Principles of International Law: LLM Study Guide

A comprehensive study guide for the LLM Principles of International Law module.

FACULTY OF LAW Fourah Bay College · University of Sierra Leone LLM · Principles of International Law Module PRINCIPLES OF INTERNATIONAL LAW A Comprehensive Study Guide in plain English, with examples, memory notes and exam practice SEVEN PRINCIPLES COVERED 1. Definition & Sources of International Law 2. Sovereign Equality of States 3. Prohibition of the Excessive Use of Force 4. Pacta Sunt Servanda (“Agreements Must Be Kept”) 5. Cultural Relativism 6. Respect for Human Rights 7. Self-Determination of Peoples Built on the lecture notes and expanded with further research drawn from leading authorities, treaty texts, ICJ case law and African human-rights jurisprudence. OSCOLA citation conventions · Prepared 30 May 2026 How to Use This Guide This guide is organised so that you can move quickly between what was taught in class and what further research adds without ever losing track of which is which. Every one of the seven principles is laid out using the same six-part pattern.

1. The lecturer’s notes

A clear summary of what the lecturer covered in the class notes the anchor for what to focus on in revision and what the examiner will expect you to know.

2. The principle explained

A plain-English walk-through of the principle. No Latin without a translation, no jargon without a definition. Built up step by step.

3. Further research

Material I have added that goes beyond what the lecturer gave you leading cases, treaty article numbers, scholarly debates, comparative material. Marked in green so you can see at a glance what is additional research and what came from the class.

4. Worked examples

Concrete, real-world illustrations some Sierra Leonean, some global to make the principle tangible.

5. Memory notes

A compact revision card: key articles, key cases, key dates, key terms, and a oneline “bottom line” you can recite from memory.

6. Exam practice

A short-answer question, an essay question and a problem question (with brief “approach” notes) so you can rehearse turning the principle into marks.

A note on academic integrity Where I have brought in material the lecturer did not include, I have flagged it clearly as further research. Use those sections to enrich the essays but cite the underlying authorities (the treaty article, the case, the scholar) rather than the lecturer’s notes or this guide. The further-research sections are tools for the independent reading, not substitutes for it. Citations are given in OSCOLA style throughout, which is the convention you have been using in the LLM coursework.

Before We Begin An Orientation Before diving into the seven principles, take a moment to set the scene.

What is international law in one paragraph? International law is the set of rules and principles that countries (and a few other actors like the United Nations or the African Union) follow when they deal with each other. Think of it as the rulebook for a world that has no central government no global parliament, no global police force, no global supreme court with final authority over every country. Because of that absence, international law has to work by agreement between states. States make treaties, they fall into habits of behaviour that harden into customs, and they accept certain principles like the idea that promises should be kept as binding. The seven principles in this module are the load-bearing pillars of that system.

How the seven principles fit together These are not seven random rules. They form a coherent architecture:

• Principle 1 (Definition & Sources) tells you where the rules come from the foundation of everything else.
• Principle 2 (Sovereign Equality) tells you who the actors are and what their starting position is every state, legally, is equal.
• Principle 3 (Prohibition of Force) is the core constraint: states may not solve disputes by attacking each other.
• Principle 4 (Pacta Sunt Servanda) is the core obligation: when states do agree to something, they must keep it.
• Principle 5 (Cultural Relativism) asks how universal these rules really are when applied across diverse societies.
• Principle 6 (Respect for Human Rights) widens the lens beyond states individuals matter, and states owe duties to people, not just to each other.
• Principle 7 (Self-Determination) asks who counts as a state in the first place the right of peoples to choose their political future. Sierra Leone’s own legal history runs through almost every one of these principles from the country’s independence in 1961 (Principle 7), through the civil war and the Special Court (Principles 3 and 6), to current debates about customary marriage (Principle 5) and treaty domestication (Principle 1). Wherever possible, examples are drawn from home so the principles feel concrete rather than abstract.

Topic 1 Definition & Sources of International Law Before you can argue about what a state can do, you need to know where the rules come from and whether they really are rules at all. That is the work of this first topic. Everything else in the module sits on top of it.

FRO M T H E L E CTURE R’S NO T E S

The class notes cover the following ground on this topic: ▪ Definition and nature international law is the set of rules, agreements and treaties binding between states and other international actors; it regulates relations between sovereign states, international organisations and (in some cases) individuals. ▪ Based on consent states agree to be bound through treaties, customs or recognition of general principles. ▪ Purpose to maintain peace, regulate diplomacy, protect human rights and provide mechanisms for dispute resolution. ▪ Domestic vs international law domestic law is enforced by national institutions (courts, police); international law lacks a central enforcer and relies on consent, reciprocity and the reputational cost of non-compliance.

• Sources treaties (e.g. Paris Agreement, UN Charter); customs (consistent state practice plus opinio juris the belief that the practice is legally required); general principles of law (e.g. pacta sunt servanda). ▪ Global organisations the UN, ICJ, AU and ECOWAS as forums for dialogue, dispute resolution and regional cooperation. ▪ Importance for small states international law gives smaller countries like Sierra Leone legal protection and a platform for representation. ▪ Practical example Sierra Leone’s post-civil-war peacebuilding relied on ECOWAS, UN peacekeeping and the Special Court for Sierra Leone.

The Principle Explained (a) What “international law” actually is in plain English Strip away the textbook language and international law is just a rulebook for countries. Three classic definitions help fix the idea:

• Oppenheim described it as the body of customary and conventional rules considered legally binding by civilised states in their dealings with one another. In simpler words: the rules states treat as binding when they deal with each other.
• J. L. Brierly (The Law of Nations) called it the body of rules and principles of action binding upon civilised states in their relations with one another.
• J. G. Starke put it pragmatically: a body of law made up of principles and rules of conduct which states feel bound to observe and do commonly observe in their relations with each other. Notice the common thread states feel bound by these rules. That feeling of obligation is what separates international law from mere diplomatic etiquette.

(b) Why we need it Imagine a world without international law. Every dispute over fishing rights, every cross-border investment, every diplomat sent abroad, every airline flight, every postal exchange each would have to be negotiated from scratch with no shared rules. International law solves this by providing a common framework so that states can predict each other’s behaviour, settle disputes peacefully, and cooperate on shared problems (climate change, pandemics, trade). (c) Is it really “law”? The Austin debate This is the classic challenge. In 1832, the English jurist John Austin argued that real law had to be the command of a sovereign backed by sanctions. International law has no global sovereign and no centralised enforcement, so Austin classified it as “positive international morality” a matter of conscience, not law. Most modern jurists disagree. Their answers, in plain terms:

• Law does not need a sovereign. Customary law within tribes, and contract law between strangers, both function without a sovereign’s direct command. Hart called Austin’s model “the gunman writ large” a description of force, not law.
• States behave as if it is law. When states breach international law they almost always justify their conduct in legal terms; they don’t shrug and say “it’s only morality.” That practice itself reveals a sense of legal obligation.
• Sanctions do exist but in decentralised form: countermeasures, reprisals, trade sanctions, Security Council enforcement, reputational costs and loss of diplomatic standing.
• H. L. A. Hart rebuilt the theory of law as a union of primary rules (what we must do) and secondary rules (how to make, change and apply primary rules). On that model, international law is law though Hart accepted it lacks a fully developed “rule of recognition.” Conclusion of the debate: international law is law, but a decentralised kind of law. The mistake is to assume that all law must look like English contract law enforced in a Freetown courtroom. Different legal systems work differently.

(d) Two kinds of “international law” don’t confuse them Students often blur two very different ideas: Public international law Governs relations between states and other international subjects (the UN, the AU, ECOWAS) and in limited ways individuals (human rights, war crimes). This is what this 457 module is about.

Private international law (conflict of laws)

A part of domestic law that decides which country’s law applies to a cross-border private dispute (e.g. a Lebanese trader sues a Sierra Leonean importer over a contract concluded in Dubai). Not part of public international law.

(e) Where the rules come from the sources The lecturer lists three sources: treaties, custom and general principles. These are the heart of it, but international lawyers usually quote a slightly fuller list found in Article 38(1) of the Statute of the International Court of Justice (an Annex to the UN Charter). Article 38(1) is the closest thing international law has to an official statement of its sources, and it lists four: Source What it is Example Treaties / conventions Written agreements between states, expressly creating rules they accept as binding.

UN Charter; Vienna Convention on the Law of Treaties 1969; Paris Agreement; African Charter 1981.

International custom An unwritten rule formed when (i) states consistently behave in a certain way (“state practice”), AND (ii) they do so because they believe it is legally required (“opinio juris”). Both ingredients are essential.

Granting immunity to foreign diplomats was originally just custom universal practice plus a sense of legal duty before it was codified in the Vienna Convention on Diplomatic Relations 1961.

General principles of law Principles recognised by civilised legal systems generally a gap-filler when no treaty or custom directly answers a question.

Pacta sunt servanda (agreements must be kept); good faith; estoppel; res judicata; equity.

Judicial decisions & teachings of publicists (subsidiary means)

Decisions of international courts and the writings of leading scholars not binding themselves, but powerful evidence of what the law is. Note: under Article 59 of the ICJ Statute, ICJ judgments bind only the parties to the case (no formal stare decisis), but in practice later courts treat them with great respect.

North Sea Continental Shelf ICJ Rep 3; Brownlie’s Principles of Public International Law.

(f) Beyond Article 38 three modern additions Modern doctrine recognises three categories that sit alongside Article 38:

• Soft law declarations, resolutions, codes of conduct that are not technically binding but are normatively influential and can crystallise into custom over time (e.g. UNGA resolutions, the UDHR before its rules hardened).
• Jus cogens (peremptory norms) super-rules that bind all states and that admit no derogation: prohibitions on genocide, slavery, torture and aggression are the standard examples. A treaty that conflicts with jus cogens is void (see VCLT Arts 53 and 64).
• Erga omnes obligations owed to the international community as a whole, so that any state has legal standing to demand compliance (self-determination, basic human rights).

(g) Is there a hierarchy among the sources? Article 38 lists the sources but does not rank them. Conflicts are resolved by interpretive maxims lex specialis (the more specific rule prevails), lex posterior (the later rule prevails). The one absolute rule: jus cogens beats everything else. A treaty conflicting with a peremptory norm is void; even a custom cannot stand against it.

(h) How does international law become law in Sierra Leone? monism vs dualism There are two views about the relationship between international law and domestic law: Monism International and domestic law are one legal system. International law applies automatically inside the state a citizen can rely on a ratified treaty in a national court without further legislation. Some European countries take this view.

Dualism International and domestic law are two separate systems. A treaty binds the state internationally as soon as it is ratified, but it has no effect inside the state until Parliament passes an Act giving it domestic force. Britain and most Commonwealth countries are dualist.

Sierra Leone is dualist. Under section of the 1991 Constitution, where a treaty relates to the legislative competence of Parliament or alters the laws of Sierra Leone, it is subject to ratification by Parliament and must be domesticated by an enabling Act before it has the force of law. The Government–UN agreement establishing the Special Court for Sierra Leone, for example, was domesticated by the Special Court Agreement, 2002 (Ratification) Act No. 7 of 2002. Without that Act, the agreement would have been internationally binding on Sierra Leone but unenforceable in a Freetown court.

FURT H E R RE S E ARCH

B E YO ND T H E L E CT URE R’S NO T E S

The points below go beyond what the class notes provide. They are based on the leading internationallaw textbooks (Shaw, Brownlie / Crawford, Cassese), the ICJ Statute, the VCLT 1969, and Sierra Leone’s constitutional materials. ▪ The textual authority for the sources. The lecturer mentions “sources” in general terms. The standard textual reference is Article 38(1) of the Statute of the International Court of Justice quote this article (and its four sub-paragraphs (a)–(d)) when you want to anchor an essay in authority. ▪ The leading custom case is North Sea Continental Shelf (Germany v Denmark; Germany v Netherlands) ICJ Rep 3, para 77 the ICJ held that practice must be both settled AND accompanied by a belief that it is rendered obligatory by law (opinio juris). Mere habit is not enough. ▪ The Lotus principle The SS Lotus (France v Turkey) (1927) PCIJ Ser A No 10 a state’s sovereignty means that what is not prohibited is permitted; opinio juris can also be inferred from omissions. ▪ The Paquete Habana 175 US 677 (1900) a US Supreme Court case that famously held “international law is part of our law” and used centuries of state practice to identify a customary rule exempting coastal fishing vessels from capture as prize in war. ▪ Nicaragua v United States ICJ Rep 14 demonstrates that the same rule (here, the prohibition on the use of force) can exist simultaneously in treaty form and as customary law, with each source operating independently.

• Jus cogens is codified in the Vienna Convention on the Law of Treaties 1969, Article 53 (a treaty conflicting with a peremptory norm at the time of its conclusion is void) and Article 64 (a treaty becomes void if a new peremptory norm emerges that conflicts with it). ▪ Sierra Leone’s dualism is constitutionally grounded in section 40(4) of the 1991 Constitution. The accompanying doctrine is parliamentary supremacy: Parliament must domesticate treaties before they take internal effect. The Special Court Agreement, 2002 (Ratification) Act No. 7 of 2002 is the textbook illustration. ▪ State responsibility when international law is breached is governed by the ILC Articles on Responsibility of States for Internationally Wrongful Acts (2001) not a treaty, but reflecting customary law in the view of the ICJ. ▪ The Austin debate is taken up by H. L. A. Hart, The Concept of Law (1961), and Georg Schwarzenberger, The Inductive Approach to International Law (1965), among others. Both reject Austin’s framework as inadequate even for explaining municipal law.

WO RK E D E XAMPL E S

Four worked examples to make the principle concrete: ▪ Example 1 A treaty in action: the UN Charter. Sierra Leone joined the UN in 1961. From that moment, the UN Charter has been an international-law obligation of Sierra Leone. It binds the state’s organs (Executive, Parliament, the courts) in their external conduct. Internally, however, individual citizens cannot directly sue under it: it must be applied through domestic law (e.g. legislation enacted to give effect to specific Charter obligations). ▪ Example 2 How custom is proved: continental shelf rights. In North Sea Continental Shelf, Germany said the rule of “equidistance” for dividing seabed boundaries was customary law. The ICJ disagreed: state practice was inconsistent, and even where states had used equidistance, they had not done so because they believed they were legally required to. Both ingredients practice + opinio juris were missing. ▪ Example 3 Why a Freetown court won’t enforce an unincorporated treaty. Suppose Sierra Leone signs and ratifies the (hypothetical) International Convention on Coastal Fishing Rights but Parliament passes no enabling Act. A Sierra Leonean fisherman sues the Ministry of Fisheries in the High Court, citing the Convention. Under s.40(4), the High Court would dismiss the claim: the treaty binds Sierra Leone internationally, but creates no domestic right. The fisherman would have to lobby Parliament to legislate or sue under whatever domestic law does exist. ▪ Example 4 How the Special Court Agreement became Sierra Leonean law. On 16 January 2002 the Government of Sierra Leone and the UN signed an Agreement establishing the Special Court for Sierra Leone. That Agreement was binding internationally upon signature. But for the Court to operate in Freetown to arrest suspects, sit in Sierra Leone, exercise jurisdiction over Sierra Leonean offences Parliament passed the Special Court Agreement, 2002 (Ratification) Act No. 7 of 2002. Only then did the Agreement’s provisions have force inside Sierra Leone. This is dualism in action.

