Table of Contents
1. Introductory Topics: Definition, Origin and Aims
2. Relationship between Public International Law and National Law
3. Sources of Public International Law
4. Subjects of Public International Law
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(1) Introductory Topics: Definition, Origin and Aims
The term
“international law” was first used by the English philosopher Jeremy Bentham in
1780 in his treatise entitled “Introduction to the Principles of Morals and
Legislation”. Since about 1840, this
term replaced the older terminology “law of nations” which can be traced back
to the Roman concept of “ius gentium”.[1]
International Law is divided into two
branches: Private International Law
(conflict of laws as it is called in the countries of the Common Law System),
and Public International Law (usually just termed International Law).[2] Private International Law deals with those
cases, within a particular legal system, in which foreign elements involve,
raising questions as to the application of foreign law or the role of foreign
courts. Public International Law deals,
in general, with the external relations of States. It is this latter branch of International Law
is the subject of this present book.
What is Public International Law? How is it originated and developed? What is the aim it is trying to achieve?
The answers to all these raised questions
are dealt with in the following sections.
I. Definition
of Public International Law
Until the Second World War, legal scholars
found no difficulty in defining “Public International Law”, in one formation or
another, as the law that governs the relations between States. This traditional definition is a reflection
of the prevailing doctrine of the nineteenth century and the first half of the
twentieth century considering that only states could be persons (subjects) of
Public International Law, in the sense of enjoying international legal
personality, i.e., being capable of possessing international rights and duties.[3]
However, since the mid-twentieth century,
the traditional definition has become controversial due to both the expansion
of the scope of the Public International Law into new areas and the emergence
of new actors, beside states, on the international scene, such as international
organizations, multinational corporations, individuals and groups, including
minorities and indigenous peoples.[4] Some of these actors have acquired
international legal personality, or, at least, certain rights under
International Law.
In the light of this development, the
traditional definition has become incomprehensive description of this law, and
the change of the definition of the Public International Law has become
inevitable. Public International Law has
been defined as a body of legal rules which regulates or governs relations
between international persons (subjects). This contemporary definition of
Public International Law goes beyond the traditional one which defines this law
as a body of rules governing relations between states.
Thus, the contemporary Public
International Law consists of the following:
(a)
Legal rules of conduct which states feel themselves bound to observe in
their relations with each others;
(b)
Legal rules related to the functioning of international organizations,
their relations with each other and their relations with States and
individuals; and
(c)
Legal rules related to individuals and non-state entities as far as the
rights and duties of these subjects are the concern of the international
community.
Public International Law now covers vast
and complex areas of international concern, including traditional topics, such
as the State, peace and security, the laws of war, the laws of treaties, the
law of the sea, the law of diplomatic and consular relations, as well as new
topics, such as international organizations, economy and development, air law
and outer space activities, communications, the environment, and last but not
least, human rights.
The rules of Public International Law are
general and universal in their nature, and are legally binding on all the
persons of International Law. These
rules must be distinguished from what is called international comity and what
is known as international morality. A
comity is a friendly gesture or courtesy exercised by one State toward another
without constituting a legal obligation; an example of a comity is the flag
salute at the sea. A comity helps in
promoting and maintaining friendly relations among States. While not a legal rule, a comity can be
widely observed and can evolve into a customary international rule or be
codified as a law; an example of an international comity which was codified as
a law is the exemption from customs duties of personal articles used by
diplomats (codified in the Vienna Convention on Diplomatic Relations of 1961).
Rules of International Law may meet at
certain points with principles of international morality since they cannot be
divorced from their moral values.
However, the former rules are legal in their contents and forms, while
the principles of morality are part of the discipline of ethics which is not
legally binding.
II. Origin
and Development of Public International Law[5]
The foundations of Public International
Law as it is understood today lie firmly in the development of political
relations between the Western European States some 400 years ago. However, certain basic concepts of this Law
can be traced back thousands of years ago, in relations between ancient political
entities, such as of the Near East, Greece and Persia.[6]
The structure and development of Public
International Law is connected with the era of sovereign national States
dealing with each other as independent entities. In this sense, therefore, the history of this
Law can be regarded as beginning in the 16th Century with the
emergence of independent nation-states from the ruins of the medieval Holy
Roman Empire which was based on the claims to universal authority of the Pope
as the spiritual, and the Emperor as the temporal, head of Christian nations of
Europe .[7] As this Empire disintegrated, a growing
number of independent and equal States filled the gap.
The Emergence of independent and equal
States subject to no temporal superior authority led to new political
theories. The most prominent among these
theories was the theory of Sovereignty.
This theory was explicitly formulated by Jean Bodin (1530-1596) in his
treatise entitled Six Livres de Republique (Six Books on the Republic)
of 1576.[8] According to Bodin, in every State there
exists in an individual monarch a power called sovereignty (majestas). Sovereignty is a Republic absolute and
perpetual power. It is absolute because
it is indivisible; however, it is not without any limits. While such a sovereign is not bound by the
laws himself instituted, he remains bound by the divine law, the law of nature,
and the law of nations. Sovereignty is
perpetual because it does not disappear with its holder (the sovereign). The concept of sovereign as supreme
legislator, as formulated by Bodin, was in the course of time evolved into the
principle which gave the State supreme power vis-à-vis other States.[9]
The coexistence of independent sovereign
States led to the development of the system of interstate relations. The need
for rules regulating the intercourse between the newly emerging States in Europe stimulated these States to draw mainly upon the
Roman Law and the Cannon Law (the Law of Roman-Catholic Church) for the sources
of such rules.[10] The significance of the Roman Law and the
Cannon Law contribution to “the law of nations” lies not only in the
development of a modern system of interstate legal relations, but also in the
development of many principles of general equity and “natural law” some of
which are similar to certain general principles of law recognized by civilized
nations.[11]
In the few centuries that preceded
the Thirty Years War (1618-1648), the intensification of international trade,
and the improvements in navigation and military techniques, and the discovery
of many distant lands by the European States stimulated further development of
international practices and the emergence of new conceptions of the law of
nations.[12] The
intensification of trade led to the conclusion of many commercial treaties and
the emergence of new practices and principles related to the law of merchant
and the maritime law. Notably, the
growth of international trade had from the 8th Century onwards led
to the development of international law of merchant and, in particular, to
various compilations of maritime law which gained increasing international
recognition. The international customs
and principles related to the law of merchant and maritime constituted part of
the practices and principles of “the law of nations.”
