PUBLIC INTERNATIONAL INTERNATIONAL LAW PROF. MERLIN M. MAGALLONA Part I: Nature and Method of International Law
polit politic ical al into intole lera ranc nce, e, and and the the purs pursuit uit of self self(( su2ciency o the part of sovereign States. 2. Ther There e must must be a body body of rule rules s for for huma human n conduct within that community. An undeniable eistence both of customary and written laws is seen in International Law.
A. In General
3. Ther There e must must be a comm common on cons consen entt of that that community that these rules shall be enforced by exte extern rnal al powe powerr. Exam Exampl ples es of this this so-c so-cal alle led d external power include:
Oppenheim, International Law, Vol. 1, pp. ! "#
a. Self(help and intervention on the part of other States which sympathi'e with the wronged one.
Conception of the Law of Nations Law of Nations or International Law is the body of customary and treaty rules which are considered legally binding by States in their intercourse with each other.
b. Sub)ect to certain conditions, war is the ultimate instrument for defending violated legal rights vital to the eistence of States.
I. Concept and Nature of International Law
Univ Univer ersa sall Inte Intern rnat atio iona nall Law Law is such such part part of International Law as is binding upon ALL States, without eception. !articular International Law is binding on " or a few States only while #eneral International Law are binding upon a great many States, including the leading States. $enial of the Legal %orce of the Law of Nations Austin and his followers de&ned law as a body of rules for human conduct set and enforced by a sove sovere reig ign n polit politic ical al auth author ority ity. %ollo %ollowin wing g this this de&nition, International Law cannot be considered law becaus because e there there is not a sover sovereig eign n politi political cal authority authority above the sovereign sovereign States which could enforce such rules. A better understanding would be achieved if we recogni'e that rules of law must be enforced by eternal power. It should however be understood that for the eistence of law, neither a law(giving authority nor courts of )ustice are essential. It is the community itself, which decides a *uestion of law. +he eiste stence of legislature is only nece necess ssit itat ated ed by the the epa epans nsio ion n of prim primit itiv ive e commu ommuni nitties. ies. In mor more moder odern n Stat States es,, the the legisl legislatu ature re maes maes law, law, which which courts courts of )ustic )ustice e administer. -owever, this power still comes from the common consent of the community. community. hat, then, are the essential conditions of Law/ Are these present in International Law/
c. +he Charter provides for a system of sanctions for for repr repres essi sing ng the the viol violat atio ion n of its its prin princi cipa pall obligation. !ract ractic ice e and and the the Legal egal Natu Naturre of the the Law Law of Nations States are of the opinion that they are legally and morally bound by the Law of Nations. +hey do not deny that there is a law between themselves. +he States, in breaing the Law of Nations, never deny its eistence, but recogni'e its eistence through the endeavor to interpret the law of Nations as )ustifying their conduct. Common Consent as the 3asis of International Law Common consent only mean the epress or tacit consent of such an overwhelming ma)ority of the memb member ers s that that thos those e who who diss dissen entt are are of no import importanc ance e as compar compared ed with the commu communit nity y viewed as an entity in contradistinction to the wills of its single members. In International Law, common consent manifested through through custom customs, s, then then mutual mutual usage usage of certa certain in rule rules, s, and and &na &nally lly to the the devel evelop opme ment nt of a system systemati' ati'ed ed body body of rules rules which which comme commende nded d themselves so much to the needs and wants of the time that they became the basis of the subse*uent development (Huo !rotius" wor#$ %e &ure 'elli ac acis$ librii librii iii).
1. There must be a community. A community is a body of a number of individuals more more or less less boun bound d toge togeth ther er thr through ough such such comm common on inte intere rest sts s as crea create te a const constan antt and and manifold intercourse between single individuals.
4ven if it is not necessary to prove for every single rule of International Law that every single member of the international community has consented to it, still, no State can declare that it will in future no longer submit to a certain recogni'ed rule of the Law of Law of Nations. +he body of this rules of law can be altered by common consent only, not by a unilateral declaration on the part of one state.
