A PROJECT ON
INTERNATIONAL TREATIES CASES OF VIOLATIONS VIOLATIONS
SUBMITTED TO MR. A. P. SINGH (FACULTY (FACULTY OF INTERNATIONAL INTE RNATIONAL LA L AW)
SUBMITTED BY ANOOP KUMAR
ROLL NO. 11
DR. RAM MANOHAR LOHIYA NATIONAL LAW UNIVERSITY LUCKNOW
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PREFACE
The aim of this project is to introduce the reader to the topic INTERNATIONAL TREATIES CASES OF VIOLATIONS. The project also deals with the policy. The subject matter of the project deals with the cases of violations of International Treat reatie ies. s. Thank Thankss are are due to staf stafff at the the Dr. Dr. RMLN RMLNLU LU libr library ary,, the the facu facult lty y of the the International Law in Dr. RMLNLU, as well as to a number of colleagues who have directly or indirectly given pointers to how this project should proceed. I would also like to thank my father, who provided me with materials and his invaluable blessings.
ANOOP KUMAR
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CONTENTS.
SOURCES OF INTERNATIONAL INT ERNATIONAL LAW LAW.. PACTA SUNT SERVANDA. EXECUTION AND IMPLEMENTATION OF TREATIES. CASES ON TREATIES. CURRENT SITUATION. VIOLATIONS OF INTERNATIONAL TREATIES BY INDIA. CONCLUSION. BIBLIOGRAPHY.
SOURCES OF INTERNATIONAL LAW.
Traditionally, the sources of international law are regarded as being listed in Article 38 of the Statute of the International Court of Justice.
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These are: •
Intern Internati ational onal Conven Conventio tions ns whethe whetherr general general or partic particula ularr establi establishi shing ng rules rules expressly recognized by ‘the contesting states’;
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International custom as evidence of a general practice accepted as law;
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The general principles of law recognized by civilized nations; and
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Judicial decisions and the teachings of the most highly qualified publicists of the various nations (as subsidiary means for the determination of rules of law).
Nowadays, the term ‘convention’ is assumed to be referring to a multilateral treaty; but at the time Article 38 of the UN Charter was drafted ‘convention’ denoted any sort of treaty: bilateral, plurilateral or multilateral. And in the context of Article 38 it still has this meaning. Since World World War War II, treaties treaties have assumed assumed a clear prominence prominence as the primary primary source of law-making on the international plane. •
Especially multilateral treaties.
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Even so, international tribunals have clarified customary international law in ways which have developed the legal principles governing the law applying to treaties. For example, the International Court of Justice has done a lot to clarify the general rules for the interpretation of treaties.
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With ith the the incr increa ease sed d focu focuss on rela relati tion onss betw betwee een n Stat States es that that come comess with with globa globali lisa sati tion, on, ther theree has been been great greater er pres pressu sure re and and demand demand to codi codify fy rule ruless obtaining between those States.
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This This codific codificati ation on has been done done mainly mainly through through treati treaties es because because they are a relatively simple, clear and quick way of crystallizing existing international rules and developing new ones.
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Indeed, it is now commonplace for legal scholars to classify those treaties which lay down universal universal (or even fairly fairly general) rules governing governing internation international al society society as 'law-making' or 'normative' treaties. The Hague Peace Conferences of 1898 and 1907 1907 are are ofte often n cite cited d not not only only as a wate waters rshed hed in the the inst instit itut utio iona nali lisa sati tion on of
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international co-operation, but also as the first major international ‘law-making’ conferences. So-called ‘normative treaties’ are: are: •
characterised metaphorically as 'international legislation', and
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extolled as necessary to accommodate the urgent dynamics that are transforming international relations.
Multilater Multilateral al treaties – because they have a larger larger number of parties parties - are more effective effective than bilateral treaties in codifying international law. •
In negotiating multilateral treaties its parties often try to address the subject matter of the treaties as comprehensively as possible.
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Of course, States negotiating these agreements often have different or conflicting interests; so the final multilateral treaty text may not fully reflect the views and positions of all the States which negotiated it.
You can can imagi imagine ne how diff diffic icul ultt it is to try try and achie achieve ve confo conform rmit ity y of view viewss and and approaches in relation to a multilateral instrument that is intended to be comprehensive – even where the instrument’s subject matter is relatively narrow. narrow. Even if you can settle the text of a law-making treaty you then face the risk that it may conflict with other law-making treaties. And the legal principles for resolving these conflicts may prove – in particular cases – to be anything but clear and simple. There are many examples of law-making treaties. A classic case is the Law of the Sea Convention, which took nearly a decade to negotiate. This Convention: •
codifies the international law applying to the oceans and seas
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develops international law
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provides an invaluable source of the law relating to those aspects of the law of the sea which took its parties so long to negotiate, and
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is, by and large, extremely clear and explicit - even if there are some provisions that are ambiguous.
