Part 1 The subjects of international law, Ch.3 Position of the states in international law, Independence and Territorial and Personal Authority
Sir Robert Jennings qc, Sir Arthur Watts kcmg qc
Edited By: Robert Jennings, Arthur Watts KCMG QC
- States, independence — Jurisdiction of states, territoriality principle — Sovereignty — Armed conflict, international — Protected persons and property — Terrorism — Geneva Conventions 1949 — Combatants, unlawful — Propaganda for war — Abuse of rights
Garner, American Political Science Review (February 1925), pp 1–24 Pella, Hag R, 33 (1930), iii, pp 677–830 Delbez, RG, 37 (1930), pp 461–75 Preuss, ibid, 40 (1933), pp 606–45 DeLupis, International Law and the Independent State (2nd ed, 1987), pp 3–138.
Sovereignty has different aspects.1 Inasmuch as it excludes subjection to any other authority, and in particular the authority of another state, sovereignty is independence. It is external independence with regard to the liberty of action outside its borders. It is internal independence with regard to the liberty of action of a state inside its borders. As comprising the power of a state to exercise supreme authority over all persons and things within its territory, sovereignty involves territorial authority (dominium, territorial sovereignty).2 As comprising the power of a state to exercise supreme authority over its citizens at: home and abroad, it involves personal authority (imperium, political sovereignty).
Independence, and territorial and personal authority, are the three main aspects of the sovereignty of a state.
All states are under an international legal obligation not to commit any violation of the independence, or territorial or personal authority, of any other state. In consequence of its external independence a state can, unless restricted by customary law or by treaty,1 manage its international affairs according to discretion; thus, for example, it can enter into alliances and conclude other treaties, and send and receive diplomatic envoys. While independence is a quality of statehood in the nature of a right it may, in certain circumstances, become a duty, since a state may by treaty bind itself not to part with or impair its independence. Thus in Article 88 of the Treaty of St Germain 1919, Austria’s independence was declared to be inalienable and she undertook to abstain from any act which might directly or indirectly compromise her independence, in particular by participating in the affairs of another state; that undertaking was repeated and to some extent amplified in the Geneva Protocol of 1922. When a customs union between Austria and Germany was proposed the Permanent Court of International Justice was asked for an Advisory Opinion, and it held that the proposed References(p. 383) customs union would not be compatible with Austria‘s obligations to maintain its independence.2 Cyprus has similarly undertaken, in the Treaty of Guarantee concluded with Greece, Turkey and the United Kingdom in 1960, to maintain its independence and not to participate, in whole or in part, in any political or economic union with any state whatsoever.3
In consequence of its internal independence and territorial authority, a state can adopt any constitution it likes,4 arrange its administration in any way it References(p. 384) thinks fit, enact such laws as it pleases, organise its forces on land and sea, build and pull down military installations, adopt any commercial policy it likes, and so on — subject always, of course, to restrictions imposed by rules of customary international law or by treaties binding upon it. According to the maxim, quidquid est in territorio est etiam de territorio, all individuals and all property within the territory of a state are under its dominion and sway, and foreign individuals and property fall at once under the territorial authority of a state when they cross its frontier. Aliens residing in a state can therefore be compelled to pay rates and taxes, and to serve in the police under the same conditions as citizens for the purpose of maintaining order and safety, and even in certain circumstances to serve in its military forces.5 But aliens may be expelled, or not received at all. On the other hand, hospitality — or ‘territorial asylum’6 — may be granted to them, provided they abstain from making the hospitable territory the basis for attempts against a foreign state.7 And a state can through naturalisation adopt foreign nationals residing on its territory without the consent of the home state, provided the individuals themselves give their consent.8
The territorial authority of a state over everything within its territory includes sovereignty over the state’s natural resources, such as mineral deposits.9 There has been much controversy over the consequences flowing from that sovereignty, particularly as to the state’s entitlement, by virtue of that sovereignty, to expropriate the assets in its territory of foreign undertakings engaged, with its agreement, in the exploitation of those resources.10
In consequence of its personal authority, a state can treat its nationals according to discretion subject always to the requirements of international law and especially of human rights,11 and it retains its power even over such nationals as References(p. 385) emigrate without thereby losing their citizenship. A state may therefore require its citizens abroad to return home and fulfil their military service,12 may require them to pay rates and taxes, and can punish them on their return for crimes they have committed abroad.13
The duty of every state itself to abstain, and to prevent its agents and, in certain cases, nationals, from committing any violation1 of another state’s independence or territorial integrity or personal authority is correlative to the corresponding right possessed by other states. In the Lotus case the Permanent Court of International Justice stated that ‘the first and foremost restriction imposed by international law upon a State is that, failing the existence of a permissive rule to the contrary, it may not exercise its power in any form in the territory of another State’;2 and in the Corfu Channel case the International Court of Justice observed that ‘between independent States, respect for territorial sovereignty is an essential foundation of international relations’.3
However, not all acts performed by one state in the territory of another involve a violation of sovereignty. Thus no violation of the territorial state’s sovereignty is involved if another state buys a house there, or concludes a commercial transaction there. Such acts are unlikely to involve the exercise of a state’s sovereign authority or derogate from the sovereign authority of the territorial state. Similarly, even if a state does exercise its sovereign authority in another state, if that other state consents there will be no derogation from its sovereign authority and thus no violation of its territorial authority.4
It is not feasible to enumerate all such actions as might constitute a breach of a state’s duty not to violate another state’s independence or territorial or personal authority. But it is useful to give some illustrative examples.5 Thus, in the absence References(p. 386) of treaty provisions to the contrary, a state is not allowed to intervene in the management of the internal or international affairs of other states, or to prevent them from doing or to compel them to do certain acts in their domestic relations or international intercourse. A state is not allowed to send its troops,6 its warships,7 or its police forces into or through foreign territory, or its aircraft over it,8 or to carry out official investigations on foreign territory9 or to let its agents conduct clandestine operations there,10 or to exercise an act of administration or jurisdiction on foreign territory, without permission.11 Thus it will References(p. 387) normally be a violation of the territorial sovereignty of a state for the police or military forces of another state to pursue criminals or rebel forces who flee over the frontier of a neighbouring state; and it is nonetheless a violation if the police or military forces are acting on the basis of ‘hot pursuit’ analogous to that accepted in maritime matters,12 for in that context the right of ‘hot pursuit’ involves no violation of territorial sovereignty since it ceases at the outer limit of another state’s territorial sea. The violation of the territorial sovereignty of the neighbouring state into which the pursuers enter may occasionally be justified on grounds of self-defence or by the failure or inability of the invaded state to fulfil the duties of control over its territory which are the corollary of its rights of territorial sovereignty. Such pursuit on land is, however, a form of self-help which is now mostly unlawful.13 It is also a breach of international law for a state References(p. 388) without permission to send its agents into the territory of another state to apprehend persons accused of having committed a crime.14 Where this has happened, the offending state should — and often does — hand over the person in question to the state in whose territory he was apprehended.15 But states do not References(p. 389) always do this, and the fugitive may be brought to trial in the courts of the state whose agents have seized him. The question then arises whether those courts should decline jurisdiction because of the violation of international law involved in his seizure. National courts have generally not declined to exercise jurisdiction over an accused who has been brought within their power by means of a seizure in violation of international law.16
References(p. 390) Having regard to the personal authority of other states, a state is not allowed to naturalise aliens residing on its territory without their consent,17 nor to prevent them from returning home for the purpose of fulfilling military service.
Independence is not unlimited liberty for a state to do what it likes. The fact that a state is a member of the international community restricts its liberty of action, because of many rules of customary international law binding upon it and because of the many treaty obligations1 which affect it in the management of its international affairs. Nevertheless, international law governs relations between states which are sovereign, and References(p. 391) therefore limitations upon their independence cannot be presumed.2 Independence is a question of degree, and it is therefore also a question of degree whether the independence of a state is destroyed or not by certain restrictions.3 Thus it used generally to be held that states under protectorate are so much restricted that they are not fully independent, but part sovereign.4 On the other hand, the restrictions connected with the neutralisation of states do not destroy their independence, although they are in various ways hampered in their liberty of action.5
Like independence, territorial supremacy does not give an unlimited liberty of action.1 Thus, every state has a right to demand that its merchantmen may pass through the territorial sea of other stares.2 Foreign Heads of State and envoys, foreign warships, and foreign armed forces must be granted a certain degree of inviolability and exemption from local jurisdiction. Through the right of protection over citizens abroad, which is held by every state according to customary international law, a state cannot treat foreign citizens passing through or residing on its territory arbitrarily according to discretion as it might treat its own nationals.3 A state, in spite of its territorial authority, may not alter the natural conditions of its own territory to the disadvantage of the natural conditions of the territory of a neighbouring state — for instance, to stop or to divert or pollute the flow of a river which runs from its own into neighbouring territory.4 A state is bound to prevent such use of its territory as, having regard to the circumstances, is unduly injurious to the inhabitants of the neighbouring state, eg as the result of working of factories emitting deleterious fumes.5 With the concern shown nowadays for the protection References(p. 392) of the environment, states are increasingly subject to constraints upon their freedom of action in their own territory to engage in or permit activities, not in themselves unlawful, which pollute the environment, particularly if damage beyond their frontiers may thereby be caused to other states or their nationals, or to areas (such as the high seas) which are available for use by all states.6 The matter is now frequently regulated by treaty, either bilaterally between neighbouring states experiencing problems of this kind, or multilaterally.
Finally, a state is not allowed to permit on its territory the preparation of a hostile expedition7 against another country. In the Corfu Channel case the International Court of Justice held that in view of ‘every State’s obligation not to allow knowingly its territory to be used for acts contrary to the rights of other States’,8 the Albanian authorities were under an obligation to notify or give warning of the presence of a minefield in Albanian waters. As the Court found that in the circumstances of the case the Albanian authorities must be presumed to have had knowledge of the minefield, Albania was bound to pay compensation for the damage caused by the explosion of the mines. Where the act injurious to one state has been committed on the territory of another by an organ of a third state present there with the consent of the territorial state, the state committing the act will be responsible for the act itself, while the territorial state, if not a participant in the act itself, may be held responsible for allowing its territory to be used for the commission of the act.9
Apart from these restrictions, which have their origin in customary international law, there are many obligations which a state can assume through treaties, without thereby losing its internal independence and territorial supremacy10 — References(p. 393) even including restrictions on the size of its armed forces.11 There is probably no state which is not in one point or another restricted in its territorial supremacy by treaties with other states.
The duty of a state to prevent the commission within its territory of acts injurious to foreign states does not imply an obligation to suppress all such conduct on the part of private persons as is inimical to or critical of the regime or policy of a foreign state. Thus a state has in general no duty to suppress criticism of, or propaganda directed against, other states or governments on the part of private persons.1
The situation is different where the conduct of private persons2 goes beyond the limits of criticism or propaganda and involves subversive activities directed towards the violent overthrow of the regime of another state. A state’s obligations not itself to engage in such activities extend also to the encouragement and toleration of them on the part of others within its territory.3 Accordingly a state must take special care when it allows political refugees4 from another state to take up residence in its territory, particularly in the case of a political figure who has References(p. 394) been removed from power in that other state, or been expelled or fled from it before attaining power. Although ostensibly a private person, there is always a possibility that he may use his exile as a base from which to engage in political activities in his home country, perhaps involving plans for the overthrow of the regime there so as to facilitate his return. Many states, when allowing such persons to take up residence, accordingly make it a condition that they refrain from political activity affecting their country of origin.5
While the dividing line between criticism and subversion may not always be easy to draw, there is little room for doubt where the subversive activities of private persons in a state take the form of organising on its territory armed hostile expeditions against another state. A state is bound not to allow its territory to be used for such hostile expeditions, and must suppress and prevent them.6 Some states have legislation which is wide enough to apply to some aspects of the preparation of hostile expeditions and the recruitment of persons to serve in armed expeditions abroad.7 These matters assumed some prominence References(p. 395) in the 1960s and 1970s as a result of the recruitment by contending elements in certain African states of foreign individuals (often nationals of European states or the United States of America) to assist their armed forces in their internal struggle for power in the state. Many states regarded such mercenaries, particularly where their recruitment was thought to be with the connivance or encouragement of some other states, as representing external interference, if not intervention,8 in the affairs of the state in which they were operating, to the prejudice of the principle of self-determination. As a result of these events the treatment of mercenaries, in certain limited circumstances, as criminals9 received a measure of international justification. Thus in General Assembly Resolution 3103 (XXVIII) (1973) it was declared that ‘the use of mercenaries by colonial and racist regimes against the national liberation movements struggling for their freedom and independence from the yoke of colonialism and alien domination is considered to be a criminal act and the mercenaries should accordingly be punished as criminals’.10 By Article 47 of the 1977 Additional Protocol I to the References(p. 396) 1949 Geneva Conventions relating to the Victims of International Armed Conflicts, a mercenary (as strictly defined in the Article) does not have the right to be a combatant or a prisoner of war.11
In 1989 the General Assembly adopted the International Convention against the Recruitment, Use, Financing and Training of Mercenaries,12 based on the work of an ad hoc committee established in 1980.13 Articles 2, 3 and 4 lay down that any person who recruits, uses, finances or trains mercenaries, or who, being a mercenary,14 participates directly in hostilities or in a concerted act of violence, commits an offence for the purposes of the Convention, as does a person attempting to commit such an offence and an accomplice. States parties must not recruit, use, finance or train mercenaries,15 and must prohibit and make punishable such activities (Article 5). The Convention also imposes various obligations of cooperation upon the states parties, and requires them to take the necessary steps to assert jurisdiction over offenders (Articles 9 and 12) and provide for their extradition (Article 15).
‘The organization, or the encouragement of the organization, by the authorities of a State, of armed bands within its territory or any other territory for incursions into the territory of another State, or the toleration of the organization of such bands in its own territory, or the toleration of the use by such armed bands of its territory as a base of operations or as a point of departure for incursions into the territory of another State, as well as direct participation in or support of such incursions.’
In its Declaration of Principles of International Law concerning Friendly Relations and Cooperation among States19 the General Assembly asserted that ‘Every State has the duty to refrain from organising or encouraging the organisation of irregular forces or armed bands, including mercenaries, for incursion into the territory of another State’. As to subversive activities by the state itself against another state, Article 4 of the International Law Commission’s 1949 draft References(p. 398) Declaration on the Rights and Duties of States,20 stated that ‘Every State has the duty to refrain from fomenting civil strife in the territory of another State, and to prevent the organization in its territory of activities calculated to foment such civil strife’ (Article 4); and in Article 2 of its draft Code of Offences against the Peace and Security of Mankind21 it included as an offence ‘The undertaking or encouragement by the authorities of a State of activities calculated to foment civil strife in another State, or the toleration by the authorities of a State of organized activities calculated to foment civil strife in another State’. In GA Res 2131 (XX) (1965) the UN General Assembly declared that ‘no State shall organize, assist, foment, finance, incite or tolerate subversive, terrorist or armed activities directed towards the violent overthrow of the regime of another State or interfere in civil strife in another State’. This was repeated verbatim in the Declaration on Principles of International Law concerning Friendly Relations and Cooperation among States,22 which also stated that ‘Every State has the duty to refrain from organizing, instigating, assisting or participating in acts of civil strife or terrorist acts in another State or acquiescing in organised activities within its territory directed towards the commission of such acts, when the acts referred to in the present paragraph involve a threat or use of force’. The sending by or on behalf of a state of armed bands, groups, irregulars or mercenaries, which carry out acts of armed force against another state may in certain circumstances constitute aggression as defined by the General Assembly.23 For that reason the International Law Commission, in its renewed consideration of the draft Code of Crimes against the Peace and Security of Mankind, agreed to regard these acts as forming part of the crime of aggression rather than as a separate crime.24
One of the central issues before the International Court of Justice in the Military and Paramilitary Activities case was the legality or otherwise of action by the United States of America in rendering logistic, financial and other assistance to the so-called Contra forces which were trying to overthrow the Government References(p. 399) of Nicaragua. The Court found that some, although not all, of this assistance involved acts in breach of the United States’ obligations under customary international law in respect of the prohibition against the threat or use of force, and of the principle of non-intervention.25 Neighbouring states have sometimes concluded treaties containing provisions aimed at prohibiting use of the territory of one of them as a base for armed hostile or terrorist incursions into the territory of the other.26 Such provisions reinforce the prevailing rules of customary international law in this matter.