ME MO RY NO T E S FO R RE VIS IO N

Compact revision card for Topic 1: ▪ Key textual source: Article 38(1) ICJ Statute lists the four sources. ▪ The four sources: (a) treaties; (b) custom; (c) general principles; (d) judicial decisions & teachings (subsidiary). ▪ Custom = two ingredients: state practice + opinio juris. ▪ Beyond Art 38: soft law; jus cogens (VCLT Arts 53, 64); erga omnes obligations. ▪ Leading case on custom: North Sea Continental Shelf ICJ Rep 3. ▪ Sierra Leone’s reception of international law: dualist s. Constitution 1991. Treaties bind internationally on ratification but require an Act of Parliament for domestic effect. Illustration: Special Court Agreement (Ratification) Act, 2002. ▪ Austin debate one-line answer: International law is law, but a decentralised kind; Austin’s command theory describes municipal law in his era, not the modern international order. ▪ Bottom line: Know Art 38(1) by heart, know the two ingredients of custom, and remember s.40(4) for any Sierra Leonean problem question.

E XAM PRACT ICE

Practise turning Topic 1 into marks. Approach notes are given so you can see the structure expected the actual writing must be the s. ▪ Q1 (Short answer, 5–7 marks). State the four sources of international law and explain the two requirements of customary international law. Approach: (i) Quote Article 38(1) ICJ Statute and list the four sources. (ii) For custom, identify state practice (objective) and opinio juris (subjective belief). (iii) Cite North Sea Continental Shelf. ▪ Q2 (Essay, 20–25 marks). “International law is not really law because it lacks a sovereign enforcer.” Critically discuss with reference to John Austin and his critics. Approach: (i) State Austin’s position and the command theory. (ii) Set out the responses (Hart on primary/ secondary rules; Schwarzenberger’s inductive method; practical evidence that states behave as if bound). (iii) Note the decentralised but real enforcement mechanisms (countermeasures, Security Council, reputational cost). (iv) Conclude that international law is law in a different mode, not non-law. ▪ Q3 (Problem question, 20 marks). Sierra Leone ratifies the (fictional) International Convention on Cybersecurity. Parliament has not yet passed any enabling Act. A foreign tech company sues the Government of Sierra Leone in the High Court of Sierra Leone for damages arising from an alleged breach of the Convention. Advise the Government on (a) whether the Convention is binding on Sierra Leone, and (b) whether the High Court can give the company a remedy under the Convention. Approach: (a) Yes ratification creates international obligation; cite VCLT Art 26; the state cannot plead its internal law (Art 27). (b) No Sierra Leone is dualist; under s.40(4) of the 1991 Constitution the Convention needs an enabling Act for domestic enforcement; the company’s remedy is to pursue the Government internationally (e.g. through diplomatic protection of its home state) or wait for Parliament to legislate. Conclude clearly on each limb.

Topic 2 Sovereign Equality of States If Topic 1 told you where the rules come from, Topic 2 tells you who the rules apply to and on what footing. The short answer: international law treats every state, big or small, as legally equal. The longer answer is more interesting, and that is what this section unpacks.

FRO M T H E L E CTURE R’S NO T E S

From the class notes on Topic 2: ▪ Foundational principle every state, regardless of size, wealth or military power, has equal rights under international law (territorial integrity, self-determination, participation in global decision-making). ▪ Legal vs political equality legally all states are equal; politically, some have more influence in negotiations, security and economic policy. ▪ UN Charter rights and duties right to sovereignty, representation in the General Assembly, participation in international law-making; duty to respect territorial integrity, non-interference and peaceful dispute resolution. ▪ Voting systems UNGA has equal voting; AU representation ensures smaller states have a voice. ▪ Case study small states form coalitions (e.g. ECOWAS small states shaping peacekeeping policy). ▪ Sierra Leone’s practice active participation in ECOWAS and AU exemplifies legal equality despite small size.

The Principle Explained (a) What “sovereign equality” actually means in plain English “Sovereignty” is the idea that a state is in charge of its own house it makes its own laws for its own territory, decides who is a citizen, runs its own government, and is not subject to the authority of any other state. “Equality” is the idea that as between states, none ranks above another in law. Sierra Leone is no less sovereign than France or the United States; in legal terms, they stand on the same plane. Think of it this way: in a primary school classroom, the teacher might be physically bigger and louder than the pupils, but in the eyes of the school rules each pupil is entitled to equal treatment. Sovereign equality says the same about states under international law even if some are much bigger, richer or more powerful.

(b) The textual source The principle is enshrined in Article 2(1) of the UN Charter, which states that “The Organization is based on the principle of the sovereign equality of all its Members.” Note the placement it is the very first principle Article 2 lays down. The drafters considered it that fundamental.

Sovereign equality is the foundation; the rest of Article 2 (good faith, peaceful settlement, prohibition of force, non-intervention) builds on it. Strip away equality and the rest collapses, because the obligations make sense only between equals.

(c) Where the principle came from a very short history Sovereign equality is usually traced to the Peace of Westphalia (1648), the treaties that ended the Thirty Years’ War in Europe. Before Westphalia, the Pope and the Holy Roman Emperor claimed authority over many kingdoms. After Westphalia, the principle that each ruler is supreme within his own territory (cuius regio, eius religio “whose realm, his religion”) became the building block of European inter-state order. From Europe the principle spread globally, and in 1945 it was elevated into the UN Charter as Article 2(1). (d) What makes an entity a “state”? Sovereign equality applies only to states. So how do we tell what counts as a state? The leading test is the Montevideo Convention on the Rights and Duties of States 1933, whose Article 1 sets out four criteria: Criterion What it requires

(a) Permanent population A settled body of people living in the territory. Numbers don’t matter Tuvalu has roughly 11,000 inhabitants and qualifies.

(b) Defined territory An identifiable geographical area. Borders need not be settled in every detail (Israel was admitted to the UN with disputed borders).

(c) Government An organised system of authority capable of exercising control over the territory and population.

(d) Capacity to enter into relations with other states The ability to conduct foreign affairs to make treaties, send and receive diplomats, etc. This is sometimes called the test of independence.

Montevideo also reflects the declarative theory of statehood (Article 3): “The political existence of the state is independent of recognition by the other states.” On this view, a state exists as a matter of fact once the four criteria are met; other states’ recognition merely acknowledges an existing state, it does not create one. Compare the constitutive theory (the older view), which holds that an entity becomes a state only when recognised by existing states. Modern practice is closer to the declarative view, although recognition still matters politically and for practical things like UN membership.

(e) What rights flow from sovereign equality? A state, simply by being a sovereign equal, has the following rights under international law:

• Territorial integrity the right not to have its territory invaded or annexed.
• Political independence the right to choose its own political, economic and social system without external coercion.
• Jurisdiction the right to make and enforce laws within its territory and over its nationals.
• Treaty-making capacity the right to enter into binding international agreements.
• Representation the right to participate equally in international organisations open to all states (e.g. UNGA).
• Sovereign immunity the right not to be sued in the courts of another state (par in parem non habet imperium “an equal has no authority over an equal”).

(f) What duties flow from sovereign equality? Equality is reciprocal. If I have these rights against you, you have them against me. So every state owes the following duties:

• Respect the sovereignty and territorial integrity of other states.
• Non-intervention don’t interfere in the internal or external affairs of another state. The corollary is reflected in Article 2(7) of the UN Charter: even the UN itself shall not intervene “in matters which are essentially within the domestic jurisdiction” of a state subject only to Chapter VII enforcement.
• Settle disputes peacefully a duty closely tied to Article 2(3) of the Charter.
• Refrain from the threat or use of force against the territorial integrity or political independence of other states (Article 2(4)).
• Perform treaty obligations in good faith see Topic 4 on pacta sunt servanda.

(g) Legal equality vs political reality the awkward truth On paper, every state has the same voice. In the UN General Assembly, Tuvalu and the United States each cast one vote. In the African Union, Sierra Leone and Nigeria each have one vote in the Assembly of Heads of State. Politically, however, equality is qualified by structural realities:

• The Security Council veto. Under Article 27(3) of the UN Charter, the five Permanent Members (United States, United Kingdom, France, China, Russia) can block any non-procedural resolution. African states cannot veto. This is the most visible structural inequality in the UN system.
• Economic and military weight. Larger economies hold more sway in informal negotiations; nuclear-armed states command different respect to non-nuclear ones; donor states influence recipient ones.
• Information and capacity. Wealthier states have larger diplomatic services and legal teams; in trade negotiations a single G7 country may deploy more lawyers than the entire African delegation. This does not mean sovereign equality is a fiction it is a legal equality, not a factual one. And legal equality has bite: it gives small states a forum (the UN), a voice (their vote), and a standard (Article 2(1)) to invoke when bigger states bully them. The principle gives Sierra Leone the legal standing to sue, say, a great power in the ICJ on equal terms something unimaginable in 1700.

(h) How small states amplify their voice the African experience Small states cope with political asymmetry by pooling sovereignty through regional and group diplomacy:

• Regional blocs. Sierra Leone belongs to ECOWAS (the Economic Community of West African States) and to the wider African Union. Together, the AU’s 55 member states (representing roughly 1.4 billion people) wield collective leverage that no single African state could match alone.
• Coalitions of interest. The African Group at the UN votes as a bloc on many issues, magnifying African weight in the General Assembly.
• Specialised forums. The G77 (developing countries), the Non-Aligned Movement, the Small Island Developing States (SIDS) bloc all amplify voices that would otherwise be drowned out.
• Litigation strategies. A small state can sue (or be sued by) a great power in the ICJ on legally equal footing, as Nicaragua did against the United States in 1986 and won.

FURT H E R RE S E ARCH

B E YO ND T H E L E CT URE R’S NO T E S

The points below extend the class notes with the textual and case-law foundations: ▪ Textual anchor the principle is in Article 2(1) of the UN Charter (1945). Use this article number whenever you write about sovereign equality in an essay or exam answer. ▪ Statehood criteria the standard test comes from Article 1 of the Montevideo Convention on the Rights and Duties of States 1933. Memorise the four criteria (population, territory, government, capacity for foreign relations). ▪ Declarative vs constitutive theory of recognition modern doctrine favours the declarative theory (Montevideo Art 3): a state exists as a fact, not because others say so. Crawford, The Creation of States in International Law (2nd edn, OUP 2006) is the leading work. ▪ Sovereign immunity the leading recent ICJ authority is Jurisdictional Immunities of the State (Germany v Italy: Greece Intervening) ICJ Rep 99. The Court held that customary international law still confers immunity on Germany even against claims of grave violations of human rights and humanitarian law committed by Nazi forces in Italy. Controversial but the leading statement of the law. ▪ The Lotus principle The SS Lotus (France v Turkey) (1927) PCIJ Ser A No 10 derives from sovereign equality. Because every state is sovereign, restrictions on its freedom of action cannot be presumed: “what is not prohibited is permitted.” The principle has been controversial but is still cited. ▪ Article 2(7) UN Charter the corollary of sovereign equality is non-intervention in matters essentially within domestic jurisdiction. The exception is Chapter VII enforcement action by the Security Council. ▪ P5 Veto codified in Article 27(3) of the UN Charter and the source of the most visible tension between legal equality and political inequality. Calls for Security Council reform (including African representation in a reformed Council) are a continuing diplomatic project (the Ezulwini Consensus 2005 the AU’s common position calling for two permanent African seats with veto and five non-permanent).

• Nicaragua v United States ICJ Rep 14 a small state successfully sued a superpower in the ICJ and obtained a binding judgment in its favour. The case is celebrated as a vindication of legal equality (though the United States declined to comply with the judgment, illustrating the limits of decentralised enforcement).

WO RK E D E XAMPL E S

Four worked examples to fix the principle in the mind: ▪ Example 1 One vote each in the UNGA. When the UNGA voted on Resolution ES-11/1 condemning Russia’s 2022 invasion of Ukraine, the vote was 141 in favour, 5 against, 35 abstentions. Sierra Leone’s vote counted the same as Russia’s, China’s and the United States’s. That is legal equality in action even though Russia’s veto in the Security Council prevented binding enforcement. ▪ Example 2 Sierra Leone’s amplified voice through ECOWAS. When ECOWAS intervened in The Gambia in January 2017 to enforce Yahya Jammeh’s removal after his election defeat, Sierra Leone was one of the participating states. Acting alone, Sierra Leone could never have shaped the outcome. Acting with 14 other ECOWAS members, the bloc compelled change. Pooling sovereignty multiplied each member’s weight. ▪ Example 3 Diplomatic immunity in Freetown. Suppose the French Embassy in Freetown leases premises and refuses to pay rent. Can the lessor sue in the High Court? Generally no, by reason of sovereign immunity a court of Sierra Leone cannot sit in judgment on the conduct of another sovereign in its sovereign capacity. The remedy is diplomatic, not judicial. (Exceptions exist for commercial acts and certain torts under the modern “restrictive” theory of immunity, but immunity remains the default for sovereign acts.) ▪ Example 4 Recognition disputes: Kosovo and Taiwan. Kosovo declared independence in 2008; over 100 states recognise it, others do not. Taiwan operates as a state in practice but most countries do not formally recognise it as such. Under the declarative theory, both meet the Montevideo criteria. Under the constitutive theory, neither is fully a state because key recognitions are absent. Modern practice mixes both statehood is partly factual, partly diplomatic.

ME MO RY NO T E S FO R RE VIS IO N

Compact revision card for Topic 2: ▪ Textual anchor: Article 2(1) UN Charter “sovereign equality of all its Members.” ▪ Statehood test: Montevideo Convention 1933, Article 1 (a) Population, (b) Territory, (c) Government, (d) Capacity for foreign relations. Mnemonic: “P-T-G-C.” ▪ Two theories of recognition: Declarative (modern) vs Constitutive (older). The dominant view is declarative.

• Core rights: territorial integrity; independence; jurisdiction; treaty-making; immunity; representation. ▪ Core duties: non-intervention (Art 2(7)); peaceful settlement (Art 2(3)); refrain from force (Art 2(4)); good faith (Art 2(2)/VCLT Art 26). ▪ Key case on immunity: Germany v Italy (ICJ 2012). ▪ Structural inequality: Art 27(3)

the P5 veto in the Security Council. ▪ Bottom line: Sovereign equality is legal equality, not factual equality. Small states use regional blocs (ECOWAS, AU) to translate legal voice into political weight.

E XAM PRACT ICE

Practise turning Topic 2 into marks. ▪ Q1 (Short answer, 5 marks). State the four criteria of statehood under the Montevideo Convention 1933. Approach: Identify Article 1 of the Convention; list the four criteria; add a sentence on the declarative theory of recognition (Article 3). ▪ Q2 (Essay, 20 marks). “The doctrine of sovereign equality is a useful legal fiction small states are not really the equals of great powers.” Critically discuss with reference to the UN system and to African experience. Approach: (i) State the principle and Art 2(1). (ii) Acknowledge the factual gap between small and great powers; cite the P5 veto (Art 27(3)) as the leading structural inequality. (iii) Argue back: legal equality is real it gives small states a forum, a vote and a legal standard to invoke. (iv) Use ECOWAS/AU coalition diplomacy and Nicaragua v US as evidence that small states can wield legal equality effectively. (v) Conclude with a nuanced position: not a fiction, but a legal equality that requires diplomatic strategy to translate into political effect. ▪ Q3 (Problem question, 20 marks). A foreign diplomat’s car driven by an embassy employee causes serious injury to a Sierra Leonean pedestrian in Freetown. The victim seeks to sue the embassy and the state it represents in the Sierra Leone High Court. Advise. Approach: Discuss sovereign immunity (par in parem); distinguish acta jure imperii (sovereign acts immune) from acta jure gestionis (commercial / private acts not immune under the restrictive theory); consider the Vienna Convention on Diplomatic Relations 1961 (Art 31 personal immunity of diplomats from civil and criminal jurisdiction, with the exception for private immovable property and inheritance); analyse whether driving the embassy car is sovereign or private conduct; note remedies (waiver of immunity, diplomatic protest, civil claim in the sending state).

