TEMA 2: THE STATE AS SUBJECT OF INTERNATIONAL LAW

In an international society such as the one we still have today, partially institutionalized and of juxtaposed
States, the role of the State continues to be preeminent, and it is an important task in our field to determine
what a State is in the absence of any document defining it.

International subjectivity: States. If we ask ourselves who are the subjects of international law, we will have to
answer by saying that they are the entities that participate in the creation of international rules, that are the
addressees of those international rules, that are entitled to complain in the event of non-compliance with
those rules and that may also incur liability in the event of non-compliance.

Until the late nineteenth and twentieth centuries, it was generally accepted that only States were the sole
subjects of international law, and this approach was carried over from the Peace of Westphalia of 1648 and
the emergence of the nation-State. This conception has been outdated today since the emergence of
international organizations, partly due to the increase in inter-State relations, which have undoubtedly
influenced the international law of our days, while it has increased its content to new fields, as in the field of
protection of human rights, partly due to the work sponsored by the United Nations since its founding,
encouraging the development of sectoral international treaties for the protection of human rights, work that
has continued with other organizations. For these reasons, both international organizations and individuals
are also actors in today's international society.

ELEMENTS OF A STATE

a) Territory: International law requires the State to have a stable territory, marked with borders,
although the fact that the State has problems with neighboring States does not impugn this fact. Most
conflicts are based on territory.
b) Population: understood as the set of people living in the territory of the State, whether or not they
are its nationals and regardless of population density, nomadism, racial or cultural diversity, etc.
c) Government or political organization: It must be capable of fulfilling its own missions in the
domestic and international spheres. The important thing is that a government exists, regardless of the
form it takes or the model of election.

SOVEREIGN EQUALITY OF STATES

1. Legal Equality: all states are equal before the law in the international system.
2. Full Sovereignty: each state has the full right to exercise sovereignty within its territory.
3. Respect for Legal Personality: States are obligated to respect the legal rights and autonomy of
other states.
4. Inviolability: States have the right to territorial integrity and political independence, which must be
respected by other states.

When all three elements concur, we can speak of a sovereign State, which makes it a creditor of international
legal personality and therefore the holder of rights and obligations inherent to its status, bearing in mind that
sovereignty is not an absolute value of the State and that it implies, at the international level, the sovereign
equality of States, their independence and their obligation of non-interference in the affairs of other States. In
the absence of a document where all the rights and obligations are expressed, we must necessarily refer to
the provisions of Art. 2.3 of the United Nations Charter, which establishes the obligation of States to
settle their disputes peacefully, or to Resolution 2625 (XXV) of the United Nations General Assembly,
which contains a declaration of the principles of international law governing the relations of friendship and
cooperation among States, a document which is based on the sovereign equality of States, with equal
rights and obligations, and in particular:

 All States are legally equal.

 Each State enjoys the rights inherent to full sovereignty.
 Each State has the obligation to respect the legal personality of other States.
 The territorial integrity and political independence of the State are inviolable.
 Each State has the right to freely choose and carry out its political, social, economic and cultural
system.
 Each State has the duty to comply fully and in good faith with its international obligations and to live
in peace with other States

But of all of them, we must necessarily insist on the principle of non-intervention.

PRINCIPLE OF NON-INTERVENTION -> pregunta de examen, explicar que es el principle, poner

ejemplos y las excepciones*
The sovereign equality of States, which entails non-interference in their internal affairs by other
States, is a principle of general international law that involves the right of every sovereign State
to conduct its affairs without outside interference, it is firmly established in the international
community and respected by the practice of the States, although interference is a one-off
occurrence, but with clear repercussions. Intervention is the prohibited element and is also
unlawful if coercive means or even the threat thereof are used

1. ICJ Ruling: the 1986 International Court of Justice (ICJ) judgment in Nicaragua vs. United States
provided a landmark confirmation of the principle's importance, declaring that the use of force or
other coercive measures against another state is illegal, even if the intent is to influence its internal
affairs.
2. Historical Importance: the principle of non-interference in the internal affairs of states has long
been a cornerstone of international law, reflecting the sovereignty and autonomy of states.
3. Emerging Exceptions: in recent years, the debate surrounding the principle of non-intervention has
intensified. The rise of human rights concerns has led to discussions about whether interventions are
justified in cases of severe human rights abuses, as these issues may be seen as transcending internal
state matters.

If historically this principle did not admit any derogation, little by little it is beginning to admit some. The
most paradigmatic example is the problem of human rights, with the international community understanding
that respect for human rights is an issue that goes beyond the internal sphere of States, and it is accepted
that interventions, whether immaterial (not involving physical action against a State or its presence in it) or
material: in the latter case we are speaking especially of the right to interfere. The risk of this principle stems
from the fact that, under cover of the protection of fundamental rights, a State or a group of States, even
under the cover of an international organization, can serve as a cover for interference in the interests of the
interveners. -> se utiliza de excusa intentar proteger derechos humanos para poder intervenir según sus
intereses.

UN SECURITY COUNCIL INTERVENTIONS

The only mechanism that enjoys impartiality is when the intervention is authorized by the UN Security
Council as it has the authority to intervene in situations that threaten international peace and security, as
outlined in Chapter VII of the UN Charter. These interventions aim to address conflict, uphold human
rights, and promote stability. They are often undertaken in response to humanitarian crises, political
instability, or breaches of international law. The Council's interventions can take various forms, including
peacekeeping operations, sanctions, and the authorization of military force. Examples of notable UN Security
Council interventions include the deployments in Somalia in 1992 and Haiti in 1994.

- Somalia 1992: Resolution 794 authorized a UN intervention in Somalia to ensure the delivery of
humanitarian aid.
- Haiti 1994: Resolution 948 aimed to restore democracy in Haiti through a UN intervention.
- Chapter VII Authority: Interventions authorized under Chapter VII of the UN Charter, such as those
in Somalia and Haiti, are designed to be impartial and uphold international peace and security.

STATE IMMUNITIES

- Sovereign Equality: the principle of sovereign equality of states serves as the foundational basis for
state immunity. It establishes that all states are equal and independent, and therefore, one state
cannot exercise jurisdiction over another.
- Jurisdictional Immunity: this principle translates into jurisdictional immunity, which signifies that
foreign states are generally shielded from the jurisdiction of courts in other states.
- Execution Immunity: furthermore, execution immunity protects state property located abroad from
being subjected to execution measures by other states. This safeguards the assets and financial
interests of states within their own borders. i.e., that the property of the State outside its territory
cannot be subject to execution measures by the administrative or judicial organs of another State.
However, State immunity (international practice is not very clear as to whether State immunity
extends to other minor organs such as autonomous communities) is not absolute since it can be
waived and has limits depending on the nature of the matter and even in recent history, there is a
certain tendency to admit exceptions, especially since State intervene in economic matters through
publicly owned commercial companies -> especialmente desde que el Estado interviene en asuntos
económicos a través de empresas comerciales de propiedad pública.
LO SIGUIENTE DEMASIADO DIFICIL

Types of State Immunity: State immunity can be classified into different categories, including:
  Absolute immunity: This doctrine grants complete protection from the jurisdiction of foreign courts,
regardless of the nature of the claim. This doctrine historically stemmed from the principle of
sovereign equality, which held that states were equal and independent entities and could not be
subjected to the authority of other states.
 Restrictive immunity: This doctrine distinguishes between acts jure imperii (governmental acts)
and acts jure gestionis (commercial or private acts). Only acts jure imperii are immune from foreign
jurisdiction.
- International Law and State Immunity: the principle of state immunity is codified in various
international law instruments, such as the UN Convention on Jurisdictional Immunities of States
and Their Property (2004), which provides a framework for navigating state immunity in
international relations.

LIMITS OF STATE IMMUNITY

- Waiver: States can choose to relinquish their immunity in certain circumstances. This can occur
through express agreements, treaties, or even implied consent. For example, a state might waive its
immunity by initiating legal proceedings against another state or by entering into a contract that
specifically grants jurisdiction to foreign courts (CUESTION DE CORTESIA)
- Commercial Activities: State-owned commercial entities may be subject to jurisdiction. When a
state engages in commercial activities on a foreign market, it generally relinquishes its immunity in
relation to those activities. This principle applies to both the state itself and its commercial entities,
such as state-owned banks or airlines.
- Nature of Matter: The scope of immunity (el alcance) depends on the specific subject of the case.
This distinction is crucial because it determines the extent to which a foreign state is protected from
legal proceedings in a host country. This will be explored in greater detail in the following slides.
- Criminal Conduct: States are generally not immune from prosecution for criminal offenses. When a
state is accused of criminal conduct, it may face prosecution in the courts of the country where the
offense occurred. This exception to state immunity ensures accountability for serious crimes.

Spanish Practice on State Immunity

1. Legal Framework: the Organic Law of the Judiciary and Law 1/2001 on Civil Procedure provide the
legal framework for handling immunities.
2. Jurisprudential Shift: since 1986, Spanish courts have increasingly adopted the restrictive immunity
approach.
3. Constitutional Court Ruling: a 1992 ruling by the Constitutional Court established that effective
judicial protection is compatible with immunities of jurisdiction and execution.

Recognition of States

- Definition: Recognition is a free and discretionary act that formally acknowledges the existence of a
new independent territory with a population and a functioning government.
- Nature: Recognition is both declaratory and constitutive, meaning it acknowledges the legal
existence of a state and simultaneously creates legal effects.
- Freedom of Choice: States have the freedom to recognize or not recognize another state, and there
is no legal obligation to do so. Notwithstanding the above, within the European Union, the Ministers of
Foreign Affairs, on December 16, 1991, adopted an agreement that consisted in determining the
criteria to be met by the new States that emerged from the disappearance of the USSR and the former
Eastern Europe). -> la union europea si que hizo un acuerdo entre sus integrantes para reconocer a
estos.
- Political Considerations: Political factors can influence a state's decision to recognize another state.
- Example: the separation in 1971 of Bangladesh from Pakistan, the merger of several States into one
(the two Germanies in 1989), by decolonization, in the case of India in 1946, with respect to Great
Britain. There is, however, no recognition of a new State, properly speaking, if a State regains its
former status as such, i.e. if it regains its independence, just as there is no recognition if a State is a
continuation of the international legal personality of another.
- Irregular conditions: that means either that a State refuses to recognize another even though it is
consolidated as such in international society (Spain did not recognize Israel until February 1986) or
because there are recognitions of realities that lack some element that characterizes the States, as
occurred in Kosovo in 2008, where, contrary to what happened previously with the USSR, the Council
of the European Union did not adopt any common position, leaving the Member States free on the
matter. There seems to be only one limit to State recognition, and that is the case of new
 entities seeking recognition in clear violation of a rule of general international law (such is
the case of the Turkish Republic of Northern Cyprus, recognized only by Turkey)

Forms of State Recognition

1. Express Recognition: States may formally recognize a new state through a unilateral act or by
joining an international convention.
2. Tacit Recognition: Recognition can also be inferred from actions, such as voting for a state's entry
into an international organization or establishing diplomatic relations.
3. Individual vs Collective: Recognition can be granted either by a single state or collectively by a
group of states.

Recognition of Governments: The issue occurs when there are changes of government of a State after a
traumatic situation, which have produced the emergence of a new government and usually come (PASTOR)
from three different situations:

- Recognition of local governments: governments that do not exercise control over the whole
territory but over a part of it. Such an assumption occurs in civil wars, where it is common for two
governments to coexist, each governing the part of the State's territory they control: one legal and the
other de facto.
- Recognition of governments in Exile: Those governments that claim supreme authority over a
state that is under the effective control of other authorities or are planned to be created in the
territory of one or more other existing states. Such was
the case with several governments, such as the Polish government, which during World War II, settled
in Great Britain.
- De Facto Governments: Recognition of governments that have arisen in violation of the
constitutional legality in force in a State. It occurs when the change of government of a State occurs in
a revolutionary manner through a coup d'état, which is why the doctrine speaks of a "de facto" or
de facto government as opposed to a legal or "de iure" government. This terminology is only adequate
from the point of view of the internal law of the State undergoing the change of government. Not from
the perspective of International Law. This assumption occurred with the Government of the Spanish
Republic in exile in Mexico, from 1939 to 1977. There are two theories that are used to deal with the
issue:
 The Tobar Doctrine states that provisional governments should not be recognized until they
demonstrate widespread popular support. This doctrine emerged in the early 20th century and
reflected a commitment to democratic principles and the legitimacy of governments based on the
will of the people. It emphasizes the importance of a stable and democratically elected
government, rather than simply recognizing any entity that claims power.
 In contrast, the Estrada Doctrine automatically recognizes any government, regardless of how it
came to power, even if it involved a violation of legal norms. This doctrine, introduced by Mexican
Foreign Minister Genaro Estrada in 1930, advocates for a non-interventionist approach to
international relations. It prioritizes the principle of non-interference in the internal affairs of other
states, recognizing that each state has the right to determine its own form of government.
 The Tobar and Estrada doctrines represent two contrasting perspectives on the recognition of
governments. While the Tobar Doctrine emphasizes the legitimacy of democratically elected
governments, the Estrada Doctrine focuses on non-intervention and the principle of sovereign
equality. The choice of which doctrine to follow often depends on a state's foreign policy objectives
and its commitment to certain political values.