Despite this relative clarity of the law, there have been numerous incidents in which hostile expeditions have been organised in one state against another,27 or in which a state has been more directly involved in or assisted subversive activities against another.28 Thus during the Arab-Israeli fighting since 1948 anti-Israeli groups operating from bases in neighbouring Arab states have often from there organised and launched hostile expeditions into Israel;29 also in 1948, the General Assembly of the United Nations considered the grant by Yugoslavia, Albania and Bulgaria of assistance and facilities for armed rebel groups operating against Greece;30 in 1952 China was condemned by the General Assembly for giving assistance to hostile forces in Burma;31 in 1954 insurgent forces crossed the frontier into Guatemala from Honduras;32 in 1955 an expeditionary force organised in Nicaragua attacked Costa Rica;33 in 1958 Lebanon alleged that the United Arab Republic was organising and assisting subversive activities against Lebanon;34 in 1961 Cuban exiles in the United States of America References(p. 400) organised an armed expedition which landed at the Bay of Pigs in Cuba;35 some years later United States agencies engaged in covert operations in Chile against the regime of President Allende;36 during the Vietnam conflict United States bases in Laos were used as a starting point for bombing and reconnaissance missions against North Vietnam,37 while Cambodian and Laotian territory was used by North Vietnamese forces as bases for attacks on the Republic of Vietnam;38 throughout the 1970s many African states have allowed their territories to be used, by armed rebel or insurgent groups engaged in ‘wars of liberation’ against colonial regimes in neighbouring countries;39 in 1978–79 Ugandan exiles in Tanzania launched attacks (with the support of Tanzanian forces) into Uganda to bring down the regime of President Amin;40 and for several years from 1981 onwards the United States gave assistance in various forms to rebel forces in Nicaragua.41
In addition to a state’s obligations in the matter of subversive activities against other states, a state also has a duty to do all it can to prevent and suppress attempts to commit common crimes against life or property, where such crimes are directed against other states;42 a fortiori a state must not itself engage in or References(p. 401) support international terrorist acts. The undertaking or encouragement by the authorities of a state of terrorist activities in another state, or the toleration by the authorities of a state of organised activities calculated to carry out terrorist acts in another state was included by the International Law Commission in its draft Code of Offences against the Peace and Security of Mankind.43 In the Declaration on the Strengthening of International Security44 and the Declaration on Principles of International Law concerning Friendly Relations and Cooperation among States45 the General Assembly reaffirmed the duty of states to refrain from organising, assisting, instigating or participating in terrorist acts in another state. Progress towards general and more binding international anti-terrorist measures has however been hindered by difficulties over, in particular, the definition of ‘terrorism’, which must, in the eyes of some but not all states, take account of the purposes for which a prima facie terrorist act is committed. This has proved controversial where, although terrorist acts may be privately undertaken and motivated, they are more often undertaken by organised groups (and often by or with the support of states themselves) acting in pursuit of international political goals, such as the attainment of a territory’s independence or protest against a particular state’s actions.
Nevertheless, after an increase in acts of terrorism since the 1960s, involving in particular the kidnapping and sometimes killing of diplomats and others, and the hijacking and sabotage of aircraft,46 specific international action was taken in an attempt to put a stop to such terrorist activities. A Convention on Offences and Certain Other Acts Committed on Board Aircraft was concluded in Tokyo in References(p. 402) 1963,47 followed by the Convention for the Suppression of Unlawful Seizure of Aircraft signed at the Hague in 1970,48 and the Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation, signed at Montreal in 1971.49 Also in that year the Organisation of American States concluded a Convention to Prevent and Punish Acts of Terrorism,50 and within the framework of the United Nations a Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons, including Diplomatic Agents, was opened for signature in 1973.51 A European Convention on the Suppression of Terrorism was opened for signature in 1977;52 it provides principally for certain terrorist acts to be extraditable as between contracting parties without being regarded as political offences,53 and for parties, if they do not extradite a person suspected of committing a terrorist offence, to submit the case to their competent authorities for the purpose of prosecution.54 The prevention of international terrorism has been considered at successive sessions of the General Assembly of the United Nations which set up an ad hoc Committee on International Terrorism in 1972.55 In 1979 the Assembly adopted a Convention against the Taking of Hostages.56 Two further multilateral agreements were References(p. 403) concluded in 1988: the Montreal Protocol for the Suppression of Unlawful Acts of Violence at Airports Serving Civil Aviation,57 and the Rome Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation (together with a Protocol for the Suppression of Unlawful Acts against the Safety of Fixed Platforms Located on the Continental Shelf).58 In addition to such international measures some states have enacted legislation to provide specific measures to counter terrorism, such as the Prevention of Terrorism (Temporary Provisions) Act 1974 and the Suppression of Terrorism Act 1978 enacted by the United Kingdom,59 and the Act to Combat International Terrorism 1984 enacted in the United States of America.60
The principles of independence and non-intervention enjoin upon governments and state officials the duty to refrain not only from active interference but from propaganda directed against another state, as by inciting the overthrow of the government,61 or more generally, propaganda encouraging threats to breaches of international peace or acts of aggression. Such propaganda involves the state concerned in a breach of its international obligations.62 Numerous References(p. 404) attempts have been made to prohibit such propaganda, but while states generally have been willing to subscribe to treaties and other international instruments on the subject many have been reluctant to refrain from hostile propaganda altogether.63 In the Convention concerning the Use of Broadcasting in the Cause of Peace 193664 the parties undertook to prohibit the broadcasting within their territories of any transmission calculated by reason of its inaccuracy or otherwise to disturb international understanding or to incite the population of any territory to acts incompatible with the internal order or the security of a territory of another party. In 1948 a United Nations Conference on Freedom of Information and the Movement Against International Propaganda was held,65 as a result of which a Convention on the Right of Correction was adopted in 1952.66 From its References(p. 405) early days the General Assembly of the United Nations has passed resolutions condemning hostile propaganda67 as well as, more generally, propaganda against peace or for wars of aggression.68
The condemnation of such propaganda has tended to be accompanied by measures to encourage the freedom to provide and receive information, this being regarded as necessary for the proper development of international understanding and as an important factor contributing to the maintenance of international peace. It has also been regarded as involving a fundamental human right.69 A draft Convention on Freedom of Information was prepared at the 1948 United Nations Conference70 but, although given further study subsequently, it has not yet been adopted. A draft Declaration on Freedom of Information was approved by the Economic and Social Council in 1960,71 but it too has not yet been adopted by the General Assembly.72 Freer access to and dissemination of information References(p. 406) was also provided for in the Final Act of the Helsinki Conference on Security and Cooperation in Europe 1975.73 It is in the context of the freedom to provide and receive information that states have sometimes felt it necessary to protest at actions by another state designed to prevent the reception in its territory of broadcasts originating from the territory of the protesting state.74
Personal authority does not give unlimited liberty of action. Although the citizens of a state remain to a considerable extent under its power when abroad, the exercise of this power is restricted by the state’s duty to respect the territorial supremacy of the foreign state on whose territory those citizens reside. A state must refrain from performing acts which, although they are according to its personal supremacy within its competence, would violate the territorial supremacy of this foreign state. A state must not perform acts of sovereignty in the territory of another state.1 Thus, for instance, a state may not use force upon its nationals abroad to compel them to fulfil their military service obligations in their home state (even though it is within its rights in imposing such obligations upon them);2 and a state is prevented from requiring such acts from its citizens abroad as are forbidden to them by the municipal law of the land in which they reside, and from ordering them not to commit such acts as they are bound to commit according to the municipal law of the land in which they reside.3
But a state may also by treaty obligation be in some respects restricted in its liberty of action with regard to its citizens.4 Thus insofar as the principle of References(p. 407) humanitarian intervention5 is tending to become a rule of international law and specific legal obligations in the field of human rights and fundamental freedoms are becoming established,6 states are bound to respect the fundamental human rights of their own citizens.
A further restraint on the freedom of action which a state in general enjoys by virtue of its independence, and territorial and personal supremacy, is to be found in the prohibition of the abuse by a state of a right enjoyed by it by virtue of international law.1 Such an abuse of rights occurs when a state avails itself of its right in an arbitrary manner in such a way as to inflict upon another state an injury which cannot be justified by a legitimate consideration of its own advantage. Thus international tribunals have held that a state may become responsible for an arbitrary expulsion of aliens.2 The Permanent Court of International Justice expressed the view that, in certain circumstances, a state, while technically acting within the law, may nevertheless incur liability by abusing its rights — although, as the Court said, such an abuse cannot be presumed.3 Individual judges of the International Court of Justice have sometimes References(p. 408) referred to it;4 possibly it is implied in the frequent judicial affirmation of the obligation of states to act in good faith.5 The conferment and deprivation of nationality is a right which international law recognises as being within the exclusive competence of states; but it is a right the abuse of which may be a ground for an international claim.6 The duty of the state not to interfere with the flow of a river to the detriment of other riparian states has its source in the same principle.7 The maxim, sic utere tuo ut alienum non laedas, is applicable to relations of states no less than to those of individuals; it underlies a substantial part of the law of tort in several systems of law;8 it is one of those general principles of law recognised by civilised states which the International Court is bound to apply by virtue of Article 38 of its Statute.9 However, the extent of the application of the still controversial10 doctrine of the prohibition of abuse of rights is not at all certain.
Much of the purpose of a doctrine of abuse of rights is directed to securing a balance between the right of the state to do freely all those things it is entitled to do, and the right of other states to enjoy a similar freedom of action without harmful interference originating outside their borders. The need for such a balance has been underlined by the rapid growth of activities which could cause harm far outside the area where they take place, and by the urgency of contemporary concern for the protection of the human environment. In the Trail Smelter Arbitration, which raised questions of state responsibility for acts of private persons on its territory, the tribunal supported the proposition that ‘a References(p. 409) State owes at all times a duty to protect other States against injurious acts by individuals from within its jurisdiction’;11 and in the Corfu Channel case, which by contrast raised questions of direct state responsibility, the International Court of Justice referred to ‘every State’s obligation not to allow knowingly its territory to be used for acts contrary to the rights of other States’.12 Such limited international judicial consideration of the issues involved, while affording sound guidance as to the underlying principles, is insufficient to regulate increasingly complex situations. In relation in particular to pollution of the environment13 of one state from sources in another state, international agreements have been concluded as a means of regulating the extent of state responsibility.14 The topic of ‘international liability for injurious consequences arising out of acts not prohibited by international law’ was placed in the work programme of the International Law Commission in 1974 at the request of the General Assembly of the United Nations.15 This has been seen as ‘an affirmation of a broad principle that States, even when undertaking acts that international law did not prohibit, had a duty to consider the interests of other States that might be affected’.16 This notion is broader than that of ‘abuse of rights’ since it omits the suggestion of excess inherent in the term ‘abuse’.
Early consideration of this topic by the Commission, as reflected in draft articles considered by it in 1988–90, covers activities within a state which create an appreciable risk of causing physical transboundary injury, and of which the state knew or had the means of knowing:17 while states are free to carry out or References(p. 410) permit activities in their territories, that freedom must, if such activities involve risk, be compatible with the protection of the rights flowing from the sovereignty of other states, which calls for cooperation between the states concerned to prevent or minimise the risk of transboundary injury, or its effects if injury has already occurred, and for reparation to be made for any appreciable injury suffered.18
Concern for the effects which a state’s acts may have outside its territory has increasingly extended beyond their specific effects on nearby states, to cover also acts which may affect all states through their impact on the world’s environment generally.1
(p. 411) This wider environmental concern sprang from growing awareness of the damage done to neighbouring states by various forms of pollution, particularly that brought about by increasingly intensive industrial activity and its associated phenomenon of ‘acid rain’.2 The development of nuclear power, with the attendant risks of radioactive pollution should the nuclear reactors be damaged, added an extra dimension to the problem; and special urgency and importance was added after the Chernobyl disaster of 1986,3 which caused serious and damaging References(p. 412) pollution of the land in several other countries as a result of increases in atmospheric radioactivity and consequential polluted precipitation over a wide area.
Multilateral treaties dealing with specific forms of pollution have been concluded covering such matters as pollution at sea4 (as by the spillage of oil,5 and the dumping at sea of noxious substances);6 pollution of maritime areas originating from land-based sources;7 pollution of rivers flowing through more than one state;8 transboundary airborne pollution;9 and damage-limiting action to be taken in the event of a nuclear accident.10 Where problems arise particularly between neighbouring states, they may regulate matters by bilateral arrangements.11 Increasing problems have been associated with the dumping, in a safe References(p. 413) manner, of dangerous waste materials which are an inevitable by-product of many industrial processes; nuclear waste material has posed particularly serious problems. Apart from steps taken to control dumping at sea,12 treaties have sometimes totally excluded the dumping of certain wastes in areas covered by them,13 or, like the Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal 1989,14 have prescribed procedures designed to minimise the associated risks.