Topic 3 Prohibition of the Excessive Use of Force Of all the principles in this module, this is the one with the most immediate stakes. It is the principle that says states may not solve disputes by attacking each other, and that when force is exceptionally permitted, it must be no more than is necessary. It is what stands between an ordered international community and the law of the jungle. Note on the title: the module heading speaks of “prohibition of the excessive use of force.” In strict legal terms, all use of force is prohibited by Article 2(4) of the UN Charter unless it falls within a narrow exception. The word “excessive” points to a second, related idea that even when force is lawful (e.g. in self-defence), it must be proportionate. This section covers both.

FRO M T H E L E CTURE R’S NO T E S

From the class notes on Topic 4 (Prohibition of the Use of Force): ▪ The master rule Article 2(4) of the UN Charter forbids states from threatening or using force against the territorial integrity or political independence of other states. ▪ Exceptions (i) self-defence against an armed attack; (ii) UN Security Council authorisation under Chapter VII. ▪ Contemporary example the Russia–Ukraine conflict (2022 onwards) demonstrates the challenges of enforcing this principle. ▪ Regional peacekeeping ECOMOG in Sierra Leone balanced the prohibition with humanitarian necessity. ▪ Critical thinking when, if ever, might force be justified legally, ethically or politically? Weigh sovereignty, human rights and regional stability.

The Principle Explained (a) The rule in plain English Article 2(4) of the UN Charter says: “All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.” Read carefully, the rule prohibits three things:

• The use of force actually attacking, bombing, invading, sending troops across a border.
• The threat of force even a credible threat (“stand down or we attack”) is unlawful, not just the attack itself.
• Force “inconsistent with the Purposes of the United Nations” a catch-all that covers force aimed at goals incompatible with the Charter, even if not directly aimed at territory.

The prohibition is also customary international law it binds states whether or not they are UN members. The ICJ confirmed this in Nicaragua v United States (1986).

(b) A short history how we got here For most of human history, war was viewed as a sovereign’s right. A king who felt aggrieved could march his army across a border. Three twentieth-century steps changed that: 1. The League of Nations Covenant (1919) introduced procedural restraints. Members had to try arbitration or mediation before resorting to war, and even then could only fight after a cooling-off period. Not a flat ban but a first move toward regulation. 2. The Kellogg–Briand Pact (1928), formally the General Treaty for the Renunciation of War, was the first binding treaty in which states renounced war as an instrument of national policy. Over 60 states joined. It had no enforcement teeth, and the world plunged into war in 1939, but its norm survived. 3. The UN Charter (1945) absorbed and tightened these moves. Article 2(4) is the strongest formulation: not just “no war” but “no threat or use of force.”

(c) The two firm exceptions Article 2(4) admits only two exceptions where force is lawful: Exception 1: Self-defence (Article 51) Article 51 of the UN Charter states: “Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security.” Four conditions must be met: Condition What it means Source An armed attack must occur A border incident is not enough the attack must be significant. Customary law uses the threshold from Nicaragua (1986).

Article 51 + Nicaragua ICJ Rep 14 Necessity Force must be a last resort no other means available. The classic formulation is the Caroline test (1837): the necessity must be “instant, overwhelming, leaving no choice of means, and no moment for deliberation.”

Caroline incident (1837); reaffirmed in Oil Platforms (2003)

Proportionality The defensive response must be no greater than is required to repel or end the attack. Force beyond what is necessary becomes excessive hence the title of this Topic. Bombing a small frontier outpost in retaliation for a minor border incursion fails this test.

Customary law; Oil Platforms ICJ Rep 161; DRC v Uganda ICJ Rep 168 Report to the Security Council Article 51 requires measures taken in self-defence to be “immediately reported” to the Security Council. Failure to report weakens the self-defence claim.

Article 51 Exception 2: Security Council authorisation (Chapter VII)

Under Chapter VII of the UN Charter (Articles 39–51), the Security Council can determine the existence of a threat to the peace, breach of the peace, or act of aggression, and authorise enforcement measures including the use of force by member states or coalitions. This is the only path to lawful aggression against another state (i.e. force not in self-defence). Examples: Korean War 1950 (under SC Res 84); Gulf War 1991 (SC Res 678 authorising “all necessary means” to liberate Kuwait); Libya 2011 (SC Res 1973 authorising “all necessary measures” to protect civilians). There is also collective self-defence, recognised in Article 51: states may come to the defence of an ally that has been attacked, subject to the conditions in Nicaragua (the victim state must declare itself attacked and request assistance).

(d) Where “excessive” bites the proportionality requirement This is where the title of the topic earns its keep. Even when force is initially lawful (self-defence or Chapter VII authorisation), it becomes unlawful if it goes beyond what is necessary and proportionate. The famous illustrations:

• In Oil Platforms (Iran v US) ICJ Rep 161, the US destroyed two Iranian oil platforms in retaliation for mine and missile incidents that had damaged US-flagged vessels in the Gulf. The ICJ held that the US response was disproportionate: the platforms were vast, militarily marginal, and their destruction far exceeded any defensive necessity.
• In Armed Activities on the Territory of the Congo (DRC v Uganda) ICJ Rep 168, Uganda invaded eastern Congo in pursuit of ADF rebels who had launched cross-border attacks. The ICJ found that Uganda’s response seizing airports and towns hundreds of kilometres deep was “by its magnitude and duration” wholly disproportionate to any defensive necessity. Self-defence failed. So the operative rule is: lawful force must be (i) necessary, and (ii) proportionate. Force beyond that is unlawful it becomes “excessive” even where the initial use of force was justified.

(e) Two proportionalities don’t confuse them Examiners love to test this. There are two proportionality concepts in the law of armed conflict, and they are not the same: Proportionality in jus ad bellum Whether the recourse to force is proportionate to the armed attack repelled. This is the doctrine we have been discussing (Oil Platforms, DRC v Uganda). Question asked: was the defensive war (or self-defence action) overall justified given the attack?

Proportionality in jus in bello Whether a specific attack within an armed conflict is proportionate, balancing expected civilian harm against the concrete and direct military advantage. This is a rule of international humanitarian law, governed by Additional Protocol I to the Geneva Conventions (1977). Question asked: was this strike proportionate?

In an exam, name the right one. A question about whether Russia’s 2022 invasion of Ukraine was lawful in the first place is a jus ad bellum question (Article 2(4) and Article 51). A question about whether a specific Russian strike on a Kyiv hospital was lawful is a jus in bello question (international humanitarian law).

(f) The contested grey areas Beyond the two firm exceptions, certain doctrines occupy contested ground others do not, and they cannot safely be presented as black-letter law:

some states accept them,

• Humanitarian intervention. May a state use force, without UNSC authorisation, to stop mass atrocities in another state? NATO’s 1999 Kosovo intervention was the test case. Most international lawyers agree it lacked clear legal basis but was morally defensible. The phrase “illegal but legitimate” (Reisman) captures the awkwardness.
• Responsibility to Protect (R2P). Adopted in paragraphs 138–139 of the 2005 World Summit Outcome, R2P provides that the international community has a responsibility to protect populations from genocide, war crimes, ethnic cleansing and crimes against humanity. But the operative force is collective, through the Security Council R2P is not a free-standing right of unilateral force.
• Pro-democratic intervention. May regional bodies use force to restore an elected leader ousted by coup or to remove a leader refusing to leave after losing an election? The Gambia 2017 case (below) suggests an emerging West African norm, but the legal status remains unsettled.
• Anticipatory / pre-emptive self-defence. Article 51 says “if an armed attack occurs.” Some states (notably the US after 2001) argue self-defence may extend to imminent or even prospective attacks. The conservative reading (most scholars, ICJ in Nicaragua) limits self-defence to attacks that have already occurred.
• Force against non-state actors. Where a state’s territory hosts terrorist groups, may the victim of attacks use force on that territory? The ICJ has declined to resolve this (DRC v Uganda, para 147). State practice since 9/11 has expanded such uses of force, but no clear consensus exists.

(g) The African contribution ECOMOG and ECOMIG West Africa has shaped this debate through real practice:

• ECOMOG in Liberia (1990) and Sierra Leone (1997). ECOWAS sent armed peacekeepers without prior Security Council authorisation a prima facie breach of Article 2(4). But the Council subsequently tolerated and commended the deployments (e.g. SC Resolution 1162 (1998) commending ECOMOG’s role in Sierra Leone). This generated a working compromise: regional action first, Council blessing later.
• ECOMIG in The Gambia (2017). When Yahya Jammeh refused to step down after losing the December 2016 election, ECOWAS authorised “Operation Restore Democracy” and deployed troops. The intervention was made at the request of President-elect Adama Barrow, backed by AU endorsement and a Security Council resolution (SC Res 2337 (2017)). The credible threat of force not actual large-scale combat secured Jammeh’s departure. Many scholars regard ECOMIG as a step in the emergence of a regional pro-democratic intervention norm.
• AU Constitutive Act, Article 4(h). The AU asserts a right “to intervene in a Member State… in respect of grave circumstances, namely war crimes, genocide and crimes against humanity.” This is the boldest regional carve-out from non-intervention in the Charter system. It has never been triggered but stands ready.

FURT H E R RE S E ARCH

B E YO ND T H E L E CT URE R’S NO T E S

Material beyond the class notes, drawn from ICJ jurisprudence, UN Charter scholarship, and African regional practice: ▪ Master article Article 2(4) UN Charter the prohibition; and Article 51 the self-defence exception. Memorise both. ▪ The locus classicus is Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States of America) ICJ Rep 14. The ICJ held that Article 2(4) reflects customary international law; that collective self-defence requires (a) an armed attack, (b) the victim state declaring itself attacked, (c) the victim state requesting assistance, plus (d)

necessity and proportionality. The United States satisfied none of these in relation to its support for the Contras. ▪ Oil Platforms (Islamic Republic of Iran v United States) ICJ Rep 161 ICJ confirmed that an armed attack is a prerequisite to self-defence; that necessity is an objective standard* leaving “no room for any measure of discretion”; and that the US destruction of the platforms in Operation Praying Mantis was disproportionate*. ▪ Armed Activities on the Territory of the Congo (DRC v Uganda) ICJ Rep 168 a textbook example of an excessive response. Uganda’s intervention was a “grave violation of Article 2(4)” because no armed attack was attributable to the DRC and because the operations were grossly disproportionate. ▪ The Caroline test from the 1837 Caroline incident on the US–Canada border. The US Secretary of State Daniel Webster wrote that self-defence required “necessity… instant, overwhelming, leaving no choice of means, and no moment for deliberation.” Although nearly two centuries old, Caroline remains the touchstone for necessity in self-defence. ▪ R2P adopted in paragraphs 138–139 of the 2005 World Summit Outcome (UN doc A/RES/60/1). Note carefully: R2P is not a free-standing right of unilateral force; collective action runs through the Security Council. ▪ Russia–Ukraine 2022 UNGA Resolution ES-11/1 (2 March 2022), adopted 141–5 with 35 abstentions, “deplores in the strongest terms” Russia’s aggression as a violation of Article 2(4). On 16 March 2022 the ICJ ordered Russia to suspend its military operations (Allegations of Genocide, Ukraine v Russian Federation, Provisional Measures, by 13 votes to 2). In its 2 February 2024 preliminary-objections judgment the ICJ found it lacked jurisdiction ratione materiae over the use-of-force claims under the Genocide Convention. ▪ SC Res 1162 (1998) commended ECOMOG’s role in Sierra Leone, accepting after the fact what had begun without Council authorisation. ▪ SC Res 2337 (2017) endorsed ECOWAS’s efforts on The Gambia (without expressly authorising force) and called on Jammeh to step down. The credible threat of ECOMIG force, combined with the Council’s political backing, secured the peaceful transition. ▪ AU Constitutive Act, Article 4(h) the AU’s right to intervene in a Member State in respect of war crimes, genocide and crimes against humanity. The boldest assertion of regional authority over Charter constraints.

WO RK E D E XAMPL E S

Four worked examples to test the principle: ▪ Example 1 ECOMOG enters Sierra Leone, 1997. When the AFRC overthrew the elected Kabbah government in May 1997, ECOWAS authorised ECOMOG to restore constitutional order. There was no prior UNSC authorisation. Was this lawful? On a strict reading of Article 2(4): no, force without Council authorisation breaches the Charter. But: (a) President Kabbah, the legitimate head of state, invited ECOMOG (consent of the territorial state, even from exile); (b) the Council subsequently commended ECOMOG’s role (SC Res 1162); (c) the intervention served clear human-rights and democratic-governance ends. The least controversial analysis: legally fragile ex ante, legitimated ex post. ▪ Example 2 Russia invades Ukraine, 24 February 2022. Russia’s claim was self-defence (against alleged genocide of Russian speakers in Donbas and pre-emption of NATO expansion). Analyse against Article 51: (a) No armed attack by Ukraine on Russia the threshold is not met.

(b) Necessity fails diplomatic and Security Council channels were not exhausted. (c)

Proportionality is irrelevant where the initial requirement of an armed attack is unmet, but in any event the invasion is plainly disproportionate to any cross-border incident.

(d) No Council authorisation. Conclusion: a textbook violation of Article 2(4). The UNGA condemned it (Res ES-11/1, 141–5). ▪ Example 3 A self-defence problem. State A’s naval patrol fires warning shots at a fishing boat from State B that has strayed into State A’s waters. State B responds by launching airstrikes on State A’s naval base. Is State B’s response lawful self-defence? Apply the four conditions: (a) Armed attack was the warning shot an armed attack? Probably not, under Nicaragua’s threshold. (b) Necessity State B could have used diplomatic protest. (c) Proportionality airstrikes on a naval base are wildly disproportionate to warning shots. (d) Council reporting absent. State B’s response is unlawful. ▪ Example 4 ECOWAS in The Gambia, 2017. Yahya Jammeh, having lost the December 2016 election, refused to leave office. Adama Barrow, the elected president, took office in exile and requested ECOWAS assistance. ECOWAS troops crossed into The Gambia in January 2017. Lawful? (a) Consent of the elected (and inaugurated) head of state strong basis. (b) AU endorsement supportive.

(c) UNSC Resolution 2337 endorsing without expressly authorising. (d) Outcome Jammeh fled; no large-scale combat. Result: a peaceful transfer, accepted by the international community. This is the leading recent example of regional pro-democratic intervention.

ME MO RY NO T E S FO R RE VIS IO N

Compact revision card for Topic 3: ▪ The master rule: Article 2(4) UN Charter no threat or use of force.

• The exceptions (only two firm ones): (i) self-defence under Article 51; (ii) Chapter VII authorisation by the Security Council. ▪ Four conditions of self-defence: Armed attack | Necessity | Proportionality | Reporting to UNSC. Mnemonic: “ANPR.” ▪ Caroline test: “instant, overwhelming, leaving no choice of means, and no moment for deliberation.”
• Three leading cases: Nicaragua v US (1986); Oil Platforms (2003); DRC v Uganda (2005). ▪ Contested grey areas: humanitarian intervention; R2P (paras 138–139 World Summit 2005); anticipatory self-defence; force against non-state actors. ▪ African contribution: ECOMOG (Liberia 1990, Sierra Leone 1997); ECOMIG (Gambia 2017); AU Const Act Art 4(h). ▪ Two proportionalities (don’t confuse): jus ad bellum (recourse to force) vs jus in bello (specific attack). ▪ Bottom line: Force is prohibited unless it is

(a) self-defence in response to an armed attack and necessary + proportionate, OR (b) authorised by the UNSC. Excessive force beyond necessity is unlawful even where the initial use was justified.

