C.586

lex posterior derogat legi prioriRelied on by a court to refuse extradition on the ground that the

basic rights of the fugitive will be violated by the requestingstate if he is extradited. Primacy is in effect accorded to ahuman rights norm over the extradition treaty.587

mutual recognitionThe doctrine of judicial stability or non-interference in the

regular orders or judgments of a co-equal court, as an583 Jubileeiraq.org584 Adams, Patricia (1991). Odious Debts: Loose Lending, Corruption, and the

Third World's Environmental Legacy. Energy Probe Research. ISBN 0-919849-14-8.

585 Odious Debt by Seema Jayachandran and Michael Kremer586 Cato Institute Policy Analysis no. 526 ‘Iraq's Odious Debts’ by Patricia

Adams 587 Consider refusal to extradite a criminal to US State of Texas, because the

state had death penalty, which is considered an infringement on the right to life by European states

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accepted axiom in adjective law, serves as an insurmountablebarrier to the competencia of the Makati court to entertain thehabeas corpus case on account of the previous assumption ofjurisdiction by the Cavite court, and the designation ofpetitioners as guardians ad litem of the ward. Indeed, the policyof peaceful co-existence among courts of the same judicialplane, so to speak, was aptly described in Republic vs. Reyes588.

non-interferenceThe doctrine of non-interference has been regarded as an

elementary principle of higher importance in theadministration of justice that the judgment of a court ofcompetent jurisdiction may not be opened, modified, or vacatedby any court of concurrent jurisdiction.

universal jurisdictionUniversal jurisdiction or universality principle is a principle

in public international law (as opposed to privateinternational law) whereby states claim criminal jurisdictionover persons whose alleged crimes were committed outside theboundaries of the prosecuting state, regardless ofnationality, country of residence, or any other relation withthe prosecuting country. The state backs its claim on thegrounds that the crime committed is considered a crime againstall, which any state is authorized to punish, as it is tooserious to tolerate jurisdictional arbitrage.

The concept of universal jurisdiction is therefore closely linkedto the idea that some international norms are erga omnes, orowed to the entire world community, as well as the concept ofjus cogens – that certain international law obligations arebinding on all states and cannot be modified by treaty.589

588 155 SCRA 313 [8]589 See Lyal S. Sunga Individual Responsibility in International Law for

Serious Human Rights Violations, Nijhoff (1992) 252 p. ISBN 978 07 92 314530

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According to critics, the principle justifies a unilateral act ofwanton disregard of the sovereignty of a nation or the freedomof an individual concomitant to the pursuit of a vendetta orother ulterior motives, with the obvious assumption that theperson or state thus disenfranchised is not in a position tobring retaliation to the state applying this principle.

extraterritorial jurisdictionInternational jurisdiction differs from ‘territorial

jurisdiction‘, where justice is exercised by a state inrelation to crimes committed on its territory (territorialjurisdiction). States can also exercise jurisdiction on crimescommitted by their nationals abroad (extraterritorialjurisdiction), even if the act the national committed was notillegal under the law of the territory in which an act hasbeen committed590. States can also in certain circumstancesexercise jurisdiction over acts committed by foreign nationalson foreign territory. This form of jurisdiction tends to bemuch more controversial.

lotus principleThat restriction on States cannot be presumed but must be found

in conventional law specifically accepted by them or incustomary law generally accepted by the community of nations.

doctrines of foreign sovereign immunity Sovereign immunity, or crown immunity, is a legal doctrine by

which the sovereign or state cannot commit a legal wrong andis immune from civil suit or criminal prosecution. Inconstitutional monarchies the sovereign is the historicalorigin of the authority which creates the courts. Thus thecourts had no power to compel the sovereign to be bound by the

590 Hans Köchler, ‘The judgment of the International Court of Justice (2002) and its implications for the exercise of universal jurisdiction by nationalcourts: the case of Belgium,’ in: Global Justice or Global Revenge? International Criminal Justice at the Crossroads. Vienna and New York: Springer, 2003, pp. 85–101.ISBN 3-211-00795-4

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courts, as they were created by the sovereign for theprotection of his or her subjects. Under international law,and subject to some conditions, countries are immune fromlegal proceedings in another state. This stems from customaryinternational law.591

sovereign equalityThis principle means that each state is obliged to respect the

sovereignty of other participants in the system, that is theirright to exercise within their own territory legislative,executive, administrative and judicial powers without anyinterference from other states, as well as independentlyconduct its foreign policy. Sovereign equality, which followsfrom the definition of par in parem non habet potestatem (equal overequal power has not), now is the basis of interstaterelations, as reflected in Clause 1, Article 2 of the UNCharter: ‘The organization was founded on the principle of sovereign equality ofall its members. ‘ First of all, this means that all norms ofinternational law apply to all states equally, regardless ofdifferent political, economic and other features. According tothe Declaration in 1970 the concept of sovereign equalityincludes the following elements: States are juridically equal; Each Stateenjoys the rights inherent in full sovereignty; State has the duty to respect thepersonality of other States; The territorial integrity and political independence of theState are inviolable; Each State has the right freely to choose and develop itspolitical, social, economic and cultural systems; Each state is obliged to fully andfaithfully comply with its international obligations and to live in peace with othernations.

Despite the fact that the formal legal status of all of the same,still remains the de facto inequality, which resulted in thegreat state have more mechanisms to influence the process ofinternational norm-setting.

591 Akehurst's modern introduction to international law, by Peter Malanczuk, Michael Barton Akehurst, Routledge 7 ed., 1997, ISBN 041511120X, Page 118

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necessity (international law)Under International law, a customary international obligation or

an obligation granted under a Bilateral Investment Treaty maybe suspended under the Doctrine of Necessity. It is ‘an exceptionfrom illegality and in certain cases even as an exception from responsibility.’592 Inorder to invoke the Doctrine of Necessity:

(1) Invoking State must not have contributed to the state of necessity, (2) Actions taken were only way to safeguard an essential interest from grave and

impending danger.593

full powersFull Powers is a term in international law and is the authority

of a person to sign a treaty or convention on behalf of asovereign state. Persons other than the head of state, head ofgovernment or foreign minister of the state must produce FullPowers in order to sign a treaty binding their government.Such a person is called a plenipotentiary.

uti possidetis jurisUti possidetis juris or uti possidetis iuris (Latin for "as you possess under

law") is a principle of international law that states thatnewly formed sovereign states should have the same bordersthat their preceding dependent area had before theirindependence. Uti possidetis juris is a modified form of uti possidetis;created for the purpose of avoiding terra nullius, the originalversion of uti possidetis began as a Roman law governing therightful possession of property. During the medieval period itevolved into a law governing international relations and hasrecently been modified for situations of newly independentstates. Uti possidetis juris has been applied to in modern historysuch regions as South America, Africa, Yugoslavia, the SovietUnion, and numerous other regions of where centralizedgovernments were broken up, or where imperial rulers were

592 See Continental Casualty Company v Argentine Republic, ICSID Case No ARB/03/09.

593 Id. at page 72, paragraph 165.

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overthrown. It is often applied to prevent foreignintervention by eliminating any contested terra nullius, or noman's land, that foreign powers could claim. 594

legal reciprocity or comity In international relations and treaties, the principle of

reciprocity states that favours, benefits, or penalties thatare granted by one state to the citizens or legal entities ofanother, should be returned in kind. For example, reciprocityhas been used in the reduction of tariffs, the grant ofcopyrights to foreign authors, the mutual recognition andenforcement of judgments, and the relaxation of travelrestrictions and visa requirements. The principle ofreciprocity also governs agreements on extradition.

equality of states Principle of equality of states informs the operation of the

organisation vis-à-vis of the member states. This principleimplies that resolutions of the organisation must be based onunanimity and also that member states are only bound by thosedecisions that have been signed or ratified by them. Becauseof this therefore in most cases member states will modifythese principles based on the purpose and functions which theyintend their organisation to have. Application of theprinciple of equality of states therefore means that allmember states must have equal votes in the operation of theorganisation.

docrine of attribution (international law)Before a state can be held responsible for any action, it is

necessary to prove a causal connection between the injury andan official act or omission attributable to the state allegedto be in breach of its obligations.

594 Shaw, Malcolm N. (1997). "Peoples, Territorialism and Boundaries." European Journal of International Law 8 (3).

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principles of transnational state responsibilityThe laws of state responsibility are the principles governing

when and how a state is held responsible for a breach of aninternational obligation. The Draft Articles on theResponsibility of States for Internationally Wrongful Acts(‘Draft Articles’) by the International Law Commission (ILC)in August 2001.595 They establish (1) the conditions for anact to qualify as internationally wrongful, (2) thecircumstances under which actions of officials, privateindividuals and other entities may be attributed to the state,(3) general defences to liability and (4) the consequences ofliability.

State responsibility is an age-old principle of international lawthat was developed to protect the rights of aliens.596 Itarises when a state commits an international wrong againstanother state.597 This rule has now been elevated to the statusof a general principle of international law.598 In Chorzów Factory(Germany v Poland),599 the Permanent Court of International Justicedefined it not only as a principle of international law butalso as ‘a greater conception of law’ involving an obligationto make reparation for any breach of anengagement.600 According to the Court, ‘reparation is thereforethe indispensable complement of a failure to apply aconvention and there is no necessity for this to be stated inthe convention itself’.601 The principle of stateresponsibility emanates from the nature of the internationallegal system, which relies on states as a means of formulating

595 Draft Articles on the Responsibility of States for Internationally Wrongful Acts, Report of the ILC on the Work of its Fifty-third Session, UNGAOR, 56th Sess, Supp No 10, p 43, UN Doc A/56/10 (2001).

596 Ian Brownlie, System of the Law of Nations: State Responsibility: Part 1 (1983) 9.597 Ian Brownlie, Principles of Public International Law (5th ed, 1998) 435–6.598 Ibid 436.599 PCIJ (ser A) No 13.600 Ibid 29. See also Corfu Channel (United Kingdom v Albania) (Merits) ICJ Rep 4, 23.601 See Chorzów Factory (Germany v Poland) (Claim for Indemnity) PCIJ (ser A) No 8, 21.

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and implementing its rules, and arises out of the twindoctrines of state sovereignty and equality of states.602 InThe Chorzow Factory Case 9 where the courts stated that:

‘…any breach of an engagement involves an obligation to make reparation.’ 603 Further, in British Claims in the Spanish Zone of Morocco (Spain v United

Kingdom) 604 the court highlighted the significance of thenotion of state responsibility: ‘Responsibility is the necessary corollaryof a right. All rights of an international character involve international responsibility.Responsibility results in the duty to make reparation if the obligation in question isnot met’.

principle of differentiated responsibilityThe principle of Common but Differentiated Responsibility (CBDR)

is one of the cornerstones of sustainable development. It hasemerged as a principle of International Environmental Law andhas been explicitly formulated in the context of the 1992 RioEarth Summit. It finds its origins in equity considerationsand equity principles in international law. It informs inparticular the United Nations Framework Convention on ClimateChange (UNFCCC) and the Kyoto Protocol.

The PrinciplePrinciple 7 of the Rio Declaration provides the first formulation

of the CBDR, and it states:"In view of the different contributions to global environmental degradation, States have

common but differentiated responsibilities. The developed countries acknowledgethe responsibility that they bear in the international pursuit of sustainabledevelopment in view of the pressures their societies place on the global environmentand of the technologies and financial resources they command."

602 Malcom Shaw, International Law (5th ed, 2003) 541.603 P.C.I.J. Rep., Ser.A, No. 17 (1928) at 29; See also Draft Article 31.604 (1923) 2 RIAA 615, 641

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The CBDR has two matrices. The first is the commonresponsibility, which arises from the concept of commonheritage and common concern of humankind, and reflects theduty of States of equally sharing the burden of environmentalprotection for common resources; the second is thedifferentiated responsibility, which addresses substantiveequality: unequal material, social and economic situationsacross States; different historical contributions to globalenvironmental problems; and financial, technological andstructural capacity to tackle those global problems. In thissense the principle establishes a conceptual framework for anequitable allocation of the costs of global environmentalprotection.

Particularly important is the relationship that the CBDRestablishes between the past economic exploitation of globalcommons and the responsibility to carry out actions thatremedy or mitigate the consequences of such exploitation. Itanchors responsibility on past harm done, or culpability.Prior to Rio differentiated responsibilities were based ondifferent capabilities and needs were often recognized inInternational Agreements through differential treatmentprovisions. The novelty of the CBDR is the emergence of thehistorical responsibility dimension. This aspect and theinequality of economic, social and institutional developmentconditions generate then different priorities and agendasacross countries, which must be reconciled in theinternational forum where nations meet to tackle commonenvironmental, economic and social issues. Another consequenceof the principle is, for some scholars, that it entails a dutyto participate in international efforts to address globalenvironmental problems.

reparationThe breach of an international obligation entails two types of

legal consequences.

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1) Firstly, it creates new obligations for the breaching state, principally, duties ofcessation and non-repetition (Article 30), and a duty to make full reparation (Article31).

2) Second, the articles create new rights for injured states, principally, the right toinvoke responsibility (Articles 42 and 48) and a limited right to takecountermeasures (Articles 49-53). These rights, however, are heavily state-centredand do not deal with how state responsibility is to be implemented if the holder ofthe right is an individual or an organisation. The principal element of progressivedevelopment in this area is Article 48, which provides that certain violations ofinternational obligations can affect the international community as a whole suchthat state responsibility can be invoked by states on behalf of the larger community.

This provision picks up on the ICJ's celebrated suggestion inBarcelona Traction that some obligations are owed erga omnes,toward the international community as a whole.605 Article 33(1)characterises these secondary obligations as being owed toother states or to the international community as a whole.

If illegal actions are continuing, the state has a duty tocease.606 The state also has duties to make reparation, whichcould involve restitution, compensation, or satisfaction.Remedies will be dependent on the particular forum, such asthe United Nations, International Court of Justice, WorldTrade Organisation, International Tribunal for the Law of theSea, International Criminal Court, and on the purpose ofreparation.607

There is solid grounding in international law for the concept ofstate responsibility based on the principle that one state hasa duty not to cause harm in or to the territory of another

605 Barcelona Traction, Light & Power Co. (Belgium v. Spain), New Application, 1970 ICJ Reports 4, 32.

606 Note 1, Art 30.607 Hardman Reis, T., Compensation for Environmental Damages under

International Law, Kluwer Law International, The Hague, 2011, ISBN 978-90-411-3437-0

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state.608 In the Trail Smelter609 case, Canada was found to be inviolation of international law when emissions from anindustrial plant located in British Columbia were causingenvironmental damage in the United States. The claims tribunalheld that under the principles of international law . . . noState has the right to use or permit the use of its territoryin such a manner as to cause injury by fumes in or to theterritory of another or the properties or persons therein,when the case is of serious consequence and the injury isestablished by clear and convincing evidence.610 Principle 22of the 1972 Stockholm Declaration sets forth the current‘standard’ governing liability for transnational environmentaldamage: ‘States shall co-operate to develop further the international law regardingliability and compensation for the victims of pollution and other environmentaldamage caused by activities within the jurisdiction or control of such States to areasbeyond their jurisdiction.’611

thalweg ruleThe rule for determining the boundary line between two states

that are separated by a navigable river containing a newlyformed island. According to this rule, the boundary line moveswith the centre of the navigable channel, i.e. it isdelineated as being the centre of the course with thestrongest current, so that the newly formed island must lie onone side of it or the other. On non-navigable rivers, however,the middle line of the river will mark the boundary betweenthe two states between which it flows. Thus, a newly formed

608 See, e.g., Corfu Channel, (U.K. v. Alb.), 1949 I.C.J. Pleadings, (1 Corfu Channel) 4, 22 (Sept. 30, 1949).

609 Trail Smelter Case, (U.S. v. Can.), 3 R.I.A.A. 1905 (1941).610 Id. at 1965.611 Conference on the Human Environment, at 7, U.N. Doc. A/CONF.48/14

(1972), reprinted in 11 I.L.M. 1416, 1420 (1972). The recent Rio Declaration uses nearly the same language. Principle 13 encourages states to ‘develop further international law regarding liability and compensation . . . .’ Conference on Environment and Development, at 4, U.N. Doc. A/CONF.151/5 (1992), reprinted in 31 I.L.M. 874, 878 (1992).

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island might well fall partly on one side of the boundary lineand partly on the other. See also accretion; avulsion.

formal reciprocityA form of international agreement wherein the signatories agree

to give each other's citizens and corporations legal treatmentno less favourable to that given to their own citizens andcorporations.

démarcheA word coined by the diplomatic community and referring to a

strongly worded warning by one country to another and often,either explicitly or implicitly, with the threat of militaryconsequence.

equality principle (international law)The principle of equality in public international law is far from

a monolithic notion. Nevertheless, attention may in particularbe paid to two important expressions of the equality principlein this field of the law, namely the principle of sovereign equality ofStates and the principle of equality or nondiscrimination as a fundamentalhuman right.

sovereign equality of statesThe sovereign equality of States is one of the fundamental

principles of international law612, which inter alia finds an

612 See inter alia I. Brownlie, Principles of Public International Law (Oxford, Oxford University Press1998, 5th ed.), 289; P. Kooijmans, The Doctrine of the Legal Equality of States: An Inquiry into theFoundations of International Law (Leyden, Sijthoff 1964); R. Jennings and A. Watts, Oppenheim’sInternational Law, I.1 (London, Longman 1992, 9th ed.), 339-379; I.A. Shearer, Starke’s InternationalLaw (London,Butterworth, 1994, 11th ed.), 99-102; Verhoeven, supra n. 70, 125. As far asfactualinequalities between States – especially between industrialized and developing States – are concerned,see inter alia P. Daillier, A. Pellet and N.Quoc Dinh, Droit international public (Parijs, L.G.D.J. 1999,6th ed.), pp. 1014-1025, paras. 620-626. See more particularly with regard to differential treatment in itsmore recent appearances in international law, Ph. Cullet, ‘Differential Treatment in International Law:Towards a New Paradigm of Inter-State Relations’, (1999) 10 European Journal of International Law,549-582. On

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expression in Article 2(1) of the Charter of the UnitedNations and in the Helsinki Final Act.613 The equality ofStates directly flows from their sovereignty: by virtue of thelatter it is impossible to place States in a kind of hierarchyvis-à-vis each other.614 One of the important consequences ofthe principle is that States are only bound by legal rulesthat they themselves agree to.615

retorsion A phrase used in International Law to describe retaliatory action

taken by one foreign government against another for thestringent or harsh regulation or treatment of its citizens whoare within the geographical boundaries of the foreign country.The typical methods of retorsion are the use of comparablysevere measures against citizens of the foreign nation foundwithin the borders of the retaliating nation.

Retorsion is a phrase used in International Law is an actperpetrated by one nation upon another in retaliation orreprisal for a similar act perpetrated by the other nation.The typical methods of retorsion are the use of comparablysevere measures against citizens of the foreign nation foundwithin the borders of the retaliating nation. It is differentfrom a reprisal in that the retorsion is always an action inconformity with international law, though unmistakably anunfriendly one. Examples include international trade, wheredisputes within the WTO are typically tackled in this manner,if dispute settlement does not reach its goal. Retorsion

the significance of the concept of sovereignty for managing factual inequalities, see B.Kingsbury, ‘Sovereignty and Inequality’, (1998) 9 European Journal of International Law, 599-625.

613 Final Act of the Conference on Security and Co-operation in Europe, Helsinki, 1 August 1975, under the heading ‘I. Sovereign equality, respect for the rights inherent in sovereignty’.

614 See A. Bleckmann, ‘Article 2(1)’, in B. Simma (ed.), The Charter of the United Nations.

Commentary (München, Beck 1995), p. 87, para. 44.615 A. Bleckmann, in The Charter of the United Nations: A Commentary, p. 87, para. 44.

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signifies also the act by which an individual returns to hisadversary evil for evil.

countermeasureCountermeasure in public international law refers to reprisals

not involving the use of force. In other words, it refers tonon-violent acts which are illegal in themselves, but becomelegal when executed by one state in response to the commissionof an earlier illegal act by another state towards the former.The leading case on countermeasure is the International Courtof Justice decision in Gabčíkovo – Nagymaros Dams case616. The courtremarked that, for a countermeasure to be justifiable, it mustmeet the conditions below:

1. The act constituting countermeasure must be taken in response to a previousintentional wrongful act of another state and must be directed against that state.

2. The injured state must have already called upon the state committing the wrongfulact to discontinue its wrongful conduct or to make reparation, but the request wasrefused.

3. The countermeasure must be commensurate with the injury suffered, taking intoaccount the rights in question.

4. The purpose behind evoking the countermeasure is to induce the wrongdoing stateto comply with its obligations under international law. Therefore, the measure mustbe reversible.

Article 22 of the International Law Commission draft articles onstate responsibility states that the wrongfulness of an act isprecluded if the act constitutes a countermeasure. Therefore,a validly executed countermeasure is legal under internationallaw.

state responsibility The laws of state responsibility are the principles governing

when and how a state is held responsible for a breach of aninternational obligation. Rather than set forth any particular

616 Gabčíkovo-Nagymaros Project (Hungary/Slovakia) ... Latest developments in the case.07/10/1998 - Press Release 1998/31

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obligations, the rules of state responsibility determine, ingeneral, when an obligation has been breached and the legalconsequences of that violation. In this way they are"secondary" rules that address basic issues of responsibilityand remedies available for breach of "primary" or substantiverules of international law, such as with respect to the use ofarmed force. Because of this generality, the rules can bestudied independently of the primary rules of obligation. Theyestablish (1) the conditions for an act to qualify asinternationally wrongful, (2) the circumstances under whichactions of officials, private individuals and other entitiesmay be attributed to the state, (3) general defences toliability and (4) the consequences of liability.

Until recently, the theory of the law of state responsibility wasnot well developed. The position has now changed, with theadoption of the Draft Articles on the Responsibility of States for InternationallyWrongful Acts (draft Articles") by the International LawCommission (ILC) in August 2001.617 The Draft Articles are acombination of codification and progressive development. Theyhave already been cited by the International Court ofJustice618 and have generally been well received.

Although the articles are general in coverage, they do notnecessarily apply in all cases. Particular treaty regimes,such as the General Agreement on Tariffs and Trade and theEuropean Convention on Human Rights, have established theirown special rules of responsibility. Traditionally, the term"state responsibility" referred only to state responsibilityfor injuries to aliens. It included not only "secondary"issues such as attribution and remedies, but also the primaryrights and duties of states, for example the assertedinternational standard of treatment and the right ofdiplomatic protection.

617 Draft Articles on the Responsibility of States for Internationally Wrongful Acts, Report ofthe ILC on the Work of its Fifty-third Session, UN GAOR, 56th Sess, Supp No 10, p 43, UN DocA/56/10 (2001).

618 The ICJ cited an earlier draft text of the Articles in Gabčíkovo-Nagyamaros Project(Hungary/Slovakia), ICJ Reports 1997, at 7.

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This responsibility for internationally wrongful acts7 isenshrined in Article 1 of the Articles on the Responsibilityof States for Internationally Wrongful Acts,8 which states:

“every internationally wrongful act of a state entails the international responsibility ofthe state.”

And is further acknowledged in The Chorzow Factory Case619 where thecourts stated that:

“…any breach of an engagement involves an obligation to make reparation.” 620

Further, contemporary International Law also recognizes theconcept of erga omnes, that is, obligations owed by the stateto the international community as a whole. These obligationswere identified by the international court of justice in theBarcelona Traction Case621 as deriving from:

“…the rules concerning the basic human rights of the human person…”622

internationally wrongful actsAccording to the Draft Articles, an internationally wrongful act

must:

و be attributable to the state under international law; and

و constitute a breach of an international obligation of the state.623

An internationally wrongful act which results from the breach bya State of an international obligation so essential for theprotection of fundamental interests of the internationalcommunity that its breach is recognized as a crime by thatcommunity as a whole constitutes an international crime. Onthe basis of the rules of international law in force, aninternational crime may result, inter alia, from:

619 P.C.I.J. Rep., Ser.A, No. 17 (1928).620 Ibid. at 29 See also Draft Article 31.621 I.C.J. Rep. 1970 at 3622 Ibid. at 32.623 James Crawford, The International Law Commission's Articles on State Responsibility:

Introduction, Text and Commentaries (Cambridge University Press, 2002) at 12.; see also Note1, Article 2.

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a. a serious breach of an international obligation of essential importance for themaintenance of international peace and security, such as that prohibitingaggression;

b. a serious breach of an international obligation of essential importance forsafeguarding the right of self-determination of peoples, such as that prohibiting theestablishment or maintenance by force of colonial domination;

c. a serious breach on a widespread scale of an international obligation of essentialimportance for safeguarding the human being, such as those prohibiting slavery,genocide and apartheid;

d. a serious breach of an international obligation of essential importance for thesafeguarding and preservation of the human environment, such as thoseprohibiting massive pollution of the atmosphere or of the seas.

Any internationally wrongful act which is not an internationalcrime in accordance with paragraph 2 constitutes aninternational delict.

attributionBefore a state can be held responsible for any action, it is

necessary to prove a causal connection between the injury andan official act or omission attributable to the state allegedto be in breach of its obligations. This has become anincreasingly significant contemporary issue, as non-stateactors such as Al Qaeda, multinational corporations, and non-governmental organisations play greater international roles,and as governments privatise some traditional functions.

The state is responsible for all actions of its officials andorgans, even if the organ or official is formallyindependent624 and even if the organ or official is acting ultravires.625 Persons or entities not classified as organs of theState may still be imputable, when they are otherwiseempowered to exercise elements of governmental authority, andact in that capacity in the particular instance. Persons orentities not performing public functions may equally beimputable, if they in fact acted under the direction or

624 Note 1, Art 5.625 Note 1, Art 7.

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control of the State.626 Where there is a breakdown of normalgovernmental authority and control, such as in so-called"failed states", the actions of those acting as the"government" in a de facto sense will be acts of the state.627

The acts of an "insurrectional or other movement that becomesthe new government of an existing state or succeeds inestablishing a new state" can also be attributed to thestate.628 This is also the case where a state acknowledges andadopts the conduct of private persons as its own.629

Despite their apparent concreteness, the standards stated in somerules involve important ambiguities, and their applicationwill often require significant fact-finding and judgment. Mostrules state responsibility involving private acts alreadyarise under primary rules. For example, environmental andhuman rights agreements require states to prevent abuses byprivate parties.

reparationsIf illegal actions are continuing, the state has a duty to

cease.630 The state also has duties to make reparation, whichcould involve restitution, compensation, or satisfaction. Remedies willbe dependent on the particular forum, such as the UnitedNations, International Court of Justice, World TradeOrganisation, International Tribunal for the Law of the Sea,International Criminal Court, and on the purpose ofreparation.631

626 Note 1, Art 8.627 Note 1, Art 9.628 Note 1, Art 10. See further Liesbeth Zegveld, The Accountability of Armed Opposition Groups in

International Law (Cambridge University Press, 2002).629 Note 1, Article 11.630 Note 1, Art 30.631 Hardman Reis, T., Compensation for Environmental Damages under International Law, Kluwer Law

International, The Hague, 2011, ISBN 978-90-411-3437-0

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collective responsibilityThe doctrine632 of collective responsibility provides for checks

and balances by the ministers being directly accountable toparliament [sovereign] though our parliamentarians have tendedto abuse this power and maybe an introduction of the ombudsmenwill see to it that authorities do not ‘go beyond theirpowers’.

632 Emerson H. Tiller and Frank B. Cross, ‘What is Legal Doctrine?,’ Northwestern University Law Review, Vol. 100:1, 2006.

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Dispute Resolution In Energy LawDISPUTES & DISPUTE RESOLUTION

DisputeA conflict or controversy; a conflict of claims or rights; an

assertion of a right, claim, or demand on one side, met bycontrary claims or allegations on the other. The subject oflitigation; the matter for which a suit is brought and uponwhich issue is joined, and in relation to which jurors arecalled and witnesses examined. A labor dispute is anydisagreement between an employer and his or her employeesconcerning anything job-related, such as tenure, hours, wages,fringe benefits, and employment conditions.

legal disputeDisagreement over the existence of a legal duty or right, or over

the extent and kind of compensation that may be claimed by theinjured party for a breach of such duty or right.

legal case A legal case is a dispute between opposing parties resolved by a

court, or by some equivalent legal process. A legal case maybe either civil or criminal. There is a defendant and anaccuser. Legal cases, whether criminal or civil, are premisedon the idea that a dispute will be fairly resolved when alegal procedure exists by which the dispute can be brought toa factfinder not otherwise involved in the case, who canevaluate evidence to determine the truth with respect toclaims of guilt, innocence, liability, or lack of fault.Details of the procedure may depend on both the kind of caseand the kind of system in which the case is brought - whether,for example, it is an inquisitorial system or an adversarialsystem.

civil case

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A civil case, more commonly known as a lawsuit or controversy,begins when a plaintiff files a document called a complaintwith a court, informing the court of the wrong that theplaintiff has allegedly suffered because of the defendant, andrequesting a remedy. A civil case can also be arbitratedthrough arbitration. The remedy sought may be money, aninjunction, which requires the defendant to perform or refrainfrom performing some action, or a declaratory judgment, whichdetermines that the plaintiff has certain legal rights.Whoever wins gets either released from custody or gets nothing(Accuser).

The plaintiff must also make a genuine effort to inform thedefendant of the case through service of process, by which theplaintiff delivers to the defendant the same documents thatthe plaintiff filed with the court.

At any point during the case, the parties can agree to asettlement, which will end the case, although in somecircumstances, such as in class actions, a settlement requirescourt approval in order to be binding.

criminal caseA criminal case, in common law jurisdictions, begins when a

person suspected of a crime is indicted by a grand jury orotherwise charged with the offense by a government officialcalled a prosecutor or district attorney.

Like a civil case, a criminal case may also be settled before atrial through a plea bargain, in some jurisdictions. If aperson does not go to trial, he/she may endure even biggerpenalties.

Fact in Dispute A fact is said to be in dispute when it is alleged by one party

and denied by the other, and by both with some show of reason.A mere naked allegation, without evidence, or against the

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evidence, cannot create a dispute within the meaning of thelaw. 633

Dispute resolutionDispute resolution is the process of resolving disputes between

parties.Methods of dispute resolution include: facilitation lawsuits (litigation) arbitration collaborative law mediation conciliation many types of negotiation

One could theoretically include violence or even war as part ofthis spectrum, but dispute resolution practitioners do notusually do so; violence rarely ends disputes effectively, andindeed, often only escalates them.

Not all disputes, even those in which skilled interventionoccurs, end in resolution. Such intractable disputes form aspecial area in dispute resolution studies.

Dispute Resolution is an important requirement in InternationalTrade: Negotiation, Mediation, Arbitration and Legal Action.

dispute resolution methods, dispute resolution mechanisms,dispute resolution, Dispute mechanisms, grievance mechanisms

A dispute mechanism is a structured process that addressesdisputes or grievances that arise between two or more partiesengaged in business, legal, or societal relationships. Disputemechanisms are used in dispute resolution, and may incorporateconciliation, conflict resolution, mediation, and negotiation.

Otherwise known as grievance mechanisms, dispute mechanisms aretypical non-judicial in nature, meaning that they are notresolved within the court of law. According to research

633 Knight's Appeal, 19 Pa. 493, 494 (Pa. 1852)

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produced by the non-judicial grievance mechanism task force ofJohn Ruggie, Special Representative of Business and HumanRights to the United Nations, those who design and overseenon-judicial mechanisms should acknowledge core human rightsprocesses defined by "all core UN human rights treaties.”

Dispute mechanisms comprise a way for socially responsiblebusinesses to meet requirements of corporate responsibility-related agreements or pacts, reduce risk while capacity-building or developing internationally, and assist largerprocesses that create positive social change.

Dispute mechanisms are an increasingly effective tool forestablishing communication channels between businesses andcommunities. When successful, they offer a trusted way forlocal peoples or communities to voice and resolve concernsrelated to development projects, while providing companieswith transparent, effective ways to address communityconcerns. Generally, it is agreed that a well-functioninggrievance mechanism should:

Provides a predictable, transparent, and credible process to all parties, resulting inoutcomes that are seen as fair, effective, and lasting

Builds trust as an integral component of broader community relations activities Enables more systematic identification of emerging issues and trends, facilitating

corrective action and preemptive engagement.

Judicial dispute resolutionThe legal system provides resolutions for many different types of

disputes. However, some disputants will not reach agreementthrough a collaborative processes. Some disputes need thecoercive power of the state to enforce a resolution. Perhapsmore importantly, many people want a professional advocatewhen they become involved in a dispute, particularly if thedispute involves perceived legal rights, legal wrongdoing, orthreat of legal action against them.

The most common form of judicial dispute resolution islitigation. Litigation is initiated when one party files suit

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against another. In the United States, litigation isfacilitated by the government within federal, state, andmunicipal courts. The proceedings are very formal and aregoverned by rules, such as rules of evidence and procedure,which are established by the legislature. Outcomes are decidedby an impartial judge and/or jury, based on the factualquestions of the case and the application law. The verdict ofthe court is binding, not advisory; however, both parties havethe right to appeal the judgment to a higher court. Judicialdispute resolution is typically adversarial in nature, forexample, involving antagonistic parties or opposing interestsseeking an outcome most favorable to their position.

Retired judges or private lawyers often become arbitrators ormediators; however, trained and qualified non-legal disputeresolution specialists form a growing body within the field ofADR. In the United States of America, many states now havemediation or other ADR programs annexed to the courts, tofacilitate settlement of lawsuits.

Extrajudicial dispute resolutionSome use the term dispute resolution to refer only to alternative

dispute resolution (ADR), that is, extrajudicial processessuch as arbitration, collaborative law, and mediation used toresolve conflict and potential conflict between and amongindividuals, business entities, governmental agencies, and (inthe public international law context) states. ADR generallydepends on agreement by the parties to use ADR processes,either before or after a dispute has arisen. ADR hasexperienced steadily increasing acceptance and utilizationbecause of a perception of greater flexibility, costs belowthose of traditional litigation, and speedy resolution ofdisputes, among other perceived advantages. However, some havecriticized these methods as taking away the right to seekredress of grievances in the courts, suggesting thatextrajudicial dispute resolution may not offer the fairest wayfor parties not in an equal bargaining relationship, for

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example in a dispute between a consumer and a largecorporation. In addition, in some circumstances, arbitrationand other ADR processes may become as expensive as litigationor more so.

Alternative dispute resolution (ADR) Alternative dispute resolution (ADR) refers to a variety of

processes that help parties resolve disputes without a trial.Typical ADR processes include mediation, arbitration, neutralevaluation, and collaborative law.

Online dispute resolutionDispute resolution can also take place on-line or by using

technology in certain cases. Online dispute resolution, agrowing field of dispute resolution, uses new technologies tosolve disputes. Online Dispute Resolution is also called"ODR". Online Dispute Resolution or ODR also involves theapplication of traditional dispute resolution methods todisputes which arise online.

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TYPES OF DISPUTES

Two types of disputesThey can be either civil or criminal. civil dispute A civil dispute is between you and another person. Example: A

calls B a filthy liar and a cheat in front of all of hisfriends and co-workers causing B great embarrassment. B canthen sue for slander. The suit would be a civil suit. Civildisputes can be between individuals, or an individual and atrader, business or company, or between companies.

criminal dispute A criminal dispute, on the other hand, is between you and the

State. Example: A is caught shoplifting at Cocacola. Cocacolawon't sue, they'll notify the cops and the cops will charge Awith larceny. This would be a criminal dispute. As with civildisputes, criminal disputes can be between individuals, or anindividual and a trader, business or company, or betweencompanies

There are essentially other classifications of disputes as below:State vs. State DisputesThese are primarily boundary disputes concerning natural resource

fields that cross international borders, most of which arelocated in maritime waters. Strictly speaking, they onlyinvolve governments since only they are able to claimsovereign title and resolve boundaries with their neighboringstates. However, natural resource companies get indirectlyinvolved in these disputes when they are granted concessionsthat straddle disputed boundary lines.

Companies are sometimes asked by developing nations to fund thedispute costs, and provide data and legal expertise to aid inresolving the boundary dispute. Companies therefore need to be

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familiar with these disputes and be able to manage themproperly when they find themselves in the middle of one.

Company vs. State DisputesThese are often called investor-state or state investment

disputes. They occur when governments significantly change theterms of the original deal or expropriate an investment. Theinvestor (in this case a natural resource company or aconsortium of natural resource companies) can base its claimon its investment contract (e.g. a production sharing contractor risk service agreement) or an investment treaty, orpossibly both. Most treaty claims are made under bilateralinvestment treaties (BITs), which are negotiated and ratifiedby two sovereign states.

There are presently more than 2,500 BITs involving some 180countries in existence around the world. There is onemultilateral investment treaty of significance to the naturalresource industry and that is the Energy Charter Treaty.634

Companies should structure their investments and negotiate theirhost government contracts to take advantage of the investmentprotection provided by these treaties and to access thefacilities of the International Centre for the Settlement ofInvestment Disputes (ICSID) as the forum of choice for anydispute with a sovereign state. That is essentiallyaccomplished by incorporating their investing company andmanaging their business out of a jurisdiction that has astrong BIT with the host country and by including an ICSIDdispute resolution clause in their host government contract.These disputes do not often happen to international oilcompanies (IOCs). But when they do occur, they involve largesums of money and therefore have a significant impact on acompany’s bottom line. Companies should therefore seekqualified legal advice on how best to structure their

634 S ee http://www.encharter.org for more details.

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investments and draft the dispute resolution clauses in theirhost government contracts.

Company vs. Company DisputesThese are usually called international commercial disputes. There

are two subcategories of disputes occurring between companies.The first subcategory is amongst joint venture participants incontracts such as: Joint Operating Agreements Unitization Agreements Farmout Agreements Area of Mutual Interest Agreements Sale and Purchase Agreements Confidentiality Agreements

The second subcategory of disputes is between operators andservice contractors for the following kinds of agreements: Service Agreements Construction Contracts Equipment and Facilities Contracts Transportation and Processing Contracts

These disputes make up the majority of disputes in which naturalresource companies find themselves.

They run the full gamut of size, complexity and financialsignificance.

Individual vs. Company DisputesThere are a number of situations where individuals initiate

claims against natural resource companies. The first is whenan individual suffers a personal injury and begins a tortclaim against a company. Foreign claims are usually started inlocal courts but can sometimes be filed in otherjurisdictions.635

635 See Jonathan Drimmer, Human Rights and the Extractive Industries: Litigation and ComplianceTrends, Journal of World Energy Law & Business (Vol 3, No 2—July 2010) for more details on theseclaims worldwide.

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The second group of claims by individuals arise when promoters ofcompanies allege they have an interest in contract and theaccompanying joint operating agreement, sometimes in thecontext of a claim of tortious interference by a third party.

The final group of claims concerns agents or consultants whodemand payment under their agent agreements for winning agovernment contract for a company. There are a series ofarbitrations that have happened over the last 50 years wherecompanies have refused to pay their agent based uponcorruption allegations after securing the host governmentcontract.636

personal disputesPersonal disputes are disagreements as to rights and

responsibilities, between individuals. They can be eithercivil or criminal.

636 See A. Timothy Martin, “International Arbitration and Corruption: An Evolving Standard”, 20thAnnual Institute for Transnational Arbitration, June, 2009. Available at: http://www.timmartin.ca/qualifications/publications.

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ELEMENTS OF EFFECTIVE DISPUTE RESOLUTION METHODS

Characteristics of effective dispute mechanismsThere are a number of dispute resolution methods that parties can

use in their disputes. They can use one or several of themtogether. Some are better than others depending on thecircumstances. Whatever parties choose, they need to drafttheir dispute resolution clause so that the different methodswork properly together. Otherwise a party will receive someunpleasant surprises at the time of the dispute. The varioustypes of dispute resolution methods include negotiation,mediation, expert determination, dispute review boards,litigation and arbitration.

Irrespective of the method, such mechanisms must at a minimum be:Legitimacy (dispute resolution)A dispute mechanism must have clear, transparent and sufficiently

independent governance structures to ensure that no party to aparticular grievance process can interfere with the fairconduct of that process;

Accessibility (dispute resolution)A dispute mechanism must be publicized to those who may wish to

access it and provide adequate assistance for aggrievedparties who may face barriers to access, including language,literacy, awareness, finance, distance, or fear of reprisal;

Predictability (dispute resolution)A dispute mechanism must provide a clear and known procedure with

a time frame for each stage and clarity on the types ofprocess and outcome it can (and cannot) offer, as well as ameans of monitoring the implementation of any outcome;

Equity(dispute resolution)A dispute mechanism must ensure that aggrieved parties have

reasonable access to sources of information, advice and

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expertise necessary to engage in a grievance process on fairand equitable terms;

Rights-compatibility (dispute resolution)A dispute mechanism must ensure that its outcomes and remedies

accord with internationally recognized human rights standards;Transparent (dispute resolution)A dispute mechanism must provide sufficient transparency of

process and outcome to meet the public interest concerns atstake and should presume transparency wherever possible; non-State mechanisms in particular should be transparent about thereceipt of complaints and the key elements of their outcomes.

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TYPES OF DISPUTE RESOLUTION METHODS

two types of dispute resolution processesDispute resolution processes fall into two major types: Adjudicative processes Consensual processes

Adjudicative processesAdjudicative processes, such as litigation or arbitration, in

which a judge, jury or arbitrator determines the outcome.Consensual processesConsensual processes, such as collaborative law, mediation,

conciliation, or negotiation, in which the parties attempt toreach agreement.