Worldwide concern over environmental matters found expression in the convening, in Stockholm in 1972, of the United Nations Conference on the Human Environment. This Conference adopted a Declaration of Principles,15 and an Action Plan,16 which have provided the framework for subsequent international action. Following a recommendation of the Stockholm Conference, the United Nations General Assembly in 1972 established a United References(p. 414) Nations Environment Programme (UNEP), with a Governing Council and a Secretariat.17
The focus for earlier measures of pollution prevention and control was the risk or occurrence of specific damage to the property or interests of another state. A much broader concern, however, was evoked by damage to the environment in a general sense, not directly related to the specific economic interests of particular states. The need to protect from damage areas beyond national jurisdiction was, for example, recognised by Principle 21 of the Stockholm Declaration,18 and, more particularly, by Part XII of the Law of the Sea Convention 1982 in relation to the marine environment,19 and treaties regulating or prohibiting the disposal of toxic wastes on the high seas. Article 30 of the Charter of Economic Rights and Duties of States 197420 provided, in general terms, that all states have a responsibility for the protection, preservation and enhancement of the environment. A serious breach of an international obligation of essential importance for safeguarding and preserving the human environment, such as those prohibiting massive pollution of the atmosphere or of the seas, has been proposed by the International Law Commission as an international crime.21 A convention was adopted by the United Nations General Assembly in 1976 by which parties undertake ‘not to engage in military or any other hostile use of environmental modification techniques having widespread, long-lasting or severe effects as the means of destruction, damage or injury to any other State Party’.22
An even wider concept of environmental pollution and damage was brought about by two related, though distinct, scientific discoveries. The first was the discovery in 1985 of a hole in the protective layer of ozone in the earth’s upper atmosphere which shields the earth from harmful rays from the sun. Second was the accumulation of evidence that a build-up of certain gases in the earth’s upper atmosphere was apparently leading to a ‘greenhouse’ effect resulting in a steady increase in the planet’s temperature, with a potentially serious threat to many aspects of life on earth. Major contributors to the damage to the ozone layer and the build-up of gases producing the ‘greenhouse’ effect (so-called ‘greenhouse gases’) are certain human activities, particularly those involving the emission of chlorofluorocarbons (damaging the ozone layer) and an increase in carbon dioxide emissions caused primarily by increases in the use of fossil fuels and by activities interfering with natural processes which would otherwise use up excess carbon dioxide (such as deforestation, which also affects rainfall patterns over References(p. 415) large portions of the earth). After the discovery of the damage to the ozone layer the international community responded quickly by concluding the Vienna Convention for the Protection of the Ozone Layer 1985,23 and the associated Montreal Protocol on Substances that Deplete the Ozone Layer 1987,24 concerned particularly with limiting the use of chlorofluorocarbons. The ‘greenhouse’ problem does not yet have sufficiently widely agreed specific causes to enable an effective international agreement to be concluded, but studies leading to that end are being undertaken as a matter of urgency.25
The attempt to ensure protection of the environment, as a matter of common interest to all, gives rise to some difficult and novel legal problems.26 These include the question whether a claim lies for damage to the environment itself, distinct from any economic loss which such damage may cause to the interests of a particular state (as by loss to its fisheries industry, or to tourism, or the costs of making good the damage), and the question who, in the case of damage to the environment itself, may present such a claim. Failing the establishment of a special international institution with powers in this respect,27 it may prove necessary to develop the possibilities inherent in obligations to protect the environment being owed erga omnes,28 or in the right of a party to a multilateral treaty to take action against another party which is in breach.29 In any event the whole matter raises a serious legal question whether the international community can afford to go on attempting to deal with those problems by adapting, and supplementing by treaty, a legal system based essentially on establishing the delictual liability of certain respondents and assessing appropriate compensation. This, by itself at least, seems an inadequate way of tackling what is basically a question of public order, and accidents are likely to have results not compensatable by damages. A delictual system is hardly designed to deal with things that ought not to be allowed to happen at all.
1 For a judicial discussion of these aspects see R v Jacobus Christian, BY (1925), pp 211–19, and in JCL, 3rd series, 6 (1924), pp 245–254. See also § 34.
In the Island of Palmas case (1928), Huber (sole arbitrator) said: ‘Sovereignty in the relations between States signifies independence. Independence in regard to a portion of the globe is the right to exercise therein, to the exclusion of any other State, the functions of a State …’: RIAA, 2, pp 829, 838.
2 But see Westlake, i, pp 86–7.
1 See § 120.
2 Austro-German Customs Union Case (1931), PCIJ, Series A/B, No 41. Eight judges held that the proposed union would not be compatible with the Geneva Protocol; seven of those eight held that it would also not be compatible with the Treaty of St Germain. The Court said that, for purposes of Art 88 of the Treaty, the independence of Austria ‘must be understood to mean the continued existence of Austria within her present frontiers as a separate State with sole right of decision in all matters economic, political, financial or other with the result that that independence is violated, as soon as there is any violation thereof, either in the economic, political, or any other field, these different aspects of independence being in practice one and indivisible’ (at p 45). The individual Opinion of Judge Anzilotti contains, in addition to weighty reasons in support of part of the Court’s Opinion, some interesting observations on the effect of restrictions of state sovereignty on its independence (pp 57–9). For the literature, to a large extent critical, on this case, see vol II of this work (7th ed), § 25ag. As to Austria’s present status, see § 98. In the context of the impact of powers of the European Communities upon the sovereignty of member states it was noted by the Irish Supreme Court that ‘the freedom to formulate foreign policy is just as much a mark of sovereignty as the freedom to form economic policy and the freedom to legislate’ (at p. 723), and that ‘sovereignty in this context is the unfettered right to decide: to say yes or no’ (at p. 713): Crotty v An Taoiseach  2 CMLR 666; and see § 19, n 85.
See also the various treaties of the US with some of the republics in the Caribbean which gave the US the right of intervention to preserve the independence of these republics and obliged the latter not to conclude any treaty endangering their independence or providing for a cession of their territory to a foreign power (see eg the Treaty of 16 September 1915, with Haiti, AJ, 10 (1916), Suppl, p 234, and AJ, 16 (1922), pp 607–10).
3 See following note.
4 ‘A State’s domestic policy falls within its exclusive jurisdiction, provided of course that it does not violate any obligation of international law. Every State possesses a fundamental right to choose and implement its own political, economic and social systems’: Military and Paramilitary Activities Case, ICJ Rep (1986), p 131; see also pp 108, 133. See also the third principle of the Declaration on Principles of International Law concerning Friendly Relations and Cooperation among States, which stipulates that ‘Every State has an inalienable right to choose its political, economic, social and cultural systems, without interference in any form by another State’: GA Res 2625 (XXV) (1970).
But internal political and social arrangements might nevertheless be a matter of legitimate concern to the international community, as for example where they infringe some overriding principle or rule of international law. Thus the Security Council declared null and void a proposed new Constitution adopted by South Africa (Res 554/1984, repeated by the General Assembly in Res 39/2 of 28 September 1984: see UNYB (1984), pp 157–63), and similarly declared null and void the establishment by South Africa in Namibia of an interim government and Legislative Assembly (§ 88, n 47). Note also, for example, the restraints imposed upon Cyprus in this respect by virtue of the tripartite guarantee of the state of affairs established by the Basic Articles of its Constitution: TS No 5 (1961); and see § 40, n 4, and § 131, n 4. See BPIL (1964), p 126, for representations made by the UK and Turkey when Cyprus introduced compulsory military service inconsistently with the relevant constitutional provisions. Membership of an organisation may also impose certain restraints upon a state’s freedom to adopt whatever form of government it chooses: thus the exclusion of the Government of Cuba from the Inter-American system by the Punta del Este meeting in 1962 was on the basis that ‘adherence by any member of the Organisation of American States to Marxism-Leninism is incompatible with the principles and objectives of the Inter-American system’ (see AJ, 56 (1962), at p 611; see also Fenwick, ibid, pp 469–74).
It was held by the PCIJ in 1932, in the Case concerning the Interpretation of the Statute of the Memel Territory, that the grant of autonomy to a territorial unit does not result in a division of sovereignty in a way disturbing the unity of the state: PCIJ, Series A/B, No 49, p 313. The fact that the final appellate tribunal of a state is a body with its seat in another state is not necessarily inconsistent with the first state’s independence: see § 78, n 15. Nor is the fact that a state’s constitution is a law of another state and can only be amended by that other state’s legislative process (as was the case until 1982 with Canada, whose constitution was established in the British North America Act 1867–1964, being Acts of the British Parliament: see § 34, n 9).
5 See § 404, n 12.
6 See § 402.
7 See § 122.
8 See §§ 386–7.
9 Special problems arise where a fluid resource, such as natural gas or hydrocarbon deposits, extends beyond the land frontier of the state, particularly where it extends beneath the land frontier of one or more other states. See the 1978 Report of the UNEP Inter-governmental Working Group, ILM, 17 (1978), pp 1091, 1094–9; Lagoni, AJ, 73 (1979), pp 215–43; Utton and Teclaff (eds), Trans-boundary Resources Law (1987); Brit Inst of Int and Comp Law, Joint Development of Offshore Oil and Gas (vol 1, 1989; vol 2 (ed Fox), 1990). For examples of agreements between the two states concerned in such a situation see the UK-Norway Agreements relating to the Frigg Field Reservoir 1976 (TS No 113 (1977)) (on which see Manin, AFDI, 24 (1978), pp 792–809), the Murchison Field Reservoir 1979 (TS No 39 (1981)) and the Statfjord Field Reservoirs 1979 (TS No 44 (1981)), concerning the exploitation of oil and gas reservoirs extending beneath their adjacent areas of continental shelf in the North Sea; and Art 3 of the UK-Republic of Ireland Agreement concerning the Delimitation of Areas of Continental Shelf between the Two Countries 1988 (TS No 20 (1990)).
11 Including in particular treaties for the protection of minorities, the general obligations of the Charter of the United Nations relating to human rights and fundamental freedoms, and the more specific obligations in the various treaties which now exist for the protection of such rights and freedoms: see §§ 425–44. See also § 131(2) on humanitarian intervention.
12 But see § 123, n 2.
1 See § 140.
2 PCIJ, Series A, No 10, p 18.
3 ICJ Rep (1949), p 35. See also the Military and Paramilitary Activities Case, ICJ Rep (1986), p 3, where the USA was held to have acted in breach of its obligations under international law by engaging in various forms of violations of Nicaragua’s territorial sovereignty, including the laying of mines in Nicaragua’s internal and territorial waters, overflying Nicaraguan territory and attacking targets in Nicaraguan territory (see especially pp 127–9).
4 See n 11.
5 As to various aspects of state action to enforce abroad compliance with its laws, see Mann, Hag R, 111 (1964), i, at pp 127–58, with particular reference to the use of physical force in another state; the peaceable performance of acts of state authority (service of documents, taking evidence, notarial functions); the conduct of investigations to enforce its criminal, administrative or fiscal jurisdiction; and resort by a state to the courts of another state to enforce its public or sovereign rights. See also Akehurst, BY, 46 (1972–73), at pp 145–51; and see Public Prosecutor v Van H, ILR, 19 (1952), No 49; Service of Summons in Criminal Proceedings (Austria) Case (1961), ILR, 38, p 133.
6 Even an accidental crossing of the frontier is a violation of territorial sovereignty. For an incident in 1963 when the UK apologised to the Yemen for, and paid compensation for damages occurring as a result of, an accidental crossing of the frontier by British troops, see BPIL (1963), p 103. For an incident involving a protest by Austria against the shooting by Czechoslovakia border guards of a refugee who had already escaped on to Austrian territory, see RG, 89 (1985), p 403.
The Security Council, in condemning a state for violating the territory of another state, has sometimes called for the payment of compensation or other appropriate redress by the transgressor. See eg Res 189 (1964) (incursions into Cambodia by South Vietnamese forces); Res 262 (1968) (Israeli raid on Beirut airport); Res 290 (1970) (incursion of Portuguese forces into Guinea); Res 387 (1976) (incursion of South African forces into Angola); Res 455 (1979) (incursion of Southern Rhodesian forces into Zambia); Res 487 (1981) (Israeli attack into Iraq).
7 As to a warship’s right of innocent passage through territorial waters of another state, see § 201. As to unauthorised incursions by Soviet submarines into Swedish waters in 1981 and 1982, see RG 86 (1982), pp 398–405; 87 (1983), pp 218–19, 451–2, and 900–901.
8 See § 218ff. On the incident in 1960 concerning the shooting down of an American military aircraft flying over the Soviet Union, and the trial of its pilot, see Wright, AJ, 54 (1960), pp 836–54. In 1973 the action of Israeli military aircraft in intercepting a Lebanese airliner in Lebanese airspace and forcing it to land in Israel was condemned by the Security Council: see SC Res 337 (1973); UNYB (1973), pp 249–52; and, for action in ICAO, ibid, pp 947, 948.
9 See eg RG, 84 (1980), pp 1129–31 and 89 (1985), pp 791–2, as to the arrest in Switzerland of two French customs officials engaged in investigative work on Swiss territory. See also RG, 88 (1984), pp 711–12 (protest against activities of French customs officials in Switzerland), and p 725 (protest against various activities of Italian officials in Switzerland). As to the illegal abduction of a person from the territory of one state by the authorities of another, see n 13.
10 See eg as to the unauthorised operations in France of Spanish counter-terrorist officials, RG, 88 (1984), p 454, and 90 (1986), p 974; and as to operations by Italian agents in Switzerland, RG, 89 (1985), p 460. See also § 165, n 5, para 3, as to the operations of French agents in New Zealand leading to the sinking of the ‘Rainbow Warrior’. See generally Glennon, Harv ILJ, 25 (1984), pp 1–42; and § 569, as to spies. It sometimes happens that such activities are carried out by people with diplomatic or consular status: such activities are incompatible with that status: see § 487.
11 See § 123. Neighbouring states often give one another permission to act in each other’s territory; for instance, one state may permit the customs officers of another state to be stationed at a railway station in the former’s territory for the purpose of examining the luggage of travellers. See German Railway Station at Basle Case, decided by a German Court in June 1928: AD (1927–28), No 90; and see Vali, Servitudes of International Law (2nd ed, 1958), pp 125–34; as to the functions of South African railway police in respect of the railway in Bechuanaland, see Parliamentary Debates (Commons), vol 686, col 43 (written answers, 9 December 1963); as to Canadian and US drugs investigation officials in each other’s territories, see ILM, 27 (1988), p 403; as to an agreement for the operation of certain French and Italian officials in each other’s territories see RG, 87 (1983), p 417; and as to French customs officials on certain trains in Switzerland, see RG, 90 (1986), p 450. When in 1988 the USA and USSR concluded an agreement including provision for the inspection by their officials of the other’s nuclear missiles, some of the missiles being held at bases in third states, the consent of those third states was necessary to allow for inspections on their territories: see ILM, 27 (1988), pp 58, 67. See also Hackworth, ii, §§ 150, 151 and 153; and Mann, Hag R, 111 (1964), i, p 127ff.
As to the exercise in a foreign state of judicial authority, which is an aspect of sovereignty, see Biria v Kiardo (1967), ILR, 45, p 53; Sorge v City of New York, AJ, 63 (1969), p 146; Re Caneba (1969), ILR, 71, p 222; Re Westinghouse Uranium Contract  2 WLR 81, 90; Case against Buscetta, AJ, 77 (1983), p 164. In the course of US proceedings which were the subject of litigation in the UK a US judge sat in the US Embassy in London to hear witnesses whose attendance had been required by an order of a UK court: in the House of Lords Viscount Dilhorne made the point that the witnesses had not thereby become subject to the US court’s jurisdiction (Rio Tinto Zinc Corpn v Westinghouse Electric Corpn  AC 547, 628; and see ‘X’, ICLQ, 27 (1978), pp 446, 450).
In January 1986 an Australian Royal Commission sat and took evidence in the UK, with permission of the British Government. Visits to the UK by an official of a foreign state, acting in that capacity, to check the books of UK companies require the prior permission of the UK Government: Parliamentary Debates (Commons), vol 111, col 204 (written answers, 24 February 1987). For guidelines issued by the Foreign and Commonwealth Office for the activities in the UK of foreign law enforcement agents representing foreign governments, see UKMIL, BY, 58 (1987), p 591. States commonly allow foreign consuls to perform acts of administration and jurisdiction in their territories: see §§ 544–8.
The consent of one state to officials of another crossing its territory, and the extent to which this created rights for the state to which the officials belonged, was considered by the ICJ in the Case Concerning Right of Passage over Indian Territory, ICJ Rep (1960), p 6: see § 238.
As to the exercise of governmental authority in another state by a government-in-exile there, with the consent of the host state, see § 42, n 4; as to the situation which arises in cases of belligerent occupation, see vol II of this work (7th ed), §§ 166–726, and as to the particular situation which arose in respect of Germany after the Second World War, see § 40, n 19ff. As to foreign armed forces visiting a state with its consent, see §§ 556–8.