The discovery and subjugation of distant
lands and peoples by European States produced numerous conflicting claims of
sovereignty, jurisdiction, rights of trade and rights of navigation as well as
problems of relations. All these
developments urged the Europeans to resort to the Roman Law for helpful norms
or analogies, and consequently led to new practices and principles.
By the 17th Century, the
growing complexity of international principles, customs and treaties had given
rise to their compilation and to the development of further rules governing the
conduct of States in time of war and peace.
The most important treatise, dealing with States’ relations in time of
war and peace, of this period was “De Jure Belli Ac Pacis” (On the Law
of War and Peace), published in 1625 by the Dutch jurist and diplomat Hugo
Grotius (1583-1645).[13] Hugo Grotius is recognized as the “Father of
International Law”, and his treatise is generally regarded as providing the
foundation of the Public International Law.[14]
Beside Grotius, there are many jurists who
contributed extensively to “the law of nations” during the 17th and
the 18th centuries. Among
these jurists are Francisco de Vitoria (1480-1546), Suarez (1548-1617),
Alberico Gentili (1552-1608), Samuel von Pufendorf (1632-1694), Richard Zouche
(1590-1660), Johann Jakob Moser (1701-1785), Christian Wolff (1676-1754), and
Emerich de Vattel (1714-1769).[15]
The International Law (the law of nations)
further expanded in the 19th Century. This expansion was due to
major events such as the expansion of the European empires, the rise of
powerful States both within and outside Europe ,
the spread of the thought of democracy and nationalism, the Industrial
Revolution, the modernization of world transport, and the influence of new
inventions.[16] All
these events urged the international community to develop the International Law
in order to accommodate such events.
Consequently, International Law as a law regulating diplomatic and
commercial relations between States, and the conduct of war, multiplied and
intensified during the 19th Century.
The establishment of the League
of Nations in 1919, following the First World War, and the
establishment of the United Nations in 1945, following the Second World War,
represented two significant turning points in the development of the
International Law. The development was
characterized by a new departure in the evolution of this Law. International Law began its evolution from
being primarily a system of regulating relations between States towards
becoming also a system of international cooperation.
The League of Nations
was the first international organization established primarily for the purpose
of maintaining international peace and security. The establishment of the
International Labor Organization (ILO), affiliated with the League
of Nations , in 1919 signaled the end of an era in which
International Law was, with few exceptions, confined to the regulation of
relations between States.[17] The ILO was the first permanent international
organization concerned with the improvement of labor conditions and social
welfare at the international level. In
1921, the Permanent Court of International Justice (PCIJ) was established as
the first permanent international judicial organ with an international judicial
jurisdiction.
The establishment of the United Nations in
1945 led to a progressive development of International Law. During the post-United Nations’ era, the
development of International Law has been influenced by two major events
effected the international community.[18] The first major event has been the expansion
in the membership of the international community. New States, mostly representing non-western
civilization, have joined the club of family of nations, which was previously
exclusively limited to States belonging to Western Civilization. The concerns and priorities of these States
have been different from those of other States; they have been occupied with
the development of their political, economic and social systems. The second major event has been the massive
expansion of international organizations for cooperation. Numerous specialized agencies of the United
Nations and other international organizations, universal as well as regional,
have been established. This event has
confirmed the evolution International Law from its traditional nature to its
contemporary nature of being a system of organized collective efforts for
cooperation.
Since the establishment of the United Nations,
a great number of international treaties covering all aspects of international
affaires have been concluded.
Law-making treaties have been contributing extensively to the rapid
development of Public International Law.
They have led to may important new developments in Public International
Law, and greatly increased both its scope.
Apart of the law-making treaties, international courts, the present
International Court of Justice (ICJ), its forerunner the Permanent Court of
International Justice (PCIJ), and others, have been also contributing to the
development of Public International Law.
Moreover, the International Law Commission created in 1947, the organs
of the United Nations and its specialized agencies have been playing a
significant role in developing and expanding Public International Law.
In conclusion, Public International Law
has evolved from being primarily a law of coexistence, which characterized it
from its birth in the early 16th century to the mid 20th
century, to a law of international organization and cooperation.[19]
Moreover, the most important characteristic of Contemporary Public
International Law is the steady expansion of its scope through the inclusion of
new subject matters formerly outside its sphere, and the inclusion of new
participants and subjects such as international organizations and individuals.[20]
III. Aims of
Public International Law
The initial aim of Public International
Law has been to create an orderly system of international relations. However, the modern developments of this law
have added another aim to it. Since the
beginning of the Twentieth Century, there has been an evidence of a tendency to
bring justice into the international community through ensuring justice in the
relations of States and securing justice for peoples and individuals.
The establishments of the Permanent Court
of International Justice in 1921 and the International Court of Justice in 1945
have been a clear evidence of such a new aim of the Public International
Law. The use of the term “justice” in
the name of these international courts where disputes among States are decided
and where advisory opinions are given according to Public International Law is
evidence that justice has become the concern of this law, and has become one of
its aims and purposes.
To ensure and secure justice, and above
all, to bring order to the international relations are the primary aims of the
contemporary Public International Law.
This law, which regulates relations between international persons, aims
to create a system of order and justice for the international community. In the absence of such a system, it will be
impossible for the international persons to have steady and continuous
relations, and to enjoy the benefits of such relations.
[1] P. Malanczuk , Akehurst’s Modern
Introduction to International Law, p. 1, 7th rev. ed.,
Routledge, New York (1997); and see R. Bledsoe and B. Boczek, The
International Law Dictionary, p. 13, Clio Press, Oxford (1987).
[3] See Malanczuk, p. 1
[4] Id.
[5] See generally D. J. Bederman, International
Law in Antiquity, Cambridge St Paul
[6] See
Shaw, pp. 13-8.
[7] Henkin & Associates, p. 1. Note that
Fredrick III, German Emperor from 1440 to 1493 was the last of the emperors
crowned in Rome
[8] See Shaw, p. 21.
[9] Id.
[10] Note
that while the Roman Law, as codified in Justinian’s Corpus Juries
spread its influence over almost the entire European continent, Cannon Law,
with its essentially Romantic conceptual framework, had an important influence
on many aspects of English Law.
[11] Henkin
& Associate,. p. 2.
[12] Id.
p. 3.
[13] See
Shaw, p. 23.
[14] Id.
[15] See
id. pp. 22-5; and Bledsoe and Boczek, pp. 20-5.
[16] See
generally id. pp. 26-29.
[17] Henkin
& associates, p. 7.
[18] See
id, pp. 8-9.
[19] See
id. p. 9.
[20] See
infra chapter 4.