Conflict resolution, reconciliation Conflict resolution, otherwise known as reconciliation, is

conceptualized as the methods and processes involved infacilitating the peaceful ending of conflict and retribution.Often, committed group members attempt to resolve groupconflicts by actively communicating information about theirconflicting motives or ideologies to the rest of the group(e.g., intentions; reasons for holding certain beliefs), andby engaging in collective negotiation. Dimensions ofresolution typically parallel the dimensions of conflict inthe way the conflict is processed. Cognitive resolution is theway disputants understand and view the conflict, with beliefsand perspectives and understandings and attitudes. Emotionalresolution is in the way disputants feel about a conflict, theemotional energy. Behavioral resolution is how one thinks thedisputants act, their behavior. Ultimately, a wide range ofmethods and procedures for addressing conflict exist,including but not limited to negotiation, mediation,diplomacy, and creative peacebuilding. The term conflictresolution may also be used interchangeably with disputeresolution, where arbitration and litigation processes are

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critically involved. Furthermore, the concept of conflictresolution can be thought to encompass the use of nonviolentresistance measures by conflicted parties in an attempt topromote effective resolution.

Conflict managementConflict management refers to the long-term management of

intractable conflicts. It is the label for the variety of waysby which people handle grievances—standing up for what theyconsider to be right and against what they consider to bewrong. Those ways include such diverse phenomena as gossip,ridicule, lynching, terrorism, warfare, feuding, genocide,law, mediation, and avoidance. Which forms of conflictmanagement will be used in any given situation can be somewhatpredicted and explained by the social structure—or socialgeometry—of the case. Conflict management is often consideredto be distinct from conflict resolution. In order for actualconflict to occur, there should be an expression of exclusivepatterns, and tell why the conflict was expressed the way itwas. Conflict is not just about simple inaptness, but is oftenconnected to a previous issue. The latter refers to resolvingthe dispute to the approval of one or both parties, whereasthe former concerns an ongoing process that may never have aresolution. Neither is it considered the same as conflicttransformation, which seeks to reframe the positions of theconflict parties.

Alternative dispute resolution (ADR), external dispute resolutionAlternative dispute resolution (ADR; known in some countries,

such as Australia, as external dispute resolution) includesdispute resolution processes and techniques that act as ameans for disagreeing parties to come to an agreement short oflitigation. It is a collective term for the ways that partiescan settle disputes, with (or without) the help of a thirdparty.

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Despite historic resistance to ADR by many popular parties andtheir advocates, ADR has gained widespread acceptance amongboth the general public and the legal profession in recentyears. In fact, some courts now require some parties to resortto ADR of some type, usually mediation, before permitting theparties' cases to be tried (indeed the European MediationDirective (2008) expressly contemplates so-called "compulsory"mediation; this means that attendance is compulsory, not thatsettlement must be reached through mediation).

The rising popularity of ADR can be explained by the increasingcaseload of traditional courts, the perception that ADRimposes fewer costs than litigation, a preference forconfidentiality, and the desire of some parties to havegreater control over the selection of the individual orindividuals who will decide their dispute. Some of the seniorjudiciary in certain jurisdictions (of which England and Walesis one) are strongly in favour of this (ADR) use of mediationto settle disputes.

Salient features of ADRADR is generally classified into at least four types:

negotiation, mediation, collaborative law, and arbitration.(Sometimes a fifth type, conciliation, is included as well,but for present purposes it can be regarded as a form ofmediation. See conciliation for further details.) ADR can beused alongside existing legal systems such as sharia courtswithin common law jurisdictions such as the UK.

ADR traditions vary somewhat by country and culture. There aresignificant common elements which justify a main topic, andeach country or region's difference should be delegated tosub-pages.

Alternative Dispute Resolution is of two historic types. First,methods for resolving disputes outside of the officialjudicial mechanisms. Second, informal methods attached to orpendant to official judicial mechanisms. There are in addition

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free-standing and or independent methods, such as mediationprograms and ombuds offices within organizations. The methodsare similar, whether or not they are pendant, and generallyuse similar tool or skill sets, which are basically sub-setsof the skills of negotiation.

ADR includes informal tribunals, informal mediative processes,formal tribunals and formal mediative processes. The classicformal tribunal forms of ADR are arbitration (both binding andadvisory or non-binding) and private judges (either sittingalone, on panels or over summary jury trials). The classicformal mediative process is referral for mediation before acourt appointed mediator or mediation panel. Structuredtransformative mediation as used by the U.S. Postal Service isa formal process. Classic informal methods include socialprocesses, referrals to non-formal authorities (such as arespected member of a trade or social group) and intercession.The major differences between formal and informal processesare (a) pendency to a court procedure and (b) the possessionor lack of a formal structure for the application of theprocedure.

For example, freeform negotiation is merely the use of the toolswithout any process. Negotiation within a labor arbitrationsetting is the use of the tools within a highly formalized andcontrolled setting.

Calling upon an organizational ombudsman's office is never, byitself, a formal procedure. Nno one can be compelled to use anombuds office.

Organizational ombuds offices refer people to all conflictmanagement options in the organization: formal and informal,rights-based and interest-based. But, in addition, in partbecause they have no decision-making authority, ombuds officescan, themselves, offer a wide spectrum of informal options.

This spectrum is often overlooked in contemporary discussions of"ADR." "ADR" often refers to external conflict management

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options that are important, but used only occasionally. Anorganizational ombuds office typically offers many internaloptions that are used in hundreds of cases a year. Theseoptions include:

delivering respect, for example, affirming the feelings of a visitor, while stayingexplicitly neutral on the facts of a case,

active listening, serving as a sounding board, providing and explaining information, one-on-one, for example, about policies and

rules, and about the context of a concern, receiving vital information, one-on-one, for example, from those reporting

unacceptable or illegal behavior, reframing issues, helping to develop and evaluate new options for the issues at hand, offering the option of referrals to other resources, to "key people" in the relevant

department, and to managers and compliance offices, helping people help themselves to use a direct approach, for example, helping

people collect and analyze their own information, helping people to draft a letterabout their issues, coaching and role-playing,

offering shuttle diplomacy, for example, helping employees and managers to thinkthrough proposals that may resolve a dispute, facilitating discussions,

offering mediation inside the organization, "looking into" a problem informally, facilitating a generic approach to an individual problem, for example instigating or

offering training on a given issue, finding ways to promulgate an existing policy, identifying and communicating throughout the organization about "new issues," identifying and communicating about patterns of issues, working for systems change, for example, suggesting new policies, or procedures, following up with a visitor, following up on a system change recommendation.637

Informal referral to a co-worker known to help people work out issues is an informalprocedure. Co-worker interventions are usually informal.

Conceptualizing ADR in this way makes it easy to avoid confusingtools and methods (does negotiation once a lawsuit is filedcease to be ADR? If it is a tool, then the question is the

637 See Rowe, Mary, Informality — The Fourth Standard of Practice, in JIOA, vol 5, no 1, (2012) pp8–17.

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wrong question) (is mediation ADR unless a court orders it? Ifyou look at court orders and similar things as formalism, thenthe answer is clear: court annexed mediation is merely aformal ADR process).

Dividing lines in ADR processes are often provider driven ratherthan consumer driven. Educated consumers will often choose touse many different options depending on the needs andcircumstances that they face.

Finally, it is important to realize that conflict resolution isone major goal of all the ADR processes. If a process leads toresolution, it is a dispute resolution process.

Appropriate dispute resolution vis a vis Alternative disputeresolution

"Alternative" dispute resolution is usually considered to bealternative to litigation. It also can be used as acolloquialism for allowing a dispute to drop or as analternative to violence.

In recent years there has been more discussion about taking asystems approach in order to offer different kinds of optionsto people who are in conflict, and to foster "appropriate"dispute resolution.

That is, some cases and some complaints in fact ought to go toformal grievance or to court or to the police or to acompliance officer or to a government IG. Other conflictscould be settled by the parties if they had enough support andcoaching, and yet other cases need mediation or arbitration.Thus "alternative" dispute resolution usually means a methodthat is not the courts. "Appropriate" dispute resolutionconsiders all the possible responsible options for conflictresolution that are relevant for a given issue.

ADR can increasingly be conducted online, which is known asonline dispute resolution (ODR, which is mostly a buzzword andan attempt to create a distinctive product). It should benoted, however, that ODR services can be provided by

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government entities, and as such may form part of thelitigation process. Moreover, they can be provided on a globalscale, where no effective domestic remedies are available todisputing parties, as in the case of the UDRP and domain namedisputes. In this respect, ODR might not satisfy the"alternative" element of ADR.

Benefits of ADRADR has been increasingly used internationally, both alongside

and integrated formally into legal systems, in order tocapitalise on the typical advantages of ADR over litigation:

Suitability for multi-party disputes Flexibility of procedure - the process is determined and controlled by the parties to

the dispute Lower costs Less complexity ("less is more") Parties choice of neutral third party (and therefore expertise in area of dispute) to

direct negotiations/adjudicate Likelihood and speed of settlements Practical solutions tailored to parties’ interests and needs (not rights and wants, as

they may perceive them) Durability of agreements Confidentiality The preservation of relationships and the preservation of reputations

mediation In mediation, there is a third party, a mediator, who facilitates

the resolution process (and may even suggest a resolution,typically known as a "mediator's proposal"), but does notimpose a resolution on the parties. In some countries (forexample, the United Kingdom), ADR is synonymous with what isgenerally referred to as mediation in other countries.

Mediation requires the parties to be well prepared and committedto the process, their decision makers at the table, and askilled mediator to work properly. When that happens,mediation can be a very effective and successful dispute

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resolution tool. The focus is on the real interests of theparties, not their contractual or legal entitlements.638

It is frequently used domestically in common law jurisdictionssuch as the United States, England, Canada and Australia. Itis starting to slowly spread to civil law jurisdictions.

Mediation is the alternative dispute resolution (ADR) method ofchoice in the business community, i.e., alternative fromlitigation and arbitration. It is overwhelmingly chosen overother ADR methods across different jurisdictions.

Mediation is faster and cheaper than arbitration639 and has a highsuccess rate of settlement.640

Mediation can cost less than 5% of the cost of an arbitrationdealing with a similar dispute, take less than 15% of the timeof an arbitration and have a success rate in the 75% to 85%range. Despite those obvious advantages, it is stillinfrequently used in international disputes. There are anumber of reasons for mediation not being widely used ininternational business disputes including lack of familiaritywith the process, differences in culture, language and values,and the large distances separating the parties.

Finally, successful mediation requires compromise from allparties involved and some disputes simply do not lendthemselves to compromise.

An important thing to remember about mediation is that it is nota legally binding process. The results of mediation onlybecome binding with a signed settlement agreement. It should

638 Herbert Smith LL P, The Inside Track: How Blue-Chips are Using ADR, (London UK, November2007). This research is based on interviews with in-house lawyers at 21 leading multinationalcompanies conducted by the Herbert Smith law firm in 2007.

639 See A. Timothy Martin, International Mediation: An Evolving Market, in Contemporary Issues inInternational Arbitration and Mediation, The Fordham Papers 2010 (A. Rovine, ed.).

640 Centre for Effective Dispute Resolution [CEDR], The Fourth Mediation Audit: A Survey ofCommercial Mediator Attitudes and Experience, 8 (London, UK, 11 May 2010).

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therefore be seen as an adjunct and not as a replacement to abinding process, such as international arbitration.

Despite its present infrequent use, it will likely grow as auseful and worthwhile international dispute resolution tool inappropriate circumstances with the support of companies andmediation organizations.641

collaborative law, collaborative divorce In collaborative law or collaborative divorce, each party has an

attorney who facilitates the resolution process withinspecifically contracted terms. The parties reach agreementwith support of the attorneys (who are trained in the process)and mutually-agreed experts. No one imposes a resolution onthe parties. However, the process is a formalized process thatis part of the litigation and court system. Rather than beingan Alternative Resolution methodology it is a litigationvariant that happens to rely on ADR like attitudes andprocesses.

arbitration , voluntary arbitration, mandatory arbitration In arbitration, participation is typically voluntary, and there

is a third party who, as a private judge, imposes aresolution. Arbitrations often occur because parties tocontracts agree that any future dispute concerning theagreement will be resolved by arbitration. This is known as a'Scott Avery Clause'. In recent years, the enforceability ofarbitration clauses, particularly in the context of consumeragreements (e.g., credit card agreements), has drawn scrutinyfrom courts. Although parties may appeal arbitration outcomesto courts, such appeals face an exacting standard of review.

Beyond the basic types of alternative dispute resolutions thereare other different forms of ADR:

641 See the International Mediation Institute at: http://imimediation.org for more resources inthis area.

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Case evaluation: a non-binding process in which parties presentthe facts and the issues to a neutral case evaluator whoadvises the parties on the strengths and weaknesses of theirrespective positions, and assesses how the dispute is likelyto be decided by a jury or other adjudicator.

Early neutral evaluationThis is a process that takes place soon after a case has been

filed in court. The case is referred to an expert who is askedto provide a balanced and neutral evaluation of the dispute.The evaluation of the expert can assist the parties inassessing their case and may influence them towards asettlement.

Family group conferenceThis is a meeting between members of a family and members of

their extended related group. At this meeting (or often aseries of meetings) the family becomes involved in learningskills for interaction and in making a plan to stop the abuseor other ill-treatment between its members.

Neutral fact-findingThis is a process where a neutral third party, selected either by

the disputing parties or by the court, investigates an issueand reports or testifies in court. The neutral fact-findingprocess is particularly useful for resolving complexscientific and factual disputes.

Ombud, OmbudsmanThis is a third party selected by an institution – for example a

university, hospital, corporation or government agency – todeal with complaints by employees, clients or constituents.The Standards of Practice for Organizational Ombuds may befound at http://www.ombudsassociation.org/standards/.

An organizational ombudsman works within the institution to lookinto complaints independently and impartially.

negotiation

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In negotiation, participation is voluntary and there is no thirdparty who facilitates the resolution process or imposes aresolution. (NB – a third party like a chaplain ororganizational ombudsperson or social worker or a skilledfriend may be coaching one or both of the parties behind thescene, a process called "Helping People Help Themselves".642

Negotiation between the parties at the time of a dispute usuallyhappens as a matter of course. A provision for negotiation mayor may not be drafted into an agreement. It can be formalizedas part of a multi-step dispute resolution process. If it is,the agreement needs to set a clear time frame when each stepis finished. Otherwise, failure to complete one step can beused as an obstacle to get to a binding process. It is theleast expensive of any dispute resolution method andpotentially the most commercially viable solution. But itneeds the full co-operation of the parties and a great deal ofobjectivity and detachment in the parties’ behavior to avoidnegative emotions and entrenched views that get in the way ofa settlement. It should not be the only dispute resolutionmethod relied upon since it may likely result in noresolution.

FacilitationNeutral facilitators can help parties work together to resolve

disputes. Facilitators can organize meetings so participantscan focus on the issues, contribute ideas and work towardsolutions. Facilitation ensures that meetings stay party-focused, clarify points of agreement and disagreement, modeleffective communication and listening, support all parties inparticipating fully, and encourage parents and schools toidentify new options to address unresolved problems.

Expert DeterminationExpert determination has been most often used in economic

valuations or technical assessments in natural resource

642 see Helping People Help Themselves, in Negotiation Journal July 1990, pp. 239–248

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disputes. The decision of an expert is not enforceable as anarbitration award but only as a contract between the partiesin court systems around the world. It would require thewritten agreement of the parties. It is only effective inhighly technical matters, but has difficulty when there arematters of both fact and law being disputed (which is the casefor many disputes). It is not widely used in internationaldisputes and when it is, it should be used only on narrowtechnical grounds. A number of international institutions,such as the ICC International Centre for Expertise, providelists of experts and administered services in this area.643

Dispute Review BoardDispute review boards began in the U.S. construction industry and

have spread into the international construction industry. Theyusually consist of a three member board that is appointed forthe duration of a large construction project. They have provento be quite effective in the construction industry, but havenot spread to the energy sector in any significant manner. Ifthey were used, they would be most effective in theconstruction of large energy infrastructure projects. A numberof institutions provide assistance and services in thisarea.644

Administrative BoardsThese are boards established by statute for various specific

industries, to enable the resolution of disputes in thesesectors, before the matter can be litigious. The most commonones are:

labour review boards military review boards land boards643 See http://www.iccwbo.org/court/adr for more details on their services.

644 This includes the ICC, the International Centre for Dispute Resolution (ICDR) at:http://www.adr.org/sp.asp?id=28819 and the Dispute Review Federation at: http://dbfederation.org.

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water boards

LitigationLitigation in the courts is the most familiar dispute resolution

tool to lawyers. It is most frequently used in the domesticenergy business with parties from the same jurisdiction (inparticular in the U.S., Canada, the UK and Australia). It isnot the preferred forum for international disputes for anumber of reasons including problems in enforcing courtjudgments in foreign jurisdictions, cost and length of trials,and aversion to local courts by foreign investors. As aresult, it is rarely chosen as a dispute resolution mechanismin international natural resource agreements.645 It issometimes chosen in international natural resource agreementswhen all the parties come from the same jurisdiction and theyare all comfortable with the courts of their home country.

ArbitrationArbitration is the most widely accepted and used dispute

resolution method in the international energy sector. It is alegally binding process that provides the most flexibility toparties in how they want to resolve their dispute. Arbitrationprovides many advantages including allowing parties to choosetheir arbitrators, selecting the kind and extent of theirarbitration process, and choosing the venue and forum wherethe arbitration will be held. It also has the advantage of therecognition and enforcement of arbitral awards in foreignjurisdictions, which court judgments generally do not have.

Along with that flexibility comes a number of problems, includingthat adverse parties can make the process look a lot likelitigation resulting in high costs and time consumingprocesses.

645 An example is the development of the AIPN Model JOA. The first two versions included thealternative of court litigation. That was eliminated in the third and last version of the AIPNModel JOA. The only binding process now provided is international arbitration.

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Companies can adopt a number of strategies to manage time andcost concerns in international arbitration that are discussed.Despite some of its shortcomings, when given a choice betweenthe only two legally binding dispute resolution processesavailable—local courts and arbitration—internationalbusinesses always choose international arbitration.

international arbitrationInternational arbitration is a leading method for resolving

disputes arising from international commercial agreements andother international relationships. As with arbitrationgenerally, international arbitration is a creation ofcontract, i.e., the parties' decision to submit disputes tobinding resolution by one or more arbitrators selected by oron behalf of the parties and applying adjudicatory procedures,usually by including a provision for the arbitration of futuredisputes in their contract. The practice of internationalarbitration has developed so as to allow parties fromdifferent legal and cultural backgrounds to resolve theirdisputes, generally without the formalities of theirrespective legal systems.

International arbitration has enjoyed growing popularity withbusiness and other users over the past 50 years. There are anumber of reasons that parties elect to have theirinternational disputes resolved through arbitration. Theseinclude the desire to avoid the uncertainties and localpractices associated with litigation in national courts, thedesire to obtain a quicker, more efficient decision, therelative enforceability of arbitration agreements and arbitralawards (as contrasted with forum selection clauses andnational court judgments), the commercial expertise ofarbitrators, the parties' freedom to select and design thearbitral procedures, confidentiality and other benefits.

International arbitration is sometimes described as a hybrid formof dispute resolution, which permits parties broad flexibilityin designing arbitral procedures. As one example, consider the

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International Bar Association (IBA)'s Rules on the Taking ofEvidence in International Commercial Arbitration, revised in2010. These rules adopt neither the common law jurisdictions'broad disclosure procedures (Discovery), nor follow fully thecivil law in eliminating entirely the ability to engage insome disclosure-related practices. The IBA Rules blend commonand civil systems so that parties may narrowly tailordisclosure to the agreement's particular subject matter.

Rules of evidence represents just one example of the differentpractice that applies to international arbitration, and whichdistinguishes it from provincial forms of arbitration rootedin the procedures of a particular legal system. There are avariety of approaches to international arbitration at thenational level, even where model laws have been adopted. Theseapproaches can be further impacted by arbitral rules that maybe agreed between the parties. Similarly, internationalarbitral practice has given rise to its own non-country-specific standards of ethical conduct which are believed toapply in international proceedings and, more to the point, tothe arbitrators who are appointed to conduct them.

International arbitration is a significant variant of thepractice in many countries of arbitration, from which it isderived and shares many features. It is not just the fact thatinternational arbitration arises in the context ofinternational contracts that makes it different. In theinternational dispute resolution community, it is widelyaccepted to be a different animal entirely, involvingdifferent practices and rules, and being represented by adifferent community of arbitrators and legal practitioners.

It is essential to draw a firm distinction between Arbitrationand Mediation or Conciliation, which are both sometimescharacterized as forms of ADR (Alternative DisputeResolution). In countries where mediation is new or strugglingto be introduced as a concept, this association has given riseto the misleading impression that mediation is a form of non-

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binding arbitration, with the arbitrator proposing orsuggesting outcomes based on an assessment of the parties'rights. In fact, arbitration and mediation or conciliation arefundamentally different: the former is a binding determinationof legal rights, the latter two forms of dispute resolutioninvolve facilitated negotiation which aims at producing aconsensual settlement. The one leads to a bindingdetermination (arbitration), the other only in the event theparties agree to settle their dispute on mutually satisfactoryterms (mediation).

international litigation, transnational litigationInternational litigation (sometimes called "transnational

litigation") is the practice of litigation in connection withdisputes among businesses or individuals residing or based indifferent countries.

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INTERNATIONAL LITIGATION, CONFLICT OF LAWS

International litigation International litigation (sometimes called "transnational

litigation") is the practice of litigation in connection withdisputes among businesses or individuals residing or based indifferent countries.

The main difference between international litigation and domesticlitigation is that, in the former, certain issues are morelikely to be of significance — such as personal jurisdiction,service of process, evidence from abroad, and enforcement ofjudgments.

Jurisdiction (International litigation), Long arm jurisdictionLong arm jurisdiction is the statutory grant of jurisdiction to

local courts over out-of-state defendants. A long-arm statuteauthorizes a court in a state to exercise jurisdiction over anout-of-state defendant. Without a long arm statute, the courtsin a state might not have personal jurisdiction over an out-of-state defendant. The use of a long arm statute is usuallyconsidered constitutional where the defendant has certainminimum contacts with the forum state and there has beenreasonable notice of the action against that defendant.

Service of process (International litigation)In every lawsuit, the plaintiff must effect service of process

upon the defendant(s). In the international context, the issueof service of process is more complex.

In the local courts, service of process is routinely carried outby private lawyers or their agents. In contrast, many othercountries consider the activity of serving process in ajudicial proceeding to be one appropriate only for thegovernment or an arm of the government.

As a result of differing approaches to the issue of service ofprocess, several nations signed the Hague Service Convention(1965), under which each member nation is required to

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establish a Central Authority to receive, review, and executerequests from foreign courts for carrying out service ofprocess.

Most countries that are signatories to the Hague ServiceConvention will accept requests for service that are signed bythe lawyer for the plaintiff (claimant). Two exceptions arethe UK and Israel.

Any lawyer who ignores the international aspects of service ofprocess when suing a non-US defendant might find that theresulting judgment cannot be enforced where the defendants'assets are available.

Evidence (International litigation)In contrast to the domestic situation, when a party to an

international dispute needs to obtain evidence located in aforeign country, that party will usually need to make arequest of the local court for it (the court) to issue aLetter of Request pursuant to the Hague Evidence Convention.Under the HEC, each member state is required to designate aCentral Authority to receive, review, and carry out incomingrequests to obtain evidence from persons (or other entities)located in the receiving country.

Trial considerations (International litigation)Once a lawsuit proceeds past the discovery stage and is ready for

trial, the differences between domestic litigation andinternational litigation are much less pronounced. Dependingupon the language sophistication of the witnesses on behalf ofthe non-local party, it might be necessary to arrange for aninterpreter to translate trial testimony. Interpreters costmoney, which increases the costs of the trial.

Recognition and enforcement (International litigation)The Hague Convention on the Recognition and Enforcement of

Foreign Judgments in Civil and Commercial Matters is amultilateral treaty governing the enforcement of judgments

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entered by one nation's legal authorities in other signatorynations. It is one of a number of conventions in the area ofPrivate International Law of the Hague Conference on PrivateInternational Law in 1971.

Most states have enacted the Foreign Judgments RecognitionStatues which governs the recognition of non-local judgments.

As a general rule, grounds for non-recognition can be predicatedupon:

Lack of conclusiveness: if the judgment was rendered under a system which does notprovide impartial tribunals or procedures compatible with the requirements of dueprocess of law.

the foreign court did not have personal jurisdiction over the defendant. The foreign court did not have jurisdiction over the subject matter; The defendant in the proceedings in the foreign court did not receive notice of the

proceedings in sufficient time to enable him to defend; The judgment was obtained by fraud; The cause of action on which the judgment is based is repugnant to the public policy

of the state where enforcement is sought; The judgment conflicts with another final and conclusive judgment; The proceeding in the foreign court was contrary to an agreement between the

parties under which the dispute in question was to be settled otherwise than byproceedings in that court; or

In the case of jurisdiction based only on personal service, the foreign court was aseriously inconvenient forum for the trial of the action; or

The judgment seeks to enforce the revenue and taxation laws of a foreignjurisdiction.

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INTERNATIONAL ARBITRATION

Legal Framework for International ArbitrationThere are a number of elements that together provide an effective

and enforceable legal framework for international arbitration.They are the:

Arbitration Agreement or Clause Arbitration Conventions and Investment Treaties Arbitration Procedural Rules National Laws National Courts

Arbitration AgreementThe arbitration agreement or dispute resolution clause is the

foundation of international arbitration. It is based on theprinciple of party autonomy, i.e., parties have the right todecide how and where they wish to resolve their disputes andto provide for that in their contracts in a binding,enforceable manner. Given the flexibility of internationalarbitration, parties need to maximize their benefits whileminimizing their risks by carefully drafting their disputeresolution clauses.

principle of party autonomyAccording to this principle, the parties in an international

dispute have the right to decide how and where they wish toresolve their disputes and to provide for that in theircontracts in a binding, enforceable manner.

Arbitration Conventions and Investment TreatiesThere are a number of international conventions and treaties that

provide for the recognition and enforcement of arbitral awardsand the protection of investments. They are:

New York Convention

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The first and most important convention in the internationalarbitration world is the United Nations Convention on theRecognition and Enforcement of Foreign Arbitral Awards (“NewYork Convention”) that came into force in 1958. This is theprimary convention used to recognize, enforce, and challengeinternational arbitral awards. To access the benefits of thisconvention the seat of the arbitration should be in a countrythat is a signatory to the Convention and the counter-party(or its assets) against whom an agreement or award is to beenforced should be from a country that is a party to the NewYork Convention.646

Regional ConventionsThere are a number of regional conventions that replicate the

benefits of the New York Convention.One is the Inter-American Convention on International Commercial

Arbitration (“Panama Convention”) that came into force in1975. There are a total of 19 signatories, including the U.S.and many of the Latin American countries. In the U.S., thePanama Convention applies over the New York Convention if amajority of the signatories to the arbitration agreement arecitizens of states that have ratified the Panama Conventionand are members of the Organization of American States.

Other regional conventions include the Arab Convention onCommercial Arbitration (Amman, 1987), the European Convention(Geneva, 1961) and the Moscow Convention (1972).

Washington or ICSID ConventionThe Convention on the Settlement of Investment Disputes between

States and Nationals of Other States (“Washington Convention”or “ICSID Convention”) came into force in 1966. It providesfor the resolution of disputes between host States and foreigninvestors. The International Centre for the Settlement of

646 Current status of the NY Convention is available at: http://www.uncitral.org/.

pg. 479

http://www.uncitral.org/


Investment Disputes (“ICSID”), which is a branch of the WorldBank in Washington, D.C., administers this convention.

Contracting States Ratifying States are called “Contracting States” under the

Convention.647 Contracting States improve their investmentclimate through ratifying the ICSID Convention and investorsgain direct access to an effective forum that provides its ownenforcement mechanism.

ICSID provides facilities for arbitration or conciliation whereinvestors in foreign countries can have a fair hearing andaccess a self-enforcing mechanism for awards issued under theConvention. In order for this to work effectively, sovereigngovernments that are signatories to the Convention waive theirsovereign immunity from lawsuits and claims and their courtsare required to accept the awards without review. The realityis that ICSI D awards must still be enforced in local courts,which have sometimes ignored this requirement. To ensure thatthis waiver is treated properly, the Convention requires thatstrict conditions must be met before it can be invoked. Aninvestor initiating a claim under the provisions of ICSID mustsatisfy the. Secretariat of ICSID that the claim properlyfalls within its jurisdiction. In particular, three conditionsmust be fulfilled:

Parties must agree in their investment contract that disputes will be submitted toICSID arbitration.

The dispute must be between a Contracting State and a national of anotherContracting State.

The claim must be a legal dispute arising directly out of a qualified investment.

The issue of jurisdiction is disputed in many ICSID proceedingsby States that want to stop claims against them. Arguments toprevent jurisdiction include the nature of the dispute, thenature of the investment, whether the investor has exhaustedits local remedies, whether the dispute is with the State, the

647 15 Current status of the ICSI D Convention is available at: http://icsid.worldbank.org/ICSI D

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identity of the investor, and whether the State has consentedto jurisdiction. A Contracting State can notify ICSID that itchooses not to submit certain classes of disputes, such asdisputes dealing with natural resource investments, to ICSIDjurisdiction. Also consent by a constituent subdivision oragency of a Contracting State, such as a national oil company,requires the approval of that State unless the State notifiesICSID that no approval is required. It is therefore importantfor companies to obtain qualified legal advice prior to makinginvestments in foreign countries and negotiating hostgovernment agreements to access the benefits of the ICSIDConvention.

Advance consent by member states may be found in BITs and inmultilateral trade agreements such as the Energy CharterTreaty, the North American Free Trade Agreement (NAFTA), theCentral American Free Trade Agreement (CAFTA), the CartagenaFree Trade Agreement, and the Colonia Investment Protocol ofMercosur.

In addition, ICSID has its Additional Facility Rules for certaintypes of disputes falling outside the scope of the Convention.

Energy Charter TreatyThe Energy Charter Treaty (“ECT”)648 entered into force in April

1998. As its name implies, the ECT focuses on energyinvestments, in particular upstream and transit investments inEastern and Western Europe. It provides investment promotionand protection, including prohibitions on expropriation, anddispute resolution mechanisms for those investments. There are51 member states in addition to the European Community, 47 ofwhom have ratified the treaty. There are 23 observer statesand 10 international observer organizations (NGOs). Observerstates include the United States, Canada and China. Russiawithdrew provisional application of its member statuseffective 20 October 2009. The ECT provides for provisional

648 See http://www.encharter.org for more details.

pg. 481


application of the ECT to signatories even if not yet ratifiedby the State. The protections of the ECT continue for 20 yearsafter the effective date of withdrawal from ECT forinvestments existing at the time of withdrawal. The ECT allowsstates to elect in advance to deny the advantages ofinvestment protections from certain individuals, such asmailbox companies.

The ECT provides dispute resolution mechanisms for disputesbetween parties to the treaty (i.e., States), transitdisputes, trade disputes, competition and environmentaldisputes, and disputes between investors and host governments.

An investor can choose to arbitrate its dispute in any of thefollowing fora:

ICSID if the Contracting Party and the Investor’s state are both parties to theWashington Convention

ICSID under the Additional Facility Rules if one state is a party to the WashingtonConvention

Ad hoc arbitration under the UNCITRAL Rules Arbitration Institute of the Stockholm Chamber of Commerce (SCC) under its rules.

Unless a State has previously elected so, there is no “fork inthe road” provision that would prevent an investor frompursuing an action under the ECT after attempting redress inanother forum.

Bilateral Investment TreatiesBilateral Investment Treaties (“BITs”) are treaties between two

countries designed to encourage and protect investmentsbetween the two countries.

The first BIT was signed between Germany and Pakistan more than50 years ago. There are now more than 2,500 BITs and growing.A BIT would usually contain provisions for:

No direct or indirect expropriation Fair and equitable treatment of investments Most favored nation status

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Investors may be able to take advantage of terms in BITs betweenthe host state where it is making its investment and othercountries either when the other BIT is more favorable thanthose in the

BIT between the state and the investor’s originating country orwhen the investor’s originating country does not have a BITwith the host state.

An investor accomplishes this by incorporating its investmentcompany and carrying out its business through the other Statewith the more favorable BIT. Criteria for qualifying as aninvestor vary from one BIT to another, so qualified legaladvice is needed in structuring such investments.

A BIT may contain a “fork in the road” provision for initiatingdisputes, i.e., the investor must choose either litigation inthe local courts, arbitration under the contract, orarbitration of its treaty claims through ICSID or itsadditional facilities.

An election to follow a certain path will prevent followinganother path later on; i.e., choosing to arbitrate under thecontract will constitute an election not to proceed under theBIT at ICSID. This provision is found in the standard formU.S. BIT.

Multilateral Trade Agreements There are a number of multilateral trade agreements including

NAFTA and CAFTA. Both agreements contain provisions requiringthe signatory States to encourage international commercialarbitration and arbitration provisions for state to statedisputes and investor-state disputes.

Arbitration Procedural RulesAll arbitrations are subject to the procedural rules of the lex

arbitri, i.e., the arbitration laws of the place of arbitration.However, those rules tend to be broad and non-specific.Therefore the parties need to agree upon a detailed set of

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procedural rules to conduct their arbitration. They havebasically two choices—ad hoc or institutional arbitration. Anad hoc arbitration is one that is conducted pursuant to rulesagreed by the parties or determined by the arbitrationtribunal. An institutional arbitration is one that isconducted using the rules of a specialized arbitrationinstitution and which is administered by that institution.

In addition to the arbitration procedural rules, parties oftenneed to agree upon more detailed evidentiary rules in large,complex arbitrations.

The most well known and used rules are the IBA Rules on theTaking of Evidence in International Arbitration649 and for moreguidance on the production of documents and exchange ofinformation the ICDR Guidelines for Arbitrators ConcerningExchanges of Information650 are being increasingly relied upon.Parties can agree upon these additional evidentiary ruleseither in their dispute resolution clause or in the proceduralorder issued by the tribunal at the beginning of thearbitration.

National LawsThe national laws of a country implement the rights and

obligations of the arbitral conventions and treaties describedabove. They provide the enforcement mechanisms for arbitrationagreements and awards, along with filling in the gaps inparties’ arbitration agreements or dispute resolution clauses.In addition, national laws govern the nullification or settingaside of awards rendered in a country and the waiver ofsovereign immunity.

649 I BA Rules on the Taking of Evidence in International Arbitration (International Bar Association) adopted by a resolution of the IBA Council on 29 May 2010. Available at http://www.ibanet.org.

650 I CDR Guidelines for Arbitrators Concerning Exchanges of Information (International Centre forDispute Resolution, the international arm of the American Arbitration Association). Effective 1June 2008. Available at http://www.adr.org.

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Most countries have laws that deal with both domestic andinternational arbitration, including how their courtsrecognize, deal with challenges of and enforce arbitralawards. Many countries have adopted, either entirely orsubstantially, the UNCITRAL Model Law on InternationalCommercial Arbitration as their law dealing with internationalarbitration.651 The United States and the United Kingdom areexceptions with their respective U.S. Federal Arbitration Actand English Arbitration Act, 1996.652

National CourtsThe national courts provide the muscle to enforce arbitration

agreements and awards. They also provide orders in aid ofarbitration, such as interim relief and measures to preserveevidence, documentary disclosure and the attendance ofwitnesses. Courts ensure procedural due process and thefundamental fairness of arbitral proceedings.

Courts can also stymie, derail, and undo the arbitral process,which emphasizes the importance in selecting the seat of thearbitration since it is those courts that will either supportor obstruct the arbitration.

Arbitration provides finality in the resolution of aninternational dispute. But that means it is not appealable onmistakes of law or fact, and can only be challenged in verylimited circumstances.

All of this reinforces the need to draft the dispute resolutionclause properly.

651 See http://www.uncitral.org/uncitral/en/uncitral_texts/arbitration.html for more details.

652 See http://www.legislation.gov.uk/ukpga/1996/23/contents for more details.

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NATIONAL DISPUTE RESOLUTION INSTITUTIONS

ombudsman, public advocate , Inspector General, CitizenAdvocate, Children's Ombudsman and Information Commissioner,Parliamentary Commissioner

An ombudsman or public advocate is usually appointed by thegovernment or by parliament, but with a significant degree ofindependence, who is charged with representing the interestsof the public by investigating and addressing complaints ofmaladministration or a violation of rights. In some countriesan Inspector General, Citizen Advocate or other official mayhave duties similar to those of a national ombudsman, and mayalso be appointed by a legislature. Below the national levelan ombudsman may be appointed by a state, local or municipalgovernment. Unofficial ombudsmen may be appointed by, or evenwork for, a corporation such as a utility supplier, newspaper,NGO, or professional regulatory body.

The typical duties of an ombudsman are to investigate complaintsand attempt to resolve them, usually through recommendations(binding or not) or mediation. Ombudsmen sometimes also aim toidentify systematic issues leading to poor service or breachesof people's rights. At the national level, most ombudsmen havea wide mandate to deal with the entire public sector, andsometimes also elements of the private sector (for example,contracted service providers). In some cases, there is a morerestricted mandate, for example with particular sectors ofsociety. More recent developments have included the creationof specialized Children's Ombudsman and InformationCommissioner agencies.

In some jurisdictions an ombudsman charged with handling concernsabout national government is more formally referred to as the"Parliamentary Commissioner" (e.g. the United KingdomParliamentary Commissioner for Administration, and the WesternAustralian state Ombudsman). In many countries where theombudsman's responsibility includes protecting human rights,the ombudsman is recognized as the national human rights

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institution. The post of ombudsman had by the end of the 20thcentury been instituted by most governments and by someintergovernmental organizations such as the European Union.

tribunal A tribunal in the general sense is any person or institution with

the authority to judge, adjudicate on, or determine claims ordisputes—whether or not it is called a tribunal in its title.For example, an advocate appearing before a court on which asingle judge was sitting could describe that judge as 'theirtribunal'. Many governmental bodies that are titled'tribunals' are so described to emphasize that they are notcourts of normal jurisdiction. For example, the InternationalCriminal Tribunal for Rwanda is a body specially constitutedunder international law; in Great Britain, employmenttribunals are bodies set up to hear specific employmentdisputes. Private judicial bodies are also often styled'tribunals'. The word tribunal is not conclusive of a body'sfunction. For example, in Great Britain, the Employment AppealTribunal is a superior court of record.

The term is derived from the tribunes, magistrates of theClassical Roman Republic. "Tribunal" originally referred tothe office of the tribunes, and the term is still sometimesused in this sense in historical writings.

court A court is a tribunal, often a governmental institution, with the

authority to adjudicate legal disputes between parties andcarry out the administration of justice in civil, criminal,and administrative matters in accordance with the rule of law.In both common law and civil law legal systems, courts are thecentral means for dispute resolution, and it is generallyunderstood that all persons have an ability to bring theirclaims before a court. Similarly, the rights of those accusedof a crime include the right to present a defense before acourt.

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The system of courts that interprets and applies the law iscollectively known as the judiciary. The place where a courtsits is known as a venue. The room where court proceedingsoccur is known as a courtroom, and the building as acourthouse; court facilities range from simple and very smallfacilities in rural communities to large buildings in cities.

The practical authority given to the court is known as itsjurisdiction (Latin jus dicere) – the court's power to decidecertain kinds of questions or petitions put to it. Accordingto William Blackstone's Commentaries on the Laws of England, acourt is constituted by a minimum of three parties: the actoror plaintiff, who complains of an injury done; the reus ordefendant, who is called upon to make satisfaction for it, andthe judex or judicial power, which is to examine the truth ofthe fact, to determine the law arising upon that fact, and, ifany injury appears to have been done, to ascertain and by itsofficers to apply a legal remedy. It is also usual in thesuperior courts to have attorneys, and advocates or counsel,as assistants, though, often, courts consist of additionalattorneys, bailiffs, reporters, and perhaps a jury.

The term "the court" is also used to refer to the presidingofficer or officials, usually one or more judges. The judge orpanel of judges may also be collectively referred to as "thebench" (in contrast to attorneys and barristers, collectivelyreferred to as "the bar"). In the United States, and othercommon law jurisdictions, the term "court" (in the case ofU.S. federal courts) by law is used to describe the judgehimself or herself.

In the United States, the legal authority of a court to takeaction is based on personal jurisdiction, subject-matterjurisdiction, and venue over the parties to the litigation.

administrative review boardsReview of administrative decisions refers to a method where

courts review decisions made by the administrative agencies

pg. 488


authorized to enforce legislative mandates. Any potentialparty affected by the decision of an administrative agency canpetition for a review. However, a court that reviews decisionof an administrative agency gives a decision most favorable tothe agency. If the agency’s decision is reasonable accordingto the evidence provided or if the evidence supports thedecision, then the court will confirm the decision of theagency. An Administrative Law Judge (ALJ) is an official whopresides at an administrative hearing to resolve disputesbetween a government agency and someone affected by a decisionor action of that agency.