Anot Anothe herr exam exampl plee of a codi codify fyin ing g or 'nor 'norma mati tive ve'' inst instru rume ment nt is the the Stat Statut utee of the the International Criminal Court (or ‘Rome Statute’). The Rome Statute is regarded by some as the most important multilateral instrument negotiated in the last decade of the twentieth century. century. •
The Statute codifies international law regarding war crimes and other crimes against humanity.
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Duri During ng the the nego negoti tiat atio ion n of the the Stat Statut utee mome moment ntum um deve develo lope ped d to crea create te a comprehensive regime on such criminal law.
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This was premised on certain customary international law norms having achieved such broad acceptance internationally that they could be enshrined in a formal document which would be generally acceptable as binding to a large number of States.
The Stat Statut utee illu illust stra rate tess how a trea treaty ty can can not not only only cryst crystal alli lize ze puta putati tive ve cust custom omary ary international norms as conventional law, but also further develop such norms and related standards. Of course, the outcomes of treaty negotiations are not always so exemplary. Negotiating States may refuse to adopt an international norm in a treaty because it does not suit their interests or because they sincerely believe that the norm does not represent customary international law. law. In such cases you may get straightforward compromises; or you may get (what diplomats call) 'constructive ambiguity' where the meaning of the settled text is not clear.
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This ambiguity allows allows the parties to interpret interpret the treaty provisions provisions in the way that most suits their interests. This may not sound like much of a solution, but often - with diplomats diplomats - 'half of something something is better than a lot of nothing'. A 'fuzzy' 'fuzzy' treaty is better better than none at all. The Antarctic Treaty is an archetype of such a ‘treaty’ solution. During the 1950’s a ‘tacit agreement’ agreement’ developed developed between certain certain states states which were active in Antarctica. Antarctica. (It was called an ‘gentleman’s agreement’ in the sexist terminology of the times.) Under this agreement states would not try to advance or enhance claims to territorial sovereignty in Antarctica. Arguably the gentleman’s agreement constituted customary regional internationa internationall law which was legally binding. However, it was not at all clear that the parties to this tacit agreement agreement regarded their agreement agreement as legally legally binding. Contrariwi Contrariwise, se, there had been many acrid territorial disputes over Antarctica, which the gentleman’s agreement had put a lid on. There was no optimism o ptimism that this lid would stay on. And, if the lid blew off – with the parties terminating their tacit agreement – the consequences could have been quite grave. There were even fears of armed conflict between Argentina and the UK over their territorial disputes. So, Article IV of the Antarctic Treaty addressed the problem by providing that: ‘No new claim, or enlargement of an existing claim, to territorial sovereignty in Antarctica …’ should be asserted while the Treaty was in force. This meant – in theory – that claims to Antarctica could neither be improved nor worsened. Article IV did not resolve the problem of competing claims to sovereignty in Antarctica. Indeed, it was depicted as the ‘non-solution of a problem that could never be swept completely under the carpet’. However, the Treaty has undoubtedly promoted stability in the international politics of Antarctica. Moreover, what was originally regarded as a modus vivendi (that is an interim arrangement which stays in place till a legal solution is reached) now - with the passage of time - looks increasingly like it will bed down a quo. permanent, legal status legal status quo.
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It is even being argued that the Antarctic Treaty has created an objective legal regime all states irrespective of whether or not they are parties to the Treaty. which is binding on all states Treaty. (In much the same way as a bilateral bilateral treaty which changes borders between countries countries is regarded as objectively binding on all states.) Just Just as inte intere rest stin ing g is the the fact fact that that a whol wholee legal legal regime regime has has spru sprung ng up from from the fountai fountainhea nhead d of Articl Articlee IX of the Antarcti Antarcticc Treaty Treaty.. This This articl articlee provid provides es that that partie partiess carrying out scientific research may - by consensus - recommend measures which further the objectives of the Antarctic Treaty. Article IX does not provide any measure adopted pursuant to it is legally binding; but the practice of the parties to the Antarctic Treaty shows that they normally regard such measures as legally binding. From 1961 to 1995 over 200 measures were promulgated under this provision regarding (among other things) environmental protection, telecommunications, tourism and mining. A treaty that was once disdained as a ‘non-solution’ has proven to be the solid foundation for an exemplary international legal regime. There was also criticism of the Antarctic treaty regarding the vagueness of its terms. For example example,, the term term ‘terri ‘territor torial ial sovere sovereignt ignty’ y’ is ambigu ambiguous ous.. Lawyers Lawyers could could argue argue over whether claims to the territorial sea or the straight baselines adjacent to Antarctic territory are prohibited by Article IV of the Antarctic Treaty. Treaty. Yet Yet I prefer to see this terminology as reflecting 'constructive ambiguity'. This ambiguity is one of the reasons that the Antarctic Treaty has proved immensely useful in stabilizing the international politics of Antarctica.