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(2) The Relationship between Public International Law and National Law
Public International Law and national law (municipal law as known in the Common Law Countries) are two legal systems. National law governs the domestic (internal) relations between the official authorities of a State and between these authorities and individuals as well as the relations between individuals themselves. Public International Law governs primarily the relations between States.
With the rise and extension of Public International Law, a question begins to arise as to the relationship between the national law of the States and the Public International Law. This question gives rise to many practical problems. What is the status of the rules of Public International Law before a national court? What is the status of the rules of national law before an international court? Which rule does prevail in a case of conflict between the two laws? How do rules of Public International Law take effect in the internal law of a State?
The answers to the above questions are presented in the following sections: section one deals with the theories dealing with the relations between International Law and national law; section two deals with the attitude of International Law to national law; and section three deals with the attitude of various national laws to International Law.
Section 1: The Theories Dealing with the Relations Between
International Law and National Law
There are two major theories on the relationship between Public International Law and national law. The first is the dualist theory. The second is the monist theory.[1]
The dualist theory considers that International law and national law are two separate legal systems which exist independently of each other. Each of these two systems regulates different subject matters, function on different levels, and each is dominant in its sphere. Public International Law primarily regulates the conduct of sovereign States. National law regulates the conduct of persons within a sovereign State. On this view, neither legal system has the power to create or alter rules of the other. When national law provides that International Law be applied in whole or in part within the jurisdiction, this is merely an exercise of the authority of national law in the adoption or transformation of the rules of International Law into its legal system. The national law has a supremacy over the International Law; in the case of a conflict between International Law and national law, a national court would apply national law.
The monist theory, which upholds the unity of all law, regards International Law and national law as forming part of the same legal system (order). It argues that both laws are based upon the same premise, that of regulating the conduct and the welfare of individuals. However, it asserts the supremacy of International Law over national law even within the national sphere; in the case of a conflict between the two laws, International Law is supreme.
It is notable that the position taken by each of these two theories is a reflection of its ideological background. The dualist theory adheres to positivism, while the monist theory follows natural law thinking and liberal ideas of a world society.[2]
Facing these two basic theories, a third approach is introduced.[3] This approach is somewhat a modification of the dualist theory. It attempts to establish a recognized theoretical view tied to reality. While it asserts that the two laws are of two distinct legal systems, it denies that a common field of operation exists as between International Law and national law by which one system is superior or inferior to the other. Each law is supreme in its own sphere (field). Just as one cannot talk in terms of the supremacy of one national law over another, but only of two distinct legal systems each operating within its own field, so International Law and national law should be treated in the same way. Each law exists within a different juridical order.
Because the above opposing theories, in reality, do not adequately reflect actual State practice, the scholars in each side have forced to modify their original positions in many respects, bringing them closer to each other, without, however, producing a conclusive answer on the true relationship between International Law and national law.[4] This fact has led some legal scholars to pay less attention to these theoretical views and to prefer a more empirical approach seeking practical solutions in a given case.[5] The method of solving a problem does not probe deeply into theoretical considerations, but aims at being practical and in accord with the majority of States practice and international judicial decisions.[6] On this view, it is more useful for us to leave the theoretical controversy aside and direct our attention to the attitude of International Law to national law and the attitude of the various national laws to International Law; these are what are discussed in the following two sections.
Section 2: The Attitude of International Law to National Law [7]
International Law, in the international sphere, has a supremacy over national law. However, this principle does not mean that national law is irrelevant or unnecessary. International Law does not ignore national law. National law has been used as evidence of international custom or general principles of law, which are both sources of International Law.[8] Moreover, International Law leaves certain questions to be decided by national law.[9] Examples of these questions are those related to the spheres of competence claimed by States as regards State territory, territorial sea, jurisdiction, and nationality of individuals and legal persons, or those related to obligations to protect human rights and the treatment of civilians during belligerent occupation.[10] Thus, the international court may have to examine national law related to these questions in order to decide whether particular acts are in breach of obligations under International Law, particularly, treaties or customary law.[11]
A great number of treaties contain provisions referring directly to internal law or employing concepts which by implication are to be understood in the context of a particular national law.[12] Many treaties refer to “nationals” of the contracting parties, and the presumption is that the term means persons having that status under the internal law of one of the parties.[13]
The international courts, including the International Court of Justice and its predecessor, have regarded national law as a fact that the parties may provide by means of evidence and not to be taken by the court ex officio.[14] Moreover in examining national law the courts have in principle regarded as binding the interpretation by national courts of their own laws.[15]
Section 3:The Attitude of National Laws to International Law[16]
The attitude of national law to International Law is not that easy to summarize as the attitude of International Law to national law. This is because the laws of different States vary greatly in this respect.[17] However, States are, of course, under a general obligation to act in conformity with the rules of International Law; otherwise, they will be responsible for the violations of such rules, whether committed by their legislative, executive or judicial authority.[18] Further, States are obliged to bring national law into conformity with their obligations under International Law; for example, treaties may require a national legislation to be promulgated by the States parties. Nevertheless, International Law leaves to States the method of achieving this result. States are free to decide how to include their international obligations into their national law and to determine which legal status these have internally. In practice, on this issue there is no uniformity in the different national legal systems. However, the prevailing position appears to be dualist, regarding International Law and national law as different systems requiring the incorporation (adoption, transformation and reception are other concepts used) of the international rules on the national level.
Actually, the most important issues of the attitude of national legal systems to International Law concern the status of international customary law and international treaties. On these issues, the attitude of various national legal systems varies.
The survey of the attitudes adopted by various countries of the Common Law and Civil Law traditions leads to the following conclusions.[19] The first of these is that most countries accept the operation of customary rules within their own jurisdictions, providing there is no conflict with existing laws, i.e., if there is a conflict, national law is supreme; some countries allow International Law to prevail over national law at all time. The second conclusion is that as regards treaties, in some countries, certain treaties operate internally by themselves (self-executing) while others require undergoing a process of internal legislation. Some countries allow treaties to supersede all national laws (ordinary laws and the constitution), whether made earlier or later than the treaty, while others allow treaties to supersede only ordinary laws and only that made earlier than the treaty. Others adopt opposite positions.
[1] See generally Malanczuk, pp. 61-2; Brownlie, pp. 31-4; Shaw, 121-4; and Bledsoe & Boczek, 9-10 &
17-8.
[2] Malanczuk, p. 63.
[3] See Shaw, p. 123.
[4] Malanczuk, p. 63.
[5] See id. pp. 63-4.