Generally, decisions made by an Administrative Law Judge (ALJ)can be reviewed by the filing of a request for review. When anALJ renders a decision called an administrative order, it maybe reviewed by either a higher level within the agency or by acourt. A person denied claim by an ALJ must "exhaust his/heradministrative remedies" (take every step, including appeals)with the agency and its system before the administrativeruling may be appealed by a lawsuit in court. Parties canpetition to the circuit court if there is an order by theagency that is not final and which decides rights andliabilities; which has legal consequences that followimmediately after the order; and waiting for a final decisionwhich might result in an irreparable harm, damage or loss.

A person who files a petition against the agency decision iscalled the petitioner. A petitioner has to file a petitionwithin 30 days after the agency decision, the date agency sentnotice of its decision or date when the notice of agencydecision was received whichever is earlier. Petitions can befiled in a circuit court for the county where the petitionerresides or carries on his business. Filing fees are waived bythe court for people who are unable to pay. At the time offiling, advance filing fees must be paid unless it is anappeal from certain specific departments.

Center for Alternative Dispute Resolution

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The Center for Alternative Dispute Resolution works withorganizations and individuals to increase the knowledge,quality, and use of alternative dispute resolution (ADR). TheCenter serves as an information resource to both DOT ADRproviders and users. ADR is designed to assist parties inresolving differences. These processes involve a third partyneutral and are typically voluntary. ADR does not replace moretraditional dispute resolution mechanisms but merely offers analternative. If an ADR process does not resolve a conflict,you retain all rights to pursue more traditional approaches.

The Center offers awareness and skill-based training workshops ona variety of topics. The Center partners with the Office ofthe Dispute Resolution Specialist at the Department of Healthand Human Services to offer this training. Working together,we offer a variety of courses, instructors, and coaches to ouremployees and provide them with opportunities to learn in adiverse environment and to recognize that the issues they faceoccur in a variety of organizational settings.

arbitral tribunal, arbitration tribunal An arbitral tribunal (or arbitration tribunal) is a panel of one

or more adjudicators which is convened and sits to resolve adispute by way of arbitration. The tribunal may consist of asole arbitrator, or there may be two or more arbitrators,which might include either a chairman or an umpire. Theparties to a dispute are usually free to agree the number andcomposition of the arbitral tribunal. In some legal systems,an arbitration clause which provides for two (or any othereven number) of arbitrators is understood to imply that theappointed arbitrators will select an additional arbitrator asa chairman of the tribunal, to avoid deadlock arising.Different legal systems differ as to how many arbitratorsshould constitute the tribunal if there is no agreement.

Arbitral tribunals are usually constituted (appointed) in twotypes of proceedings:

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ad hoc arbitration proceedings institutional arbitration proceedings

ad hoc arbitration proceedingsAd hoc arbitration proceedings are those in which the arbitrators

are appointed by the parties without a supervisinginstitution, relying instead on the procedural law and courtsof the place of arbitration to resolve any differences overthe appointment, replacement, or authority of any or all ofthe arbitrators; and

institutional arbitration proceedings , Permanent tribunals Institutional arbitration proceedings are those in which the

arbitrators are appointed under the supervision ofprofessional bodies providing arbitration services, such asthe American Arbitration Association (which conductsinternational proceedings through its New York-based division,the ICDR), the LCIA in London or the ICC in Paris. Althoughthese institutions (and many others) are headquartered intheir respective cities, they are capable of supervising theappointment of arbitral tribunals in nearly any country,avoiding the need for the parties to involve local courts andprocedures in the event of disagreement over the appointment,replacement, or authority of any or all of the arbitrators.

Permanent tribunals tend to have their own rules and procedures,and tend to be much more formal. They also tend to be moreexpensive, and, for procedural reasons, slower.

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INTERNATIONAL DISPUTE RESOLUTION INSTITUTIONS

international judicial institutionsInternational judicial institutions can be divided into courts,

arbitral tribunals and quasi-judicial institutions. Courts arepermanent bodies, with near the same composition for eachcase. Arbitral tribunals, by contrast, are constituted anewfor each case. Both courts and arbitral tribunals can makebinding decisions. Quasi-judicial institutions, by contrast,make rulings on cases, but these rulings are not in themselveslegally binding; the main example is the individual complaintsmechanisms available under the various UN human rightstreaties.

Institutions can also be divided into global and regionalinstitutions.

International courts International Court of Justice International Tribunal for the Law of the Sea International Criminal Tribunal for the Former Yugoslavia International Criminal Tribunal for Rwanda International Criminal Court International Military Tribunal (Defunct) International Military Tribunal for the Far East (Defunct) International Prize Court (Never established) Permanent Court of International Justice (Defunct. Replaced by the International

Court of Justice)

International arbitral tribunals Permanent Court of Arbitration WTO Appelate Body WTO Dispute Settlement Panels NAFTA Dispute Settlement Panels International Centre for the Settlement of Investment Disputes Court of Arbitration for Sport

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OSCE Court of Conciliation and Arbitration

Quasi-judicial international institutions Human Rights Committee Committee on the Elimination of Racial Discrimination Committee on the Elimination of Discrimination Against Women Committee on Economic, Social and Cultural Rights Committee on the Rights of the Child Committee Against Torture Committee on Migrant Workers Committee on the Rights of Persons with Disabilities

international dispute resolution institutions Three of the most well known and frequently used international

dispute resolution institutions, the International Chamber ofCommerce (ICC), the London Court of International Arbitration(LCIA), and the International Centre for Dispute Resolution(ICDR), which is the international division of the AmericanArbitration Association, only administer about 100 mediationsa year compared to over 1,800 arbitrations registered per yearat all three institutions.

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Dispute Resolution Mechanisms in Administrative LawHOLDING GOVERNMENT ACCOUNTABLE (JUDICIAL REVIEW)

Judicial ReviewJudicial review is the doctrine under which legislative and

executive actions are subject to review by the judiciary. Acourt with judicial review power may invalidate laws anddecisions that are incompatible with a higher authority, suchas the terms of a written constitution. Judicial review is oneof the checks and balances in the separation of powers: thepower of the judiciary to supervise the legislative andexecutive branches. The doctrine varies between jurisdictions,so the procedure and scope of judicial review may differbetween and within countries. Judicial review is considered akey check on the powers of the other two branches ofgovernment by the judiciary, although the power itself is notgranted by the Constitution.653

Judicial review of administrative actsMost modern legal systems allow the courts to review

administrative acts (individual decisions of a public body,such as a decision to grant a subsidy or to withdraw aresidence permit). In most systems, this also includes reviewof secondary legislation (legally-enforceable rules of generalapplicability adopted by administrative bodies). Somecountries (notably France and Germany) have implemented asystem of administrative courts which are charged withresolving disputes between members of the public and theadministration. In other countries (including the UnitedStates, Scotland and the Netherlands), judicial review iscarried out by regular civil courts although it may bedelegated to specialized panels within these courts (such asthe Administrative Court within the High Court of England andWales). The United States employs a mixed system in which someadministrative decisions are reviewed by the United States

653 Montesquieu, Baron Charles de, The Spirit of Laws

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district courts (which are the general trial courts), some arereviewed directly by the United States courts of appeals andothers are reviewed by specialized tribunals such as theUnited States Court of Appeals for Veterans Claims (which,despite its name, is not technically part of the federaljudicial branch). It is quite common that before a request forjudicial review of an administrative act is filed with acourt, certain preliminary conditions (such as a complaint tothe authority itself) must be fulfilled. In most countries,the courts apply special procedures in administrative cases.

Judicial review of primary legislationThere are three broad approaches to judicial review of the

constitutionality of primary legislation—that is, laws passeddirectly by an elected legislature. Some countries do notpermit a review of the validity of primary legislation. In theUnited Kingdom, statutes cannot be set aside under thedoctrine of parliamentary sovereignty. Another example is theNetherlands, where the constitution expressly forbids thecourts to rule on the question of constitutionality of primarylegislation.

public interest principleWhether public officials are liable for their actions is an

important issue at every level of government service, from thePresident to a local water board terminating service todelinquent customers, the issues are very similar. In eachcase, the guiding principle is the same: The public interestin shielding officials from litigation and personal financialliability, for damages caused by their actions while carryingout public business, outweighs the potential harm of thoseactions.

Selective enforcement Selective enforcement is the ability that executors of the law

(such as police officers or administrative agencies, in somecases) have to arbitrarily select choice individuals as being

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outside of the law. The use of enforcement discretion in anarbitrary way is referred to as selective enforcement orselective prosecution.

Historically, selective enforcement is recognized as a sign oftyranny, and an abuse of power, because it violates rule oflaw, allowing men to apply justice only when they choose.Aside from this being inherently unjust, it almost inevitablymust lead to favoritism and extortion, with those empowered tochoose being able to help their friends, take bribes, andthreaten those from whom they desire favors.

Selective enforcement Selective enforcement is the ability that executors of the law

(such as police officers or administrative agencies, in somecases) have to arbitrarily select choice individuals as beingoutside of the law. The use of enforcement discretion in anarbitrary way is referred to as selective enforcement orselective prosecution.

Historically, selective enforcement is recognized as a sign oftyranny, and an abuse of power, because it violates rule oflaw, allowing men to apply justice only when they choose.Aside from this being inherently unjust, it almost inevitablymust lead to favoritism and extortion, with those empowered tochoose being able to help their friends, take bribes, andthreaten those from whom they desire favors.

Arbitrary and capricious In administrative law, a government agency's resolution of a

question of fact, when decided pursuant to an informalrulemaking under the Administrative Procedure Act (APA), isreviewed on the arbitrary and capricious standard. Arbitraryand capricious is a legal ruling wherein an appellate courtdetermines that a previous ruling is invalid because it wasmade on unreasonable grounds or without any properconsideration of circumstances. This is an extremelydeferential standard.

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Abuse of discretionWhere a lower court has made a discretionary ruling (such as

whether to allow a party claiming a hardship to file a briefafter the deadline), that decision will be reviewed for abuseof discretion. It will not be reversed unless the decision is"plain error". One consideration is whether "unpreserved"error exists—that is, mistakes made by the lower court thatwere not objected to as the law requires. In such a case, theappellate court may still choose to look at the lower court'smistake even though there was no objection, if the appellatecourt determines that the error was evident, obvious, andclear and materially prejudiced a substantial right, meaningthat it was likely that the mistake affected the outcome ofthe case below in a significant way.

In federal court, if a party commits forfeiture of error, e.g. byfailing to raise a timely objection, then on appeal, theburden of proof is on that party to show that plain erroroccurred. If the party did raise a timely objection that wasoverruled, then on appeal, the burden of proof is on the otherparty to show that the error was harmless error. This approachis dictated by Federal Rule of Criminal Procedure 52, whichholds, "[a]ny error, defect, irregularity, or variance thatdoes not affect substantial rights must be disregarded, [whilea] plain error that affects substantial rights may beconsidered even though it was not brought to the court'sattention." The appellate court has discretion as to whetheror not to correct plain error. Usually the court will notcorrect it unless it led to a brazen miscarriage of justice.

Arbitrary and capricious In administrative law, a government agency's resolution of a

question of fact, when decided pursuant to an informalrulemaking under the Administrative Procedure Act (APA), isreviewed on the arbitrary and capricious standard. Arbitraryand capricious is a legal ruling wherein an appellate courtdetermines that a previous ruling is invalid because it was

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made on unreasonable grounds or without any properconsideration of circumstances. This is an extremelydeferential standard.

Abuse of discretionWhere a lower court has made a discretionary ruling (such as

whether to allow a party claiming a hardship to file a briefafter the deadline), that decision will be reviewed for abuseof discretion. It will not be reversed unless the decision is"plain error". One consideration is whether "unpreserved"error exists—that is, mistakes made by the lower court thatwere not objected to as the law requires. In such a case, theappellate court may still choose to look at the lower court'smistake even though there was no objection, if the appellatecourt determines that the error was evident, obvious, andclear and materially prejudiced a substantial right, meaningthat it was likely that the mistake affected the outcome ofthe case below in a significant way.

In federal court, if a party commits forfeiture of error, e.g. byfailing to raise a timely objection, then on appeal, theburden of proof is on that party to show that plain erroroccurred. If the party did raise a timely objection that wasoverruled, then on appeal, the burden of proof is on the otherparty to show that the error was harmless error. This approachis dictated by Federal Rule of Criminal Procedure 52, whichholds, "[a]ny error, defect, irregularity, or variance thatdoes not affect substantial rights must be disregarded, [whilea] plain error that affects substantial rights may beconsidered even though it was not brought to the court'sattention." The appellate court has discretion as to whetheror not to correct plain error. Usually the court will notcorrect it unless it led to a brazen miscarriage of justice

efficiency principle These persons are covered under public official immunity on the

principle of efficiency, so that they are not hesitant to take

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action, given their broad base of discretionary actions. Thiscan be traced to Ronald Coase’s efficiency theorem on economicanalysis of law, which argues that the role of law ought to beguided by the most efficient654 solution.

procedural justice Procedural justice refers to the idea of fairness in the

processes that resolves disputes and allocates resources. Oneaspect of procedural justice is related to discussions of theadministration of justice and legal proceedings. This sense ofprocedural justice is connected to due process (U.S.),fundamental justice (Canada), procedural fairness (Australia)and natural justice (other Common law jurisdictions), but theidea of procedural justice can also be applied to non-legalcontexts in which some process is employed to resolve conflictor divide benefits or burdens.655

Procedural justice concerns the fairness and the transparency ofthe processes by which decisions are made, and may becontrasted with distributive justice (fairness in thedistribution of rights or resources), and retributive justice(fairness in the punishment of wrongs). Hearing all partiesbefore a decision is made is one step which would beconsidered appropriate to be taken in order that a process maythen be characterised as procedurally fair. Some theories ofprocedural justice hold that fair procedure leads to equitableoutcomes, even if the requirements of distributive orrestorative justice are not met.656

administrative summonsThese are summons issued by administrative agencies. For

instance, the revenue authority may summon a tax payer. The654 Coase, The Problem of Social Cost, 386–405655 Rawls, A Theory of Justice, revised edition, Oxford: Oxford University

Press 1999 Chapter II, Section 14656 Robert Bone, Agreeing to Fair Process: The Problem with Contractarian

Theories of Procedural Fairness, 83 Boston University Law Review 485 (2003).

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person summoned may be required to produce books, papers,records, or other data, and to give testimony under oath. Thesummons may be enforced by a court order, and the law providesa criminal penalty of up to one year in prison or a fine, orboth, for failure to obey the summons, except that the personsummoned may, to the extent applicable, assert a privilegeagainst self incrimination or other evidentiary privileges, ifapplicable.

administrative subpoena An administrative subpoena is a subpoena issued by an executive

agency without prior judicial oversight.657 Administrativesubpoenas have most commonly been issued by the Offices of theInspector General of various federal agencies.658

administrative hearing Although administrative hearings are not ordinarily considered

trials, they retain many elements found in more ‘formal’ trialsettings. When the dispute goes to judicial setting, it iscalled an administrative trial, to review the administrativehearing, depending on the jurisdiction. The types of disputeshandled in these hearings is governed by administrative lawand auxiliarily by the civil trial law.

administrative hearing or administrative trialAlthough administrative hearings are not ordinarily considered

trials, they retain many elements found in more "formal" trialsettings. When the dispute goes to judicial setting, it iscalled an administrative trial, to revise the administrativehearing, depending on the jurisdiction. The types of disputeshandled in these hearings is governed by administrative lawand auxiliarily by the civil trial law.

657 Sklaire, Michael R. (December 2005). "Administrative Subpoenas Blur the Line between Civiland Criminal Enforcement". Legal Opinion Letter (Washington Legal Foundation) 15 (23).

658 Doyle, Charles (2005-04-15). "Administrative Subpoenas and National Security Letters inCriminal and Foreign Intelligence Investigations: Background and Proposed Adjustments". CRSReport for Congress. Congressional Research Service. Retrieved August 29, 2012.

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breach of rules of natural justiceThe rules of natural justice require that the decision maker

approaches the decision making process with 'fairness'659. Whatis fair in relation to a particular case may differ. Below aresome examples of what the rules of natural justice require:

writ of mandamus or mandamusWrit of mandamus or mandamus (which means ‘we command’ in Latin;

or sometimes mandate, is the name of one of the prerogativewrits in the common law, and is ‘issued by a superior court tocompel a lower court or a government officer to performmandatory or purely ministerial duties correctly.’ Mandamus isa judicial remedy which is in the form of an order from asuperior court to any government subordinate court,corporation or public authority to do or forbear from doingsome specific act which that body is obliged under law to door refrain from doing, as the case may be, and which is in thenature of public duty and in certain cases of a statutoryduty.660 It cannot be issued to compel an authority to dosomething against statutory provision.

There are three kinds of mandamus:alternative mandamusA mandamus issued upon the first application for relief,

commanding the defendant either to perform the act demanded orto appear before the court at a specified time to show causefor not performing it.

peremptory mandamusAn absolute and unqualified command to the defendant to do the

act in question. It is issued when the defendant defaults on,

659 see J, Rawls, ‘A Theory Of Justice’ (Oxford Unveirsity Press, 1966) pp 235.

660 A.T. Markose: Judicial Control of Administrative Action in India, p.364.

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or fails to show sufficient cause in answer to, an alternativemandamus.661

continuing mandamusA Mandamus issued to a lower authority in general public interest

asking the officer or the authority to perform its tasksexpeditiously for an unstipulated period of time forpreventing miscarriage of justice.662

ouster clause, finality clause, no certiorari clause, shall notbe questioned clause, as if enacted clause, conclusiveevidence clause

An ouster clause is a provision in legislation excludingparticular actions from judicial review. They exist in theform of ‘finality clause’, ‘no certiorari clause’, ‘shall notbe questioned clause’, ‘as if enacted clause’, and ‘conclusiveevidence clause’.

These are attempts by the legislature to protect or immunizeexecutive decisions from any challenge in court by theenactment of what is generally called "privative clauses". Theattempt continues notwithstanding the decisions that suchclauses do not completely exclude judicial review of decisionsthat are made in error of jurisdiction or in breach of naturaljustice. A typical ouster clause would say that the decision"shall not be called in question in any court of law" oralternatively that "no court shall have jurisdiction toentertain or determine any application, question orproceedings in whatever form on any ground".

A passive approach to ouster clauses, in the face of importantexecutive decisions they invariably seek to protect, isunjustifiable. A robust approach is called for in fullappreciation of the proper role of the courts.

661 RK Choudhary's Law of Writs; Mandamus.662 Vineet Narain v. Union of India, AIR 1996 SC 3386.

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Notwithstanding the wide and strong language in which theseclauses have been expressed, the courts have traditionallyrefused to recognise that they protect manifest jurisdictionalerrors or ultra vires acts. The approach of the Kenyan courts isto refuse to give literal effect to an exclusion clause evenif it seeks to protect a decision that is based on grounds,which are absurd or perverse or mala fide, or is a whollyextraneous and irrelevant ground, the decision has been heldto be impugnable.

Further, decision in error of jurisdiction is not a real decisionand therefore not protected by the ouster clause. Also, thecourts are slowly adopting a Rights Based Approach (RBA), byusing fundamental rights as the basis for their decisions;inferring strong judicial presumptions; and requiring theadministrative bodies to justify to a greater extent theirdiscretionary powers and the use thereof. The courts alsoarticulate principles of good governance; relevance ofdecisions; openness of institutions; rationality; legality;procedural propriety; participation; legal certainty andproportionality and for accountability of the government. Ininferring the above, the court justifies its actions using theprinciples of separation of powers, which gives the power ofjudicial decision making to the courts alone, the ‘rule oflaw’ principle and the Human Rights Act (in our case, thefundamental rights).

Also, in refusing to accept ouster clauses, the courts infer andapply the irrefutable presumption of parliamentary intent,which intent is derived from constitutional theory andpractice (the source of separation of powers doctrine) andfrom judicial practice663. The courts hence conclude thatparliament intend that questions of law be determined by thecourts.

In addition to the above ouster clauses, it is important to notethat there are also exclusions of the court to hear judicial

663 KenyaAairways V. Kenya Airline Pilots Asociation, Misc. Appl No. 254 of 2001

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review applications by virtue of statutory intervention, butgenerally, the right of appeal is both statutory and alsoinherent as a right of the courts.664

duty to give reasonsA duty to give reasons may be imposed by statute. Where it is

not, Common Law presumptions may imply such a duty and thecourts do so particularly with regard to judicial and quasi-judicial decisions. It also helps to guarantee objectivity andimpartiality by ensuring human dignity is respected sincethere has to be a reason why one is being treated in a givenway.

three principles of administrative law Administrative law follows three basic principles.1) Principle of the legality of the authority, which means that there is no acting against

the law and no acting without a law.

2) Principle of legal security, which includes a principle of legal certainty and theprinciple of nonretroactivity

3) Principle of proportionality, which says that an act of an authority has to besuitable, necessary and appropriate665

The administrative law in Germany can be divided into three mainparts, which are constitutional law, general administrativelaw and special administrative law.

legitimate expectation Legitimate expectation arises from administrative law, a branch

of public law. In proceedings for judicial review, it appliesthe principles of fairness and reasonableness to the situationwhere a person has an expectation or interest in a public bodyretaining a long-standing practice or keeping a promise.

The traditional constraint on a public body has been the test ofirrationality, also known as Wednesbury unreasonableness following

664 The constitution of Kenya, section 60,64, and 67. 665 Oberath, öffentliches Wirtschaftsrecht p. 12-14

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Associated Provincial Picture Houses Ltd v. Wednesbury Corp666 which statedthat a decision would be unreasonable if, ‘. . .no reasonable authoritycould ever have come to it’ (per Lord Greene). But if the courts areto establish a justification for a more interventionistapproach, irrationality will always be defeated if theparticular decision has sufficient qualities ofreasonableness, i.e. it should never be irrational to preferthe good of the many to the interests of the few.

The doctrine of legitimate expectation addresses circumstances inwhich a decision maker may have operated a practice or made apromise that raised expectations that it would be unfair orunreasonable to dishonor.667 The doctrine has developed both inthe context of reasonableness and in the context of naturaljustice. Whether a legitimate expectation has arisen (andwhether it can be overridden) will depend on a number offactors.

و Whether the words or conduct which gave rise to the expectation were clear andunequivocal,

و Whether the person who promised the benefit had the legal power to grant it (orwhether he was acting ultra vires), and;

و Whether the recipient of the promise took action in reliance upon it to theirdetriment.

irrebutable presumption of parliamentary intentIn refusing to accept ‘ouster clauses’, the courts infer and

apply the irrebutible presumption of parliamentary intent,which intent is derived from constitutional theory andpractice (the source of seperation of powers doctrine) andfrom judicial practice668. The courts hence conclude that

666 1 KB 223667 h.l.a hart’”the concept of law” (clarendon press, 1961) pp 156668 KenyaAairways V. Kenya Airline Pilots Asociation, Misc. Appl No. 254 of 2001

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parliament intend that questions of law be determined by thecourts.

consistencyThe principle states that a public body shall follow its own

policies and a departure from the same must be accompanied byrequisite explanations and reasons as of right. This isbuttressed by the principle of legitimate expectations and itsmain function is hence to encourage the need for consultationand notice whenever a decision is being carried out. This needfor consultation is enshrined in the “Rights Based Approach”to decision making which is guided by the fact that there areparticipatory rights that must be accorded to the people thatshall be affected by the decision and this is usually donethrough the ‘notice-comment’ structure.

non-delegation Doctrine of nondelegation describes the theory that one branch of

government must not authorize another entity to exercise thepower or function which it is constitutionally authorized toexercise itself. It is explicit or implicit in all writtenconstitutions that impose a strict structural separation ofpowers. It is usually applied in questions of constitutionallyimproper delegations of powers of any of the three branches ofgovernment to either of the other, to the administrativestate, or to private entities. Although it is usuallyconstitutional for executive officials to delegate executivepowers to executive branch subordinates, there can also beimproper delegations of powers within an executive branch.

intelligible principle to guide the executive branch: ‘'In determining what Congress may

do in seeking assistance from another branch, the extent andcharacter of that assistance must be fixed according to commonsense and the inherent necessities of the government co-ordination.' So long as Congress 'shall lay down bylegislative act an intelligible principle to which the person

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or body authorized to [exercise the delegated authority] isdirected to conform, such legislative action is not aforbidden delegation of legislative power.'‘669

natural justice Natural justice is a term of art that denotes specific procedural

rights in the English legal system and the systems of othernations based on it. Whilst the term natural justice is oftenretained as a general concept, it has largely been replacedand extended by the more general ‘duty to act fairly’. What isrequired to fulfil this duty depends on the context in whichthe matter arises. There are two rules that natural justice isconcerned with. These are the rule against bias (nemo iudex incausa sua) and the right to a fair hearing (audi alteram partem).

right to a fair hearing The right to a fair hearing requires that individuals should not

be penalized by decisions affecting their rights or legitimateexpectations unless they have been given prior notice of thecase, a fair opportunity to answer it, and the opportunity topresent their own case. Natural justice is identified with thetwo constituents of a fair hearing, 670which are the ruleagainst bias (nemo iudex in causa sua, or ‘no man a judge in hisown cause’), and the right to a fair hearing (audi alteram partem,or ‘hear the other side’). 671

opportunity to be heardEvery person has the right to have a hearing and be allowed to

present his or her own case.672 Should a person not attend the669 Mistretta v. United States (1989), citing J.W. Hampton, Jr., & Co. v. United States, 276 U.S.

394, 406, 48 S.Ct. 348, 351(1928)670 De Smith's Judicial Review, p. 322671 David Phillip Jones; Anne S. de Villars (2009), ‘Natural Justice and the

Duty to be Fair’, Principles of Administrative Law (5th ed.), Carswell, pp. 208–223at 209, ISBN 978-0779-821-26-6.

672 Kioa, p. 582: ‘It is a fundamental rule of the common law doctrine of natural justice expressed in traditional terms that, generally speaking, when an order is to be made which will deprive a person of some right or

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hearing, even with adequate notice given, the adjudicator hasthe discretion to decide if the hearing should proceed. InRidge v. Baldwin, a chief constable succeeded in having hisdismissal from service declared void as he had not been giventhe opportunity to make a defence. In another case, ChiefConstable of the North Wales Police v. Evans,673 a chief constable requireda police probationer to resign on account of allegations abouthis private life which he was given no fair opportunity torebut. The House of Lords found the dismissal to be unlawful.Likewise in Surinder Singh Kanda v. Government of the Federation of Malaya,674a public servant facing disciplinary proceedings was notsupplied with a copy of a prejudicial report by a board ofinquiry which the adjudicating officer had access to beforethe hearing. The Privy Council held that the proceedings hadfailed to provide him a reasonable opportunity of being heard.

However, this requirement does not necessarily mean the decision-maker has to meet the complainant face to face – ‘Natural justicedoes not generally demand orality’.675 It has been suggested that anoral hearing will almost be as good as useless if the affectedperson has no prior knowledge of the case.676 In Lloyd v.McMahon,677 an oral hearing did not make a difference to thefacts on which the case was based. Giving judgment in theCourt of Appeal of England and Wales, Lord Justice Harry Woolfinterest or the legitimate expectation of a benefit, he is entitled to knowthe case sought to be made against him and to be given an opportunity of replying to it ... . The reference to 'right or interest' in this formulation must be understood as relating to personal liberty, status, preservation of livelihood and reputation, as well as to proprietary rightsand interests.’

673 Chief Constable of the North Wales Police v. Evans [8] UKHL 10, [8] 1 W.L.R. 1155, H.L.(United Kingdom)

674 Surinder Singh Kanda v. Government of the Federation of Malaya [6] UKPC 2, [6] A.C. 322at 337, Privy Council (on appeal from Malaya).

675 R. (Morgan Grenfell & Co. Ltd.) v. Special Commissioner of Income Tax [0] EWCA Civ 329, [0]2 W.L.R. 255 at 286, para. 47, C.A. (England & Wales).

676 Morgan Grenfell, p. 287, para. 50.677 Lloyd v. McMahon [8] 1 A.C. 625, C.A. (England & Wales) and H.L. (United

Kingdom).

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held that an oral hearing may not always be the ‘very pith ofthe administration of natural justice’.678 It has also beensuggested that an oral hearing is only required if issuesconcerning deprivations of legal rights or legally protectedinterests arise.679

conduct of the hearingWhen deciding how the hearing should be conducted, the

adjudicator has to ask whether the person charged has a properopportunity to consider, challenge or contradict any evidence,and whether the person is also fully aware of the nature ofthe allegations against him or her so as to have a properopportunity to present his or her own case.680 In Secretary of Statefor the Home Department v. AF,681 Lord Phillips of Worth Matraverssaid:

‘The best way of producing a fair trial is to ensure that a party to it has the fullestinformation of both the allegations that are made against him and the evidencerelied upon in support of those allegations. Where the evidence is documentary, heshould have access to the documents. Where the evidence consists of oral testimony,then he should be entitled to cross-examine the witnesses who give that testimony,whose identities should be disclosed’.682

right to legal representationThere is no inherent common law right to legal representation

before a domestic tribunal. A tribunal has the discretion toadmit either a legally qualified or unqualified counsel toassist the person appearing before it, based on the facts ofthe case.683 When assessing whether a party should be offeredlegal assistance, the adjudicator should first ask whether the

678 Lloyd, p. 670, citing R. v. Local Government Board, ex parte Arlidge 1 K.B. 160 at 192–193, H.C. (K.B.) (England & Wales).

679 Endicott, p. 128.680 Kay Swee Pin v. Singapore Island Country Club [0] 2 S.L.R.(R.) 802 at 806, para. 7.681 Secretary of State for the Home Department v. AF [0] UKHL 28, 2 A.C. 269, H.L.

(United Kingdom)682 AF, p. 355, para. 64.683 Kok Seng Chong v. Bukit Turf Club [9] 3 S.L.R.(R.) 772, H.C. (Singapore).

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right to be heard applies, and, secondly, whether counsel'sassistance is needed for an effective hearing given thesubject matter, bearing in mind the consequences of such adenial. 684

In R. v. Secretary of State for Home Department, ex parte Tarrant,685 Webster J.set out six factors to be considered when deciding whether toallow representation by counsel, namely:686

و the seriousness of the charge and the potential penalty;

و whether any points of law are likely to arise.;

و whether the prisoner is capable of presenting his own case;

و whether they are any procedural difficulties faced by prisoners in conducting theirown defence;

و whether there is reasonable speed in making the adjudication; and

و whether there is a need for fairness between prisoners or between prisoners andprison officers.

It has also been suggested that where a tribunal hearing concernsthe individual's reputation or right to livelihood, there is agreater need for allowing legal representation as thisvindicates the idea of equality before the law.687

When one refuses legal representation, one cannot expect toreceive a higher ‘standard’ of natural justice. This was

684 Thio, p. 192.685 R. v. Secretary of State for Home Department, ex parte Tarrant [8] 1 Q.B. 251, Divisional

Court (England & Wales).686 Ex parte Tarrant, pp. 285–286.687 Doresamy v. Public Services Commission [7] 2 M.L.J. [Malayan Law Journal] 127, High

Court (Malaysia).

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enunciated in Singapore in Ho Paul v. Singapore Medical Council(2008).688 Dr. Ho, who had been charged with professionalmisconduct, chose to appear before the Council in person anddeclined to cross-examine the Council's key witness.Subsequently, he argued that he should have been warned of thelegal implications of not being legally represented. The HighCourt rejected this argument and held he had suffered noprejudice. Dr. Ho had been given a fair opportunity ofpresenting his own case and, most importantly, had not beendeprived of his right to cross-examine the witnesses.

It is also not a court's obligation to provide assistance when aparty presents his or her case without legal representation.In Rajeevan Edakalavan v. Public Prosecutor (1998),689 the accused hadappeared in person before a magistrate and had entered a pleaof guilt. He later petitioned the High Court for criminalrevision, arguing that as the magistrate had not informed himof the defences available to him, his plea had been equivocal.The Court held:690

rule against bias The basis for the rule against bias is the need to maintain

public confidence in the legal system. Bias can take the formof actual bias, imputed bias or apparent bias. Actual bias isvery difficult to prove in practice while imputed bias, onceshown, will result in a decision being void without the needfor any investigation into the likelihood or suspicion ofbias. Cases from different jurisdictions currently apply twotests for apparent bias: the ‘reasonable suspicion of bias’test and the ‘real likelihood of bias’ test. One view that hasbeen taken is that the differences between these two tests arelargely semantic and that they operate similarly.

A person is barred from deciding any case in which he or she maybe, or may fairly be suspected to be, biased. This principle

688 Ho Paul v. Singapore Medical Council [0] 2 S.L.R.(R.) 780, H.C. (Singapore).689 Rajeevan Edakalavan v. Public Prosecutor [9] 1 S.L.R.(R.) 10, H.C. (Singapore).690 Rajeevan Edakalavan, p. 19, para. 22.

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embodies the basic concept of impartiality, and applies tocourts of law, tribunals, arbitrators and all those having theduty to act judicially.691 A public authority has a duty to actjudicially whenever it makes decisions that affect people'srights or interests, and not only when it applies somejudicial-type procedure in arriving at decisions. 692

The basis on which impartiality operates is the need to maintainpublic confidence in the legal system. The erosion of publicconfidence undermines the nobility of the legal system, andleads to ensuing chaos.693 The essence of the need forimpartiality was observed by Lord Denning,694 ‘Justice must berooted in confidence and confidence is destroyed when right-minded people go away thinking: 'The judge was biased.'695

Public confidence as the basis for the rule against bias is alsoembodied in the often-quoted words of Lord Hewart, the LordChief Justice of England and Wales, that ‘it is not merely of someimportance, but of fundamental importance that justice should not only be done,but should manifestly be seen to be done’.696

actual and imputed biasBias may be actual, imputed or apparent. Actual bias is

established where it is actually established that a decision-maker was prejudiced in favour of or against a party. However,in practice, the making of such an allegation is rare as it isvery hard to prove.

691 Lord Mackay of Clashfern, ed.-in-chief (2010), Halsbury's Laws of England, 61 (5th ed.), London: LexisNexis, para. 629, ISBN 978-1-4057-3424-0.

692 See the ‘Right to a fair hearing‘ section below. 693 Tang Kin Hwa v. Traditional Chinese Medicine Practitioners Board [0] 4 S.L.R.(R.)

[Singapore Law Reports (Reissue)] 604 at 610, para. 11, High Court (Singapore).694 the Master of the Rolls, in Metropolitan Properties Co. (F.G.C.) Ltd. v. Lannon (1968):

Metropolitan Properties Co. (F.G.C.) Ltd. v. Lannon EWCA Civ 5, 1 Q.B. 577, Court of Appeal (England and Wales).

695 ‘Metropolitan Properties, p. 599696 Dimes v. Grand Junction Canal Proprietors (1852) 3 H.L. Cas. 759, 10 E.R. 301,

House of Lords (UK).

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One form of imputed bias is based on the decision-maker being aparty to a suit, or having a pecuniary or proprietary interestin the outcome of the decision. Once this fact has beenestablished, the bias is irrebuttable and disqualification isautomatic – the decision-maker will be barred fromadjudicating the matter without the need for any investigationinto the likelihood or suspicion of bias. A classic case isDimes v. Grand Junction Canal Proprietor697, which involved an actionbetween Dimes, a local landowner, and the proprietors of theGrand Junction Canal, in which the Lord Chancellor, LordCottenham, had affirmed decrees made to the proprietors.However, it was discovered by Dimes that Lord Cottenham infact owned several pounds worth of shares in the GrandJunction Canal. This eventually led to the judge beingdisqualified from deciding the case. There was no inquiry asto whether a reasonable person would consider Lord Cottenhamto be biased, or as to the circumstances which led LordCottenham to hear the case. The case covers the point that ‘Judges mustnot appear to be biased or impartial’.

In certain limited situations, bias can also be imputed when thedecision-maker's interest in the decision is not pecuniary butpersonal. This was established in the unprecedented case of R.v. Bow Street Metropolitan Stipendiary Magistrate, ex parte Pinochet Ugarte. 698

apparent biasApparent bias is present where a judge or other decision-maker is

not a party to a matter and does not have an interest in itsoutcome, but through his or her conduct or behaviour givesrise to a suspicion that he or she is not impartial. 699An issuethat has arisen is the degree of suspicion which would providethe grounds on which a decision should be set aside forapparent bias. Currently, cases from various jurisdictions

697 (1852) 3 HL Cas 759698 (No. 2) (1999). R. v. Bow Street Metropolitan Stipendiary Magistrate, ex parte Pinochet Ugarte

(No. 2) [9] UKHL 1, [0] 1 A.C. 119 at 133, H.L. (UK). 699 Ex parte Pinochet, pp. 132–133.

pg. 513


apply two different tests: ‘real likelihood of bias’ and‘reasonable suspicion of bias’.

real likelihood test The real likelihood test centres on whether the facts, as

assessed by the court, give rise to a real likelihood ofbias700. In R. v. Gough701 the House of Lords chose to state thetest in terms of a ‘real danger of bias’, and emphasized thatthe test was concerned with the possibility, not probability,of bias. Lord Goff of Chievely also stated that ‘the courtshould look at the matter through the eyes of a reasonableman, because the court in cases such as these personifies thereasonable man’.702 However, the test in Gough has beendisapproved of in some Commonwealth jurisdictions. Onecriticism is that the emphasis on the court's view of thefacts gives insufficient emphasis to the perception of thepublic703.These criticisms were addressed by the House of Lordsin Porter v. Magill704. The Court adjusted the Gough test by statingit to be ‘whether the fair-minded and informed observer,having considered the facts, would conclude that there was areal possibility that the tribunal was biased’. Porter v. Magill705.This case therefore established the current test in the UK tobe one of a ‘real possibility of bias’.

reasonable suspicion test On the other hand, the reasonable suspicion test asks whether a

reasonable and fair-minded person sitting in court and knowingall the relevant facts would have a reasonable suspicion thata fair trial for the litigant is not possible.706

700 R. v. Rand (1866) L.R. 1 Q.B. 230 at 233, H.C. (Queen's Bench) (England & Wales)

701 (1993) R. v. Gough [9] UKHL 1, [9] A.C. 646, H.L. (UK).,702 Gough, p. 670703 Webb v. The Queen (1994) 181 C.L.R. 41, auto704 Porter v. Magill [0] UKHL 67, [0] 2 A.C. 357, H.L. (UK)705 p. 494, para. 103

pg. 514


right to a fair hearingIt has been suggested that the rule requiring a fair hearing is

broad enough to include the rule against bias since a fairhearing must be an unbiased hearing. However, the rules areoften treated separately. It is fundamental to fair procedurethat both sides should be heard.707 The right to a fair hearingrequires that individuals are not penalized by decisionsaffecting their rights or legitimate expectations unless theyhave been given prior notice of the cases against them, a fairopportunity to answer them, and the opportunity to presenttheir own cases.708

Besides promoting an individual's liberties, the right to a fairhearing has also been used by courts as a base on which tobuild up fair administrative procedures.709 It is now wellestablished that it is not the character of the publicauthority that matters but the character of the powerexercised.710 However, in the United Kingdom prior to Ridge v.Baldwin,711 the scope of the right to a fair hearing wasseverely restricted by case law following Cooper v. WandsworthBoard of Works.712 In R. v. Electricity Commissioners, ex parte London ElectricityJoint Committee Co. Ltd.,713 Lord Atkin observed that the right onlyapplied where decision-makers had ‘the duty to actjudicially’.714 In natural justice cases this dictum wasgenerally understood to mean that a duty to act judicially was

706 R. v. Liverpool City Justices, ex parte Topping [8] 1 W.L.R. 119 at 123, H.C. (Q.B.) (England & Wales).

707 Allison, p. 757.708 supra709 Wade & Forsyth, p. 402.710 Wade & Forsyth, p. 405.711 Ridge v. Baldwin [6] UKHL 2, [6] A.C. 40, H.L. (United Kingdom).712 R. v. Electricity Commissioners, ex parte London Electricity Joint Committee Co. (1920), Ltd. 1

K.B. 171, H.C. (K.B.) (England & Wales).713 R. v. Electricity Commissioners, ex parte London Electricity Joint Committee Co. (1920), Ltd. 1

K.B. 171, H.C. (K.B.) (England & Wales).714 Ex parte London Electricity Joint Committee Co. (1920), Ltd., p. 205.

pg. 515


not to be inferred merely from the impact of a decision on therights of subjects; such a duty would arise only if there wasa ‘superadded’ express obligation to follow a judicial-typeprocedure in arriving at the decision.715

The mere fact that a decision-maker is conferred wide discretionby law is not reason enough for a weakening of therequirements of natural justice. In the United Kingdomcontext, this is demonstrated by Ahmed v. H.M. Treasury. 716 TheTreasury had exercised powers to freeze the appellants'financial assets and economic resources on the ground that itreasonably suspected the appellants were or might be personswho had committed, attempted to commit, participated in orfacilitated the commission of terrorism, pursuant to theTerrorism (United Nations Measures) Order 2006 717 and the Al-Qaida and Taliban (United Nations Measures) Order 2006718 madeunder the United Nations Act 1946.719

The Supreme Court of the United Kingdom held that since the Al-Qaida Order made no provision for basic procedural fairness,it effectively deprived people designated under the order thefundamental right of access to a judicial remedy and hence wasultra vires the power conferred by the United Nations Act 1946 forthe making of the Order.720

judicial review Judicial review is a procedure in by which the courts supervise

the exercise of public power on the application of anindividual. A person who feels that an exercise of such powerby a government authority, such as a minister, the local

715 De Smith's Judicial Review, p. 330.716 Ahmed v. Her Majesty's Treasury (No. 1) (2010) UKSC 2, 2 A.C. 534, Supreme Court

(UK).717 Terrorism (United Nations Measures) Order 2006 (S.I. 2006 No. 2657)718 Al-Qaida and Taliban (United Nations Measures) Order 2006 (S.I. 2006 No.