E XAM PRACT ICE

Practise turning Topic 3 into marks. ▪ Q1 (Short answer, 5 marks). State Article 2(4) of the UN Charter and identify its two recognised exceptions. Approach: Quote Article 2(4) accurately. Identify (i) self-defence under Article 51 and (ii) UNSC authorisation under Chapter VII. Add the four conditions of selfdefence (ANPR) for full marks. ▪ Q2 (Essay, 25 marks). “ECOMOG’s intervention in Sierra Leone in 1997 was illegal under the UN Charter but legitimate under the values of regional African governance.” Critically discuss. Approach: (i) Set out Article 2(4) and the two exceptions. (ii) Apply to ECOMOG: no prior UNSC authorisation; technical breach of Article 2(4). (iii) Argue back: consent of the legitimate (exiled) government; subsequent Council commendation (SC Res 1162 (1998)); humanitarian and democratic ends. (iv) Reisman’s “illegal but legitimate” frame. (v) Place the case in the West African trajectory leading to ECOMIG and AU Const Act Art 4(h). (vi) Conclude with a nuanced position: technically a breach of the Charter, but practically tolerated and (post-2017) part of an emerging regional norm. ▪ Q3 (Problem question, 25 marks). State X suffers a series of small cross-border raids by rebel group Y operating from State Z’s territory. State Z denies any control of Y. State X launches a sustained military operation deep into State Z, capturing two of Z’s towns and holding them for six months. Advise State Z on whether State X’s actions amount to lawful self-defence. Approach: (i) Article 2(4) prohibition. (ii) Article 51 self-defence four conditions. (iii) Was there an armed attack? Nicaragua threshold; rebel raids may not meet it. Are the rebels’ acts attributable to State Z? Apply DRC v Uganda mere presence on territory is not enough. (iv)

Necessity less drastic alternatives (diplomatic, Council referral). (v) Proportionality deep, sustained occupation is wildly disproportionate to small raids; cite DRC v Uganda. (vi) Reporting was the Council notified? (vii) Conclude: State X’s actions almost certainly unlawful, with State Z’s remedies (ICJ, Security Council, demand reparations under ILC State Responsibility Articles).

Topic 4 Pacta Sunt Servanda (“Agreements Must Be Kept”) If Topic 3 is the core prohibition of international law, this is its core affirmative obligation: when states do agree to something, they must keep their word. The Latin phrase pacta sunt servanda literally “agreements must be kept” captures an idea older than international la w itself, found in Roman law, in Islamic jurisprudence, in customary African dispute resolution, and in every legal tradition that has ever taken contracts seriously.

FRO M T H E L E CTURE R’S NO T E S

From the class notes on Topic 6 (Pacta Sunt Servanda): ▪ Meaning and relevance the principle ensures treaties and agreements are implemented faithfully; without it, international cooperation would be chaotic. ▪ Good faith states must fulfil obligations sincerely in matters of security, trade and environmental protection. ▪ Treaty lifecycle formation (negotiation, drafting, signing); implementation (domestic legislation and policy); enforcement (monitoring; violations may lead to sanctions or dispute resolution). ▪ Consequences of breach diplomatic tension; legal disputes in courts or arbitration; potential isolation from regional and international organisations. ▪ International examples Paris Agreement on climate; WTO trade agreements. ▪ Sierra Leone context compliance with ECOWAS treaties strengthens stability, trade and security cooperation; non-compliance risks sanctions and loss of diplomatic support.

The Principle Explained (a) The phrase translated Pacta sunt servanda is Latin: pacta = agreements / pacts; sunt = are; servanda = to be kept / observed. “Agreements are to be kept.” It is one of those Latin maxims international lawyers love because it captures, in three words, what would otherwise take a paragraph. (b) Why this principle is the bedrock of treaty law International law has no global legislature to make rules and no global police force to enforce them. So when states do manage to negotiate a binding agreement, that agreement’s credibility depends entirely on the expectation that everyone will perform. Strip pacta sunt servanda out of international law and the entire treaty system collapses nobody would invest the political capital to negotiate an agreement that no party feels bound to keep. That is why the leading commentators (Verdross, Villiger) call pacta sunt servanda the “pillar of treaty law and the pivotal key to international law.”

(c) The textual authority VCLT Article 26 The principle is codified in Article 26 of the Vienna Convention on the Law of Treaties 1969 (VCLT): “Pacta sunt servanda Every treaty in force is binding upon the parties to it and must be performed by them in good faith.” Two elements pack into that single sentence:

• Binding a treaty in force creates legal obligations; it is not optional, not a guideline.
• Good faith performance must be honest and consistent with the treaty’s object and purpose. A state cannot perform the literal letter while frustrating the spirit. Looking for loopholes to undermine the deal is itself a breach of good faith.

(d) The companion rule VCLT Article 27 Article 27 VCLT: “A party may not invoke the provisions of its internal law as justification for its failure to perform a treaty.” In plain terms: “I couldn’t comply because my Parliament hasn’t legislated yet” is not a defence at international law. The state’s internal arrangements are its own problem; the treaty binds it regardless. This is especially important for dualist states like Sierra Leone. As we saw in Topic 1, treaties have no domestic effect until Parliament legislates but the state’s international obligation is in place from the moment of ratification. Article 27 closes the gap from the international side.

(e) Even before entry into force VCLT Article 18 Article 18 VCLT imposes a more limited duty before a treaty enters into force: a state that has signed (but not yet ratified) a treaty must refrain from acts that would defeat the obje`ct and purpose of the treaty. So pacta sunt servanda, in its full strength, operates from entry into force; but a lesser “do no harm” duty operates from signature onward. (f) The treaty lifecycle The lecturer’s notes outline the lifecycle. Here it is with the VCLT article numbers attached so you can cite authority: Stage What happens VCLT articles 1. Negotiation Representatives meet, draft text. May span years (the VCLT itself took 20 years).

Arts 7–9 (full powers, adoption of text)

2. Authentication / signature

Text is finalised and signed by authorised representatives. Signature does not yet make it binding (unless the treaty so provides).

Arts 10–12 3. Ratification / accession The state’s competent authority (in Sierra Leone, Parliament under s.40(4)) formally consents to be bound.

Arts 14–15 4. Reservations A state may, on signature or ratification, exclude or modify a particular provision (within limits reservations cannot defeat the object and purpose).

Arts 19–23 5. Entry into force As specified in the treaty (e.g. after a stated number of ratifications). Only now does pacta sunt servanda operate in full.

Art 24 Stage What happens VCLT articles 6. Performance Parties perform in good faith.

Arts 26–27 7. Modification / Termination By agreement, by operation of a treaty provision, or under specified grounds (breach, impossibility, fundamental change).

Arts 39–41, 54–64

(g) When can a state lawfully stop performing? Pacta sunt servanda is strong but not absolute. The VCLT recognises specific, narrow grounds for terminating or suspending a treaty. Examiners love testing these because the temptation is to apply them too generously. Material breach (Article 60) If one party commits a material breach of a bilateral treaty, the other party may invoke the breach as a ground for terminating or suspending the treaty. A “material breach” means (a) repudiation of the treaty not sanctioned by the VCLT, or (b) violation of a provision essential to the object or purpose of the treaty (Art 60(3)). Supervening impossibility (Article 61) If performance becomes impossible because of the permanent disappearance or destruction of an object indispensable to performance (e.g. a treaty about a specific dam, and the dam is destroyed), a party may invoke impossibility. Self-induced impossibility (caused by the party’s own breach of another international obligation) cannot be invoked. Fundamental change of circumstances rebus sic stantibus (Article 62) Rebus sic stantibus (“things standing thus”) allows termination where a fundamental change of circumstances has occurred since the treaty was concluded. Four cumulative conditions must be met under Article 62:

• (i) The change was not foreseen by the parties.
• (ii) The circumstances that have changed were an essential basis of the parties’ consent.
• (iii) The change radically transforms the extent of obligations still to be performed.
• (iv) The change is not the result of the invoking party’s own breach. In practice, the ICJ has applied this doctrine extraordinarily narrowly. In Fisheries Jurisdiction

(1973) and Gabčíkovo-Nagymaros Project (1997), the Court rejected rebus sic stantibus claims. The principle exists but you should treat it as an escape route that almost no one successfully takes. Conflict with a new peremptory norm (Article 64) If a new norm of jus cogens emerges, any existing treaty in conflict with that norm becomes void and terminates. Example: a colonial-era treaty providing for slave-trade routes would now be void.

(h) Breach and state responsibility A breach of treaty does not just end the treaty obligation it also triggers state responsibility. The governing rules are codified (for customary law purposes) in the ILC Articles on Responsibility of States for Internationally Wrongful Acts (2001). Consequences include:

• Cessation of the breach (Art 30 ILC Articles).
• Reparation in the form of restitution, compensation or satisfaction (Arts 34–37).
• Countermeasures by the injured state limited, proportionate, and aimed at inducing compliance (Arts 49–54).

FURT H E R RE S E ARCH

B E YO ND T H E L E CT URE R’S NO T E S

Material beyond the class notes, drawn from the VCLT and the leading ICJ cases: ▪ Codification the principle is codified in VCLT 1969 Article 26. The two indispensable companion rules are Article 27 (no internal-law defence) and Article 18 (good faith between signature and entry into force). ▪ The Vienna Convention itself is binding only on its parties (it entered into force in 1980), but much of it codifies customary international law and is therefore applied to non-parties too. Sierra Leone acceded to the VCLT in 1973. ▪ Grounds for termination/suspension the operative provisions are Articles 60 (material breach), 61 (impossibility), 62 (fundamental change), 64 (new jus cogens). Memorise the article numbers. ▪ Rebus sic stantibus has been argued before the ICJ many times and rarely accepted. The leading authorities are: ▪ Fisheries Jurisdiction (United Kingdom v Iceland) ICJ Rep 3 the Court rejected Iceland’s rebus sic stantibus claim against the 1961 Exchange of Notes giving the UK fishing rights, holding that the change in fishing techniques and stocks was foreseen, not fundamental.

Gabčíkovo-Nagymaros Project (Hungary v Slovakia) ICJ Rep 7 Hungary tried (and failed) to invoke rebus sic stantibus against a 1977 dam treaty with Czechoslovakia. The ICJ confirmed that Article 62 reflects customary law but reiterated that it must be applied exceptionally. Hungary’s changes (political transition, new environmental knowledge) were insufficient.

Racke v Hauptzollamt Mainz (Case C-162/96) ECR I-3655 a rare acceptance of rebus sic stantibus, by the European Court of Justice, in relation to the suspension of an EC– Yugoslavia trade agreement after the dissolution of Yugoslavia.

• State responsibility for breach codified by the ILC Articles on Responsibility of States for Internationally Wrongful Acts (2001), annexed to UNGA Res 56/83. Not a treaty, but widely cited by the ICJ as reflecting customary law. ▪ Good faith has independent operation as a general principle of international law and is closely linked to pacta sunt servanda. See the ICJ’s discussion in Nuclear Tests (Australia v France) ICJ Rep 253, where the Court held that unilateral declarations by states can also create binding obligations if made publicly and with the intent to be bound good faith requires the maker to keep its word. ▪ Sierra Leone the doctrine of dualism (Topic 1) does not weaken pacta sunt servanda at the international level. Once Sierra Leone ratifies a treaty, it is internationally bound; the state’s internal failure to legislate (Article 27 VCLT bars that defence) cannot excuse non-performance. International liability accrues even if the citizen cannot enforce the treaty in a Freetown court.

WO RK E D E XAMPL E S

Four worked examples: ▪ Example 1 Paris Agreement on climate change. Under the Paris Agreement (2015), states submit Nationally Determined Contributions (NDCs) to reduce greenhouse-gas emissions. Pacta sunt servanda requires each party, including Sierra Leone, to implement its NDC in good faith. A state that submits an NDC, then quietly increases emissions, breaches Article 26 VCLT. The remedies are mostly diplomatic and reputational rather than coercive but international law nevertheless treats the obligation as binding. ▪ Example 2 WTO trade agreements. WTO members have agreed to detailed rules on tariffs, subsidies and trade in services. A state that imposes tariffs in breach of its WTO commitments breaches pacta sunt servanda. The injured states may bring proceedings before the WTO Dispute Settlement Body, which can authorise countermeasures. The WTO system is one of the most successful enforcement mechanisms in international law precisely because pacta sunt servanda is backed by tangible economic consequences. ▪ Example 3 Sierra Leone and ECOWAS.

Under the Revised ECOWAS Treaty (1993) and supplementary protocols on the free movement of persons, Sierra Leone has agreed to admit ECOWAS nationals without visas, to recognise ECOWAS passports, and to integrate certain trade policies. If Sierra Leone unilaterally introduced visa requirements for ECOWAS nationals, this would breach pacta sunt servanda; remedies would include diplomatic protest, intervention by the ECOWAS Commission, and potentially action before the ECOWAS Community Court of Justice. ▪ Example 4 The narrow scope of rebus sic stantibus. Suppose Sierra Leone, in the 1980s, signed a long-term agreement giving foreign company X mining rights in exchange for a fixed royalty of $5 per tonne. With inflation, this royalty has become trivial. Can Sierra Leone walk away under Article 62 VCLT? Almost certainly not. Inflation is foreseeable; the change is not the kind of fundamental, unforeseen change required (cf. Gabčíkovo-Nagymaros). Sierra Leone’s options are: (i) negotiate a revised agreement (and pacta sunt servanda requires Company X to negotiate in good faith); (ii) accept the bargain; (iii) breach and accept the consequences (cessation, reparation).

ME MO RY NO T E S FO R RE VIS IO N

Compact revision card for Topic 4: ▪ The phrase: Pacta sunt servanda “agreements must be kept.” ▪ Codified in: VCLT 1969, Article 26. “Every treaty in force is binding upon the parties to it and must be performed by them in good faith.” ▪ Two indispensable companions: Article 27 (no internal-law defence) and Article 18 (good faith between signature and entry into force). ▪ Grounds for termination/suspension: Material breach (Art 60); impossibility (Art 61); fundamental change rebus sic stantibus (Art 62); new jus cogens (Art 64). ▪ Leading rebus sic stantibus authority: Gabčíkovo-Nagymaros (ICJ 1997) article exists; rarely applied; very narrow. ▪ Breach → State responsibility under the ILC Articles 2001 (cessation, reparation, countermeasures). ▪ Bottom line: Treaties bind from entry into force. Escape is narrow. “My Parliament hasn’t legislated yet” is not a defence (Art 27).