+his power unifying factor, their common i nterests 0scien 0science, ce, art, art, agricu agricultur lture, e, indust industry, ry, trade, trade, etc1, etc1, create an international community vulnerable only to occasional threats due to economic nationalism,
Stat States es as the the Norm Normal al Sub) Sub)ec ects ts of the the Law Law of Nations If International Law is based on common consent, what then are the normal sub)ects of the Law of
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Nations/ !rimarily, International Law regulates the conduct of States but we must not forget that the conduct actually regulated is the conduct of human beings acting as organs of the State. Individuals and other pers person ons s may may then then be endo endowe wed d dire direct ctly ly with with international rights and duties and constitute them to that etent, sub)ects of International Law. Law. Illustrations5 1. &urisdiction of the *ourts of %an+i States States may epressly epressly grant to individuals individuals direct rights by treaty6 such rights may validly eist and be enforc enforceab eable le withou withoutt having having been been previo previousl usly y incorporated in municipal law. law. 2. ,eparation for nuries /u0ered in the /erice of the nited nations 4nti 4ntitie ties s othe otherr than than Stat States es may may be sub)e sub)ect cts s of International Law. %or the sub)ects of law in any legal system are not necessarily identical in their nature or in the etent of their rights, and their nature depends upon the needs of the community. community. NO$ O$% %: member members s of the interna internatio tional nal commu communit nity y are e*ual to each other as sub)ects of International Law. &rierl', $he &a(i( of O)li*ation in International Law, pp. +!1 7any accept the doctrine that consent may be a basis of legal obligation. Sir 8ohn Salmond writes5 9+he 9+he law law of nati nation ons s is esse essent ntia ially lly a spec specie ies s of conve onvent ntio iona nall law( law( that that it has has its its sour ource in intern internati ationa onall agreem agreement ent(( that that it consis consists ts of the rule rules s whic which h sove sovere reign ign stat states es have have agre agreed ed to observe in their dealings with each other.:
-owever, what if a state refuses to consent to be under the obligation of a previously entered into treaty/ ithout its consent, is it still bound/ If so, does this challenge the validity of the doctrine that consent may be a basis of legal obligation/ hat are the ways by which a state comes under the obli obliga gati tion ons s of inte intern rnat atio iona nall law, law, asid aside e from from epressly giving its consent to be bound by it/ ;. A new state becomes sub)ect to International Law as a matter of course, without their consent being either ased or given. +his challenges the cons consen entt theo theory ry beca becaus use e thes these e Stat States es may may recogni'e International Law
>. Stat States es feel feel a sens sense e of oblig obligat atio ion, n, from from the the feeling that a certain course of conduct is legally incumbe incumbent nt upon upon itself itself,, irresp irrespect ective ive of its own wishes or interests. +he author points out that the Court may derive the law by which states will be bound from non( consensual sources. Sometimes, there is a need to &nd &nd the relev relevan antt rule rule by a proc proces ess s of )udic )udicia iall reasoning rather than relying on the consent of the party litigant( States alone. In fact, Article >? of the Statute of the !ermanent Court of International 8ustice directs the Court to apply international conventions, international custom, as evidence of a general practice as accepted as law, the general principles principles of law recogni'e recogni'ed d by civili'ed civili'ed nations and on certain certain conditions, conditions, )udicial decisions decisions and the the tea teaching hings s of the the mos most high highly ly *ual *uali& i&ed ed publicis icistts, as subsidiary iary means for the determination of rules of law. law. Auto*raph -ue(tion: who i( the cute(t per(on in the )loc/
pp. 0!0 +he State is an institution that claims the uni*ue characteris characteristic tic of having the eclusive eclusive control control of the use of force. -owever, this feature is incapable of being the eplanation of the binding force of law 0as 0as usua usually lly appli applied ed in inte intern rnat ation ional al law1 law1.. +he +he theory that law is binding because it is the word of a sove sovere reig ign n 0usu 0usual ally ly app appli lied ed to to the the law law of the the state1 state1 is also also insu2c insu2cien ientt to epla eplain in the binding binding force of law, and is in fact a widely re)ected theory. theory.
Note Note55 Auth Author or then then proc procee eeds ds to answ answer er the the *uestio *uestion5 n5 $oes $oes intern internatio ational nal law di=er di=er from from the law of the State/ ;. $o they concern di=erent sub)ects/ Not really. really. !rimarily, International Law involves States while the law of the State involves human beings. +his distinction is, however, arti&cial. 7. Saleilles presents a true system, which he calls @la theorie realiste.< 3oth 3oth the the stat state e and and the the indiv individu idual als s of whom whom it consists are and remain e*ually real entities, we may even say that they are e*ually real @persons<, provided that we can eep the )uridical sense of that that word word unco uncont ntam amina inate ted d by any any of its non( non( )uridical associations. +here are > truths which support the system presented by Saleilles5 ;. that that indi indivi vidu dual als s who who form form an inst instit itut utio ion, n, whether it be the state or any other institution, do not disappear from the scene
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". an institution is a real and not a &ctitious unity, and by )uridical personality the law recogni'es, but does not create, this unity
someth something ing impose imposed d upon upon a social social reality reality from from outside.
>. this unity which the institution institution has given to the indivi ividua duals does not embrace the whole personality of each of them.
IL is a unit unit,, an aggr aggreg egat ate e of lega legall norm norms s in interaction. It is a speci&c component of the intl system system which must must not be confus confused ed with with other other components of the system.
Conclusion5 International Law and the law of the state do not, in reality, involve di=erent sub)ects. +he international )uridical community has for its unit of membership the state, but it is not true that the unit is the state in abstraction from its individual members6 it is the state as epressing their unity.
+he uni&ed system of contemporary IL +he traditional division of IL into law of peace D law of war has been replaced by a new division of contemporary IL into 0;1 the law of co(eistence E governing diplomatic interstate relations and 0"1 the the law law of coop cooper erat atio ion n E gove govern rnin ing g purs pursuit uit of common human i nterests 0%riedmann1.