PACTA SUNT SERVANDA.
Vienna Convention on the Law La w of Treaties, Treaties, 1969, art. 26 says: Article 26 “Pacta sunt servanda”
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Every treaty in force is binding upon the parties to it and must be performed pe rformed by them in good faith. Pacta sunt servanda
is a basic principle of international law and c ivil law. law. It is Latin and
it means "pacts must be respected" by all sides. With reference to international agreements, “every treaty in force is binding upon the parties to it and must be performed by them in good faith” EXECUTION AND IMPLEMENTATION OF TREATIES
Treaties may be seen as 'self-executing', in that merely becoming a party puts the treaty and all of its obligations obligations in action. Other treaties treaties may be non-self-executi non-self-executing ng and require require 'implementing legislation'—a change in the domestic law of a state party that will direct or enable it to fulfill treaty obligations. An example of a treaty requiring such legislation would be one mandating manda ting local prosecution by a party for particular crimes. The division between the two is often not clear and is often politicized in disagreements within a government over a treaty, as a non-self-executing treaty cannot be acted upon without the proper change in domestic law. If a treaty requires implementing legislation, a state may be in default of its obligations by the failure of its legislature to pass the necessary domestic laws. CASES ON TREATIES. TREATIES. Anglo-lranian Oil Co. (United Kingdom v. Iran) 1
The Anglo-Iranian Oil Co. (United Kingdom v. Iran) case was a dispute between the UK and Iran, Iran, in which the UK alleged that the Iranian Oil Nationalization act of 1951 was counter to a convention agreed upon by the (then) Anglo-Persian Oil Co. (now British Petroleum) Petroleum) and the Imperial Government of Persia (now Iran) in 1933, which granted the Angl Angloo-Ir Iran ania ian n Oil Oil Co. Co. a 60-y 60-yea earr lice licens nsee to mine mine oil oil in 100, 100,00 000 0 squa square re mile miless (260,000 km2) of Iran in return for a percentage pe rcentage royalty. royalty.
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http://en.wikipedia.org/wi http://en.wi kipedia.org/wiki/Anglo-lranian ki/Anglo-lranian_Oil_Co._(Uni _Oil_Co._(United_Kingdom_v ted_Kingdom_v._Iran) ._Iran)
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On 26 May 1951, 1951, the UK took Iran to the International Court of Justice, Justice, demanding that the the 1933 1933 agre agreem emen entt be uphel upheld d and that that Iran Iran pay damage damagess and and compe compens nsat atio ion n for for disrupting the UK-incorporated company's profits. On 22 July 1952, 1952, the ICJ decided because Iran had only conceded to ICJ jurisdiction in cases involving treaties agreed upon after 1932, and as the only treaty cited by the UK after that date was between Iran and a foreign company (and not the UK itself), that it had no jurisdiction in this matter (Iran's original contention). Australia v. France and New Zealand v. France (1974 ICJ Rep 253).
France continued to test in the atmosphere until 1974 in the South Pacific. The French test sites on Mururoa and Fangtufa atolls were about 3700 miles east of Australia , and both Australia and New Zealand brought suit in the International Court of Justice in an effort effort to bring bring a halt to the tests. tests.
The ICJ granted granted a prelimina preliminary ry injunction injunction but but then
issued an opinion declining to rule on the merits, since France had issued a statement that it had ?taken steps to [continue with only underground testing] as early as next year.? The Court indicated that Australia or New Zealand could re-open the case if France breached breached its commitment commitment to to them not to conduct conduct such tests. tests. When France France declared declared in 1995 that it was going to conduct eight more underground tests in the South Pacific, New Zealand attempted attempted to re-open re-open the case. case. New Zealand Zealand sought to enjoin enjoin the tests tests because of adverse effects on the marine environment, and requested an environmental impact assessment. The ICJ ruled against New Zealand (which (which had been joined joined by Australia ), saying that its new complaint did not fit in under the clause permitting the 1974 case to be re-opened. re-opened.