2952)719 United Nations Act 1946 (1946 c. 45), s. 12.720 See, for instance, Ahmed, p. 685, para 246, per Lord Mance J.S.C.

pg. 516


council or a statutory tribunal, is unlawful, perhaps becauseit has violated his or her rights, may apply to theAdministrative Court (a division of the High Court) forjudicial review of the decision and have it set aside(quashed) and possibly obtain damages. A court may also makemandatory orders or injunctions to compel the authority to doits duty or to stop it from acting illegally.

At the same time, the doctrine of Parliamentary sovereignty doesnot allow for the judicial review of primary legislation (Actsof Parliament). This limits judicial review in Common lawtothe decisions of public bodies and secondary (delegated)legislation, against which ordinary common law remedies aswell as special ‘prerogative orders‘ are available in certaincircumstances.

The constitutional theory of judicial review has long beendominated by the doctrine of ultra vires, under which a decisionof a public authority can only be set aside if it exceeds thepowers granted to it by Parliament. The role of the courts wasseen as enforcing the ‘will of Parliament’ in accordance withthe doctrine of Parliamentary sovereignty.

three stances on judicial reviewJudicial Review is a High Court procedure for challenging

administrative actions; it is the power to strike down thatlaw, overturn that official act, or order a public official toact in a certain manner if the court believes the law or actto be unconstitutional, or (in some jurisdictions) believesthe law or act to be contrary to law in a free and democraticsociety.

exclusivity ruleThe House of Lords held in O'Reilly v Mackman721 that where public law

rights were at stake, the claimants could only proceed by wayof judicial review. They could not originate their actionunder the general civil law procedure, because that would be

721 [8] 2 AC 237

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avoiding the procedural safeguards afforded to publicauthorities by the judicial review procedure, such as therequirement of sufficient interest, timely submission andpermission for judicial review. However, a defendant may stillraise public law issues as a defence in civil proceedings. Sofor example, a tenant of the public authority could allegeillegality of its decision to raise the rents when theauthority sued him for failing to pay under the tenancycontracts. He was not required to commence a separate judicialreview process722. If an issue is a mix of private law rights,such as the right to get paid under a contract, and public lawissues of the competence of the public authority to take theimpugned decision, the courts are also inclined to allow theclaimant to proceed using ordinary civil procedure, at leastwhere it can be demonstrated that the public interest ofprotecting authorities against frivolous or late claims hasnot been breached723.

grounds for reviewIn Council of Civil Service Unions v Minister for the Civil Service724, Lord Diplock

summarised the grounds for reversing an administrativedecision by way of judicial review as follows:

و Illegality

و Irrationality (Unreasonableness)

و Procedural impropriety

The first two grounds are known as substantive grounds ofjudicial review because they relate to the substance of thedisputed decision. Procedural impropriety is a proceduralground because it is aimed at the decision-making procedure

722 Wandsworth London Borough Council v Winder [8] 3 W.L.R. 1254723 Roy v Kensington and Chelsea and Westminster Family Practitioner Committee (1992), Trustees

of the Dennis Rye Pension Fund v Sheffield City Council (1997)724 [8] AC 374

pg. 518


rather than the content of the decision itself. The threegrounds are mere indications: the same set of facts may giverise to two or all three grounds for judicial review.

illegalityIn Lord Diplock's words, this ground means that the decision

maker ‘must understand correctly the law that regulates his decision-makingpower and must give effect to it.’725 A decision may be illegal for manydifferent reasons. There are no hard and fast rules for theirclassification, but the most common examples of cases wherethe courts hold administrative decisions to be unlawful arethe following:

unlawful sub-delegationIf the law empowers a particular authority, e.g. a minister, to

take certain decisions, the Minister cannot sub delegate thispower to another authority, e.g. an executive officer or acommittee. This differs from a routine job not involving muchdiscretion being done by civil servants in the Minister'sname, which is not considered delegation.726 An example of whenthis happened was in Allingham v Minister of Agriculture and Fisheries727

where a notice preventing farmers from growing sugar beet wasunlawful because the power to put up the sign was delegated bythe original committee.

principle in anisminic Anisminic728 is an important House of Lords decision in the area

of English administrative law, establishing in particular thatany error of law made by a public body will make its decisiona nullity and that a statutory exclusion clause does notdeprive the courts from their jurisdiction in judicial review

725 Council of Civil Service Unions v Minister for the Civil Service [8] AC 374726 Allingham v The Minister of Agriculture and Fisheries (High Court, 1948); Carltona v

Commissioner of Works (Court of Appeal, 1943); R v Secretary of State for the Home Office Ex p Oladehinde (House of Lords, 1990)

727 2 All. E.R. 724; 1 K.B. 148728 Anisminic Ltd v Foreign Compensation Commission 2 AC 147, 2 WLR 163

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unless it expressly states this. As a result of the SuezCrisis some mining properties of the appellant Anisminiclocated in the Sinai peninsula were seized by the Egyptiangovernment before November 1956. The appellants then sold themining properties to an Egyptian government-owned organisationcalled TEDO in 1957. In 1959, a piece of subordinatelegislation was passed under the Foreign Compensation Act 1950to distribute compensation paid by the Egyptian government tothe UK government with respect to British properties it hadnationalised. The appellants claimed that they were eligiblefor compensation under this piece of subordinate legislation,which was determined by a tribunal (the respondents in thiscase) set up under the Foreign Compensation Act 1950. Thetribunal, however, decided that the appellants were noteligible for compensation, because their ‘successors in title’(TEDO) did not have the British nationality as required underone of the provisions of the subordinate legislation.

There were two important issues on the appeal to the Court ofAppeal and later, the House of Lords.

و The first was straightforward: whether the tribunal had made an error of law inconstruing the term ‘successor of title’ under the subordinate legislation.

و The second issue was more complex and had important implications for the law onjudicial review. Even if the tribunal had made an error of law, the House of Lordshad to decide whether or not an appellate court had the jurisdiction to intervene inthe tribunal's decision. Section 4(4) of the Foreign Compensation Act 1950 statedthat:

‘The determination by the commission of any application made to them under this Actshall not be called into question in any court of law’.

This was a so called ‘ouster clause’.

By a 3-2 majority, the House of Lords decided that section 4(4)of the Foreign Compensation Act did not preclude the courtfrom inquiring whether or not the order of the tribunal was anullity, and accordingly it decided that the tribunal had

pg. 520


misconstrued the legislation (the term ‘successor in title’),and that the determination by the defendant tribunal that theappellant did not qualify to be paid compensation was null,and that they were entitled to have a share of thecompensation fund paid by the Egyptian government..

The decision illustrates the courts' reluctance to give effect toany legislative provision that attempts to exclude theirjurisdiction in judicial review. Even when such an exclusionis relatively clearly worded, the courts will hold that itdoes not preclude them from scrutinising the decision on anerror of law and quashing it when such an error occurs.

It also establishes that any error of law by a public body willresult in its decision being ultra vires.

error of law or error of factThe court will quash a decision where the authority has

misunderstood a legal term or incorrectly evaluated a factthat is essential for deciding whether or not it has certainpowers. So, in R v Secretary of State for the Home Department, ex parteKhawaja729, the House of Lords held that the question whetherthe applicants were ‘illegal immigrants’ was a question offact that had to be positively proved by the Home Secretarybefore he could use the power to expel them. The powerdepended on them being ‘illegal immigrants’ and any error inrelation to that fact took the Home Secretary outside hisjurisdiction to expel them. However, where a term to beevaluated by the authority so broad and vague that reasonablepeople may reasonably disagree about its meaning, it isgenerally for the authority to evaluate its meaning. Forexample, in R v Hillingdon Borough Council ex Parte Pulhofer730, the localauthority had to provide homeless persons with accommodation.The applicants were a married couple, who lived with her twochildren in one room and applied to the local authority foraid. The local authority refused aid because it considered

729 [8] AC 74730 [8] AC 484

pg. 521


that the Pulhofers were not homeless and the House of Lordsupheld this decision because whether the applicants hadaccommodation was a question of fact for the authority todetermine.

fettering discretionAn authority will be acting unreasonably where it refuses to hear

applications or makes certain decisions without takingindividual circumstances into account by reference to acertain policy.731 When an authority is given discretion, itcannot bind itself as to the way in which this discretion willbe exercised either by internal policies or obligations toothers. Even though an authority may establish internalguidelines, it should be prepared to make exceptions on thebasis of every individual case.732 This has changed in moderntimes, with the new coalition government providing anoverrulement.

wednesbury unreasonablenessSee irrationality

irrationalityUnder Lord Diplock's classification, a decision is irrational if

it is ‘so outrageous in its defiance of logic or of acceptedmoral standards that no sensible person who had applied hismind to the question could have arrived at it.’ This standardis also known as Wednesbury unreasonableness, after the decisionin Associated Provincial Picture Houses Ltd v Wednesbury Corporation733, whereit was first imposed. [An Common lawcase which set down the standard ofunreasonableness of public body decisions which render them liable to be quashedon judicial review.] The court stated three conditions on which it would intervene tocorrect a bad administrative decision, including on grounds of its unreasonableness

731 BOC v Minister of technology 1971732 Lavender v Minister of Housing and Local Government 1 WLR 1231; British Oxygen v Minister

of Technology [7] AC 610733 1 KB 223

pg. 522


in the special sense later articulated in Council of Civil Service Unions v Minister forthe Civil Service734 by Lord Diplock:

‘So outrageous in its defiance of logic or accepted moral standards that no sensibleperson who had applied his mind to the question to be decided could have arrivedat it.’

In 1947 a cinema company, Associated Provincial Picture Houses,was granted a licence by the Wednesbury Corporation, the localauthority of the market town of Wednesbury in Staffordshire,to operate a cinema on condition that no children under 15were admitted to the cinema on Sundays. Associated ProvincialPicture Houses sought a declaration that such a condition wasunacceptable, and outside the power of the Corporation toimpose. The court held that it could not intervene to overturnthe decision of the defendant simply because the courtdisagreed with it. To have the right to intervene, the courtwould have to form the conclusion that:

و the Wednesbury Corporation, in making that decision, took into account factors thatought not to have been taken into account, or

و the Corporation failed to take into account factors that ought to have been takeninto account, or

و the decision was so unreasonable that no reasonable authority would ever considerimposing it.

The court held that the condition did not fall into any of thesecategories. Therefore, the claim failed and the decision ofthe Wednesbury Corporation was upheld. According to Lord Green,M. R.,

‘ It is true the discretion must be exercised reasonably. Now what does that mean?Lawyers familiar with the phraseology commonly used in relation to exercise ofstatutory discretions often use the word ‘unreasonable’ in a rather comprehensive

734 Council of Civil Service Unions v Minister for the Civil Service [8] UKHL 6at para. 410, [8] 3 All ER 935, [8] 3 WLR 1174, [8] ICR 14, [8] AC 374, [8] IRLR 28, House of Lords

pg. 523


sense. It has frequently been used and is frequently used as a general description ofthe things that must not be done. For instance, a person entrusted with a discretionmust, so to speak, direct himself properly in law. He must call his own attention tothe matters which he is bound to consider. He must exclude from his considerationmatters which are irrelevant to what he has to consider. If he does not obey thoserules, he may truly be said, and often is said, to be acting ‘unreasonably.’ Similarly,there may be something so absurd that no sensible person could ever dream that itlay within the powers of the authority. Warrington LJ in Short v Poole Corporation735

gave the example of the red-haired teacher, dismissed because she had red hair.That is unreasonable in one sense. In another sense it is taking into considerationextraneous matters. It is so unreasonable that it might almost be described as beingdone in bad faith; and, in fact, all these things run into one another.

Unlike illegality and procedural impropriety, the courts underthis head look at the merits of the decision, rather than atthe procedure by which it was arrived at or the legal basis onwhich it was founded. The question to ask is whether thedecision ‘makes sense’. In many circumstances listed under‘illegality’, the decision may also be considered irrational.

arbitrary and capricious’ standardThis is a test set in the dominant case of Chevron U.S.A. v. Natural

Resources Defense Council,736 where a government official's officialaction may be challenged for being unreasonable. The legalstandard, however, that is most comparable to Wednesburyunreasonableness is the ‘arbitrary and capricious’ standardapplied to most regulatory decisions undertaken without trial-type procedures (those rendered after trial-type proceduresmust be ‘supported by substantial evidence’).

proportionality (administrative law)Proportionality is a requirement that a decision is proportionate

to the aim that it seeks to achieve. E.g. an order to forbid aprotest march on the grounds of public safety should not bemade if there is an alternative way of protecting public

735 Ch. 66, 90, 91736 467 U.S. 837 (1984)

pg. 524


safety, e.g. by assigning an alternative route for the march.Proportionality exists as a ground for setting asideadministrative decisions in most continental legal systems andis recognised. However, it is not as yet a separate ground ofjudicial review, although Lord Diplock has alluded to thepossibility of it being recognised as such in the future. Atpresent, lack of proportionality may be used as an argumentfor a decision being irrational.737

procedural improprietyA decision suffers from procedural impropriety if in the process

of its making the procedures prescribed by statute have notbeen followed or if the 'rules of natural justice' have notbeen adhered to.

remedies (administrative law)The following remedies are available in proceedings for judicial

review:

و Quashing order;

و Prohibiting order;

و Mandatory order;

و Declaration;

و Injunction;

و Damages

In any case more than one remedy can be applied for; however, thegranting of all remedies is entirely at the court’sdiscretion.

737 R v Inner London Education Authority, ex parte Westminster City Council [8] 1 W.L.R. 28, House of Lords (UK).

pg. 525


quashing orderA quashing order nullifies a decision which has been made by a

public body. The effect is to make the decision completelyinvalid. Such an order is usually made where an authority hasacted outside the scope of its powers (‘ultra vires’). The mostcommon order made in successful judicial review proceedings isa quashing order. If the court makes a quashing order it cansend the case back to the original decision maker directing itto remake the decision in light of the court’s findings. Or,very rarely, if there is no purpose in sending the case back,it may take the decision itself.

prohibiting orderA prohibiting order is similar to a quashing order in that it

prevents a tribunal or authority from acting beyond the scopeof its powers. The key difference is that a prohibiting orderacts prospectively by telling an authority not to do somethingin contemplation. Examples of where prohibiting orders may beappropriate include stopping the implementation of a decisionin breach of natural justice, or to prevent a local authoritylicensing indecent films, or to prevent the deportation ofsomeone whose immigration status has been wrongly decided.

mandatory orderA mandatory order compels public authorities to fulfill their

duties. Whereas quashing and prohibition orders deal withwrongful acts, a mandatory order addresses wrongful failure toact. A mandatory order is similar to a mandatory injunction(below) as they are orders from the court requiring an act tobe performed. Failure to comply is punishable as a contempt ofcourt. Examples of where a mandatory order might be appropriate include:compelling an authority to assess a disabled person’s needs, to approve buildingplans, or to improve conditions of imprisonment. A mandatory order may bemade in conjunction with a quashing order, for example, wherea local authority’s decision is quashed because the decisionwas made outside its powers, the court may simultaneously

pg. 526


order the local authority to remake the decision within thescope of its powers.

declarationA declaration is a judgment by the Administrative Court which

clarifies the respective rights and obligations of the partiesto the proceedings, without actually making any order. Unlikethe remedies of quashing, prohibiting and mandatory order thecourt is not telling the parties to do anything in adeclaratory judgment. For example, if the court declared that a proposed ruleby a local authority was unlawful, a declaration would resolve the legal position ofthe parties in the proceedings. Subsequently, if the authority were toproceed ignoring the declaration, the applicant who obtainedthe declaration would not have to comply with the unlawfulrule and the quashing, prohibiting and mandatory orders wouldbe available.

injunctionAn injunction is an order made by the court to stop a public body

from acting in an unlawful way. Less commonly, an injunctioncan be mandatory, that is, it compels a public body to dosomething. Where there is an imminent risk of damage or loss,and other remedies would not be sufficient, the court maygrant an interim injunction to protect the position of theparties before going to a full hearing. If an interiminjunction is granted pending final hearing, it is possiblethat the side which benefits from the injunction will be askedto give an undertaking that if the other side is successful atthe final hearing, the party which had the benefit of theinterim protection can compensate the other party for itslosses. This does not happen where the claimant is legallyaided.

damages (judicial review)Damages are available as a remedy in judicial review in limited

circumstances. Compensation is not available merely because apublic authority has acted unlawfully. For damages to be

pg. 527


available there must be either: (a) A recognised ‘private’ lawcause of action such as negligence or breach of statutory dutyor; (b) A claim under Human Rights.

privative clausePrivative clause is a provision in a statute that tries to remove

a court’s ability to review decisions of a tribunal (or otheradministrative agency). They are also known as ‘ousterclauses’. The word ‘privative’ is derived from the Latinprivare, meaning ‘to deprive’.

justiciabilityJusticiability concerns the limits upon legal issues over which a

court can exercise its judicial authority.738 It includes, butis not limited to, the legal concept of standing, which isused to determine if the party bringing the suit is a partyappropriate to establishing whether an actual adversarialissue exists.739 Essentially, justiciability in American lawseeks to address whether a court possesses the ability toprovide adequate resolution of the dispute; where a courtfeels it cannot offer such a final determination, the matteris not justiciable. Justiciable issues are not speculative.

standingStanding or locus standi is the term for the ability of a party to

demonstrate to the court sufficient connection to and harmfrom the law or action challenged to support that party'sparticipation in the case. 740 In the United States, thecurrent doctrine is that a person cannot bring a suitchallenging the constitutionality of a law unless the

738 May, Christopher N.; Ides, Allan (2007). Constitutional Law: National Power and Federalism (4th ed.). New York, NY: Aspen Publishers. pp. 97–99.

739 Flast v. Cohen, 392 U.S. 83, 100 (1968) (‘[W]hen standing is placed in issue in a case, the question is whether the person whose standing is challenged is a proper party to request an adjudication of a particular issue, and notwhether the issue itself is justiciable.’).

740 Smith, Rhona K. M., Textbook on International Human Rights. 4th Edition. 2010

pg. 528


plaintiff can demonstrate that the plaintiff is (or willimminently be) harmed by the law. Otherwise, the court will rulethat the plaintiff ‘lacks standing’ to bring the suit, andwill dismiss the case without considering the merits of theclaim of unconstitutionality. To have a court declare a lawunconstitutional, there must be a valid reason for thelawsuit. The party suing must have something to lose in orderto sue unless it has automatic standing by action of law. 741

Standing exists from one of three causes:1. The party is directly subject to an adverse effect by the

statute or action in question, and the harm suffered willcontinue unless the court grants relief in the form of damagesor a finding that the law either does not apply to the partyor that the law is void or can be nullified. This is calledthe "something to lose" doctrine, in which the party hasstanding because they directly will be harmed by theconditions for which they are asking the court for relief.

2. The party is not directly harmed by the conditions by whichthey are petitioning the court for relief but asks for itbecause the harm involved has some reasonable relation totheir situation, and the continued existence of the harm mayaffect others who might not be able to ask a court for relief.Because while the plaintiff might not be directly affected,the law might so adversely affect others that one might neverknow what was not done or created by those who fear they wouldbecome subject to the law – the so-called "chilling effects"doctrine.

3. The party is granted automatic standing by act of law. Undersome environmental laws, a party may sue someone causingpollution to certain waterways without a federal permit, evenif the party suing is not harmed by the pollution beinggenerated. The law allows them to receive a portion of anyfines collected by the government from their violation of law.

741 See generally, The Metaphor of Standing and the Problem of Self-Governance, by Steven L. Winter, 40 Stan. L. Rev. 1371, July, 1988.

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In some jurisdictions, a person who believes a book, film orother work of art is obscene may sue in their own name to havethe work banned directly without having to ask a DistrictAttorney to do so.

There are three standing requirements:1. locus standi (Injury): The plaintiff must have suffered or

imminently will suffer injury—an invasion of a legallyprotected interest that is concrete and particularized. Theinjury must be actual or imminent, distinct and palpable, notabstract. This injury could be economic as well as non-economic.

2. locus standi (Causation): There must be a causal connection betweenthe injury and the conduct complained of, so that the injuryis fairly traceable to the challenged action of the defendantand not the result of the independent action of some thirdparty who is not before the court.742

3. locus standi (Redressability): It must be likely, as opposedto merely speculative, that a favorable court decision willredress the injury.743

Prohibition of Third-party standingA party may only assert his or her own rights and cannot raise

the claims of a third party who is not before the court;exceptions exist where the third party has interchangeableeconomic interests with the injured party, or a personunprotected by a particular law sues to challenge theoversweeping of the law into the rights of others. Forexample, a party suing over a law prohibiting certain types ofvisual material, may sue because the rights of theirs, andothers engaged in similar displays, might be damaged.

Additionally, third parties who do not have standing may be ableto sue under the next friend doctrine if the third party is an

742 For example, Massachusetts v. Environmental Protection Agency (global warming caused byEPA's refusal to regulate carbon dioxide emissions satisfied element of causation forMassachusetts's alleged injury of loss of coastland).

743 Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992).

pg. 530

https://supreme.justia.com/us/504/555/case.html

http://en.wikipedia.org/wiki/United_States_Reports

http://en.wikipedia.org/wiki/Lujan_v._Defenders_of_Wildlife

http://en.wikipedia.org/wiki/Carbon_dioxide

http://en.wikipedia.org/wiki/Massachusetts_v._Environmental_Protection_Agency


infant, mentally handicapped, or not a party to a contract.One example of a statutory exception to the prohibition ofthird party standing exists in the qui tam provision.

prohibition of generalized grievancesA plaintiff cannot sue if the injury is widely shared in an

undifferentiated way with many people. For example, thegeneral rule is that there is no federal taxpayer standing, ascomplaints about the spending of federal funds are too remotefrom the process of acquiring them. Such grievances areordinarily more appropriately addressed in the representativebranches.

zone of interest testThere are in fact two tests used by the United States Supreme

Court for the zone of interest 1. Zone of injury - The injury is the kind of injury that

Congress expected might be addressed under the statute.744 2. Zone of interests - The party is arguably within the zone of

interest protected by the statute or constitutionalprovision.745

taxpayer standingTaxpayer standing is the concept that any person who pays taxes

should have standing to file a lawsuit against the taxing bodyif that body allocates funds in a way that the taxpayer feelsis improper. In Florida, a taxpayer has standing to sue if thestate government is acting unconstitutionally with respect topublic funds, or if government action is causing some specialinjury to the taxpayer that is not shared by taxpayers ingeneral. An individual taxpayer generally has standing tochallenge an act of a city or county where they live, but doesnot have general standing to challenge state expenditures.

744 Federal Election Commission v. Akins, 524 U.S. 11 (1998).745 Allen v. Wright, 468 U.S. 737 (1984).

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http://en.wikipedia.org/wiki/Federal_Election_Commission_v._Akins


standing to challenge statutesWith limited exceptions, a party cannot have standing to

challenge the constitutionality of a statute unless they willbe subjected to the provisions of that statute. There are someexceptions, however, e.g. courts will accept challenges to astatute on overbreadth grounds, where a person who is onlypartially affected by a statute can challenge parts that donot affect them on the grounds that laws that restrict speechhave a chilling effect on other people's right to free speech.

chilling effects doctrineIn a legal context, a chilling effect is the inhibition or

discouragement of the legitimate exercise of natural and legalrights by the threat of legal sanction. The right that is mostoften described as being suppressed by a chilling effect is USconstitutional right to free speech. A chilling effect may becaused by legal actions such as the passing of a law, thedecision of a court, or the threat of a lawsuit; any legalaction that would cause people to hesitate to exercise alegitimate right (freedom of speech or otherwise) for fear oflegal repercussions. When that fear is brought about by thethreat of a libel lawsuit, it is called libel chill. A lawsuitinitiated specifically for the purpose of creating a chillingeffect may be called a Strategic Lawsuit Against PublicParticipation, or "SLAPP" suit.

strategic lawsuit against public participation (SLAPP) or slappsuit

A strategic lawsuit against public participation (SLAPP) is alawsuit that is intended to censor, intimidate, and silencecritics by burdening them with the cost of a legal defenseuntil they abandon their criticism or opposition. The typicalSLAPP plaintiff does not normally expect to win the lawsuit.The plaintiff's goals are accomplished if the defendantsuccumbs to fear, intimidation, mounting legal costs or simpleexhaustion and abandons the criticism. A SLAPP may also

pg. 532


intimidate others from participating in the debate. A SLAPP isoften preceded by a legal threat. The difficulty is thatplaintiffs do not present themselves to the Court admittingthat their intent is to censor, intimidate or silence theircritics. Hence, the difficulty in drafting SLAPP legislation,and in applying it, is to craft an approach which affords anearly termination to invalid abusive suits, without denying alegitimate day in court to valid good faith claims.

SLAPPs take various forms. The most common used to be a civilsuit for defamation, which in the English common law traditionwas a tort. The common law of libel dates to the early 17thcentury and (unusual in English law) is reverse onus, meaning,once someone alleges a statement is libelous, the burden wason the defendant to prove that it is not. The Defamation Act2013 removed most of the uses of defamation as a SLAPP in theUnited Kingdom by requiring the proof of special damage.Various abusive uses of this law including political libel(criticism of the political actions or views of others) haveceased to exist in most places, but persist in somejurisdictions (notably British Columbia and Ontario) wherepolitical views can be held as defamatory. A common feature ofSLAPP suits is forum shopping, wherein plaintiffs find courtsthat are more favourable towards the claims to be brought thanthe court in which the defendant (or sometimes plaintiffs)live.

Other widely mentioned elements of a SLAPP are the actualeffectiveness at silencing critics, the timing of the suit,inclusion of extra or spurious defendants (such as relativesor hosts of legitimate defendants), inclusion of plaintiffswith no real claim (such as corporations that are affiliatedwith legitimate plaintiffs), making claims that are verydifficult to disprove or rely on no written record, ambiguousor deliberately mangled wording that lets plaintiffs makespurious allegations without fear of perjury, refusal toconsider any settlement (or none other than cash),characterization of all offers to settle as insincere,

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extensive and unnecessary demands for discovery, attempts toidentify anonymous or pseudonymous critics, appeals on minorpoints of law, demands for broad rulings when appeal isaccepted on such minor points of law, and attempts to run updefendants' costs even if this clearly costs more to theplaintiffs.

right of access to the courtsIt has been said: “Since the Magna Carta, the world has recognized the importance of justice in a free

society. “To no one will we sell, to no one will we refuse or delay, right or justice.”(Magna Carta, 1215.)

reverse onus clauseA reverse onus clause is a provision within a statute that shifts

the burden of proof on to the individual specified to disprovean element of the information. Typically, this provisionconcerns a shift in burden onto a defendant in either acriminal offence or tort claim. For example, the automotivelegislation in many countries provides that any driver whohits a pedestrian has the burden of establishing that theywere not negligent. The concept of reverse onus is a shift inburden of proof with the presupposition that the applicant(usually prosecution) will be granted their application by thecourts. The onus is on the respondent to make a reasonableapplication of the rule of law with which the application isincompatible.

Barratry is a legal term with several meanings. In common law,barratry is the offense committed by people who are “overlyofficious in instigating or encouraging prosecution ofgroundless litigation” or who bring “repeated or persistentacts of litigation” for the purposes of profit or harassment.It is a crime in some jurisdictions. Litigation for thepurpose of profit is referred to as “Ambulance chasing”: Iffor the purpose of harassment, for example to silence critics,it is known as a strategic lawsuit against public

pg. 534


participation (SLAPP). Jurisdictions that otherwise have nobarratry laws may have SLAPP laws. The term barratry ispredominantly used in the first sense of a frivolous orharassing litigant.

ambulance chasing or barrantryAmbulance chasing, also known as barratry, refers to a lawyer

using an event as a way to find legal clients. The termAmbulance chasing comes from the stereotype of lawyers thatfollow ambulances to the emergency room to find clients.Ambulance chasing is prohibited in US as violating Rules ofProfessional Conduct and to prevent any who attempt to solicitbusiness from disaster victims at the scene.

legislative supremacyAs in England, the legislative branch should rule. We should

trust normal democratic processes; the need to buildcoalitions means minority rights get respected.

judicial supremacyBecause the High Court is unelected, it can stand above the

passions of popular government, making sure that our highestpolitical and moral principles as a people are maintained.

prior notice of hearingNatural justice allows a person to claim the right to adequate

notification of the date, time, place of the hearing as wellas detailed notification of the case to be met.746 Thisinformation allows the person adequate time to effectivelyprepare his or her own case and to answer the case against himor her. In Cooper v. Wandsworth,747 Chief Justice William Erle went

746 Thio Li-ann (1999), ‘Law and the Administrative State’, in Kevin Y[ew] L[ee] Tan, The Singapore Legal System (2nd ed.), Singapore: Singapore UniversityPress, pp. 160–229 at 192–193, ISBN 978-9971-69-213-1 (pbk.).

747 Cooper v. Wandsworth Board of Works (1863) 14 C.B.N.S. 180, 143 E.R. 414, Court of Common Pleas (England). This was seen in cases such as Local Government Board v. Arlidge A.C. 120, H.L. (United Kingdom); and R. v. Leman Street Police Station Inspector, ex parte Venicoff 3 K.B. 72, H.C. (K.B.) (England & Wales).

pg. 535


so far as to state that the lack of notice and hearingafforded to Cooper could be said to be a form of abuse, as hehad been treated as if he did not matter.748 As Lord Mustillfamously held in R. v. Secretary of State for the Home Department, ex parteDoody749:

‘Since the person affected usually cannot make worthwhile representations withoutknowing what factors may weigh against his interests fairness will very often requirethat he is informed of the gist of the case which he has to answer.’750

It has been suggested that the requirement of prior notice servesthree important purposes: 751

و The interest in good outcomes – giving prior notice increases the value of theproceedings as it is only when the interested person knows the issues and therelevant information that he or she can make a useful contribution.

و The duty of respect – the affected person has the right to know what is at stake, andit is not enough to simply inform him or her that there will be a hearing.

و The rule of law – notice of issues and disclosure of information opens up theoperations of the public authority to public scrutiny.

The British courts have held it is not enough for an affectedperson to merely be informed of a hearing. He must also betold what is at stake; in other words, the gist of the case.752

legality principle in administrative lawThis principle can be seen in the desire for state officials to

be bound by and apply the law rather than acting upon whim. As

748 Timothy [Andrew Orville] Endicott (2009), Administrative Law, New York, N.Y.:Oxford University Press, p. 110, ISBN 978-0199-277-28-5.

749 [9] 1 AC 531750 Infra 751 R. v. Secretary of State for the Home Department, ex parte Doody [9] UKHL 8, [9] 1 A.C.

531 at 560, H.L. (United Kingdom).752 Endicott, p. 127.

pg. 536


such advocates of the principle are normally againstdiscretionary powers.

balancing test in administrative lawOne balancing test from American administrative procedure law

applies to the question of due process of law. Due Processquestions concern what type of procedures are appropriate whenthe government takes away property or a privilege from anindividual; the individual would argue that the governmentshould have, for example, given them a hearing before takingaway their driver's license or cutting off their SocialSecurity benefits.

This balancing test weighs the three considerations of;1. Private interest effected by an official action taken by a government agency, official,

or non-governmental entity (company) acting as a governmental agency. (i.e., howimportant is the property or privilege that is being withheld or confiscated?)

2. The risk of some deprivation being erroneously inflicted on the respondent throughthe process used or if no process is used. (i.e., does giving the person a hearing orwhatever else they asked for actually make it less likely that the government willmake some sort of error by giving the individual an opportunity to point out thegovernment's mistake?)

3. The government’s interest in a specific outcome. (For example, the government maysay that giving a hearing is too expensive.)

strict scrutinyThe strict scrutiny standard of judicial review is based on the

equal protection clause. It is one of three employed by thecourts in reviewing laws and government policies against aconstitutional right or principle. The lesser standards arerational basis review and exacting or intermediate scrutiny. The notion of‘levels of judicial scrutiny’, including strict scrutiny, wasintroduced in footnote 4 of the U.S. Supreme Court decision inUnited States v. Carolene Products (1938), one of a series of decisionstesting the constitutionality of New Deal legislation, thatis, legisaltions passed during the first term of President

pg. 537


Franklin D. Roosevelt in response to teh Great Depression, toprovide Relief for the unemployed and poor; Recovery of theeconomy to normal levels; and Reform of the financial system toprevent a repeat depression, also known as 3Rs.

Strict scrutiny is the most rigorous form of judicial review.Once a court determines that strict scrutiny must be applied,it is presumed that the law or policy is unconstitutional. Thegovernment has the burden of proving that its challengedpolicy is constitutional. To withstand strict scrutiny, thegovernment must show that its policy is necessary to achieve acompelling state interest. If this is proved, the state mustthen demonstrate that the legislation is narrowly tailored toachieve the intended result.

The case of Roe V. Wade753, which invalidated state laws thatprohibited Abortion, illustrates the application of strictscrutiny. The Court held that the right to privacy is afundamental right and that this right ‘is broad enough toencompass a woman's decision whether or not to terminate herpregnancy.’ Based on these grounds, the Court applied strictscrutiny. The state of Texas sought to proscribe all abortionsand claimed a compelling State Interest in protecting unbornhuman life. Though the Court acknowledged that this was alegitimate interest, it held that the interest does not becomecompelling until that point in pregnancy when the fetusbecomes ‘viable’ (capable of ‘meaningful life outside themother's womb’). The Court held that a state may prohibitabortion after the point of viability, except in cases whereabortion is necessary to preserve the life or health of themother, but the Texas law was not narrowly tailored to achievethis objective. Therefore, the state did not meet its Burdenof Proof and the law was held unconstitutional.

The Court must use strict scrutiny if one of these tests is met:1. the impact is so ‘stark and dramatic’ as to be unexplainable on non-racial grounds,

as in Yick Wo v. Hopkins753 410 U.S. 113, 93 S. Ct. 705, 35 L. Ed. 2d 147 (1973)

pg. 538


2. the historical background suggests intent3. the legislative and administrative records show intent

intermediate scrutiny Intermediate scrutiny, in constitutional law, is the second level

of deciding issues using judicial review. The other levels aretypically referred to as rational basis review (leastrigorous) and strict scrutiny (most rigorous). In order toovercome the intermediate scrutiny test, it must be shown thatthe law or policy being challenged furthers an importantgovernment interest in a way that is substantially related tothat interest. Wengler v. Druggists Mutual Ins. Co., 754 This should becontrasted with strict scrutiny, the higher standard of reviewwhich requires narrowly tailored and least restrictive meansto further a compelling governmental interest.

rational basis test or rational basis review The rational basis test is the third and lowest form of judicial

scrutiny. It is used in cases where a plaintiff alleges thatthe legislature has made an Arbitrary or irrational decision.When employed, the Rational Basis Test usually results in acourt upholding the constitutionality of the law, because thetest gives great deference to the legislative branch. Such acourt subsequently upholds and sustains the principle.

Rational basis review, in constitutional law and administrativelaw, refers to a level of scrutiny applied by courts whendeciding cases presenting constitutional due process or equalprotection issues. Rational basis is the lowest level ofscrutiny that a court applies when engaging in judicialreview. The higher levels of scrutiny include intermediatescrutiny and strict scrutiny. Rational basis is the defaultlevel of review; however, rational basis review does notusually apply in situations where a suspect or quasi-suspectclassification is involved, or a fundamental right isimplicated.

754 446 U.S. 142, 150

pg. 539


The rational basis review tests whether a governmental action isa reasonable means to an end that may be legitimately pursuedby the government. This test requires that the governmentalaction be ‘rationally related’ to a ‘legitimate’ governmentinterest.755 Under this standard of review, the ‘legitimateinterest’ does not have to be the government’s actualinterest. Rather, if the court can merely hypothesize a‘legitimate’ interest served by the challenged action, it willwithstand the rational basis review.756

This test also applies to both legislative and executive actionwhether those actions be of a substantive or proceduralnature.

Congress is required to have a rational basis for legislationthat, without it, might violate a right of a person but is notrequired to validate scientific conclusions to the same degreethat may be required in academic science; rather, thelegislative reasoning must not be arbitrary.757

To understand the concept of rational basis review, it is easierto understand what it is not. Rational basis review is notintelligent basis review; the legislature is merely requiredto be rational, not smart. A court applying rational basisreview will virtually always uphold a challenged law unlessevery proffered justification for it is a grossly illogicalnon sequitur (or even worse, a word salad). In 2008, JusticeJohn Paul Stevens reaffirmed the lenient nature of rationalbasis review in a concurring opinion: ‘[A]s I recall my esteemed formercolleague, Thurgood Marshall, remarking on numerous occasions:

755 United States v. Carolene Products Co., 304 U.S. 144 (1938).; See also http://www.huffingtonpost.com/emma-rubysachs/equal-potection-in-florid_b_147325.html

756 Sullivan, Kathleen M. & Gunther Gerald. Constitutional Law. Foundation Press, New York, NY.16th Ed. Chapter 9 (2007).

757 Killian, Johnny H., George A. Costello, & Kenneth R. Thomas, co-eds., The Constitution ofthe United States of America: Analysis and Interpretation: Analysis of Cases Decided by theSupreme Court of the United States to June 28, 2002, by Congressional Research Service,Library of Congress (Senate Document No. 108-17, 108th Congress, 2d Session) (Washington[D.C.]: U.S. Gov't Printing Ofc. 2004) (short title: Constitution Annotated), pp. 1906–1910(pp. 242–246 per Adobe Acrobat Reader)

pg. 540


'The Constitution does not prohibit legislatures from enacting stupid laws.'‘758

heightened scrutiny test The phrase ‘heightened scrutiny’ has been used interchangeably

with ‘intermediate scrutiny’ but it is unclear if the two areactually legally interchangeable. In Witt v. Department of the AirForce, 759 the United States Court of Appeals for the NinthCircuit ruled that the law commonly known as ‘don't ask, don'ttell’ (DADT) was subject to ‘heightened’ scrutiny based on itsanalysis of Lawrence. The court articulated a three-prongedtest for heightened scrutiny. To pass, the law ‘must advancean important governmental interest, the intrusion mustsignificantly further that interest, and the intrusion must benecessary to further that interest’. This differs from the‘substantially related to important governmental interests’two-prong test for ‘intermediate’ scrutiny.

The heightened scrutiny test is used in cases involving mattersof discrimination based on sex. As articulated in Craig v. Boren,760 , ‘classifications by gender must serve importantgovernmental objectives and must be substantially related tothe achievement of those objectives.’

natural justice principle Natural justice is the administration, maintenance, provision or

observance of what is just, right, proper, correct, morallyupright, merited or deserved by virtue of the inherent natureof a person or based on the inherent sense of right and wrong.These principles of natural justice govern procedure andconduct of administrative bodies. They are implied andpresumed to be existent and hence shall apply in every case solong as a public body has power to determine a questionaffecting a person’s rights and person’s interest. Theseprinciples are broadly espoused in two legal doctrines. The

758 New York State Bd. of Elections v. Lopez Torres, 552 U.S. ___, ___ (2008) (Stevens, J., concurring).

759 527 F.3d 806 (9th Cir. 2008)760 429 U.S. 190, 97 S. Ct. 451, 50 L. Ed. 2d 397 (1976)

pg. 541


doctrine that procedures must be free from bias and thedoctrine that no person should be condemned unheard. Therationale of the observance of this doctrine is that there isa connection between procedural due process and thesubstantive justice of the final outcome.761

legitimate expectation doctrine The doctrine of legitimate expectation addresses circumstances in

which a decision maker may have operated a practice or made apromise that raised expectations that it would be unfair orunreasonable to dishonor.762 The doctrine has developed both inthe context of reasonableness and in the context of naturaljustice. Whether a legitimate expectation has arisen (andwhether it can be overridden) will depend on a number offactors.

و Whether the words or conduct which gave rise to the expectation were clear andunequivocal,

و Whether the person who promised the benefit had the legal power to grant it (orwhether he was acting ultra vires), and;

و Whether the recipient of the promise took action in reliance upon it to theirdetriment.

irrebutable presumption of parliamentary intent principle In refusing to accept ‘ouster clauses’, the courts infer and

apply the irrebutible presumption of parliamentary intent,which intent is derived from constitutional theory andpractice (the source of separation of powers doctrine) andfrom judicial practice763. The courts hence conclude that

761 J. rensick, (1977) ‘due process and procedural justice’ (eds) pp.217762 H.L.A Hart’’The Concept Of Law’ (Clarendon Press, 1961) Pp 156763 KenyaAairways V. Kenya Airline Pilots Asociation, Misc. Appl No. 254 of

2001

pg. 542


parliament intend that questions of law be determined by thecourts.

consistency principle The principle states that a public body shall follow its own

policies and a departure from the same must be accompanied byrequisite explanations and reasons as of right. This isbuttressed by the principle of legitimate expectations and itsmain function is hence to encourage the need for consultationand notice whenever a decision is being carried out. This needfor consultation is enshrined in the ‘Rights Based Approach’to decision making which is guided by the fact that there areparticipatory rights that must be accorded to the people thatshall be affected by the decision and this is usually donethrough the ‘notice-comment’ structure.

rule against biasThe first basic rule of natural justice is that nobody may be a

judge in his own case. Any person that makes a judicialdecision - and this includes e.g. a decision of a publicauthority on a request for a license - must not have anyinterest, personal or pecuniary) in the outcome of thedecision. If such interest is present, the decision maker mustbe disqualified even if no actual bias can be shown, i.e. itis not demonstrated that the interest has influenced thedecision. The test as to whether the decision should be setaside is whether ‘a fair-minded and informed observer wouldconclude that there was a real possibility [of bias]’.However, there are exceptions which can also operate asdefences when the administrative body is put on notice overits seeming impartiality. These are;

و Necessity: in which case, maybe the only person who can hear the case is the oneagainst whom the issue of bias ahs been raised.