". $o they di=er in the form of sanctions/ $oes International Law provide for sanctions, in the &rst place/ No mar mared ed di=e di=ere renc nce e in sanc sancti tion ons s beca becaus use e International Law, too, has sanctions. 3ut there is very little temptation to violate International Law, because its yoe lies easily on the states and also beca becaus use e to violat violate e it habi habitu tual ally ly would would invit invite e reprisals and would not be in the interest of any state.
+his transformation resulted in5 ;. greater unity in the intl level, as manifested in the =. features of contemporary IL5 ( no more di=erence in status of States ( no mor more div division of IL IL int into law law of peace D law of war ( grow growin ing g numb number er of of prin princi cipl ples es of )us )us cogens contributing to unity6 and at the same timeF ". greate greaterr divers diversity ity on on a regi regiona onall level level
Conc Conclu lusi sion on55 +he +he real eal di=e di=errence ence betw betwee een n Inte Intern rnat atio iona nall Law Law and and stat state e law law in resp respec ectt of enfo enforrceme cement nt lies lies not not in any any prin princi cipl ple e but but in organi'ation. ;. Stat State e law law inte interf rfer eres es with with the the indi indivi vidu dual al
. !ower in the international sphere is still largely unregulated by law. law. 0hmm, di o lam bait sinama tong pp. B(B1 $unin, International Law in the International '(tem, 12 3ecueil de( Cour( 2! 41+256 Is there a system of international law/ +unin +unin says yes. -e re)ects the #erman doctrine that a system of law re*uires the eistence of a supre supreme me author authority ity that that creat creates es the system system.. -e says says this this doctrin doctrine e is comple completel tely y divorc divorced ed from from reality.
A syste ystem m 0IL1 0IL1 is a realit ality y in its itself elf. It is not not
Universalism D Gegionalism in the system of IL +here are two levels of IL5 0;1 universal and 0"1 regional. Also, IL comprises of 0;1 #eneral IL and 0"1 !articular IL. $i=erence bet #L and !L5 ;.#L results from the co(ordination of the wills of all or almost all States whereas !L result results s from from the co(ordi co(ordinat nation ion of two or some States. ".Norms of #L are created only by States whereas norms of !L can be created by other sub)ects of international law. Simi Simila larit ritie ies5 s5 +hey +hey have have the same same lega legall foundation E the co(ordination of the wills of States E since even in #L there is no central legislative author authority ity ∴ both are considered as belonging to corpus )uris gentium. hat is the role of particular norms in international law/ ;. !artic !articula ularr norms norms solve solve particul particular ar proble problems ms bec. bec. genera generall norms norms are not su2cie su2cient nt to properly properly govern govern relations relations bet. individual individual States ". !arti articu cula larr norm norms s prov provid ide e for for the the prop proper er funct functio ioni ning ng of gene genera rall norm norms. s. In most most instances, instances, #L depends depends upon creation creation by Stat States es conc concer erne ned d of part partic icula ularr norm norms s specif specifying ying rights rights D obliga obligatio tions ns based based on general intl law. law. H see Art. ; of the ienna Convention &rownlie, $he 3ealit' and %7ca 7cac' International Law, 5" &8IL &8IL 1 41+ 16
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+he reality of IL +he reality of IL cannot be denied on the ecuse that it is imperfect. +he actual use by governments of IL as part of the normal process of decision(maing only proves that IL is a reality. IL confronts inescapable features of the political landscape. JLie municipal lawK Gules of IL are essentially principles of self(limitation, addressing the very agents who should apply the rules. +hey are immanent and internal. +he e2cacy of IL 3rownlie loos at the e2cacy of IL vis((vis the performance of national legal systems. 4ccentrics appear in IL )ust as much as individual criminals eist in NLS. Compared to NLS, IL is not doing so bad. hy does IL appear to be ine=ective/ ;. IL depends upon the application of standards within the natl legal D admin systems. +hus, the ine2cacy of IL is only a conse*uence of the relative ine2cacy of domestic law in enforcing IL standards. +he biggest obstacle to treaty administration is the inability of natl administrations to cope with even minimal burdens under their intl obligations. ". +here is constant inMation 0eaggeration1 of the incidence of illegality in international life. !eople fail to acnowledge that many cases of illegal behavior on the part of States are really only ultra vires acts of a public body or minister. JIt is not the State
In other words, it is a matter of political and moral evaluation. hen the law is seen to be 9ine=ective:, the cause is not 9the law: but the absence of organi'ation, political will, su2cient personnel or funding, and so forth. Law, whether national or international, is not a source of alibis for politicians and administrators. 9i**in(, Pro)lem( and Proce((: International Law and 9ow e ;(e It 41++6, pp. 1!10 Int
+wo Apparent points5 ;. +he role of law is to provide an operational system for securing desired values 0security, freedom, etc1 ". Int
Int
