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Principles of Public International Law PRINCIPLES OF PUBLIC INTERNATIONAL LAW I IAN BROWNLIE, QC, DCL, FBA Bencher of Gray's Inn Chickle Profesm of Public Inrernariaal Law in rk University of Oxford Fellow of All Souls College, Oxford Memuer of the Institute of International Law FOURTH EDITION CLARENDON PRESS. OXFORD 1990 I WIDENER 1). LAW LIBRARY HARRISBURG Oxford University Press, Walton Street, Oxford ox2 601) Oxford New York Toronto Delhi Bombay Calcutta Madras Karachi Petaling Jaya Srngapore Hong Kong Tokyo FROM THE PREFACE OF THE Narrobi Dar es Salaam Cape Town Melbourne Auckland SECOND EDITION and associated companres 11, Berlrn Ibadan HE prime object remains that of the first edition: to present the subject-matter in terms of law and legal technique, whilst Oxford is a trade mark of Oxford Umversrty Press Tmaking appropriate reference to the influence of policy and Published in the United States political conflicts. With the inclusion of new chapters the book pro- by Oxford Unrversity Press, New York vides a reasonably comprehensive account of the law of peace based Q Ian Brownlie 1990 upon the modern practice of states, the practice of organizations of states, and the decisions of international and municipal courts. In pre- All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, paring the text reference has been made to available evidence of the electmnrc, mechanical, photocopyrng, recording, or otherwise, wlthout practice of states generally. The writer has attempted to observe the the prior permission of Oxford Unrversity Press professional stardard which requires the recording of what is happen- ing in the world at large and not merely what is pleasing to the eye. A This book is sold subject to the condition that it shall not, b.y may of trade or otherwise, be lent, re-sold, hired out or o~herwisecirculated true estimate of consensus or possibly emergent rules will not relate without the publisher's prior consent in any form of bindtng or cover neatly to the view of any single state or group of states. Of course, in other than that in which it is published and without a similar condition some areas of the law it is not possible to do more than to indicate the including this condition berng imposed on the subsequent purchaser divergent tendencies. FIRST EDITION 1966 A high proportion of the references are to sources and literature in SECOND EDlTlON 1973 English and French. In preparing a book of this kind I have been THIRD EDITION 1979 indebted to various useful contemporary sources and, in particular, Russian edrtion of the second edition, the International Law Reports, edited by Mr E. Lauterpacht, QC. by Professor G. I. Tunkin, Moscow, 1977 The document reproduced at pp. 31 1-15 taken from the same learned Japanese editron of the third editton, by Seibrrndo Shinkorha Publishing Co. Ltd., 1989 editor's British Practice in International Law (1967)~58. I am beholden to a number of friends and reviewers for criticisms British Lrbrary Cataloguing in Publrcatio~rData and suggestions. Particular assistance came from Richard Baxter, Bruwnlie, Ian Judge of the International Court of Justice (formerly of Harvard Law Principles of public international law - 4th ed. I. International lam School), Profes:ior K. Skubiszewski, of the Polish Academy of I. Title Sciences (formerly of the Adam Michiewicz University, Poznan), Pro- 341 fessor R. Y. Jennings, QC, of Cambridge University, and Dr D. R. ISBN +1~825638-8 ISBN o-19-82563~6 (pbk.) Harris, of Nottingham University. Of course, the text now presented remains my responsibility alone. Finally, I am grateful for the help Library of Congress Catalogzng in Publicat~onData and courtesy of the staff of the Clarendon Press. Neither the work for Brownlie, Ian. nor the publication price of the present book has been subsidized by Princtples of public international law / by Ian Brownlie. - 4th ed. Includes bibliographical references. any official source or private foundation. I. International law. I. T~tle I.B. Jx3225.B78 1990 341-dC20 89-23244 Oxford ISBN +1~825638-8 4 Seplember 1972 ISBN o-19-82563~6 (pbk.) Typeset by Promenade Graphics Lrmited, Cheltenham Printed in Great Britain by Biddles Ltd., Guildford and King's Lynn INJURY TO PERSONS AND PROPERTY OF ALIENS 519 extra-territorial application of the national criminal law to acts harm- PART IX ing citizen^.