Moreover Moreover,, France had removed removed itself itself from general general ICJ jurisdict jurisdiction ion in
1974, preventing an entirely new case from being brought.
Frontier Dispute Case (Burkina Faso v. Mali, 1986 ICJ Rep 554).
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By a Special Agreement of 16 September 1983 filed with the Registry of the Court on 20 October 1983 the Republic of Burkina Faso and the Republic of Mali had submitted a dispute to the Court concerning the delimitation of their common frontier. According to Article II of this Special Agreement the case was to be decided by a Chamber of the Court constituted constituted according according to Article Article 26(2) of the Statute. After After having duly consulted consulted the Parties as to the composition of the Chamber, the Court decided by an order of 3 April 1985 that the Chamber was to be composed of the Judges Lachs, Ruda and Bedjaoui as well as Judge ad hoc Luchaire Luchaire to sit for Burkina Faso and Judge ad hoc Abi-Saab to sit for Mali. CURRENT SITUATION. SITUATION.
Currently questions have become frequent the binding nature of the international treaties. pacta sunt It is no more evident that the treaties have the same inherent principle of of pacta servanda. servanda. Various cases of the violation of treaties have become evident. Some of these are as follows: 1. Port Portug ugue uese se Viola iolati tion on of Unit United ed Nati Nation onss Conv Conven enti tion on on the the Law Law of the the Sea Sea
Borndiep, an official (1982): In 2004, 2004, the Women Women on Waves' aves' ship, ship, Borndiep, officially ly registered registered commerci commercial al vessel vessel under under the Dutch Dutch Shippi Shipping ng Inspect Inspectorat orate, e, was inspect inspected ed by the Dutch authorities and given permission to sail to Portugal, although it complied with all the international regulations and had all the paperwork in order, the Portuguese authorities refused its entrance and the innocent passage through Portuguese waters2. 2. Th Thee USA USA’s atta attack ck Agai Agains nstt Iraq Iraq:: Bush attacked Iraq, against the decisions of the
United Nations, and thus violated the UN Charter. Planning and committing a war of aggre agg ress ssio ion n is a vi viol olat atio ion n of th thee Nu Nure remb mber erg g Pr Prin inci cipl ples es.. Ac Accor cordin ding g to th thee US Constitution these international treaties are part of the “supreme Law of the Land”. Bush has violated the Nuremberg Principles and the UN Charter and is, therefore, subject to impeachment3. 2
http://www.womenonwaves.org/article-160-en.html
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http://www.impeachbush.tv/impeach/treaties.html
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3. Violat Violation ion of the Land Mine Trea Treaty ty (also called called Ottawa Trea Treaty): ty): Greece, Turkey
and Belarus all violated an international treaty b y not destroying land mine stockpiles, and 15 other countries, including Britain, will miss their 2009 clearance targets, a coalition of monitors said Friday. The coalition, the International Campaign to Ban Landmines, said that more than 5,400 people were killed or maimed last year by antipersonnel mines, cluster munitions and other ordnance that can lie dormant for decades before exploding4. 4. 1963 1963 Vienna ienna Convent Convention ion Viol Violat ation ion:: An international court ruled in 2004 that the
convictions of Medellin and 50 other Mexicans on death row around the United States violated the
1963 Vienna Convention ,
which provides that people arrested
abro abroad ad shou should ld have have acce access ss to thei theirr home home coun countr try y's cons consul ular ar offi offici cial als. s. The The International Court of Justice, also known as the world court, said the Mexican prisoners should have new court hearings to determine whether the violation affected their cases5. VIOLATIONS OF INTERNATIONAL TREATIES BY INDIA.
While victims of injustice and violence have always had trouble being heard, historically none have had more trouble than children. It has long been internationally agreed that the child, by reason of his/her physical and mental vulnerability, vulnerability, needs special safeguards and care, including appropriate legal protection, before as well as after birth. The Geneva Declaration of the Rights of the Child of 1924, the Universal Universal Declaration Declaration of Human Rights and the statutes of specialized agencies and international organizations concerned
with with the welfar welfaree of childr children en straig straightf htforw orward ardly ly documen documentt the need for such such specia speciall safeguards. The State’s failure to implement various International Treaties that relate to the rights of every human being, adult of child, such as the Universal Declaration of Convention on against against Tortur Torturee and Oth Other er Cruel, Cruel, Inhuman Inhuman or Human Rights, Rights, The Conventi Degrading Treatment or Punishment, and The Convention on the Prevention and Punishment of the Crime of Genocide , has been convincingly demonstrated.