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re)ection of that core of predictability that is essential if law is to perform its functions in society. To whom does nt"l aw apply4 ( states in their relationship with each other int. Geciprocity5 If consensus, often tacit and unenthusiastic, is the basis of Int$he Concept of ?u( Co*en( in the Vienna Con@ention on the Law of $reatie(, in International I((ue( in Per(pecti@e 41++06 8us Cogens 08C1 E are general norms of imperative character which the sub)ects of law cannot modify or set aside in their contractual relations6 constitute irreducible minimum principles in the legal system6 set above the wills of the parties to a contract 8us $ispositivum E norms which can be derogated by private contracts
+he concept of 8C is identi&ed with the notion of ordere public in municipal law which is the aggregate of fundamental norms on public policy and good morals which unify particular rules and principles in the legal order. It is argued that 8C could not yet mature in the &eld of Int
+he emergence of 8C is de&ned by the condition that in the international legal order, the sub)ects 0States1 of the law are themselves the creators of the law on the basis of legal e*uality. +he process of identifying a general norm as 8C is de&nitely a consensual mechanism. It is determined by the very real and concrete interests of States and therefore springs from the necessity internal to the system of their inter(relationships. 4ample of 8C norms5 Nuremberg !rinciples, human rights, Sovereign e*uality of States, non( intervention , right of self(determination =eBnition of ?C under the Vienna Con@ention 4VC6 Art >5 A treaty is void if at the time of its conclusion, it conMicts with a peremptory norm of general international law. %or the purposes of the present convention, a peremptory norm of 416 general int
Art B5 If a peremptory norm of general int are elements of 8C which pro)ects the consensual nature of such norm. -owever, the consensual nature should not lead to the formalism that character of 8C &nds eplanation in mere epression of the State precludes the possibility that an ob)ection on any ; State may operate as a veto to the characteri'ation of norm as 8C. Universal consent or unanimity is not intended as a basis for the determination of 8C norm. Dunction of Con@entional 3ule( on ?C +he speci&c function of 8C norms is to limit the freedom of the parties to a treaty in determining the content of their agreement. Any treaty provision that contravenes a 8C is either declared void under Art > or becomes void and terminates under Art B.
Under Art of the Convention, a State may lose the right to invoe a ground for invalidating, terminating, withdrawing or suspending the operation of a treaty through con&rmation or
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ac*uiescence. -owever, Art does not cover Art > and B wOc points to the conclusion that the invalidity of a treaty arising from the violation of 8C norms cannot be cured by con&rmation or ac*uiescence of the parties. +his serves to reinforce the ob)ective of character of 8C norms as criterion of Illegality and to pro)ect their importance over the narrow individual interests of the States. Operation of Con@ention 3ule( on ?C A treaty in conMict with 8C norm is invalid in Int
Limitations5 Invoed only by parties to the C %ollow procedural re*uirement of C !rocedure5 ;. ritten noti&cation by contesting party to other party stating grounds for invalidation, termination, etc, measures proposed to be taen and reasons therefor ". +ransmitted directly to the other party or depositary >. > months after receipt of notice, if no raised ob)ections, contesting party can e=ectuate the invalidationOtermination of treaty by a declaration to that e=ect in an instrument communicated to other parties . If ob)ections were raised, settle dispute through UN means 0negotiation, mediation, other peaceful means16 resort to Int
+reaties concluded after the entry into the force of convention is which are in conMict with 8C are void under Art > or become void D terminate under Art B. +reaties concluded before the Convention even if they conMict with 8C norm. 3ut under Art B, they are a=ected by the invalidating force of the @new: 8C norm when the norm is given binding force as such by the entry into the force of the Convention +he points of references for operation of Non( retroactivity rule5 Art >5 the date the *onention is enters into force. Art B5 the time of emerence of the &* norm. " categories of 8C5 ;. 8C eisting on the date of the C
into force ". general norms becoming 8C sometime later after C has come into force ModiBcation of ?C 8C is not immutable. It is sub)ect to change in eeping with the societal developments of global scale. 3ut only a 8C norm can supercede or partially change an eisting peremptory norm.
+he process of modi&cation follows the same mechanism as its formation which is on the same consensual basis as any other norm of general int
A great ma)ority of norms which are laid down in international agreements are susceptible of enforcement through mechanisms, including resort to international tribunals and national courts, which ensure respect for these obligations. 3ut there are norms of various degrees of cogency, persuasiveness and consensus which are incorporated in agreements between states, but do not create rights and duties. International A*reement E refers not only to treaties but used by 3ater in a wide sense as comprehending all those norms of conduct which states or persons acting on behalf of states have subscribed to, without regard to their being binding, or enforceable, or sub)ect to an obligation of performance in good faith.
I.
“SOFT / WEAK” Law 6 reconi+ed as peculiar
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e.g. treaties where states enter into an allegiance, agree to coordinate military action, declare neutrality of an area. ;.