^ More important than this, however, is the diplomatic protection exercised by a state in respect of its nationak5 If nationals are subjected to injury or loss by an agency for which another state is THE PROTECTION OF INDIVIDUALS responsible in law, then, whether the harm occurs in the territory of a AND GROUPS state, or res cornmunis, i.e. the high seas or outer space, or in terra nullius, the state of the persons harmed may present a claim on the international plane. The last proposition begs many questions involving the conditions CHAPTER XXIII under which responsibility arises, and the principal object of the pres- ent chapter is to examine these conditions. The general principles of 'imputability', including responsibility for the unauthorized acts of r; : INJURY TO THE PERSONS AND PROPERTY OF officials, have been considered in Chapter XX. r.. ALIENS ON STATE TERRITORY Lj yrr PiC 2. Admissions, Expulsion, and Liabilities of Aliens .. I. State and Individual 71 ;r ;r I HE legal consequences of belonging to a political community The problems of responsibility naturally arise most frequently when .- with a territorial base have not changed a great deal since the aliens and their assets are stationed on state territory, and, by way of c Tfeudal era, in spite of changes in the theory used to describe or preliminary, something must be said of the incidence of aliens within explain the relation.' Ties of allegiance, citizenship, and nationality the state. In principle this is a matter of domestic jurisdiction: a state i;. have provided the basis for the legal community of the state, whether may choose not to admit aliens or may impose conditions on their <-a the state was regarded primarily as an organic unity expressed in terms admis~ion.~Internal economic policies and aspects of foreign policy C! : of 'personal' sovereignty or as a territorial domain. Modern practice may result in restrictions on the economic activity of aliens.' National -0 tends toward the latter view, but has not wholly abandoned the doc- policy may require prohibition or regulation of the purchase of trine of Vattel. Vattel, in a much quoted passage,' stated that an immovables, ships, aircraft, and the like, and the practice of certain if;. - injury to a citizen is an injury to the state. His principle is often des- professions by aliens. Provisions for the admissions of aliens in treaties cribed as a fiction, but it is surely inadequate so to characterize the $;! legal relation between a 'corporate' legal person and its membership. 3:! ' Generally on jurisdiction: supra, ch. XIV. ,#:' ,#:' In any case Vattel was not contending that any harm to an alien was an The concept of nationality is examined in ch. XVIII. The means of establishing the exis- injury to his state: the relation simply provides a necessary basis for tence of the legal interest based on nationality. and other issues of admissibility, are considered supra. pp. 480 ff. Exieptionallv, a state may have a legal interest in an individual on some basis 3: :' principles of responsibility and pr~tection.~On the one hand, the state other than nationalit), e.g. if the individual enters the state service: supra, p. 481. On the right of $a. has a certain responsibility for the acts of its citizens or other persons protection of the United Nations in respect of persons in its service see lnfra. p. 686. under its control of which its agents know or ought to know and which ' This is the view of modern authorities, e.g. Oppenheim, i. 675. For British practice see 7:1 McNair, Opin~ons,ii, 105-8; and Musgrove v. Chun Teeong Toy [1891] AC 272. See generally on :I: 1 cause harm to the legal interest of another state. On the other hand, admission and exclusion ofaliens: Goodwin-Gill, 47 BY (1974-5)) 55-156; id., Internarlonal Lam the state has a legal interest represented by its citizens, and those and the Movement of Persons between Stares (1978);Reperroire sum, ii. 698-973. Bnrish Digest. vi. t:; harming its citizens may have to account to the state protecting the 9-77; Verdross, 37 Hague Recueil(rg31, Ill), 338-47; Hackworth, iii. 549-52,690-705,717 ff.; t1;1 latter. This accountability may take the form of subjection to the Puente, 36 A3 (194;), 252-70; Doehring, in Max Planck Insriture Encyclopaedia o/I'IL, viii (1985), I 1-16. On the effect of the European Conv. on Human Rights on admission and expul- I::: sion see 23 ILR (1956), 393; 33 BY (1957), 317; and ILR 28, 208, 246. On the law of the EEC :[I, I On the position of the individual in international law see ch. XXIV. see the Movemenr of Workers case, ILR 40,280; Wyatt and Dashwood, The Substanrive Law o/rhe Le Droll desgens, Bk. ~t,ch. vi, para. 71. E.E.C. (1980), 125-54. See also the European Conv. on Establishment, Europ. Treaty Smes. (; 1 But see Ammoun, sep. op., Barcelona Traction case (Second Phase), ICJ Reports (1970), no. 19. 29~-4(and cf. the same opinion at p. 300, para. 10). ' See further suprc, p. 261. i 520 PROTECTION OF INDIVIDUALS AND GROUPS INJURY TO PERSONS AND PROPERTY OF ALIENS 521 of friendship, commerce, and navigation are qualified by references to respects clear.
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