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و Statutory exemption: in which case the statute gives an administrative body bothadjudicatorail and prosecutorial powers.

و Where the party who has been aggrieved waivered his right to object tot eh biaseither directly or through implication, though the inference that he waivered mustbe so strong and with no doubt as to whether he new he was actually wavering theright.

right to a fair hearingWhether or not a person was given a fair hearing of his case will

depend on the circumstances and the type of the decision to bemade. The minimum requirement is that the person gets thechance to present his case. If the applicant has certainlegitimate expectations, for example to have his licencerenewed, the rules of natural justice may also require that heis given an oral hearing and that his request may not berejected without giving reasons. Where the decision isjudicial in nature, for example a dismissal of an official inpunishment for improper conduct, the rules of natural justicerequire a hearing and the person question must know the caseagainst him and be able to examine and object to the evidence.

duty to give reasonsA duty to give reasons may be imposed by statute. Where it is

not, Common Law presumptions may imply such a duty and thecourts do so particularly with regard to judicial and quasi-judicial decisions. It also helps to guarantee objectivity andimpartiality by ensuring human dignity is respected sincethere has to be a reason why one is being treated in a givenway.

proportionality (administrative law) The principle of proportionality requires the maintenance of an

appropriate balance between the adverse effects which anadministrative authority decision may have on the liberty and

pg. 544


interests of the person concerned and the purpose which theauthority is seeking to pursue.

aboriginalPertaining to things or land or person or members of a race,

which are indigenous to, or first occupied a specifiedterritory.

abuse of discretionA decision of a judicial body based on an erroneous finding of

fact or conclusion of law, or an improper application of lawto fact.

accardi doctrineAn agency must abide by its own regulations.administration of justiceThe personnel, activity and structure of the justice system -

courts and police - in the detection, investigation,apprehension, interviewing and trial of persons suspected ofcrime.

oathIn law, oaths are made by a witness to a court of law before

giving testimony and usually by a newly-appointed governmentofficer to the people of a state before taking office. In bothof those cases, though, an affirmation can be usuallysubstituted. A written statement, if the author swears thestatement is the truth, the whole truth, and nothing but thetruth, is called an affidavit. The oath given to support anaffidavit is frequently administered by a notary, who willcertify the giving of the oath by affixing her or his seal tothe document. Willfully delivering a false oath (oraffirmation) is the crime of perjury.

invidious discriminationInvidious Discrimination is treating a class of persons unequally

in a manner that is malicious, hostile, or damaging. If there

pg. 545


is rational justification for the different treatment, thenthe discrimination is not invidious. The criteria delineatingthe groups, such as gender, race, or class, determine the kindof discrimination.

Invidious discrimination generally refers to treating one groupof people less well than another on such grounds as their race(racism), gender (sexism), religion (religiousdiscrimination), caste, ethnic background, nationality,disability, sexual orientation, sexual preference or behavior,results of IQ testing, age (ageism) or political views.Discrimination on the basis of such grounds as subculturalpreference (Punks, Hippies, Mods, vs. Rockers) is also common. Theeffects of invidious discrimination span the spectrum frommild, such as slow or unhelpful retail service, through racialand ethnic slurs, denial of employment or housing, to hatecrimes and genocide.

exhaustion of remedies doctrine (administrative law) Exhaustion of administrative remedies requires a person to first

go to the agency which administers the statute; this processusually involves filing a petition, then going to a hearing,and finally using the agency's internal appeal process. Oncethe agency's own procedures are finished, or ‘exhausted’, andthen the aggrieved person can file a complaint in a federalcourt.

Exhaustion of remedies prevents parties from seeking relief in the courts first.certiorari Certiorari a type of writ seeking judicial review, recognized in

U.S., Roman, English, Philippine,764 and other law. Certiorari(‘to be more fully informed’) is the present passiveinfinitive of the Latin certiorare (‘to show, prove, orascertain’). A writ of certiorari currently means an order bya higher court directing a lower court, tribunal, or publicauthority to send the record in a given case for review. At

764 3 Wm. Blackstone, Commentaries on the Laws of England 42 (1765).

pg. 546


common law, certiorari was a supervisory writ, serving to keep‘all inferior jurisdictions within the bounds of theirauthority … [protecting] the liberty of the subject, by speedyand summary interposition.’765

functus officio doctrineOnce an officer has performed his function, he cannot go and do

it again. bias ruleDecision makers need to be aware of the requirements of

procedural fairness when making decisions which affect aperson's rights or interest. This newsletter focuses on the'hearing rule' principle.

hearing ruleBreach of the hearing rule will usually, though not always,

amount to jurisdictional error and void the decision. In casesof a minor breach, the court may consider that the breach ofthe hearing rule made no difference to the decision. In theserare circumstances, breach of the hearing rule may not befatal to a decision.766 ‘The objection for want of notice can never be gotover… Even God did not pass sentence on Adam before he was called upon to makehis defence.’767

objective legal reasonableness testA test used in determining qualified immunity defense as follows:``Government officials performing discretionary functions generally are shielded from

liability for civil damages insofar as their conduct does not violate clearlyestablished statutory or constitutional rights of which a reasonable person wouldhave known.'' 768

765 Surya Dev Rai v. Ram Chander Rai, (2003) 6 SCC 675766 Stead v State Government Insurance Commission (1986) 161 CLR 141 at 145; Re Refugee

Review Tribunal; Ex parte Aala (2000) 204 CLR 82 at 122.767 R v University of Cambridge (1723) 1 Strange 557; 98 ER 698 per Fortescue J,

cited in Forbes ‘Justice in Tribunals’ p 90.

pg. 547


clearly established law test The unlawfulness of the challenged conduct must be apparent in

light of preexisting law. 769 The actions of a reasonablycompetent officer should be assessed in the light of the legalrules that were ``clearly established'' at the time the actionwas taken. 770 A legal right is ``clearly established'' if thecontours of that right are sufficiently clear that reasonablelaw enforcement officials would understand that what they aredoing violates that right. This is in consonance with theprinciple of legality.

special interest testTo determine whether exercise of a rule is ultra vires.sunshine doctrine ‘Sunshine’ or ‘open meetings’ laws require that the public be

given access to official meetings in which important policydecisions are being made. Public officials cannot holdmeetings in secret or without providing adequate public noticeso that the media and citizens may attend. The primaryargument against ‘sunshine laws’ is that it can slow down thedecision making process because of the requirement to providenotice of the meeting and the expectation that the public willhave opportunity to comment on the proposed policies oractions

principles of legalityExercise of conferral of power must be within the limits of the

conferring legislation.

768 Harlow v. Fitzgerald, 102 S.Ct. 2727, 2738 (1982). For a comprehensive analysis of the Harlow decision, see Higginbotham, ``Defending Law Enforcement Officers Against Personal Liability in Constitutional Tort Litigations,'' FBI Law Enforcement Bulletin, vol. 54, Nos. 4-5, April and May 1985.

769 Id. at 3038.770 Id. at 3039.

pg. 548


aggregation principleThis principle permits aggregation of the conduct of a member,

employee, agent or senior officer of such a body, with theconduct of other employees, agents or senior officers of theCrown.

carltona principle That it is impossible for certain government officials to deal

with cases on a one on one basis hence the need fordelegation.

pg. 549


SUING PUBLIC OFFICERS

sovereign immunitySovereign immunity, or crown immunity, is a legal doctrine by

which the sovereign or state cannot commit a legal wrong andis immune from civil suit or criminal prosecution.

In constitutional monarchies the sovereign is the historicalorigin of the authority which creates the courts. Thus thecourts had no power to compel the sovereign to be bound by thecourts, as they were created by the sovereign for theprotection of his or her subjects.

Under international law, and subject to some conditions,countries are immune from legal proceedings in another state.This stems from customary international law.771

abrogation doctrine The Abrogation doctrine is a constitutional law doctrine

expounding when and how the Congress may waive a state'ssovereign immunity and subject it to lawsuits to which thestate has not consented (i.e., to "abrogate" their immunity tosuch suits).

In Seminole Tribe v. Florida,772 the Supreme Court ruled that the Congress's authority,under Article One of the United States Constitution, could not be used to abrogatestate sovereign immunity.773 However, the Congress can authorize lawsuits seekingmonetary damages against individual U.S. states when it acts pursuant to powersdelegated to it by amendments subsequent to the Eleventh Amendment. This is mostfrequently done pursuant to Section 5 of the Fourteenth Amendment, which explicitlyallows the Congress to enforce its guarantees on the states and thus overridesstates' Eleventh Amendment immunity.

771 Akehurst's modern introduction to international law, by Peter Malanczuk, Michael Barton Akehurst, Routledge 7 ed., 1997, ISBN 041511120X, Page 118

772 517 U.S. 44 (1996)773 But see Central Virginia Community College v. Katz (state sovereign immunity not implicated

by the exercise of in rem jurisdiction by bankruptcy courts established under Article I'sBankruptcy Clause).

pg. 550

http://en.wikipedia.org/wiki/Central_Virginia_Community_College_v._Katz


The doctrine was first announced by the Supreme Court in aunanimous decision written by then-Associate Justice WilliamRehnquist, Fitzpatrick v. Bitzer,774. Bitzer "continued the line ofreasoning that Rehnquist had acknowledged in Fry v. UnitedStates ... that cases involving Congress’ authority underSection 5 present different problems than cases involving theCongress’s Commerce Clause authority."775

congruence and proportionality test this is a limitation to the abrogation doctrine, first discussed

in City of Boerne v. Flores,776. Because the Fourteenth Amendmentallows Congress to take "appropriate" action to enforcerights, the Court has determined that such action must becongruent and proportional to the deprivation of the rightthat the Congress is seeking to remedy. An example of a casewhere an act of the Congress failed the Boerne test is Kimel v.Florida Board of Regents,777. An example where an act passed theBoerne test is Nevada Department of Human Resources v. Hibbs,778.

adequate and independent state ground doctrine This is a doctrine is a doctrine of United States law governing

the power of the U.S. Supreme Court to review judgmentsentered by state courts.

The adequate and independent state ground doctrine states thatwhen a litigant petitions the U.S. Supreme Court to review thejudgment of a state court which rests upon both federal andnon-federal (state) law, the U.S. Supreme Court does not havejurisdiction over the case if the state ground is (1)‘adequate’ to support the judgment, and (2) ‘independent’ offederal law. The ‘adequacy’ prong primarily focuses on statecourt dismissals of federal claims on state proceduralgrounds, as procedural requirements are by definition

774 427 U.S. 445 (1976)775 R. Colker & J. Scott, Rehnquist & Federalism: an Empirical Perspective in C. Bradley, THE

REHNQUIST LEGACY, 279776 521 U.S. 507 (1997)777 528 U.S. 62 (2000)778 538 U.S. 721 (2003)

pg. 551


logically antecedent. Antecedent state-law grounds (i.e.,state rules of procedure) are adequate to support a judgmentunless they (1) are arbitrary, unforeseen, or otherwisedeprive the litigant of a reasonable opportunity to beheard,779 or (2) impose an undue burden on the ability oflitigants to protect their federal rights780.

The ‘independence’ prong focuses on decisions where the state andfederal rules are not clearly distinct. If it is not ‘apparentfrom the four corners’ of the opinion that the judgment restson an independent state law rule, then, unless it is‘necessary or desirable’ to obtain clarification from thestate court itself, the Supreme Court will presume that thedecision rested in part on federal law, thereby rendering itreviewable.781 Furthermore, when federal law limits the states’ability to change the definition of state-created legalinterests, the Supreme Court has jurisdiction to review thestate court’s characterization of the law both before andafter the change.

For example, the U.S. Supreme Court routinely reviews state court determinations ofstate property law to determine whether a litigant has been deprived of ‘property’within the meaning of the Due Process clause.

personal legal liability of public officers This doctrine states that a public officer who acts outside the

mandate of office and discretionary powers can be liablepersonally, under the following causes of action:

و tortuous liability

و criminal liability

و liability under administrative law

779 see, e.g., Staub v. City of Baxley 355 U.S. 313, 319-20 (1958)780 see, e.g., Felder v. Casey, 487 U.S. 131, 138 (1988)781 Michigan v. Long, 463 U.S. 1032, 1040 & n.6.

pg. 552


و contractual liability

و corrupt conduct and

و constitutional torts

و statutory torts.

public trust doctrineIn addition to personal liability under contract, tort, criminal

law and administrative law, there are underlying notions of"public trust" and fiduciary obligations with the publicstakeholders being the beneficiaries or the fiduciaries andpublic sector directors being the trustees.

public interest principleWhether public officials are liable for their actions is an

important issue at every level of government service, from thePresident to a local water board terminating service todelinquent customers, the issues are very similar. In eachcase, the guiding principle is the same: The public interestin shielding officials from litigation and personal financialliability, for damages caused by their actions while carryingout public business, outweighs the potential harm of thoseactions.

accountability (public administration), integrity (publicadministration) & transparency (public administration)

The concepts of accountability, together with the twin concepts ofintegrity, transparency have been identified by the UN countries,collectively and individually, as part of the foundingprinciples of public administration.782 In public

782 2 The UN Charter states, “The paramount consideration in the employment ofthe (UN) staff … shall be the necessity of securing the highest standards of efficiency, competence and integrity.” (Article 101) In addition, many Member States identify integrity, transparency and accountability among core values or founding principles for their public administrations in

pg. 553


administration, integrity refers to “honesty” or“trustworthiness” in the discharge of official duties, servingas an antithesis to “corruption” or “the abuse of office.”Transparency refers to unfettered access by the public to timelyand reliable information on decisions and performance in thepublic sector. Accountability refers to the obligation on thepart of public officials to report on the usage of publicresources and answerability for failing to meet statedperformance objectives. For instance, in Yemen, to upholdintegrity, “public servants must neither solicit nor acceptanything from their fellow citizens to perform their duties,thus creating a climate of confidence in themselves and in thepublic service as a whole.”783 In South Africa, “transparency mustbe fostered by providing the public with timely, accessibleand accurate information.”784 In the United Kingdom, accountabilityis a standard of public life, where “holders of public officeare accountable for their decisions and actions to the publicand must submit themselves to whatever scrutiny is appropriateto their offices.”785

efficiency principle The principle of efficiency can be traced to Ronald Coase’s efficiency

theorem on economic analysis of law, which argues that therole of law ought to be guided by the most efficient786

solution.

their constitutions and relevant laws.783 Yemeni Civil Service Act No. 19 (1991) and By-Law No. 122 (1992), cited in

forthcoming UN Report, Public Sector Transparency and Accountability in Selected Arab Countries: Policies and Practices

784 Constitution of the Republic of South Africa, 1996, Chapter 10, Article 195 (g)

785 12 Pope, Jeremy, forthcoming unpublished background paper for the 6th Global Forum on Reinventing Government, Dimensions of Transparency in Governance

786 Coase, The Problem of Social Cost, 386–405

pg. 554


immunity of public officers The immunity of public officers from personal liability for acts

performed in the course of their official duties has itsorigin in the common law. It is based upon a long standingpublic policy that public officers and employees should not bedeterred in the performance of official duties by fear theywill be personally liable for consequences that may resultfrom the performance of those duties. Clearly, publicadministrators have to exercise substantial discretion inmanaging their programs and agencies, and most are aware ofthe potential legal ramifications of their actions787.

In recent years, however, the courts have qualified the immunityof officials (meaning that it is not absolute). The change indirection has been attributed to the case of Bivens v. Six UnknownFederal Narcotics Agents788 in which narcotics agents burst intoBivens’ home without a search warrant and without probablecause, used excessive force, threatened to arrest his family,and interrogated and jailed him.

On the other side, there is immunity being given to certainpublic officers due to their work, with its origins in commonlaw, from personal liability for acts performed in the courseof their official duties. It is based upon a long standingpublic policy that public officers and employees should not bedeterred in the performance of official duties by fear theywill be personally liable for consequences that may resultfrom the performance of those duties. This hence calls for aspecial balancing of the treatment accorded to the publicofficers.

corruption corruption broadly to mean the solicitation or acceptance,

directly or indirectly, by a public official, of any goods ofmonetary value, or benefits, such as a gift, favour, promise,

787 Warren, 1997: 277788 Bivens v. Six Unknown Federal Narcotics Agents 403 U.S. 388 (1971), available at

http://www.hrcr.org/safrica/enforcement/bivens_narcotics.html accessed on July 19, 2011

pg. 555


advantage or any other form of gratification for himself orherself or for another person or entity, in exchange for anyact or omission in the performance of his or her publicfunctions

public servants, state officers, public officers, publicemployees

Public servant refers to all people who do government’s work,including staff and officials, elected members of boards andcommissions, elected representatives/officials, and otherworkers.789 It also refers to people who do the work on acontractual basis, together with government businessenterprises.790

Public officer or state officer on the other hand, in case ofnatural legal persons, refers to a public servant whose officeis specifically created by legislation, take oath of office,perform legal duties and have discretion in performance ofduties791. In case of juridical legal persons, refers to acorporation which is a creation of law, and performs publicfunctions, either as independent contractor, constitutionalcommission, tribunals, chartered corporation, governmentbusiness enterprises or public corporation.792 These personsare covered under public official immunity on the principle ofefficiency, so that they are not hesitant to take action, giventheir broad base of discretionary actions.

Public employees on the other hand are those whose duties areadministrative, and hence act more or less at the discretionof others.793 They include law enforcement personnel, publicworks officials, etc. The main reason for failing to coverthem with public official immunity is because they haveclearly written codes of action, and do not have wide

789 Anita Brown. (2002) County and Municipal Government in Northern Carolina. Chapter 12, ‘CivilLiability of Local Government and Its Employees’ . North Carolina. ISBN. 978-8-105511

790 Id 791 See Piggot v City of Wilmington. 50 NC, App. 401 , 273,. S. ed 752792 Deductive expansion of the doctrine of corporate legal personality under Salomons Rule, as

stated in Lee v Lee's Air Farming [6] AC 12 793 Id at Pg. 275

pg. 556


discretion in decision making, which might hamper efficientperformance of duties. They hence benefit from qualifiedimmunity, which insulates responsible officers ``from undueinterference with their duties and from the potentially disabling threat of liability,''and it shields from civil liability ``all but the plainly incompetent orthose who knowingly violate the law.''794

personal contract liability or "warranty of authority" ruleSenior public officers are in a reasonably secure position when

it comes to contracts.They are generally not a party to a contract or liable under it.

They will be liable only if they contact personally, and notas an agent of the employer, or, if they come within the"warranty of authority" rule.

This "warranty of authority" rule might make the public servantor agent liable to the third party if that person:

did not have authority to bind the Government; represented expressly that he or she had authority; and the third party entered into the contract in reliance on that representation.

There 1897 English Court of Appeal decision of Dunn v Macdonald 795

held that a Government servant acting on behalf of theGovernment could not be held personally liable under animplied warranty of authority. The rule however does not applywhere,

In any event, the rule does not apply where: the agent's lack of authority is clear as a matter of law; and the third party should have been aware of this lack of authority. If a government

employee enters into a private contract which necessarily or tends directly to

794 See Harlow v. Fitzgerald, 102 S.Ct. 2727, 2738 (1982). For a comprehensive analysis of the Harlow decision, see Higginbotham, ``Defending Law Enforcement Officers Against Personal Liability in Constitutional Tort Litigations,'' FBI Law Enforcement Bulletin, vol. 54, Nos. 4-5, April and May 1985.

795 1 QB 55]

pg. 557


interfere with the proper discharge of his or her duties, the contract will be contraryto public policy and void 796

Officers who negotiate or enter into contracts that bind theGovernment and who exceed their authority or, by somemisconduct, negligence, incompetence, carelessness,impropriety or inefficiency, cause loss or damage to theGovernment, may be dealt with under the disciplinaryprovisions of the various Acts or by a special inquiry.

personal criminal liabilityThe Government, in all its capacities, can be subject to criminal

liability by express words or implication in a statute. Ofcourse, the Government cannot be imprisoned, but fines andother penalties can be imposed.797 The Government can only actthrough its officers and agents. If the Government is immunefrom a criminal provision by express words or implication, sotoo might the Government officer or agent be immune. Eachstatute applicable to a given or proposed set of facts willnow have to be examined specifically to ascertain thepotential and scope for the possible allocation of personalcriminal responsibility. With the proliferation of strictliability offences in recent years, particularly in theenvironmental area, public officers must re-examine theirpotential liability in all areas in which they operate.

As to the extent to which public officers may share the immunityof the Government, a lot depends on whether the criminalconduct was undertaken in the course of employment and whetherthe application of the provision would prejudice the interestsof the Government. If there is no prejudice to the Governmentthe officer may be liable. If there is prejudice, the officerwill be protected.798

796 [Wood v Little (1921) 29 CLR 56]. 797 [See, generally, Hogg, op cit, pages 232 to 235.]798 Id 232-235

pg. 558


prosecution between government departments, inter seThe policy of collective responsibility doctrine in government

relations; requires government agencies to work together.However, within the pollution control area, some departments,or even states in a federation, like US and Australia, can anddo prosecute each other, for, conduct of individual publicofficers.

personal liability in administrative lawIn administrative law, invalid administrative decisions do not

give rise to liability in damages. Decisions of publicofficers, particularly those exercising independent decision-making power, are open to be declared invalid for being, orbeing found to be, ultra vires. The doctrine of ultra vires can bedescribed in a number of ways. There are two broad areas:

The first is variously called narrow or simple ultra vires and involves a complete lackof substantive or incidental power to do an act.

The second area is broad, or extended ultra vires which covers procedural defectsand deficiencies (sometimes called "procedural ultra vires") and abuse of power, acategory which contains the remainder of the administrative law rules that couldrender decisions void or illegal.

Put together, the two areas of ultra vires provide for grounds ofjudicial review under the relevant Acts or the common law.

Personal liability can also be used to discipline governmentofficials and assesses it as an alternative to traditionaladministrative law.

personal liability for independent actsIf a government officer is granted an independent power or duty,

the exercise of which is not subject to the supervision ordirection of anyone, that officer is personally liable for anyconsequences flowing from an independent act. The Governmentor Government employer of that officer is not vicariouslyliable at common law for such acts. The rationale for theprinciple is that the person is not a servant or agent of his

pg. 559


or her employer in relation to the exercise of theseindependent, and usually statutory, powers.799 Most governmentshave Acts that specifically permit the Government to bevicariously liable in respect of independent acts of policeofficers. Some jurisdictions leave their position to bedictated by the common law. In yet some other jurisdictions,vicarious liability applies to government employees orservants, but not when they exercise an independent statutorydiscretion.

independent statutory discretion principleAnother novel feature of some jurisdictions in their

jurisprudence in personal liability of public officers is theindependent statutory discretion doctrine. Some jurisdictionsconsider that an officer exercising independent discretionarypower is not necessarily a "servant" or "agent" of thegovernment and so, that officer might be personally liable forindependent acts.

If a government officer and the Government are successfully suedfor the tortuous conduct of the officer in the course ofemployment, the Government now pays the damages and cannotlook to its officers for reimbursement or contribution.However, the Government may do so if the conduct of theofficer who committed the tort constituted serious and willfulmisconduct.800 If a negligent government officer is the onlyone successfully sued and not the Government the officer wouldhave to pay. Obviously the plaintiff would try to join theGovernment as a defendant, under the deep pocket doctrine oflitigation801.

799 [See, Enever v The King (1906) 3 CLR 969; Baume v Commonwealth (1906) 4 CLR 97; and Little v Commonwealth (1947) 75 CLR94.]

800 [section 5(a) Employees Liability Act 199].801 See deep pocket doctrine, Ojijo. General Principles of Law

pg. 560


professional liability insurance802 Professional liability insurance covers allegations that an

employee violated the rights of another employee or a privatecitizen while carrying out his or her official duties. If theallegation results in a criminal or administrativeinvestigation, the insurance policy would provide a privatelawyer to represent the accused employee during theinvestigation. If a disciplinary action, such as a suspensionor a removal, is proposed or taken, the policy would coverrepresentation of the employee until the Board makes a finaldecision. In cases where an employee is accused of aconstitutional tort, the policy would cover attorneyrepresentation and the payment of any personal judgmentagainst the covered employee. Some policies also coverrepresentation during arbitration under a collectivebargaining agreement.

executing a bondApart from liability insurance, public officers can also execute

a bond, which acts as insurance, to cover legal costs. insurance for public officers by government (bodies)The government, or other state body, may also dispense with the

rigueur of stat immunity, and purchase insurance for itspublic officers, so as to dispense with the complex difficultyin ascertaining whether or not state immunity will act toprotect the public officer. This dispenses with theuncertainty, which is the main public interest goal of havingimmunity in the first place. This is further a good publicpolicy tool since the government then will provide a remedyfor citizens who would otherwise not be compensated by thewrongful acts of its employees and public servants. Finally,such insurance, when purchased, is limited to tort claims,hence offers clear certainty for both defendants, and

802 See generally, Anita Brown. (2002) County and Municipal Government in Northern Carolina.Chapter 12, ‘Civil Liability of Local Government and Its Employees’ . North Carolina. ISBN.978-8-105511

pg. 561


claimants. This also acts as a cap on the amount that can beclaimed, and informs the actions of the claimants.

participation in risk poolsRisk pools are agreements which involve various legal entities,

mainly corporate bodies, either jointly purchasing insuranceor pooling resources and keeping in a kitty to pay for claims.

insurance’ fundAn organisation can establish an agency based fund to pay for

claims against it by claimants, or plaintiffs. absolute immunityCertain officials have been given absolute immunity due to the

importance of their function in government. These includelegislators, judges, public officials on the witness stand(but not as complaining witnesses), some administrative reviewboards and panels, and prosecutors. It shields publicofficials from being sued for official acts without regard tomotive.

test for absolute immunity The general tests for whether the office qualifies for absolute

immunity are: (1) whether a common law basis for immunityexists, (2) whether, without the immunity, and unreasonablerisk of litigation exists, and (3) whether alternatives todamage suits exist to control wrongful conduct by theofficial.

discretionary immunitySee principle of qualified immunity

qualified immunityPositions that have qualified immunity are school board trustees,

city council members, water board directors and elected countyofficials. Some appointed officials, such as directors of non-profit corporations, industrial development corporations and

pg. 562


housing finance corporations, do not, however, have the samestatutory and common law immunities from suit.

discretionary immunity The courts will not revise decisions that have been left to the

discretion of local legislative bodies. Discretionary immunityis a narrow court-created exception to the Legislature’sabolition of sovereign immunity.803 Discretionary immunityserves to assure that courts refuse to pass judgment on policydecisions in the province of coordinate branches ofgovernment.804 To be protected by such immunity, an act,omission, or decision must involve an exercise of basic policyevaluation, judgment and expertise by the governmental agencyinvolved.805 The activity must involve basic policy discretionrather than the implementation of policy.806 Thus, only “highlevel discretionary acts exercised at a truly executive level”are protected.807

discretionary functionDiscretionary function is “an action that involves room for policy judgment or

the responsibility for deciding the adaptation of means to an end, and discretion indetermining how or whether the act shall be done or the course pursued. . . . Insofaras an official action involves both the determination of facts and simple cause-and-effect relationships and also the assessment of costs and benefits, the evaluation ofrelative effectiveness and risks, and a choice among competing goals and priorities,an official has discretion to the extent that he has been delegated responsibility forthe latter kind of value judgment.”808

discretionary dutyA discretionary duty is defined as "one requiring the exercise of judgment

in its performance, in contrast to a ministerial duty, which is one where nothing is

803 Bender v. Seattle, 99 Wn.2d 582, 587, 664 P.2d 492 (1983); Evangelical United Brethren Church v. State, 67Wn.2d 246, 255, 407 P.2d 440 (1965); see also Haberman v WPPSS, 109 Wn.2d 107, 158, 744 P.2d1032 (1987)

804 Bender, at 588; King v. Seattle, 84 Wn.2d 239, 246, 525 P.2d 228 (1974).805 Evangelical United Brethren Church, at 255.806 Mason v. Bitton, 85 Wn.2d 321, 327-29, 534 P.2d 1360 (1975); Bender, at 588-90.807 Bender, at 588.808 Thornton v. City of St. Helens, 425 F.3d 1158, 1168 (9th Cir. Or. 2005)

pg. 563


left to discretion--a simple and definite duty, imposed by law, and arising underconditions admitted or proved to exist.”809

judicial immunity Judicial Immunity is a form of legal immunity which protects

judges and others employed by the judiciary from lawsuitsbrought against them for official conduct in office, no matterhow incompetent, negligent, or malicious such conduct mightbe, even if this conduct is in violation of statutes.810

The purpose of judicial immunity is twofold: it encourages judgesto act in a ‘fair and just’ manner, without regard to thepossible extrinsic harms their acts may cause outside of thescope of their work. It protects government workers fromharassment from those whose interests they might negativelyaffect.

Judicial immunity doesn't protect judges from suits stemming fromadministrative decisions made while off the bench, like hiringand firing decisions. But immunity generally does extend toall judicial decisions in which the judge has properjurisdiction, even if a decision is made with ‘corrupt ormalicious intent.’811

Historically, judicial immunity was associated with the Englishcommon law idea that ‘the King can do no wrong.’ (Compare Sovereignimmunity.) Judges, the King's delegates for dispensingjustice, accordingly ‘ought not to be drawn into question for any supposedcorruption [for this tends] to the slander of the justice of the King.’ 812

809 Crowell v. Kirkpatrick, 2009 U.S. Dist. LEXIS 105410 (D. Vt. Sept. 14, 2009)810 Jones, Ashby (November 12, 2009). ‘New Lawsuits Try to Pierce Shield of

Judicial Immunity’. The Wall Street Journal.811 Meiners, Roger; Ringleb & Edwards (2008). The Legal Environment of Business, Tenth

Edition. pp. 43. ISBN 978-0-324-65436-3.812 Floyd & Barker, 12 Co. Rep. 23, 25, 77 Eng. Rep. 1305, 1307 (Star Chamber

1607).

pg. 564


sovereign immunity Sovereign immunity, or crown immunity, is a legal doctrine by

which the sovereign or state cannot commit a legal wrong andis immune from civil suit or criminal prosecution. Inconstitutional monarchies the sovereign is the historicalorigin of the authority which creates the courts. Thus thecourts had no power to compel the sovereign to be bound by thecourts, as they were created by the sovereign for theprotection of his or her subjects.

legislative immunity The absolute immunity given to legislators for their action is

called legislative immunity, and only applies where thedefendant was acting in legislative capacity, and the act waslegal. The act need not be in good faith.813

qualified immunities Qualified immunity protects public officials from being sued for

damages unless they violated “clearly established” law ofwhich a reasonable official in his position would have known.It aims to protect civil servants from the fear of litigationin performing discretionary functions entrusted to them bylaw. The qualified immunity test requires a two-part analysis:"(1) Was the law governing the official's conduct clearlyestablished? (2) Under that law, could a reasonable officerhave believed the conduct was lawful?" Government officialsperforming discretionary functions generally are shielded fromliability for civil damages as long as as their conduct doesnot violate clearly established statutory or constitutionalrights of which a reasonable person would have known.Positionsthat have qualified immunity are school board trustees, citycouncil members, water board directors and elected countyofficials. Some appointed officials, such as directors of non-profit corporations, industrial development corporations and

813 Vereen V Holden. 121 NC App 779

pg. 565


housing finance corporations, do not, however, have the samestatutory and common law immunities from suit.

tests of good faith for qualified immunity There are two tests of good faith the public official must pass

before qualified immunity is earned: “objective” and“subjective.”

test of objective good faithThe first test of objective good faith is failed if an official knew or

should have reasonably known that the action he/she tookwithin the sphere of official responsibility would violate anindividual’s statutory or constitutional rights. In otherwords, if an official knows (or should have known) what therules are and collates them to damage of another, he/she maynot have immunity from litigation.

test of subjective good faithA public official can fail the test of subjective good faith is he/she

acts with malicious intent to cause the deprivation of anindividual’s clearly established statutory or constitutionalrights. However, it the official acts in bad faith, andwillful and malicious intent, then there will be damagesawarded against them. As long as public official act in goodfaith, damages will not be awarded against them. No publicinterest is served by granting public officers immunity fromintentional wrongful acts.

liability for corrupt conductAnother area of potential personal liability is in "corrupt

conduct". There is much public confusion when there is heard apublic official has been found corrupt under relevant acts.The public has its own understanding of the meaning ofcorruption. It involves bribes, fraud, secret commissions, andserious abuses of power and trust. This is also corruption inthe common law sense.

pg. 566


However, corrupt conduct814 is: the conduct of any person (whether or not a public official) that adversely affects or could adversely affect either directly or indirectly the honest or impartial exercise of official functions.It constitutes or involves: a breach of public trust a misuse of information or material acquired in the course of

official functions fraud treating tax or revenue evasion embezzlement secret commissions bribery blackmail, and official misconduct.[See more categories of corrupt conduct.Official misconduct includes: fraud in office breach of trust nonfeasance misfeasance oppression extortion or imposition.Corrupt conduct only relates to "serious matters", because

conduct is not corrupt unless it could constitute or involve: a criminal offence; a disciplinary offence; or reasonable grounds for dismissal.

814 s8 (2) of the ICAC Act.]

pg. 567


The reality is that it is improbable that a senior officer willbe dismissed or fined for inefficiency or carelessness.

illegalityThe decision maker must understand correctly the law that

regulates his decision-making power and must give effect toit. Whether he has or not is par excellence a justiciablequestion’. A number of examples of illegality are listedbelow.

delegates non potest delegare (the carltona principle) This Latin phrase translates as "a delegate cannot delegate",

i.e., an agent cannot delegate his own responsibilities orobligations as an agent to a sub-agent without the permissionor knowledge of the principal of whom he/she is the agent.Therefore, an exception of the above rule is when theprincipal consents to allow the agent to delegate the agent'sduties to a sub-agent. Most functions of administrative bodiesare made easy by the virtue and application of this principle,which allows them to make legislations and regulations. Suchlegislations are called ‘delegated legislation’ (sometimesreferred to as secondary legislation or subordinatelegislation), that is, law made by an executive authorityunder powers given to them by primary legislation in order toimplement and administer the requirements of the acts. Suchlegislation is subject specific, using technical knowledgefrom qualified individuals, creating a more thorough, detailedand smoother running piece of legislation. The Carltona Principlesimply states that it is impossible for certain governmentofficals to deal with cases on a one on one basis hecne theneed for delegation.

decision ultra viresThis principle states that an administrative body must act only

within the powers given to it by the statutes815. An act henceis deemed to be substantively ultra vires when either it is against

815 P.craig, “ultra vires and the foundatiuon of judicial review” (1996) c.l.j. 63

pg. 568


the particular wording of the statute in matters of substancethrough; exercising power in excess of statutory limits;acting in excess of jurisdiction; and breach of the principlesof natural justice, and to be procedurally ultra vires if theadministrative body fails to follow prescribed procedure or anerror occurs in following procedure matters of procedure thatare not in the statutes may be applicable under common law.816

maker acting ultra vires When a body is described as acting ultra vires it is acting beyond

its prescribed powers. An action can be ultra vires where it thebody has taken an action which is incompatible with a higherlegal authority (such as primary or subordinate legislation).Difficulties in this area can also arise where a body is usinga statutory power for a collateral purpose (namely one whichis alien to the purpose for which it was granted). Where abody (such as a local authority) is exercising a power wherethe statute under which it acts has set out a particularprescribed procedure, if the procedure is not followed, thismay (in some circumstances) also make the action ultra vires.

unlawfully delegating power or fettering discretion A public body is not entitled either to improperly delegate its

powers or to act under a completely inflexible policy. Inparticular, while it is accepted that Ministers cannotpersonally make every decision issued in their name wherelegislation confers a power on a specified individual or body,the power cannot be delegated to another person or body.Moreover, a body or tribunal is not entitled blindly to followpolicy guidelines. Neither is it entitled to fetter theexercise of its discretion.

taking into account irrelevant considerationsA claim for judicial review can lie where a body or tribunal has

either disregarded a relevant consideration, or taken intoaccount an irrelevant consideration when reaching a decision.

816 p.p. craig ‘(2003) administrative law” 5th edition.

pg. 569


error of law or error of factThe court will quash a decision where the authority has

misunderstood a legal term or incorrectly evaluated a factthat is essential for deciding whether or not it has certainpowers. However, where a term to be evaluated by the authorityso broad and vague that reasonable people may reasonablydisagree about its meaning, it is generally for the authorityto evaluate its meaning.

irrationalityA decision is irrational if it is so outrageous in its defiance

of logic or of accepted moral standards that no sensibleperson who had applied his mind to the question could havearrived at it. Unlike illegality and procedural impropriety,the courts under this head look at the merits of the decision,rather than at the procedure by which it was arrived at or thelegal basis on which it was founded. The question to ask iswhether the decision ‘makes sense’. In many circumstanceslisted under ‘illegality’, the decision may also be considered‘irrational’. They include;

obligation to act reasonably It is not practical to say that a decision must be absolutely

correct or that the courts would necessarily have made thesame decision. However, in making the decision you must applylogical or rational principles. If a decision is challenged,the court will examine the decision to see whether it was madeaccording to logical principles, and will often expresslydisavow any intention to substitute its own decision for thatof the decision maker. There are sound practical, as well aslegal/constitutional reasons for the Court adopting this‘hands off’ approach: the decision maker may be aware ofpolicy implications or other aspects of the public interestwhich are not obvious to the Court.

pg. 570


fairnessFairness demands that a public body should never act so unfairly

that it amounts to an abuse of power. This means that thereare express procedures laid down by legislation that it mustfollow in order to reach a decision, it must follow them andfurther, it must not breach the rules of natural justice. Oneof the key issues here is the rule against bias, whichrequires the public body to be impartial and to be seen to beso.

There must also be a ‘fair hearing’ before a decision is reached,although this does not always literally mean an oral hearing.Basically, a person is entitled to know the case against them,and must have the opportunity to put their case properly. Anyother requirements above and beyond this will depend on theseriousness of the issue, for example, if someone’s livelihoodor liberty is at stake.

Unfairness could include the following:a. Failing to tell the individual what the case was against them, or taking into account

evidence or factors, which s/he was not aware of

b. Failing to allow the individual to put their case forward

c. Failing to give the individual the facilities for putting their case forward properly

d. Refusing to hear evidence which might have led to a different decision

e. Denying access to relevant documents

f. Holding a hearing in the absence of the individual when they had a good reason fornot being able to attend

g. Failing to notify the individual of the time and place of the hearing that would leadto the decision being taken

h. Failing to consult those who the public body had a duty to consult, or those who had‘legitimate expectation’ that they would be consulted before the decision was made,perhaps because they had been consulted in the past or because it would seemobvious that someone has an interest in a matter and should be consulted.

pg. 571


i. Finally, fairness may also demand that the public body give reasons for theirdecision. Certain statutory procedures will require this, although there is no specificrequirement in law generally.

procedural improprietyComplaints can also be made, not merely in respect of the

decision taken, but the procedure by which the decision wasmade. A decision suffers from procedural impropriety if in theprocess of its making the procedures prescribed by statutehave not been followed or if the 'rules of natural justice'have not been adhered to. Some examples are listed below:

statutory proceduresAn Act of Parliament may subject the making of a certain decision

to a procedure, such as the holding of a hearing or aconsultation with an external adviser. Some decisions may besubject to approval by a higher body. Courts distinguishbetween ‘mandatory’ requirements and ‘directory’ requirements.A breach of mandatory procedural requirements will lead to adecision being set aside for procedural impropriety.

pg. 572


seven principles of public lifeAdministrative officers, and public officers, are guided by the

'Seven Principles of Public Life' should apply to all in the publicservice. These are:

1. principles of public life (Selflessness): Holders of public officeshould act solely in terms of the public interest. They should not do so in order togain financial or other benefits for themselves, their family or their friends.

2. principles of public life (Integrity): Holders of public office shouldnot place themselves under any financial or other obligation to outside individualsor organisations that might seek to influence them in the performance of theirofficial duties.

3. principles of public life (Objectivity): In carrying out publicbusiness, including making public appointments, awarding contracts, orrecommending individuals for rewards and benefits, holders of public office shouldmake choices on merit.

4. principles of public life (Accountability): Holders of public officeare accountable for their decisions and actions to the public and must submitthemselves to whatever scrutiny is appropriate to their office.

5. principles of public life (Openness): Holders of public office shouldbe as open as possible about all the decisions and actions that they take. Theyshould give reasons for their decisions and restrict information only when the widerpublic interest clearly demands.

6. principles of public life (Honesty): Holders of public office have aduty to declare any private interests relating to their public duties and to take stepsto resolve any conflicts arising in a way that protects the public interest.

7. principles of public life (Leadership): Holders of public office shouldpromote and support these principles by leadership and example.