[6] See G. Fitzmaurice, The General Principles of International Law Considered from the Standpoint of the Rules of Law, 92 Hague Academy of International Law, 1957 (II), 5, 70-80.
[7] See generally Brownlie, pp. 33-49; Shaw, pp. 124-162; and Malanczuk, pp. 64-74.
[8] See Malanczuk, id. p. 64.
[9] Id.
[10] SeeBrownlie, pp. 36-8.
[11] See id. p. 36.
[12] Id.
[13] Id.
[14] See id. pp. 38-9
[15] Id. p. 39.
[16] See generally Brownlie, pp. 40-53; Shaw, pp. 128-162; and Malanczuk, pp. 65-71.
[17] SeeMalanczuk, p. 65; Shaw, p. 128.
[18] Shaw, p. 128.
[19] See generally Shaw, pp.128-162; and Malanczuk, pp. 65-71.
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(3) Sources of Public International Law
The term“sources of Public International Law” is used to mean two things: first, the actual materials determining the rules applicable to a given international situation (the material sources), and second, the legal methods creating rules of general application (the formal sources).[1] However, because it is difficult to maintain this distinction, the two meanings are used interchangeably.
Article 38 of the Statute of the International Court of Justice (ICJ) states the folowing:
1. The Court, whose function is to decide in accordance with international law such disputes as are submitted to it, shall apply:
a- international conventions, whether general or particular, establishing rules expressly recognized by the contesting states;
b- international custom, as evidence of a general practice accepted as law;
c- the general principles of law recognized by civilized nations;
d- subject to the provisions of Article 59, judicial decisions and teaching of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law.
2. This provision shall not prejudice the power of the Court to decide a case ex aequo et bono, if the parties agree thereto.
This Article lists the traditional sources of Public International Law, the actual legal materials that the ICJ has to apply to international disputes. According to this Article, these sources are of two types: the primary sources that are represented by the international conventions, international custom and general principles of law; and the subsidiary sources that are represented by the decisions of courts and the opinions of legal scholars. Moreover, this Article lists “ex aequo et bono” (equity) as an alternative source of Public International Law applied by the Court if the parties agree thereto. However, in addition to these traditional sources, there are contemporary sources, such as the acts of the international organizations.
Thus, the sources of the contemporary Public International Law can be classified into seven:
1- International customs;
2- Treaties;
3- General principles of law;
4- Judicial decisions;
5- Opinions of legal scholars;
6- Exaequo et bono (Equity);
7- Acts of international organizations.
In the following sections, these sources are discussed.
1. International Customs
Article 38 of the Statute of the ICJ refers to an international custom as evidence of a general practice accepted as law. This definition comprises of two elements: a general practice and its acceptance as law.[2] These two elements are necessary for the formation of customary international law. The first element, the behavioral or objective element, requires a recurring consistent action or lack of action by States, which is indicated by such activities as official statements or conducts, legislative or administrative action, court decisions and diplomatic behaviors or correspondence. The second element (the psychological or subjective element) entails the conviction that in similar case such a practice is required or permitted by international law. In this sense, international customs may be defined as practices or usages which have been observed by a large number of States over a lengthy period of time and considered by them to be legally obligatory, i.e., being a law.[3]
Notably, the terms “custom” and “usage”are often used interchangeably. Strictly speaking, there is a clear technical distinction between the two. Usage is an international habit of action that has not received full attestation and does not reflect a legal obligation; an example of a usage is the salute at sea. Usages may be conflicting; custom must be unified and consistent. A usage to become a customary rule of law, it must fulfill two conditions: acceptance or recognition by a large number of States and repetition over a lengthy period of time. A custom has a definite obligation attached to it. Failure to follow custom results in State responsibility, and consequently entails the possibility of punishment (sanction) or of retaliation against that State.
International custom, as Article 38 indicates, is one of the primary sources of International Law which the ICJ shall apply. In fact, international customs constituted the bulk of the rules of International Law. Historically, custom had played a great role in the formation of the rules of International Law. However, since the beginning of the Twentieth Century, this role has been decreased in favor of the law-making treaties.
2. Treaties
The term “treaty” is used as a generic term embracing all kinds of international agreements which are known by a variety of different names such as, conventions, pacts, general acts, charters, statutes, declarations, covenants, protocol, as well as, the name agreements itself. A treaty may be defined as an international agreement concluded between States in written form and governed by International Law.[4]
Article 38 of the Statute of ICJ indicates that international conventions (treaties), whether general or particular, establishing rules expressly recognized by the contesting states should be applied by the Court to the disputes submitted to it. Although this Article divided treaties into two kinds, general treaties and particular treaties; it is only the first kind, the general treaties or the so called the law-making treaties, which intended to have a universal and general application, constitute a primary source of International Law.
The particular treaties or the so called treaty-contracts are not directly a source of International Law since their application is limited only to the contracting parties which are two or small number of States, and they deal with limited affairs . This kind of treaties does not create new rules of Public International Law, but at best, only new rules of particular or regional application. However, as a substantial number of States accept and recognize such new rules formulated in this kind of treaties as obligatory, these rules will become part of the Public International Law. Examples of such treaties are bilateral treaties on commercial, and friendship relations.
The law-making treaties constitute a primary source of International Law. Since the middle of the Nineteenth Century, there has been an astonishing development of law-making treaties. The rapid expansion of this kind of treaties has been due to the inadequacy of customs in meeting the urgent demands arose from the changes which have been transforming the whole structure of international life. Law-making treaties have been concluded to regulate almost every aspect concerning the international community. Examples of important treaties are: the Charter of the United Nations, the four Geneva Conventions of 1949, the Vienna Convention on Diplomatic Relations of 1961, the International Covenant on Civil and Political Rights of 1966 and the Convention on the Law of the Sea of 1982.
In contrast with the process of creating law through custom, treaties are a more modern, more deliberate and speedy method. They are of growing importance in International Law. Their role in the formation of new rules of International Law increases day after day. Today, the law-making treaties are considered the most important primary source of Public International Law.
3. General Principles of Law
Article 38 of the Statute of the ICJ refers to “the general principles of law recognized by civilized nations” (all nations are now considered as civilized)as a primary source of International Law. This source is listed the third after international conventions and international customs. The Court shall apply the general principles of law in cases where treaties and customs provide no rules to be applied.