12 See § 294.
13 See Bowett, Self-Defence in International Law (1958), pp 38–41; Brownlie, ICLQ, 7 (1958), pp 733–4. Although when states have pursued fugitives across a frontier they may try to defend their action by claiming to have been acting in ‘hot pursuit’, there has been no disposition on the part of other states to accept that any right of ‘hot pursuit’ exists. For examples of ‘hot pursuit’ see RG, 82 (1978), p 855, for pursuit by Moroccan forces into Algeria; Brownlie, ICLQ, 7 (1958), p 712, and Fraleigh in International Law of Civil War (ed Falk, 1971), p 206, for pursuit by French forces in Algeria into Tunisia; Corbett in ibid, pp 399–401 as to pursuit of (rebel) Vietcong raiders from South Vietnam into Cambodia; UNYB (1971), pp 113–16, as to pursuit of armed guerrilla bands into Zambia by South African forces; RG, 83 (1979), p 475, as to pursuit by South African forces into Zambia; RG, 85 (1981), p 893, as to pursuit of offenders by Swiss police into France; RG, 90 (1986), p 178, as to pursuit of guerrillas by South African forces into Angola. In some of the above instances the incursion into the foreign state’s territory may have had less the character of ‘hot pursuit’ than of retaliatory or pre-emptive action against persons habitually using that state’s territory as a base from which to launch operations against the pursuing state: for consideration of the extent to which action on those grounds may be justified, see § 127.
If officials improperly enter another state’s territory they risk prosecution there: see RG, 93 (1989), pp 660–61, as to the trial of French policemen in Belgium. Note also the incident in July 1989 when four Spanish customs officials in pursuit of suspected smugglers entered Gibraltar; although warrants were issued against them, there was no further action.
‘Hot pursuit’ on land may occur with the consent of the territorial state, in which case no violation of territorial sovereignty will have occurred. See eg Santa Isabel Claims (1926), RIAA, iv, at pp 787–8; and the agreement of Iraq allowing Turkey to pursue Kurdish rebels up to 15 km into Iraq’s territory (RG, 89 (1985), pp 455–6). See also the Benelux-France-Federal Republic of Germany Convention on the Gradual Suppression of Common Frontier Controls 1990 (the ‘Schengen Agreement’), Art 41 of which allows for ‘hot pursuit’ across land frontiers on certain conditions.
14 The abduction of a person from a foreign state’s territory may involve the responsibility of the abducting state under human rights treaties binding on it even though the acts complained of on the part of its agents occurred in the territory of another state: see decisions of the UN Human Rights Committee in Celiberti de Casariego v Uruguay (1981), ILR, 68, p 41, and López v Uruguay (1981), ILR, 68, p 29. As to the possibility of a person seized in violation of international law being entitled to petition the European Commission of Human Rights, see O’Higgins, BY, 36 (1960), pp 279, 291–3.
15 Thus Germany restored to Switzerland, in 1935, a certain Herr Jacob-Salomon, an ex-German political refugee who had been abducted from Switzerland with the connivance of German officials. The case was submitted to arbitration, but soon after the commencement of the written proceedings Germany admitted in September 1935 that a state official ‘acted in an inadmissible manner in this case’ and surrendered Jacob to the Swiss authorities. For an account of this case and a survey of other cases of kidnapping of fugitives from justice on foreign territory, see Preuss, AJ, 29 (1935), pp 502–7, and ibid, 30 (1936), p 123. In 1961 South African police crossed the border into Basutoland and arrested Mr Ganyile, a South African national: the British Government protested, the South African Government apologised, and released Mr Ganyile, who sought compensation from the South African Government: Parliamentary Debates (Commons), vol 652, cols 702–5 (29 January 1962). As to the apparent abduction of Mr Higgs from Northern Rhodesia to South Africa in 1964, and his subsequent release, see BPIL (1964), pp 185–6. Similarly in 1972 South Africa returned to Lesotho Mr Mbale who had been seized there and taken to South Africa by four South African policemen who, according to a spokesman of the South African Department of Foreign Affairs, had been ‘acting in a spirit of excessive zeal’ (The Times, 29 November 1972). As to the request by the US Government to the authorities of the state of Florida for the release of a person seized in Canada and brought to Florida, see AJ, 78 (1984), pp 207–9.
Monetary compensation for a wrongful seizure was awarded by a US-Panama Arbitral Tribunal in the Colunje case, who was seized in 1917 (see O’Higgins, BY, 36 (1960), at p 297, n 1). Appropriate reparation for the wrong done would also include punishment of the abductors. In Vaccaro v Collier, the United States Marshal, an officer of the US who forcibly arrested in Canada and forcibly carried across the frontier a person wanted by the US police was found guilty of kidnapping. The court pointed out that an unlawful carrying of a person beyond the boundaries of a state to be dealt with by the laws of another state is a violation of the sovereignty of the former: 51 F (2d) 17: AD (1929–30), No 180. And see Villareal v Hammond (1934), 74 F (2nd) 503; AD (1933–34), No 143, where the court in granting extradition of the prisoners accused of kidnapping certain persons in Mexico with the view to handing them over to the US authorities, pointed out that that act in any case constituted a violation of Mexican territorial sovereignty.
The abduction of Adolf Eichmann from Argentina to Israel in 1960 so that he could stand trial in Israel for crimes committed during the Second World War, was generally acknowledged to have constituted a violation of Argentina’s territorial sovereignty. Argentina raised the matter in the Security Council which by Res 138 of 23 June 1960 ‘requested Israel to make appropriate reparation in accordance with the Charter of the United Nations and rules of international law’. On 3 August 1960 Israel and Argentina issued a joint communiqué stating that they ‘resolved to regard as closed the incident which arose out of the action taken by citizens of Israel which infringed the fundamental rights of the State of Argentina’ (see ILR, 36, at p 59.) See generally on the Eichmann case, Silving, AJ, 55 (1961), pp 307–58; Green, MLR, 23 (1960), pp 507–15; Fawcett, BY, 38 (1962), pp 181–215; Lasok, ICLQ, 11 (1962), pp 355–74; Green, BY, 38 (1962), pp 457–71; Papadatos, The Eichmann Trial (1964); Schwarzenberger, International Law and Order (1971), pp 237–51; Lador-Lederer, Israel YB on Human Rights, 14 (1984), pp 54–79; and the bibliography in ILR, 36, at pp 342–4. For other aspects of the Eichmann case, see § 139, n 21. In August 1973 an Israeli court sentenced to a term of imprisonment a Turkish national seized during an Israeli raid in Lebanon: see RG, 78 (1974), pp 842–3.
For a British protest to the Soviet Union in 1958 about the landing in the UK of seamen from a Russian vessel to search for one of their colleagues who had fled the vessel, see UK Contemporary Practice, VII, p 166 (ICLQ, 8 (1959)); see also Parliamentary Debates (Lords), vol 253, cols 126–7 (14 November 1963) as to British protests to Cuba regarding the seizure by Cuban forces of 19 Cuban refugees from British territory in the Bahamas. For protests by Japan at the seizure on Japanese territory by South Korean agents of Kim Dae Jung, a leading South Korean opposition politician, see RG, 78 (1974), pp 1112–16, and 85 (1981), p 371.
Separate from the question whether the incursion of one state’s agents into another state without its consent to arrest, seize and abduct wanted persons is a violation of international law (which it is) is the question whether such operations are lawful in terms of the seizing state’s own laws. It is this latter question which seems to be primarily addressed by a new US policy made public in 1989. In testimony before a sub-committee of the House of Representatives Committee on the Judiciary on 8 November 1989 the Deputy Director of the FBI emphasised that the concurrence of the state in which the seizures took place was a prerequisite of such operations. See, for the views of the State Department’s Legal Adviser, AJ, 84 (1990), pp 725–9; and see Lowenfeld, ibid, pp 444–93, 712–16, and the US Supreme Court’s decision in United States v Verdugo-Urquidez, ILM, 29 (1990), p 441 (and Lowe, CLJ, 50 (1991), pp 16–19).
16 US courts have declined jurisdiction where its exercise would involve a violation of a treaty, since treaties are part of the supreme law of the land (eg US v Rauscher (1886) 119 US 407; Us ex rel Donelly v Mulligan, AD, 7 (1933–34), No 144; US v Toscanino (1974), ILR, 61, p 190), at least where the treaty is self-executing or has been implemented by legislation (US v Postal, AJ, 73 (1979), p 698; and see Reisenfeld, AJ, 74 (1980), pp 892–904). The improper seizure of a person from the territory of a foreign state with which the US has an extradition treaty has been held not to constitute a breach of that treaty so as to bring the rule into operation; in such a case, as in others where it is a violation of customary international law which is involved, US courts have not on that account declined jurisdiction over the person who was wrongfully seized. See Ker v Illinois (1986) 119 US 436; Frisbie v Collins (1952) 342 US 519. In the latter case a unanimous Supreme Court observed (per Black J): ‘this court has never departed from the rule announced in Ker v Illinois … that the power of a court to try a person for crime is not impaired by the fact that he had been brought within the court’s jurisdiction by reason of a “forcible abduction”’: at p 522.
See also United States v Insull et al where the court rejected the plea of the accused that as he had been unlawfully seized by the Turkish police while on a Greek vessel in Turkish waters the court had no jurisdiction: 8 F Suppl 310; AD, 7 (1933–34), No 75. Similarly, in Ex parte Lopez the court refused a writ of habeas corpus for which the accused applied on the ground that he had been forcibly seized in Mexico by some persons (whose subsequent extradition to Mexico was granted in the Villareal Case, n 15 of this section) and brought to the US: 6 F Suppl 342; AD, 7 (1933–34), No 76. See also, to the same effect, Jackson v Olson, AD, 13 (1946), No 27; US v Untersagt, AD, 11 (1919–42), No 53; US v Sobell, ILR, 24 (1957), p 256; US v Cotten (1973), ILR, 61, p 216; US ex rel Lujan v Gengler (1975), ILR, 61, p 206; US v Cadena, AJ, 73 (1979), p 302; US v Peltier, AJ, 73 (1979), p 299; US v Cordero, AJ, 76 (1982), p 618. Although the decisions are not unambiguous this has also been the attitude of English courts: Ex parte Scott (1829) 9 BC 446; Sinclair v H M Advocate (1890) 17 R (JC) 38; R v Garrett (1917) 86 LJKB 894; Ex parte Elliott  1 All ER 376; and see also observations in R v Plymouth Magistrates’ Court, ex parte Driver  2 All ER 681; R v Bow Street Magistrates, ex parte Mackeson (1982) 75 Cr App R 24; R v Guildford Magistrates’ Court, ex parte Healy  1 WLR 108. See also Afouneh v A-G, AD, 10 (1941–42), No 97; A-G of Israel v Eichmann (1962), ILR, 36, p 5; the Kim Dae Jung affair, RG, 78 (1974), pp 1112–16, and 85 (1981), p 371; R v Hartley (1977), ILR, 77, p 330; and Fédération Nationale des Déportés et Internés Résistants et Patriots v Barbie (1985), ILR, 78, p 125; Re Extradition of David (1975), ILR, 61, p 482 (allowing extradition to a third state of a fugitive unlawfully seized from another state). Similarly in 1976 South African courts upheld their jurisdiction to try persons abducted from Swaziland by South African police, despite defence pleas that their arrest was in violation of international law: Ndhlovu v Minister of Justice (1976), ILR, 68, p 7; Nduli v Minister of Justice (1977), ILR, 69, p 145. For a contrary decision of a French court, see Re Jolis, AD, 7 (1933–34), No 77. But in the case of Colonel Argoud, who alleged that he had been abducted from the Federal Republic of Germany by French officials, he was tried and convicted in France for his illegal political activities: the Cour de Cassation in 1964 upheld the conviction notwithstanding any possible breach of international law which it held to be a matter for inter-state representations and not to affect the jurisdiction of the court: Re Argoud (1964), ILR, 45, p 90. And see Cocatre-Zilgien, L’Affaire Argoud: considérations sur les arrestations internationalement irrégulières (1965); de Schutter, Rev Belge, 1 (1965), pp 8–124, and ZöV, 25 (1965), p 295ff, and 27 (1967), pp 188–9.
See generally on the question of jurisdiction with regard to persons apprehended in violation of international law, Harv Research (1935), pp 623–32, Dickinson, AJ, 28 (1934), pp 234–45; Morgenstern, BY, 29 (1952), pp 265–82; O’Higgins, ibid, 36 (1960), pp 278–320; Cardozo, AJ, 55 (1961), pp 127–35; Evans, BY, 40 (1964), pp 77, 89–93; de Schutter, Rev Belge, 1 (1965), pp 88–124; Shearer, Extradition in International Law (1971), pp 72–6; Whiteman, Digest, 6, pp 91, 105–9, 1108–17; Coussirat-Coustère and Eisemann, RG, 76 (1972), pp 346–400; Mann, ZöV, 47 (1987), pp 469–87; Restatement (Third), i, pp 331–9. See also Hackworth, ii, § 152; Parry, BDIL, 6, pp 480–95. See also § 414, as to the deportation of wanted fugitives in circumstances amounting to disguised extradition.
Some countries make it a criminal offence to perform in their territory governmental activities on behalf of a foreign state. See eg Kämpfer v Public Prosecutor of Zürich, decided in 1939 by the Swiss Federal Tribunal: AD, 10 (1941–42), No 2. While a government cannot exercise jurisdictional rights in foreign territory, it has been held repeatedly that, in pursuance of requisition decrees or similar measures, it may take peaceful possession of a vessel in foreign waters: see generally on the requisitioning of merchant ships abroad § 144, n 34, para 3.
Evidence obtained in violation of international law has been held admissible in a municipal court: US v Whiting, AJ, 76 (1982), p 624; US v Hensel, AJ, 77 (1983), p 878. As to the use of illegally obtained evidence before international tribunals see Reisman and Freedman, AJ, 76 (1982), pp 737–53, and Thirlway, AJ, 78 (1984), pp 622–41. See also § 131, n 29.
17 See, however, § 386.
1 See § 121, n 10.
2 See also § 633(3), as to the application of the principle in dubio mitius in the interpretation of treaties.
3 See Judge Anzilotti’s Opinion, referred to at § 118, n 2. Thus through Art 4 of the Convention of London 1884, between Great Britain and the former South African Republic, stipulating that the latter should not conclude any treaty with any foreign state other than the Orange Free State, without approval on the part of Great Britain, the Republic was so much restricted that Great Britain considered herself justified in defending the opinion that the Republic was not an independent state, although the Republic itself and many writers were of a different opinion. (See Rivier, i, p 89; Westlake, Papers, pp 419–60.) As to the extent to which various treaties concluded at the beginning of the century between the USA and certain other states in Central America and the Caribbean impaired the independence of those states, see § 118, n 2, and 8th ed of this volume, p 289, n 3, and pp 307–8. See also § 83, n 3, and § 131, n 37.
4 See §§ 81–3.
5 See § 96.
1 As to state servitudes, see §§ 236–40.
2 See § 198ff.
4 See §§ 175–81.
5 See the decision in the Trail Smelter Arbitration (16 April 1938), with regard to the damage caused by the smelter situated at Trail, British Columbia, to the inhabitants of the State of Washington: AJ, 33 (1939), pp 182–212; Whiteman, Digest, 6, § 15; Read, Can YBIL, 1 (1963), pp 213–29; Rubin, Ore Law Rev, 50 (1971), p 259; Bourne, ibid, p 291; Hoffman, ICLQ, 25 (1976), pp 509–42. See also § 124, n 14. As to the Lake Lanoux Arbitration, ILR, 24 (1957),p 101, see § 124, n 12.
7 See § 124.
8 ICJ Rep (1949), p 22. Moreover, while the exclusive control exercised by a state within its territory does not, in the absence of fault, involve its responsibility for injuries suffered by a foreign state (see § 149, n 7), such exclusive control was held — in the same case (ibid (1949), p 19)—to have a bearing upon the nature of the proof of the responsibility of the territorial state. The fact of exclusive control makes it often impossible for the foreign state, which is the victim of a violation of international law, to furnish direct proof of the responsibility of the territorial state. In such cases, it was held, the foreign state ‘should be allowed a more liberal recourse to inferences of fact and circumstantial evidence’ (ibid). See also Military and Paramilitary Activities Case, ICJ Rep (1986), pp 82–6.