Succession of States: Definition and Legal Framework

1. Definition: The succession of a State occurs when a State transfers, lawfully and in accordance with
International Law, part or all of its territory to another, so this figure must resolve any issues relating
to such transfer, especially issues such as archives, property and ultimately any issues affecting them.
2. Two international treaties, to which Spain is not a party and which are not in force, provide a legal
framework for the issue, namely the Convention on Succession of States in respect of Treaties
of 23 August 1978 and the Convention on Succession of States in respect of State Property,
Archives and Debts of 8 April 1983. Both treaties were drafted with the intention of covering any
situation when a succession of States occurs, so as to regulate any kind of responsibility for the
international relations of a territory.

Cases of State Succession according to Diez Velasco

 1. Partial Territory Transfer: a portion of a state's territory is transferred to another state. This can
occur through various mechanisms, such as treaties, agreements, or unilateral declarations. For
example, the transfer of Alaska from Russia to the United States in 1867 represents a case of partial
territory transfer.
2. Newly Independent State: a new state emerges from decolonization. The process of decolonization
has led to the creation of numerous independent states across the globe. For instance, the
independence of India and Pakistan from British rule in 1947 exemplifies the emergence of newly
independent states.
3. Unification of States: two or more states merge, ceasing to exist as separate entities. This often
occurs when states share historical, cultural, or economic ties. The unification of Germany in 1990 is a
prominent example of this type of state succession.
4. Separation or Dissolution: parts of a state's territory become one or more new states. This type of
succession can occur due to various factors, including political, economic, or cultural differences. The
dissolution of the Soviet Union in 1991, leading to the formation of several independent states, is a
well-known example of separation or dissolution.

*It must be taken into account that any territorial modification in violation of the norms of International Law,
does not give rise to the rules established in the matter of States, in attention to the established in art. 2.4 of
the Charter of the United Nations, as well as in resolution 2625 (XXV) of the General Assembly, which holds
that the territory of a State shall not be subject to acquisition by another State resulting from the threat or
use of force, not even from the acquisition of territorial acquisition achieved after an act of self-defense just
as the succession of States, can never affect international treaties relating to territorial limits and
boundaries.

Convention on Succession of States in respect of Treaties, the characteristic features of the 1978
Convention are:

a. It is a treaty that reflects the customary rules that have historically been followed on the subject.
b. International treaties relating to borders are not included in it.
c. In cases of succession of States to a part of their territory, the treaties of the successor State shall be
applicable from the moment of transfer.
d. Newly Independent States: the convention adopts the "clean slate" rule for newly independent
states, meaning they are not bound by treaties concluded by the former state. Also known as tabla
rasa, since no State that has just become independent will be obliged to comply with any of the
treaties ratified by the State of origin, in such a way as to avoid being mortgaged in its foreign policy
or in economic matters, although practice tends to recognize the principle of continuity in other
cases.
e. Unification and Separation: the convention generally follows the principle of continuity, meaning
that treaties continue to be in force after state succession with some necessary adaptations to
account for new circumstances.
f. Separation of States to form one or more States: the principle of continuity initially arises but
with the understanding that treaties that applied to the predecessor State would continue to apply to
all the successors and those that applied exclusively to a part of the predecessor would apply to the
successor controlling that part of the territory, unless otherwise agreed between the States
concerned or unless the application of a treaty would be incompatible with the object or purpose of
the treaty. Moreover, it must be borne in mind that the separation of States may also occur with or
without continuity by a successor State of the legal personality of the pre-existing State.

Effects of Succession on International Organization Membership

- Territorial Modifications: territorial modifications, such as minor border adjustments, usually don't
pose a significant challenge to membership in international organizations. No problems normally.
- State Mergers: when two states merge, their membership in an international organization is usually
seamless, especially if both states were already members. No problems normally.
- State Separation: the emergence of new states from a separation requires them to apply for
admission to the international organization. it is up to the new State to apply for admission to the
organization, just as if, following the separation of States, none of them continues in the legal
personality of the pre-existing State, all the successor States must apply for membership in the
international organization

1983 Vienna Convention: State Property

The 1983 Vienna Convention on Succession of States in respect of State Property, Archives and Debts
addresses the complex legal issues surrounding the transfer of state property during state succession. This
convention aims to provide a framework for the orderly transfer of state property, including real estate,
movable property, and financial assets, when a new state emerges or existing states undergo significant
changes.

The convention recognizes various types of state succession, each with its own set of property transfer rules.
For example, in cases of cession of territory, where one state transfers a part of its territory to another state,
the property located within the ceded territory is transferred by agreement between the involved states. This
agreement often involves compensation or other arrangements to address the transfer of property rights.

When a newly independent state emerges from a former colonial power or a dissolved federation, the
convention grants the new state entitlement to all state property located within its territory. This includes
state-owned buildings, infrastructure, natural resources, and other assets previously under the control of the
former state. The principle of "clean slate" applies, meaning the newly independent state is not burdened by
prior debts or obligations related to the property.

In cases of unification, where two or more states merge to form a single successor state, the property of the
merging states is transferred to the new state. This often involves combining assets, merging institutions,
and integrating legal systems. The process of unification can be complex and requires careful planning and
coordination to ensure the smooth transfer of property rights.

When a state undergoes separation or dissolution, resulting in the formation of multiple new states, the
convention leaves the transfer of property to the states involved. These states negotiate and agree on the
distribution of property based on various factors, such as population, economic activity, and historical claims.
The process of property division can be challenging and may involve international arbitration or mediation to
resolve disputes.

1983 Vienna Convention: Public Debt

1. Part of Territory: debt is transferred according to agreements or is divided equitably if there is no

agreement.
2. Newly Independent: the new state is free of debt, unless otherwise agreed upon.
3. Unification: the debt is transferred to the successor state.
4. Separation/Dissolution: debt is divided by agreement, or according to equitable principles.

1983 Vienna Convention: State Archives

- Definition: all official documents created or received by the predecessor state.

- Transfer Rules: transferred by agreement or based on territory.
- Both in the succession in respect of a part of the territory, as well as in the cases of separation and
dissolution, the transmission of the archives shall be made by agreement between the predecessor
State and the successor, and in the absence of the latter, those to which his succession refers shall be
transmitted.
- In cases of newly independent States, the archives which, having belonged to the territory to which
the succession refers, have become State archives of the predecessor State during the period of
dependence, shall pass to the newly independent State.
- In the event of the unification of States, the archives of the predecessor States pass to the successor
State

Conclusion: The Evolving Nature of State Subjectivity

Continued Relevance: States remain central figures in international law, despite the rise of other actors.
Their legal personality, including their rights and obligations, continues to shape the global legal order. Even
with the emergence of non-state actors and the growing importance of international organizations, states
hold significant power and influence in areas such as treaty-making, dispute resolution, and the enforcement
of international law.

Complex Interactions: Recognition, succession, and immunities illustrate the intricate nature of state
relationships. These concepts demonstrate how states engage with each other, acknowledge their existence,
and navigate the complexities of transitioning territories, dividing assets, and asserting sovereign rights. The
evolving legal landscape reflects the dynamic nature of state relations in a globalized world.
Adapting Principles: Traditional international law concepts continue to evolve to meet contemporary
challenges. As new technologies, global issues, and societal shifts emerge, the principles of international law
must adapt to reflect these changing realities. Concepts like state immunity, recognition, and succession are
constantly being re-examined and refined in light of contemporary circumstances, ensuring that international
law remains relevant and effective in addressing modern challenges.

UNIT 3

The Evolution of International Subjectivity

One of the clearest manifestations of the transition from classical to contemporary international law is the
increase in the number of subjects of international law. If international subjectivity was reserved to the
States, the first to achieve this status were the peoples, a task that began by:

The Rise of Peoples as International Subjects

1. Wilson's 14 Points: President Wilson's 14 Points, proposed after World War I, marked a pivotal
moment in recognizing peoples as subjects of international law.
2. Post-World War II Transformations: the formation of the United Nations after World War II
solidified this recognition, particularly evident in Articles 75 to 91 of the UN Charter.
3. Resolution 1514 (XV): the UN General Assembly's Resolution 1514 (XV) defined non-self- governing
territories and established their right to self-determination.

Post-Modern Tribalism

- Definition: Post-modern tribalism describes the emergence of a legal and political environment that
encourages the fragmentation of existing states and the formation of new ones.
- Challenges: this trend challenges the established notion of state sovereignty and the inviolability of
state borders.
- Implications: it raises crucial questions about the balance between self- determination and the
preservation of international stability.

UN Resolution 2625 (XXV): document that is considered as the Declaration of Principles of International
Law concerning friendly relations and cooperation among States in accordance with the UN Charter,
reiterates that by the principle of sovereign equality and self-determination of peoples, they have the right to
determine freely, without external interference, their political status and to pursue their economic
development.

International Court of Justice Rulings

The International Court of Justice (ICJ) has played a pivotal role in shaping international law's recognition of
peoples as subjects of international law. Several landmark rulings have affirmed the right to self-
determination, contributing significantly to the decolonization movement and the evolving landscape of
international law.

In the Namibia Case (1971), the ICJ delivered a judgment on June 21, 1971, reaffirming the right of peoples to
self- determination. The court upheld the principle that peoples have the right to determine their own future,
a significant legal precedent that solidified the international recognition of this fundamental right.

Further strengthening this right, the ICJ issued a ruling on Western Sahara on October 16, 1975. In this case,
the court reinforced the notion that colonial situations should end through the exercise of the right to self-
determination. This ruling underscored the importance of decolonization and the legal obligation of colonial
powers to respect the right of peoples to choose their own political status.

These rulings had a profound impact on the decolonization movement, providing a legal framework for the
process of transitioning from colonial rule to independence. The ICJ's judgments on Namibia and Western
Sahara, among others, served as essential tools in the struggle for self-determination, empowering peoples
to assert their rights and determine their own destiny.

Outcomes of Self-Determination

The right to self-determination empowers peoples to choose their own political status and future, leading to
various outcomes. These outcomes are shaped by the unique circumstances and aspirations of each people.
The most common outcomes of self- determination include independence, free association, integration, and
other statuses.
Independence: the most widely sought outcome of self-determination. It involves a complete break from
the colonial power, allowing the people to establish their own independent state. Independence enables a
people to fully exercise their sovereignty, enacting laws, managing their own affairs, and determining their
own foreign policy. Many countries around the world have achieved independence through peaceful or
sometimes forceful movements, leading to the creation of new nations.

Free association: another option for self-determination, offering a more nuanced path to independence. In
this scenario, the people maintain a certain degree of autonomy while associating with an independent state.
This might involve maintaining control over their own internal affairs while delegating certain external
matters to the associated state. Free association can be a compromise between complete independence and
continued dependence, providing a path towards self-governance while still benefiting from the support and
resources of another state.

Integration: a self-determination outcome where the people choose to become a part of an existing
independent state. Often, integration is accompanied by specific guarantees of autonomy for the people,
ensuring that their distinct cultural, linguistic, or other identities are preserved. Integration can be a choice
made in situations where the people perceive greater benefits through unification with a neighboring state. It
can be a means to achieve greater political, economic, or social stability, while ensuring the preservation of
the people's identity.

"Other Status": encompasses any other political status that is freely chosen by the people. This category
reflects the diverse and unique circumstances and aspirations of different peoples. It could involve a special
territorial status, a form of federalism, or any other arrangement that allows for the people's self-
determination and promotes their well-being. This category underscores the importance of flexibility and
respect for the diversity of peoples' aspirations in the process of self- determination.

UN Committee

The principle of self-determination of peoples, when applied to communities under colonial rule, does not
always lead to the colony's independence. According to UN resolutions 1514 (XV) and 2625 (XXV), it can also
result in free association, integration with an independent state, or other arrangements freely decided by the
people. The UN oversees the decolonization process through the Committee of 24, established by
General Assembly resolution 1654 (XVI), which is responsible for creating the list of autonomous
or self-governing territories.

The Holy See and the Vatican City (la Santa Sede)

The Holy See, since 380, has been actively involved in international relations through its organs that have
promoted the establishment of diplomatic relations with many States, the signing of concordats (international
treaties to all intents and purposes), even when it has been deprived of territory during the period between
the Italian unification and the Lateran Agreements of 1929, which consisted of a political treaty, a concordat
and a financial convention, by which international sovereignty was fully recognized in the Holy See.SPANISH
1. The Holy See Enters the
TERRITORIES IN NORTH AFRICA
International Stage: The Holy See
begins active involvement in
international relations.
2. Italian Unification and the Loss of
Territorial Control. The Holy See
temporarily loses territorial control.
3. 1929 Lateran Agreements:
Recognition of Sovereignty
International sovereignty is fully
recognized for the Holy See.

The situations of Ceuta, Melilla, the Peñones de Vélez de la Gomera, Alhucemas and the Chafarinas Islands or
the islet of Perejil are quite different, even though some neighboring countries try to compare them with
Gibraltar. In all of them, except the Chafarinas which were occupied in 1848 and were uninhabited, the
Spanish presence is from the fifteenth century and although with different legal consideration, have been
part of the territory of the Crown of Castile and prior to our presence to the very existence of the State of
Morocco that dates back to the fifties of last century. There is therefore no colonial situation in those
territories, according to International Law.