Notably, there is no agreement on what the term “general principles of law” means. Some say it means general principles of international law; others say it means general principles of national law. Actually, there is no reason why it should not mean both; the greater expansion in the meaning of this term, the greater chance of finding rules to fill the gaps in treaty law and customary law. Indeed, international tribunals had applied general principles of law in both senses for many years before the Permanent Court of International Justice was established in 1920.[5]
Nevertheless, there are various opinions as to the origin of the general principles of law. Some regard them as being originated from the Natural Law which underlies the system of International Law and constitutes the criteria for testing the validity of the positive rules. Others regard them as stemmed from the national legal systems (Positive Law) and have been transplanted to the international level by recognition.[6]
Whatever the meaning of the term “general principles of law” and the origin of these principles, these principles are considered to be at the foundation of any legal system, including International Law. Actually, there is an agreement that the general principles of law do constitute a separate source of International Law. Examples of general principles of law are the principles of consent, equality, administration of justice, good faith, reciprocity, forbidding abuse of right and res judicata.
4. Judicial Decisions
Article 38 of the Statute of the ICJ directs the Court to apply judicial decisions as subsidiary means for the determination of rules of law. This direction is made subject to the provisions of Article 59, which states that “the decision of the Court has no binding force except between the parties and in respect of that particular case.” The provision of Article 59 of the Statute of the ICJ is understood to mean that the Court is not obliged to follow previous decisions. So while, as Article 59 ascertained, the doctrine of precedent as it is known in the Common Law, whereby the decisions of certain courts must be followed by other courts, does not exist in International Law, it is still that the decisions of the international courts (PCIJ and ICJ) are quoted as authoritative decisions, and international courts have always strived to follow their previous decisions to insert certainty and uniformity within their judicial process, or at least, they have had to take previous decisions into account.[7]
The judge of the ICJ sometimes does a little more than merely determine a law; he may establish a law.[8] This has occurred in many instances: the Anglo-Norwegian Fisheries case of 1951, which stated the criteria for the recognition of baseline from which to measure the territorial sea;[9]and the Reparations case of 1949, which established the legal personality of international organizations.[10]
The PCIJ, during its existence, gave a large number of decisions and advisory opinions on matters of international concern, thereby developing International Law. The ICJ, the successor of the PCIJ, has been doing the same.
As the term “judicial decisions” referred to by Article 38 also encompasses decisions (awards) of international arbitral courts (tribunals) and the decisions of national courts, these decisions have been playing a role in the development of International Law.[11]
There have been many international arbitral tribunals, such as the Permanent Court of Arbitration and the various mixed-claimed tribunals, including the British-American Mixed Claims Tribunal and the Iran-US claims Tribunal. Although these tribunals differ from the international courts in some ways, many of their decisions have been extremely significant in the development of International Law.[12]
The decisions of national courts of various nations have played a role the development of International Law, particularly the international customary law. These Decisions help to form international customs. They show what the national courts have accepted as international law and how the International Law, in the given case, is understood in that country. Examples of such rules of law developed by, or derived from the uniform decisions of national courts are certain rules of extradition law, the rules related to State recognition, and the rules of diplomatic immunity.
One may finally say that judicial decisions, whether international or national, have played an important part in the development of International Law. The international customary law has largely developed from case to case, and a large number of cases have been submitted to international as well as national courts of various nations.[13]
5. Writings of legal scholars
Article 38 of the Statute of the ICJ includes as a subsidiary means for the determination of rules of law, “the teachings of the most qualified publicists of the various nations”. The term “teachings of publicists” means “writings”,“opinions” or “works” of legal scholars, jurists or writers.
This Article emphasizes the evidentiary value of writings of the legal scholars. The primary function of these writings is to provide reliable evidence of the law. Writers on International Law cannot make the law; their works are to elucidate and ascertain the principles and rules of International Law. To be binding, the rules and principles must have received the consent, whether express or implied of States, who are to be bound by it.
Historically, the writers on International Law such as Gentili, Grotius, Pufendorf and Vattel were a primary factor in the evolution of the modern International Law; they were the supreme legal authorities of the Sixteenth to Eighteenth Centuries. They determined the scope, form and content of International Law.[14] However, the importance of legal writings began to decline as a result of the emphasis on the state sovereignty; treaties and customs assumed the dominant position in the exposition and development of International Law.[15]
Nevertheless, like judicial decisions, the opinions of legal scholars can provide evidence of the existence of customary law and can help in developing new rules of law.
The opinions of legal scholars are used widely. Arbitral tribunals and national courts make extensive use of the writings of jurists. However, the International Court of Justice makes little use of jurisprudence, and judgments contain few references; this is, primarily, because of the willingness of the Court to avoid a somewhat undesirable selection of citations. However, many references to writers are found in the pleadings before the Court.
6. Ex aequo et bono (Equity)
Article 38 of the Statute of the ICJ lists ex aequo et bono as an alternative basis for a decision by the Court in place of the normally employed legal rules. The Court can decide a case submitted to it ex aequo et bono (in justice and fairness) only if the parties agree thereto. Ex aequo et bono is somewhat analogous to but not exactly the same as the Common Law concept of equity. It is broader than equity and gives the Court greater power than the latter. It allows the Court to decide a case on considerations other than legal rules, or even in contrary to these rules, if it sensed that justice can be served thereby.[16] Thus the term “ex aequo et bono” means “justice and fairness” or “equity”.
Neither the International Court of Justice nor its predecessor, the Permanent Court of International Justice, has been called upon to decide a case ex aequo et bono, although principles of equity have been applied by these courts in some cases.[17] The ICJ in the North Sea Continentalcases (1969) directed the delimination between the parties (West Germany, Holland and Denmark) “in accordance with equitable principles”.[18] The PCIJ in the Diversion of Water from the Meuse River case (1937) applied principles of equity after considering them as part of the International Law which it should apply.[19] Moreover, international arbitral tribunals have resorted to the principles of equity in several cases.
Despite the application of the principle of equity by international courts, the existence of “equity” as a separate and distinct source of law is highly controversial. Some regard equity as a source of International Law, and apply it as distinguished from law; however, they often appeal to natural law in order to strengthen their arguments.[20]Thus to them the three terms “equity”, “justice” and “natural law” tend to merge into one another. During the Sixteenth and Seventeenth Centuries natural law was a major source of International Law. In the Nineteenth and Twentieth Centuries arbitrators have often been authorized to apply justice and equity as well as International Law; such authorization were more common before 1920 than they are today.