See also, for responsibility imposed as a result of activities taking place within a state’s territory (or under its jurisdiction or control), draft Art 3 of the 1988 draft Articles on International Liability for Injurious Consequences arising out of Acts not Prohibited by International Law, YBILC (1988), ii, pt 2, para 22, and discussion of that draft article (and its precursor) by the ILC: YBILC (1987), ii, pt 2, pp 41, 45–6, and Report of the ILC (40th session, 1988), paras 68–76.
9 See the incidents, in 1956 and 1960, concerning the launching by organs of the USA of balloons from the territory of the Federal Republic of Germany, and the statements made in Austria by Mr Krushchev, the Chairman of the Council of Ministers of the USSR: YBILC (1975), ii, pp 84–5, paras (6) and (7); and § 159, n 1.
10 The PCIJ several times took occasion to point out that, so far from treaty obligations being restrictions upon sovereignty, ‘the right of entering into international engagements is an attribute of State sovereignty’: The Wimbledon Case, PCIJ, Series A, No 1, at p 25; see also PCIJ, Series B, No 10, at p 21, and PCIJ, Series A, No 23, at p 26. And the ICJ has noted that a state which is free to decide upon its domestic electoral arrangements ‘is sovereign for the purpose of accepting a limitation of its sovereignty in this field’: Military and Paramilitary Activities Case, ICJ Rep (1986), p 131. See McNair, Law of Treaties (1961), Appendix A. Note also the ICJ’s rejection of the argument that a state entitled to become a party to a treaty may, by virtue of its sovereignty, do so while making any reservation it chooses: Reservations to the Genocide Convention, ICJ Rep (1951), p 24. See also § 120, as to restrictions upon a state’s sovereignty to such a degree as to prejudice its independence.
11 Thus after the First World War Germany assumed an obligation not to keep more than 100,000 men under arms, nor a navy larger than necessary for coast defence and purposes of police, nor any military or naval air forces; and in the Treaty of Peace with Italy after the Second World War the total strength of the Italian Army was limited to 250,000: Art 61. As to limitations upon the armed forces of the Federal Republic of Germany pursuant to Art 1 of Protocol II to the Brussels Treaty, as varied from time to time by decisions taken under Art III of the Protocol (TS No 39 (1955)), see Bathurst and Simpson, Germany and the North Atlantic Treaty (1956), pp 165–6. See now Art 3 of the Treaty on the Final Settlement with respect to Germany 1990: Cm 1230; ILM, 29 (1990), p 1186. Note the observation of the ICJ in the Military and Paramilitary Activities Case, ICJ Rep (1986), that ‘in international law there are no rules, other than such rules as may be accepted by the State concerned, by treaty or otherwise, whereby the level of armaments of a sovereign State can be limited, and this principle is valid for all States without exception’ (at p 135).
1 See eg the rejection by the USA of protests from Czechoslovakia and Hungary in 1954 against the release over their territories of balloons carrying leaflets, organised by the Crusade for Freedom Committee, which was an organisation of private citizens: Whiteman, Digest, 13, pp 975–8. See also ibid, pp 1025–7 for a communication by the USA to the Dominican Republic about allegedly libellous publications by some Dominican exiles in the USA; the US Government explained the constitutional restraints imposed on attempts to limit freedom of speech of private persons.
2 There may be a question whether persons who take action affecting another state are acting as private individuals and of their own free choice, or whether their actions are in substance organised by the state from which they come. The matter clearly affects the degree of responsibility of that state for their conduct. The question has arisen in the context of ‘peaceful marches’ of very large numbers of people across a frontier, as with the march of Libyan people into Egypt in July 1973, and of Moroccans into the Sahara in October 1975 (as to which see UNYB (1975), pp 178–84), and in the context of ‘volunteers’ from one state who assist a party to a conflict in another: as to the use of volunteers in the Spanish Civil War, see Thomas and Thomas in International Law of Civil War (ed Falk, 1971), pp 154–6, 164–5, 167–8 and 175.
3 See n 16ff.
4 See § 402.
5 In 1973 a dispute arose between Tanzania and Uganda regarding alleged attempts by Dr Obote, the former President of Uganda but then living in Tanzania, to overthrow his successor, President Amin. The matter was settled through the good offices of Ethiopia, and on 28 May 1973 the Presidents of Tanzania and Uganda signed an agreement in Addis Ababa in which ‘each party undertakes to see to it that its territory is not used as a base of subversion against the other. The Government of Tanzania will assume responsibility that former President Milton Obote will not interfere in the internal affairs of Uganda. The Government of Uganda will not demand the eviction from Tanzania of Dr Milton Obote’. However, after some years Dr Obote again from Tanzania urged the overthrow of President Amin, eg in his statement of 11 January 1979.
Note also the toleration by the French Government of the presence in France of the Ayatolla Khomeini, a political and religious leader in exile from Iran, who while in France in 1978–79 openly organised and encouraged a successful campaign in Iran to oust from power the Shah of Iran and the Government appointed by him: see RG, 83 (1979), pp 805–7 and AFDI, 25 (1979), pp 968–9. When in 1981 the former President of Iran requested asylum in France, this was granted on the express condition that he would not engage in any political activity on French territory, a condition enforced almost immediately by the cancellation of a press conference which he had planned to hold: RG, 86 (1982), pp 153–4.
For representations by Algeria to France concerning intemperate remarks by the former President of Algeria, Ben Bella, while residing in France, see RG, 86 (1982), pp 720–21. See generally § 402.
6 See generally on armed bands, Brownlie, ICLQ, 7 (1958), pp 712–35; Laughier, RG, 70 (1966), pp 75–116. In its judgment of 20 December 1988 the ICJ held that it had jurisdiction in respect of an application filed by Nicaragua against Honduras in respect of the alleged activities of armed bands said to be operating from Honduras on the border between the two states and in Nicaragua: Border and Trans-border Armed Actions Case, ICJ Rep (1988), p 69.
7 The legislation may have been primarily intended to ensure observance by the state of its obligations of neutrality in time of war. For the UK see the Foreign Enlistment Act 1870, under which it is an offence for a British subject to enlist in the military or naval service of a foreign state at war with another foreign state with which the UK is at peace, or for anyone to induce such conduct (ss 3 and 5); and it is also an offence to prepare or fit out any naval or military expedition to proceed against a friendly foreign state (s 11). By virtue of the definition in the Act of a ‘State’, the Act can apply to some civil wars. See generally on the Act, McNair and Watts, Legal Effects of War (4th ed, 1966), pp 448–53; Lynch, Crim Law Rev (1978), pp 257–68; Jaconelli, Public Law (1990), pp 337–41; and, for proposals to amend the Act, the Report of the Committee on the Recruitment of Mercenaries (Cmnd 6569, 1976). See also the legislation enacted in Australia, the Crimes (Foreign Incursions and Recruitment) Act 1978 (ILM, 17 (1978), p 948); and on the Belgian law of 1 August 1979 see David, Rev Belge, 16 (1981), pp 5–32.
Apart from action under such legislation it may be open to a state to prevent the departure of persons intending to enlist in foreign forces engaged in hostilities abroad by withholding passport facilities. The UK took such action in relation to British mercenaries engaged in the hostilities in the Congo in 1961 (Parliamentary Debates (Commons), vol 638, cols 27–8 (written answers, 12 April 1961); ibid, cols 105–6 (written answers, 19 April 1961)); and in relation to those engaged in hostilities in Angola in 1976 (Parliamentary Debates (Lords), vol 368, cols 1201–7 (9 March 1976)).
It has been held that contracts made with a view to promoting a hostile expedition against a foreign State are unenforceable. See Florsheim v Delgado, Sirey (1934), 2, p 75 (with a note by Niboyet); AD, 6 (1931–32), No 9; and see ZöV, 4 (1934), p 937, for references to similar cases.
8 It may be noted that in Angola the mercenaries were being used primarily by the forces on one side of an internal conflict, in response to the overt assistance being given to the other side by military units from Cuba. As to the use of mercenaries in the civil war in the Congo in 1961, see McNemar in International Law of Civil Strife (ed Falk, 1971), pp 279–80, 289–90. A state’s armed forces may, however, in certain circumstances consist of or include organised units recruited from another country but forming an integral part of the state’s regular forces, as in the case of the Papal Guard (of Swiss origin: members of that Guard are an exception to the general rule by which it is a criminal offence for a Swiss national to serve in a foreign army) and the Gurkha Regiment (of Nepalese origin, but serving with the British army, pursuant to an agreement concluded in 1947 between the UK, India and Nepal: see the statement by the Minister of Defence in the House of Commons on 1 December 1947).
9 In 1976 four mercenaries, three British and one American, were tried and executed in Angola by the Government of that country, against which they had been fighting; several others were sentenced to terms of imprisonment. See Parliamentary Debates (Commons), vol 915, cols 44–9 (12 July 1976); see also ibid, vol 905, cols 236–44 (10 February 1976); RG, 80 (1976), pp 570–4. As to the use of mercenaries in an unsuccessful attempt to stage a coup in the Seychelles in 1981, see RG, 87 (1983), pp 145–7, and 88 (1984), p 283; UNYB (1981), pp 226–8, and UNYB (1982), pp 321–8.
10 See also GA Res 2465 (XXIII) (1968), para 8, repeated in eg Res 2548 (XXIV) (1969) and 2708 (XXV) (1970).
Note also that the Declaration on Principles of International Law concerning Friendly Relations and Cooperation among States states it to be the duty of states not to organise or encourage the organisation of irregular forces or armed bands, ‘including mercenaries’, for incursion into the territory of another state. In GA Res 35/48 (1980), establishing an ad hoc Committee on the Drafting of an International Convention against the Recruitment, Use, Financing and Training of Mercenaries, the General Assembly recognised ‘that the activities of mercenaries are contrary to fundamental principles of international law, such as non-interference in the internal affairs of States, territorial integrity and independence’. See also Art 3(g) of the Definition of Aggression, GA Res 3314 (XXIX) (1974).
For consideration by the ILC, in the course of its renewed consideration of the draft Code of Crimes against the Peace and Security of Mankind, of the possibility of establishing ‘mercenarism’ as a crime against peace, see Report of the ILC (40th Session, 1988), paras 268–74.
11 See Van Deventer, AJ, 70 (1976), pp 811–16. See generally on legal aspects of the use of mercenaries, David, Rev Belge, 13 (1977), pp 197–237; Tercinet, AFDI, 23 (1977), pp 269–93; Burmester, AJ, 72 (1978), pp 37–56; Green, Israel YBHR, 8 (1978), pp 9–62.
12 GA Res 44/34; ILM, 29 (1990), p 90.
13 GA Res 35/48.
1. A mercenary is any person who:
(b) Is motivated to take part in the hostilities essentially by the desire for private gain and, in fact, is promised, by or on behalf of a party to the conflict, material compensation substantially in excess of that promised or paid to combatants of similar rank and functions in the armed forces of that party;
(c) Is neither a national of a party to the conflict nor a resident of territory controlled by a party to the conflict;
2. A mercenary is also any person who, in any other situation:
15 A specific provision is included to prohibit states recruiting, using, financing or training mercenaries for the purpose of opposing the exercise of the right to self-determination: Art 5(2).
16 As illustrating the difficulty of distinguishing in some cases between the acts of governments and of political parties closely associated therewith, see Bünger’s study on the relations of party and state in China in ZöV, 6 (1936), pp 286–302; see also Friedmann, AJ, 50 (1956), pp 492–5.
As to the responsibility of Soviet Russia for the activities of the Communist Party and the Third International, see Verdross, ZöR, 9 (1930), pp 577–82. For details as to various protests against propaganda conducted by the Communist International see Tabouillot, ZöV, 5 (1935), pp 851ö60. On the Chinese-Russian incident of May 1929, arising out of alleged Communist activities of the Russian authorities of the Chinese Eastern Railway, see Toynbee, Survey (1929), pp 344–69. For the Statutes of the Communist International, see Documents (1928), pp 57–63. When in November 1933 the US recognised the Soviet Government, the latter undertook ‘to respect scrupulously the indisputable right of the United States to order its own life within its own jurisdiction in its own way and to refrain from interfering in any manner in the internal affairs of the United States’, and to prevent such interference on the part of persons in governmental service or organisations under its control or in receipt of its financial assistance. See AJ, 29 (1935), p 657; and see ibid, pp 656–62, for a note by Hyde on the protest of the US, in August 1935, against a ‘flagrant violation’ of this pledge, and Garner, BY, 17 (1936), pp 184–86. See also the Notes exchanged in December 1929 on the occasion of the resumption of diplomatic relations between Great Britain and Soviet Russia: TS No 2 (1930), Cmd 3467.
17 See Rapoport, Répertoire, ii, pp 237–39; H Lauterpacht, AJ, 22 (1928), pp 105–30, and Grotius Society, 13 (1928), pp 143–63; Bourquin, Hag R, 14 (1927), i, pp 121–78; Pella, ibid, 11 (1930), iii, 677–830 (on offences against foreign states generally); Delbez, RG, 37 (1930), pp 461–75; Preuss, ibid, 40 (1933), pp 606–45, and AJ, 28 (1934), pp 649–68; Van Dyke, ibid, 34 (1940), pp 58–73; Smith in Geo LJ, 29 (1941), pp 809–828; Fenwick, AJ, 35 (1941), pp 626–31; Cowles, ibid, 36 (1942), pp 242–51; Whitton, Hag R, 72 (1948), i, pp 545–88.
A state which allows armed bands, or more organised forces, to use its territory as a base for operations against another state may lay itself open to action in self-defence by that other state against those bases: see § 127.
18 YBILC (1954), ii, p 149; and see n 24. Note also Art 1 of the Pan-American Convention of February 1928 on Duties and Rights of States in the event of Civil Strife (see § 27, n 11) obliges the contracting parties to use all means at their disposal to prevent the inhabitants of their territories, nationals or aliens, from participating in, crossing the boundary or sailing from their territory for the purpose of starting or promoting civil war. The same Article obliges the parties to forbid, so long as the belligerency of the rebels has not been recognised, the traffic in arms and war material, except when intended for the Government.
For the Declaration on Subversion adopted in 1965 by the OAU see ILM, 5 (1966), p 138.
19 GA Res 2625 (XXV) (1970); see § 105. See also, much earlier, para 3 of GA Res 290 (IV) (1949), on ‘Essentials of peace’.
20 YBILC (1949), p 286.
21 YBILC (1954), ii, p 149.
22 GA Res 2625 (XXV) (1970). See also para 3 of GA Res 290 (IV) (1949), para 1 of GA Res 380 (V) (1950), and GA Res 2734 (XXV) (1970). See also GA Res 2131 (XX) (1965), and Res 78 adopted in 1972 by the General Assembly of the OAS, and cited in the Military and Paramilitary Activities Case, ICJ Rep (1986), at p 102, and paragraph 6 of the Declaration on the Enhancement of the Effectiveness of the Principle of Refraining from the Threat or Use of Force in International Relations: GA Res 42/22 (1987). See § 128ff., as to intervention generally.
23 GA Res 3314 (XXIX) (1974), Art 3(g). Such sending of armed bands into another state is not only an unlawful use of force and unlawful intervention but will also constitute an indirect armed attack, which gives rise to a right of self-defence on the part of the attacked state: see § 127. See also, on indirect military aggression, Zanardi in The Current Legal Regulation of the Use of Force (ed Cassese, 1986), pp 111–19. But a state’s responsibility is not engaged by the transport through its territory of arms destined for rebel groups in another state if it was in no position to put a stop to it: Military and Paramilitary Activities Case, ICJ Rep (1986), pp 82–6. See Akehurst, Indian JIL, 27 (1987), pp 366–7.