The Sovereign Order of Malta

Origins can be found in the authorization given by the Caliph of Egypt in the year 1048, for the construction
in Jerusalem of a church, a convent and a hospital, arising by Papal Bull, the Sovereign Order of St. John of
Jerusalem. Having lost Jerusalem in 1291, the Order moved first to Cyprus and later, in 1310, to Rhodes, an
island they also had to abandon due to the Ottoman occupation in 1523.

Modern Status of the Sovereign Order of Malta

1. International Recognition: the Sovereign Order of Malta enjoys recognition from over 100 states
across all continents.
2. UN Status: the Order maintains observer status within the United Nations General Assembly.
3. Humanitarian Focus: the Order's primary mission abroad centers on humanitarian assistance,
facilitated through international agreements.

National Liberation Movements

Definition: groups striving for self-determination of peoples under colonial rule. These movements often
emerge in contexts where indigenous populations are subjected to external control and seek to reclaim their
autonomy and sovereignty. Their aims typically include the establishment of an independent state, the
recognition of their cultural identity, and the protection of their fundamental rights.

International Status: gaining recognition and a degree of international legal personality. While they may
not be considered full- fledged states, their struggles for self-determination are increasingly recognized within
the international legal framework. Their actions, including armed resistance in some cases, are often seen as
legitimate acts of self-defense, and they have gained a degree of international legal personality, allowing
them to participate in diplomatic forums and negotiate with governments.

Example: PLO

Palestine Liberation Organization granted observer member status in the UN since 1973. This granted the
PLO a significant platform to advocate for Palestinian rights and engage in international negotiations. It
symbolized the growing international recognition of the Palestinian struggle for self-determination and
marked a turning point in their quest for statehood.

PLO's International Presence

- Representations: since 1973, the PLO has established formal representations in numerous
countries across the globe, solidifying its presence on the international stage.
- Diplomatic Relations: in 1986, Spain officially recognized the PLO's office status, acknowledging its
political standing and facilitating diplomatic dialogue.
- International Participation: the PLO played a significant role in the III Conference on the Law of the
Sea, demonstrating its commitment to international legal frameworks and maritime governance.

Belligerents in Armed Conflicts

- Definition: Belligerents are groups within a state that engage in armed hostilities against the
government. They are distinct from ordinary civilians and often seek to establish their own
governance or achieve political change through force.
- Recognition: Recognition of belligerent status by third states grants these groups minimal
international legal personality. This means they can be held accountable for their actions under
international law, and it establishes certain rights and responsibilities in the context of conflict.
- Implications: Recognition of belligerent status has several implications. It triggers the application of
ius in bello norms, the laws governing the conduct of warfare, and it imposes a neutral obligation on
third states to not support either side in the conflict.

Conditions for Belligerent Recognition

1. Territorial Control: Belligerents must exercise effective control over a portion of territory.
2. Discretionary Act: Recognition is a discretionary act by states, confirming the existence of ongoing
hostilities.
3. Temporary Status: Belligerent status is temporary, ending with either defeat or the establishment of
a de facto government.

From the perspective of international responsibility, the International Law Commission's draft on State
responsibility, adopted in 2001, establishes that the behavior of a movement that becomes the new
government of the State will be considered an act of State under international law.

International Non-Governmental Organizations (NGOs)

 - Global Reach: NGOs are diverse organizations with a wide range of international activities.
- Legal Basis: while established under national laws, NGOs often seek international recognition.
- International Norms: efforts are underway to establish a recognized international legal status for
NGOs (esfuerzos para establecer un estatus legal internacional reconocido para las ONG).

NGOs in International Forums

1. Diplomatic Conferences: NGOs actively participate in diplomatic conferences, such as the UN

Climate Change Conference, and contribute to UN General Assembly debates on critical issues.
2. Observer Status: NGOs hold observer status in several international organizations, including the
World Trade Organization (WTO) and the UN Economic and Social Council (ECOSOC), enabling them to
voice their perspectives and engage in policy discussions.
3. Broad Scope: NGOs play a vital role in a wide range of international affairs, encompassing economic
development, promoting peace and conflict resolution, protecting the environment, and advocating for
human rights.

NGO Influence on International Conventions

- Proposal: NGOs propose ideas for international conventions.

- Advocacy: They advocate for specific issues to be addressed in international law.
- Drafting: NGOs may contribute to the drafting process of conventions (redacción de convenios)
- Implementation: They often play a role in monitoring and implementing conventions.

Case Study in relation: European Convention Against Torture

NGO Initiative: The Swiss Committee against Torture played a pivotal role in the convention's development.
They advocated for the establishment of a binding instrument to prevent torture and ill-treatment, drawing
on their extensive experience and knowledge of the issue. This initiative highlighted the importance of
independent NGOs in promoting human rights at an international level.

Council of Europe: The Council of Europe, an international organization dedicated to promoting human
rights and democracy in Europe, adopted the convention in 1987. This adoption demonstrated the council's
commitment to upholding human rights and underscored the significant influence of NGOs in shaping
international law. By recognizing the importance of the convention's objectives, the Council of Europe set a
strong precedent for other international organizations.

Impact: The European Convention Against Torture has had a profound impact on international human rights
law. It establishes a comprehensive framework for preventing torture and ill-treatment, including the creation
of national mechanisms to monitor and investigate allegations of torture. The convention has inspired similar
initiatives in other regions, demonstrating the power of NGOs to shape international law and promote
fundamental human rights.

UNIT 4

Sources of International Law

International law plays a crucial role in shaping relations between nations, establishing frameworks for global
cooperation, and promoting peaceful coexistence. It is a complex and ever - evolving field, encompassing a
range of sources that contribute to the legal order governing the international community. This presentation
will explore the diverse sources of international law, including treaties, international custom, general
principles of law recognized by civilized nations, judicial decisions, and the teachings of the most highly
qualified publicists of the various nations. We will delve into how these sources interact, their respective
strengths and limitations, and their impact on contemporary international legal issues.

Article 38 of the ICJ Statute

In order to identify the sources of international law, it is necessary to refer to Article 38 of the
Statute of the International Court of Justice, which lists them as follows:

1. International Conventions: treaties, both general and specific, that establish rules explicitly
acknowledged by the states involved in a dispute.
2. International Custom: evidence of a consistent practice accepted by states as legally binding.
3. General Principles of Law: fundamental legal principles recognized by the international community.
4. Judicial Decisions and Doctrine: used as supplementary means to determine the rules of law.
Hierarchy of Sources

A first approach to this text leads us to the differentiation between primary sources (treaties, custom and
general principles of law) and auxiliary means (case law and scientific doctrine), although strictly speaking,
only the former should be considered as authentic sources of law, since the latter (case law and scientific
doctrine) are limited to interpreting the scope of the rules. While Article 38 of the ICJ Statute outlines the
primary sources of international law ((treaties, custom and general principles of law), it does not establish a
rigid hierarchical order among them. This means that treaties, international custom, general principles of law,
and judicial decisions and teachings of highly qualified publicists all hold equal normative rank and are
equally binding on states.

The enumeration of these sources in Article 38 does not imply that one source is superior to another. Instead,
it simply recognizes the diverse ways in which international law is created and applied. In practice, courts and
tribunals must consider all sources when resolving disputes, giving due weight to their relative importance in
the specific context of the case. It is important to note that specific customs, whether they are regional or
local, take precedence over general customs. This is because specific customs reflect the particular practices
and understandings of a specific group of states, while general customs reflect broader international norms.
In cases where a specific custom conflicts with a general custom, the specific custom will prevail.

International Custom

Definition: international custom arises from the consistent practice followed by the international subjects
and generally admitted by them as law states. This source of international law is based on the principle of
"usus" (practice) and "opinio juris sive necessitatis" (belief in legal obligation):

Material Element: states engage in a consistent and uniform practice, forming the basis of the custom. The
practice must be widespread, consistent, and general. It does not require the participation of all states, but
rather a sufficient number of states whose practice reflects the custom. The practice must also be consistent,
meaning that states must act in a similar way over a period of time. The practice must be general, meaning
that it must be followed by a significant number of states in the international community. The "usus" element
is based on the observable behavior of states, including their actions, statements, and legal practices.

Spiritual Element: “Opinio iuris sive necessitatis" – States believe that this practice is legally binding, not
just a matter of convenience. This is the subjective element of international custom. It refers to the belief of
states that the practice is legally required, not merely a matter of courtesy or habit. Evidence of "opinio juris"
can be found in state pronouncements, declarations, and legal writings, as well as in the decisions of
international courts and tribunals.

Question -> how many times an event must have occurred in order for the material element for the proof of a
custom to be fulfilled? Today we can argue that the requirement of constant practice has become more
flexible in recent history and that it will suffice to prove that the practice is uniform, to see the material
requirement of the custom fulfilled, or if preferred, that there is a precedent. On the other hand, and
regarding the spiritual element, part of the doctrine denies its necessity, although it seems reasonable that
the voluntariness of the subject of international law must be present in the creation of the custom.

Custom has traditionally been the main source of general international law, although the codification process
has meant in practice that custom has lost its historically predominant role. The creation of international
customs depends on the subjects of international law. Although the question of international subjectivity will
be dealt with in the following units, suffice it to say now that it is the States that are the main actors,
although it is true that after the end of the Second World War, with the emergence of international
organizations, these also contribute to the formation of customs at least at the level of relations between
them and in specific aspects of their internal functioning, it is primarily up to the States.

Formation of International Custom

1. Uniform Practice: States consistently engage in similar actions over a period of time. This practice
must be widespread, consistent, and genera l. It doesn't require the participation of all states, but
rather a sufficient number of states whose practice reflects the custom. The practice must be
consistent, meaning that states must act in a similar way over a period of time. This consistency is key
to establishing the practice as a customary norm. Furthermore, the practice must be general, meaning
that it must be followed by a significant number of states in the international community. The "usus"
element is based on the observable behavior of states, including their actions, statements, and legal
practices.
2. Opinio Juris: States believe that the practice is legally binding, not just a matter of convenience. This
is the subjective element of international custom, and it's crucial for establishing the practice as a
 legally binding norm. It refers to the belief of states that the practice is legally required, not merely a
matter of courtesy or habit. This "belief in legal obligation" is essential for the emergence of a
customary rule. Evidence of "opinio juris" can be found in state pronouncements, declarations, and
legal writings, as well as in the decisions of international courts and tribunals.
3. General Acceptance: a significant portion of the international community acknowledges the practice
as legally binding. This general acceptance is crucial for the practice to become a customary rule of
international law. This means that a significant portion of the international community, not necessarily
all states, must recognize the practice as legally binding. The more states that accept the practice, the
stronger the evidence of "opinio juris" becomes.
4. Codification: the practice may be formalized into written law through treaties or other international
instruments. Codification helps clarify and solidify the existing customary rule, ensuring its stability
and longevity. This process of codification can occur through international treaties, conventions, or
other legal instruments. The codification of a customary rule can strengthen its legal force and provide
a more concrete and accessible source of international law.

Types of International Customs

Negative Customs: arise from states refraining from certain actions, accepted in international practice.
These customs are formed by states abstaining from specific activities, establishing a norm of non -
intervention or non - interference. They are often characterized by the absence of action rather than the
presence of action. For example, refraining from using force against another state's territory is a negative
custom. The consistent and widespread avoidance of such actions creates a binding obligation under
international law.

Acceptance of this custom was brought before the Permanent Court of International Justice in the Lotus case
of 1927. The subject matter of the dispute arose when a French warship and a Turkish freighter collided on
the high seas. After the Lotus had called at a Turkish port, the Turkish authorities proceeded to arrest the
navigation officer. The French authorities appealed to the Court for a ruling on whether the Turkish
authorities' action in prosecuting the officer had been contrary to international law, precisely on the grounds
of the existence of a negative custom which implied that no State could exercise its criminal jurisdiction
against a State vessel for a collision that occurred on the high seas. Today, the existence of negative customs
is universally accepted, although whoever invokes them must prove their existence.

General or Universal Customs: apply to the entire international community, binding unless opposed
during their formation. These customs are widely recognized as binding upon all states in the international
community. They represent fundamental principles and norms that are universally accepted, such as the
prohibition of genocide or the principle of sovereign equality. States are expected to comply with general or
universal customs unless they explicitly and persistently opposed them during their formation. However, it's
important to note that the scope of application of general customs may vary, depending on the specific
practice. The obligatory nature of this type of customs is beyond doubt.

Particular Customs: include regional, local, or bilateral customs, specific to certain groups of states. These
customs are specific to a particular region or group of states and are not universally binding. They reflect the
specific practices and norms developed by a particular group of s tat es due to shared interests, geographic
proximity, or historical factors. Examples include customs governing the use of shared resources or regional
trade practices. Particular customs only apply to the states that have agreed to or consistently followed
them. They do not necessarily bind states outside that particular group.

Emerging Customs: developing practices that may evolve into established customs over time. These
customs are in the process of formation and have not yet reached the status of established norms. They
represent emerging trends and practices that may eventually be codified into customary international law.
The evidence of opinio juris for emerging customs is still developing, and their legal status is uncertain.
However, they can serve as important indicators of evolving norms and potential future developments in
international law. They can be observed through new practices, statements, and actions by states regarding
emerging issues.

International Treaties: according to Art. 2.1. a) of the 1969 Vienna Convention, "a treaty means an
international agreement concluded in writing between States and governed by international law, whether
embodied in a single document or in two or more instruments and whatever its particular designation.