Other scholars do not recognize equity as a separate and distinct source of law; they regard the principles of equity as part of the general principles of law that are common to all national legal systems.[21]
Whatever the position may be, it is doubtful whether equity form a source of international law. It cannot be assumed that a judge uses equity as a source of law every time he describes a rule as equitable or just. Strictly,“equity” cannot be a source of law; yet it may play an important role in supplementing the law or may appear as a part of judicial reasoning.[22] A judge or arbitrator can always use equity to interpret or fill gaps in the law, even when he has not been expressly authorized to do so. But he may not give a decision ex aequo et bono unless he has been expressly authorized to do so.[23]
7. Acts of International Organizations
The growth of international organizations since the First World War has been accompanied by suggestions that the acts of these organizations should be recognized as a source of International Law.[24]The question involved hereto is whether the decisions of the organs of these organizations can be regarded as a separate source of International Law.
Decisions of the organs of international organizations may be binding or non-binding. An organ may be authorized to take decisions which are binding on member states; only these binding decisions are regarded as a source of the International Law. The only clear example of binding decisions is the resolutions which the Security Council of the United Nations are authorized to take under Chapter Seven (VII) of the Charter of the United Nations dealing with actions related to threats to the peace, breaches of the peace, and acts of aggression.[25]
However, there is a controversy concerns the non-binding decisions of the organs of the international organizations. Since almost all the organs of the international organizations are composed of representatives of member states and their acts are merely the acts of the states represented in these organs, they would probably constitute an evidence of customary law because they reflect the views of the state voting for them.[26] The obvious examples of such type of acts are the resolutions and declarations of the General Assembly of the United Nations. When the vast majority of States, in the General Assembly, consistently vote for resolutions and declarations on a certain topic, a State practice will be established and a binding rule of customary International Law will emerge.[27]Thus, these resolutions and declarations will constitute an evidence of the existence of customary International Law. Examples of such resolutions and declarations regarded as examples of State Practice which have led to binding rules of customary International Law are: “the Resolution on Prohibition of the Use of Nuclear Weapons for War Purposes”, “the Declaration on Granting of Independence to Colonial Countries and Peoples”, “the Declaration on Permanent Sovereignty over Natural Resources”and “the Declaration of Legal Principles Governing Activities of States in the Exploration and Use of Outer Space”.[28]
Resolutions and declarations of the General Assembly may also provide a basis for the progressive development of the International Law and the speedy adaptation of customary law to the conditions of modern life.[29] Moreover, in some instances, a resolution or declaration may have direct legal effects as an authoritative interpretation and application of the principles stated in the Charter of the United Nations.[30]
[1] See Malanczuk, p. 35; and I. Brownlie, Principles of Public International Law, p. 3, 6th ed., Oxford, London (2003).
[2] See generally Malanczuk, pp. 39-46; Shaw, pp. 68-84; Brownlie, pp. 6-12; and Bledsoe & Boczek, pp. 27-8.
[3] See Bledsoe & Boczek, p. 27.
[4] See the 1969 Vienna
[5] See Malanczuk, p.48.
[6] See Shaw, pp. 93-4. Compare with Malanczuk, p. 49.
[7] See Brownlie, pp. 20-1; and Shaw, pp. 103-4.
[8] See Shaw. p. 104.
[9] See 1951 I.C.J. 116.
[10] See1949 I.C.J. 174.
[11] SeeShaw, p. 104.
[12] Id.
[13] W.W. Bishop, Jr., International Law: Cases and Materials, p. 39, Little, Brown and Company, Boston
[14] SeeShaw, p. 106.
[15] Id.
[16] SeeBledsoe & Boczek, p. 11.
[17] Id. p. 12.
[18] See1969 I.C.J. 3, 53.
[19] See1937 P.C.I.J. ser. A/B, No. 70, 73,77.
[20] SeeMalanczuk, p. 55.
[21] Seeid.; and 1937 P.C.I.J., ser. A/B, No. 70, at 77.
[22] SeeBrownlie, p.25.
[23] SeeMalanczuk, p. 55.
[24]Malanczuk, p. 52.
[25] SeeU.N. Charter arts. 39-51. Article 25 of the U.N. Charter provides: “ The Members of the United Nations agree to accept and carry out the decisions of the Security Council in accordance with the present Charter.”
[26] SeeMalanczuk, p. 52.
[27] SeeMalanczuk, p. 53; Shaw, pp. 108-9; and Brownlie, 14 -5.
[28] G.A. Res. 1653 (XVI) of 24 Nov. 1961; G.A. Res. 1514 (XV) of 14 Dec. 1960; G.A. Res. 1803 (XVII) of 14 Dec. 1962; and G.A. Res. 1962 (XVIII) of 13 Dec. 1963.
[29]Brownlie, p. 15.
[30] Id.
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(4) Subjects of International Law [1]
A subject of International Law is a person (entity) who possesses international legal personality, i.e., capable of possessing international rights and obligations and having the capacity to take certain types of action on the international level.[2] Traditionally, States have been the only subjects or persons of International Law.[3] However, with the establishment of international organizations, it has become necessary that a sort of international legal personality be granted to these entities. Thus, international organizations become subjects or persons of International Law.[4] Beside States and international organizations, non-States entities such as members of federal States, belligerents, insurgents, national liberation movements, and international territories are granted a sort of international legal personality. Special international status was granted to the Holly See and the Vatican City
States are the original and major subjects of International Law. Their legal personalities derive from the very nature and structure of the international system. All States, by virtue of the principle of sovereign equality, enjoy the same degree of international legal personality.
International Law is primarily concerned with the rights, duties and interests of States. Normally the rules of conducts that International Law prescribes are rules which States are to observe.
Since a State is the primary concern of International Law, it is necessary to study it in a separate chapter Below.
An international organization is an association of States, established by a treaty between two or more States. Its functions transcend national boundaries. It is for certain purposes a subject of International Law.
The appearance of international organizations from the early part of the Nineteenth Century raises a critical question of their status in the International Law.[7] International organizations are generally considered to be subjects of International Law, as are States, even though their international legal personality is limited to possessing specific rights and duties. Their status is determined be conventions among States and, therefore, the recognition of the international personality of an international organization is limited to signatory States of the convention creating such an organization.
International organizations include universal all purposes organizations, universal functional organizations, and regional organizations. Generally, the treaty creating a public international organization indicates its nature, purposes and powers. The international legal personality of an international organization is, therefore, limited to the rights, duties, purposes and powers laid down in the treaty creating it. The international legal personality of the United Nations, for example, is derived from the United Nations Charter, the Headquarters Agreement between the United Nations and the United States of America
In reality, international organizations have exercised their legal capacity in a great variety of ways. They have concluded treaties, created military forces, convened international conferences, and brought claims against States.
3. Non-State Entities
There are certain entities, although they are not regarded as independent States, they are granted a degree of personality, a definite and limited special type of personality, under International Law. Such entities have certain rights and duties under International Law. They can participate in international conferences and enter into treaty relations.