Administrative law is the body of law that governs the activitiesof administrative agencies of government. Government agencyaction can include rulemaking, adjudication, or theenforcement of a specific regulatory agenda. Administrativelaw is considered a branch of public law. As a body of law,administrative law deals with the decision-making ofadministrative units of government (for example, tribunals,boards or commissions) that are part of a national regulatory

pg. 573


scheme in such areas as police law, international trade,manufacturing, the environment, taxation, broadcasting,immigration and transport. Administrative law expanded greatlyduring the twentieth Century, as legislative bodies worldwidecreated more government agencies to regulate the increasinglycomplex social, economic and political spheres of humaninteraction.

Civil law countries often have specialized courts, administrativecourts, which review these decisions. The plurality ofadministrative decisions contested in administrative courts isrelated to taxation.

absolute nullityThe civil law doctrine of absolute nullity and its common law

‘void’ equivalent deprive offending contracts of theirintended effect because the societal interests impinged uponby the contested agreement transcend those of the individualcontracting parties.

test of good faith (qualified immunity) There are two tests of good faith the public official must pass

before qualified immunity is earned: ‘objective’ and‘subjective.’ The first test of objective good faith is failedif an official knew or should have reasonably known that theaction he/she took within the sphere of officialresponsibility would violate an individual’s statutory orconstitutional rights. In other words, if an official knows(or should have known) what the rules are and collates them todamage of another, he/she may not have immunity fromlitigation. A public official can fail the test of subjectivegood faith is he/she acts with malicious intent to cause thedeprivation of an individual’s clearly established statutoryor constitutional rights. As long as public official act ingood faith, damages will not be awarded against them.However, it the official act sin bad faith, and willful and

pg. 574


malicious intent, then there will be damages awarded againstthem.

public dutyThose certain local government activities do not create liability

for individual members of the public. There are two exceptions to the public duty doctrine.

و First, there may be a special relationship between the plaintiff, and the government,for instance, the relationship between police and informant.

و The second exception is when the government makes a special promise to theplaintiff.

quo warranto Quo warranto (Medieval Latin for ‘by what warrant?’) is a

prerogative writ requiring the person to whom it is directedto show what authority they have for exercising some right orpower (or ‘franchise‘) they claim to hold. In somejurisdictions which have enacted judicial review statutes,such as Queensland (Australia), the prerogative writ of quowarranto has been abolished.817

writ of prohibition A writ of prohibition is a writ directing a subordinate to stop

doing something the law prohibits. In practice, the Courtdirects the Clerk to issue the Writ, and directs the Sheriffto serve it on the subordinate, and the Clerk prepares theWrit and gives it to the Sheriff, who serves it. This writ isnormally issued by a superior court to the lower court askingit not to proceed with a case which does not fall under itsjurisdiction.

817 Sn 42 Abolition of quo warranto, Judicial Review Act 1991, Queensland Consolidated Acts

pg. 575


abuse of process doctrineDespite the sanctity of the courts and judicial organs in

preserving and protecting the legal rights, there are certaininstances when litigants maliciously and deliberately misusethe court process. This use of legal process to accomplish anunlawful purpose; causing a summons, writ, warrant, mandate,or any other process to issue from a court in order toaccomplish some purpose not intended by the law is calledabuse of process.818 The courts, as houses of justice, musthence protect their integrity, and disallow any person frommisusing the judicial process for unfair and unjust ends. Tofacilitate this, the courts have developed a common law maximof the doctrine of abuse of court process. Abuse of process has beendefined as something so unfair and wrong with the prosecutionthat the court should not allow a prosecutor to proceed withwhat is, in all other respects.819 'Unfair and wrong' is for thecourt to discretionally820 determine on the individual facts ofeach case.

Elsewhere, abuse of process is defined as a cause of action intort arising from one party making a malicious and deliberatemisuse or perversion of regularly issued court process (civilor criminal) not justified by the underlying legal action.

‘The doctrine of abuse of process engages the inherent power of the court to prevent themisuse of its procedure in a way that would be manifestly unfair to a party to thelitigation before it or would in some other way bring the administration of justiceinto disrepute. It is a flexible doctrine unencumbered by the specific requirements ofconcepts such as issue estoppel.’821

818 See Black's Law Dictionary, 6th ed (St. Paul: West Pub Co, 1990), p 305.819 Hui Chi-Ming v R [9] 1 A.C. 34, PC).820 Discretion was defined in the English case of R V WILKENS [ 4 B URR 252.]

in which Lord Marsfield C.J wrote that ‘discretion when applied to a courseof justice means sound discretion guided by law. It must be governed by rule not by humour. It must not be arbitrary, vague and fanciful but legal and regular’

821 See Toronto (City) v. C.U.P.E., Local 79, [0] 3 S.C.R. 77 and Canam Enterprises Inc. v. Coles(2000), 51 O.R. (3d) 481 (C.A.)

pg. 576


In the case of Cartwright v. Wexler, Wexler & Heller, Ltd., 822the courts gavea definition of the elements of abuse of process thus:

1. the existence of an ulterior purpose or motive underlying the use of process, and 2. some act in the use of the legal process not proper in the regular prosecution of the

proceedings.”

Elements of abuse of process are:i. improper use of the court’s process;ii. ulterior or improper motive of the defendant in exercising such illegal use of

process;iii. damage to the plaintiff resulted from such abuse of process.

The doctrine of abuse of process serves dual purposes of ensuringjustice, on one side, while also protecting the dignity andsanctity of the courts as a judicial institution.

Andrew L.T. Choo 823 argues that the development of the abuse ofprocess discretion in civil litigation has been one which hasbeen taking place gradually for over 100 years. On thecriminal side, however, the discretion received relativelylittle attention until the 1964 decision of the House of Lordsin Connelly v DPP824 and thus the development of the discretion hasbeen confined in the main to the last three decades.

Justice C.K. Thakker,825 has listed what amounts to abuse of theprocess. He writes that a party in litigation may also beguilty of abuse of the process of the court in various cases,for example., gaining an unfair advantage by the rule ofprocedure, retention of a benefit wrongly gained, resorting toand encouraging multiplicity of proceedings, circumventing thelaw by indirect means, instituting vexatious, obstructive ordilatory actions, executing a decree manifestly at variancewith its purpose and intent, institution of a suit by a puppetplaintiff. From the foregoing, it is clear that abuse ofprocess is an important concept in the administration of

822 369 N.E.2d 185, 187 (Ill. App. Ct. 1977).823 (1993)824 [AC 1254, 196]825 (2000)

pg. 577


justice, by both ensuring justice while also ensuring theprotection of the credibility of judicial institutions.

harm principle (public officers)The legal rules for liability for government officials are shaped

by the concern that the government and public officials shouldbe accountable for negligent or intentionally harmful actions.The courts balance the value of the service against thepotential harm caused by improper actions. Even if the actionexceeds the department's legal authority or is based onnegligent decision making, the public officer will be immune,unless the plaintiff can show that the officer knew or shouldhave known the action was illegal or improper. Mistakes alonedo not result in liability. It holds that the actions ofindividuals should only be limited to prevent harm to otherindividuals. This principle is based on John Stuart Mill’sthesis first articulated in On Liberty, where he argued that "theonly purpose for which power can be rightfully exercised over any member of acivilized community, against his will, is to prevent or remedy harm done to othersharm to others (emphasis mine)."826

reasons should be given for decisions Currently, the principles of natural justice do not include a

general rule that reasons should be given for decisions.827 InR. v. Northumberland Compensation Appeal Tribunal, ex parte Shaw (1951),828

Denning L.J. stated: ‘I think the record must contain at least the documentwhich initiates the proceedings; the pleadings, if any; and the adjudication; but notthe evidence, nor the reasons, unless the tribunal chooses to incorporate them. If thetribunal does state its reasons, and those reasons are wrong in law, certiorari lies toquash the decision.’829 It has been stated that ‘no single factor

826 John Stuart Mill (1859). On Liberty. Oxford University. pp. 21–22.827 Re Siah Mooi Guat [8] 2. S.L.R.(R.) 165 at 178–179, para. 34, H.C.

(Singapore).; see also R. v. Secretary of State for the Home Department, ex parte Doody [9]UKHL 8, [9] 1 A.C. 531 at 560, H.L. (United Kingdom).

828 R. v. Northumberland Compensation Appeal Tribunal, ex parte Shaw [5] 1 K.B. 338, C.A. (England & Wales).

829 Ex parte Shaw, p. 352.

pg. 578


has inhibited the development of English administrative law asseriously as the absence of any general obligation upon publicauthorities to give reasons for their decisions’830

patent unreasonableness testSee patently unreasonable test patently unreasonable testPatently unreasonable or the patent unreasonableness test was a

standard of review used by a court when performing judicialreview of administrative decisions. It was the highest ofthree standards of review: correctness, unreasonableness, andpatent unreasonableness. Although the term ‘patentunreasonableness’ lacked a precise definition in the commonlaw, it was somewhere above unreasonableness, and consequentlyit was relatively difficult to show that a decision ispatently unreasonable. A simple example of a patentlyunreasonable decision may be one that does not accord at allwith the facts or law before it, or one that completelymisstates a legal test.

polycentricity Polycentricity is a concept in administrative law. According to

the Supreme Court of Canada in Pushpanathan v. Canada,831 ‘a polycentric issueis one which involves a large number of interlocking and interacting interests andconsiderations.’832 According to the court, academic commentatorshave suggested that polycentricity provides ‘the best rationale forjudicial deference to non-judicial agencies’.833 The court explained that:834

While judicial procedure is premised on a bipolar opposition of parties, interests, andfactual discovery, some problems require the consideration of numerous interests

830 Keith Frank Goodfellow (1971), Administration under Law: A Report by JUSTICE, London: Stevens, p. 23, ISBN 978-0-420-43710-5.; see also Endicott, p. 110.

831 [9] 1 S.C.R. 982, para. 36.832 Pushpanathan v. Canada (Minister of Citizenship and Immigration), [9] 1

S.C.R. 982, para. 36.833 Id 834 Id para. 36.

pg. 579


simultaneously, and the promulgation of solutions which concurrently balancebenefits and costs for many different parties. Where an administrative structuremore closely resembles this model, courts will

prerogative writs Prerogative writs are a class of writs which originate from

English law. Originally they were available only to the Crown,but later they were made available to the monarch's subjectsthrough the courts.835

The prerogative writs are:

و certiorari

و habeas corpus

و mandamus

و prohibition

و procedendo

و quo warranto

و scire facias

835 (C.J. Antieau, The Practice of Extraordinary Remedies: Habeas Corpus and the Other Common Law Writs, Vol. II, at 802 (‘Once known as a prerogative writ, scire facias is now better described as one of the extraordinary writs’) (1987)

pg. 580


DISPUTE RESOLUTION IN PUBLIC INTERNATIONAL LAW

peaceful settlement of disputesIn accordance with the UN Charter (Clause 3, Article 2)

Declaration on Principles of International Law in 1970formulated the principle as follows: ‘Every State shall settletheir international disputes with other States by peacefulmeans in such a way as not to endanger international peace andsecurity and justice. ‘ From this it follows that the mainframework of this principle is used only peaceful means ofresolving disputes and maintaining at this state of peace inthe world community. With regard to the specific means, thenhere in the States remains a wide choice.

Normative content of this principle has in recent years under theclose scrutiny of experts of the CSCE. Meeting in Valletta(Malta, 1991) recommended that the parameters of a pan-European system of peaceful settlement of internationaldisputes. Outcome, in particular, provides for theestablishment of a special body – the CSCE Dispute Settlement‘, which can be used at the request of either party to thedispute and acts as a mediating body.

sovereign equality of nationsSovereign equality is a fundamental axiomatic premise of the

international legal order. It is the source of other mostimportant principles such as the ban on the use of force andthe prohibition of intervention.

These latter principles, although politically of the highestimportance, may be logically classified as pertaining to asecondary normative category since they are designed to ensureand guarantee the effectiveness of sovereign equality, stillthe Grundnorm (basic principle) of the present-dayinternational legal order.836

836 Tomuschat 161

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Sovereign equality as a formal legal concept does not guaranteepolitical and economic equality. Admittedly, the oftenemphasized distinction between the juridical equality ofStates and their political and factual inequality isquestionable. This is so particularly because internationallaw is based on practice where facts and power matter.Nevertheless, sovereign equality is understood formally asequality of chances of all States.

Westlake wrote, ‘the equality of sovereign States is merely theirindependence under a different name’837.

westphalian sovereigntyWestphalian sovereignty is the concept of nation-state

sovereignty based on two things: territoriality and theabsence of a role for external agents in domestic structures.

Scholars of international relations have identified the modern,Western originated, international system of states,multinational corporations, and organizations, as having begunat the Peace of Westphalia in 1648.838 Both the basis and theconclusion of this view have been attacked by some revisionistacademics and politicians, with revisionists questioning thesignificance of the Peace, and some commentators andpoliticians attacking the Westphalian system of sovereignnation-states.

The Peace of Westphalia is said to have ended attempts to imposesupranational authority on European states. The ‘Westphalian’doctrine of states as independent agents was bolstered by therise in 19th Century thought of nationalism, under whichlegitimate states were assumed to correspond to nations—groupsof people united by language and culture. Benedict Andersonrefers to these putative nations as ‘imagined communities.’

837 Westlake's International Law, Vol. I, p. 321. 838 Gabel, Medard; Henry Bruner (2003), Global Inc.: An Atlas of the Multinational

Corporation, New York: The New Press, p. 2, ISBN 1-56584-727-X

pg. 582


International relations theorists have identified several keyprinciples of the Peace of Westphalia, which explain thePeace's significance and its impact on the world today:

1) The principle of the sovereignty of states and the fundamental right of political selfdetermination

2) The principle of (legal) equality between states

3) The principle of non-intervention of one state in the internal affairs of another state

These principles are shared by the ‘realist’ internationalrelations paradigm today, which explains why the system ofstates is referred to as ‘The Westphalian System’.

Both the idea of Westphalian sovereignty and its applicability inpractice have been questioned from the mid-20th Centuryonwards from a variety of viewpoints. Much of the debate hasturned on the ideas of internationalism and globalizationwhich, in various interpretations, appear to conflict withWestphalian sovereignty.

statessse states defintion listed Index.international bodiessee international organistions listed in IndexInternational arbitration International arbitration is a leading method for resolving

disputes arising from international commercial agreements andother international relationships. As with arbitrationgenerally, international arbitration is a creation ofcontract, i.e., the parties' decision to submit disputes tobinding resolution by one or more arbitrators selected by oron behalf of the parties and applying adjudicatory procedures,usually by including a provision for the arbitration of futuredisputes in their contract.839 The practice of international

839 Gary B. Born, International Commercial Arbitration, 187, 197, 217 (2009); Julian M. Lew,Loukas A. Mistelis & Stefan M. Kröll, Comparative International Commercial Arbitration 1-10to 1-11, 6-1 to 6-6 (2003)

pg. 583


arbitration has developed so as to allow parties fromdifferent legal and cultural backgrounds to resolve theirdisputes, generally without the formalities of theirrespective legal systems.

cooperationThis principle requires States to cooperate with each other

regardless of differences in their political, economic andsocial systems in the following areas: peace and security,universal respect for human rights, implementation ofinternational relations in the economic, social, cultural,technical and trade fields in accordance with the principlesof sovereign equality and non-interference, cooperation withthe UN and the adoption of measures under its Charter, topromote economic development throughout the world, especiallyin developing countries.

advisory judisriction or advisory proceedings (international law)Since countries alone have capacity to appear before the ICJ,

public (governmental) international organizations cannot assuch be parties to any case before it. A special procedure,the advisory procedure, is, however, available to suchorganizations and to them alone. Advisory proceedings beginwith the filing of a written request for an advisory opinionaddressed to the Registrar by the United-Nations Secretary-General or the director or secretary-general of the entityrequesting the opinion. In urgent cases the Court may dowhatever is necessary to speed up the proceedings. In orderthat it may be fully informed on the question submitted to it,the Court is empowered to hold written and oral proceedings. Afew days after the filing of the request, the Court draws up alist of those States and international organizations likely tobe able to furnish information on the question before theCourt. In general, the States listed are the member States ofthe organization requesting the opinion, while sometimes theother states to which the Court is open in contentiousproceedings are also included. As a rule, organizations and

pg. 584


States authorized to participate in the proceedings may submitwritten statements, followed, if the Court considers itnecessary, by written comments on these statements. Thesewritten statements are generally made available to the publicat the beginning of the oral proceedings, if the Courtconsiders that such proceedings should take place.

uti possidetis jurisUti possidetis juris or uti possidetis iuris (Latin for "as you possess under

law") is a principle of international law that states thatnewly formed sovereign states should have the same bordersthat their preceding dependent area had before theirindependence. Uti possidetis juris is a modified form of uti possidetis;created for the purpose of avoiding terra nullius, the originalversion of uti possidetis began as a Roman law governing therightful possession of property. During the medieval period itevolved into a law governing international relations and hasrecently been modified for situations of newly independentstates. Uti possidetis juris has been applied to in modern historysuch regions as South America, Africa, Yugoslavia, the SovietUnion, and numerous other regions of where centralizedgovernments were broken up, or where imperial rulers wereoverthrown. It is often applied to prevent foreignintervention by eliminating any contested terra nullius, or noman's land, that foreign powers could claim. 840

legal reciprocity ("comity") In international relations and treaties, the principle of

reciprocity states that favours, benefits, or penalties thatare granted by one state to the citizens or legal entities ofanother, should be returned in kind. For example, reciprocityhas been used in the reduction of tariffs, the grant ofcopyrights to foreign authors, the mutual recognition andenforcement of judgments, and the relaxation of travel

840 Shaw, Malcolm N. (1997). "Peoples, Territorialism and Boundaries." European Journal of International Law 8 (3).

pg. 585


restrictions and visa requirements. The principle ofreciprocity also governs agreements on extradition.

equality of states Principle of equality of states informs the operation of the

organisation vis-à-vis of the member states. This principleimplies that resolutions of the organisation must be based onunanimity and also that member states are only bound by thosedecisions that have been signed or ratified by them. Becauseof this therefore in most cases member states will modifythese principles based on the purpose and functions which theyintend their organisation to have. Application of theprinciple of equality of states therefore means that allmember states must have equal votes in the operation of theorganisation.

docrine of attribution (international law)Before a state can be held responsible for any action, it is

necessary to prove a causal connection between the injury andan official act or omission attributable to the state allegedto be in breach of its obligations.

principles of transnational state responsibilityThe laws of state responsibility are the principles governing

when and how a state is held responsible for a breach of aninternational obligation. The Draft Articles on theResponsibility of States for Internationally Wrongful Acts(‘Draft Articles’) by the International Law Commission (ILC)in August 2001.841 They establish (1) the conditions for anact to qualify as internationally wrongful, (2) thecircumstances under which actions of officials, privateindividuals and other entities may be attributed to the state,(3) general defences to liability and (4) the consequences ofliability.

841 Draft Articles on the Responsibility of States for Internationally Wrongful Acts, Report of the ILC on the Work of its Fifty-third Session, UNGAOR, 56th Sess, Supp No 10, p 43, UN Doc A/56/10 (2001).

pg. 586


State responsibility is an age-old principle of international lawthat was developed to protect the rights of aliens.842 Itarises when a state commits an international wrong againstanother state.843 This rule has now been elevated to the statusof a general principle of international law.844 In Chorzów Factory(Germany v Poland),845 the Permanent Court of International Justicedefined it not only as a principle of international law butalso as ‘a greater conception of law’ involving an obligationto make reparation for any breach of anengagement.846 According to the Court, ‘reparation is thereforethe indispensable complement of a failure to apply aconvention and there is no necessity for this to be stated inthe convention itself’.847 The principle of stateresponsibility emanates from the nature of the internationallegal system, which relies on states as a means of formulatingand implementing its rules, and arises out of the twindoctrines of state sovereignty and equality of states.848 InThe Chorzow Factory Case 9 where the courts stated that:

‘…any breach of an engagement involves an obligation to make reparation.’ 849 Further, in British Claims in the Spanish Zone of Morocco (Spain v United

Kingdom) 850 the court highlighted the significance of thenotion of state responsibility: ‘Responsibility is the necessary corollaryof a right. All rights of an international character involve international responsibility.Responsibility results in the duty to make reparation if the obligation in question isnot met’.

842 Ian Brownlie, System of the Law of Nations: State Responsibility: Part 1 (1983) 9.843 Ian Brownlie, Principles of Public International Law (5th ed, 1998) 435–6.844 Ibid 436.845 PCIJ (ser A) No 13.846 Ibid 29. See also Corfu Channel (United Kingdom v Albania) (Merits) ICJ Rep 4, 23.847 See Chorzów Factory (Germany v Poland) (Claim for Indemnity) PCIJ (ser A) No 8, 21. 848 Malcom Shaw, International Law (5th ed, 2003) 541.849 P.C.I.J. Rep., Ser.A, No. 17 (1928) at 29; See also Draft Article 31.850 (1923) 2 RIAA 615, 641

pg. 587


clausula rebus sic stantibus In public international law, clausula rebus sic stantibus (Latin

for ‘things thus standing’) is the legal doctrine allowing fortreaties to become inapplicable because of a fundamentalchange of circumstances. It is essentially an ‘escape clause’that makes an exception to the general rule of pacta suntservanda (promises must be kept).

Because the doctrine poses a risk to the security of treaties asits scope is relatively unconfined, it requires strictregulations as to the conditions in which it may be invoked.

The doctrine is part of customary international law, but is alsoprovided for in the 1969 Vienna Convention on the Law ofTreaties under Article 62 (Fundamental Change ofCircumstance), although the doctrine is never mentioned byname.

Article 62 provides the only two justifications of the invocationof rebus sic stantibus:

1. first, that the circumstances existing at the time of the conclusion of the treaty wereindeed objectively essential to the obligations of treaty (sub-paragraph A) and

2. second, the instance wherein the change of circumstances has had a radical effecton the obligations of the treaty (sub-paragraph B).

If the parties to a treaty had contemplated for the occurrence ofthe changed circumstance the doctrine does not apply and theprovision remains in effect. Clausula rebus sic stantibus onlyrelates to changed circumstances that were never contemplatedby the parties. This principle is clarified in the FisheriesJurisdiction Case (United Kingdom v. Iceland, 1973)851.

Although it is clear that a fundamental change of circumstancesmight justify terminating or modifying a treaty, unilateraldenunciation of a treaty is prohibited; a party does not havethe right to denounce a treaty unilaterally.852

851 [7] ICJ Rep 3, at 18852 Hersch Lauterpacht, The function of law in the international community.

Chapter XIII: The Judicial Application of the Doctrine 'Rebus Sic

pg. 588


reparationThe breach of an international obligation entails two types of

legal consequences. 3) Firstly, it creates new obligations for the breaching state, principally, duties of

cessation and non-repetition (Article 30), and a duty to make full reparation (Article31).

4) Second, the articles create new rights for injured states, principally, the right toinvoke responsibility (Articles 42 and 48) and a limited right to takecountermeasures (Articles 49-53). These rights, however, are heavily state-centredand do not deal with how state responsibility is to be implemented if the holder ofthe right is an individual or an organisation. The principal element of progressivedevelopment in this area is Article 48, which provides that certain violations ofinternational obligations can affect the international community as a whole suchthat state responsibility can be invoked by states on behalf of the larger community.

This provision picks up on the ICJ's celebrated suggestion inBarcelona Traction that some obligations are owed erga omnes,toward the international community as a whole.853 Article 33(1)characterises these secondary obligations as being owed toother states or to the international community as a whole.

If illegal actions are continuing, the state has a duty tocease.854 The state also has duties to make reparation, whichcould involve restitution, compensation, or satisfaction.Remedies will be dependent on the particular forum, such asthe United Nations, International Court of Justice, WorldTrade Organisation, International Tribunal for the Law of theSea, International Criminal Court, and on the purpose ofreparation.855

Stantibus'.853 Barcelona Traction, Light & Power Co. (Belgium v. Spain), New Application, 1970 ICJ

Reports 4, 32.854 Note 1, Art 30.855 Hardman Reis, T., Compensation for Environmental Damages under

International Law, Kluwer Law International, The Hague, 2011, ISBN 978-90-411-3437-0

pg. 589


There is solid grounding in international law for the concept ofstate responsibility based on the principle that one state hasa duty not to cause harm in or to the territory of anotherstate.856 In the Trail Smelter857 case, Canada was found to be inviolation of international law when emissions from anindustrial plant located in British Columbia were causingenvironmental damage in the United States. The claims tribunalheld that under the principles of international law . . . noState has the right to use or permit the use of its territoryin such a manner as to cause injury by fumes in or to theterritory of another or the properties or persons therein,when the case is of serious consequence and the injury isestablished by clear and convincing evidence.858 Principle 22of the 1972 Stockholm Declaration sets forth the current‘standard’ governing liability for transnational environmentaldamage: ‘States shall co-operate to develop further the international law regardingliability and compensation for the victims of pollution and other environmentaldamage caused by activities within the jurisdiction or control of such States to areasbeyond their jurisdiction.’859

advisory judisriction or advisory proceedings (international law)Since countries alone have capacity to appear before the ICJ,

public (governmental) international organizations cannot assuch be parties to any case before it. A special procedure,the advisory procedure, is, however, available to suchorganizations and to them alone. Advisory proceedings beginwith the filing of a written request for an advisory opinion

856 See, e.g., Corfu Channel, (U.K. v. Alb.), 1949 I.C.J. Pleadings, (1 Corfu Channel) 4, 22 (Sept. 30, 1949).

857 Trail Smelter Case, (U.S. v. Can.), 3 R.I.A.A. 1905 (1941).858 Id. at 1965.859 Conference on the Human Environment, at 7, U.N. Doc. A/CONF.48/14

(1972), reprinted in 11 I.L.M. 1416, 1420 (1972). The recent Rio Declaration uses nearly the same language. Principle 13 encourages states to ‘develop further international law regarding liability and compensation . . . .’ Conference on Environment and Development, at 4, U.N. Doc. A/CONF.151/5 (1992), reprinted in 31 I.L.M. 874, 878 (1992).

pg. 590


addressed to the Registrar by the United-Nations Secretary-General or the director or secretary-general of the entityrequesting the opinion. In urgent cases the Court may dowhatever is necessary to speed up the proceedings. In orderthat it may be fully informed on the question submitted to it,the Court is empowered to hold written and oral proceedings. Afew days after the filing of the request, the Court draws up alist of those States and international organizations likely tobe able to furnish information on the question before theCourt. In general, the States listed are the member States ofthe organization requesting the opinion, while sometimes theother states to which the Court is open in contentiousproceedings are also included. As a rule, organizations andStates authorized to participate in the proceedings may submitwritten statements, followed, if the Court considers itnecessary, by written comments on these statements. Thesewritten statements are generally made available to the publicat the beginning of the oral proceedings, if the Courtconsiders that such proceedings should take place.

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DISPUTE RESOLUTION (UNION LAW)

double effectSee effects doctrine effects doctrine Countries may allow for extraterritorial jurisdiction in

competition cases based on so-called effects doctrineAccording to this doctrine, domestic competition laws areapplicable to foreign firms - but also to domestic firmslocated outside the state’s territory, when their behaviour ortransactions produce an ‘effect’ within the domesticterritory. The ‘nationality’ of firms is irrelevant for thepurposes of antitrust enforcement and the effects doctrinecovers all firms irrespective of their nationality. The‘effects doctrine’ was embraced by the Court of First Instancein Gencor when stating that the application of the MergerRegulation to a merger between companies located outside EUterritory ‘is justified under public international law when itis foreseeable that a proposed concentration will have animmediate and substantial effect in the Community.’860

The doctrine (or principle) of double effect is often invoked toexplain the permissibility of an action that causes a seriousharm, such as the death of a human being, as a side effect ofpromoting some good end. It is claimed that sometimes it ispermissible to cause such a harm as a side effect (or ‘doubleeffect’) of bringing about a good result even though it wouldnot be permissible to cause such a harm as a means to bringingabout the same good end. This reasoning is summarized with theclaim that sometimes it is permissible to bring about as amerely foreseen side effect a harmful event that it would beimpermissible to bring about intentionally.

860 See: Judgment of the Court of First Instance of 25.3.1999 in case T-102/96,Gencor Ltd v Commission, (1999) E.C.R., page II-0753, at paras. 89-92

pg. 592


enforcement of union lawUnion law can be enforced by the courts of member states.

Supplementary sources are laws which are not provided for bythe treaty, including case law by the Regional Court ofJustice, international law and general principles of Communitylaw.

legitimate expectation doctrine (legal certainty)The doctrine of legitimate expectation, which has its roots in the principles

of legal certainty and good faith, is also a central element of thegeneral principle of legal certainty in Union law.861 Thelegitimate expectation doctrine holds that ‘those who act in goodfaith on the basis of law as it is, or seems to be, should not be frustrated in theirexpectations.’862 This means that a Union institution, once it hasinduced a party to take a particular course of action, mustnot renege on its earlier position if doing so would causethat party to suffer loss. The European Court of Justice hasconsidered the legitimate expectation doctrine in cases whereviolation of the general principle of legal certainty wasalleged in numerous cases involving agricultural policy andEuropean Council regulations863, with the leading case beingMulder v Minister van Landbouw en Visserij864.

misuse of power test (legal certainty)The misuse of power test is another significant element of the

general principle of legal certainty in Union law. It holdsthat a lawful power must not be exercised for any otherpurpose than that for which it was conferred. According to themisuse of power test a decision by a Union institution is onlya misuse of power if ‘it appears, on the basis of objective, relevant and

861 Chalmers, Damian (2006). European Union law: text and materials. CambridgeUniversity Press. pp.455. ISBN 9780521527415.

862 Kaczorowsky, Alina (2008). European Union law. Taylor & Francis. pp.232. ISBN 9780415447973.


864 [8] ECR 2321 Case 120/86

pg. 593


consistent evidence, to have been adopted with the exclusive or main purpose ofachieving any end other than those stated.’ A rare instance where theEuropean Court of Justice has held that a European Unioninstitution has misused its powers, and therefore violated thegeneral principle of legal uncertainty, is Giuffrida vCommission865. The general principle of legal certainty isparticularly stringently applied when European Union lawimposes financial burdens on private parties.866

equality before the law or legal equality or non-discriminationprinciple

Formal equality, sometimes referred to as the non-discriminationprinciple, or equality before the law, equality under the lawor legal equality, is the principle under which all people aresubject to the same laws. It, is the principle under which allpeople are subject to the same laws of justice (dueprocess).867

Article 7 of the Universal Declaration of Human Rights statesthat "All are equal before the law and are entitled without any discrimination toequal protection of the law."868

Thus, the law and the judges must treat everyone equally beforethe law regardless of their race, gender, sexual orientation,gender identity, national origin, color, ethnicity, religion,disability, or other characteristics, without privilege,discrimination, or bias.

865 [7] ECR 1395 Case 105/75; See also Chalmers, Damian (2006). European Unionlaw: text and materials. Cambridge University Press. pp.456. ISBN 9780521527415.


867 the UN declaration article 7, the United Nations868 the UN declaration article 7, the United Nations

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Equality before the law is one of the basic principles ofliberalism.869 Classical liberalism calls for equality beforethe law, not for equality of outcome.870

In his famous funeral oration of 431 BC, the Athenian leaderPericles discussed this concept. This may be the first knowninstance.

"If we look to the laws, they afford equal justice to all in their private differences; if nosocial standing, advancement in public life falls to reputation for capacity, classconsiderations not being allowed to interfere with merit; nor again does poverty barthe way"871

According to the United Nations, this principle is particularlyimportant to the minorities and to the poor.872

formal equality principleAlso called fair equality of opportunity, or positive

discrimination principle, deals with indirect discrimination,by disparity of wealth, abilities and opportunities, throughproviding for affirmative action. equalising measures arejustified on grounds of justice as well as social integrationand harmony.

conferralThe principle of conferral is a fundamental principle of Union

law. According to this principle, the Union is a union ofmember states, and all its competences are voluntarilyconferred on it by its member states. The Union has nocompetences by right, and thus any areas of policy not

869 Mark Evans, ed., Edinburgh Companion to Contemporary Liberalism: Evidence and Experience (London:Routledge, 2001), 55 (ISBN 1-57958-339-3).

870 Chandran Kukathas, "Ethical Pluralism from a Classical Liberal Perspective," in The Many and the One: Religious and Secular Perspectives on Ethical Pluralismin the Modern World, ed. Richard Madsen and Tracy B. Strong, Ethikon Series inComparative Ethics (Princeton, NJ: Princeton University Press, 2003), 61 (ISBN 0-691-09993-6).

871 Thucydides, The History of the Peloponnesian War, Written 431 B.C.E, Translated by RichardCrawley (1874), retrieved via Project Gutenberg.

872 Id

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http://en.wikipedia.org/wiki/Richard_Crawley


http://www.gutenberg.org/dirs/etext04/plpwr10.txt


http://en.wikipedia.org/wiki/Chandran_Kukathas



explicitly agreed in treaties by all member states remain thedomain of the member states.

margin of appreciationMargin of Appreciation is a concept the European Court of Human

Rights has developed when considering whether a member stateof the European Convention on Human Rights has breached theconvention. The margin of appreciation doctrine allows thecourt to take into effect the fact that the Convention will beinterpreted differently in different member states. Judges areobliged to take into account the cultural, historic andphilosophical differences between Strasbourg and the nation inquestion.873 Margin of Appreciation is similar in concept to,but should not be confused with Subsidiarity.

The Doctrine was used for the first time in the case Handyside v.United Kingdom874 which concerned the publication of a bookaimed at school children, a chapter of which discussed sexualbehaviour in explicit terms. The ECHR were willing to allow alimitation of freedom of expression in the interests of theprotection of public morals.875

For more controversial topics, such as cases involving bioethicsor assisted reproduction, the Court recognises that to make adefinitive stance for all contracting States would meanignoring the social and cultural values which lie behind thedecisions of national legislatures.

‘Where, however, there is no consensus within the Member States of the Council ofEurope, either as to the relative importance of the interest at stake or as to how bestto protect it, the margin will be wider. This is particularly so where the case raisescomplex issues and choices of social strategy: the authorities' direct knowledge oftheir society and its needs means that they are in principle better placed than theinternational judge to appreciate what is in the public interest… There will also

873 Infra 874 (1976) 1 EHRR 737875 (5493/72) [7] ECHR 5 (7 December 1976)

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usually be a wide margin accorded if the State is required to strike a balancebetween competing private and public interests or Convention rights.’876

equality principle (union law)The equality principle functions as a constitutional limitation on the

exercise of broad discretionary powers of Member States or undertakings,and thereby serves as a defence for economic operators againstarbitrariness (‘Willkürkontrolle’).

sovereign equality of states principle (union law)The sovereign equality of States is one of the fundamental

principles of international law877, which inter alia finds anexpression in Article 2(1) of the Charter of the UnitedNations and in the Helsinki Final Act.878 The equality ofStates directly flows from their sovereignty: by virtue of thelatter it is impossible to place States in a kind of hierarchyvis-à-vis each other.879 An authoritative elaboration of theprinciple has been given in the UN General Assembly’s 1970

876 Dickson v. United Kingdom877 See inter alia I. Brownlie, Principles of Public International Law (Oxford, Oxford

University Press 1998, 5th ed.), 289; P. Kooijmans, The Doctrine of the Legal Equality of States: An Inquiry into theFoundations of International Law (Leyden, Sijthoff 1964); R. Jennings and A. Watts, Oppenheim’s International Law, I.1 (London, Longman 1992, 9th ed.), 339-379; I.A. Shearer, Starke’s International Law (London,Butterworth, 1994, 11th ed.), 99-102; Verhoeven, supra n. 70, 125. As far asfactual inequalities between States – especially between industrialized anddeveloping States – are concerned, see inter alia P. Daillier, A. Pellet and N. Quoc Dinh, Droit international public (Parijs, L.G.D.J. 1999, 6th ed.), pp. 1014-1025, paras. 620-626. See more particularly with regard to differential treatment in its more recent appearances in international law,Ph. Cullet, ‘Differential Treatment in International Law: Towards a New Paradigm of Inter-State Relations’, (1999) 10 European Journal of International Law,549-582. On the significance of the concept of sovereignty for managingfactual inequalities, see B. Kingsbury, ‘Sovereignty and Inequality’, (1998) 9 European Journal of International Law, 599-625.


879 See A. Bleckmann, ‘Article 2(1)’, in B. Simma (ed.), The Charter of the United Nations. A Commentary (München, Beck 1995), p. 87, para. 44.

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‘Friendly Relations’ Declaration.880 One of the importantconsequences of the principle is that States are only bound bylegal rules that they themselves agree to.89 Precisely thisconsensualist feature of international law leads to what atfirst sight may seem a paradox: although States have torespect each other’s sovereign equality, they do not have totreat each other equal in the sense that they may at willenter into treaty relationships with certain States and refuseto enter into such relationships with other States: except ifexplicitly committed – by treaty – to ‘multilateralize’ thegranting of certain rights881, benefits and advantages to otherStates, they are free to choose their treaty partner(s) andcan, in that sense, differentiate between other States.882 Asalways, differentiation should not be equated withdiscrimination. Although this matter may be in need of acloser examination, the least one can say is thatinternational law regards discrimination of other States asundesirable.883 The International Law Commission has gonefurther and has regarded non-discrimination as a ‘general ruleinherent in the sovereign equality of States’.884

880 Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in Accordance with the Charter of the United Nations, Annex to Resolution 2625(XXV) of the UN General Assembly of 24 October 1970. Under ‘VI..

881 A clear example thereof is the principle of most-favoured nation treatmentas contained in various multilateral WTO agreements.

882 As is stated by Jennings and Watts, supra note 85, p. 376, para. 114, ‘there is in customary international law no clearly established general obligation on a state not to differentiate between other states in the treatment it accords to them’.

883 Jennings and Watts, supra note 85, p. 377, para. 114.884 Yearbook of the International Law Commission (1961), II, 128. See also ILC, Yearbook

of the International Law Commission (1958), II, 105. It is not the place here to dwell upon the ILC’s interesting works relating to most-favoured-nation clauses, which in 1978 resulted in draft articles: see Yearbook of the International Law Commission (1978), II, 16-73. According to Jackson, most scholars and practitioners do not seem to accept a customary law status of the MFN principle: J.H. Jackson, The World Trading System. Law and Policy of International Economic Relations (Cambridge, MIT 1997, 2nd ed.), 27.

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The principle of sovereign equality of States’, point to,‘sovereign equality’ is stated to include ‘in particular’ thefollowing elements:

a) ‘States are juridically equal;b) Each State enjoys the right inherent in full sovereignty;c) Each State has the duty to respect the personality of other States;d) The territorial integrity and political independence of the State are inviolable;e) Each State has the right freely to choose and develop its political, social, economic

and cultural systems;f) Each State has the duty to comply fully and in good faith with its international

obligations and to live in peace with other States.’

In light of this inventory of rights, M.N. Shaw rightly states,‘the doctrine of the legal equality of states is an umbrellacategory’885.

supremacy principle (union law)The legal doctrine of supremacy of union means that community

labour law takes precedence over domestic labour law. Thecreation of a new legal order of community law and itssupremacy means that community institutions may create rulesaffecting employment and industrial relations, even where someMember States oppose such rules and vote against them in thosecommunity institutions, provided that a voting procedure basedon a majority rule applies to that specific field.

Probably the best known example of the impact of these rulings inlabour law is G. Defrenne v. Sabena,886 where the European Courtdecided that, ‘The principle that women and men should receive equal pay,which is laid down by Article 119 EC [now Article 157 TFEU], may be relied on beforethe national courts. These courts have a duty to ensure the protection of the rights,which that provision vests in individuals, in particular in the case of those forms ofdiscrimination which have their origin in legislative provisions….’

The wider the range of EU competences in the field of employmentand industrial relations, the more the EU law they create will

885 International Law, Cambridge, Grotius 1997, 4th ed., 152886 Case 43/75, (1976) ECR 455

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come to replace increasingly wide areas of national labourlaw. An example is the decision of the European Court inCommission v. United Kingdom887. There the Court required the UnitedKingdom to create a system of worker representation where noneexisted. Designation of worker representatives was mademandatory by the Court, due to the consequences for the rightsof workers under two directives ‘which require Member Statesto take all measures necessary to ensure that workers areinformed, consulted and in a position to intervene throughtheir representatives in the event of collective redundancies[or the transfer of an undertaking]’888. In order to performeffectively the tasks of information and consultationspecified in the directives, Member State laws or practicesmust ensure the designation of worker representatives.

Given that it may be applied in national courts, the doctrine ofsupremacy also applies to rules on enforcement of labour law,including remedies and procedures. The ECJ has developedspecial techniques and principles by which EU labour law maybe enforced in national courts. Where EU enforcementrequirements come into conflict with national procedures andremedies, again, they take precedence and must be applied bynational courts overriding domestic rules. Remarkableinstances have included the Court’s decision in Marshall v.Southampton and South West Area Health Authority889, abolishing thelimits on compensation for sex discrimination in the UKlegislation. Through the doctrine of supremacy, EU law haspromoted the Europeanisation of employment and industrialrelations by ensuring that EU law applies in many areasfalling within the competence of the EU, ranging from equalitybetween women and men to workers’ representation.