- For the Convention, international treaties are understood exclusively as those concluded between
States, thus excluding those involving international organizations. This does not mean that, despite
their regulatory exclusion from the Vienna Convention, international agreements involving an
international organization cease to be treaties.
 - Treaties must be in written form, consisting of one or multiple documents, regardless of how they
are named.
- That its subject matter must be governed by international law implies that it creates legal
obligations for the parties, excluding those of a political nature. This excludes purely political
agreements that do not aim to create legal consequences.
- State Participation: treaties primarily involve states as parties, but can also include international
organizations, such as the United Nations or the World Trade Organization.

Types of International Treaties

- By Participants: treaties can be categorized based on the number of participating states. Bilateral
treaties involve two states, such as a trade agreement between the United States and Canada.
Multilateral treaties involve more than two states, such as the United Nations Charter or the Paris
Agreement on climate change.
- By Scope: treaties can also be categorized based on their scope of application. General treaties, such
as the Geneva Conventions 1949 on humanitarian law, are intended to apply universally to all states.
Restricted treaties, such as regional trade agreements or bilateral extradition treaties, apply only to a
specific group of states.
- By Subject Matter: treaties can regulate a wide range of subjects within international law, including
peace and security, trade, human rights, environmental protection, and intellectual property. They can
create new international law, codify.
- By their function in the creation of obligations, they can be treaty-laws, when they seek to
create rules opposable to the entire international community, or treaties contracts, which are the
subject of an exchange of services between the contracting parties.
 Treaty-Laws: create rules applicable to the entire international community. These treaties
establish general principles and norms that govern the conduct of states in their relations
with each other. They can address issues like human rights, environmental protection, or
international trade, and can be binding on all states that have agreed to them.
 Treaty-Contracts: establish an exchange of services between contracting parties. These
treaties are similar to contracts in private law, where states agree to specific obligations
and benefits. They can include things like extradition treaties, trade agreements, or
agreements to share resources. These treaties are only binding on the states that have
signed and ratified them.
- By the nature of the parties involved, they may be between States, international organizations
and even between other subjects of international law. Can include States, international organizations,
or other subjects of international law. While states are the primary actors in international treaties,
international organizations like the United Nations or the World Trade Organization can also be parties.
Other subjects of international law, such as non - governmental organizations (NGOs) or individuals,
may have limited participation depending on the treaty's provisions.
- In terms of duration, they can be either fixed-term (as was the case with the Treaty establishing the
European Coal and Steel Community, with a term of 50 years), open-ended unless denounced or,
finally, renewable after an initial term, as in the case of the NPT (Nuclear Non-Proliferation Treaty).
Some treaties have a fixed term, while others are open - ended and remain in force until they are
denounced by one of the parties. Some treaties may also be renewable after an initial term.
- By their form of conclusion, there are those concluded in a solemn or simplified form.

The conclusion of international treaties in public international law usually goes through four
phases:

a) Negotiation, understood as the proposals and counter-proposals made by the parties until an
agreement is reached.
b) Adoption of the text, which is reached after the end of the negotiation. In bilateral treaties, the
acceptance of both parties is logically required, while in multilateral treaties unanimity was historically
required, today it goes more to broad majorities.
c) Authentication of the same mechanism by which it is established that the treaty is correct and
expresses the will of the parties.
d) Provision of consent by the participating State, to be granted after the domestic procedures for the
conclusion of the treaties, whereby the participant has ceased to be a negotiator to become a party,
either by instrument of ratification (if it has participated in the negotiations) or accession (if it has
not).

PREGUNTAR SI HAY QUE SABERSE The conclusion of international treaties

Competent Bodies for Treaty Conclusion

- Heads of State: heads of State are typically authorized to represent their countries in concluding
international treaties.
- Heads of Government: heads of Government are empowered to negotiate and sign treaties on
behalf of their respective states.
- Ministers of Foreign Affairs: ministers of Foreign Affairs are generally competent to participate in
treaty negotiations and conclusions.
- Other Representatives: other individuals may be authorized to represent a state in treaty
negotiations and conclusions, provided they are granted the necessary powers.

MIRAR LO DEL SPANISH LAW

Spanish Constitutional Framework for Treaties

1. Government Competence: the Spanish Government is responsible for setting foreign policy and
negotiating international treaties.
2. Parliamentary Authorization: certain treaties require the prior authorization of the Cortes
Generales, the Spanish Parliament.
3. Constitutional Court Review: the Constitutional Court can review whether treaties are compatible
with the Spanish Constitution.
4. Constitutional Reform: if necessary, the Constitution can be reformed to accommodate treaty
provisions.

Entry into Force of Treaties

1. Bilateral Treaties: enter into force upon exchange of consent or at a mutually agreed time.
2. Multilateral Conventions: require a specific number of ratifications and a defined waiting period.
3. Domestic Procedures: countries follow their own procedures for ratification and implementation.
4. Notification: all parties are officially notified once a treaty enters into force.
5. Treaty Provisions: specific entry into force rules are outlined in the treaty itself.
6. Depositary: manages treaty registration and ensures proper documentation.

RULES GOVERNING TREATY ENTERING INTO FORCE

Treaty provisions generally do not apply retroactively, unless the parties explicitly agree otherwise. For
example, a treaty that enters into force on January 1, 2023, would not apply to events that occurred before
that date, unless the treaty specifically states otherwise. This principle of non -retroactivity ensures that
states are not held accountable for actions that occurred before the treaty's entry into force. This principle is
consistent with the general principle of legal certainty and predictability, as it allows states to know what
rules apply to their actions and to plan accordingly.

States are obligated to act in good faith and avoid actions that undermine the treaty's purpose and goals.
This principle of good faith is essential for the effective functioning of international law. It requires states to
act in a way that is consistent with the spirit and intent of the treaty, even if the treaty's language does not
explicitly prohibit the action in question. For example, a state that signs a treaty to protect the environ men t
is obligated to act in a way that does not harm the environment, even if the treaty does not explicitly list all
possible harmful actions.

For states that consent to a treaty after its initial entry into force, the treaty applies from the date of their
consent according to art. 24.3 of Vienna Convention. Th is known as the principle of "individual state entry." It
allows states to join a treaty after it has already entered into force, without having to wait for all other states
to ratify the treaty. For example, if a treaty enters into force on January 1, 2023, but a state does not ratify
the treaty until June 1, 2023, the treaty will apply to that state from June 1, 2023.

Art. 27 of the Vienna Convention added a specific rule according to which "a party may not invoke the
provisions of its internal law as justification for its failure to perform a treaty". This rule recognizes the
principle of primacy in the application of international law over domestic law. States cannot rely on internal
law to justify their failure to comply with a treaty's obligations. If a state's internal law conflicts with a treaty's
obligations, the treaty obligations will prevail. For example, if a state has a law that permits discrimination on
the basis of race, but the state has signed a treaty that prohibits racial discrimination, the treaty obligations
will prevail, and the state will be required to comply with the treaty's prohibition on discrimination.

establishes that the general principle in this matter is that of the binding effect on the entire territory of each
of the parties, this being understood as the land territory, internal waters, territorial sea and airspace,
although this rule may exclude part of its territory or may even have an application outside the territory of
the States parties, as occurs when they provide that they bind the States parties with respect to persons
under their jurisdiction, as is the case, for example, with treaties relating to human rights.

Territorial Application of Treaties: With respect to the specific effects of treaties ratione loci, Art. 29 of
the Vienna Convention, establishes that:

- General Principle: treaties typically apply to the entire territory of each party unless explicitly stated
otherwise. This ensures consistent application within a state's boundaries.
- Territorial Scope: this encompasses a state's land, internal waters, territorial sea, and airspace. The
territorial scope is broad, covering all aspects of a state's physical space.
- Exclusions: parties can exclude specific territories from a treaty's application. This may be done for
reasons like national security, environmental protection, or other specific considerations. For example, a
state might exclude a military base from an arms control treaty.
- Extraterritorial Application: some treaties can extend their application to individuals subject to a
state's jurisdiction, even if outside its territory. This is called extraterritorial application and often applies
to treaties dealing with criminal law, human rights, or issues affecting individuals beyond national
borders. For instance, a terrorism suppression treaty could apply to a state's citizens committing terrorist
acts in another country.

Treaty Compatibility and Incompatibility between an earlier and a later treaty on the same
subject matter and to what extent the effects of the former may be limited by the latter, we will
have to bear in mind:

- Article 103 of the Charter of the United Nations, which states that in the event of a conflict between
the obligations of the Members of the United Nations under the Charter or obligations under any other
international agreement, the obligations under the Charter shall prevail.
- In the event that a treaty specifies that it is subordinate to a prior or subsequent treaty or that it is not
to be incompatible with such treaty, the provisions of the latter shall prevail.
- If there are two successive treaties on the same subject matter and between the same parties, the
rules of the earlier treaty will only be applicable to the extent that they are compatible with the later
treaty.
- On the other hand, in the case of two successive treaties to which the parties do not coincide, the rule
indicated in the preceding paragraph shall apply, but the relations between a State party to both
treaties and another State party to only one of them shall be governed by the treaty to which both
States are parties.
- In the hypothesis in which a State is party to two incompatible treaties with different States, the
validity of the subsequent treaty does not arise, but the State in question may incur liability vis-à-vis
the other party to the earlier treaty

1. Provisional Application of Treaties

 Article 25.1 of the Vienna Convention allows for provisional application of a treaty, in whole or in part,
before its formal entry into force if:

o The treaty explicitly provides for it.

o The States Parties agree to it

 This provision is rooted in international law, but its application depends on the domestic legal
frameworks of the States involved.

2. Domestic Legal Frameworks: to the provisional application of a treaty whether the domestic legal
systems of the States authorize it, state practice varies widely, since there are:

o Some countries, like Costa Rica, completely prohibit provisional application of treaties.

o Others, like Spain, allow provisional application but restrict it in specific cases as outlined in the
Spanish Constitution (Articles 93, 95, 94.1(c), and 94.1(d)).

3. Role of the Depositary in Multilateral Treaties

 Articles 76 and 77 of the Vienna Convention establish the need for a depositary in multilateral
treaties.
 Designation of the Depositary:
o A figure to be designated from among the states parties to the treaty in question
 o Chosen from among the States Parties to the treaty.
o Often the State where the treaty is concluded.

 Functions of the Depositary:

o Safeguarding the text of the treaty and related instruments. Ensuring their authenticity and
security. They act as custodians, protecting these vital legal instruments for future reference
and legal analysis

o Managing notifications, reservations, and communications about the treaty. They ensure that
all parties are kept informed of any changes or developments affecting the treaty's application.

o Registering the treaty with the UN Secretariat: The depositary is responsible for registering the
treaty with the United Nations Secretariat, making it accessible to the international community.
This registration serves as a central repository for treaty information, facilitating access and
promoting transparency in international legal relations.

 Historical Precedents: Article 18 of the Covenant of the League of Nations stipulated that
unregistered treaties would not be binding.
 Modern Adjustments: Article 102 of the UN Charter softens this rule, stating that
unregistered treaties are not invocable before UN organs but may still exist.
o Reception, information and transmission of the expressions of consent made by the States parties
and any instrument relating to the same, as in the case of reservations playing a vital role in the
treaty's entry into force. They ensure that all necessary consents are obtained, contributing to the
treaty's validity and effectiveness in international law.

Effects of Treaties on Third Parties

General Rule formulated in article 34 of the Vienna Convention establishes: treaties generally do
not create obligations or rights for states not party to the treaty without their consent, unless the parties to
the treaty intend to create obligations for the

1. third party and the latter expressly accepts such acceptance of the obligation in writing
2. Third Party Rights: a treaty can create rights for a third party if intended by the parties and
accepted by the third party.
3. Revocation of Rights: revocation of rights acquired by a third party requires their consent (Article
37.2)

Reservations in International Treaties:

According to Article 2(1)(d) of the Vienna Convention, it is a unilateral statement that excludes or modifies
the legal effect of specific treaty provisions. For instance, a state might reserve the right to apply certain
provisions of a human rights treaty differently than other signatories, or it might limit its commitment to
implementing certain obligations.

Timing: reservations can be made during the signing, ratification, acceptance, approval, or accession
process. This allows states to clarify their understanding of the treaty's provisions and to ensure that their
participation aligns with their domestic legal frameworks and policies.

Articles 19 and 20:

Limitations: reservations are only possible with respect to multilateral treaties. Reservations are not
permitted if they are prohibited by the treaty itself or if they are incompatible with the treaty's object and
purpose. For example, reservations that undermine the fundamental principles of a human rights treaty, such
as the prohibition of torture, would likely be considered inadmissible.

Acceptance: depending on the specific treaty, a reservation may require explicit or implicit authorization
from other signatories. This can involve a formal acceptance of the reservation by the other states or a tacit
acceptance through their silence or continued participation in the treaty despite the reservation.
Reservations expressly authorized in treaties do not require the consent of the other signatories.