However, the rights and duties of these entities in International Law are not the same as those of the States. They have a sort of international personality. The capacity of each of them is more limited than an independent State has since it is limited to the purpose it is existed for and the powers or functions it can perform. These entities fall into the following categories:
(a) Members of composed States or federal States:[10] The federal State has itself, of course, an international legal personality, but the controversial question is whether the component units of the federation have the personality on the international plane. Actually, the international personality of such units and its extent can only be determined in the light of the constitution of the State and State practice. The constitution of a federation may grant a component unit a special international personality; however such personality will not be operative on the international plane without being recognized as such by other States. State practice has granted international personality to certain component units of the federation. For instance, the Soviet Republics of Byelorussia and the Ukraine
(b) Insurgents and Belligerents: Insurgents are individuals who participate in an insurrection (rebellion) against their government.[12] Belligerents are a body of insurgents who by reason of their temporary organized government are regarded as lawful combatants conducting lawful hostilities, provided they observe the laws of war.[13] For a long time, International Law has recognized that insurgents and belligerents may in certain circumstances, primarily dependent upon the de facto administration of specific territory, be international subjects having certain rights and duties under International Law, and may in due course be recognized as de factogovernments.[14] They can enter into valid arrangements on the international plane with States, international organizations, and other belligerents and insurgents. They are bound by the rules of International Law with respect to the conduct of hostilities.
(c) National liberation movements: In the course of anti-colonial actions sponsored by the United Nations and regional organizations, these organizations and the member States member State
International practice has accorded the political entities recognized as national liberation movements a number of legal rights and duties. The most significant of these rights and duties are the capacity to conclude binding international agreements with other international legal persons, the capacity to participate in the proceedings of the United Nations, and the rights and obligations of International Humanitarian Law.[18]
(d) International territories:[19] The term “International territory” refers to territories placed under a variety of international legal regimes including those administered by the United Nations under the trusteeship system or special arrangements. The Charter of the United Nations established the trusteeship system, replacing the mandate system established by the League of Nations , to enable the United Nations itself or a State to administer certain territories pending independence.[20] The United Nations is also able to administer territories in specific circumstances. In several instances, The United Nations placed certain territories under its transitional administration for a variety of purposes, such as the preparation for independence, the administration of an election, the adoption of a new constitution, the implementation of a peace settlement, and the performance of other civil functions. Examples of such instances are Cambodia (1992-1993), Bosnia and Herzegovina (1995- ), and East Timor (1999-2002).[21]
The territories (trust territories) placed under the trusteeship system have been accorded special status under International Law. Their inhabitants have been granted the rights for advancement, progressive development, and self-government or independence. Actually, all these territories have attained independence as separate States, or have joined other independent States. The territories placed by the United Nations under special systems, except Cambodia
4. Special case entities
There are two special case entities accorded a special unique status under International Law; they are the Sovereign Order of Malta, and the Holly See and the Vatican City
(a) The Sovereign Order of Malta Rhodes from 1309 to 1522. It was entrusted to rule Malta by the treaty with King Charles V of England Malta Rome Malta
(b) The Holy See and the Vatican City :[24] The Holy See, which is sometimes used interchangeably with the Vatican City , is the international legal person of the Roman Catholic Church, with its physical location at the Vatican City in Rome Vatican City Italy
The ultimate concern for the human being has always been the essence of International Law. This concern was apparent in the Natural Law origin of the classical International Law. The growth of the positivist theories of law, particularly in the Nineteenth Century, obscured this concern for the human being and emphasized the centrality and even the exclusivity of the State in International Law.[28]
In the Twentieth Century, International Law became again concerned with individuals. In 1907, the Hague Conventions initiated the concern in view of prisoners of war and the wounded.[29] During the Second World War, the trend of International Law had been towards attaching direct responsibility to individuals for crimes committed against the peace and security.[30] The Charter of London of 1943 issued by the Allied Powers established the individual responsibility for committing war crimes, crimes against humanities and crimes against peace. On this basis, after the Second World War, the German leaders were brought to trial before the Nuremberg International Tribunal (1945-1946) where their guilt was established. The Charter of the Nuremberg International Tribunal of 1945 provided specifically for individual responsibility for crimes against peace, war crimes and crimes against humanity.[31] The Nuremberg International Tribunal pointed out that “international law imposes duties and liabilities upon individuals as well as upon states” and this was because “crimes against international law are committed by men, not by abstract entities, and only by punishing individuals who commit such crimes can the provisions of international law be enforced”.[32]The principles of the Charter of the Nuremberg Tribunal and the decisions of this tribunal were affirmed by the General Assembly of the United Nations in 1946, thus making them to be part of the International Law.[33] The Assembly also, in 1946, stated that genocide was a crime under International Law bearing individual responsibility;[34]and this was reaffirmed in the Genocide Convention of 1948.[35]
Individual responsibility was also confirmed with regard to grave breaches of the Four Geneva Conventions of 1949 and the Additional Protocols I and II of 1977, which deal with armed conflicts (International Humanitarian Law). On this basis, two specific international war crimes tribunals were established, one for the former Yugoslavia in 1993 and one for Rwanda
The events in the former Yugoslavia and Rwanda
In addition, after the Second World War, International law became also concerned with individuals in the field of human rights and the fundamental freedoms. The Charter of the United Nations started this trend in 1945 by calling upon member states to observe human rights and fundamental freedoms for individuals and peoples.[38] Since then, several conventions have been concluded to define human rights and fundamental freedoms which individuals and peoples are entitled to and to ensure their respect and protection. Among these conventions are the International Covenant on Civil and Political Rights of 1966,[39]and the International Covenant on Economic, Social and Cultural Rights of 1966.[40]
Although, individuals as a general rule lack standing to assert violations of the above treaties in the absence of the protest by the State of nationality, a wide range of other treaties have enabled individuals to have direct access to international courts and tribunals. Examples of such treaties are the European Convention on Human Rights of 1950,[41]the American Convention on Human Rights of 1969,[42]the International Convention on the Elimination of All forms of Racial Discrimination of 1966,[43]and the Optional Protocol to the International Covenant on Civil and Political Rights of 1966.[44]
In conclusion, we can say that Contemporary International Law has recaptured the concern for individuals, and individuals have become recognized as participants and subjects of this law. This has occurred primarily through the evolution of Human Rights Law and Humanitarian Law coming together with the evolution of the Traditional International Law. Individuals have a sort of legal personality under International Law; they are granted certain rights and subjected to certain obligations directly under International Law. International Law is applicable to relations of States with individuals and to certain interrelations of individuals themselves where such relations involve matters of international concern.