>Political $reatie( E +here is an awareness that these agreements are vulnerable to the operation of rebus sic stantibus in the sense of established boundaries O status of territory. If a state refuses to come to the aid of another, nothing can force it to. +he ienna Convention does not refer to 9!olitical +reaties: because it would add compleity and it would have supplied a basis from escaping from treaty obligations which is susceptible to abuse. 3ut these 9!olitical +reaties: are nevertheless ept alive by perceptions of mutual advantage and by political and economic force 0so long as the states concerned see it to be in their natural interest to concert their policies.1
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Other treatie( re*ardin* national (ecurit' E the force maing for compliance is that violation of agreement may being the whole structure tumbling down 0agreements where easy release is available1.
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Nuclear $e(t &an $reat' 0;PB>1 E violation of the treaty, )ustify it in withdrawing from the treaty. +he right of denunciation is the threat that holds the parties to their obligation.
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Gene@a Protocol of 1+"5 for the !rohibition of the Use in ar of Asphyiating !oisonous or ther #ases, and of 3iological 7ethods of arfare E reserve the right to employ chemical warfare against the one who has violated, in e=ect brings the !rotocol to an end.
Numbers ; and " do carry some measure of obligation, although they may not be enforceable in the strict legal sense. +he following types of norms in international agreements have the common characteristic of not creating legal obligations which are susceptible of enforcement 0 soft law15 ;.
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Pacta de Contrabedo E a provision of the treaty which calls for negotiations looed to the conclusion of further, more detailed agreements. +hese provisions cannot be enforced if the parties do not reach an agreement 0agreements cannot be forced upon them, cannot be compelled to negotiate1, e.g +reaty of Gome E established 4uropean 4conomic Community
Norms of treaties which are non(self eecuting, re*uiring further, more detailed treaties in order to give e=ect to the principal treaty !rovisions which are 9ortator', calling for
cooperation by states to achieve certain purposes. In the absence of institutional machinery, a party
%Eecuti@e A*reement( E 0di2cult to &t in the eisting structure1 US, after the ietnam ar, Congress found out that the !resident made commitments which were not submitted to the Senate for approval 0outcome was the enactment of legislation which re*uires the $epartment of State to transmit the test of any international agreement 0in writing1, other than a treaty, to Congress within BQdays1.
+he international signi&cance of the agreements which were brought to enlighten is that there must be a vast mass of agreements, communications, and correspondence between governments and its o2cials to cooperate on some scienti&c wor, to give e=ect to a treaty, to echange information, etc.
$e&nition of treaty in ienna Convention is unclear on how far international dealings should be codi&ed 0result in immense masses of paper1
It is probably fair to say that states have no intention of 9enforcing: the forces that mae for compliance E are manifold, but non(legal
+hese arrangements 0eecutive agreements1 are 9soft law: E complied with in fact but not under the coercion of the principle of pacta sunt seranda
States do set up by agreement, machinery of cooperation and coordination which does not have the compleity of international agreement 0not treaties but they soften the clash of interests1
+he 9soft: laws have been for about some time. 3ut in recent years states have undertaen the preparation of instruments which deliberately do not create legal obligations but which are intended to create pressures and to inMuence the conduct of states and to set the development of IL in new courses 0legal impact unclear1
+reaties which purport to lay down rules governing the behavior of ⇒
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States towards their nationals O towards aliens E sometimes ambiguous and will do nothing to control the conduct of states unless Meshed out by the decrees of court or other agencies. Ma*allona, >$oward( the Con(olidation and Pro*re((i@e =e@elopment of the Norm( of International %conomic Law, in Ma*allona, International Law I((ue( in Per(pecti@e
A.
" ma)or *ualitative changes in the historical development of the international community of states5 a1 3readown of medieval society a. IL operated in a small circle of Christian states in estern 4urope b. !eoples of Africa, Asia, and Latin America were ob)ects of colonial eploitation b1 4mergence of independent states from the breadown of the colonial system together with the rise of the socialist community
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C.
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Crisis between old and the establishment of the new international economic order a1 $espite the collapse of the colonial system, eploitation and dependency continued between old colonial powers and their former colonies. b1 4stablishment of new economic order is essential to the economic upliftment of the developing countries. Gationale and scope of international economic law a1 IL law must now reMect the basic interests and needs of the developing countries, which constitute a ma)ority of the international community b1 !olari'ation of states on the basis of level of development c1 IL deals with the public(international aspect of one of the principal purposes of the UN5 9to achieve international cooperation in solving international problems of an economic character.: #eneral content of international economic law a1 principles and norms of international economic law have matured and constitute a stage in the progressive development of5 a. fundamental principles and purposes of the UN b. speci&c orientation of the general principles of law to the economic relations of states with di=erent levels of development c. wor of various organs and agencies of the UN and of international conferences
b1 International 4conomic Law deals with the regulation and coordination of economic activities of states, particularly legal issues relating to economic and technical assistance. Note(: In theory, consent may be withdrawn as fast as it was given but this results to instability of the legal order as predicted by 3rierly.