If reservations are generally permitted, this is done with a view to guaranteeing the maximum number of
parties to the treaty, even if this means sacrificing part of its application. Reservations may be formulated at
any time during the life of the treaty, unless the treaty prohibits them or unless they are incompatible with
the object or purpose of the treaty.
The regime of reservations in international conventions assumes that, once accepted, for the purposes of the
treaty, the relations created in the treaty may arise in three situations:

a) As between the reserving State and the accepting State, the treaty shall apply on the terms set
forth in the reservation and for the remainder, on the terms on which the treaty was originally drafted.

b) If one State formulates a reservation and a second State rejects it, the treaty applies between
them, except for the part that was the object of the reservation and with the others as originally
concluded.

c) In the event of a reservation presented by one State or another which considers it contrary to the
object and purpose of the treaty, as between them the treaty shall not enter into force, and as
between the other States, the treaty shall be applied as originally concluded.

Interpretation of International Treaties: establish the scope of their content. There are many models of
interpretation depending on the organ that performs it or the method used, but for our purposes we will stick
to the provisions of art. 31 et seq. of the Vienna Convention, which contains the following three rules:

1. Good Faith Principle: treaties are interpreted in good faith, considering the ordinary meaning of the
terms.
2. Context Consideration: terms are interpreted within the treaty's context, considering its object and
purpose.
3. Special Meanings: if a special meaning was intended by the parties, it takes precedence over the
ordinary meaning.
4. Multilingual Treaties: in multilingual treaties, all texts are equally authoritative unless otherwise
specified.
5. Subsequent Practice: the subsequent practice of the parties in applying the treaty can be
considered as an element of interpretation.
6. Preparatory Work: the travaux preparatories, or preparatory work, can be consulted to clarify the
treaty's meaning, but they are not conclusive.
7. International Customary Law: general rules of international law can be used to interpret treaties,
but they can only be applied if they are compatible with the treaty's provisions.

Amendment and Modification of Treaties: regulated by the Vienna Convention, provide mechanisms to
adapt agreements to changing circumstances while respecting their generally permanent nature.

Amendments: governed by Articles 39 and 40 of the Convention, follow the same rules as the conclusion of
treaties unless the treaty itself specifies otherwise. When an amendment is proposed, all States parties must
be notified to ensure they can express their opinions and participate in negotiations. Each State retains the
sovereign right to accept or reject the proposed changes, which guarantees a balanced approach to
consensus-building.

The binding force of amendments: varies depending on the consent of the States involved. States that do
not consent to an amendment continue to be governed by the original treaty in their mutual relations.
Conversely, States that accept the amendment are bound by the new version of the treaty in their dealings
with other consenting States, while maintaining the original treaty in their relations with non-consenting
States. Furthermore, any State that joins the treaty after the amendment becomes a party to the amended
treaty, except in its relations with States that have not accepted the changes, where the original version
remains applicable.

Sometimes -> treaties include special provisions for amendment, such as the UN Charter, which
anticipates the need for adjustments to adapt to societal developments. However, many treaties, particularly
those outside the framework of international organizations, do not contain specific revision clauses. This
makes the amendment process more complex but ensures a degree of stability in their application.

Modifications: they differ from amendments as they apply only to certain States parties rather than to all.
These modifications are permitted under the Vienna Convention if they do not affect the rights or obligations
of other States parties and remain consistent with the treaty’s object and purpose. Such modifications are
often negotiated through agreements between the concerned States, ensuring that the fundamental
principles of the treaty remain intact while allowing for flexibility in its application.

Nullity, Withdrawal, Suspension, and Termination: they share a temporary or definitive dissociation of
parties from an international treaty. Although treaties are typically intended to remain in force, the Vienna
Convention establishes strict rules to regulate the circumstances under which they may cease to have effect.
These rules (Articles 42 to 45) address cases where cessation occurs by mutual agreement of the parties or
due to uncontrollable external factors that hinder the treaty's continuation. The Convention also specifies that
the validity of a treaty or the consent to it can only be challenged under its provisions, particularly those in
the Vienna Convention on the Law of Treaties:

The termination, denunciation, withdrawal, or suspension of a treaty must follow the rules of the treaty itself
or the Vienna Convention. These actions do not absolve States of their obligations under other international
laws. Such rights apply to the entire treaty, not to specific parts, unless explicitly stated or agreed upon.
Grounds for invalidity can only address the treaty as a whole, unless certain clauses are separable. According
to Article 45 of the Vienna Convention, a State loses the right to invoke invalidity, termination, withdrawal, or
suspension if it consents to the treaty’s continuation or acts in a way that implies acceptance after knowing
the relevant facts.

Nullity: A treaty's provisions are rendered invalid from the beginning. This can occur due to a fundamental
violation of international law during the treaty's creation, such as coercion or fraud. A treaty may also be null
and void if it conflicts with a peremptory norm of international law, or just cogens, which is a principle that
cannot be derogated from by treaty. Examples of jus cogens include the prohibition of torture, genocide, and
aggression.

Withdrawal: A state's exit from its treaty obligations, subject to specific conditions. This can occur in
accordance with the treaty's terms, such as a withdrawal clause, or if the treaty allows for termination on
notice. A state may also be able to withdraw from a treaty if a material breach of the treaty has occurred, or
if a fundamental change of circumstances has taken place that renders the treaty's performance impossible
or radically alters the obligations to be performed.

Suspension: Temporary cessation of the effects of a treaty, either partially or entirely. This can occur if the
treaty provides for suspension in certain circumstances, or if the parties agree to suspend the treaty
temporarily. Suspension can also occur if a material breach of the treaty occurs, but only for the duration of
the breach.

Termination: The end of treaty obligations, without affecting past legal situations. Termination can occur
through agreement of the parties, by the expiration of the treaty's duration, or if the treaty's object and
purpose have been achieved. Termination can also occur if a material breach of the treaty occurs, or if a
fundamental change of circumstances takes place that renders the treaty's performance impossible or
radically alters the obligations to be performed.

Grounds for Treaty Termination

1. Mutual Consent: All parties agree to end the treaty. This can be done explicitly through a separate
agreement or implicitly through the parties actions, such as ceasing to perform their obligations under the
treaty.
2. Material Breach: A violation of a key provision that undermines the treaty's purpose. A material breach
occurs when a state violates a provision that is essential to the treaty's object and purpose, or when a
state persistently violates a provision that is not essential but is nevertheless fundamental to the treaty's
operation. This violation must be serious and intentional, not a mere technical breach.
3. Impossibility of Performance: An essential object or element for the treaty's implementation
disappears or is destroyed. For example, a treaty might be impossible to perform if the subject matter of
the treaty is destroyed, such as a treaty concerning a specific island that is then submerged by rising sea
levels. However, mere difficulty or hardship in performing a treaty is not sufficient to invoke the
impossibility of performance. The situation must be so radically changed that the treaty is no longer
capable of being performed at all.
4. Fundamental Change of Circumstances: Unexpected events significantly alter the treaty's
obligations. A fundamental change of circumstances, also known as rebussic stantibus, occurs when a
 change in circumstances is so fundamental that it radically alters the obligations to be performed under
the treaty. This doctrine is narrowly applied and requires that the change of circumstances be unforeseen,
essential to the treaty's object and purpose, and substantially alter the obligations to be performed. For
example, a treaty might be terminated under this doctrine if a fundamental change in the political
landscape makes the treaty’s objectives impossible to achieve. However, the change of circumstances
must be unforeseen and not the fault of the state invoking the doctrine.

Unilateral Acts in International Law

Definition: Unilateral acts are actions taken by states that create legal effects without needing agreement
from other states. This means a state can unilaterally bind itself to an obligation or create a new right for
itself without the need for a treaty or other formal agreement. This is in contrast to bilateral or multilateral
acts, which require the agreement of two or more states.

Public Character: For a unilateral act to be legally binding, it must be public and clearly intended to be
legally binding. This means the act must be made in a way that other states are aware of and understand
that the state intends to be bound by it. This can be done through a formal declaration, a statement made by
a state official, or through a series of actions that clearly indicate the state's intention.

Capacity: Unilateral acts must come from an organ authorized to make commitments on behalf of the state
in international affairs. This usually means the act must be made by the head of state, the head of
government, or the foreign minister. It can also be made by other organs or officials, but only if they are
authorized to act on behalf of the state in international affairs.

Manifestation: The state's intention to be legally bound by a unilateral act must be expressed publicly. This
means the act must be made in a way that clearly indicates the state's intention to create a legal obligation.
This can be done through a formal declaration, a statement made by a state official, or through a series of
actions that clearly indicate the state's intention to be bound.

Types of Unilateral Acts

- Recognition: Confirming the existence of a fact or situation. This includes recognizing new states,
new governments, treaties, or even certain legal acts by other states. It is important to note that
recognition is a political act, and it does not necessarily have the same legal weight as a treaty.
However, it can still be a significant factor in determining the legal status of a particular fact or
situation.
- Promise: Commitment to assume certain conduct in future relations. This can involve a commitment
to perform a specific action, to refrain from certain actions, or to abide by certain principles. It is a
powerful tool in international law as it allows a state to create a legal obligation for itself without
requiring the agreement of other states.
- Waiver: Ceasing a right to achieve its extinction. This can involve waiving a claim, a right to object, or
even a right to seek redress. This requires a clear expression of intent to relinquish a right and is often
used to resolve disputes or to create a more cooperative relationship between states.
- Notification: Bringing a fact or matter to the attention of third parties. This can be used to inform
other states of a state's intentions, to trigger certain legal effects, or to provide a warning to other
states. It is important to note that notification alone does not necessarily create a legal obligation for
the state that sends the notification. However, it can be an important step in the process of creating a
legal obligation or in the process of resolving a dispute.
- The protest or act by which a State manifests its intention not to consider a given fact as in
accordance with the law, thus safeguarding its violated rights.
- Acquiescence is the passivity of a State in the face of the conduct of another State. According to the
judgment of the International Court of Justice in the 1951 Fisheries Case (United Kingdom v. Norway),
for acquiescence to be valid, there must be notoriety of the facts, the general tolerance of the
international community and the abstention of the State concerned in the matter.
- And finally, the Estoppel, known in our legal sphere as the doctrine of own acts and by which it is
understood that a State is bound by its own acts, in accordance with the principle of good faith.

General Principles of Law

1. Source of International Law: recognized as a source of international law in Article 38.1.c of the ICJ
Statute.
2. Universal Presence: these principles are present in all legal systems worldwide.
3. Judicial Application: International courts use these principles to justify rulings when other sources
are insufficient.
 4. Complementary Role: general principles of law fill in gaps in custom and treaty law.

International Jurisprudence

- Auxiliary Source: recognized as a source of international law in Article 38.1.d of the ICJ Statute.
- Binding Effect: decisions are binding on the parties involved, but do not affect third parties.
- Precedent Influence: while not formally binding, judicial decisions often influence subsequent cases.
- Interpretation Tool: helps clarify and develop international law principles.

Resolutions of International Organizations

1. Growing Importance: resolutions play a major role in international relations since 1945.
2. Legal Basis: their legal basis is derived from the founding treaty of the organization.
3. Binding Nature: resolutions can be binding or non - binding, usually limited to members.
4. Impact on International Law: they contribute to the development and interpretation of
international norms.

UNIT 5:

International Law and National Legal Systems

The relationship between International Law and national legal systems is complex and dynamic. The lack of a
solid institutional structure in International Law means that its application largely depends on the will of
States. However, the growing importance of international cooperation and integration organisations has
added new layers of complexity to this relationship, especially as these organisations take on functions that
have traditionally been the responsibility of states.

Integration of International Law into National Legal Systems

The integration of International Law into national legal systems presents fundamental challenges. The need
for specific acts of reception to incorporate international norms into national legal systems is debated, and
the nature of these acts is examined. The consequences of the lack of adoption of International Law by
national systems are also analysed, as well as situations where national law conflicts with international law.

1. Reception: analysis of the need for acts of reception for the integration of International Law.
2. Adoption: study of the problems arising from the lack of adoption of International Law.
3. Conformity: examination of cases where national law is not in conformity with International Law

Theories on the Relationship between International

Law and National Law (va a preguntar que pongamos algún ejemplo o nos va a poner un ejemplo
y deberemos decir si es una cosa u otra), mirar que sería en cada caso.

The doctrine has developed three main approaches to analysing the relationship between International Law
and national law: monism, dualism and conciliatory doctrines. Each theory offers a different perspective on
the interaction between these two legal systems

1. Monism: defends the unity of all legal systems, affirming that all norms derive their validity from
higher norms until reaching the fundamental norm (grundnorm). Top level -> United Kingdom
(international law above national law), there is no difference between one and another.
2. Dualist: Dualism maintains the absolute separation between both systems, in terms of their sources
as well as their subject matter.
3. Conciliatory Doctrines: conciliatory doctrines emphasise the coordinating relationships between
International Law and national laws, based on the principle of the unity of all normative systems.

Monism in International Law

Monism, defended by jurists such as Hans Kelsen, postulates the unity of all legal systems. This theory holds
that all norms derive their validity from higher norms, until reaching a fundamental norm (grundnorm).
Kelsen initially placed the grundnorm in domestic law, but later moved it to International Law. He argued that
domestic laws are a derivation of International Law. According to this view, International Law would occupy a
position of hierarchy over domestic state laws.

1. Fundamental Norm: grundnorm as the basis of validity for all norms.

2. International Law: considered as the superior source of validity.
3. Domestic Laws: derived from International Law according to this theory.