887 Case C-382/92 and Case C-383/92, [9]888 (Case C-383/92, paragraph 23; Case C-382/92, paragraph 26)889 (No. 2), Case C-271/91, (1993)

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direct effect principle (union law)The provisions of a regional treaty are capable of having direct

effect before the national courts of member states. The resultwas to create an alternative manner of enforcing theobligations undertook by member states in the treaties, to themore traditional method of state enforcement in the form ofenforcement actions taken by the Commission at a supranationallevel. Individuals could now use national courts to invoketreaty provisions against member state governments. The pre-conditions for direct effect are that the provisions on whichan individual wishes to rely are sufficiently clear andunconditional, and that there is no scope for member states toexercise discretion in implementation. Thus, a regulation thatallows member states to privatise roads would not have directeffect and could not be enforced in the courts, because itprovides that states may privatise roads, not must privatiseroads.

insurance fraud Insurance fraud is any act committed with the intent to

fraudulently obtain payment from an insurer. Insurance fraudhas existed ever since the beginning of insurance as acommercial enterprise. Fraudulent claims account for asignificant portion of all claims received by insurers, andcost billions of dollars annually. Types of insurance fraudare very diverse, and occur in all areas of insurance.Insurance crimes also range in severity, from slightlyexaggerating claims to deliberately causing accidents ordamage. Fraudulent activities also affect the lives ofinnocent people, both directly through accidental orpurposeful injury or damage, and indirectly as these crimescause insurance premiums to be higher. Insurance fraud poses avery significant problem, and governments and otherorganizations are making efforts to deter such activities.Derry v Peek (1889) LR 14 App CAS 337 is a case in English lawon the tort of deceit. The House of Lords determined there was

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no general duty to use ‘care and skill’ in the context ofissuing a prospectus to refrain from making misstatements. Thetort of deceit would have been established only if themisstatements had been fraudulently made. Derry v Peek thusvalidated the perspective of the majority judges in the Courtof Appeal in Heaven v Pender. That is, for there to be deceitor fraud (which is the same) it must be shown that a defendantknows a statement is untrue, or has no belief in its truth, oris reckless as to whether it is true or false.

indirect effect principle (union law)Indirect effect describes a situation where the courts in member

states use Union law to interpret national laws, as oppose todirect effect where Union law is applied directly. Treatyarticles, Regulations and Decisions can all have direct effectexcept where they are unclear or conditional. In such casesthey may have indirect effect, but are unlikely to be of muchuse for interpreting national laws. Recommendations andOpinions cannot have direct effect, but may have indirecteffect, when interpreting the Union law they supplement ornational laws, as established in Grimaldi v Fonds des MaladiesProfessionnelles890 established that Directives can have indirecteffect in where an individual takes action in a national courtagainst another individual, where a Directive can never havedirect effect, or where the provision of the directive is notsufficiently clear and unconditional to have direct effect.891

proportionality principle (union law)Proportionality is recognised one of the general principles of

Union law. According to the general principle ofproportionality the lawfulness of an action depended onwhether it was appropriate and necessary in order to achievethe objectives legitimately pursued . When there is a choice

890 ECR 4407 Case C-322/88. Von Colson and Kamann v Land Nordrhein-Westfalen [8] ECR 1891 Case 14/83

891 Berry, Elspeth; Hargreaves, Sylvia (2007). European Union law (2nd ed.). Oxford University Press. p. 66. ISBN 978-0-19-928244-9.

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between several appropriate measures the least onerous must beadopted, and any disadvantage caused must not bedisproportionate to the aims pursued.

legal certainty principle (union law)The concept of legal certainty is recognised one of the general

principles of Union law. It is a important general principleof international law and public law, which predates Union law.As a general principle in Union law it means that the law mustbe certain, in that it is clear and precise, and its legalimplications foreseeable, especially when applied to financialobligations. The adoption of laws which will have legal effectin the Union must have a proper legal basis. Legislation inmember states which implements Union law must be worded sothat it is clearly understandable by those who are subject tothe law. The general principle of legal certainty prohibits Expost facto laws, i.e. laws should not take effect before they arepublished.

legitimate expectation, principle (union law)Legitimate expectation doctrine holds that and that ‘those who

act in good faith on the basis of law as it is or seems to beshould not be frustrated in their expectations’.892The doctrineof legitimate expectation, which has its roots in theprinciples of legal certainty and good faith, is also acentral element of the general principle of legal certainty inUnion law. The legitimate expectation doctrine holds that andthat ‘those who act in good faith on the basis of law as it isor seems to be should not be frustrated in their expectations’

asymmetry principle (union law)The principle of asymmetry means the principle that addresses

variances in the implementation of measures in an economicintegration process for Purposes of achieving a common

892 Kaczorowsky, Alina (2008). European Union law. Taylor & Francis. p. 232. ISBN 978-0-415-44797-3.

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objective893; it recognizes that not all countries stand equal,able to trade and exchange goods on equal terms to the mutualbenefits of their populations. The principle thus seeks toredress this by recognizing the need to defer or exemptcertain areas of the economy from the harsh discipline of atrade liberalization commitment regime based on the capacityof each partner member in the particular trade bloc. It is thecornerstone of the Community Customs Union as it recognisesthat that the three east Afrikan countries are at a verydifferent level of economic development and if the parties areexpected to liberalize their economies at the same rate thenmoves towards free trade areas can generate economicdifficulties for the less developed partner. It thereforeproposes that where a free trade area is introduced betweencountries of different levels of development, then this shouldoccur on an asymmetrical basis. Thus, for instance, under acustoms union where countries are at a very different level ofdevelopment, the more developed partner will eliminate tariffsmore quickly and more extensively than the less developedcountries.

There are two main aspects of the asymmetry principle relating totariffs for purposes creating an equitable and balanced freetrade area in the Customs Union:

و asymmetry in the timing of the reduction and of elimination of tariffs

و asymmetry in the extent of total trade to be included in the tariff reduction and tariffelimination undertaken.

Asymmetry in the timing of tariff reductions means that onepartner will reduce and eliminate its tariffs faster than theother partner. Asymmetry in the extent of tariff reductionmeans that one partner will reduce and eliminate tariffs on ahigher percentage of its total trade than the other partner.

893 The Preamble of the Treaty Establishing the East Afrikan Community.

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subsidiarity principle (union law)The principle of subsidiarity means that what the lesser entity

can do adequately should not be done by the greater entityunless it can do it better. Taken over into communitypolicies, it is used as an instrument for determining when theUnion is to act in areas not coming under its exclusivecompetence.

variable geometry principle (union law)The principle of Variable Geometry is that which allows states

partners to participate in the process of integration atdifferent paces depending on the level of economic advancementprovided that the objective of the progression remains thesame. The principle therefore allows members to move atdifferent paces depending on their readiness for closereconomic integration. Thus the Variable Geometry is sometimesreferred to as two speeds or multi speed894. This is becausewhereas there is the general objective, some members takelonger than others to reach the full stage of the fullparticipation.

The core question when establishing the Customs Union was whetherprogress in the member states in the region towards desirableobjective of economic integration will best achieved bycausing or seeking to cause all the three member states toprogress in unison towards it or by allowing the member statesand encouraging those states that have economic viability interms of growth, sharing common purposes and demonstrate thewill and the ability to program more swiftly than others to doso, Community will not be an end in itself. It will thereforeonly survive if it is able to advance the sensible purpose ofits more enlightened members.

894 Marcin Zaborowski: Germany and EU Enlargement: From Rapprochement to ‘Reaproachment’? In: Helene Sjursen (Ed.), Enlargement in perspective, p. 46.

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specialization principle Specialization is related to another economic concept, division

of labor, discussed at great length by Adam Smith, the 18th-century Scottish economist and author of "The Wealth ofNations." Smith famously illustrated the benefits ofspecialization and a division of labor when describing a pinfactory, in which each worker performs a single specializedtask. One worker measures wire, another cuts it, one pointsit, others make the head and so on. Through this process,workers produced thousands more pins than if each worker madewhole pins independently. This principle requiresspecialization in one’s best, by partner state withoutunnecessary competition for the purposes of the Communitybenefit remains central. One of the most important andsomewhat unexpected features of this principle ofspecialization is that it applies even in cases in which aparticular country has an efficiency or cost advantage overother countries in all the products they are both able tomanufacture. Economists call this the theory of comparativeadvantage. In a macroeconomic context, specialization meansthat nations concentrate on producing the goods in which theyhave the most advantage while engaging in trade with othercountries to obtain other goods.

absorptionAbsorption refers to the act or process of including a thing into

something else. Under federal law, the act of absorption isused in the application of rights guaranteed by the federalgovernment to actions by the states. Under International Law,the act of absorption is used in the context of merging onenation into another, whether voluntarily or by subjugation.Under Labor Law, the act of absorption is used in a post-merger collective bargaining agreement where a provisionallows seniority for union members in the resulting entity.Under Commercial law, the act of absorption is used wherein amanufacturer pays the seller’s freight costs, in which the

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manufacturer accounts for before quoting the seller a price.It is also known as freight absorption.

primacy principle (union law)The supremacy (sometimes referred to as primacy) of community law

by which the laws of Union member states that conflict withlaws of the Union must be ignored by national courts so thatthe Union law can take effect. The legal doctrine emerged fromprecedent.

sincere cooperation principle (union law)Pursuant to the principle of sincere cooperation, the Union and

the Member States shall, in full mutual respect, assist eachother in carrying out tasks which flow from the Treaties. TheMember States shall take any appropriate measure, general orparticular, to ensure fulfilment of the obligations arisingout of the Treaties or resulting from the acts of theinstitutions of the Union. The Member States shall facilitatethe achievement of the Union’s tasks and refrain from anymeasure which could jeopardise the attainment of the Union’sobjectives.’ This general principle of sincere cooperation isinspired by an awareness that the Union legal order on its ownis not able to fully achieve the objectives pursued by theestablishment of the Union. Unlike a national legal order, theUnion legal order is not a self-contained system but relies onthe support of the national systems for its operation. Allthree branches of government — legislature, executive andjudiciary — therefore need to acknowledge that the Union legalorder is not a ‘foreign’ system and that the Member States andthe Union institutions have established indissoluble linksbetween themselves so as to achieve their common objectives.The Union is not just a community of interests; it is acommunity based on solidarity. It follows that nationalauthorities are required not only to observe the UnionTreaties and secondary legislation; they must also implementthem and bring them to life. The interaction between the twosystems is so multifaceted that a few examples are called for.

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subsidiarity testSubsidiarity is an organizing principle that matters ought to be

handled by the smallest, lowest or least centralized competentauthority. The Oxford English Dictionary defines subsidiarityas the idea that a central authority should have a subsidiaryfunction, performing only those tasks which cannot beperformed effectively at a more immediate or local level.895

The concept is applicable in the fields of government,political science, cybernetics, management, military (MissionCommand) and, metaphorically, in the distribution of softwaremodule responsibilities in object-oriented programming.Subsidiarity is, ideally or in principle, one of the featuresof federalism, where it asserts the rights of the parts overthe whole.

Subsidiarity is also a tenet of some forms of conservative orlibertarian thought. For example, conservative author ReidBuckley writes:

Will the American people never learn that, as a principle, to expect swift response andefficiency from government is fatuous? Will we never heed the principle ofsubsidiarity (in which our fathers were bred), namely that no public agency shoulddo what a private agency can do better, and that no higher-level public agencyshould attempt to do what a lower-level agency can do better – that to the degreethe principle of subsidiarity is violated, first local government, the state government,and then federal government wax in inefficiency? Moreover, the more powers thatare invested in government, and the more powers that are wielded by government,the less well does government discharge its primary responsibilities, which are (1)defense of the commonwealth, (2) protection of the rights of citizens, and (3) supportof just order.896

Subsidiarity is perhaps presently best known as a generalprinciple of Union law. According to this principle, the unionmay only act (i.e. make laws) where action of individual

895 Buckley, Reid, 2008, An American Family – The Buckleys, Threshold Editions, Simon & Schuster, New York, 459 p.

896 Buckley, 2008, p. 177.

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countries is insufficient. The principle was established inthe 1992 Treaty of Maastricht.897

enumerated powersThe enumerated powers are a list of items that set forth the

authoritative capacity of the union parliament.reserved country powers doctrineSee also reserved powers doctrine

reserved powers doctrineThe reserved country powers, also called reserved powers, is a doctrine

reserved exclusively for the states (in a federation), whichis used in the interpretation of the Constitution. It adopteda restrictive approach to the interpretation of the specificpowers of the Federal Parliament in order to preserve theresidual powers of the States.

inherent capacities See the principle of inherent jurisdictions

inherent jurisdictions (union law)If the constitution does not define the matters to which the

organisation can deal then it can deal with any matter and ifthe constitution does not preclude certain types of acts orexhaustively enumerate the acts which the organisation mayperform then it can perform any act. This is the principle ofinherent capacities or jurisdictions and reflects adequatelythe position in practice. In a sense, according to thisconcept, the guiding principle is the purposes for which anorganisation is established so that so long as an act that isprecluded from the treaty is necessary for purposes of theorganisation, it is assumed to have the powers to undertakesuch acts to enable it fulfill the objectives of theorganisation.

897 Shelton, Dinah. The Boundaries of Human Rights Jurisdiction in Europe. Duke J. Comp. & Int'l L. 153. 2003.

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partnership principleA principle in which proposals for regional funding are developed

on a partnership basis between the differnet levels ofgovernment and with cross sector partnerships at theappropriate regional level, and where the implementation ofthe regional programme is largely undertaken at the regionallevel and monitored at both national and EU levels. The samepolicy focus has applied to some other policy arenas – IT,urban and innovation policy being cases in point, though allof these have had a link to regional policy.

declaration of incompatibilityA declaration of incompatibility is a declaration issued by

judges in the United Kingdom that they consider that the termsof a statute to be incompatible with the UK's obligationsunder the Human Rights Act 1998, which incorporated theEuropean Convention of Human Rights into the UK domestic law.Once the court has issued a declaration of incompatibility,the law remains the same until Parliament removes theincompatibility. Joint Committee On Human Rights SixteenthReport The courts must still apply the legislation as it isand the parties to the actual case are unaffected by thedeclaration. Hence, the declaration has no actual legal effectand the parties neither gain nor lose by it.

EU directives EU directives lay down certain end results that must be achieved

in every Member State. National authorities have to adapttheir laws to meet these goals, but are free to decide how todo so. Directives may concern one or more Member States, orall of them. Each directive specifies the date by which thenational laws must be adapted - giving national authoritiesthe room for manoeuvre within the deadlines necessary to takeaccount of differing national situations. Directives are usedto bring different national laws into line with each other,

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and are particularly common in matters affecting the operationof the single market (e.g. product safety standards).

direct applicability doctrineA concept of European Union constitutional law that relates

specifically to regulations. Although often confused with thedoctrine of direct effect, direct applicability refers to the factthat regulations require no implementing legislation withinindividual member states - they take effect as soon as theyare published by the European Commission.

negative clearanceThe procedure by which the European Commission determines that an

agreement notified to it under the competition rules of theTreaty of Rome does not infringe the rules. When theCommission, on the basis of the facts presented to it, comesto the conclusion that there are no grounds under Article81(1) or 82 of the EC Treaty to take action in respect of anagreement or practice, the Commission issues a negativeclearance either as a formal decision or informally by way ofa see definition forcomfort letter. In Article 81 cases,companies usually combine their application for negativeclearance with a see definition fornotification for exemption.

van gend criteriaDirect effect is the principle of European Union law according to

which provisions of Union law may, if appropriately framed,confer rights on individuals which the courts of EuropeanUnion member states are bound to recognise and enforce. Notexplicitly stated in any of the EU Treaties, the principle ofdirect effect was first established in relation to provisionsof those treaties by the European Court of Justice in Van Genden Loos v. Nederlandse Administratie der Belastingen.898 Direct effect hassubsequently been loosened in its application to treatyarticles and the ECJ has expanded the principle, holding thatit is capable of applying to virtually all of the possible

898 (Case 26/62); [6] ECR 1; CMLR 1

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forms of EU legislation, the most important of which areregulations and in certain circumstances to directives.

The ECJ laid down the criteria (commonly referred to as the ‘VanGend criteria’) for establishing direct effect. The provisionmust:

1. be clear,2. negative,3. unconditional,4. containing no reservation on the part of the member state, and5. not dependent on any national implementing measure. 899

legitimate expectation doctrine (legal certainty)The doctrine of legitimate expectation, which has its roots in the principles

of legal certainty and good faith, is also a central element of thegeneral principle of legal certainty in Union law.900 Thelegitimate expectation doctrine holds that ‘those who act in goodfaith on the basis of law as it is, or seems to be, should not be frustrated in theirexpectations.’901 This means that a Union institution, once it hasinduced a party to take a particular course of action, mustnot renege on its earlier position if doing so would causethat party to suffer loss. The European Court of Justice hasconsidered the legitimate expectation doctrine in cases whereviolation of the general principle of legal certainty wasalleged in numerous cases involving agricultural policy andEuropean Council regulations902, with the leading case beingMulder v Minister van Landbouw en Visserij903.

899 Craig, Paul; de Burca, Grainne (2008). "8". EU Law, Texts, Cases and Materials (4th ed.). OUP. p. 275.


901 Kaczorowsky, Alina (2008). European Union law. Taylor & Francis. pp.232. ISBN 9780415447973.


903 [8] ECR 2321 Case 120/86

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misuse of power test (legal certainty)The misuse of power test is another significant element of the

general principle of legal certainty in Union law. It holdsthat a lawful power must not be exercised for any otherpurpose than that for which it was conferred. According to themisuse of power test a decision by a Union institution is onlya misuse of power if ‘it appears, on the basis of objective, relevant andconsistent evidence, to have been adopted with the exclusive or main purpose ofachieving any end other than those stated.’ A rare instance where theEuropean Court of Justice has held that a European Unioninstitution has misused its powers, and therefore violated thegeneral principle of legal uncertainty, is Giuffrida vCommission904. The general principle of legal certainty isparticularly stringently applied when European Union lawimposes financial burdens on private parties.905

equality before the law or legal equality or non-discriminationprinciple

Formal equality, sometimes referred to as the non-discriminationprinciple, or equality before the law, equality under the lawor legal equality, is the principle under which all people aresubject to the same laws. It, is the principle under which allpeople are subject to the same laws of justice (dueprocess).906

Article 7 of the Universal Declaration of Human Rights statesthat "All are equal before the law and are entitled without any discrimination toequal protection of the law."907

Thus, the law and the judges must treat everyone equally beforethe law regardless of their race, gender, sexual orientation,

904 [7] ECR 1395 Case 105/75; See also Chalmers, Damian (2006). European Unionlaw: text and materials. Cambridge University Press. pp.456. ISBN 9780521527415.


906 the UN declaration article 7, the United Nations907 the UN declaration article 7, the United Nations

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gender identity, national origin, color, ethnicity, religion,disability, or other characteristics, without privilege,discrimination, or bias.

Equality before the law is one of the basic principles ofliberalism.908 Classical liberalism calls for equality beforethe law, not for equality of outcome.909

In his famous funeral oration of 431 BC, the Athenian leaderPericles discussed this concept. This may be the first knowninstance.

"If we look to the laws, they afford equal justice to all in their private differences; if nosocial standing, advancement in public life falls to reputation for capacity, classconsiderations not being allowed to interfere with merit; nor again does poverty barthe way"910

According to the United Nations, this principle is particularlyimportant to the minorities and to the poor.911

formal equality principleAlso called fair equality of opportunity, or positive

discrimination principle, deals with indirect discrimination,by disparity of wealth, abilities and opportunities, throughproviding for affirmative action. equalising measures arejustified on grounds of justice as well as social integrationand harmony.

conferralThe principle of conferral is a fundamental principle of Union

law. According to this principle, the Union is a union of

908 Mark Evans, ed., Edinburgh Companion to Contemporary Liberalism: Evidence and Experience (London:Routledge, 2001), 55 (ISBN 1-57958-339-3).

909 Chandran Kukathas, "Ethical Pluralism from a Classical Liberal Perspective," in The Many and the One: Religious and Secular Perspectives on Ethical Pluralismin the Modern World, ed. Richard Madsen and Tracy B. Strong, Ethikon Series inComparative Ethics (Princeton, NJ: Princeton University Press, 2003), 61 (ISBN 0-691-09993-6).

910 Thucydides, The History of the Peloponnesian War, Written 431 B.C.E, Translated by RichardCrawley (1874), retrieved via Project Gutenberg.

911 Id

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http://www.gutenberg.org/dirs/etext04/plpwr10.txt


http://en.wikipedia.org/wiki/Chandran_Kukathas



member states, and all its competences are voluntarilyconferred on it by its member states. The Union has nocompetences by right, and thus any areas of policy notexplicitly agreed in treaties by all member states remain thedomain of the member states.

margin of appreciationMargin of Appreciation is a concept the European Court of Human

Rights has developed when considering whether a member stateof the European Convention on Human Rights has breached theconvention. The margin of appreciation doctrine allows thecourt to take into effect the fact that the Convention will beinterpreted differently in different member states. Judges areobliged to take into account the cultural, historic andphilosophical differences between Strasbourg and the nation inquestion.912 Margin of Appreciation is similar in concept to,but should not be confused with Subsidiarity.

The Doctrine was used for the first time in the case Handyside v.United Kingdom913 which concerned the publication of a bookaimed at school children, a chapter of which discussed sexualbehaviour in explicit terms. The ECHR were willing to allow alimitation of freedom of expression in the interests of theprotection of public morals.914

For more controversial topics, such as cases involving bioethicsor assisted reproduction, the Court recognises that to make adefinitive stance for all contracting States would meanignoring the social and cultural values which lie behind thedecisions of national legislatures.

‘Where, however, there is no consensus within the Member States of the Council ofEurope, either as to the relative importance of the interest at stake or as to how bestto protect it, the margin will be wider. This is particularly so where the case raisescomplex issues and choices of social strategy: the authorities' direct knowledge of

912 Infra 913 (1976) 1 EHRR 737914 (5493/72) [7] ECHR 5 (7 December 1976)

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their society and its needs means that they are in principle better placed than theinternational judge to appreciate what is in the public interest… There will alsousually be a wide margin accorded if the State is required to strike a balancebetween competing private and public interests or Convention rights.’915

equality principle (union law)The equality principle functions as a constitutional limitation on the

exercise of broad discretionary powers of Member States or undertakings,and thereby serves as a defence for economic operators againstarbitrariness (‘Willkürkontrolle’).

sovereign equality of states principle (union law)The sovereign equality of States is one of the fundamental

principles of international law916, which inter alia finds anexpression in Article 2(1) of the Charter of the UnitedNations and in the Helsinki Final Act.917 The equality ofStates directly flows from their sovereignty: by virtue of thelatter it is impossible to place States in a kind of hierarchy

915 Dickson v. United Kingdom916 See inter alia I. Brownlie, Principles of Public International Law (Oxford, Oxford

University Press 1998, 5th ed.), 289; P. Kooijmans, The Doctrine of the Legal Equality of States: An Inquiry into theFoundations of International Law (Leyden, Sijthoff 1964); R. Jennings and A. Watts, Oppenheim’s International Law, I.1 (London, Longman 1992, 9th ed.), 339-379; I.A. Shearer, Starke’s International Law (London,Butterworth, 1994, 11th ed.), 99-102; Verhoeven, supra n. 70, 125. As far asfactual inequalities between States – especially between industrialized anddeveloping States – are concerned, see inter alia P. Daillier, A. Pellet and N. Quoc Dinh, Droit international public (Parijs, L.G.D.J. 1999, 6th ed.), pp. 1014-1025, paras. 620-626. See more particularly with regard to differential treatment in its more recent appearances in international law,Ph. Cullet, ‘Differential Treatment in International Law: Towards a New Paradigm of Inter-State Relations’, (1999) 10 European Journal of International Law,549-582. On the significance of the concept of sovereignty for managingfactual inequalities, see B. Kingsbury, ‘Sovereignty and Inequality’, (1998) 9 European Journal of International Law, 599-625.


pg. 616


vis-à-vis each other.918 An authoritative elaboration of theprinciple has been given in the UN General Assembly’s 1970‘Friendly Relations’ Declaration.919 One of the importantconsequences of the principle is that States are only bound bylegal rules that they themselves agree to.89 Precisely thisconsensualist feature of international law leads to what atfirst sight may seem a paradox: although States have torespect each other’s sovereign equality, they do not have totreat each other equal in the sense that they may at willenter into treaty relationships with certain States and refuseto enter into such relationships with other States: except ifexplicitly committed – by treaty – to ‘multilateralize’ thegranting of certain rights920, benefits and advantages to otherStates, they are free to choose their treaty partner(s) andcan, in that sense, differentiate between other States.921 Asalways, differentiation should not be equated withdiscrimination. Although this matter may be in need of acloser examination, the least one can say is thatinternational law regards discrimination of other States asundesirable.922 The International Law Commission has gonefurther and has regarded non-discrimination as a ‘general ruleinherent in the sovereign equality of States’.923

918 See A. Bleckmann, ‘Article 2(1)’, in B. Simma (ed.), The Charter of the United Nations. A Commentary (München, Beck 1995), p. 87, para. 44.

919 Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in Accordance with the Charter of the United Nations, Annex to Resolution 2625(XXV) of the UN General Assembly of 24 October 1970. Under ‘VI..

920 A clear example thereof is the principle of most-favoured nation treatmentas contained in various multilateral WTO agreements.

921 As is stated by Jennings and Watts, supra note 85, p. 376, para. 114, ‘there is in customary international law no clearly established general obligation on a state not to differentiate between other states in the treatment it accords to them’.

922 Jennings and Watts, supra note 85, p. 377, para. 114.923 Yearbook of the International Law Commission (1961), II, 128. See also ILC, Yearbook

of the International Law Commission (1958), II, 105. It is not the place here to dwell upon the ILC’s interesting works relating to most-favoured-nation

pg. 617


The principle of sovereign equality of States’, point to,‘sovereign equality’ is stated to include ‘in particular’ thefollowing elements:

g) ‘States are juridically equal;h) Each State enjoys the right inherent in full sovereignty;i) Each State has the duty to respect the personality of other States;j) The territorial integrity and political independence of the State are inviolable;k) Each State has the right freely to choose and develop its political, social, economic

and cultural systems;l) Each State has the duty to comply fully and in good faith with its international

obligations and to live in peace with other States.’

In light of this inventory of rights, M.N. Shaw rightly states,‘the doctrine of the legal equality of states is an umbrellacategory’924.

supremacy principle (union law)The legal doctrine of supremacy of union means that community

labour law takes precedence over domestic labour law. Thecreation of a new legal order of community law and itssupremacy means that community institutions may create rulesaffecting employment and industrial relations, even where someMember States oppose such rules and vote against them in thosecommunity institutions, provided that a voting procedure basedon a majority rule applies to that specific field.

Probably the best known example of the impact of these rulings inlabour law is G. Defrenne v. Sabena,925 where the European Courtdecided that, ‘The principle that women and men should receive equal pay,which is laid down by Article 119 EC [now Article 157 TFEU], may be relied on beforethe national courts. These courts have a duty to ensure the protection of the rights,

clauses, which in 1978 resulted in draft articles: see Yearbook of the International Law Commission (1978), II, 16-73. According to Jackson, most scholars and practitioners do not seem to accept a customary law status of the MFN principle: J.H. Jackson, The World Trading System. Law and Policy of International Economic Relations (Cambridge, MIT 1997, 2nd ed.), 27.

924 International Law, Cambridge, Grotius 1997, 4th ed., 152925 Case 43/75, (1976) ECR 455

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which that provision vests in individuals, in particular in the case of those forms ofdiscrimination which have their origin in legislative provisions….’

The wider the range of EU competences in the field of employmentand industrial relations, the more the EU law they create willcome to replace increasingly wide areas of national labourlaw. An example is the decision of the European Court inCommission v. United Kingdom926. There the Court required the UnitedKingdom to create a system of worker representation where noneexisted. Designation of worker representatives was mademandatory by the Court, due to the consequences for the rightsof workers under two directives ‘which require Member Statesto take all measures necessary to ensure that workers areinformed, consulted and in a position to intervene throughtheir representatives in the event of collective redundancies[or the transfer of an undertaking]’927. In order to performeffectively the tasks of information and consultationspecified in the directives, Member State laws or practicesmust ensure the designation of worker representatives.

Given that it may be applied in national courts, the doctrine ofsupremacy also applies to rules on enforcement of labour law,including remedies and procedures. The ECJ has developedspecial techniques and principles by which EU labour law maybe enforced in national courts. Where EU enforcementrequirements come into conflict with national procedures andremedies, again, they take precedence and must be applied bynational courts overriding domestic rules. Remarkableinstances have included the Court’s decision in Marshall v.Southampton and South West Area Health Authority928, abolishing thelimits on compensation for sex discrimination in the UKlegislation. Through the doctrine of supremacy, EU law haspromoted the Europeanisation of employment and industrialrelations by ensuring that EU law applies in many areas

926 Case C-382/92 and Case C-383/92, [9]927 (Case C-383/92, paragraph 23; Case C-382/92, paragraph 26)928 (No. 2), Case C-271/91, (1993)

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falling within the competence of the EU, ranging from equalitybetween women and men to workers’ representation.

direct effect principle (union law)The provisions of a regional treaty are capable of having direct

effect before the national courts of member states. The resultwas to create an alternative manner of enforcing theobligations undertook by member states in the treaties, to themore traditional method of state enforcement in the form ofenforcement actions taken by the Commission at a supranationallevel. Individuals could now use national courts to invoketreaty provisions against member state governments. The pre-conditions for direct effect are that the provisions on whichan individual wishes to rely are sufficiently clear andunconditional, and that there is no scope for member states toexercise discretion in implementation. Thus, a regulation thatallows member states to privatise roads would not have directeffect and could not be enforced in the courts, because itprovides that states may privatise roads, not must privatiseroads.

indirect effect principle (union law)Indirect effect describes a situation where the courts in member

states use Union law to interpret national laws, as oppose todirect effect where Union law is applied directly. Treatyarticles, Regulations and Decisions can all have direct effectexcept where they are unclear or conditional. In such casesthey may have indirect effect, but are unlikely to be of muchuse for interpreting national laws. Recommendations andOpinions cannot have direct effect, but may have indirecteffect, when interpreting the Union law they supplement ornational laws, as established in Grimaldi v Fonds des MaladiesProfessionnelles929 established that Directives can have indirecteffect in where an individual takes action in a national courtagainst another individual, where a Directive can never have

929 ECR 4407 Case C-322/88. Von Colson and Kamann v Land Nordrhein-Westfalen [8] ECR 1891 Case 14/83

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direct effect, or where the provision of the directive is notsufficiently clear and unconditional to have direct effect.930

proportionality principle (union law)Proportionality is recognised one of the general principles of

Union law. According to the general principle ofproportionality the lawfulness of an action depended onwhether it was appropriate and necessary in order to achievethe objectives legitimately pursued . When there is a choicebetween several appropriate measures the least onerous must beadopted, and any disadvantage caused must not bedisproportionate to the aims pursued.

legal certainty principle (union law)The concept of legal certainty is recognised one of the general

principles of Union law. It is a important general principleof international law and public law, which predates Union law.As a general principle in Union law it means that the law mustbe certain, in that it is clear and precise, and its legalimplications foreseeable, especially when applied to financialobligations. The adoption of laws which will have legal effectin the Union must have a proper legal basis. Legislation inmember states which implements Union law must be worded sothat it is clearly understandable by those who are subject tothe law. The general principle of legal certainty prohibits Expost facto laws, i.e. laws should not take effect before they arepublished.

legitimate expectation, principle (union law)Legitimate expectation doctrine holds that and that ‘those who

act in good faith on the basis of law as it is or seems to beshould not be frustrated in their expectations’.931The doctrineof legitimate expectation, which has its roots in the

930 Berry, Elspeth; Hargreaves, Sylvia (2007). European Union law (2nd ed.). Oxford University Press. p. 66. ISBN 978-0-19-928244-9.

931 Kaczorowsky, Alina (2008). European Union law. Taylor & Francis. p. 232. ISBN 978-0-415-44797-3.

pg. 621


principles of legal certainty and good faith, is also acentral element of the general principle of legal certainty inUnion law. The legitimate expectation doctrine holds that andthat ‘those who act in good faith on the basis of law as it isor seems to be should not be frustrated in their expectations’

asymmetry principle (union law)The principle of asymmetry means the principle that addresses

variances in the implementation of measures in an economicintegration process for Purposes of achieving a commonobjective932; it recognizes that not all countries stand equal,able to trade and exchange goods on equal terms to the mutualbenefits of their populations. The principle thus seeks toredress this by recognizing the need to defer or exemptcertain areas of the economy from the harsh discipline of atrade liberalization commitment regime based on the capacityof each partner member in the particular trade bloc. It is thecornerstone of the Community Customs Union as it recognisesthat that the three east Afrikan countries are at a verydifferent level of economic development and if the parties areexpected to liberalize their economies at the same rate thenmoves towards free trade areas can generate economicdifficulties for the less developed partner. It thereforeproposes that where a free trade area is introduced betweencountries of different levels of development, then this shouldoccur on an asymmetrical basis. Thus, for instance, under acustoms union where countries are at a very different level ofdevelopment, the more developed partner will eliminate tariffsmore quickly and more extensively than the less developedcountries.

There are two main aspects of the asymmetry principle relating totariffs for purposes creating an equitable and balanced freetrade area in the Customs Union:

و asymmetry in the timing of the reduction and of elimination of tariffs

932 The Preamble of the Treaty Establishing the East Afrikan Community.

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و asymmetry in the extent of total trade to be included in the tariff reduction and tariffelimination undertaken.

Asymmetry in the timing of tariff reductions means that onepartner will reduce and eliminate its tariffs faster than theother partner. Asymmetry in the extent of tariff reductionmeans that one partner will reduce and eliminate tariffs on ahigher percentage of its total trade than the other partner.

subsidiarity principle (union law)The principle of subsidiarity means that what the lesser entity

can do adequately should not be done by the greater entityunless it can do it better. Taken over into communitypolicies, it is used as an instrument for determining when theUnion is to act in areas not coming under its exclusivecompetence.

variable geometry principle (union law)The principle of Variable Geometry is that which allows states

partners to participate in the process of integration atdifferent paces depending on the level of economic advancementprovided that the objective of the progression remains thesame. The principle therefore allows members to move atdifferent paces depending on their readiness for closereconomic integration. Thus the Variable Geometry is sometimesreferred to as two speeds or multi speed933. This is becausewhereas there is the general objective, some members takelonger than others to reach the full stage of the fullparticipation.

The core question when establishing the Customs Union was whetherprogress in the member states in the region towards desirableobjective of economic integration will best achieved bycausing or seeking to cause all the three member states to

933 Marcin Zaborowski: Germany and EU Enlargement: From Rapprochement to ‘Reaproachment’? In: Helene Sjursen (Ed.), Enlargement in perspective, p. 46.

pg. 623


progress in unison towards it or by allowing the member statesand encouraging those states that have economic viability interms of growth, sharing common purposes and demonstrate thewill and the ability to program more swiftly than others to doso, Community will not be an end in itself. It will thereforeonly survive if it is able to advance the sensible purpose ofits more enlightened members.

specialization principle Specialization is related to another economic concept, division

of labor, discussed at great length by Adam Smith, the 18th-century Scottish economist and author of "The Wealth ofNations." Smith famously illustrated the benefits ofspecialization and a division of labor when describing a pinfactory, in which each worker performs a single specializedtask. One worker measures wire, another cuts it, one pointsit, others make the head and so on. Through this process,workers produced thousands more pins than if each worker madewhole pins independently. This principle requiresspecialization in one’s best, by partner state withoutunnecessary competition for the purposes of the Communitybenefit remains central. One of the most important andsomewhat unexpected features of this principle ofspecialization is that it applies even in cases in which aparticular country has an efficiency or cost advantage overother countries in all the products they are both able tomanufacture. Economists call this the theory of comparativeadvantage. In a macroeconomic context, specialization meansthat nations concentrate on producing the goods in which theyhave the most advantage while engaging in trade with othercountries to obtain other goods.

absorptionAbsorption refers to the act or process of including a thing into

something else. Under federal law, the act of absorption isused in the application of rights guaranteed by the federalgovernment to actions by the states. Under International Law,

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the act of absorption is used in the context of merging onenation into another, whether voluntarily or by subjugation.Under Labor Law, the act of absorption is used in a post-merger collective bargaining agreement where a provisionallows seniority for union members in the resulting entity.Under Commercial law, the act of absorption is used wherein amanufacturer pays the seller’s freight costs, in which themanufacturer accounts for before quoting the seller a price.It is also known as freight absorption.

primacy principle (union law)The supremacy (sometimes referred to as primacy) of community law

by which the laws of Union member states that conflict withlaws of the Union must be ignored by national courts so thatthe Union law can take effect. The legal doctrine emerged fromprecedent.

sincere cooperation principle (union law)Pursuant to the principle of sincere cooperation, the Union and

the Member States shall, in full mutual respect, assist eachother in carrying out tasks which flow from the Treaties. TheMember States shall take any appropriate measure, general orparticular, to ensure fulfilment of the obligations arisingout of the Treaties or resulting from the acts of theinstitutions of the Union. The Member States shall facilitatethe achievement of the Union’s tasks and refrain from anymeasure which could jeopardise the attainment of the Union’sobjectives.’ This general principle of sincere cooperation isinspired by an awareness that the Union legal order on its ownis not able to fully achieve the objectives pursued by theestablishment of the Union. Unlike a national legal order, theUnion legal order is not a self-contained system but relies onthe support of the national systems for its operation. Allthree branches of government — legislature, executive andjudiciary — therefore need to acknowledge that the Union legalorder is not a ‘foreign’ system and that the Member States andthe Union institutions have established indissoluble links

pg. 625


between themselves so as to achieve their common objectives.The Union is not just a community of interests; it is acommunity based on solidarity. It follows that nationalauthorities are required not only to observe the UnionTreaties and secondary legislation; they must also implementthem and bring them to life. The interaction between the twosystems is so multifaceted that a few examples are called for.

subsidiarity testSubsidiarity is an organizing principle that matters ought to be

handled by the smallest, lowest or least centralized competentauthority. The Oxford English Dictionary defines subsidiarityas the idea that a central authority should have a subsidiaryfunction, performing only those tasks which cannot beperformed effectively at a more immediate or local level.934

The concept is applicable in the fields of government,political science, cybernetics, management, military (MissionCommand) and, metaphorically, in the distribution of softwaremodule responsibilities in object-oriented programming.Subsidiarity is, ideally or in principle, one of the featuresof federalism, where it asserts the rights of the parts overthe whole.

Subsidiarity is also a tenet of some forms of conservative orlibertarian thought. For example, conservative author ReidBuckley writes:

Will the American people never learn that, as a principle, to expect swift response andefficiency from government is fatuous? Will we never heed the principle ofsubsidiarity (in which our fathers were bred), namely that no public agency shoulddo what a private agency can do better, and that no higher-level public agencyshould attempt to do what a lower-level agency can do better – that to the degreethe principle of subsidiarity is violated, first local government, the state government,and then federal government wax in inefficiency? Moreover, the more powers thatare invested in government, and the more powers that are wielded by government,the less well does government discharge its primary responsibilities, which are (1)

934 Buckley, Reid, 2008, An American Family – The Buckleys, Threshold Editions, Simon & Schuster, New York, 459 p.

pg. 626


defense of the commonwealth, (2) protection of the rights of citizens, and (3)support of just order.935

Subsidiarity is perhaps presently best known as a generalprinciple of Union law. According to this principle, the unionmay only act (i.e. make laws) where action of individualcountries is insufficient. The principle was established inthe 1992 Treaty of Maastricht.936

reserved country powers doctrineSee also reserved powers doctrine

reserved powers doctrineThe reserved country powers, also called reserved powers, is a doctrine

reserved exclusively for the states (in a federation), whichis used in the interpretation of the Constitution. It adopteda restrictive approach to the interpretation of the specificpowers of the Federal Parliament in order to preserve theresidual powers of the States.

inherent capacities See the principle of inherent jurisdictions

inherent jurisdictions (union law)If the constitution does not define the matters to which the

organisation can deal then it can deal with any matter and ifthe constitution does not preclude certain types of acts orexhaustively enumerate the acts which the organisation mayperform then it can perform any act. This is the principle ofinherent capacities or jurisdictions and reflects adequatelythe position in practice. In a sense, according to thisconcept, the guiding principle is the purposes for which anorganisation is established so that so long as an act that isprecluded from the treaty is necessary for purposes of theorganisation, it is assumed to have the powers to undertake

935 Buckley, 2008, p. 177.936 Shelton, Dinah. The Boundaries of Human Rights Jurisdiction in Europe. Duke J. Comp. &

Int'l L. 153. 2003.

pg. 627


such acts to enable it fulfill the objectives of theorganisation.

partnership principleA principle in which proposals for regional funding are developed

on a partnership basis between the differnet levels ofgovernment and with cross sector partnerships at theappropriate regional level, and where the implementation ofthe regional programme is largely undertaken at the regionallevel and monitored at both national and EU levels. The samepolicy focus has applied to some other policy arenas – IT,urban and innovation policy being cases in point, though allof these have had a link to regional policy.

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pg. 629


DISPUTE RESOLUTION IN LOCAL GOVERNMENT LAW

local government conflictsConflicts can arise for a variety of reasons, including: unequal

impacts, benefits or costs; different expectations,assumptions or forecasts; different definitions of the issue;different values; fragile relationships; different standardsof behaviour; and decisions/actions on unrelated issues.