E XAM PRACT ICE

Practise turning Topic 4 into marks. ▪ Q1 (Short answer, 5 marks). State Article 26 of the Vienna Convention on the Law of Treaties and identify the role of “good faith” in treaty performance. Approach: Quote Art 26 (“every treaty in force… must be performed… in good faith”). Explain that good faith means honest performance consistent with the object and purpose, not merely the letter. Reference Art 18 (preentry good faith) for added depth. ▪ Q2 (Essay, 25 marks). “Pacta sunt servanda is the cornerstone of international law but it is a cornerstone that can be moved. Discuss with reference to the grounds for termination of treaties under the Vienna Convention.” Approach: (i) State the principle and Article 26 VCLT. (ii) Explain why it is foundational the credibility of the entire treaty system depends on it. (iii) Set out the grounds for termination/suspension (Arts 60, 61, 62, 64), explaining each in turn. (iv) Discuss the narrow application of rebus sic stantibus (Art 62) with reference to Fisheries Jurisdiction (1973) and Gabčíkovo-Nagymaros (1997). (v) Conclude that the principle is robust precisely because escape routes exist but are narrow the system tolerates exceptional changes without becoming unworkable. ▪ Q3 (Problem question, 25 marks). Sierra Leone in 1995 signed a 30-year mining concession with Company A, agreeing to a fixed royalty of $2 per tonne of bauxite. Inflation has eroded the real value of this royalty to a tenth of what it was. The Government of Sierra Leone wishes to repudiate the agreement, citing (a) fundamental change of circumstances, (b) the fact that the agreement was never properly domesticated by Parliament under s.40(4) of the Constitution. Advise. Approach: (i) State pacta sunt servanda and VCLT Art 26.

(ii) Ground (a) fundamental change: Apply Article 62. Was the change unforeseen? Inflation is foreseeable. Was it an essential basis of consent? Possibly, but unlikely to be conclusive. Does it radically transform obligations? Inflation alone rarely meets this threshold. Cite Gabčíkovo-Nagymaros. Almost certainly insufficient. (iii) Ground (b) non-domestication: Article 27 VCLT bars Sierra Leone from invoking its internal law to escape an international obligation. Whether or not Parliament legislated, Sierra Leone is internationally bound.

(iv) Practical options: negotiate a revised agreement (Company A must engage in good faith); pursue dispute settlement under the agreement; accept consequences of breach (state responsibility under ILC Articles reparation, possibly countermeasures by Company A’s home state). (v) Conclude clearly.

Topic 5 Cultural Relativism This topic is the most philosophically charged in the module. It asks a question that sounds simple but is hard to answer: are human rights truly universal, or are they shaped by the cultures that produced them? The answer matters because how we respond determines whether Sierra Leonean customary practices and Western liberal values can coexist within a single rights framework.

FRO M T H E L E CTURE R’S NO T E S

From the class notes on Topic 9 (Cultural Relativism): ▪ Meaning the view that human rights and ethical practices are influenced by, and should be understood within, the context of each culture’s history, traditions and values rather than imposed by a single universal standard. ▪ Examples of culturally rooted practices African traditional justice (community mediation, elders’ councils, restorative justice); indigenous community decision-making; Asian values emphasising family, social harmony and authority. ▪ Sierra Leone examples traditional chieftaincy and local courts; customary marriage and inheritance practices in rural areas; community-based dispute resolution and reconciliation through elders. ▪ Limits cultural relativism cannot justify violations of core human rights (e.g. female genital cutting, forced child marriage, slavery). ▪ Strengths protects cultural diversity, respects local norms, promotes inclusivity. ▪ Criticisms risks justifying harmful practices, can clash with universal human rights standards.

The Principle Explained (a) The big debate universalism vs cultural relativism Imagine two people in a debate. The universalist says: “Human beings are the same everywhere. Pain is pain, dignity is dignity. Rights flow from our shared humanity, not from where we happen to be born. A child in Freetown deserves the same protection as a child in Stockholm.” The cultural relativist replies: “You are speaking from inside a particular culture a Western, liberal, individualistic culture and mistaking the local values for universal truth. African societies emphasise community and duty; Asian societies emphasise harmony and respect for authority; Islamic societies frame rights within faith. The ‘universal’ rights are the rights dressed up as everyone’s.” Both positions have something to say. The challenge is to take what is true from each without collapsing into either extreme.

(b) Two kinds of cultural relativism Scholars distinguish between strong and weak forms:

Strong relativism

Says that culture is the only source of moral validity. No outside standard can judge a culture’s practices. If a culture endorses child marriage or slavery, there is no “universal” ground on which to object. This position is widely rejected it would make all moral criticism impossible.

Weak relativism

Says that there are some universal values (a core of basic rights), but that cultures legitimately differ in how those values are interpreted and implemented. This is the dominant academic view, captured in Jack Donnelly’s phrase “relative universality” rights are universal in concept, with limited cultural variation in interpretation and application.

(c) The Western-values critique Some scholars (notably Adamantia Pollis and Peter Schwab in 1979) argue that the modern human-rights corpus is essentially Western:

• It privileges the individual over the community.
• It emphasises civil and political rights (free speech, voting, fair trial) over economic and social rights (food, work, housing) which matter more in poor societies.
• It assumes a liberal separation of state and religion that fits Europe but not many other places.
• It was drafted in 1948 by a UN dominated by Western powers most of the developing world was still under colonial rule. This critique is taken seriously even by mainstream scholars. It does not destroy the universalist project, but it warns that what looks “universal” can carry hidden cultural baggage.

(d) The African response the Banjul Charter Africa has not rejected universality but has reshaped it. The African (Banjul) Charter on Human and Peoples’ Rights 1981 (which entered into force on 21 October 1986) is structured differently from European or universal instruments. Three distinctive features:

• Duties of the individual Articles 27–29 set out duties that individuals owe to family, society, the state, the African community and the wider international community. No other major rights instrument places duties on individuals so prominently.
• Peoples’ rights Articles 19–24 protect the rights of peoples (as collectives), including the right to existence, to self-determination, to free disposal of natural resources, to development, and to a satisfactory environment.
• No general derogation clause unlike the ICCPR, the Charter does not allow states to suspend rights even in emergencies (though limitations are permitted by law). Makau Mutua’s memorable phrase: the African Charter bears an “African cultural fingerprint” communitarian, duty-conscious, group-aware. It refuses the choice between universality and culture: it asserts both.

(e) The Asian Values debate In 1993, in the run-up to the Vienna World Conference on Human Rights, 34 Asian states adopted the Bangkok Declaration, which qualified the universality of rights with appeals to sovereignty, noninterference and the priority of development. Leaders like Lee Kuan Yew (Singapore) and Mahathir Mohamad (Malaysia) defended “Asian values” the priority of community over individual, of social order over personal liberty, of economic development over political freedom. Critics responded that this was less an authentic civilisational stance than a convenient defence by authoritarian governments. The debate has cooled but the questions linger.

(f) The Islamic perspective The Cairo Declaration on Human Rights in Islam (1990), adopted by the Organisation of the Islamic Conference, frames rights within the Shari’ah. Some of its provisions diverge from universal instruments on freedom of religion, on equality between men and women, on certain criminal punishments. It is not legally binding but reflects an influential constituency within the international community. (g) The Vienna compromise universal and contextual The classic synthesis came in paragraph 5 of the Vienna Declaration and Programme of Action, adopted by 171 states by consensus on 25 June 1993 (UN doc A/CONF.157/24): “All human rights are universal, indivisible and interdependent and interrelated. The international community must treat human rights globally in a fair and equal manner, on the same footing, and with the same emphasis. While the significance of national and regional particularities and various historical, cultural and religious backgrounds must be borne in mind, it is the duty of States, regardless of their political, economic and cultural systems, to promote and protect all human rights and fundamental freedoms.” Read that paragraph carefully. It does two things at once: it asserts universality as the primary principle, but acknowledges that culture and history are relevant context. Universality wins, but not by ignoring culture.

(h) Where relativism cannot go the harmful-traditional-practices boundary The cleanest test of relativism is what to do with practices that violate core rights even if they have cultural sanction. The dominant answer is that cultural argument cannot justify: female genital cutting; forced marriage; child marriage; slavery and slavery-like practices; honour killings; “witch” persecutions; trial by ordeal. These are condemned by core human-rights instruments and increasingly by domestic law across Africa. Culture is no defence. (i) Sierra Leone a living laboratory Sierra Leone’s legal system makes the universalism/relativism debate immediate. It operates a plural legal system: alongside the general (received English / common-law) courts there are customary-law local courts in the chiefdoms. Most rural Sierra Leoneans access justice through customary law. Chieftaincy and traditional authority remain powerful. Two recent developments show the country wrestling with the balance:

• The Registration of Customary Marriage and Divorce Act 2009 set the minimum customarymarriage age at 18 but permitted underage marriage with parental consent (s.2(2)–(3)). This was a relativist accommodation protecting the cultural institution of customary marriage while creating an opening for child marriage. It clashed with the Child Rights Act 2007 (which also set 18 as the age of majority).
• The Prohibition of Child Marriage Act 2024 a decisive universalist turn. Signed into law by President Bio on 2 July 2024, it sets 18 as the minimum age of marriage with no exception, and prescribes imprisonment of not less than 15 years for anyone who marries, promotes or aids the marriage of a child. Sierra Leone, after a long internal debate, came down firmly on the side of universality on this issue. But there is also section 27(4) of the Constitution, which excludes from the non-discrimination guarantee “adoption, marriage, divorce, burial, devolution of property on death or other matters of personal law.” This is a structural relativist carve-out that allows customary law to discriminate (typically against women) in family matters. The Truth and Reconciliation Commission criticised this provision and recommended its repeal. The issue remains live.

A PART ICUL ARL Y S IE RRA L E O NEAN ANS WE R

The trajectory from the 2009 Act to the 2024 Act is a live case study of Abdullahi An-Na’im’s “internal discourse” approach reform produced from within the culture, through Sierra Leonean parliamentary deliberation, rather than imposed from outside. The universalist result was achieved by walking through the relativist door.

FURT H E R RE S E ARCH

B E YO ND T H E L E CT URE R’S NO T E S

Beyond the class notes: the major declarations, scholarly debates, and Sierra Leonean legal developments that ground this topic. ▪ The textual core paragraph 5 of the Vienna Declaration and Programme of Action (UN doc A/CONF.157/24, 25 June 1993), affirming that all human rights are “universal, indivisible and interdependent and interrelated.” Adopted by consensus by 171 states. The standard textual answer to strong relativism. ▪ The relativist counter-text the Bangkok Declaration (April 1993), adopted by 34 Asian states ahead of Vienna, emphasising sovereignty, non-interference, and the need for rights to be considered “in the context of national and regional particularities.” Its key provisions were softened in the Vienna outcome. ▪ The Cairo Declaration on Human Rights in Islam (1990, OIC) frames rights within the Shari’ah; not binding but politically influential. ▪ The African (Banjul) Charter on Human and Peoples’ Rights 1981 in force 21 October 1986. Distinctive features: Articles 27–29 (duties of the individual); Articles 19–24 (peoples’ rights); no general derogation clause. ▪ Jack Donnelly, Universal Human Rights in Theory and Practice (3rd edn, Cornell UP 2013) the leading articulation of “relative universality.” Rights are universal in concept, with limited cultural variation in interpretation. ▪ Abdullahi Ahmed An-Na’im, Toward an Islamic Reformation: Civil Liberties, Human Rights, and International Law (Syracuse UP 1990) the leading “cross-cultural legitimacy” / “internal discourse” scholar. His central thesis: durable acceptance of rights comes from reform within cultural and religious traditions, not from external imposition. ▪ Makau Mutua, “Savages, Victims, and Saviors: The Metaphor of Human Rights” (2001) 42 Harvard Int’l LJ 201 a sharp critique of the universal-rights project as a continuation of colonial cultural projection. Coiner of the “African cultural fingerprint” in earlier work on the Banjul Charter. ▪ Adamantia Pollis & Peter Schwab, “Human Rights: A Western Construct with Limited Applicability” (1979) a foundational relativist critique, still cited. ▪ Sierra Leone’s 2024 child-marriage law the Prohibition of Child Marriage Act 2024: minimum marriage age 18 with no exception; minimum 15 years’ imprisonment for any person who marries, promotes or aids the marriage of a child; signed by President Bio on 2 July 2024. ▪ Section 27(4) of the 1991 Constitution excludes personal law (adoption, marriage, divorce, burial, devolution of property) from the non-discrimination guarantee. Criticised by the TRC; debated as a barrier to gender equality.

WO RK E D E XAMPL E S

Four worked examples: ▪ Example 1 Female genital cutting (FGC). A practice with deep cultural roots in many Sierra Leonean communities, including through the Bondo society. Can cultural argument justify it under international law? No. It is condemned by the African Charter’s Protocol on the Rights of Women (Maputo Protocol, Art 5), the Convention on the Rights of the Child (Art 24(3)), and customary international human-rights law. The strongest argument for the practice that it is a deeply rooted cultural rite of passage fails because it inflicts irreversible bodily harm on girls who cannot meaningfully consent. The boundary the dominant view draws: culture must yield where the practice causes serious harm and where the victim cannot consent. ▪ Example 2 Polygamy under customary marriage. Polygamy is permitted under Sierra Leonean customary law and Islamic personal law. Universalists object that it discriminates against women (a husband may have multiple wives; a wife may not have multiple husbands). The relativist response is that it is a long-established cultural and religious practice. The pragmatic Sierra Leonean answer: polygamy is permitted in customary and Islamic systems but not in civil marriage; consent and equality protections operate; the law evolves through internal debate rather than blanket prohibition. ▪ Example 3 Chieftaincy succession and gender. Until recently, in many Sierra Leonean chiefdoms only men could become Paramount Chiefs. The Chieftaincy Act 2009 reforms changed this in some areas, opening more chieftaincies to women. The reform was driven internally through Sierra Leonean parliamentary politics with international human-rights principles as supporting argument rather than coercive imposition. A classic An-Na’im-style “internal discourse” outcome. ▪ Example 4 Free, prior and informed consent. Where a mining company seeks land for an operation, customary land tenure protects community interests through traditional authorities.

International instruments (UN Declaration on the Rights of Indigenous Peoples 2007, IFC Performance Standards) require free, prior and informed consent. Sierra Leonean law and practice are developing in the same direction. Cultural protection of community authority and universal recognition of consent reinforce rather than conflict here.

ME MO RY NO T E S FO R RE VIS IO N

Compact revision card for Topic 5: ▪ Core text: Vienna Declaration 1993, para 5 rights are “universal, indivisible and interdependent and interrelated”, with national and regional particularities to be borne in mind. ▪ Two forms of relativism: Strong

(rejected) vs Weak / “relative universality” (dominant academic view Donnelly). ▪ African reframing: Banjul Charter Arts 19–24 (peoples’ rights), Arts 27–29 (duties) the “African cultural fingerprint” (Mutua). ▪ Three key scholars: Donnelly (relative universality); An-Na’im (internal discourse); Mutua (cultural fingerprint / postcolonial critique). ▪ The boundary: Cultural argument cannot justify harmful traditional practices FGC, child / forced marriage, slavery. Core rights win. ▪ Sierra Leone signposts: Plural legal system; 2009 Act (relativist accommodation allowed underage customary marriage); Prohibition of Child Marriage Act 2024 (decisive universalist turn); s.27(4) Constitution (personal-law carve-out from non-discrimination). ▪ Bottom line: Universal in concept, contextual in application. Core rights are non-negotiable; methods of implementation can respect culture. The strongest African contribution is duty-andpeoples’-rights alongside individual rights.

E XAM PRACT ICE

Practise turning Topic 5 into marks. ▪ Q1 (Short answer, 5 marks). What is meant by “relative universality”? Approach: Identify Donnelly as the source. Explain: rights are universal in concept, with limited cultural variation in interpretation and implementation. Contrast with strong relativism (no universal standards) and naive universalism (one-size-fits-all). ▪ Q2 (Essay, 25 marks). “The African Charter on Human and Peoples’ Rights successfully reconciles the demands of universal human rights with African cultural particularity.” Critically discuss. Approach: (i) Introduce the universalism/relativism debate. (ii) Describe the Charter’s distinctive features: peoples’ rights (Arts 19–24); duties of the individual (Arts 27–29); no general derogation clause.