Dualism in International Law

 - Separation of Systems: dualist doctrines, represented by figures like Triepel, postulate an absolute
separation between the international order and national legal systems.
- Different Sources: this theory argues that both legal systems are distinct, both in their sources and in
their subject matter.
- Act of Incorporation: consequently, for national legal systems to be bound by International Law, an
express act of ratification or accession is required.

Conciliatory doctrines

Conciliatory doctrines seek a middle ground between monism and dualism. These theories emphasise the
need to coordinate International Law with national rights, despite recognising the unity of all normative
systems. Their focus is on finding practical mechanisms to harmonise both systems, acknowledging both the
interconnection and the differences between International Law and national legal systems.

- Balance: seeks a balance between legal systems.

- Coordination: promotes cooperation between legal systems.
- Integration: harmonises International and national law.

Perspective of International Law on its Superiority

From the perspective of International Law, its superiority over national legal systems has always been
maintained. This position is reflected at the conventional level, where the Vienna Convention, in its Article 27,
establishes that a State cannot invoke its internal law to avoid fulfilling its international obligations. This
principle has been ratified by international jurisprudence, reinforcing the idea of the primacy of International
Law over national norms.

1. Hierarchical Superiority: International Law is considered superior to national legal systems.

2. Vienna Convention: article 27 prohibits invoking domestic law to breach international obligations.
3. International Jurisprudence: ratifies the primacy of International Law.

Constitutional Models for the Adoption of International Law

In the application of International Law by the domestic organs of States, we can identify four distinct
constitutional models: those that establish a mandatory but not automatic adoption, those that establish a
mandatory and automatic adoption, those that, in addition, establish the superiority of the norms of
International Law over domestic law, and those that enunciate general rules of International Law in an
individualised manner.

- Mandatory Non-Automatic Adoption: in this model, the incorporation of International Law into the
domestic legal order requires a specific act, such as ratification or accession by the State. Example:
article 96 of the Spanish Constitution establishes that validly concluded international treaties shall be
part of the domestic legal order once officially published. This means that the adoption of International
Law in Spain is not automatic, but requires publication in the Official State Gazette.
- Mandatory and Automatic Adoption: this model is characterized by the direct incorporation of
International Law into the domestic legal order, without the need for additional acts. International
norms are automatically integrated into the national legal system. Example: The Constitution of
Austria (Art. 7) establishes that the norms of general International Law form part of the Austrian legal
order without the need for an act of incorporation.
- Superiority of International Law: this constitutional model explicitly establishes the primacy of
International Law over domestic law, recognising its hierarchical superiority. Example: Article 10 of the
Basic Law of the Federal Republic of Germany establishes that the general rules of public international
law are an integral part of German federal law and that laws that contradict international norms are
not valid.

Non-Automatic Mandatory Adoption

The Spanish Constitution of 1931 illustrates the model of mandatory, but not automatic, adoption of
International Law. This approach requires the State to take specific actions to integrate international norms
into its domestic legal system. Although it recognises the binding nature of International Law, this model does
not allow for its direct application without a formal act of reception. It seeks a balance between respect for
International Law and national sovereignty in the management of its domestic legal system.

- Obligatory: recognition of the duty to adopt international norms.

- Formal Act: necessity of a specific process of incorporation.
- State Control: maintains a degree of control over the incorporation of norms.
Mandatory and Automatic Adoption

The model of mandatory and automatic adoption of International Law is characterised by the direct
incorporation of international norms into the national legal system. This approach, exemplified in common
law with the maxim "International Law is a part of the law of the land", eliminates the need for additional acts
for integration. The immediate applicability of International Law in the domestic sphere facilitates a more
fluid integration and reflects a greater openness to the influence of International Law in the national legal
system.

- International Norm: creation or ratification of the international norm.

- Automatic Incorporation: direct integration into the national system.
- Domestic Application: immediate applicability in the national legal order.

Superiority of International Law in Constitutions

Some constitutions, such as the German one of 1949, explicitly declare the primacy of International Law over
domestic law. Article 25 of the German Constitution establishes that the general rules of Public International
Law form part of the federal legal system. This approach, also adopted by the Italian Constitution, recognises
the superiority of International Law and facilitates its direct application in the national legal system. These
constitutional provisions serve as a guide for States to adjust their behaviour in the international sphere.

1. Constitutional Recognition: explicit incorporation of the supremacy of International Law.

2. Direct Integration: international norms are considered part of the federal legal system.
3. Conduct Framework: defines a framework for the State's actions in the international sphere.

Individualised Enunciation of International Norms

Certain constitutions, such as that of the USSR in 1977, opted to incorporate general principles of
international law in an individualised manner. This approach involves the specific inclusion of international
principles or norms within the constitutional text. In doing so, it grants explicit recognition to certain
international norms within the national legal framework, facilitating their direct application and strengthening
their status in the domestic legal order.

- Specificity: detailed enunciation of international norms.

- Recognition: explicit incorporation into the constitution.
- Applicability: facilitates direct application in the national sphere.

Conventional Law in Constitutions: The French Case (establishes the monism, but with a new
note, the reciprocity)

At the level of conventional law, some constitutions, such as the French Constitution of 1958, establish the
superiority of ratified conventional norms over national laws, under the principle of reciprocity. This moderate
monist approach conditions the application of the international conventional norm on its publication in
France. Once published, the international norm has hierarchy even over the previous French law, causing the
norms contrary to the new conventional obligation to become inapplicable.

1. Ratification: approval of the international treaty.

2. Publication: official dissemination in France.
3. Application: superiority over national laws.

Dualist Model: The Italian Case

The Italian Constitution of 1947 adopts a complete dualist model for the incorporation of conventional law.
This approach requires that the conventional norm be transformed into a national norm for its application. If
the subject matter of the treaty is within the competence of the Italian Parliament, it is incorporated through
a national law. If it is within the competence of the executive power, it is done through a decree. In both
cases, the transformed treaty is integrated into the system of national normative hierarchy, derogating
norms of equal rank.

- Transformation: conversion of the international norm into a national one.

- Hierarchy: integration into the Italian regulatory system.
- Derogation: ability to derogate norms of equal rank.

International Wrongful Act: Concept and Evolution -> TEMA MUY IMPORTANTE (traducción: hecho
ilícito)
An international wrongful act occurs when a subject of international law violates a norm of the international
legal order. This act has negative consequences for the subject to whom it is attributed. In recent years, the
scope of subjects that can be held responsible for international wrongful acts has been expanded, including
the concept of erga omnes obligations. This means that some wrongful acts not only affect a specific state,
but also violate general obligations that all states have towards the international community.

- Unlawfulness: acts that violate International Law.

- Expansion: greater variety of responsible subjects.
- Erga Omnes: obligations towards the international community as a whole.

Examples: Russia right now and Germany in the 20th century

Changes in the Structure of International Society

- New Subjects: the international society has undergone profound changes in its structure and
functioning. This includes the emergence of new subjects of International Law, such as international
organisations, and the growing acceptance of the legal personality of the individual in international
law.
- Technological Risks: new risks associated with the use of technologies and certain approaches in
economic relations have been identified.
- Global Awareness: the international community has recognized the seriousness of certain unlawful
behaviours in the context of International Law

2001 Project on International Responsibility -> Intento de hacer un Código penal internacional

In the absence of an international convention that determines the international responsibility of States for
wrongful acts, the General Codification Commission has been working on this matter since 1962. Its latest
proposal, known as the 2001 Project, was approved by the General Assembly through resolution 56/83 of 12
December 2001. This project establishes in what cases a State has violated its international obligations and
the legal consequences that this action or omission entails.

- Codification: Effort of the General Commission since 1962.

- 2001 Project: Proposal approved by the General Assembly in 2001.
- Scope: Establishes violations and consequences of international wrongful acts.

Premises of the Internationally Wrongful Act

The concept of an internationally wrongful act is based on three fundamental premises: the violation of
International Law, the creation of a new relationship between States, and the obligation to repair the damage
caused. These premises are essential for determining international responsibility and its consequences.

- Infringement: action or omission that infringes International Law.

- Relationship: new relationship arising between States.
- Reparation: obligation to repair the damage caused.

Concept of International Wrongful Act according to the 2001 Project

According to Article 2 of the 2001 Project, for there to be an international wrongful act, two circumstances
must exist. First, that it be attributable to a State in accordance with International Law. Second, that it
constitutes a violation of an international obligation of the State. The determination of international
responsibility for wrongful acts committed by a State is solely a matter of International Law, regardless of
whether it is considered unlawful by the domestic legal systems of the States parties.

Attribution of Wrongful Conduct to a State

- State Powers: The 2001 Draft considers as acts of the State the conduct of any power (executive,
legislative or judicial).
 - Borrowed Organs: the conduct of any organ placed at the disposal of a State by another State and
acting within the scope of the authority conferred on it is also considered an act of the State.
- Controlled Groups: The 2001 Draft also considers as an act of the State the conduct of persons or
groups acting under the instructions or control of a State.

Special Cases of Attribution of Wrongful Acts

There are special cases in which a wrongful act is attributed to a State. For example, the conduct of an
insurrectional movement that ultimately forms a new government, or situations where responsibility depends
on collaboration between several States. The 2001 Draft Articles analyse three scenarios of collaboration: the
State providing aid or assistance, the State directing and controlling another State in the commission of the
act, and the State coercing another to commit a wrongful act.

1. Insurrectional Movements: attribution of responsibility when an insurrectional movement creates a

new government.
2. State Collaboration: states that aid, direct or coerce others to commit wrongful acts.
3. Shared Responsibility: involvement of several States in a wrongful act, generating shared
responsibility.

Violation of an International Obligation

The violation of an international obligation is the second fundamental element for the existence of an
internationally wrongful act. According to international jurisprudence and the 2001 Draft, this element implies
the breach of an obligation established by an international norm. The determination of whether a violation
has occurred or not will depend on a careful interpretation of the terms of the obligation, taking into account
the reality of the facts. The violation may manifest itself as an action, an omission or a combination of both.

- Obligation: imposed by international norm.

- Analysis: evaluation of terms and facts.
- Forms: action, omission or combination.

Peaceful Resolution of International Disputes

International relations are characterised by the constant presence of differences between the subjects of
International Law. The main mission of International Law is the maintenance of peace, as TRUYOL points out.
Disputes can be of a legal, political or mixed nature, depending on the applicable resolution mechanisms. The
means of dispute settlement are classified as peaceful and non-peaceful, with a variety of non-jurisdictional
and jurisdictional mechanisms available to resolve conflicts between states and preserve international
stability.

Non-Jurisdictional Means of Dispute Resolution

1. Diplomatic Negotiations: the most classic and widely used method, carried out by diplomatic
personnel or itinerant diplomacy. It does not require special formalities, but some countries consider it
the most respectful of state sovereignty. For example, the Treaty of Versailles was diplomatically
negotiated between the victorious powers of the First World War.
2. Good Offices and Mediation: they involve the intervention of an impartial third party. In good offices,
the third party does not offer solutions, while in mediation it does, although it is not binding on the
parties. Norway's mediation in the conflict between Israel and Palestine is an example of this
mechanism.
3. Fact-Finding and Conciliation: investigation is applied when there are differences over questions of
fact. Conciliation involves a third party who proposes a non-binding solution after examining the facts
and the applicable law. The Truth and Reconciliation Commission of South Africa was an investigative
process that helped to clarify the truth about the crimes of Apartheid.

International Arbitration

- Definition: a process in which two States submit a dispute to an impartial third party to obtain a
binding resolution (award). For example, the dispute over the construction of the border wall between
Mexico and the United States could be resolved through international arbitration.
- Historical Importance: it has been a fundamental mechanism in the history of international law,
although its use has declined in recent times. A classic example is the arbitration between the United
States and Great Britain over the Panama Canal in 1903.
 - Current Application: it remains relevant in matters related to investments and disputes between
individuals and States, as in the 1965 Washington Convention. A current case is the arbitration
between Argentina and Spanish companies over the expropriation of YPF in 2012.

Jurisdictional Means of Dispute Resolution

- Characteristics: it is characterised by the intervention of an impartial third party, with a vocation of

permanence. The parties present their arguments under the principle of equality of arms, following
pre-established procedural rules.
- Historical Evolution: the appearance of international tribunals dates back to the early 20 th century. The
Central American Court of Justice, established in 1907, was the first international judicial body and
functioned for a decade.
- Current Examples: the International Tribunal for the Law of the Sea (ITLOS) in Hamburg, created by the
Third United Nations Conference on the Law of the Sea, is responsible for resolving disputes related to
the Convention and other related international norms.

The International Criminal Court Background

Since the 1950s, the United Nations has proposed the creation of a permanent international criminal tribunal.

- Objective: to determine the individual responsibility of those who commit serious international crimes.
- Challenges: bipolarity in the international community hindered its creation for decades.
- Establishment: it was finally established as a permanent court to try serious international crimes.

MIRAR A VER SI HAY QUE TERMINAR LA UNIDAD 5

UNIT 6: DIPLOMATIC AND CONSULAR RELATIONS

Diplomatic and consular relations are the foundation of international interaction between states. This
comprehensive overview explores the concept, establishment, and workings of diplomatic missions, including
the roles and privileges of diplomatic agents. We will also delve into the intricacies of consular relations and
examine the unique position of permanent missions to international organizations. From the Vienna
Convention of 1961 to contemporary practices, this exploration covers the essential aspects of diplomatic
and consular affairs, highlighting their critical role in maintaining international peace and cooperation.