hy do States hesitate in withdrawing its consent/ 3ecause in the &rst place, it gave its consent pursuant to its desire to establish international rules that create concrete relations to advance its concrete economic, political, social, and &nancial interest as the sub)ect matter of the mutual echange between states. -ow do you now that a norm is a norm of international law/ Loo at the norm(creating process. " categories of norms5 a. inter se5 rules which govern the relations of states among themselves b. erga omnes5 rules which govern the relations of states in relation to the international community consensuality5 element which controls norm(creating process6 when one speas of consent, one pertains to normative consent, a process is involved, it is not a simple matter of saying yes hat are the legal bases of international personality/ ;. the moment a state is conferred statehood, it assumes international personality, primary sub)ect of law. ". could also be created by state lie the IL >. conduct between the states may become the basis of personality, for eample when the action of the state becomes opposable to itself as in recogni'ing passports and envoys, that state cannot anymore deny recognition +he !rinciple of Attribution5 for a stet to be internationally responsible given the breach, the acts or omission must be attributable to the state, not its peoples. !ersistent b)ection Gule5 if a state persists in opposing the application of a general norm to itself, at the time when the norm was merely in the process of formation, then even when that norm consolidates or becomes binding law at later time, that state which persisted in ob)ecting is not bound. 3ut if persistent ob)ection is only manifested the time when that norm has already become binding law, then no amount of ob)ection will mae it not bound.
II. International Law and the International Communit'
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9. Mo(ler, International ociet' a( a Le*al Communit', 1H 3ecueil de( Cour( 1 41+26 1. *78%T78/ 79 E/TE8*E 79 58 8T" E!5 7,%E, International Law 0IL1 eisted only when the " necessary elements eisted5 ;1 factual-a certain number of independent societies organi'ed on a territorial basis eist side by side, and "1 psycholoical-a general conviction that all these units are partners mutually bound by reciprocal, generally applicable rules granting rights, imposing obligations and distributing competencies. In the &rst element, there eists an age(old tension between e*uality in law and di=erence in actual power.
+here is a continuing inMuence of 4uropean tradition on current IL, emphasi'ed by 7osler on " points5 ;1 the logical deduction from the nature of things and the nature of IL still contributes to current IL 0e.g. by author1 and "1 appreciation of the epansion of IL in today
higher greater power level , and the political domination eercised by the great powers 0that, as a group, dealt with matters of general interest1 on smaller States within their sphere of inMuence. +he lower(level balance of power between medium and small si'ed states 0that participated in matters of their own interest1 was established on the assumption that these groups belonged in a sphere of inMuence of one or more 0gaspR $.#. is that you/1 hegemonic powers. +his practice provided at a time which the theory of absolute sovereignty prevented the rise of I the organi'ational element apparently indispensable to society with members e*ual in law but not in fact. +his lesson in history 0that a society consisting of immensely di=erent sovereign states must pay a price for its continuing eistence by allowing ma)or partners a greater inMuence in the form of a hegemonic role1 is still valid now. If historical dev>8T; In the present, a hori'ontal legal relationship eisted between states. +he only sanction for a breach of these rules was the reaction of the states in)ured by the act of another. In contrast, the so(called classical period, the states formed a legal community without any vertical element of subordination. ?. *78/TTT785 EE>E8T/ 8 THE 8TE,85T785 *7>>8T; In spite of the lac of a general constitution for the functioning of the int
9
themselves develop the rules and principles they are to be bound. It is this basic principle which maes the international society a legal community. @. A8TE,85T785 '* 7,%E,B 58% &/ *7!E8/ In any legal community, there must be a minimum of uniformity to maintain the community. +his uniformity may relate to legal values, legal principles or legal rules. +he whole of this minimum can be called the common public order. +he int
+he concept of a public order of the int5T78 79 THE 7T*5 7,%E, 8 8TE,85T785 /7*ET; +he statement that principles and rules have emerged as generally accepted IL is the wor of codi&cation and interpretation6 to de&ne new principles and rules appropriate to the to new situations is the wor of law creating. +his "nd tas is a matter of policy, as something new is to be created and a step forward is attempted.
;.