(iii) Discuss Mutua’s “African cultural fingerprint” thesis and the communitarian framing. (iv) Critique: Does the duties-and-peoples’-rights framing strengthen, or weaken, individual protection? Does the absence of a derogation clause actually result in stronger protection in practice? Have African Commission and Court interpreted the Charter in a way that respects culture without indulging abuse? (v) Conclude with a nuanced position. ▪ Q3 (Problem question, 25 marks). A Paramount Chief in a rural chiefdom in Sierra Leone has approved the marriage of a 16-year-old girl to a 40-year-old man under customary law. The girl’s parents consent. The Chief argues that this is the customary practice of his chiefdom and is protected by the constitutional respect for customary law (s.27(4)) and by cultural relativism. Advise the Government of Sierra Leone on the lawfulness of the marriage. Approach: (i) Identify the relevant law: Prohibition of Child Marriage Act 2024 (minimum age 18, no exception); the relationship with the 2009 Customary Marriage Act (now amended). (ii) Address the s.27(4) argument: s.27(4) exempts personal law from the non-discrimination guarantee but does not exempt customary law from the operation of subsequent specific legislation the 2024 Act applies. (iii) Address the cultural-relativism argument: the harmful-traditional-practices boundary; the Vienna Declaration; Maputo Protocol Art 6 (minimum 18 for marriage). (iv) Consequences: the marriage is void/criminal; the Chief and parents face imprisonment of at least 15 years; protective measures for the girl (Child Rights Act 2007 safeguards). (v) Conclude clearly.

Topic 6 Respect for Human Rights Most of the principles in this module are about states dealing with each other. This one is different. Respect for human rights brings individuals into international law as right-holders. It says that what happens inside a country how a state treats its own citizens is also a matter of international concern. Where it succeeds, it places the most powerful constraint of all on state behaviour. Where it fails, it shows the limits of international law most starkly.

FRO M T H E L E CTURE R’S NO T E S

From the class notes on Topic 12 (Respect for Human Rights): ▪ Categories of rights civil and political (life, liberty, fair trial, expression); economic, social and cultural (education, health, work, housing); group rights (development, environment, selfdetermination). ▪ International instruments the Universal Declaration of Human Rights (UDHR) 1948; the International Covenant on Civil and Political Rights (ICCPR); the International Covenant on Economic, Social and Cultural Rights (ICESCR). ▪ Enforcement mechanisms the International Criminal Court for the gravest crimes; Special Courts (e.g. the SCSL) for specific conflicts; regional commissions (African Commission, InterAmerican Commission, European Court). ▪ Sierra Leone case study the Special Court for Sierra Leone tried those bearing greatest responsibility for crimes committed during the civil war; landmark contributions to international criminal law, including recruitment of child soldiers as a crime. ▪ Sovereignty vs human rights a continuing tension; respect for human rights pierces the otherwise strong shield of domestic jurisdiction.

The Principle Explained (a) What human rights are in plain English Human rights are the rights every person holds simply by virtue of being human not because a government grants them, but because human dignity demands them. They are usually said to be universal (everyone has them), inalienable (you cannot lose them, even if a state ignores them), and indivisible (you cannot pick and choose; civil-political and economic-social rights stand together). In international law, every state has three layers of duty:

• Respect the state must not violate rights itself (no torture, no arbitrary detention).
• Protect the state must prevent third parties (companies, individuals, armed groups) from violating rights, and provide remedies when they do.
• Fulfil the state must take positive steps to make rights real (build schools so education is meaningful; create courts so fair trial is possible).

(b) The three generations of rights A useful (if imperfect) shorthand groups rights into three generations: Generation What it covers Where to find it 1st generation Civil and political Life; liberty; security; fair trial; freedom from torture; freedom of expression, assembly, religion; political participation; equality before the law.

ICCPR 1966 (binding); UDHR Arts 3–21 (declaratory).

2nd generation Economic, social, cultural Education; work and fair pay; food; housing; health; social security; cultural life; participation in scientific progress.

ICESCR 1966 (binding, progressive realisation); UDHR Arts 22–27.

3rd generation Solidarity / collective Self-determination; development; environment; peace; benefit-sharing of common heritage.

African Charter Arts 19–24; various declarations.

Why does this matter? Because the type of right tells you something about how it is implemented:

• First-generation rights tend to require abstention by the state don’t torture, don’t imprison without trial. They can usually be implemented at once.
• Second-generation rights tend to require expenditure schools, clinics, housing. Hence ICESCR Article 2(1) requires states to take steps “to the maximum of their available resources, with a view to achieving progressively the full realisation” of these rights. This is called progressive realisation.
• Third-generation rights typically attach to peoples or communities and engage cooperation between states.

(c) The International Bill of Human Rights The three documents the lecturer mentions UDHR, ICCPR, ICESCR together form the International Bill of Human Rights. They are the foundation. Here is how they fit: Universal Declaration of Human Rights 1948 Adopted by UNGA Res 217A(III) on 10 December 1948. Not a treaty (so not directly binding when adopted), but many of its provisions are now recognised as customary international law. It is the founding document and the source most often quoted as a moral standard.

International Covenant on Civil and Political Rights 1966

Adopted 16 December 1966; entered into force 23 March 1976. Binding on parties. Sierra Leone is a party. Establishes the Human Rights Committee to monitor state reports and (under the First Optional Protocol) to hear individual complaints.

International Covenant on Economic, Social and Cultural Rights 1966

Adopted 16 December 1966; entered into force 3 January 1976. Binding on parties; obligations are subject to progressive realisation (Art 2). Sierra Leone is a party. Monitored by the Committee on Economic, Social and Cultural Rights.

Don’t miss the common Article 1 of the ICCPR and ICESCR the right of self-determination, the only provision repeated word-for-word in both Covenants. We meet it again in Topic 7.

(d) The regional human-rights systems Alongside the universal system, three major regional systems have grown up. They give Sierra Leoneans (and others) a second layer of protection and a closer-to-home forum for complaint. The African human-rights system

• African (Banjul) Charter on Human and Peoples’ Rights 1981 entered into force 21 October 1986.
• African Commission on Human and Peoples’ Rights a quasi-judicial body (in Banjul) that receives individual and state communications, conducts on-site visits, and issues recommendations.
• African Court on Human and Peoples’ Rights established by Protocol (adopted 1998, in force 2004), seated in Arusha, Tanzania. Hears cases brought by the Commission, by states parties, and where the state has made a declaration under Article 34(6) by individuals and NGOs.
• ECOWAS Community Court of Justice (Abuja) has, since the 2005 Supplementary Protocol, also exercised human-rights jurisdiction over the 15 ECOWAS member states. This is additional to the African Court and important for Sierra Leoneans because Sierra Leone is an ECOWAS member. The European and Inter-American systems
• European Convention on Human Rights 1950 enforced by the European Court of Human Rights in Strasbourg. The most developed regional system.
• American Convention on Human Rights 1969 enforced by the Inter-American Court of Human Rights in San José, Costa Rica. These two are not directly applicable in Sierra Leone but their jurisprudence is persuasive and frequently cited especially the European “margin of appreciation” doctrine (states are given some latitude in how they implement rights), and the Inter-American Court’s rich case-law on enforced disappearance and indigenous rights.

(e) International criminal law and the Special Court for Sierra Leone Human-rights enforcement now includes criminal accountability for individuals who commit the gravest violations genocide, crimes against humanity, war crimes, aggression. Three streams of institutions:

• Permanent international courts the International Criminal Court (Rome Statute 1998, in force 2002, seated in The Hague), with jurisdiction over crimes committed on the territory or by nationals of states parties (and over situations referred by the UN Security Council).
• Ad hoc UN tribunals the ICTY (former Yugoslavia, 1993) and ICTR (Rwanda, 1994), both now closed.
• Hybrid / internationalised courts mixing international and domestic features. The Special Court for Sierra Leone (SCSL) is the leading example. Established by Agreement between the UN and the Government of Sierra Leone (16 January 2002), domesticated by the Special Court Agreement, 2002 (Ratification) Act No. 7 of

2002. The Court tried those bearing the greatest responsibility for serious violations of international humanitarian law and Sierra Leonean law committed in Sierra Leone since 30 November 1996. The SCSL produced three jurisprudential firsts:

1. First international tribunal to convict for the recruitment, conscription and use of child soldiers in the AFRC and CDF cases (2007). The crime had been recognised in the Statute of the SCSL (Art 4(c)); the SCSL was the first to actually convict. 2. First international tribunal to recognise forced marriage as a crime against humanity (an “other inhumane act”) in the AFRC Appeals Chamber judgment (2008), reaffirmed in the RUF case (Sesay, Kallon, Gbao). This precedent has since been followed by the ECCC (Cambodia), the ICC in Ongwen and Al Hassan. 3. First international court since Nuremberg to convict a former head of state Charles Taylor, former President of Liberia, convicted on all 11 counts on 26 April 2012 and sentenced to 50 years on 30 May 2012, for aiding and abetting and planning crimes committed by the RUF and AFRC in Sierra Leone. The Court’s 2004 decision on immunity (Prosecutor v Taylor, SCSL Appeals Chamber) confirmed that a serving head of state enjoys no immunity from prosecution before an international tribunal. In addition the SCSL set the model for an African-located, African-led tribunal applying international criminal law on the territory where the crimes occurred. The legacy continues through the Residual Special Court for Sierra Leone (which now oversees supervisory functions).

(f) Sierra Leone’s domestic protection Chapter III of the Constitution Sierra Leone’s 1991 Constitution dedicates Chapter III (sections 15–30) to “The Recognition and Protection of Fundamental Human Rights and Freedoms of the Individual.” Key provisions: Section Right protected s.15 General entitlement to fundamental rights and freedoms.

s.16 Right to life.

s.17 Right to personal liberty (with permitted grounds of detention).

s.18 Freedom of movement.

s.19 Protection from slavery and forced labour.

s.20 Protection from inhuman or degrading treatment.

s.21 Protection from deprivation of property without compensation.

s.23 Right to protection of law / fair trial.

s.24 Freedom of conscience and religion.

s.25 Freedom of expression and the press.

s.26 Freedom of assembly and association.

s.27 Protection from discrimination (with the s.27(4) personal-law exception see Topic 5).

s.28 Enforcement: the Supreme Court has original jurisdiction to hear human-rights petitions and grant redress.

Note two important limits. First, Chapter II (Fundamental Principles of State Policy including aspirational provisions on social and economic welfare, education, health, the environment) is non-justiciable by force of section 14 of the Constitution. So second-generation rights are aspirational at the constitutional level; their enforcement runs through ordinary legislation (Education Act, Public Health Act, etc.). Second, several Chapter III rights are accompanied by “claw-back” clauses permitting limitations in interests such as public safety, public order, and public morality these limits must be

(a) prescribed by law and (b) reasonably required in a democratic society. The Truth and Reconciliation Commission’s 2004 report criticised both the absence of justiciable socioeconomic rights and the breadth of the claw-back clauses. The proposed constitutional review process has been a long-running political project.

(g) The sovereignty–human-rights tension Article 2(7) of the UN Charter says the UN shall not intervene “in matters which are essentially within the domestic jurisdiction” of a state. Read literally, it would block international scrutiny of how a state treats its own people. But three developments have pierced this shield:

• Treaty law once a state ratifies the ICCPR, the African Charter, etc., human-rights protection is no longer essentially a matter of domestic jurisdiction.
• Customary international law core prohibitions (genocide, torture, slavery) are jus cogens; sovereignty cannot shield their violation.
• Institutional development the SCSL, the ICC, R2P (Topic 3), regional human-rights courts each provides a channel for international scrutiny. The result is a more qualified sovereignty: states remain sovereign, but human-rights obligations cut across the old domestic-jurisdiction shield.

FURT H E R RE S E ARCH

B E YO ND T H E L E CT URE R’S NO T E S

Beyond the class notes the textual instruments, the leading African cases, and Sierra Leone’s domestic framework: ▪ The International Bill of Human Rights UDHR 1948 (UNGA Res 217A(III), 10 Dec 1948); ICCPR 1966 (in force 23 March 1976); ICESCR 1966 (in force 3 Jan 1976). Note common Article 1 (self-determination) and ICESCR Article 2 (progressive realisation). ▪ African human-rights system African (Banjul) Charter on Human and Peoples’ Rights 1981 (in force 21 Oct 1986). African Court established by Protocol adopted in 1998, in force 25 January 2004, seated in Arusha. ▪ Leading African Court cases: ▪ Tanganyika Law Society & Legal and Human Rights Centre; Reverend Christopher Mtikila v United Republic of Tanzania (Apps 009 and 011/2011, Judgment 14 June

2013) the African Court’s first merits judgment. Held that Tanzania’s prohibition of independent candidacy violated Articles 13(1), 10, 2 and 3 of the Charter.

Lohé Issa Konaté v Burkina Faso (App 004/2013, Judgment 5 December 2014) the Court’s first free-expression judgment. Custodial sentences for defamation are disproportionate and violate Article 9 of the African Charter, Article 19 ICCPR and Article 66(2)(c) of the Revised ECOWAS Treaty.

• ECOWAS Community Court of Justice jurisdiction over human-rights matters since the 2005 Supplementary Protocol. Of particular interest to Sierra Leone is Samuel Sam-Sumana v Republic of Sierra Leone (Suit No. ECW/CCJ/APP/38/16, Judgment 27 November 2017), in which the Court held that the 2015 removal of the Vice-President from office was wrongful. (Verify the precise holding against the official report see Caveats at the end of this guide.) ▪ The SCSL’s three “firsts” child soldiers (AFRC, CDF, 2007); forced marriage (AFRC Appeals Chamber 2008; reaffirmed in RUF judgment); first head-of-state conviction since Nuremberg (Charles Taylor convicted 26 April 2012 on all 11 counts; sentenced to 50 years on 30 May 2012). ▪ Immunity Prosecutor v Charles Ghankay Taylor (Decision on Immunity, SCSL Appeals Chamber, 31 May 2004) a serving head of state has no immunity before an international tribunal. ▪ Sierra Leone domestic framework Constitution 1991, Chapter III (ss.15–30), with s.28 Supreme Court enforcement jurisdiction. Chapter II Directive Principles are non-justiciable (s.14). The TRC’s recommendations on constitutional reform are recorded in the Final Report of the Truth and Reconciliation Commission (2004). ▪ Doctrine of margin of appreciation a European jurisprudential contribution (Handyside v United Kingdom (1976) 1 EHRR 737), later refined in Lautsi v Italy (Grand Chamber, 2011). Cited persuasively in African human-rights argument when balancing universal rights against national context. ▪ Important treaty for Sierra Leone: Maputo Protocol (Protocol to the African Charter on the Rights of Women in Africa, adopted 2003, in force 2005) sets minimum marriage age at 18 (Art 6) and addresses harmful practices (Art 5). Ratified by Sierra Leone.

WO RK E D E XAMPL E S

Four worked examples: ▪ Example 1 The Charles Taylor conviction. Charles Taylor, former President of Liberia, was indicted by the SCSL in 2003 for his role in supporting and directing the RUF and AFRC forces in Sierra Leone. After a long trial, the Trial Chamber convicted him on all 11 counts (acts of terrorism, murder, rape, sexual slavery, conscription of child soldiers, enslavement, pillage and other inhumane acts) on 26 April 2012, and sentenced him to 50 years imprisonment on 30 May 2012. This was the first conviction of a former head of state by an international court since Nuremberg. It set a global precedent: heads of state can be held accountable for crimes against humanity committed by forces they supported. ▪ *Example 2 Sam-Sumana v Sierra Leone before the ECOWAS CCJ. Samuel Sam-Sumana, Sierra Leone’s Vice-President, was removed from office by President Koroma in March 2015.