Concept and Establishment of Diplomatic Missions

1. Mutual Agreement: The establishment of diplomatic missions requires mutual agreement between the
sending and receiving states.
2. Permanence: diplomatic missions are permanent entities, unaffected by personnel changes.
3. Rank Changes: any changes in the rank of a diplomatic mission must be agreed upon by both parties.

While the Vienna Convention of 1961 doesn't explicitly define diplomatic missions, it implies that they are
organs of international law subjects for diplomatic activity. The establishment and termination of these
missions differ from individual appointments, ensuring continuity even with personnel changes.

Types of Diplomatic Missions

- Embassies: the most common type, representing states in their bilateral relations (en el caso de la
union europea los embajadores se llaman permanent representative -> embajador de España ante la
unión Europea)
- Nunciatures: only applies for representing the Holy See, specifically for Vatican City State (apostolic
nunciature), es como una embajada pero de la sede apostólica.
- High Commissions: representing commonwealth countries to each other (aquellos paises dentro del
common wealth)
- High Representations: often used by the European Union for specific purposes (embajador de la union
europea en cualquier país)
- Legations: originally a term for all diplomatic missions, now primarily used for less formal diplomatic
relations (no quieres abrir una embajadad, la legation es un paso más bajo)
- Internunciatures: similar to nunciatures, but representing the Holy See in countries where it doesn't
have full diplomatic relations. (lo mismo pero con la nunciature, un paso por debajo para cuando no
quieren montarla)
- Chargé d'affaires: temporary head of mission appointed in the absence of an ambassador. This
category is typically used when diplomatic relations are less established or when a formal ambassador
hasn't been appointed yet. (se manda a un persona a un país para una misión concreta)
Diplomatic missions, representing the sending state in the receiving state, are established in accordance with
international law and diplomatic protocol. This type of mission reflects the level of diplomatic representation
and the nature of relations between the two states.

The 1961 Vienna Convention on Diplomatic Relations doesn't explicitly list the types of missions, but Article
14, which discusses the heads of missions, provides insights into the different levels of diplomatic
representation.

The first category is characterized by its high level of diplomatic representation, usually with ambassadors as
heads of mission. The second and third categories represent lower levels of representation, with less formal
or temporary appointments.

Classification of Diplomatic Agents

1- Ambassadors and Nuncios: representing their states to heads of state or equivalent.

1. Envoys, Ministers, and Internuncios: also representing their states to heads of state.
2. Chargés d'Affaires: representing their states to ministers of foreign affairs.
3. Special Agents: permanent or extraordinary agents for specific missions.

Hierarchy order: Ambassador, Vice ambassador, Plenipotentiary ministers, Attaché, Secretary of 1º, 2º or 3º
grade.

The 1961 Vienna Convention categorizes diplomatic agents into three primary ranks, with an additional
distinction between permanent and extraordinary agents. This classification reflects the hierarchical structure
of diplomatic representation and the varying levels of authority and responsibility within diplomatic missions.

Commencement of Diplomatic Relations

1. Mutual Consent: diplomatic relations are established through a mutual agreement between states.
2. Right of Legation: states possess the right to send and receive diplomatic missions, but this right
requires the consent of the receiving state (se suele empezar siempre con una legation, casi nunca
con un embajador directamente).
3. Obligations: upon establishing diplomatic relations, states assume the legal obligations outlined in the
Vienna Convention on Diplomatic Relations.

According to Article 2 of the 1961 Vienna Convention, the initiation of diplomatic relations between states
requires mutual consent. While states possess the right of legation, both active and passive, this right cannot
be exercised without the receiving state's consent. The International Court of Justice highlights that once
diplomatic relations are established, states are bound by the imperative obligations codified in the Vienna
Convention (como por ejemplo la inmunidad de los embajadores).

Termination of Diplomatic Missions

- Complete Severance of Diplomatic Relations: a complete break in official diplomatic ties.

- Mission Abolition: the mission closes but relations continue, potentially through joint representation
with another state.
- Termination by UN Security Council Decision: diplomatic ties end due to international intervention by
the UN Security Council.
- Non-Recognition or State Disappearance: changes in government recognition or state status can lead
to the termination of missions.

Diplomatic missions can end for various reasons, including the breakdown of diplomatic relations, mission
abolition without severing ties, UN Security Council decisions, non-recognition of government, or the
disappearance of a state's international legal personality. Each scenario has different implications for ongoing
international relations.

Diplomatic Status and Privileges

1. Duration: diplomatic status extends throughout the duration of the mission, including travel periods to
and from the receiving state. If we decide to send someone as an ambassador, you will have the
protection because of your status until you return to your country.
2. Scope: the scope of diplomatic status encompasses mission premises, property, and all members of
the diplomatic mission (they are all protected by the ambassy).
3. Conflict Situations: diplomatic status is maintained even during armed conflicts, ensuring the
protection of diplomatic personnel and premises.
Diplomatic status grants privileges and advantages to diplomatic personnel and premises within the
accredited state. Established through customary international law and codified in the 1961 Vienna
Convention, this status commences upon departure from the accrediting state and continues until the return
of diplomatic personnel or a reasonable period following mission termination. It applies to all mission-related
property and personnel, guaranteeing protection even during armed conflict.

Inviolability of Diplomatic Premises

1. Protection: the receiving state must safeguard the mission and refrain from any unauthorized
interference.
2. Access Restriction: entry is only permitted with the head of mission's explicit authorization.
3. State Responsibility: the receiving state is liable for any damage, with certain exceptions.

The inviolability of diplomatic premises is a fundamental principle. It obligates the receiving state to protect
the mission and prevent unauthorized entry. This protection applies in all situations, including emergencies,
unless the head of mission grants specific authorization. The receiving state is ultimately responsible for any
damages, though exceptions exist in cases where the mission violates local laws or exceeds its diplomatic
status.

PROPERTY AND COMMUNICATIONS INVIOLABILTY

Conditions:

Diplomatic missions enjoy inviolability of their property, archives, and documents. This comprehensive
protection extends to all mission-related assets, even those located off-site. Furthermore, no coercive
measures can be imposed on mission property. Additionally, missions have the freedom and inviolability of
communications. This includes the protection of the diplomatic bag and its courier. This principle
encompasses all communication methods, such as encrypted messages and radio stations, ensuring secure
and unhindered diplomatic correspondence.

Diplomatic Symbols and Movement

- Symbols: diplomatic missions have the right to display their national flag and coat of arms on their
premises and vehicles.
- Movement: diplomats enjoy freedom of movement within the accredited state, though some areas
may be restricted for security reasons, potentially requiring travel authorization.
- Customs: diplomatic missions are expected to respect local customs and practices regarding the
display of national symbols.

This right extends to seals and other national symbols. While missions have the right to display these
symbols, they often respect local customs, which can lead to varied practices. For example, some countries
may have specific rules about the size or placement of flags.

Tax and Customs Privileges

- Tax Exemptions: diplomatic missions are exempt from most national taxes, but may still be required to
pay for specific services.
- VAT Exception: value Added Tax may still apply to certain purchases.
- Customs Privileges: missions enjoy duty-free entry for official items.
- Handling Fees: storage or processing fees may apply to imported goods.

Diplomatic missions enjoy significant tax and customs privileges. They are exempt from most national taxes,
except for specific service payments. Customs privileges allow duty-free entry of objects for official mission
use, though storage or handling fees may apply. These privileges extend to the residence of the head of
mission, facilitating diplomatic operations.

Consular Agents and Functions

 1. Protection: safeguarding the interests of the sending state and its nationals.
2. Administration: performing administrative and notarial functions.
3. Legal Assistance: collaborating with courts of justice.
4. Maritime Affairs: Handling navigation and trade-related matters.

Consular agents act as official representatives in specific cities, dedicated to safeguarding the interests of
their state and its citizens. Their functions, governed by bilateral treaties and the 1963 Vienna Convention,
include protecting nationals, providing information to the state, and performing administrative, notarial, and
legal assistance tasks. They also handle matters related to civil status, inheritance, maritime navigation, and
trade.

Permanent Missions to International Organizations

- Key Component of International Cooperation: permanent missions represent a modern development in

diplomatic relations, established to facilitate engagement with international organizations and ensure
states' voices are heard.
- Facilitating Engagement: the establishment of a permanent mission is typically at the discretion of
member states, subject to the rules and procedures of the specific international organization.
- Representing States: these missions represent their states within the organization, act as liaisons
between their governments and the international body, and engage in negotiations on behalf of their
states.
- Disseminating Information: permanent missions also disseminate information about their states and
their positions, and protect their states' interests within the organization.
- Privileged Status: permanent missions enjoy a privileged status, recognized under international law,
and granted by the host stat.

Triangular Relationship in Permanent Missions

- Complex Interactions: involves organization, sending state, and host state.

- Legal Framework: Governed by 1975 Vienna Convention (not in force).
- Diplomatic Relations: Not hindered by lack of bilateral relations.

Permanent missions to international organizations involve a three-way relationship between the organization,
the sending state, and the host state. This intricate dynamic is outlined in the 1975 Vienna Convention,
though it is not currently in force. Importantly, the absence of bilateral diplomatic relations between the
sending and host states does not affect the mission's status or permanence, emphasizing the distinct nature
of these diplomatic arrangement.

Privileges and Immunities of Permanent Missions

- Facilities: the host state provides facilities for mission functions and accommodation.
- Immunities: missions enjoy protection from coercion and are exempt from taxes.
- Inviolability: archives, documents, and communications are protected.
- Personal Privileges: mission staff have freedom of movement and jurisdictional immunity.

Permanent missions to international organizations enjoy a range of privileges and immunities to ensure their
effective operation. The host state provides necessary facilities and accommodation. Missions are protected
from coercion and have tax exemptions. Their archives, documents, and communications are inviolable.
Mission staff benefit from freedom of movement and immunity from civil and administrative jurisdiction,
allowing them to carry out their diplomatic duties without undue interference.

MIRAR A VER SI FALTA ALGO MÁS

UNIT 7.1:

Territorial Sovereignty and International Law

Territorial sovereignty is a fundamental concept in International Law that defines a State's authority over its
territory. This principle encompasses not only the land mass, but also the associated maritime and airspaces.
Understanding territorial sovereignty is essential to comprehending the relationships between States and
how state competences are exercised in different geographical areas. This document will delve into the
various aspects of territorial sovereignty, from its basic characteristics to the complex regulations of
international maritime and airspaces. We will explore how this concept is applied in practice, including
concrete examples and the controversies that arise in the present day.

Characteristics of Territorial Sovereignty

 1. Plenitud: the State exercises its legislative, executive and judicial functions without interference, but
with limits such as respect for human rights.
2. Exclusivity: the State has the exclusive power to govern within its territory.
3. Inviolability: International Law protects the territorial sovereignty of States, preventing the
interference of other subjects in their internal affairs.

Concept of Territory

 Terrestrial Territory: includes the land mass and inland waters, such as rivers, lakes and lagoons.
 Maritime Spaces: comprises internal waters, territorial sea and, in the case of archipelagic States,
archipelagic waters.
 Soil and Sub soil: extends beneath the terrestrial territory and the corresponding maritime spaces.
 Airspace: covers the airspace superjacent to the terrestrial territory and maritime spaces.

Acquisition of Territorial Sovereignty: Original Modes

1. Terra Nullius: traditionally applied to territories without state jurisdiction, it required the intention to
occupy and effective control. It is now considered obsolete. Example: the colonisation of Australia by
the United Kingdom in the 19th century.
2. Accession: occurs when new lands are joined to existing ones, due to natural or artificial causes.
Example: part of the land tongue that joins the Peñón de Vélez de la Gomera with Morocco. Also the
formation of volcanic islands in the sea.

Acquisition of Territorial Sovereignty: Derivative Modes

1. Cession by Conventional Title: transfer of territory through an international agreement. Examples: the
cession of Alaska from Russia to the United States, or the cession of the Caroline Islands from Spain to
Germany.
2. Conquest (Obsolete): transfer of territory after an armed conflict. It required the end of hostilities,
effective occupation and the intention to possess. It is not accepted in current International Law.
3. Acquisitive Prescription: a State may lose rights over a territory if it remains inactive while another
State occupies it. This argument was used by Great Britain in the case of Gibraltar. However,
acquisitive prescription, based on prolonged possession and inactivity of the original State, is
considered a controversial legal argument and difficult to apply in practice.

Modifications to Territorial Competence

Use Concessions

- Example: the concession of a strip of land for the construction of the Panama Canal to the United
States in 1903. Another example is the concession of land for the construction of foreign military
bases, such as the Guantanamo naval base in Cuba.
- Protectorates: a proscribed legal figure that implied the international representation of a
nonautonomous territory. Examples of historical protectorates: Tunisia under France, Egypt under the
United Kingdom, or the Philippine Islands under the United States.
- Condominium: shared sovereignty between two or more States. Example: the island of Pheasants,
shared between Spain and France. Other examples of condominium: the island of Andros, shared
between Greece and Turkey, or the free zone of the city of Ceuta, shared between Spain and Morocco.

International Administration and Military Bases (no muy importante)

- International Administration: territories under the temporary administration of an international

organization. A recent example is the case of Kosovo.
- Foreign Military Bases: Foreign military facilities in the territory of another country, with the
authorisation of the local government. For example, the US bases in Spain since 1953.