24 Report of the ILC (40th Session, 1988), para 228(5), and draft Art 12.4(g) of the draft Code of Crimes provisionally adopted by the ILC (at para 279). But intervention by fomenting or aiding subversive or terrorist activities in another state so as to undermine the free exercise by it of its sovereign rights was treated by the ILC as a crime against peace: draft Articles on the draft Code of Crimes against the Peace and Security of Mankind, Art 14 (as provisionally adopted, with commentary), ILC Report, 41st session, 1989), para 217.
25 ICJ Rep (1986), pp 118–19, 124–5, and 136.
26 See eg South Africa-Swaziland Agreement concerning Security 1982, Art 3 (ILM, 23 (1984), p 286); Israel-Lebanon Agreement 1983, Arts 4 and 6 (ILM, 22 (1983), p 708); South Africa-Mozambique Agreement on non-Aggression and Good Neighbourliness 1984, Art 3 (ILM, 23 (1984), p 282; Cadoux, AFDI, 30 (1984), pp 65–92) — but see RG, 90 (1986), pp 179–80 for violations of this Agreement by South Africa; Afghanistan-Pakistan Agreement 1988, Art II(4)–(8), (11)–(12) (ILM, 27 (1988), p 581).
27 For a detailed survey of the early practice of the US with regard to hostile expeditions see Curtis, AJ, 8 (1914), pp 1–37, 224–55, and Hackworth, ii, § 156. See generally, Brownlie, ICLQ, 7 (1958), pp 712–35; Fawcett, Hag R, 103 (1961), ii, pp 353–9; Higgins, Development of International Law through the Political Organs of the United Nations (1963), pp 189–95; Fitzmaurice, Annuaire: Livre du Centenaire 1873–1973 (1973), pp 220–221.
As to armed expeditions sent by one state into another’s territory at the latter’s invitation, see § 130.
28 Where there is a civil war between contending factions in a state, questions of recognition arise and can complicate consideration of the lawfulness of assistance given by other states to the rebels: see § 49, and § 130, n 16.
29 See eg as to Israel’s attack on such bases in Sinai in 1956, § 127, n 25; and as to Israel’s retaliatory raid on Beirut airport in 1968, see Falk, AJ, 63 (1969), pp 415–43, especially p 423ff, and Blum, AJ, 64 (1970), pp 73–103, especially p 79ff. Insofar as a state of war may be regarded as having existed at these times, different considerations apply.
30 See GA Res 109 (II) (1947), 193 (III) (1948), 288 (IV) (1949) and 382 (V) (1950), and the Report of the Special Committee set up under the first of these Resolutions (UN Doc A/644) and the Report of the Committee established by the Security Council (UN Doc S/360/Rev 1).
34 See references cited at § 130, n 4.
37 See § 127, n 31. For the rejection by the UK of a Chinese protest against the use of Hong Kong by US forces as a leave centre in between periods of operational duty in the Vietnam conflict, see BPIL (1965), pp 136–7.
38 See § 127, n 31.
39 Thus eg Tunisia and Morocco allowed the Algerian rebel movement, the FLN, to establish bases in their territories during the Algerian civil war in the years after 1954; Zambia and Mozambique allowed rebel movements in Rhodesia to establish bases in their territories; and Zambia allowed SWAPO guerrillas operating in Namibia to establish bases in its territory. Similarly, in the Middle East, several states bordering Israel have, since 1948, allowed their territories to be used by Palestinian and other guerrilla forces operating against Israel (and see n 29).
See § 131(4), as to the argument that assistance to those engaged in ‘wars of liberation’ is lawful.
42 See generally on international terrorism Moore, AS Proceedings (1973), pp 88–94; Dugard, ibid, pp 94–100; Abu-Lughod, ibid, pp 100–104; Franck and Lockwood, AJ, 68 (1974), pp 69–90; Schwarzenberger, Current Legal Problems, 24 (1971), pp 257–82; Tran-Tam in International Criminal Law, vol 1 (eds Bassiouni and Nanda, 1973), pp 490–503; Prevost, AFDI, 19 (1973), pp 579–600; Green, Israel YBHR, 4 (1974), pp 134–67; Réflexions sur la définition et la répression du terrorisme (University of Brussels Colloquium 1973) (1974); Alexander (ed), International Terrorism: National, Regional and Global Perspectives (1976); Nawaz and Gurdip Singh, Indian JIL, 17 (1977), pp 66–82; AS Proceedings (1977), pp 17–31, and (1978), pp 343–51; Alexander and Finger (eds), Terrorism: Interdisciplinary Perspectives (1977); Crelinsten, Laberge-Altmejd and Szabo (eds), Terrorism and Criminal Justice (1978); Evans and Murphy, Legal Aspects of International Terrorism (1978); Friedlander, Terrorism: Documents of International and Local Control (2 vols, 1979); Alexander, Carlton and Wilkinson (eds), Terrorism: Theory and Practice (1979); the UN Secretariat’s Analytical Study, UN Doc A/AC 160/4, 28 February 1979; Warbrick, ICLQ, 32 (1983), pp 82–119; Murphy, Punishing International Terrorists (1985); Sofaer, Foreign Affairs (Summer, 1986), pp 901–22; Labayle, AFDI, 32 (1986), pp 105–38; Tyagi, Rama Rao and Saxena, Indian JIL, 27 (1987), at, respectively, pp 160–82, 183–93, and 194–202; Falk, Revolutionaries and Functionaries: The Dual Face of Terrorism (1988); Levitt, Democracies against Terror: the Western Response to State-Supported Terrorism (1988); Bassiouni (ed), Legal Responses to International Terrorism (1988), Konstantinov, Germ YBIL, 31 (1988), pp 289–306; Guillaume Hag R, 215 (1989), iii, pp 287–416; Cassese, ICLQ, 38 (1989), pp 589–608. See also ILA, Report of the 56th Conference (1974), pp 155–77; Report of the 57th Conference (1976), pp 119–52; Report of the 59th Conference (1980), pp 495–519; Report of the 60th Conference (1982), pp 349–75; Report of the 61st Conference (1984), pp 313–24.
See also §§ 421–4, as to non-extradition for political offences, and attempts to exclude terrorist acts from the scope of such offences for extradition purposes.
43 YBILC (1954), ii, p 149. For further consideration of the matter by the ILC, in its renewed consideration of the draft Code, see Report of the ILC (40th Session, 1988), paras 246–55. As to earlier action relating to terrorism during the time of the League of Nations see 8th ed of this vol, p 292, n 5. The Convention for the Prevention and Punishment of Terrorism 1937, which was concluded within the framework of the League of Nations following the assassination in 1934 of the King of Yugoslavia and the President of the Council of France, was ratified by only one state and has not entered into force. For the final drafts of the Convention for the International Prevention and Punishment of Terrorism and of the Convention for the Creation of an International Criminal Court, see the Report of the Committee of Jurists of 26 April 1937; Doc C 222, M 162 1937 V; Hudson, Legislation, vii, pp 802, 878. For the replies of governments see Doc A 24 1936, V. See also, for the discussion in the First Committee of the Seventeenth Assembly in 1936, Off J. Special Suppl, No 156. For an analysis of the Convention see BY 19 (1938), pp 214–17. As to the special protection which must be afforded to Heads of States, diplomats and others, see §§ 451 and 492.
For an attempt to invoke municipal law remedies in respect of terrorist acts as a violation of international law — unsuccessfully, but for differing reasons on the part of the three-member Court of Appeals — see Tel-Oren v Libyan Arab Republic (1984), ILR, 77, p 192 (especially at pp 224–5, 235–7, pointing to uncertainty whether terrorism violates established customary international law).
45 GA Res 2625 (XXV) (1970), Principles 1 and 3. See also operative para 6 of GA Res 40/61 (1985). Support for terrorist armed activities within another state constitutes an indirect form of coercion which, apart from constituting an unlawful use of force, amounts to unlawful intervention: see Military and Paramilitary Activities Case, ICJ Rep (1986), p 108.
46 See § 141.
47 See § 141, n 7.
48 See § 141, n 12.
At a meeting in July 1978 in Bonn the Heads of State and Government of Canada, the Federal Republic of Germany, France, Italy, Japan, the UK and the USA made a formal statement to the effect that where a country refuses to extradite or prosecute those who hijack an aircraft and/or do not return such aircraft, their governments would take immediate action to cease all flights to that country, and would initiate action to halt incoming flights from that country or from any country by airlines of that country: ILM, 17 (1978), p 1285; AJ, 73 (1979), pp 130, 133–4; Kraiem, Harv ILJ, 19 (1978), pp 1037–45; Busuttil, ICLQ, 31 (1982), pp 474–87. A number of other governments later subscribed to that commitment. The Bonn Declaration was reaffirmed at subsequent meetings of the seven Heads of State and Government, eg at Ottawa in 1981 (ILM, 20 (1981), pp 955, 956), and at Tokyo in 1986 (ILM, 25 (1986), pp 1004, 1005). See also Chamberlain, ICLQ, 32 (1983), pp 616–32, as to the suspension of air services as a collective sanction against states which assist those who commit terrorist acts against civil aircraft; and § 645, n 3.
49 See § 141, n 14.
51 See § 492, n 8.
52 ILM, 15 (1976), p 1272; TS No 93 (1978); European TS No 90. See Vallée, AFDI, 22 (1976), pp 756–86; Stein, ZöV, 37 (1977), pp 668–84; Fraysee-Druesne, RG, 82 (1978), pp 969–1023; Lowe and Young, Neth IL Rev, 25 (1978), pp 305–33. The Convention entered into force on 4 August 1978. In the UK the Suppression of Terrorism Act 1978 enabled the UK to ratify the Convention (and note that by s 5(1) the application of the Act can be extended to states not parties to the European Convention). See also the Agreement concerning the Application of the European Convention on the Suppression of Terrorism among the Member States of the European Communities 1979 (ILM, 19 (1980), p 325), on which see Stein, ZöV, 40 (1980), pp 312–21. See also § 424, nn 12–15.
56 GA Res 34/146; TS No 81 (1983). See Platz, ZöV, 40 (1980), pp 276–311; Rosenne, Israel YBHR, 10 (1980), pp 109–56; Verwey, AJ, 75 (1981), pp 69–92; Shubber, BY, 52 (1981), pp 205–39; Lambert, Terrorism and Hostages in International Law (1990). See also SC Res 579 (1985) and 638 (1989), together with the statement by the President of the Security Council immediately before the adoption of the latter resolution. In the Case Concerning US Diplomatic and Consular Staffin Teheran the ICJ stated that ‘wrongfully to deprive human beings of their freedom and to subject them to physical constraint in conditions of hardship is in itself manifestly incompatible with the principles of the Charter of the United Nations, as well as with the fundamental principles enunciated in the Universal Declaration of Human Rights’: ICJ Rep (1980), p 42.
57 TS No 20 (1991); ILM, 27 (1988), p 628. The Protocol supplements the Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation 1971, and is to be read as one with it. The Protocol followed terrorist incidents at several international airports. See eg the statement by the President of the Security Council on 30 December 1985, referring to the attacks at Rome and Vienna airports, and urging that those responsible be brought to trial in accordance with due process of law and calling on all concerned to refrain from taking actions inconsistent with their obligations under the UN Charter and other relevant rules of international law: UNYB (1985), pp 292–3, 1170.
A further Convention was concluded at Montreal in March 1991, on the Marking of Plastic Explosives for detection.
58 ILM, 27 (1988), pp 672, 685. See Halberstam, AJ, 82 (1988), pp 269–310; Momtaz, AFDI, 34 (1988), pp 589–600; Joyner, Germ YBIL, 31 (1988), 230–62; Francioni, ibid, pp 263–88; Fried, Harv ILJ, 30 (1989), pp 26–36; Plant, ICLQ, 39 (1990), pp 27–56. The Convention was concluded in the aftermath of the seizure by terrorists of the Italian vessel Achille Lauro, in 1985, as to which see § 305, n 3.
62 As to hostile propaganda in general see Preuss, AJ, 28 (1934), pp 649–68; Fenwick, AJ, 32 (1938), pp 339–43 and AJ, 35 (1941), pp 626–31; van Dyke, AJ, 34 (1940), pp 58–73; Whitton, Hag R, 72 (1948), i, pp 545–656, AJ, 41 (1947), pp 899–903, AJ, 45 (1951), pp 151–3, AJ, 52 (1958), pp 739–45, and in International Criminal Law, vol 1 (eds Bassiouni and Nanda, 1993), pp 239–72; Wright, AS Proceedings (1950), pp 95–106; Friedmann, AJ, 50 (1956), pp 498–500; Whiteman, Digest, 13, pp 982–1029; Martin, International Propaganda, Its Legal and Diplomatic Control (1958); Stone, Legal Controls of International Conflict (rev, 1959), pp 318–23; Larson and Whitton, Propaganda: Towards Disarmament in the War of Words (1963); Evensen, Hag R, 115 (1965), ii, pp 556–62; Havinghurst (ed), International Control of Propaganda (1968); Murty, Propaganda and World Public Order (1968); Stuyt, Neth IL Rev, 24 (1977), pp 274–86.
See also § 115 (as to defamation and libels on foreign states), § 122 (as to responsibility for subversive activities generally), and § 69 (as to freedom of information). On the possibility of protecting international peace by municipal legislation against war propaganda as well as against acts injurious to foreign states, see Pella, La Protection de la paix par le droit interne (1933), and RG, 40 (1933), pp 401–505; Mirkine-Guetzévitch, Droit constitutionnel international (1933), pp 244–90; Rappaport, Grotius Society, 18 (1932), pp 41–64. In 1950 and 1951 Soviet Russia and a number of other Eastern European states passed legislation penalising incitement to war. See AJ, 46 (1952), Suppl, pp 34–42, 99–104, and Grzybowski and Pundeff, ibid, pp 537–42.
63 On the National-Socialist propaganda, wireless and otherwise, directed against Austria in 1933, see Documents (1933), pp 385–98; Stenuit, La Radiophonie et le droit international public (1932), pp 37 et seq; Preuss, AJ, 28 (1934), pp 649–68; Raestad, Dossiers de la cooperation internationale (1933).
In 1949 Haiti accused Santo Domingo of moral aggression in that a Haitian exile in Santo Domingo had been allowed to make ‘vulgar and provocative broadcasts’ directed at the overthrow of the Haitian Government, and the dispute was referred to the OAS; while in 1950 the Council of the OAS had to call upon the Governments of Haiti and the Dominican Republic to desist from systematic and hostile propaganda against each other. See Whitton, AJ, 52 (1956), at pp 743–4; and also Fenwick, AJ, 48 (1954), pp 289–92. In 1958 Lebanon and Jordan complained about (inter alia) radio propaganda directed by the United Arab Republic against them, and the matter was discussed in the Security Council: see UNYB (1958), p 36ff; Whiteman, Digest, 13, pp 1011–14. As to whether the official governmental proclamation of a ‘Captive Nations Week’ by the USA in 1960, directed in effect against the established governments of communist states, violated the rule of international law prohibiting the official use of subversive propaganda by one state against another, see Wright, AJ, 54 (1960), pp 521–35, and Whitton, AJ, 55 (1961), pp 120–32.