Conflicts can arise on a variety of issues, including:¯ land-use planning;¯ service arrangements;¯ economic development;¯ environment or natural resource protection;¯ community programs; and¯ partner agreements.

mandatory arbitrarion

There are certain disputes, provided by local governmentstatutes, which are subject to mandatory arbitration.

dispute resolution officer or facilitatorAny party to an inter-governmental dispute may apply for process

assistance to the ministry. A dispute resolution officer orfacilitator may then help the parties resolve the matter byany process the officer or facilitator considers appropriate,including by referring the matter to mediation and other non-binding resolution processes. For those disputes not subjectto mandatory arbitration under either the Local Government Actor the Community Charter, if the parties agree, the officermust direct the dispute to binding arbitration through aprocess of final proposal arbitration, or full arbitration.

ADR in local governmentAlternative dispute resolution that emphasizes interest-based

negotiation strives to achieve solutions that are acceptablefor everyone involved in a dispute. Widely used in a variety

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of fields, alternative dispute resolution encourages opencommunication and helps foster understanding between theparties and better long-term relationships. Alternativedispute resolution that aims to resolve disputescollaboratively helps parties to: identify their interests;explore options for resolution; develop and implementsolutions acceptable to all; and obtain the services of aneutral mediator, if needed. Solving disputes as early aspossible will also help parties avoid stressful and costlyarbitration or court action. To utilize one of the alternativedispute resolution processes in the legislation one or more ofthe parties to a dispute may request process advice andassistance from the line Ministry.

Litigation Local Government entities operate in a complex commercial and

administrative environment. Legal disputes of varyingcomplexity inevitably arise. Local Government Litigation actsin disputes of all sizes and complexities coveringcontractual claims, judicial review, property matters,environmental matters, building disputes and rate recovery.

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SUING THE STATE IN INTERNATIONAL LAW

rule of exhaustion of local remediesUnder the 'rule of exhaustion of local remedies', a State must be

given the opportunity to redress an alleged wrong within theframework of its own domestic legal system beforeits international responsibility can be called into questionat the level of regional or international organs.International Law requires that a party who has been aggrievedby actions or omissions of a state must adhere to the rule ofexhaustion of local remedies, as was held by the Afrikan HumanRights Commission in Sir Dawda k. Jawara V Gambia937 that:

‘This rule is one of the most important conditions for admissibility of communicationsand no doubt therefore the first requirement looked at by both the commission andthe state concerned.’

Also, in the Interhandel Case938, it was stated:‘…the rule that local remedies must be exhausted before international proceedings may

be instituted is a well established rule of customary international law…’939

It is ‘an important principle of customary internationallaw’940 . The principle is reiterated in art. 44(b) of theInternational Law Commission's Draft Articles on StateResponsibility of 2001 ([0] II I.L.C. Yearbook 26), which provides thatthe responsibility of a State may not be invoked if ‘the claimis one to which the rule of exhaustion of local remediesapplies and any available and effective remedy has not beenexhausted’. However, the rule has an exception: Ineffectiveremedies, i.e., those which hold out no real prospects ofobtaining the redress sought, need not be used. ‘There can be noneed to resort to the municipal courts if those courts have no jurisdiction to afford

937 Communication 147/95 and 149/96938 I.C.J 1959 Rep., p. 627939 See Decision of Afrikan Human Rights Commission Communication 155/96 (The Ogoniland Case)940 ELSI Case 1989 I.C.J. Rep. 15 at 42

pg. 632


relief; nor is it necessary again to resort to those courts if the result must be arepetition of a decision already given’941.

non-state actors Non-state actors are categorized as entities that (i)

participating or acting in the sphere of internationalrelations; organizations with sufficient power to influenceand cause change in politics which are (ii) not belonging to orexisting as a state-structure or established institution of astate; are not holding the characteristics of this, thesebeing legal sovereignty and some measure of control over acountries people and territories.942

The admission of non-state actors into international relationstheory is inherently a rebuke to the assumptions of realismand other black box theories of international relations, whichargue that interactions between states are the mainrelationships of interest in studying international events.

three theories of diplomatic immunity Diplomatic immunity is based on three theories: 1. the theory of extraterritoriality” states that the territory of the

receiving state used by the diplomatic mission or diplomat

941 Panevezys-Saldutiskis Railway Case (1939) P.C.I.J., Ser. A/B, No. 76 at 18. See also art. 44(b) of the I.L.C.'s Draft Articles on State Responsibility, which refers to the exhaustion of any ‘available and effective remedy’; Mavrommatis Jerusalem Concessions Case (Jurisdiction) (1924) P.C.I.J., Ser. A. No. 2 at 12; Electricity Company of Sofia Case (Preliminary Objection) (1939) P.C.I.J., Ser. A/B, No. 77 at 79; Brown, Robert E., Claim (1923) 6 R.I.A.A. 120; Spanish Zone of Morocco Claims (1925) 2 R.I.A.A. 731; Mexican Union Railway Company Claim (1930) 5 R.I.A.A. 122; Finnish Ships Case (1934) 3 R.I.A.A. 1502; Ambatielos Case (1956) 12 R.I.A.A. 118 and 122; German External Debts Case (1958) 25 I.L.R.42.

942 See Rochester, Martin J. Between Two Epochs: What’s Ahead for America, the World, and Global Politics in the Twenty-First Century. Upper Saddle River, NJ: Prentice Hall, 2002; see also Warkentin, Craig. Reshaping World Politics: NGOs, the Internet, and GlobalCivil Society. New York: Rowman and Littlefield Publishers, 2001.

pg. 633


should be considered as a part of the territory of the sendingstate instead;

2. the theory of representative character”, 943 states that the diplomaticmission, and thus also diplomats, personify the sending stateand therefore they should be granted the same immunities andindependence as those granted to the sending state; andthirdly,

3. the “theory of functional necessity”, according to which thejustification for granting immunities to diplomatic agents isbased on the need to enable normal functioning of diplomaticmissions and diplomats.

exhaustion of local remedies doctrine Diplomatic espousal of a national's claims will not be

internationally acceptable unless the national in question hasgiven the host state the chance to correct the wrong done tohim through its own national remedies. Exhaustion of localremedies usually means that the individual must first pursuehis claims against the host state through its national courtsup to the highest level before he can ask the state of hisnationality to take up those claims and that state can validlydo so.

In Barcelona Traction Case944(Belgium v. Spain), the government of Spainunder Franco in the 1960s placed restrictions on foreignersdoing business in Spain. The Belgian stockholders in BarcelonaTraction lost money and wanted to sue in the InternationalCourt of Justice, but in the court Judge Fornier ruled on theside of Spain, holding that only the state in which thecorporation was incorporated (Canada) can sue. The decision inis important in public international law because itdemonstrates the principle that unless a principle of lawpermits a country to espouse a national's claim in the ICJ,there cannot be an espousal. Further, it demonstrates how theconcept of diplomatic protection under international law can

943 Article 3, Vienna Convention oin Law of Treaties. 944 International Court of Justice Reports, vol. 1970, p. 3(1970).

pg. 634


apply equally to corporations as to individuals. It alsoexpanded the notion of obligations owed erga omnes (inrelation to everyone) in the international community.

effective and continuous nationality doctrineThe second important requirement is that the individual who has

been wronged must maintain the nationality of the espousingstate from the moment of injury until at least thepresentation of the claim by way of diplomatic espousal. Ifthe nationality of the individual in question changes in themeantime, the state of his former nationality will not be ablevalidly to espouse his claims. The claim by a state on behalfof its national may also be dismissed or declared inadmissibleif there is no effective and genuine link between the nationalconcerned and the state that seeks to protect him (see theInternational Court of Justice judgment in the Nottebohm case).

state liability doctrineThe ECJ developed a general principle of state responsibility for

compliance with EU law. This doctrine was created by a case inthe field of employment rights: Andrea Francovich and Others v. ItalianRepublic945 and the resulting principle of state liability iscalled the Francovich principle. The elements of liability,which comprise the Francovich principle, that emerged from thedecision of the ECJ include: (i) a breach of EU law; (ii)attributable to the Member State; (iii), which causes damageto an individual. If these elements areestablished, compensation may be claimed in a legal actionbefore a national court.

diplomatic protection doctrine Diplomatic protection (or diplomatic espousal) is a means for a State

to take diplomatic and other action against another State onbehalf of its national whose rights and interests have beeninjured by the other State. It can include consular action,negotiations with the other State, political and economic

945 Joined Cases C-6/90 and C-9/90, [9] ECR I-5357

pg. 635


pressure, judicial or arbitral proceedings or other forms ofpeaceful dispute settlement. In 2006, the International LawCommission has adopted the Articles on Diplomatic Protection,regulating the entitlement and the exercise of diplomaticprotection.

The idea that a state has a right to protect its subjects who areabroad has been expressed by Emmerich de Vattel in his opus ‘The Lawof Nations’: ‘Whoever ill-treats a citizen indirectly injures the State, which mustprotect that citizen.’ Since this protection could take any formwhatsoever, the doctrine has often been misused by Westernpowers as a pretext to intervene in the affairs of lesspowerful nations. Customary international law recognises theexistence of certain requirements that must be met before astate can validly espouse its national's interest. The twomain requirements are exhaustion of local remedies andcontinuous nationality.

pg. 636


Index

1st freedom, 2542nd freedom, 2543rd freedom, 2544th freedom, 2555th freedom, 2556th freedom, 2557th freedom, 2558th freedom, 2559th freedom, 255a secular state, 130aboriginal, 364abrogation doctrine, 367absolute immunity, 375absolute nullity, 384absolute sovereignty, 122Absolute sovereignty, 230Absolute theory of sovereignty,

234Absoluteness (sovereignty), 235absorption, 405, 417abstention rule, 120abuse of discretion, 364Abuse of discretion, 332, 333abuse of process doctrine, 385academic freedom, 168accardi doctrine, 364acceptability(of entitelement orrights), 189

Accessibility (dispute resolution), 305

accessibility(of entitelement orrights), 189

accession, 57accountability (public administration),, 369

Acquisition of sovereignty, 241Act of Parliament, 46

actual and imputed bias, 343actual sovereignty, 123actus contrarius, 56ad hoc arbitration proceedings,

328Ad Hoc Judges, 99adequate and independent state ground doctrine, 368

Adjudication, 242Adjudicative processes, 306administration, 106administration of justice, 364Administrative Boards, 313Administrative decentralization,

124administrative hearing, 335administrative law, 9Administrative law, 9, 19administrative review boards,

326administrative subpoena, 334administrative summons, 334administrative trial, 335admiralty law, 226adoption, 57ADR in local government, 421advisory judisriction, 391, 395Advisory opinion (ICJ), 100advisory proceedings (international law), 391, 395

African Union, 79aggregation principle, 366Agreements, 11, 41air law, 261Air sovereignty, 241Airspace, 253alienable rights, 196

pg. 637


Alternative dispute resolution, 309

Alternative dispute resolution (ADR), 301, 307

alternative mandamus, 335ambulance chasing, 357amending treaty, 35, 49Amendments (treaty), 63Anarchists(sovereignty), 258Annexation, 269anti-coercion principle, 207apparent bias, 343Appeasement, 263Appropriate dispute resolution,

309arbitral tribunal, 327Arbitrary and capricious, 332,

333arbitrary and capricious’ standard, 350

arbitration, 311Arbitration, 314Arbitration Agreement, 319Arbitration Conventions and Investment Treaties, 319

Arbitration Procedural Rules, 322

arbitration tribunal, 327archipelagic state, 224archipelagic waters, 225Articles (treaty), 58as if enacted clause, 336Aspirational rights, 137Associated States, 270asymmetry principle (union law),

403, 415attribution, 296autonomous administrative division, 241

autonomous area, 241

autonomous zone, 241Availability (of entitelement orrights), 189

balancing test in administrativelaw, 359

barrantry, 357Baseline, 250Baseline (sea), 250Benefits of ADR, 310Beyond rights, 255bias rule, 365big stick diplomacy, 267bilateral air service agreement,

256bilateral air transport agreement, 256

Bilateral Investment Treaties, 322

bilateral treaty, 62Bilateral treaty, 58birth tourism, 112born alive rule, 181Born within a country, 111Boundary delimitation, 249breach of rules of natural justice, 335

bureaucracy, 105By-law, 46by-laws, 16, 46cabinet collective responsibility, 210

Canals, 246cannon shot' rule, 221carltona principle, 366, 379case and controversy, 119case law, 10, 40castañeda doctrine, 265cease and desist order, 200cell based actors, 77censorship (internet), 211

pg. 638


Center for Alternative Dispute Resolution, 327

certiorari, 365Cession, 241Characteristics of effective dispute mechanisms, 305

charge (public), 163charter, 117Charter colony, 117Charters (international law),

12, 42checks and balances, 130Children's Ombudsman, 325chilling effects doctrine, 355circalittoral zone, 249Citizen Advocate, 325citizens, 110citizenship, 115Citizenship, 110citizenship based on religion,

111Citizenship by adoption, 111Citizenship by holding an office, 112

Citizenship by investment, 112citizenship by right of birth within the territory, 111

citizenship by right of blood, 110

citizenship through birth, 111citizenship through marriage,

114citizenship through parents, 110Civil and Political Rights, 137civil case, 298civil dispute, 302civil procedure, 20Civil rights law. See human rights law

Civil society, 106

civil society organisations (human rights), 162

Classical Liberals(sovereignty),258

clausula rebus sic stantibus, 393

clearly established law test, 366

closing protocol, 58code, 16, 46codification, 22Codification of common law, 22codification of customary international law, 36, 51

codification of international law, 22

coercion(Ending treaty obligations), 67

collaborative divorce, 311collaborative law, 311collective responsibility, 297commission, 106Committee Against Torture, 149Committee on Economic, Social and Cultural Rights, 148

Committee on Migrant Workers, 149

Committee on the Elimination of Discrimination against Women monitors the CEDAW, 149

Committee on the Elimination of Racial Discrimination, 149

Committee on the Rights of Persons with Disabilities, 149

Committee on the Rights of the Child, 149

common external tarrif, 284Community law, 69Company vs. Company Disputes,

303

pg. 639


Company vs. State Disputes, 302Compensation (human rights remedies), 140

complementarity(community law), 284

conclusive evidence clause, 336conduct of the hearing, 340confederation, 272conferral, 398, 410Conflict management, 306Conflict resolution, 306Congressional charter, 118congruence and proportionality test, 367

Conquest, 242Consensual processes, 306Consent of the governed theory (sovereignty), 231

Consequences of terminology, 65Conservatory Order (human rightsremedies), 142

consistency, 338consistency principle, 363constituetive theory, 277constitution, 10, 40, 102constitutional law, 20Constitutional law, 19constitutional supremacy, 205constitutionalism, 103constitutionality, 102constitutive theory, 278consulate, 266Consumer law, 20contiguous zone, 225Contiguous zone, 251continental shelf, 220, 225Continental shelf, 252continental union, 79Continentalism, 79continuing mandamus, 336

contractarian theory, 230Contracting States, 320Contrary to peremptory norms(Ending treaty obligations), 67

Controlled airspace, 253controlling state, 276convention, 57convention right, 190Conventions (international law),

12, 42cooperation, 391co-regulation, 47corruption, 370corruption(Ending treaty obligations), 67

Cotonou Agreement, 78Counterinsurgency diplomacy, 263countermeasure, 294country, 106, 272court, 326courts (human rights), 162criminal case, 299criminal dispute, 302Criminal law, 20criminal procedure, 20Crown dependencies, 271Cultural relativism, 156customary international law, 10,

28, 40, 54Customary international law (human rights protection), 146

Customs, 10, 40damages (judicial review), 352de facto and de jure states, 275de facto federations, 271de facto sovereignty, 123, 235De facto states, 281de jure sovereignty, 123De jure sovereignty, 235

pg. 640


de jure states, 281Decentralization, 124decision ultra vires, 379declaraiton (companies law), 59declaration, 59, 352declaration (civil procedure),

59declaration (creditor-debor relationship), 59

declaration (trust law), 59declaration against interest (evidence), 59

declaration dying or dying declaration (evidence), 59

declaration of incompatibility, 407

Declaration of invalidity of anylaw (human rights remedies), 142

Declaration of Rights (human rights remedies), 142

declaration of war, 208Declarations, 13, 43declarative theory, 278Deconcentration, 125decree, 208decree (executive order), 209decrees, 18, 48definitive entry into force, 60definitive signature (signature not subject to ratification), 62

delegated legislation, 212, 213delegates non potest delegare, 379Delegation, 125delegatus non potest delegate,

23delimitation, 249démarche, 293democracy, 205

Democracy, 257denaturalization, 115dependant state, 276dependent state,, 276detention, 210development as a human right,

176devolution, 124Devolution, 125devolved government, 117Devolved state, 270Diplomacy, 262Diplomatic immunity, 268diplomatic mission, 265diplomatic protection doctrine,

425direct applicability doctrine,

408direct effect principle (union law), 401, 414

discretionary duty, 376discretionary function, 375discretionary immunity, 375Discrimination Against Women.,

134Dispute, 298Dispute mechanisms, 299dispute resolution, 299Dispute resolution, 299dispute resolution mechanisms,

299dispute resolution methods, 299dispute resolution officer, 421Dispute Review Board, 313distributive justice, 334Divestment, 125docrine of attribution (international law), 289, 392

doctrines of foreign sovereign immunity, 287

pg. 641


Dollar diplomacy, 263domestic sovereignty, 229Domiciled foreigners, 133double effect, 396dual citizenship, 111dualism, 37, 52due diligence test, 185duty to assist at sea, 219duty to give reasons, 337, 363Early neutral evaluation, 312Economic and Social Council, 90economic rights, 134Economic, Social And Cultural Rights, 137

edict, 18, 48, 209effective and continuous nationality doctrine, 425

effects doctrine, 396efficiency principle, 334, 370election commission, 106elements of socio-economic rights, 189

embassy, 265emergency powers, 208Empire, 270end of a treaty, 58Energy Charter Treaty, 321enforcement of union law, 69, 396entry into force, 60entry into force for a state, 60enumerated powers, 406environmental human rights, 155Environmental law, 20equal access to rights within countries, 134

equal protection clause, 199equal protection standing, 119Equality and Non-discrimination:, 183

equality as a fundamental human right, 167

equality before the law, 397, 409

equality of states, 289, 392equality principle (international law), 293

Equality principle (union law), 399, 411

equidistance principle, 217Equity(dispute resolution), 305error of fact, 348, 380error of law, 348, 380essential care, 133estrada doctrine, 264EU directives, 407Eulittoral zone, 249European Union, 80Evidence (International litigation), 317

Evidence law, 20Exchange of Notes, 13, 44Excluded categories., 114exclusionary rule, 201exclusive economic zone, 251exclusive economic zones (eezs),

225exclusive mandate, 269exclusivity rule, 346Exclusivity theory of sovereignty, 235

executing a bond, 374Execution and implementation (treaties), 64

Executive Memoranda, 17, 47executive privilege doctrine,

211exhaustion of local remedies doctrine, 424

pg. 642


exhaustion of remedies doctrine (administrative law), 365

Existing continental unions, 79expatriation, 132Expert Determination, 313Express repeal, 25expressive association, 169external dispute resolution, 307External sovereignty, 238extra judicial powers, 208extra territoriality, 266Extrajudicial dispute resolution, 301

Extraterrestrial real estate, 86extraterritorial jurisdiction,

287Extraterritoriality (UN), 84Facilitation, 313facilitator, 421Fact in Dispute, 299fairness, 380Family group conference, 312federacy, 271federal government, 270federal paramountcy, 204federalism, 130, 204, 272Federalism, 126federated state, 108federation, 271Federation sovereignty, 240fettering discretion, 349finality clause, 336first amendment, 204first generational rights, 136flag state principle, 217flag-state, 217Food and Agriculture Organization, 91

foreign policy, 263foreign relations law, 30

formal equality principle, 398, 410

formal reciprocity, 293fourteenth amendment, 205fourth amendment, 205Framework Treaty, 14, 45fraud(Ending treaty obligations), 67

free association, 172Freedom from slavery, 151Freedom from torture, 151freedom of association, 168Freedom of Conscience, 152freedom of expression, 170freedom of information, 171freedom of movement, 134Freedom of movement, 153Freedom of Movement, 134freedom of navigation, 217Freedom of religion, 152freedom of speech, 170Freedom of speech, 152freedom of the high seas, 216freedom of the press doctrine,

200freedom of the seas, 226Freedom of the Seas,, 243Freedom of thought, 152freedoms of the air, 254full belly thesis, 182full national jurisdiction and sovereignty, 242

full powers, 289full repeals, 24functus officio doctrine, 365fundamental rights, 202Funding (UN), 99General Assembly, 87Geneva Conventions, 146government, 106

pg. 643


government in exile, 267, 282grievance mechanisms, 299grounds for review, 346Group of 77, 99group rights, 163Group Rights, 137gunboat diplomacy, 267Gunboat diplomacy, 263hamburg rules, 267hard law, 55harm principle, 207harm principle (public officers), 386

hearing rule, 365hearts and minds diplomacy, 263heightened scrutiny test, 361high seas, 214high seas doctrine, 221Home rule, 126Honorary citizenship, 114Horizontal boundary, 253hot pursuit, 215human rights, 136human rights approach to development, 180

Human rights are political, 194human rights as entitlement, 190Human Rights Committee, 148Human Rights Council (human rights protection), 147

Human rights defender, 150human rights law, 20Human rights obligations, 160Human rights promotion, 150human rights protection system,

160IBA Rules, 315ICJ, 99illegality, 347, 379immigration, 132

Immigration law, 20immigration rights, 134immunities, 137immunity of public officers, 370Imperialists (sovereignty), 258implied repeal, 25inclusivity of human rights, 189independent state, 276independent statutory discretionprinciple, 373

indirect effect principle (unionlaw), 402, 414

individual rights, 163Individual vs. Company Disputes,

303individuals, 110Indivisibility:, 182Indivisible theory of sovereignty, 234

informal diplomacy, 262Information Commissioner, 325infralittoral zone, 249inherent capacities, 407, 418inherent jurisdictions, 407, 419inherent tendency’ test, 169injunction, 352Injunctions (human rights remedies), 141

Inspector General, 325institutional arbitration proceedings, 328

insurance for public officers bygovernment (bodies), 374

insurance fraud, 402insurance’ fund, 374integrity (public administration), 369

intelligible principle, 339Interdependence and Interrelatedness:, 182

pg. 644


interdependence sovereignty, 229intergovernmental organization,

71Intergovernmental organizations,

107Intergovernmentalism, 79intermediate scrutiny, 360Internal sovereignty, 236internal waters, 223, 244Internal waters, 250, 251International arbitral tribunals, 329

International arbitration, 390International Arbitration, 319International Atomic Energy Agency, 91

International Bank for Reconstruction and Development (IBRD),, 97

international bodies, 107International Centre for Settlement of Investment Disputes (ICSID),, 97

International Civil Aviation Organization, 92

international convention on salvage, 1989, 214

international court of justice, 99

International Court of Justice, 89

International courts, 329international criminal court,

100International Development Association (IDA),, 97

international dispute resolutioninstitutions, 330

International Finance Corporation (IFC),, 97

International Fund for Agricultural Development (IFAD), 92

international governmental organization; IGO, 71

International human rights law, 144, 158

International humanitarian law, 146

international judicial institutions, 329

international jurisdiction (territorial waters), 214

international jurisdiction per common heritage of mankind, 242

International Labour Organization, 93

international law, 26international legal sovereignty,

229International legal theory, 27International litigation, 317International Maritime Organization, 93

International Media, 77International Monetary Fund, 93International nongovernmental organizations (INGOs), 107

international organisations, 107International protection and promotion of human rights, 144

International Seabed Authority (ISA), 85, 244

International Telecommunication Union, 94

international territory, 87International treaties, 145international waters, 85, 244International waterways, 245international zone (UN), 85

pg. 645


Internationalists (sovereignty),258

internationally wrongful acts, 296

Interpretation, 64interpretative declaration, 13,

43, 59Intertidal zone, 249intimate association, 168Invalid treaties(Ending treaty obligations), 66

invidious discrimination, 364Involuntary multiple citizenship, 112

irrationality, 349, 380irrebutable presumption of parliamentary intent, 338

irrebutable presumption of parliamentary intent principle,362

irrelevant considerations, 380isolated peoples, 270Joint Declaration, 13, 43judex, 326judge-made law, 10, 40Judicial dispute resolution, 300judicial immunity, 376judicial review, 345Judicial review, 21Judicial Review, 331Judicial Review (human rights remediation), 141

Judicial review of administrative acts, 331

Judicial review of primary legislation, 331

judicial supremacy, 357jure matrimonii, 114jurisdiction, 326

jurisdiction (human rights enforcement), 137

Jurisdiction (International litigation), 317

jus cogens, 30, 33, 49jus dicere, 326jus gentium, 28jus inter gentes, 28Jus legationis, 262jus oficii, 112jus sanguinis, 110jus soli, 111Jus tractatuum, 50justiciability, 353Justification of sovereignty,

257law of airspace, 260law of space, 259law of supranational organizations, 28law of the flag principle, 215law of the sea, 227legal case, 298legal certainty principle (unionlaw), 403, 415

legal dispute, 298legal equality, 397, 409Legal Framework for International Arbitration, 319

legal reciprocity ("comity"), 289, 392

legal restrictions, 47Legal rights, 193legal security, 337legal sovereignty, 123Legal System, 160legality of the authority,, 337legality principle in administrative law, 358

Legislation, 11, 41Legislative history, 11, 41

pg. 646


legislative immunity, 377legislative jurisdiction, 217legislative supremacy, 357legislative veto, 24Legitimacy (dispute resolution),

305legitimate expectation, 337legitimate expectation doctrine,

362legitimate expectation doctrine (legal certainity), 396, 409

legitimate expectation, principle (union law), 403, 415

lex arbitri, 322lex posterior, 39lex posterior derogat legi priori, 286

liability for corrupt conduct, 377

Litigation, 314, 421littoral zone, 248local government, 117local government conflicts, 421Local Government Institutions,

161Local ordinance, 46locum, 137Locus Standi (human rights enforcement), 138

locus standi (Causation), 354locus standi (Injury), 354locus standi (Redressability),

354Long arm jurisdiction, 317lost tribes, 270lotus principle, 287maker acting ultra vires, 379mandamus, 335mandatory arbitrarion, 421mandatory arbitration, 311

mandatory declaration, 60mandatory order, 352mare liberum, 243mare liberum principle, 223margin of appreciation, 398, 410maritime law, 226Marriage to a citizen, 114mediation, 310member state, 108Member states of the United Nations, 98

Memoranda of Understanding, 14, 44

meridian principle, 217micronation, 273Military government, 269Military occupation, 268ministerial act, 23ministerial directives, 17, 47ministerial memoranda, 47ministerial orders, 47ministerial responsibility, 212misunderstanding(Ending treaty obligations), 67

misuse of power test (legal certainity), 397, 409

Modern internal sovereignty, 237Modus Vivendi, 14, 44Monetary diplomacy, 263monism, 36, 51mootness, 118Moral relativism, 156Moral universalism, 156moratorium, 210Multiculturalism, 272Multilateral Air Transport Agreement, 257

Multilateral Investment Guarantee Agency (MIGA),, 97

pg. 647


Multilateral Trade Agreements, 322

multilateral treaty, 58, 63multilateralism, 75Multinational corporations (MNCs), 77

Multiple citizenship, 111multiple nationality, 111Municipal charter, 118mutual recognition, 286NAP, 207nation, 106, 273nation state, 108, 272national airspace, 242, 253national commissions, 162National Courts, 323national delimitation, 250national human right institutions, 160

National Laws, 323National security and Anti-terrorism legislation, 156

nationality, 114nationality law. See imigration lawNationality law, 110Nation-states sovereignty, 240natural justice, 339natural justice principle, 362Natural law theory (sovereignty), 233

natural prolongation principle, 218

Natural rights, 190naturalisation, 115naturalization, 115Naturalization., 114Nature of human Rights, 136navicert system, 222necessary in a democratic society, 203

necessity (international law), 288

negative clearance, 408negative human rights, 163negotiation, 312Neritic zone, 249Neutral fact-finding, 312New York Convention, 319no certiorari clause, 336non-aggression axiom,, 207non-aggression pact, 74non-aggression principle, 207non-delegation, 338nondelegation doctrine, 23non-discrimination (human rights), 183

non-discrimination principle, 397, 409

Non-governmental actors, 150Non-governmental organization,

150Non-governmental organizations (NGOs), 77

non-initiation of force, 207non-interference, 286non-interference in internal affairs, 264

non-state actors, 423Non-state actors (NSA), 77Nuclear diplomacy, 263null treaty, 35, 50oath, 364oath of alegience, 212objective legal reasonableness test, 366

obligation to act reasonably, 380

obligation to fulfil, 160obligation to protect, 160obligation to respect, 160

pg. 648


Occupation, 241odious debt, 285Ombud, 312ombudsman, 162, 325Ombudsman, 312Online dispute resolution, 301open fields doctrine, 205Open skies, 256Operations of nature, 242opinio juris (international law), 31opinio juris sive necessitatis,

30opportunity to be heard, 339optional declaration, 60Optional Protocol, 14, 44or fettering discretion, 380orders in council, 213ordinance, 16, 46ouster clause, 336overeignty vis-a-vis social contract, 230

Overseas territories, 271pacta sunt servanda, 34, 49para-constitutional powers, 208paramountcy doctrine, 118Parents are citizens, 110Parliamentary Commissioner, 325parliamentary sovereignty, 121Parliamentary sovereignty, 240,

258partial repeal, 24Partial" citizenship, 113participation in risk pools, 374partnership principle, 407, 419patent unreasonableness test,

387patently unreasonable test, 387peaceful settlement of disputes,

389penumbral rights, 203

peremptory mandamus, 336Permanent Court of InternationalJustice, 99

permanent international court ofjustice, 101

Permanent Observer state, 84Permanent tribunals, 328Perpetual sovereignty, 230personal contract liability, 371personal criminal liability, 372personal disputes, 304personal jurisdiction, 137personal legal liability of public officers, 368

personal liability for independent acts, 373

personal liability in administrative law, 373

Policies on Human Rights, 162Policing Agencies, 161Political decentralization, 124polycentricity, 387Polycentricity, 23pooled sovereignty, 240popular sovereignty, 230port state jurisdiction, 216positive human rights, 163possessory action (admiralty practice ), 226

preamble (treaty), 57Precedents, 10, 40Predictability (dispute resolution), 305

Preparatory works, 11, 41prerogative orders, 212prerogative writs, 387Prescription, 242Presidential directives, 17, 47presidential executive orders,

17, 48

pg. 649


presumption of constitutionality, 127

Preventive diplomacy, 262primacy principle (union law),

405, 417principle in anisminic, 347Principle of accountability and Rule of Law, 183

principle of maximum effectiveness, 35, 50

Principle of participation and Inclusion, 183

principle of party autonomy, 319principle of the continuity of urgent and essential care, 133

principles of constitutionalism,121

principles of human rights, 143principles of human rights (Rule of Law), 144

principles of human rights (Accountability):, 144

principles of human rights (BothRights and Obligations), 144

principles of human rights (Indivisibility), 143

principles of human rights (Non-Discrimination), 143

principles of human rights (Participation), 143

principles of human rights (Transparency), 143

principles of human rights (Universality), 143

principles of legality, 366principles of public life (Accountability):, 383

principles of public life (Honesty), 383

principles of public life (Integrity):, 383

principles of public life (Leadership), 383

principles of public life (Objectivity), 383

principles of public life (Openness), 383

principles of public life (Selflessness), 383

principles of sovereignty, 121principles of transnational state responsibility, 290, 392

prior notice of hearing, 358prior restraint doctrine, 200Private international law,, 28privative clause, 353privatization, 125Privileges and immunities, 72prize court, 223procedural impropriety, 351, 381procedural justice, 334Proces-Verbal, 15, 45proclamation, 18, 48, 209professional liability insurance, 374

progressive rights, 137prohibiting order, 351prohibition of generalized grievances, 355

Prohibition of Third-party standing, 354

Promulgation, 23proportional representation, 205proportionality, 337proportionality (administrative law), 351, 364

proportionality (community law),284

pg. 650


proportionality principle (unionlaw), 402, 414

proportionality test (community law), 285

prosecution between government departments, inter se, 372

protecting powers, 267protecting state, 276protocol, 61Protocol as a supplementary treaty, 15, 45

Protocol of Signature, 14, 44Protocol to amend, 15, 45protocols, 266Protocols, 14, 44, 64provisional entry into force, 60public advocate, 325Public diplomacy, 262public duty, 384public employees, 371public interest principle, 332,

369public international law, 26Public international law, 28public law (definition), 19public law (scope), 19public officers, 371public servants, 371public trust doctrine, 369qualified immunities, 377qualified immunity, 375quality(of entitelement or rights), 189

quashing order, 351quasi in rem, 120Quasi-judicial international institutions, 329

quo warranto, 384Ratification, 54

ratification, acceptance, approval, 61

rational basis review, 360rational basis test, 360Rationalists (sovereignty), 258real likelihood test, 343real risk’ test, 169Realists (sovereignty), 258reasonable suspicion test, 344Reasons for participation:, 73reasons should be given for decisions, 386

reception clause, 39, 54Recodification, 22Recognition and enforcement (International litigation), 318

reconciliation, 306referendum, 204Regional Conventions, 319Regional Economic Communities (RECs), 83

Regional human rights regimes, 149

Regional integration, 82Regional law, 69Regional organizations (ROs), 82Regional protection and institutions, 159

registration (High seas), 243regulation, 16, 46, 47Relationship Between State and Government, 281

Religious Groups, 77Remediation (enforcement of human rights), 139

remedies (administrative law), 351

Renunciation, 113reparation, 291, 394reparations, 297

pg. 651


repeal, 24Repeal with re-enactment, 25Repeal without re-enactment, 25Repeals with savings, 25Repeals without savings, 25representation-reinforcing review, 104

representative democracy, 205reproductive rights, 154republic, 257reservation, 61Reservations (treaty), 63reserved country powers doctrine, 406, 418

reserved powers doctrine, 407, 418

respect for human rights, 188restrictions on national jurisdiction and sovereignty, 242

retorsion, 294reus, 326reverse incorporation, 206reverse onus clause, 357right of access, 226right of access to the courts,

356right to a fair hearing, 339,

344, 363Right to a fair trial, 152right to development, 174right to due process, 133right to fly national flag on ships, 132

right to healthcare, 133Right to Internet access and Digital rights, 155

Right to keep and bear arms, 153right to legal representation,

341

Right to life, 150Right to Life, 135right to own, and operate a business, 133

right to participation in development, 174

right to self-determination, 171Right to use land, 133right to vote, 133Right to water, 154right to work, 171rights as freedoms, 190Rights of the Child, 134Rights over the continental shelf, 252

Rights-compatibility (dispute resolution), 305

ripeness, 119Rivers, 247Royal charter, 118rule against bias, 342, 363rule by decree, 209rule of exhaustion of local remedies, 423

rule of law, 123rule-making, 23rump state, 275Salient features of ADR, 307schatocol, 58Scope of administrative law, 9scope of public international law, 28

second generational rights, 136secondary legislation, 16, 46Secretary-General of the United Nations, 89

Security Council, 88Selective enforcement, 332self determination, 173self-determination, 182

pg. 652


Self-Executing Treaties, 64self-regulation, 47separation of powers, 127separation of state and church doctrine, 129

Service of process (International litigation), 317

seven principles of public life,383

Sexual orientation and gender identity, 153

shall not be questioned clause, 336

Shared sovereignty, 240Signatories and Parties, 15, 45signature, 62simple signature (signature subject to ratification), 62

sincere cooperation principle (union law), 405, 417

social contract theory, 230Social security law, 20soft law, 55Soft power, 263sources of international law, 28Sources of law, 10, 40sources of union law, 69sovereign equality, 288sovereign equality of nations,

389sovereign equality of states,

293sovereign equality of states principle (union law), 399, 411

sovereign immunity, 367, 376sovereign state, 106Sovereignty, 229sovereignty (international law),

239

sovereignty (law of the sea), 227

Sovereignty and independence, 236

sovereignty and rule of law, 258Special designations of airspace., 253

special interest test, 366Specialization principle, 404,

416Specialized agencies, 90specialized agencies of the United Nations, 90

standing, 353standing to challenge statutes,

355state, 105, 106State Extinction, 282state liability doctrine, 425state of emergency, 129, 207state of exception, 209state officers, 371state practice, 279State practice, 281state recognition, 277state responsibility, 295state sovereignty, 238State vs. State Disputes, 302state’s duty to protect human rights, 183

states, 390Statutory law, 20statutory procedures, 381Straits, 245strategic lawsuit against publicparticipation (SLAPP) or slapp suit, 356

strengths and weaknesses of IGOs, 73

strict scrutiny, 359

pg. 653


subjectum, 137Sublittoral zone, 249subordinate legislation, 16, 46Subsidiarity, 126Subsidiarity principle (union law), 404, 416

subsidiarity test, 406, 418subsidiary legislation, 16, 46Suffrage, 133sunshine doctrine, 366supra national law, 69Supralittoral zone, 248Supra-national citizenship, 113Supranational law, 28supranational union, 74supremacy of the Constitution,

130supremacy principle (union law),

400, 413Suspension and termination (Ending treaty obligations), 66

Tacit consent theory (sovereignty), 232

tax protester, 199tax resisters, 200taxpayer standing, 355Termination, 113terra nullius, 264Territorial integrity of States,

273territorial jurisdiction, 137territorial sea, 250Territorial sea, 251territorial sovereignty, 238territorial waters, 224Territorial waters, 250test for absolute immunity, 375test of good faith (qualified immunity), 384

test of objective good faith, 377

test of subjective good faith, 377

tests of good faith for qualified immunity, 377

thalweg rule, 292The Afrikan Charter of Human & People

Rights, 194the bar, 326the bench, 326The Bill of Rights, 193The Claim of Right, 193The Declaration of the Rights of Man and of

the Citizen, 194The European Convention on Human

Rights, 194The International Covenant on Civil and

Political Rights, 194The International Covenant on Economic,

Social and Cultural Rights, 194The Magna Carta, 193third generation rights, 137third generational rights, 136three generations of human rights, 164

three principles of administrative law, 337

three theories of diplomatic immunity, 424

tobar doctrine, 275track II diplomacy, 262Traffic rights, 255trans-boundary waters, 85, 244transference of sovereignty, 230Transit rights, 255Transnational diaspora communities, 77

transnational litigation, 316, 317

pg. 654


transparency (public administration), 369

Transparent (dispute resolution), 305

travaux prepatoires, 275Treaties, 15, 45Treaties and declarations as sources of law, 11, 41

treaty, 34, 62Treaty bodies(human rights protection), 148

treaty execution, 35, 49treaty implementation. See treatyexecution, See treaty execution

treaty interpretation, 35, 50treaty registration, 36, 51Trial considerations (International litigation), 318

tribunal, 325two types of dispute resolution processes, 306

Two types of disputes, 302typology of obligations, 165Ultra vires treaties(Ending treaty obligations), 67

ultra vires treaty, 35, 50UN Creation, 86UN financing, 84UN offices, 87UN Offices, 84UN official languages, 87UN organs, 86UN Resolution, 101UN Secretariat, 89unacceptable risk test, 170unalienable rights, 196Unasur Constitutive Treaty, 81Uncontacted peoples, 270Uncontrolled airspace, 253union law, 69

Union law, 69union law (sources), 54Union of South American Nations,

80unitary executive theory, 208unitary government, 272unitary state, 272United Nations (UN), 84United Nations Charter, 145United Nations Economic and Social Council, 90

United Nations Educational, Scientific and Cultural Organization, 94

United Nations General Assembly, 87United Nations General Assembly (human rights protection), 147

United Nations General Assembly observers, 84

United Nations Human Rights Council, 147

United Nations Industrial Development Organization, 95

United Nations Secretariat, 89United Nations Security Council,

88United Nations Security Council(human rights protection), 147

United Nations System, 87United Nations system (human rights protection), 146

United States Declaration of Independence,194

Universal Declaration of Human Rights, 145

universal jurisdiction, 287Universal jurisdiction, 159Universal Postal Union, 96

pg. 655


universality and inalienability:, 182

unlawful sub-delegation, 347unlawfully delegating power, 380urgent care, 133uti possidetis juris, 289, 391Van Gend criteria’, 408variable geometry principle (union law), 404, 416

Vertical boundary, 253Views on sovereignty, 258Violent non-state actors, 77Virginia Declaration of Rights, 193visit and search, 222Voluntarism theory (sovereignty), 232

voluntary arbitration, 311voluntary isolation, 270warranty of authority" rule, 371Washington or ICSID Convention,

320wednesbury unreasonableness, 349westminster doctrine, 127

westphalian sovereignty, 389Westphalian sovereignty, 229, 238why constitutionalism?, 104Withdrawal (Ending treaty obligations), 65

World Bank, 97World Bank Group, 96World Bank Group or WBG, 97World Bank Institute, 97World Court, 99World Food Programme, 97World Health Organization, 98World Intellectual Property Organization, 98

World Meteorological Organization, 98

World Tourism Organization, 95writ of mandamus, 335writ of prohibition, 384york-antwerp rules, 214zero aggression principle, 207zone of interest test, 355

pg. 656

Administrative Law Book

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