Borders and their Delimiting Criteria (muy importante)

- Natural Borders: based on geographical features such as rivers or mountain ranges. On navigable
rivers, the border is defined by the navigation channel.
- Technical Criteria: a straight line is drawn between two specific geographical points. Common in
desert areas and Africa.
- Pre - existing Limits: borders are re-established after the separation of States that were previously
united.
- Uti Possidetis Iuris: applied in decolonization processes, where borders coincide with previous
administrative limits
The Law of the Sea: Origin and Evolution (muy importante también)

- 16 th Century: The first principles of adjacency and freedom of navigation are established (se empieza
a regular the law of the sea)
- 1945: New forms of exploitation of the sea drive changes in international regulation (después de la 2º
Guerra mundial)
- 1958: The First Conference on the Law of the Sea codifies existing customary norms.
- 1960: The Second Conference on the Law of the Sea fails to reach a final agreement but lays the
groundwork for the Third Conference.
- 1982: The Third Conference on the Law of the Sea, held in Montego Bay, culminates in a new
comprehensive regulation (united nations conference of the law of the sea)

Baseline in the Law of the Sea (muy importante para el resto) -> es la línea que separa, puede ser dos:

- Low- Water Line: It is generally used to delimit the territorial sea and is based on the coastline at low
tide. An example of this is the North Sea coast, where the low-water line is used to delimit the
territorial waters of the coastal countries (línea que separa el agua interior de la exterior)
- Straight Base line: it applies in exceptional cases, such as coasts with deep indentations or extensive
bays, to connect natural points on the coast. An example of this is the straight baseline used to
delimit the territorial sea of San Francisco Bay (cuando la costa está muy dentada en vez de seguir la
forma natural de la costa se hace una línea recta)

Inland Waters

- Definition: inland waters are located within the baseline of the territorial sea, excluding archipelagic
waters.
- Special Cases: examples of inland waters include atolls, islands surrounded by reefs, coasts with
indentations, river mouths and bays.
- Legal Regime: the legal regime of inland waters is regulated by national laws, establishing different
types of port of call for foreign vessels.

Territorial Sea

Definition

A strip of sea adjacent to the coast, up to 12 miles from the baseline. The coastal state exercises sovereignty
over the territorial sea, including the water column, seabed, subsoil and airspace. This sovereignty covers
natural resources and activities carried out in the area, such as fishing, navigation and exploitation of mineral
resources. The baseline is used as a reference point to calculate the width of the territorial sea and is
generally defined as the low-water line.

Sovereignty

The coastal state has the right to exploit natural resources, construct facilities, control maritime traffic and
enforce laws. However, sovereignty is not absolute. International law recognises the right of innocent
passage for foreign vessels, that is, the right to navigate without interference from the coastal state, provided
their passage is innocent, i.e. does not threaten the peace, order or security of the coastal state. The coastal
state's sovereignty over the territorial sea also extends to the airspace above that zone.

Limitations

The right of innocent passage is regulated by the United Nations Convention on the Law of the Sea
UNCLOS. The coastal state has the right to regulate navigation in its territorial sea, including the right to
require foreign vessels to identify themselves and request information about their route, destination and
cargo. Restrictions on the civil and criminal jurisdiction of the coastal state over the territorial sea are due to
the fact that the coastal state does not have the right to exercise its jurisdiction over foreign vessels in transit
through its territorial sea. The coastal state can only exercise its civil and criminal jurisdiction over foreign
vessels if they commit an offence in the territorial sea or if there is a justified reason to do so. However, the
coastal state has the right to exercise its jurisdiction over offences committed in the territorial sea, even if
they are committed by foreign nationals.

International Straits

- Definition: a strait is a natural and narrow passage that separates two land masses, connecting the
high seas or the Exclusive Economic Zone EEZ.
 - Regime of Innocent Passage: it applies in certain cases, such as the union of the high seas with the
territorial sea.
- Regime of Transit Passage: it applies to most international straits, such as the Strait of Gibraltar.
- Special Cases: some straits have their own regime, such as the Bosporus and the Dardanelles.

Contiguous Zone

- Definition: it extends up to 24 nautical miles from the baseline, adjacent to the territorial sea.
- Purpose: it allows the coastal State to monitor and prevent infringements of its laws and regulations.
- Areas of Control: it includes control of customs, fiscal, immigration and sanitary matters

Which are the rights for the contiguous zone: phising and the use of natural resources

Continental Shelf

1. 1958 Convention: it was defined as the submarine area up to a depth of 200 metres or where
exploitation of resources was possible.
2. III Conference (19 82): it extends up to 200 nautical miles from the baseline or to the outer edge of
the continental margin, whichever is
4. Rights of the Coastal State 3 more favourable. The coastal state has sovereignty to explore and
exploit the natural resources of the continental shelf.

Exclusive Economic Zone (EEZ)

- Definition: it extends up to 200 nautical miles from the baseline, under a specific legal framework.
- Coastal State Rights: the coastal state has the right to exploit resources, establish installations and
carry out scientific research.
- Rights of Third States: Third states have freedom of navigation, overflight, and to lay submarine
cables and pipelines.

Archipelagic States

- Definition: countries formed by one or more groups of islands, without continental territory.
- Delimitation: straight lines connecting the outermost points of the archipelago, with defined
boundaries.
- Archipelagic Waters: are similar to internal waters but must respect international navigation routes.

High Seas

- Freedom of Navigation: all ships must be registered in a State and have a genuine link with it.
- Freedom of Fishing: it must be carried out responsibly, including conservation measures and
international cooperation.
- Laying of Cables and Pipelines: right to install and maintain submarine cables and pipelines.
- Overflight: right of navigation and overflight for registered vessels and aircraft.

Seabed and Oceans

- Definition: refers to the ocean depths and seabed that are beyond the national jurisdiction of States.
- Delimitation: these spaces extend beyond the continental shelves of States, encompassing deep-
water areas.
- Authority over the Seabed: it is an international body created for the responsible management and
exploitation of seabed resources.
- Exploitation Model: exploitation is carried out in a "parallel" manner, with the participation of the
International Seabed Authority and private entities sponsored by States.

International Rivers

1. Vienna Convention 1815: the Vienna Convention of 1815 first defined the concept of an international
river as a navigable watercourse that separates or crosses different States.
2. Evolution of the Concept: over time, the definition of an international river has been expanded to
include not only the watercourse itself, but also the river basin that feeds it.
3. Current Regulation: currently, the regulation focuses on the management of the diverse uses of
international rivers, promoting cooperation between riparian States to ensure the sustainability of
these resources.

International Canals
 - Definition: an international canal is an artificial waterway that connects two open navigable spaces
and is subject to international regulation.
- Difference from Straits: unlike straits, which are natural passages, canals are artificial structures built
to facilitate navigation.
- Legal Regime: although they are under the jurisdiction of a State, international canals must guarantee
free use for international navigation.

Polar Spaces: The Arctic

- Continental Territory: this territory is under the sovereignty of the surrounding States.
- Natural Islands: the sovereignty of the natural islands is attributed to the nearest States, based on the
sector theory.
- Ice Islands: the legal status of these islands is unclear, which makes them a potential space for the
creation of research bases.
- Arctic Ocean: the Arctic Ocean is considered high seas.

Polar Spaces: Antarctica

1. Historical Claims: various countries made sovereignty claims over portions of the Antarctic territory.
2. Antarctic Treaty 1959: fostered peaceful use and international scientific collaboration.
3. Current Regime: prohibits military activities and promotes scientific research.

Airspace

- Chicago Convention 1944: establishes the legal framework for the international regulation of airspace.
- State Sovereignty: the State has the exclusive right to control and manage the airspace over its
territory.
- Five Freedoms of the Air: Key principles regulating international air traffic and competition between
airlines.

The Five Freedoms of the Air

- 1st Freedom: the right to fly over the territory of a foreign country without landing.
- 2nd Freedom: the right to make a technical stop in a foreign territory.
- 3rd Freedom: the right to disembark passengers, mail and cargo in a foreign country, originating from
the country of origin of the aircraft.
- 4 th Freedom: the right to embark passengers, mail and cargo in a foreign country, destined for the
country of origin of the aircraft.
- 5 th Freedom: the right to embark passengers, mail and cargo in a foreign country, destined for a third
country.

Outer Space

1. 1957: the space race begins with the launch of Sputnik 1.

2. 1967: the Outer Space Treaty is signed, establishing a legal framework for space activities.
3. 1979: the Agreement Governing the Activities of States on the Moon and Other Celestial Bodies enters
into force, regulating the exploration and use of these bodies.

Fundamental Principles of Outer Space

1. Fre e d om of Exploration: outer space is free for exploration and use by all States.
2. Equality and Peaceful Purposes: the exploration and use of outer space shall be carried out for
peaceful purposes and on a basis of equality.
3. Non- Appropriation: no State may claim sovereignty over outer space.
4. State Responsibility: each State is responsible for damage caused by objects launched into space.

International Space Agreements

- Registration of Space Objects: establishes the mandatory registration of objects launched into space
1975 Convention).
- Rescue of Astronauts: regulates the rescue and return of astronauts and space objects 1968
Agreement).
- Liability for Damage: establishes international liability for damage caused by space objects 1972
Convention).

The Moon and Other Celestial Bodies

 - 1979 Agreement: regulates the activities of States on the Moon and other celestial bodies.
- Prohibition of Appropriation: no State may appropriate the Moon.
- Future Exploitation: an agreement is envisaged for the exploitation of lunar resources under an
international regime.

Future Challenges in International Space Law

- Space Tourism: establish a legal framework for regulating private space travel.
- Space Mining: develop a legal framework for the exploitation of resources on asteroids and planets,
ensuring responsible use.
- Space Debris: implement measures to manage and reduce the amount of orbital waste.
- Planetary Colonisation: define the legal aspects of human settlements on other planets, including
rights and responsibilities.
- International Cooperation: strengthen cooperation between states to address the challenges of outer
space in a joint manner.
- Space Security: establish norms and protocols to ensure the safety of space operations, including the
prevention of conflicts.
- Space Governance: develop governance mechanisms for outer space, including decision-making and
dispute resolution.

UNIT 7.2: Jurisdiction and Competence in International Law

International Law defines the fundamental rules governing the jurisdiction and competence of States in
different areas. This system ranges from jurisdiction over ships and aircraft to state competences over their
population, including crucial concepts such as the right of asylum. Throughout this analysis, we will explore in
detail the principles guiding these areas, reviewing practical cases and international conventions that have
defined the current legal landscape.

Jurisdiction over State Vessels (most important)

- Jurisdiction in Territorial Waters: in its own territorial waters, the flag state's jurisdiction applies to all
matters occurring on board the vessel.
- Immunity on the High Seas: On the high seas, State vessels enjoy immunity from the jurisdiction of
any other State.
- International Agreements: in foreign territorial waters, jurisdiction is governed by specific international
agreements.

Jurisdiction over State vessels is a crucial issue in International Law, as it defines the limits of each State's
authority over vessels belonging to their armed forces. These vessels, which bear distinctive markings and
are under official military command, enjoy a special status that determines the application of the law in
different scenarios. For example, if a crime is committed on board a US warship while it is in US territorial
waters, US jurisdiction would apply.

This immunity is based on the principle of sovereignty, which recognises that State vessels are an extension
of the territory of the State to which they belong and are therefore subject only to its jurisdiction. For
example, if a Russian warship is in UK territorial waters and a crime occurs on board, UK laws could apply if
the crime is considered a universal crime or if it affects the security of the UK.

Violation of jurisdiction over State vessels can have serious consequences. If a State violates the immunity of
a State vessel on the high seas, the affected State may consider the action a hostile act and take retaliatory
measures. If a State violates the jurisdiction of another State in its territorial waters, it could face diplomatic
sanctions or legal action by the affected State. The application of jurisdiction over State vessels requires a
balance between the sovereignty of States and the need to ensure security and order at sea.

Jurisdiction over Merchant Ships

- In a Foreign Port: the port state has the competence to sanction infringements that disturb public
order or threaten its security. Internal infringements of the ship are the responsibility of the captain.
- In Innocent Passage: during innocent passage through the territorial sea, the criminal jurisdiction of
the flag state prevails. However, the Third Conference on the Law of the Sea establishes specific
exceptions.
- Civil Jurisdiction: the coastal state should not stop or divert foreign ships to exercise civil jurisdiction,
except for liabilities arising from their passage or stay.

Jurisdiction over Military Aircraft

 - Exclusive Jurisdiction: the competent jurisdiction to hear offences committed on board is always that
of the aircraft's registration, regardless of its location.
- Immunity from Jurisdiction: military aircraft enjoy immunity from jurisdiction in foreign territory, similar
to warships.
- International Agreements: there are specific agreements that regulate the presence and activities of
military aircraft in foreign territory.

Jurisdiction over Civil Aircraft

- Tokyo Convention: the 1963 Tokyo Convention regulates offences committed on board civil aircraft.
The jurisdiction of the registration is the primary one.
- Scope of Application: it applies to unlawful acts and acts that endanger the safety of the aircraft,
persons or property on board.
- Concurrent Jurisdiction: in addition to the registration jurisdiction, other States may have competence
according to their national laws in specific cases.
- Powers of the Commander: the commander has the authority to take coercive measures and
disembark the alleged offender in any signatory country.