political doctrines and maims 3alance of inMuence among superpowers Gight to self(determination !olitical doctrine based on political geographical innovations($octrine legitimacyO$octrine of intervention
or of
".principles of friendly relations and co(operation between states +his is the most interesting achievement of the UN is the principles of the declaration on principles of IL concerning friendly relations and cooperation among states as guidelines for the conduct of states 0see p; of the article1. +hese principles are declared to be interrelated so that each principle shall be construed in the contet of others. Geference to the legal e=ect attributed by the UN #en. Ass to the principles individually and collectively is made in the &nal part of the resolution. 4ach principle is developed by detailed de&nitions wOc are in part contradictory, thus revealing that they are the result of a compromise of opposing views. Certain principles are nothing more than abbreviations of eisting principles taen up the UN Charter. +hese and other *uestions have divided the principal estern and
socialist states, the latter )oined by the non( aligned states. +he principles wOc were &nally accepted have the unanimous support of the UN membership. +his support is not weaened by the fact it is the result of a compromise. &edaoui, General Introduction, International Law: Achie@ement( and Pro(pect( 41++16 1. nternational aw: 5 speciDc$ unDnished and chanin construct %undamental characteristic of IL(functions to regulate the rel
+his is possible because IL is largely based on 0epress or implied1 consent. +hus, IL is more of law of coordination than subordination. Such coordination too on a signi&cant lease of life when it &nally became institutionali'ed, which is opposite of eclusive and unfettered State control. +his was accompanied by another step which transformed this coordination into cooperation bet. States through the emergence of international organi'ations 0I1, resulting in *ualitative changes. Later, the universal mission of these Is and the promotion of the right of peoples to self( determination became the primary source and better organi'ed int periods of challenge5 1) !eoraphical 2) deoloical and 3) Economic. 2. 9rom an 7liarchic law to a aw of community 3efore the League of Nations came into eistence, IL was nothing other than a 4uropean law, born of the marriage of a regional situation and a material power, and transposed, as the dominant law governing the entire range of IG. +his classical IL was a system of norms having a geographical content 0 European-based 1, an ethical and religious inspiration 0*hristian law) , an economic motivation 0mercantilist) and political ob)ectives 0imperialistic) . +his IL wored on " distinct planes5 ;1 between 9civili'ed: States and the rest of the world and "1 between the 9civili'ed: States to the etent that each one of them en)oyed sovereignty and independence on a basis of full reciprocity. +he +reaty of estphalia 0;B?1 replaced the turbulent co(eistence of Christian countries to a 94uropean system of states: wOc rested on a need for every 4uropean state to respect the status of the others. -owever, classical IL placed 9uncivili'ed 0meaning non(Christian1: outside the scope of its protection. Its function was to be a law
10
of domination by eclusion of the 9int1 the increased role of Is led to the States acceptance of an institutionali'ed cooperation among themselves at price of relin*uishment of sovereignty. 3ut this 9democrati'ation: has only begun to win through and a great deal remains to be done in a world in which the economy plays an increasing role in perpetrating situations of domination. 3. 9rom a aw of states to a aw for people %undamentally, IL remains a law wOc disciplines the )urisdiction of States in rel
States and to promote greater heed for the long term interests of the globe. IL has been invested with a tas of transforming international society and has been applied in the service o &nalities such as peace, dev$he ;N le*al order: An O@er@iew in CC ?o'ner 4ed.6 $he ;nited Nation( and International Law 41++26
Structure of the UN Legal rder #round Moor5 actions of states( including the demands and goals of the governments and other organi'ed groups in furtherance pf their needs, wishes, and epectations "nd level5 activities of a legal character( the formation and invoing of legal norms, and their application to particular situations. >rd level5 broad policy goals, aspirations, and ideals that inMuence governments and the other actors Law(maing in the UN System Neither the United Nations nor any of its speciali'ed agencies was conceived as a legislative body. +hey were limited to recommendations aimed at coordinating the actions of their member states. +he authority to impose mandatory rules was limited to the internal administration of the organi'ation in *uestion. -owever, most of these bodies have utili'ed their recommendatory authority to achieve binding law where that served their aims and had the re*uisite political support. 4amples of Instrument of law(maing in the UN system5 ;. multilateral 9norm(creating: treaty products of political process, usually mared by conMicting interests and concerns over grants of power all member states have a right to participate in the negotiation and adoption process on the basis of sovereign e*uality ". resolutions that embody declarations of principles and rules of international law considered as authoritative evidence of binding international law on the following grounds5 0a response to felt needs which must be addressed without the complicated and often, slow procedures involved in treaty maing1 a. as authentic interpretations of the UN charter agreed by all the parties b. as a2rmations of recogni'ed customary law c. as epressions of general principles of law accepted by states
11