6. Minorities
The concern of International Law, in the Twentieth Century, for individuals was accompanied by another concern for minorities. The problem of protecting national minorities in Europe confronted the League of Nations after the First World War. The League assumed its responsibilities in the field of treaty-based protection of minorities in Europe , in social matters, such as health and fair labor standards.[45] After the Second World War certain rights were granted to the individual members of ethnic, linguistic and cultural minorities; they were granted the right to have their identity and language respected by the State as part of the process of the development of human rights in general. [46]
The rise of ethno-nationalism after the collapse of the Soviet Union in 1991 brought back the status of ethnic minorities and other groups in International Law to be an important issue concerning the international community. Various efforts have been made on the global and regional level to improve the legal protection of minorities. On the Global level, there is “the United Nations Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities of 1992”.[47] On the regional level, there are “the European Charter for Regional or Minority Languages” adopted by “the Council of Europe” in 1992, “the Framework Convention for the Protection of National Minorities”[48] adopted by “the Council of Europe” in 1995 and the creation of “the High Commission for National Minorities” belonging to “the Conference on Security and Cooperation in Europe ”.[49]
Despite all these efforts that aimed to grant specific rights to minorities, the question remains, what legal status should be accorded to minorities in International Law? Do minorities have international legal personality?
There is no clear answer to these questions. Actually, the problem of minorities is very complicated because it involves political and legal dimensions related to the meaning and legal consequences of the principle of self-determination that may lead to loss of the concerned State part of its territory and its control over part of its population and to the possible outside intervention in its domestic affairs.[50] For this reason, it is no accident that in the development of International Law since the Second World War, the rights of minorities have been conceived as a category of human rights which are to be exercised by the individual belonging to a minority, rather than as group rights attributed to a collective entity as such.[51]
In recent years, a special issue related to a category of the so-called “indigenous peoples” has been raised. Examples of indigenous peoples are the Aborigines in Australia , the American Indians, the Eskimos and the Maori in New Zealand
[1] See generally Brownlie, chapter 3; Henkin & Associates, chapter 4; Higgins, Problems and Process, chapter 3, Oxford
[2] See Brownlie, pp. 52-8; Shaw, pp. 175-7; and Malanczuk, pp. 91-2.
[4] See Brownlie, pp. 57-8; Shaw, pp.175-7; and Malanczuk, pp. 91-2.
[5] See infra chapter 5.
[6] See generally Brownlie, chapter 31; Malanczuk, pp. 92-6; Shaw, pp.241-6 and chapter 23.
[7] On the historical development of international organizations, see Shaw, pp. 1161-4. On the personality of international organizations, see Brownlie, pp. 648-50; and Malanczuk, pp. 92-4
[8] Text of the 1946 Convention on the Privileges and Immunities of the United Nations in 1 U.N.T.S 15.
[9] 1949 I.C.J. 174.
[10] See generally I. Bernier, International Aspects of Federalism, London
[11] SeeBernier, pp. 64-6.
[13] Id.
[14] SeeBrownlie, p. 63; Malanczuk, p. 104; and Shaw, pp. 219-20.
[15] See Brownlie, pp. 61-2.
[16] Id.
[17] See e.g., 1972 U.N.Y.B., p. 70; 1978 U.N.Y.B., p. 297; and U.N. Chronicle, April 1982, p. 16. See also Shaw, p. 221.
[18] SeeBrownlie, p. 62.
[19] See generally Brownlie, p. 60; and Shaw, pp. 207-14.
[20] U.N. Charter chapters XII & XIII. Note that the aims of the trusteeship system were fulfilled since all the 11 original territories administered under it attained independence or joined neighboring independent States.
[21] See Shaw, pp. 208-11.
[22] Seegenerally D. P. O’Connell, 1 International Law, pp. 85-6, 2nded. London (1970); Shaw, p. 218; and M. Whiteman , 1 Digest of International Law, pp. 584 -7, Washington (1963).
[23] Shaw, p. 218.
[24] In 1870, the Papal States, which is also known as the Church States, lost their existence as sovereign States (lasted from 756 to 1870) when nearly all the territories, including Rome, were annexed to the United Italy by its king, Victor Emmanuel II, and consequently the jurisdiction of the Pope was confined to the Vatican City. However, the Holy See continued after 1870 to engage in diplomatic relations and enter into international concordats. In 1929, by virtue of the Lateran Treaty concluded between the Holy See and Italy, the latter recognized the State of the Vatican City, and the exclusive sovereignty of the Holy See over the City and in the field of international relation. See generally Brownlie, pp. 63-4; J. Crawford, The Creation of Statehood in International Law, pp. 152-60, Oxford (1979); Shaw, pp. 218-9; J. W. Verzijl, 2 International Law in Historical Perspective, 295-302 & 308-38, Leiden (1969); Whiteman, pp. 587-93.
[25] Bledsoe& Boczek, p. 39.
[26] Id.
[27] See generally Brownlie, chapter 25; Malanczuk, pp. 100-4; Higgins, pp. 48-55; O’Connell, pp. 106-12; and Shaw, pp. 232-241.
[28] Shaw, p. 232.
[29] Seeinfra chapter 16.
[30] See infra chapter 17.
[31] Art. 6. Text in 39 A.J.I.L., supp. (1945).
[32] 41 A.J.I.L. p. 220 (1947).
[33] G.A. Res. 95 (1).
[34] G.A. Res. 96 (1).
[35] Text in 78 U.N.T.S. 277.
[36] The Rome Statute of the International criminal Court art. 5, www. un.org/icc.
[37] Id.art. 25(2).
[38] U.N. Charter art. 55(c).
[39] Text in 999 U.N.T.S. 171.
[40] Text in 993 U.N.T.S. 3.
[41] Text in 312 U.N.T.S. 221.
[42] Text in 9 I.L.M. 673 (1970).
[43] Text in 5 I.L.M. 352 (1966).
[44] Text in 6 I.L.M. 383 (1967).
[45] See generally I. Claude, National Minorities: An International Problem, Cambridge
[46] SeeMalanczuk, p. 105.
[47] Text in 32 I.L.M. 911 (1993).
[48] Text in 34 I.L.M. 351 (1995).
[49] SeeMalanczuk, p. 105; and Shaw, pp. 340-3.
[50]Malanczuk, p. 106.
[51] Id.
[52] Seeid. pp. 106-8; and Shaw, pp.277-9.