While in many states broadcasting is officially controlled, so that the state may bear direct responsibility for broadcasts of hostile propaganda, in others it is not and in such cases the state’s responsibility is less direct. Thus the independence of the British Broadcasting Corporation from control by the British Government has frequently been invoked by that government in replying to representations by foreign governments about BBC broadcasts; and see similarly regarding the Near East Arab Broadcasting Station in Cyprus, Parliamentary Debates (Lords), vol 198, cols 1205–7 (18 July 1956).
For bilateral agreements to refrain from hostile propaganda, see eg the Israel-Lebanon Agreement 1983, Art 5 (ILM, 22 (1983), p 708); South Africa-Mozambique Agreement on Non-Aggression and Good Neighbourliness 1984, Art 5 (ILM, 23 (1984), p 282); and the Afghanistan-Pakistan Agreement 1988, Art II(10) (ILM, 27 (1988), p 581).
64 See Off J (1936), p 1437; Cmd 5505, Misc No 6 (1937); AJ, 32 (1938), p 113; Hudson, Legislation, vii, p 409; Fenwick, AJ, 32 (1938), pp 339–43; Raestad, RI, 16 (1935), pp 289–98; Tomlinson, International Control of Radiocommunications (1938), pp 226–33. See also GA Res 841 (IX) (1954) as to the possible preparation of a protocol to transfer to the UN the functions performed under the Convention by the League of Nations: no such protocol was concluded, and the matter is still regulated by the general provisions of GA Res 24 (I) (1946).
66 See § 115, n 8. As to the right of reply and correction, see also Art 14 of the American Convention on Human Rights 1969 (§ 443), and Enforceability of the Right to Reply or Correction (1986), ILR, 79, p 336.
67 Thus in 1947 the General Assembly passed Res 110 (II) in which it condemned ‘all forms of propaganda, in whatsoever country conducted, which is either designed or likely to provoke or encourage any threat to the peace, breach of the peace, or act of aggression’. For comment see Quincy Wright, AJ, 42 (1948), pp 128–36. See also Whitton, Hag R, 72 (1948), i, pp 626–56; and GA Res 381 (V) (1950).
68 Eg GA Res 290 (IV) (1949). In the Declaration on Principles of International Law concerning Friendly Relations and Cooperation among States the Assembly declared that ‘States have the duty to refrain from propaganda for wars of aggression’ (Res 2625 (XXV) (1970)). See also paragraph 9 of the Declaration on the Enhancement of the Effectiveness of the Principle of Refraining from the Threat or Use of Force in International Relations: GA Res 42/22 (1987). See also Art 20 of the International Covenant on Civil and Political Rights 1966 (§ 440). As to condemnation of racial propaganda, see GA Res 1904 (XVIII) (1963), and Art 4 of the Convention on the Elimination of all Forms of Racial Discrimination (see § 439).
69 See GA Res 59 (II) (1946); Art 19 of the Universal Declaration of Human Rights (§ 437); and Art 19 of the International Covenant on Civil and Political Rights (§ 440); Art 10 of the European Convention on Human Rights (§ 442). See also GA Res 2448 (XXIII) (1968). See generally on freedom of information, Schwelb, ICLQ, 9 (1960), pp 662–7; Whiteman, Digest, 13, pp 903–82, 1040–68; La Circulation des informations et le droit international (proceedings of a colloquium held in Strasbourg, 1977); Vines, AS Proceedings (1979), pp 183–92; United Nations Action in the Field of Human Rights (UN Secretariat, 1988; UN Doc ST/HR/2/Rev 3), pp 222–31.
Particular problems have arisen in the context of direct transmission of television programmes across national frontiers, even if they do not contain overtly subversive material: see Freeman, AS Proceedings (1980), pp 301–11, Bond, ibid, pp 311–17; Taishoff, State Responsibility and the Direct Broadcast Satellite (1987). And see the European Convention on Transfrontier Television 1989 (Misc No 12 (1990); Cm 1068), on which see Boisson de Chazournes, AFDI, 34 (1988), pp 795–805. The European Court of Human Rights, in Autronic AG v Switzerland, The Times, 30 May 1990, has enforced a company’s freedom under Art 10 of the European Convention on Human Rights to receive information and ideas, in the form of television broadcasts from a Soviet television satellite. See also, as to differences between Cuba and the USA over transmissions by ‘TV Marti’ from the USA to Cuba, UN Docs S/21249 and S/21365 of 16 April 1990 and 21 June 1990 respectively. See generally as to satellites, § 372.
70 See § 115, n 8.
72 A Declaration on Fundamental Principles concerning the Contribution of the Mass Media to Strengthening Peace and International Understanding, the Promotion of Human Rights and to Countering Racialism, Apartheid and Incitement to War was adopted at the 20th UNESCO General Conference in November 1978: ILM, 18 (1979), p 276. See also the Resolution on an International Programme for the Development of Communication adopted at the 21st UNESCO General Conference in 1980: ILM, 20 (1981), p 451. This resolution has been seen as marking the establishment of a so-called ‘new international information and communication order’, on which see Condorelli, Ital YBIL, 5 (1980–81), pp 123–38; Sur, AFDI, 27 (1981), pp 45–64. On the UNESCO Committee for the Intergovernmental Information Programme, established in 1985, see Beer-Gabel, AFDI, 32 (1986), pp 684–96.
74 See eg Parliamentary Debates (Commons), vol 32, col 31 (written answers, 15 November 1982), ibid, vol 60, col 115 (written answers, 15 May 1984), and ibid, vol 79, col 463 (written answers, 22 May 1985). Such jamming of radio broadcasts is likely to be inconsistent with the relevant provisions, particularly Art 35, of the International Telecommunication Convention 1982, Art 19.2 of the International Covenant on Civil and Political Rights 1966, and the Final Act of the Helsinki Conference on Security and Cooperation in Europe 1975 (Art 2 of Basket 3).
1 See § 118.
2 See Oppenheimer, AJ, 36 (1942), at pp 589–90.
3 For example, in time of war a belligerent is not entitled to prohibit one of its nationals, resident in a neutral state under the laws of which debts must be paid, from paying a debt due to a national of the other belligerent. For a survey of the law of the US as to the jurisdiction of courts of equity over persons to compel the doing of acts outside the territorial limits of the state, see Messner, Minn Law Rev, 14 (1929–30), pp 494–529. As to enforcement of foreign public law, see § 144. See also § 139, as to certain problems which have arisen in connection with anti-trust cases and boycotts.
4 Note also the Treaty of Berlin of 1878 which restricted the personal supremacy of Bulgaria, Montenegro, Serbia, and Romania in so far as these states were thereby obliged not to impose any religious disabilities on any of their subjects (see also § 40, n 4 and § 131, n 41, as to the position of Cyprus); and the policy of protecting racial, religious, and linguistic minorities by means of treaty obligations was carried further in the treaties concluded at the end of the First World War (see §§ 426–7).
5 See § 131(2).
6 See §§ 429–44.
1 See H Lauterpacht, The Function of Law, pp 286–306, Development of International Law by the International Court (1958), pp 162–5; Scerni, L’abuso del diritto nei rapporti internazionali (1930); Gutteridge, CLJ, 5 (1932), pp 22–45; Seles, La Notion de l’abus du droit dans le droit international (1939); Kiss, L’abus de droit en droit international (1953); Cheng, General Principles of Law as Applied by International Tribunals (1953), pp 121–36; Politis, Hag R, 6 (1925), i, pp 1–109; Leibholz, ZöV, I (1929), pp 77–125; Schlochauer, ZöV, 17 (1933), pp 373–94; Salvioli, Hag R, 46 (1933), iv, pp 66–9; Guggenheim, ibid, 74 (1949), i, pp 249–54; Roulet, Le Caractère artificiel de la théorie de l’abus de droit en droit international (1958); Garcia-Amador, Hag R, 94 (1958), ii, pp 376–82; Schwarzenberger, International Law and Order (1971), pp 84–109; Taylor, BY, 46 (1972–73), pp 323–52; Goodwin-Gill, International Law and the Movement of Persons between States (1978), pp 209–18, and BY, 47 (1974–75), pp 79–86; Thirlway, BY, 60 (1989), pp 25–9. See also the work done by the ILC from 1974 onwards and referred to at nn 15, 16 and 18.
To some extent, the matter may be one of formulation. If a right is formulated in absolute terms (‘a State may expel aliens’), arbitrary and precipitate action may involve an abuse of that right; if the right is formulated in qualified terms (‘a State may take reasonable measures to expel aliens’), such action would be wrongful not so much as an abuse of right but as being outside the scope of the right claimed. And see YBILC (1973), p 182, para (10). The inclusion in a rule of a qualification requiring reasonableness, or something similar, in its application, serves much of the purpose of the doctrine of ‘abuse of rights’. That doctrine is a useful safeguard in relatively undeveloped or over-inflexible parts of a legal system pending the development of precise and detailed rules.
2 See §§ 413–14.
3 Free Zones of Upper Savoy and the District of Gex: Series A, No 24, p 12, and Series A/B, No 46, p 167. See also the case of Certain German Interests in Polish Upper Silesia: Series A, No 7, p 30. In the Anglo-Norwegian Fisheries case the Court regarded the situation before it as in part involving a ‘case of manifest abuse’ of the right to measure the territorial sea: ICJ Rep (1951), p 142. See Fitzmaurice, BY, 27 (1950), pp 12–14; ibid, 30 (1953), pp 53–4; and ibid, 35 (1959), pp 210–16.
When the ILC adopted in 1953 a draft Article on Fisheries which provided, de lege ferenda, that states shall be under a duty to accept regulations prescribed by an international authority as essential for the purpose of protecting fishing resources against waste or extermination, it stated that the prohibition of abuse of rights was supported by judicial and other authority (Report of the Commission (Fifth Session, 1953)).
4 See eg Judge Azevedo in the Admission Case, ICJ Rep (1948), pp 79, 80; Judge Alvarez in the Admission (General Assembly) Case, ICJ Rep (1950), p 15. See also Judge Anzilotti in the Electricity Company of Sofia Case, Series A/B, No 77, p 88.
5 See the Joint Dissenting Opinion in the Admission Case, ICJ Rep (1948), pp 91, 92; and see the Opinion of the Court itself in that case for the statement that with regard to the conditions of admission of new members the Charter did not forbid the taking into consideration of any factor it was possible ‘reasonably and in good faith’ to connect with the conditions laid down in the Charter.
6 See the Minutes of the First Committee of the Hague Conference on Codification of International Law (1930), pp 20 and 197. And see Rundstein, ZöV, 16 (1931), pp 41–5, and § 378. See also the Dissenting Opinion of Judge Read in the Nottebohm Case, ICJ Rep (1955), at pp 37–8.
8 See Handelskwekerij G J Bier BV v Mines de Potasse d’Alsace SA, Neth YBIL, 11 (1980), p 326, concerning pollution of the Rhine by a company in France, causing damage in the Netherlands. The court concluded that it had to apply international law and that, there being no applicable rule of customary international law, it had to apply general principles of law, which included the principle sic utere tuo ut alienum non laedas, by virtue of which the person making the discharge which was causing the pollution was acting in breach of a legal duty.
9 See § 12. In Internationale Handelsgesellschaft mbH v Einfuhr- und Vorratsstelle für Getreide und Futtermittel  CMLR 177, 186, a court in the Federal Republic of Germany regarded the principle of proportionality as existing in public international law as part of the general principle of law prohibiting the abuse of rights.
l0 See eg Balladore Pallieri, p 287; Cavaglieri, Nuovi Studi sull’ intervento (1928), pp 42–52. ‘Abuse of rights’ may have some affinities with, although it is distinct from, the doctrine of détournement de pouvoir. The Court of Justice of the European Communities has jurisdiction to hold invalid acts of the Council and Commission of the Communities on grounds, inter alia, of misuse of powers: see Art 173 of the Treaty establishing the EEC, and equivalent Articles of the Treaties establishing the ECSC and Euratom.
11 RIAA, iii, p 1963, quoting Eagleton, Responsibility of States in International Law (1928), p 80. See also n 14.
12 ICJ Rep (1949), p 22; and see § 121, n 8.
See also the Lake Lanoux Arbitration — in which France’s entitlement to exercise its rights (in relation to the utilisation of the waters of Lake Lanoux) had to be set against the entitlement of Spain (which was downstream of Lake Lanoux) to have its rights respected and Spanish interests taken into consideration — but this Arbitration turned on the provisions of a treaty between the two parties rather than on customary international law (ILR, 24 (1957), at p 140). It must be noted that where actions of private individuals and companies in one state cause harm in the territory of another, the matter is often settled by municipal courts applying municipal law. For references to several such cases, see Lachs, ICLQ, 39 (1990), pp 663–9. See also n 8 of this section. As to the damage caused to downstream states by the escape of chemical wastes into the Rhine from the Sandoz Chemical Corporation’s factory at Basle, Switzerland, see Rest, Germ YBIL, 30 (1987), pp 160–76.
14 For an instance of conventional regulation of a nuisance committed by private persons and affecting injuriously the territory of a neighbouring state, see the Convention of 15 April 1935, between Canada and the USA for the settlement of difficulties arising out of the complaint of the US that fumes discharged from the smelter of the Consolidated Mining and Smelting Company in British Columbia were causing damage to the State of Washington: US TS No 983; AJ, 30 (1936), Suppl, p 163. In the Trail Smelter Arbitration arising out of this Agreement it was held, in 1941, that under international law no state has a right to use or permit the use of its territory in such a manner as to cause injury by fumes in or to the territory of another; RIAA, iii, p 1963; AD, 9 (1938–40), No 104. See the Report in the same matter of the International Joint Commission between Canada and the US of 28 February 1931: AJ, 25 (1931), p 540. See also § 121, n 5.
15 Res 3071 (XXVIII) (1973).
16 YBILC (1980), ii, pt 2, p 159. See generally, UN Secretariat, Study of State Practice Relevant to International Liability for Injurious Consequences Arising out of Acts not Prohibited by International Law (1984, UN Doc A/CN 4/384).
17 Note also the Decision of the OECD Council of 8 July 1988 on the exchange of information concerning accidents capable of causing transfrontier damage: ILM, 28 (1989), p 247. And see § 125, n 15, for other OECD decisions.
18 See draft Arts 1–10 submitted by the Special Rapporteur and referred to the Drafting Committee by the ILC at the end of its debate on this topic at its 1988 session: Report of the ILC (40th Session, 1988), paras 21–101. See also Arts 10–17 (the previous Arts 1–10 having been revised to become Arts 1–9) discussed by the ILC at its 1989 session, and focusing on procedures (warnings, notifications, etc) for preventing transboundary harm: Report of the ILC (41st Session, 1989), paras 377–97, these articles were expanded into Arts 10–20 at the Commission’s session in 1990, and draft Arts 21–27 (on international liability) and 28–33 (on civil liability in municipal law) were also discussed: Report of the ILC (42nd Session, 1990), paras 492–525. See generally on the ILCs work on this topic, Caubet, AFDI, 29 (1983), pp 99–120; Magraw, AJ, 80 (1986), pp 305–30; Barboza, AFDI, 34 (1988), pp 513–22; Boyle, ICLQ 39 (1990), pp 1–26.