He brought proceedings in the ECOWAS Community Court of Justice arguing that his removal violated the Constitution and his rights to fair hearing and political participation under the African Charter and the Revised ECOWAS Treaty. The ECOWAS CCJ ruled in his favour on 27 November 2017. The case demonstrates the additional layer of protection that ECOWAS membership provides to Sierra Leoneans a regional human-rights remedy where domestic recourse may be limited. (Cross-check the precise terms of the judgment against the official report.)* ▪ Example 3 Free Quality Education as progressive realisation. In 2018, the Government of Sierra Leone introduced Free Quality Education, abolishing tuition fees at primary and junior secondary level and committing significant resources to basic education. Under ICESCR Article 13 (the right to education) and Article 2 (progressive realisation), this is a paradigm example of a state taking concrete, measurable steps within its available resources to advance a secondgeneration right. International monitoring bodies (the CESCR; the African Commission) treat such measures as evidence of compliance with progressive-realisation obligations. ▪ Example 4 A constitutional enforcement claim under s.28. Suppose a Sierra Leonean citizen is detained by police for 96 hours without charge or access to a court. This breaches s.17 of the Constitution (which requires the detainee to be brought before a court “within a reasonable time, which shall not exceed seventy-two hours” for ordinary offences). The citizen may petition the Supreme Court under s.28 for redress, seeking declarations of breach, damages, and an order for release. The Supreme Court is the original-jurisdiction forum for such constitutional humanrights enforcement.

ME MO RY NO T E S FO R RE VIS IO N

Compact revision card for Topic 6: ▪ Foundational instruments the International Bill: UDHR 1948 (declarative); ICCPR 1966 (binding); ICESCR 1966 (binding, progressive realisation). Common Art 1 = selfdetermination. ▪ Three layers of state duty: Respect | Protect | Fulfil. ▪ Three generations of rights: Civil & political | Economic, social, cultural | Solidarity / collective. ▪ African regional system: Banjul Charter 1981; African Commission (Banjul); African Court (Arusha). ▪ For Sierra Leone, add: ECOWAS Community Court of Justice (Abuja) human-rights jurisdiction since 2005. ▪ Key African Court cases: Mtikila v Tanzania (2013) first merits judgment; Konaté v Burkina Faso

(2014) first free-expression case. ▪ SCSL “three firsts”: child soldiers; forced marriage; head of state (Charles Taylor, 26 April 2012, 50 years on 30 May 2012).

• Sierra Leone domestic: Constitution Chapter III (ss.15–30); s.28 Supreme Court enforcement; Chapter II non-justiciable (s.14). ▪ The sovereignty–HR tension: Art 2(7) shield pierced by treaty law, jus cogens, and institutions. ▪ Bottom line: Human-rights protection is universal in source (treaty, custom, jus cogens) and multi-level in application (universal → regional → sub-regional → domestic). Sierra Leoneans have four potential forums (UN treaty bodies; African Commission/Court; ECOWAS CCJ; Supreme Court of Sierra Leone).

E XAM PRACT ICE

Practise turning Topic 6 into marks. ▪ Q1 (Short answer, 5 marks). Name the three documents that together form the “International Bill of Human Rights” and briefly distinguish their legal status. Approach: (i) UDHR 1948 declaratory, originally not binding, but much of it now reflects customary international law. (ii) ICCPR 1966 binding treaty, immediate obligations. (iii) ICESCR 1966 binding treaty, subject to progressive realisation (Art 2). For full marks, mention common Article 1 (selfdetermination). ▪ Q2 (Essay, 25 marks). “The Special Court for Sierra Leone made a contribution to international human-rights jurisprudence wholly disproportionate to its size and budget.” Critically discuss. Approach: (i) Introduce the SCSL: hybrid court; jurisdiction over those bearing greatest responsibility for crimes since 30 November

1996. (ii) Set out the three firsts child soldiers (AFRC/CDF 2007), forced marriage (AFRC Appeals 2008), former head of state (Taylor, April 2012). (iii) Demonstrate the global influence: forced-marriage doctrine followed by ECCC, ICC (Ongwen, Al Hassan); Taylor judgment cementing the principle that immunity does not bar international prosecution (cf. the 2004 Immunity Decision). (iv) Acknowledge limits: only nine convictions; resource constraints; some critics argue selectivity. (v) Conclude with a nuanced position: the SCSL’s jurisprudential legacy is genuinely outsized; its model has shaped subsequent hybrid courts (Cambodia, Lebanon, Central African Republic). ▪ Q3 (Problem question, 25 marks). A Sierra Leonean journalist is convicted of criminal defamation in the High Court and sentenced to two years’ imprisonment for an article alleging corruption by a senior official. The journalist has exhausted domestic appeals. She asks you to identify the international and regional remedies available. Advise. Approach: (i) Identify the rights violated: freedom of expression Constitution s.25; African Charter Art 9; ICCPR Art 19. (ii) Available forums and procedures: (a) UN Human Rights Committee under the First Optional Protocol to the ICCPR (if Sierra Leone is a party to the OP check); (b) African Commission on Human and Peoples’ Rights communication after exhaustion of domestic remedies; (c) potential referral to the African Court (subject to Sierra Leone’s declaration under Art 34(6) check); (d) ECOWAS Community Court of Justice the strongest avenue for Sierra Leoneans because (i) no exhaustion-of-local-remedies requirement and (ii) clear jurisprudence against custodial sentences for defamation (cite Konaté v Burkina Faso, 2014). (iii) Possible remedies: declaration of violation; order to release; damages; recommendation to amend the criminal defamation law. (iv) Conclude with a recommended sequencing.

Topic 7 Self-Determination of Peoples The principle of self-determination is the answer to a deceptively simple question: who chooses? When a group of people share an identity a language, a history, a homeland do they have the right to choose their own political destiny? International law’s answer has been transformative. It powered the decolonisation of Africa, it underwrites the existence of Sierra Leone as an independent state, and it continues to generate some of the hardest legal questions of our time.

FRO M T H E L E CTURE R’S NO T E S

From the class notes on Topic 11 (Self-Determination): ▪ Definition the right of peoples to choose their political status and pursue their economic, social and cultural development freely. ▪ Two dimensions: Internal self-determination (governance, participation, autonomy within an existing state) and external self-determination (independence). ▪ African decolonisation the wave of African independence from the late 1950s onwards (Ghana 1957, Sierra Leone 1961, Nigeria 1960, and so on). ▪ Case studies South Sudan (2011), Western Sahara (unresolved), Sierra Leone’s own independence (1961). ▪ Modern challenges autonomy claims; secessionist movements; the tension between territorial integrity and the right of peoples.

The Principle Explained (a) What “self-determination of peoples” actually means Strip the legal language away and the principle says: a people should be in charge of its own collective political future, free from outside domination. Three components are bundled into that sentence:

• Self the people decide; they are not decided for.
• Determination a choice is made (independence, free association, integration, autonomy within a state).
• Of peoples the right belongs not to individuals but to collectives, defined by some shared identity. The hardest question in this whole topic is who counts as a “people”.

(b) Internal vs external self-determination This distinction is critical: Internal selfdetermination The right of a people to pursue its political, economic and cultural development within an existing state through democratic participation, representation in government, protection from discrimination, possibly autonomy or federal arrangements. Most peoples in stable states exercise self-determination this way.

External selfdetermination

The right of a people to determine its international status typically by becoming an independent state, but possibly by free association with another state or integration into one. Most operative in the colonial context (a people under colonial rule can become independent) and in cases of alien occupation or foreign domination.

(c) Where the right comes from Several texts together constitute the legal basis: Source What it says UN Charter, Article 1(2)

One of the Purposes of the UN is to develop friendly relations among nations “based on respect for the principle of equal rights and self-determination of peoples.”

UN Charter, Article 55 Repeats the formulation as a foundation of international economic and social cooperation.

ICCPR & ICESCR, common Article 1 “All peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.” Both Covenants making this the most prominently codified human right in international law.

UNGA Res 1514 (XV) (14 Dec 1960)

Declaration on the Granting of Independence to Colonial Countries and Peoples. The charter of decolonisation. Declared that “the subjection of peoples to alien subjugation, domination and exploitation” was a denial of fundamental human rights and a violation of the UN Charter.

UNGA Res 2625 (XXV) (1970)

Declaration on Friendly Relations. Reaffirms self-determination but adds a critical safeguard clause: nothing in the Declaration shall be construed as authorising any action that would impair the territorial integrity of a sovereign state “conducting itself in compliance with the principle of equal rights and self-determination of peoples… and thus possessed of a government representing the whole people… without distinction.”

The safeguard clause in Resolution 2625 is the textual anchor for the limit on external self-determination: a people within an existing state has no general right to secede if that state’s government represents the whole people without discrimination.

(d) The legal status of the right How strong is this right in international law?

• Erga omnes the obligation to respect self-determination is owed to the international community as a whole. The ICJ affirmed this in East Timor (1995) and most recently in Chagos (2019). The practical effect: any state has legal standing to demand compliance.
• Jus cogens the peremptory status of self-determination outside the colonial context has long been asserted by scholars and implied by ICJ practice. The ICJ’s 2024 Advisory Opinion on the Legal Consequences arising from Israel’s Policies and Practices in the Occupied Palestinian Territory is the strongest recent affirmation, treating self-determination in the occupation context as peremptory. Outside the colonial and occupation contexts, the jus cogens status remains contested.
• Customary international law the prohibition on denying self-determination to colonial and occupied peoples is firmly customary.

(e) The colonial context where the right is strongest Self-determination is unambiguously a right of external choice in two situations: 1. Non-self-governing territories whose peoples have not yet attained a full measure of self-government. The UN maintains a list (currently 17 territories, including Western Sahara). The administering power has obligations under Chapter XI of the Charter to develop self-government. 2. Peoples subject to alien occupation, colonial rule or racist regimes the formulation in Resolution 2625. This is the category that supported African decolonisation, Namibia’s independence from South Africa, and the dismantling of apartheid.

(f) Outside the colonial context secession and remedial secession The right is much less clear when a people inside an existing state claims independence. Three positions:

• Position 1 No right of secession. Outside the colonial and occupation contexts, international law does not grant peoples the right to break up existing states. The safeguard clause of Resolution 2625, the principle of territorial integrity, and the doctrine of uti possidetis juris (newly independent states inherit colonial boundaries) all point this way.
• Position 2 Remedial secession. Where a people is subjected to extreme oppression systematic discrimination, denial of internal self-determination, gross human-rights violations and where no internal remedy is available, that people may have a last-resort right to secede. This was left open in the Canadian Supreme Court’s Reference re Secession of Quebec 2 SCR 217. It remains contested in international law.
• Position 3 Recognition first, law later. Some scholars argue that secession is governed less by legal rules than by practice a secessionist movement either succeeds politically and earns recognition (Eritrea 1993, South Sudan 2011) or it fails. International law mostly tracks the outcome.

(g) Uti possidetis juris the African touchstone Uti possidetis juris (“as you have, so shall you possess”) holds that newly independent states inherit their colonial administrative boundaries. The doctrine was developed in Spanish America and adopted by African states at the Organisation of African Unity in 1964 (Resolution AHG/Res. 16(I)). It is the reason African states inherited the often-arbitrary boundaries drawn at the Berlin Conference 1885 rather than being redrawn along ethnic lines. The principle was confirmed for international law in Frontier Dispute (Burkina Faso v Mali) ICJ Rep 554, where the ICJ described uti possidetis as a “general principle, which is logically connected with the phenomenon of the obtaining of independence, wherever it occurs.” The doctrine sacrifices some claims to ethnic self-determination in exchange for stability a trade-off African states accepted as the price of post-colonial peace.

(h) Sierra Leone a self-determination story Sierra Leone’s own existence is a product of this principle. The colony of Sierra Leone (founded in 1808) and the protectorate (formally constituted in 1896) were administered together as a British dependency until 27 April 1961, when Sierra Leone became independent under the leadership of Sir Milton Margai. Independence was achieved peacefully, through constitutional negotiation, in the wider wave of African decolonisation enabled by Resolution 1514 and the post-1945 normative shift against colonialism. Two features of Sierra Leonean self-determination are worth noting:

• Boundaries Sierra Leone inherited the boundaries of British Sierra Leone (colony plus protectorate) under uti possidetis. Ethnic groups crossing those borders (Mende, Temne, Krio, Mandingo, others) were politically separated where colonial lines ran. The price of post-colonial peace was acceptance of those lines.
• Internal self-determination since 1961 internal political self-determination has been mixed, with periods of one-party rule, military rule (1992–1996, 1997–1998), civil war (1991–2002), and democratic restoration. The 2002 elections, supervised by ECOWAS and the UN, were widely seen as exercise of internal self-determination.

(i) Modern African examples

• Eritrea (1993). Eritrea was annexed by Ethiopia in 1962 after a UN-mandated federation arrangement broke down. After a 30-year war of independence, Eritrea held a referendum in April 1993; 99.83% voted for independence, and Eritrea became an independent state, recognised internationally.
• South Sudan (2011). Following the 2005 Comprehensive Peace Agreement, South Sudan held a referendum between 9 and 15 January 2011 under the auspices of the African Union and the UN. 98.83% voted for independence. South Sudan became independent on 9 July 2011 the most recent successful exercise of external self-determination in Africa.
• Western Sahara. A non-self-governing territory on the UN list. The 1975 ICJ Advisory Opinion held that the territory was not terra nullius at the time of Spanish colonisation, and that neither Morocco nor Mauritania had ties of territorial sovereignty over it. The right of self-determination of the Sahrawi people through a free and genuine expression of will remains unresolved. The 1991 ceasefire promised a referendum that has never been held.

(j) Beyond Africa the leading global cases

• Western Sahara (Advisory Opinion) ICJ Rep 12 self-determination requires “the free and genuine expression of the will of the peoples concerned” and is inapplicable only if a population is not regarded as a “people” entitled to it.
• East Timor (Portugal v Australia) ICJ Rep 90 self-determination is erga omnes owed to the international community as a whole. (The Court nevertheless declined jurisdiction because the case required adjudication of Indonesia’s acts, and Indonesia was not before the Court.)
• Reference re Secession of Quebec 2 SCR 217 the Canadian Supreme Court held: (a) no unilateral right of secession under Canadian or international law; (b) internal self-determination is satisfied within Canada’s constitutional order; (c) a clear majority on a clear question would oblige negotiation; (d) the question of remedial secession in extreme oppression cases was left open.
• Kosovo Advisory Opinion ICJ Rep 403 by 10 votes to 4 the Court held that the unilateral declaration of independence by Kosovo (17 February 2008) did not violate general international law. The Court was carefully narrow: it did not pronounce on whether Kosovo had a right to independence, only that the declaration itself was not prohibited.
• Chagos Advisory Opinion (Legal Consequences of the Separation of the Chagos Archipelago from Mauritius in 1965) ICJ Rep 95 the decolonisation of Mauritius was not lawfully completed in 1968 because the UK had detached the Chagos Archipelago from Mauritius in 1965. The UK’s continued administration is a continuing wrongful act; the territory should be returned to Mauritius. Self-determination is erga omnes. A landmark vindication of completed-decolonisation rights.
• Palestine Advisory Opinion 2024 the ICJ’s advisory opinion on Israeli policies and practices in the Occupied Palestinian Territory, treating self-determination of the Palestinian people in the occupation context as a peremptory norm and ordering Israel to end its unlawful presence as rapidly as possible.