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http://www.iht.com/articles/2008/11/21/europe/mines.php
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http://nysbar.com/blogs/IL http://nysbar .com/blogs/ILPSExec/2008/03 PSExec/2008/03/mexican_treaty /mexican_treaty_violation_case.htm _violation_case.htmll
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Declaration of the Rights of the Child (1959)
Nothing seems more distant from the children in the Gujarat Relief Camps than a promise of “hea “healt lthy hy and and norm normal al”” deve develo lopm pmen ent. t. The The enti entitl tlem emen entt to a Musl Muslim im name name has has unfortunately unfortunately threatened threatened the right to the Indian nationality nationality.. Most of these children have either lost the bread winning members of their families, or their parents have lost all their savings, as well as their means of livelihood in the genocide. It remains the duty of the State, which has unmistakably and miserably failed to protect the children and their parents from acts of organized violence, to now secure the “benefits of social security” for them. If the State fails to do so, this second failure – being less spectacular in form – might be more harmful in its lingering effect since serious psychological dislocation accompanies economic and social dispossession. In the Shah-e-Alam Camp alone, almost fifty babies were born immediately after the genocide and another fifty were expected during the time of our visit. The Government has not taken any substantial measure to provide “adequate pre-natal and post-natal care” to these newborns and their mothers. The right to education has been violated. The sources of family incomes have been irrecoverably destroyed. The course of normal life has been sudde nly disrupted. It is clear that one of the aims of the genocide was ethnic cleansing – hence the systematic and wide widesp spre read ad rapes rapes and burn burnin ing g of wome women, n, foet foetus uses es and and child childre ren. n. Anot Anothe herr was was to psychologically traumatize and emotionally destabilize the children from the minority communities. Many of them have been forced to witness the rapes of their mothers, sisters, relatives and friends, some of whom have been burnt to death, and some others were were left left semisemi-char charred red.. The “spir “spirit it of underst understandi anding, ng, tolera tolerance, nce, friends friendship hip among among peoples, peace and universal brotherhood” that they were promised now sounds like a cruel joke. The Government has failed not only to live up to the requirements of the Geneva Principles, but also to guarantee the minimal constitutional rights of the citizens from a particular community. community.
CONCLUSION.
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A Treaty is an agreement agreement under internation international al law entered into by actors in internationa internationall law, namely states and international organizations. A Treaty may also be known as: (internation (international) al) agreement, agreement, protocol, protocol, covenant, covenant, convention, convention, exchange of letters, letters, exchange exchange of notes, notes, accord, accord, memorandum memorandum of understandin understanding, g, etc. Regardless of the terminology terminology,, all of these international agreements under international law are equally treaties and the rules are the same. (Note that in United States constitutional law, the term "treaty" has a special meaning which is more restricted than its meaning in international law; see below.) Treaties can be loosely compared to contracts: con tracts: both are means of willing parties assuming oblig obligat atio ions ns among among them themse selv lves es,, and and a party party to eith either er that that fail failss to live live up to thei their r obligat obligation ionss can be held held liable liable under under intern internati ationa onall law for that that breach breach.. The central central pacta sunt servandaservanda- “pacts must be principle of treaty law is expressed in the maxim maxim pacta respected”.
BIBLIOGRAPHY .
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Texts.
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Agarwal, H.O., International H.O., International Law & Human Rights, 14th ed., 2007, Central Law Publications, Allahabad.
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Dixon, Martin and McCorquodale, Cases and Materials on International Law, 1st Ind. Ed., 1995, Lawman (India) Pvt. Ltd., New Delhi.
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Tendon, M P, and Tandon, Rajesh, Cases on International Law, 4th ed., 1998, Allahabas Law Agency, Faridabad.
URLs. •
http://www.dfat.gov http://www .dfat.gov.au/treaties/workshops/treaties_global/morait .au/treaties/workshops/treaties_global/moraitis.html is.html
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http://www.womenonwaves.org/article-160-en.html
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http://www.impeachbush.tv/impeach/treaties.html
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http://www.iht.com/articles/2008/11/21/europe/mines.php
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http://nysbar.com/blogs/ILPSExec/2008/03/mexican_treaty_violation_case.html
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http://www.mpil.de/ww/en/pub/research/details/publications/i http://www .mpil.de/ww/en/pub/research/details/publications/institute/wcd.cfm?fu nstitute/wcd.cfm?fu seaction_wcd=aktdat&aktdat=dec0101.cfm
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