1 See generally Andrassy, Hag R, 79 (1951), ii, pp 77–178; Thalmann, Grundprinzipien des modernen zwischenstaatlichen Nachbarrechts (1951); Hag R (1973), Special Vol (ed Kiss) (Proceedings of Colloquium on the Protection of the Environment and International Law); Dickstein, ICLQ, 23 (1974), pp 426–46; Barros and Johnston, The International Law of Pollution (1974), pp 69–82; Handl, AJ, 69 (1975), pp 50–76; Teclaff and Utton (eds), International Environmental Law (1975); Kiss, Survey of Current Developments in International Environmental Law (1976), in The Structure and Process of International Law (eds Macdonald and Johnston, 1983), pp 1069–94, Droit international de l’environment (1989), and Germ YBIL, 32 (1989), pp 241–63; Hoffman, ICLQ, 25 (1976), pp 509–42; Johnson, International Environmental Law (1976); Dupuy, AFDI, 20 (1974), pp 815–29, and La Responsabilité internationale des états pour les dommages d’origine technologique et industrielle (1977); Springer, ICLQ, 26 (1977), pp 531–57; Handl, Rev Belge, 14 (1978–79), pp 40–64, AJ, 74 (1980), pp 525–65, and AS Proceedings (1980), pp 223–34; Schneider, World Public Order and the Environment (1979); Bothe (ed), Trends in Environmental Policy and Law (1980); Cripps, ICLQ, 29 (1980), pp 1, 2–6; Caldwell, International Environmental Policy (1984); Hag R (1984), Special Vol (ed Dupuy) (Proceedings of Colloquium on the Future of the International Law of the Environment); Gündling, ZöV, 45 (1985), pp 265–91; Lang, ZöV, 46 (1986), pp 261–83; Flinterman, Kwiatkowska and Lammers (eds), Transboundary Air Pollution (1986); Malvia, Indian JIL, 27 (1987), pp 30–49; Annuaire, 1 (1987), pp 159–294 (an exhaustive study); Environmental Protection and Sustainable Development (1987), a Report of UN Experts Group on Environmental Law (Munro, Chairman; Lammers, Rapporteur), appointed by the UN World Commission on Environment and Development; Anand, International Law and the Developing Countries (1987), pp 150–73; Restatement (Third), ii, pp 99–143; Sumitra, Indian JIL, 27 (1987), pp 385–410; Boyle, BY, 60 (1989), pp 257–313; Gaines, Harv ILJ, 30 (1989), p 311–49; Hahn and Richards, ibid, pp 421–46; Lachs, ICLQ, 39 (1990), pp 663–9; Sachariew, Neth IL Rev, 37 (1990), pp 193–206; Wolfrum, Germ YBIL, 33 (1990), 308–30.
See also discussion of the legal aspects of long-distance air pollution by the ILA: Report of the 58th Conference (1978), pp 383, 390–422; Report of the 59th Conference (1980), pp 531–79; Report of the 60th Conference (1982), pp 157–82 (approving the ‘Montreal’ Rules of International Law Applicable to Transfrontier Pollution); Report of the 61st Conference (1984), pp 377–413; Report of the 62nd Conference (1986), pp 198–230; Report of the 63rd Conference (1988), pp 218–81. See also § 179, as to pollution of river waters resulting from the conduct of upper riparian states; and § 124, n 18, as to the work of the ILC on state responsibility for injurious consequences arising out of acts not prohibited by international law.
While international concern has grown rapidly in the last decade, the matter began to attract growing attention among lawyers and scientists much earlier. See eg Air Pollution (1961), World Health Organisation Monograph Series No 46.
2 See n 11 of this section.
3 Some states formally reserved their rights as against the USSR; these included the UK (see UKMIL, BY, 57 (1986), p 600). See generally on this incident, RG, 90 (1986), pp 1016–20, and 91 (1987), p 653; Kiss, AFDI, 32 (1986), pp 139–52; Handl, RG, 92 (1988), pp 5–62; the statement by the IAEA Board of Governors, at ILM, 25 (1986), p 1009; Sands, Chernobyl: Law and Communication (1988); and Woodliffe, ICLQ, 39 (1990), pp 461–71. For an attempt (unsuccessful, mainly on procedural grounds) to institute proceedings against the USSR for damage allegedly caused by the Chernobyl accident, see Garden Contamination Case (1) and (2) (1987), ILR, 80, pp 367, 377; the court noted, inter alia, that relevant international obligations which might have been breached by the USSR would give rise to claims by other states rather than by affected individuals (at p 382).
As a result of the Chernobyl accident two conventions were concluded within the framework of the IAEA: the Convention on Early Notification of a Nuclear Accident 1986, and the Convention on Assistance in the Case of a Nuclear Accident or Radiological Emergency 1986: ILM, 25 (1986), pp 1370, 1377. The former entered into force on 27 October 1986. It is open for accession to all states and to international organisations and regional integration organisations constituted by sovereign states which have competence in the relevant matter. The depositary is the IAEA. See Adede, The IAEA Notification and Assistance Conventions (1987). Note also similar bilateral agreements providing for prompt exchange of information in the event of a nuclear accident, such as that concluded in 1990 between the UK and the Soviet Union (TS No 54 (1990)) and in 1987 between the UK and Denmark (TS No 11 (1989)), which has in turn concluded similar agreements with Sweden, Norway, Finland, Poland and the USSR: RG, 92 (1988), p 379. For other similar cooperation and assistance arrangements, see OECD Council decision of 8 July 1988 (ILM, 28 (1989), p 247; RG, 94 (1990), pp 140–6), and Boyle, BY, 60 (1989), pp 257, 278–85.
There was also the disaster of a gas leak from a pesticide plant at Bhopal in India, on 3 December 1984; but this did not apparently involve cross-frontier air pollution, and the question of responsibility fell to be determined by municipal law and, ultimately, by the Indian municipal courts. For the Bhopal Gas Leak Disaster (Processing of Claims) Act 1985, see ILM, 25 (1986), p 884. Litigation was also instituted in the USA: see Re Union Carbide Corpn Gas Plant Disaster at Bhopal, India in December 1984, ILM, 25 (1986), p 771, AJ, 80 (1986), p 771, AJ, 80 (1986), p 964, affirmed on appeal, AJ, 81 (1987), p 415. See also Magraw, AJ, 80 (1986), pp 305, 325–6; Abraham and Abraham, ICLQ, 40 (1991), pp 334–65.
In 1973 Australia and New Zealand instituted proceedings before the ICJ against France in respect of the conduct by France of nuclear tests in the Pacific which it was claimed by the applicants would lead to radioactive fall-out on their territories thus violating their territorial sovereignty: the Court granted interim measures of protection to the applicant states (Nuclear Tests Case, ICJ Rep (1973), pp 99, 135: see Cot, AFDI, 19 (1973), pp 252–71) but did not in the event need to reach any decision on the substantive issues which arose (ibid (1974), pp 253, 457). Note also Art I.I of the Treaty banning Nuclear Weapon Tests in the Atmosphere, in Outer Space and under Water 1963 (TS No 3 (1964)) providing for the prohibition of nuclear weapon test explosions if they cause radioactive debris to be present outside the territorial limits of the state under whose jurisdiction or control such explosion is conducted. As to liability for ultra-hazardous activities, see § 149.
4 See § 353ff, as to marine pollution generally. It should be noted that Arts 192–6 of the Law of the Sea Convention 1982 consist of ‘General Provisions’ which are a statement in treaty language of the general principles of the Stockholm Conference, and may therefore be relevant also to the protection of the environment of land areas.
5 See § 353ff.
6 See eg Convention on the Dumping of Waste and Other Matters at Sea 1972 (ILM 11 (1972), p 1308; TS No 43 (1976)); Convention for the Prevention of Marine Pollution by Dumping from Ships and Aircraft 1972 (ILM, 11 (1972), p 263).
7 See eg Convention for the Prevention of Marine Pollution from Land-Based Sources 1974 (TS No 64 (1978); ILM, 13 (1974), p 352); Convention on Protection of the Marine Environment in the Baltic 1974 (ILM, 13 (1974), p 546), on which see Boczek, AJ, 72 (1978), pp 782–814. A Protocol to the former Convention was concluded in 1986 extending it to cover the emission of pollutants into the atmosphere: Cm 87, Misc No 3 (1987).
8 See § 179; and the Report by Salmon, Annuaire, 58 (1979), i, pp 193–380, at p 318, for a list of relevant conventions from 1868–1977.
9 See eg the Geneva Convention on Long-Range Transboundary Air Pollution 1979; ILM, 18 (1979), p 1442; TS No 57 (1983). Participation in this convention was limited to member states of the Economic Commission for Europe, and also states having a consultative status with the Commission, and certain regional economic integration organisations. This convention, however, is limited to matters of cooperation and exchange of information, and undertakings to adopt policies without undue delay for combating air pollution; it does not touch on the difficult matter of liability. On this convention, see Heywood, Harv ILJ, 21 (1980), pp 536–40; Rosencranz, AJ, 75 (1981), pp 975–82; Tollan, Journal of World Trade Law, 19 (1985), pp 615–19; UN Legislative Series, Review of the Multilateral Treaty-Making Process (1985) (ST/LEG/SER B/21), pp 264–6; Fraenkel, Harv ILJ, 30 (1989), pp 447–76. Three protocols to the convention were concluded in 1984 (ILM, 24 (1985), p 484; TS No 24 (1985)), 1985 (ILM, 27 (1988), p 698) and 1988 (ILM, 28 (1989), p 212). The 1984 Protocol makes provision for mandatory contributions from party governments (to replace contributions from the UN Environment Programme (UNEP)); the 1985 Protocol ‘on the Reduction of Sulphur Emissions or their transboundary fluxes by at least 30%’ containing undertakings to achieve this as soon as possible and at the latest by 1993; the 1988 Protocol concerns the ‘control of emissions of nitrogen oxides or their transboundary fluxes’. See also the Declaration on Acid Rain, 21 March 1984, by Canada and nine west European parties to the convention, undertaking to reduce emissions of sulphur and nitrogen oxides: ILM, 23 (1984), p 662.
See also the Convention on the Protection of the Environment, concluded by the Nordic States in 1974: ICLQ, 23 (1974), pp 886–7; Kiss, AFDI, 20 (1974), pp 808–14.
10 See the two conventions concluded in 1986 in the aftermath of the Chernobyl disaster, and cited at n 3 of this section.
11 See eg US-Mexico Agreement on Cooperation for the Protection and Improvement of the Environment 1983 (ILM, 22 (1983), p 1025); and four Annexes concluded in 1985–86 (ILM, 26 (1987), p 16); and see Hoffmann, Harv ILJ, 25 (1984), pp 239–44.
See also the Memorandum concerning Transboundary Air Pollution concluded between the USA and Canada in 1980 (ILM, 20 (1981), p 690). The State of New York and the Province of Quebec concluded an agreement on acid precipitation in 1982: ILM, 21 (1982), p 721. See generally on problems of acid rain and other transboundary pollution problems as between Canada and the USA, Bourns, Neth IL Rev (1981), pp 188–94; Wetstone and Rosencranz, Acid Rain in Europe and North America (1983); Van Lier, Acid Rain and International Law (1984); Schmandt and Roderick (eds), Acid Rain and Friendly Neighbours (1985); ILA, Report of the 63rd Conference (1988), pp 237–8; Brunnée, Acid Rain and Ozone Layer Depletion (1988); and works cited at n 1 and n 9 of this section, dealing with transfrontier air pollution generally.
12 See n 6 of this section.
13 Eg Art V of the Antarctic Treaty 1959 (see § 257).
14 ILM, 28 (1989), p 657. See Bothe, Germ YBIL, 33 (1990), pp 422–31. As to particular problems associated with the dumping of waste products in Third World States, see Pambou Tchivounda, AFDI, 34 (1988), pp 709–25.
15 ILM, 11 (1972), p 1416. See Kiss and Sicault, AFDI, 18 (1972), pp 603–28. The Stockholm Conference was convened on the recommendation of the UN Economic and Social Council in 1968 (Res 1346 (XLV)). Principle 21 states that states have, in accordance with the UN Charter and the principles of international law, the sovereign right to exploit their own resources pursuant to their own environmental policies, and the responsibility to ensure that activities within their jurisdiction or control do not cause damage to the environment of other states or areas beyond the limits of national jurisdiction; and according to Principle 22 states shall cooperate to develop further the international law regarding liability and compensation for the victims of pollution and other environmental damage caused by activities within the jurisdiction or control of such states to areas beyond their jurisdiction. Note also the Nairobi Declaration adopted in 1982 on the tenth anniversary of the Stockholm Declaration: ILM, 21 (1982), p 676, and Kiss, AFDI, 28 (1982), pp 784–93.
See also GA Res 44/228 (1989), convening a Conference on Environment and Development in Brazil in June 1992, ‘to promote the further development of international environmental law, taking into account the Declaration of the United Nations Conference on Human Environment, as well as the special needs and concerns of the developing countries, and to examine, in this context, the feasibility of elaborating general rights and obligations of States, as appropriate, in the field of the environment, also taking into account relevant existing international legal instruments’ (pt I, para 15(d)).
See also recommendations relating to transfrontier pollution adopted by the OECD Council in 1974, 1976, 1977 and 1978 (respectively, ILM, 14 (1975), p 242; ibid, 15 (1976), p 1218; ibid, 16 (1977), p 977; and ibid, 17 (1978), p 1530); ICLQ, 25 (1976), p 917; Shoesmith, Harv ILJ, 19 (1978), p 407. See also the Council’s decision of 8 July 1988 on the exchange of information concerning accidents capable of causing transfrontier damage: ILM, 28 (1989), p 247; RG, 94 (1990), pp 140–6.
18 See n 15 of this section.
19 See also Art 145 (as to protection of the marine environment from harmful effects of activities on the seabed beyond national jurisdiction); and Arts 1(4) and (5) defining ‘pollution of the marine environment’ and ‘dumping’. See also § 353ff.
20 See § 106, n 6.
22 Convention on the Prohibition of Military or Any Other Hostile Use of Environmental Modification Techniques 1976. GA Res 31/72; ILM, 16 (1977), p 88. See Fischer, AFDI, 23 (1977), pp 820–36. See also Arts 35(3) and 55 of the 1977 Additional Protocol I to the Geneva Conventions of 1949 (ILM, 16 (1977), p 1391). During its occupation of Kuwait in 1990–91 Iraq caused extensive environmental damage by releasing crude oil into the waters of the Gulf, and setting fire to hundreds of oil wells.
24 ILM, 26 (1987), p 1550. It entered into force on 1 January 1989. There are special provisions for developing countries. See also the Adjustments to that Protocol adopted in 1990 (TS No 32 (1991)), on which see Mintz, Yale JIL, 16 (1991), pp 571–82.
25 See eg the work of the Intergovernmental Panel on Climate Change, established in 1988 by UNEP. The panel established several committees to study various aspects of the matter, and they presented their reports in 1990.
See also on various legal aspects of atmospheric protection and global climate change Kiss, AFDI, 21 (1975), pp 792–800, and 34 (1988), pp 701–8; Nanda (ed), World Climate Change: the Role of International Law and Institutions (1983); papers by Handl, Hajost, Gündling and Williams, in AS Proceedings, 1989, pp 62–80; Kirgis, AJ, 84 (1990), pp 525–30 (with particular reference to GA Res 43/53 (1988); Nanda, Harv ILJ, 30 (1989), pp 375–420; Churchill and Freestone (eds), International Law and Global Climate Change (1991).
26 On the need to develop international law so as adequately to ensure such protection see Brunée, ZöV, 49 (1989), pp 791–808; and Report of the ILC (42nd Session, 1990), paras 526–30, as to the protection of the environment in areas beyond national jurisdiction (‘global commons’).
27 Note that Art 8(10) of the Convention on the Regulation of Antarctic Mineral Resource Activities 1988 (see § 257, n 5) provides for the Commission established by that Convention to be able to pursue, in the national courts of parties, liability claims for damages to the Antarctic environment or dependent or associated ecosystems.
29 See § 649.