FURT H E R RE S E ARCH

B E YO ND T H E L E CT URE R’S NO T E S

Beyond the class notes the texts, the leading cases, and the scholarly debates: ▪ Textual basis UN Charter Arts 1(2) and 55; ICCPR common Article 1 and ICESCR common Article 1; UNGA Res 1514 (XV) (14 Dec 1960); UNGA Res 2625 (XXV) (1970) Friendly Relations Declaration with the safeguard clause. ▪ Status of the right erga omnes (East Timor, Chagos); customary; jus cogens status affirmed in the 2024 Palestine Advisory Opinion in the occupation context; outside colonial/occupation contexts the peremptory status remains contested. ▪ Leading ICJ authorities (in chronological order): ▪ Western Sahara (Advisory Opinion) ICJ Rep 12 territory not terra nullius; selfdetermination requires free and genuine expression of the will of the peoples.

Frontier Dispute (Burkina Faso v Mali) ICJ Rep 554 uti possidetis juris affirmed as a general principle.

East Timor (Portugal v Australia) ICJ Rep 90 self-determination is erga omnes.

Kosovo Advisory Opinion ICJ Rep 403 unilateral declaration of independence not prohibited by general international law; Court declined to rule on consequences or any positive right of secession.

Chagos Advisory Opinion ICJ Rep 95 decolonisation must be completed; continuing wrongful act if territory unlawfully detached.

Legal Consequences arising from Israel’s Policies and Practices in the Occupied Palestinian Territory (Advisory Opinion, 2024) self-determination of an occupied people in the occupation context treated as peremptory.

• Comparative authority: Reference re Secession of Quebec 2 SCR 217 the most influential modern judicial statement on internal vs external self-determination and on remedial secession (left open). ▪ African inheritance: OAU AHG/Res. 16(I) (1964) affirming uti possidetis in Africa. ▪ Scholarship: Antonio Cassese, Self-Determination of Peoples: A Legal Reappraisal (CUP 1995) the leading monograph; Malcolm Shaw on uti possidetis; James Crawford on the law of statecreation; Christine Bell on negotiated transitions. ▪ African examples: Sierra Leone independence 27 April 1961; Eritrea referendum April 1993 (99.83% for independence); South Sudan referendum 9–15 January 2011 (98.83%); independence 9 July 2011; Western Sahara: 1975 ICJ Advisory Opinion; 1991 ceasefire; referendum still pending.

WO RK E D E XAMPL E S

Four worked examples: ▪ Example 1 Sierra Leone, 27 April 1961. Sierra Leone’s independence is itself the most concrete worked example of this principle for Sierra Leonean students. As a British dependency on the UN list of non-self-governing territories, Sierra Leone was a paradigm case for the application of Resolution 1514. Independence was negotiated constitutionally, achieved peacefully, and immediately recognised by other states. The territorial scope was determined by uti possidetis the new state inherited the boundaries of British Sierra Leone, irrespective of ethnic lines crossing those boundaries. ▪ Example 2 South Sudan, 2011. South Sudan illustrates external self-determination achieved by negotiation rather than litigation. The 2005 Comprehensive Peace Agreement between Khartoum and the SPLM/A provided a six-year interim period followed by a referendum on independence. The referendum was held 9–15 January 2011; 98.83% voted to secede. Independence followed on 9 July 2011, with recognition by the AU and the UN. Critically, the parent state (Sudan) accepted the result sparing South Sudan a violent path. The case shows external self-determination within an existing state working as a peace-process outcome, not a unilateral act. ▪ Example 3 Chagos: completed decolonisation as a continuing right. When Mauritius gained independence from the UK in 1968, the UK had in 1965 detached the Chagos Archipelago and forcibly removed its inhabitants to establish a US military base on Diego Garcia. In 2019, after a UNGA reference, the ICJ held that Mauritius’s decolonisation was not lawfully completed: the UK’s detachment of Chagos breached self-determination as it then stood (Resolution 1514). The continuing British administration constituted a continuing wrongful act. The opinion vindicated a long-stalled African claim and demonstrated that decolonisation rights remain alive decades after the original event. ▪ Example 4 A hypothetical secession claim. Suppose a region of country X, populated mostly by an ethnic minority, holds a referendum and declares independence. The central government refuses to negotiate. Apply the law: (i) Resolution 2625 safeguard clause territorial integrity is protected if the state’s government represents the whole people without discrimination. (ii) Quebec Reference no unilateral right of secession; internal self-determination must be exhausted first. (iii) Remedial secession may exist as a last resort in cases of extreme oppression, but remains contested. (iv) Practical outcome: legality will depend largely on (a) the conduct of the parent state and (b) international recognition by other states. International law provides structure but not a clean answer outside the colonial context.

ME MO RY NO T E S FO R RE VIS IO N

Compact revision card for Topic 7: ▪ Textual basis (memorise the citations): UN Charter Arts 1(2) & 55; ICCPR + ICESCR common Article 1; UNGA Res 1514 (1960); UNGA Res 2625 (1970) with the safeguard clause. ▪ Two dimensions: Internal (within state) vs External (independence). ▪ Status: erga omnes (certain); customary (certain); jus cogens in colonial / occupation contexts (affirmed 2024 Palestine opinion); beyond that, contested. ▪ Limits: Territorial integrity; uti possidetis juris (OAU 1964, ICJ Burkina Faso v Mali 1986). ▪ Remedial secession: Doctrine debated; left open in Quebec Reference (1998). ▪ Leading cases: Western Sahara (1975); East Timor (1995); Kosovo (2010); Chagos (2019); Palestine (2024). ▪ African examples: Sierra Leone 1961; Eritrea 1993 (99.83%); South Sudan 2011 (98.83%, independent 9 July 2011); Western Sahara unresolved. ▪ Bottom line: Strong right in colonial and occupation contexts (external choice). Outside those contexts, the right is real but operates mostly internally (participation, autonomy). Secession is exceptional and largely depends on negotiation + recognition.

E XAM PRACT ICE

Practise turning Topic 7 into marks. ▪ Q1 (Short answer, 5 marks). Distinguish internal from external self-determination. Approach: Define each. Internal = governance, participation, autonomy within an existing state. External = determining international status (independence, free association, integration). External choice operates principally in colonial / alien-domination / occupation contexts. ▪ Q2 (Essay, 25 marks). “Self-determination is the most powerful principle of international law in the colonial context, but loses most of its bite once decolonisation is complete.” Critically discuss with reference to ICJ jurisprudence and African experience. Approach: (i) Set out the textual basis (Charter, Covenants, Res 1514 & 2625). (ii) Trace the colonial application: Sierra Leone 1961, the wave of African independence, decolonisation as a customary obligation; the Court’s strong statements in Western Sahara (1975) and Chagos (2019).

(iii) Address the limits outside the colonial context: Resolution 2625 safeguard clause; territorial integrity; uti possidetis juris.

(iv) Note the partial revival in Palestine (2024) the peremptory status of self-determination in the occupation context. (v) Engage with the Quebec internal/external framework; the contested remedial-secession doctrine. (vi) Conclude with a nuanced position: the principle has not lost its bite Chagos and Palestine show its continuing force but its operative terrain has shifted from colonial liberation to internal participation, completed decolonisation, and occupation contexts. ▪ Q3 (Problem question, 25 marks). A region of country X (a stable democracy in West Africa) is populated by an ethnic minority with a distinct language and culture. The minority has full political participation at national level: ministerial posts; constitutional protections; bilingual education. Nonetheless a separatist movement declares independence and seeks international recognition. Advise the central government on the legal position. Approach: (i) State the legal framework (Charter, Covenants, Res 1514 & 2625). (ii) Apply the Resolution 2625 safeguard clause: country X’s government represents the whole people without discrimination, so territorial integrity is protected. (iii) Apply the Quebec Reference: no unilateral right of secession outside the colonial/oppression context; internal self-determination already satisfied. (iv) Address remedial secession:

the threshold (extreme oppression, denial of internal self-determination) is not met. (v) Note uti possidetis in the African context (OAU 1964; Burkina Faso v Mali). (vi) Conclude: the declaration is not legally effective; international recognition is unlikely; country X may lawfully resist secession (subject to its own constitutional and human-rights obligations no excessive force). The minority’s remedy lies in internal mechanisms (negotiation, constitutional reform, autonomy).

Cross-Topic Threads Seeing the Connections Examiners reward candidates who can spot the threads running between principles. Three deserve special attention.

Thread 1: Sierra Leone’s dualism (Topics 1, 4, 6) Section 40(4) of the Constitution shows up three times: in Topic 1 (sources treaties need domestication); in Topic 4 (pacta sunt servanda internal law cannot excuse international breach, VCLT Article 27); and in Topic 6 (human-rights treaties ICCPR, ICESCR, African Charter need legislative implementation for full domestic effect, though their content increasingly informs constitutional interpretation). A strong essay can use this thread to demonstrate the way Sierra Leone’s constitutional structure shapes how international law enters Sierra Leonean life.

Thread 2: Sovereignty versus community (Topics 2, 3, 6, 7) Watch how the same tension recurs in different clothes. Topic 2 sovereign equality presumes states are the masters of their own affairs. Topic 3 the prohibition on force is a limit on what sovereign states may do to each other. Topic 6 human rights pierce the Article 2(7) shield and constrain what states may do to their own people. Topic 7 self-determination opens a further crack: peoples (not just states) have rights that may, in extreme cases, override territorial integrity. The trajectory is unmistakable: sovereignty over the last 80 years has become qualified, not absolute.

Thread 3: African contributions to international law (every topic) The module is taught with Sierra Leonean and African examples not as decoration but because Africa has actually shaped the doctrines:

• Topic 1 Sierra Leone’s.40(4) and the Special Court Act 2002 model dualist treaty domestication.
• Topic 2 The Ezulwini Consensus (2005) on Security Council reform reflects Africa’s push for structural equality.
• Topic 3 ECOMOG (Liberia 1990, Sierra Leone 1997), ECOMIG (Gambia 2017), and AU Constitutive Act Article 4(h) have reshaped jus ad bellum.
• Topic 4 Africa’s peace-and-security treaty architecture (ECOWAS, AU) is a textbook in pacta sunt servanda in practice.
• Topic 5 The Banjul Charter’s duties-and-peoples’-rights framing is a distinctive African contribution to the universalism debate.
• Topic 6 The SCSL’s three jurisprudential firsts; the African Court’s Mtikila and Konaté judgments; the ECOWAS CCJ as an additional human-rights forum.
• Topic 7 Frontier Dispute, the Chagos Advisory Opinion, the South Sudan and Eritrea referenda African self-determination practice has shaped global doctrine.

Final Exam Strategy Use the following three-stage approach to revise this module.

Stage 1 Core Mastery (the first two weeks of revision) Commit to memory, for each of the seven topics, the following five anchors: 1. One authoritative definition. Be able to recite or paraphrase a textbook definition (Oppenheim, Brierly, etc.) without notes. 2. The governing instrument and exact article numbers. Art 38(1) ICJ Statute (sources); Art 2(1), 2(4), 2(7), 51 UN Charter; VCLT Arts 26, 27, 62; ICCPR/ICESCR common Article 1; UNGA Res 1514 & 2625. 3. Two cases. One global (ICJ or comparable), one African or Sierra Leonean. 4. One scholarly debate or criticism. e.g. Austin’s command theory; cultural relativism; ECOMOG’s legal basis; jus cogens status of self-determination. 5. The bottom line. A one-sentence summary you could deliver under pressure. B E NCH MARK T O ADVANCE T O S T AG E 2 From memory, in one sitting, you can recite: Arts 2(1), 2(4), 2(7), 51 UN Charter; VCLT Arts 26, 27, 62; common Article 1 ICCPR/ICESCR; UNGA Res 1514 and 2625; the Montevideo four criteria; and the ANPR test for self-defence.

Stage 2 Argumentation (next two weeks) Practise IRAC on past-paper problem questions. For every problem, work through:

• Issue what exactly is the legal question?
• Rule the governing instrument and article; the customary rule; the leading case.
• Application apply the rule to the facts, pairing a global authority with a Sierra Leonean / African illustration wherever possible.
• Conclusion give a clear answer, even where the law is uncertain. Examiners reward candidates who take a position and defend it. B E NCH MARK T O ADVANCE T O S T AG E 3 Every essay you write deploys at least one Sierra Leonean or African example. The problem-answer IRAC structure is automatic. You can explain the difference between jus ad bellum and jus in bello proportionality without thinking.

Stage 3 Synthesis & Critique (the final week)

Move from individual principles to the threads that connect them (see the preceding chapter). Prepare to take a position on each of the following debates so that you can deploy it under exam pressure:

• Was Austin right? short answer: he was right about Victorian England, wrong about international law.
• Was ECOMOG’s 1997 intervention lawful? short answer: technically a breach of Article 2(4), but legitimated by host-state consent and subsequent UNSC commendation; part of an emerging West African pro-democratic norm.
• Is cultural relativism a defence to harmful traditional practices? short answer: no the Vienna Declaration affirms universality; the boundary is firm; Sierra Leone’s 2024 Child Marriage Act exemplifies internal-discourse universalism.
• Is there a right of remedial secession? short answer: contested; left open in Quebec; not yet a settled rule of international law.
• Has sovereignty been eroded by human rights? short answer: not eroded but qualified states remain sovereign within obligations they have accepted. FINAL PRE PARAT IO N

A B RIE F CH E CK L IS T

• Print this guide and the original lecture notes; put them side by side. ▪ Re-write the Memory Notes for each topic in the own hand. Writing aids retention. ▪ Do three timed practice questions one short answer, one essay, one problem from this guide. Mark the self against the approach notes. ▪ Sleep before the exam. Tired candidates lose argument structure even when they remember the law.

Caveats & Points to Verify This guide aims for precision, but a few points should be flagged so that you can verify them before relying on them in formal coursework or in submitted answers.

RE AD B E FO RE CIT ING IN FO RMAL WO RK

• The Sam-Sumana v Sierra Leone holding the precise terms of the ECOWAS CCJ’s November 2017 judgment (Suit No. ECW/CCJ/APP/38/16) vary in different secondary accounts (some reports speak of reinstatement, others of damages and outstanding entitlements only). Before citing the case in formal work, consult the official ECOWAS CCJ report or a reputable headnote. ▪ Jus cogens status of self-determination outside colonial / occupation contexts widely asserted by scholars; affirmed by the ICJ specifically in the occupation context (2024 Palestine Advisory Opinion); not authoritatively settled beyond those contexts. Frame the answer to reflect that contest.
• Anticipatory and pre-emptive self-defence not a settled exception. Treat as a debate, not as a black-letter rule. ▪ Unilateral humanitarian intervention outside Security Council authorisation not a settled exception. R2P operates through the Council; it is not a unilateral licence. ▪ Pinpoint paragraph and page citations the references in this guide (e.g. North Sea Continental Shelf para 77; DRC v Uganda paras 146–147) should be verified against the official ICJ Reports before use in submitted work or in scholarly citation. ▪ Currency this guide reflects the law as of 30 May 2026. Subsequent developments in Sierra Leonean legislation, in ICJ jurisprudence, or in regional human-rights case law should be checked through current sources. ▪ One more general point: the further-research sections of this guide are tools for independent reading, not substitutes for it. The leading textbooks (Shaw, Crawford / Brownlie, Cassese on self-determination, Donnelly on cultural relativism, Schabas on international criminal law) remain the proper sources to cite in formal work.

End of Study Guide Fourah Bay College, University of Sierra Leone Prepared 30 May 2026