>. law governing the internal governance of the international bodies includes the rules of procedure governing the conduct of principal organs and the rights of members in those organs . regulations applicable to the military forces engaged in peace eeping or enforcement activities5 include rules of engagement, precepts of command and control, privileges and immunities Interpreting and applying law Arguments in the UN organs on interpretation fall into " categories5 ;. lays stress on the aims and ideals of the institution as epressed in the Charter ". argues on the basis of practice and precedent UN interpretation does not usually have an ad)udicative character. !rimarily, it is to prepare a plan of action or to recommend state behavior to achieve a goal. Interpretation is implicit in the measures adopted, which are centered largely on the relation between means and ends in the speci&c contets. Controversies in interpretation are not the result of defective drafting or even of political compromise6 it is, rather, a reMection of the plurality of values and aims in the international society. -ow then are these controversies resolved/( !GINCI!L4S % IN+4G!G4+A+IN ;. principle of e=ectiveness5 priority to achieving the ma)or purposes of the rgani'ation overriding restrictive provisions of the Charter such that interpretations that are @generally acceptable< settle the issue ". Interpretation by ma)ority votes based on political considerations5 problematic for many states who fear that the integrity of the Charter may be impaired by political tendencies fear leads to the revived interest in the possibility of utili'ing the International Court to render advisory opinions on the interpretation of the Charter by political organs problematic because the IC o has not been given review or appellate power to pass on decisions of the political organs unless it is ased for an advisory opinion by the organ Compliance and enforcement %or a long time compliance and enforcement were on the margins of UN concern. -owever, public sentiment and the lengthening list of economic
and social ills brought pressures on international bodies to give more than lip service to the principles they had adopted and urged on the states. Categories of the arious Compliance 4nforcement !rocesses Used by UN rgans5
and
;. reporting and supervision procedures in a particular treaty or code of conduct supervision includes the procedure for individual or governmental complaints of violations such as those brought under the optional protocols to the covenants includes fact(&nding by an international authority ". %acilitative measures taen by the United Nations to assist states in carrying out obligations imposed by law or by speci&c decisions of the organs -
armed peaceeeping forces to assist governments to comply with transborder truce and cease(&re agreements, use of observers for national elections
>. $irect penalty of epulsion from the rgani'ation or from taing part in some of the latter
12
In human rights law, it has been observed that the economic criteria originally applied to development have been supplemented with criteria of human deelopment that incorporate many of the basic human rights, especially but not only those of an economic, social, and cultural character. In the law of peace and security, the staes are the highest. N a United Nations Legal rder eists will be determined largely by the e=ectiveness of its e=orts to maintain peace and security. Several concepts have to be discussed in relation to the law of peace and security5 ;. eto or principle of unanimity5 embodied for political reasons by the permanent members primarily in their national interests ". interpretive resolutions on basic Charter concerns5 adopted by near(unanimity or consensus
Sources5 7L5 custom grown up within the boundaries of the State concerned and statutes enacted by the law( giving authority International Law5 custom grown up among States and law(maing treaties concluded by them Gelations they regulate5 7L5 between the individuals under the sway of the State and the relations between the State and the individual International Law5 relations between States Substance of their law5 7L5 law of a sovereign over individuals sub)ected to his sway International Law5 between sovereign States
hat then are the basic postulates of international law/
+he 7onistic $octrine5 some of the fundamental notions of International Law cannot be comprehended without the assumption of a superior legal order from which the various systems of 7unicipal Law are derived by way of delegation
;. States are regarded as the principal actors in creating and applying the law. ". Independence and formal e*uality of States
;. 3oth regulate the conduct of individuals but in the international sphere, the conse*uences of such conduct are attributed to the State.
>. principles of territorial integrity and pacta sunt servanda
". In both sphere, law is essentially a command binding upon the sub)ects of the law independently of their will.
In international economic law, there is the undertaing to give preferences to the less( developed countries.
. 3asic divide between the international and domestic domains Characteristics of the UN system5 ;. $ecision(maing in the UN are essentially political processes shaped by the conditions of *uasi(parliamentary procedures and the mandates of constituent instruments. ". Substantive compleity of UN law(maing and law application5 states are compelled to de&ne their national interest in relation to the collective interests of various groups of states and, ideally, in relation to the common interest of the whole community of states. >. relative transparency and linages to nonstate actors 0eperts, lobbyists, activists1 III. 3elation of Municipal Law
International
Law
>. 3oth are manifestations of a single conception of law. Law of Nations as !art of 7unicipal Law ;. In #reat 3ritain5 a. customary rules are recogni'ed and applied b. +reaties a=ect private rights. +he Crown is willing to allow !arliament to approve treaties prior to their rati&cation and that enabling legislation is passed before the treaty is rati&ed. c. 4nglish statutory law is binding upon 4nglish courts, even if in conMict with International Law but this does not mean that 4nglish law recogni'es in all circumstance the supremacy of International Law.
and
A. In General
". In the United States5 International Law is binding even if it conMicts municipal law and vice versa.
Oppenheim, op. cit., pp. #5!2 $ualistic iew International Law and 7unicipal essentially di=erent.
7unicipal Courts must apply International Law even if it has not been epressly incorporated in the 7unicipal Law because of several presumptions5
Law
are
13
;. presumption against the eistence of a conMict between 7L and International Law it is improbable that a State would intentionally enact a rule conMicting with the Law of Nations ". In case of a gap between the " laws, it is presumed that such privileges are tacitly granted. >. 4ven if a State may renounce International Law( endowed rights, municipal courts ought to presume that their State has tacitly consented to mae use of such rights. Ditmaurice, $he General Principle( of International Law Con(idered from the tandpoint of the 3ule of Law, +" 3ecueil de( Cour( 5, pp. 0!+ Nature of the conJict pro)lem +he &elds in which $L and IL operate are distinct. +wo di=erent sets of relations are involved. +he domestic &eld is the &eld of relations between private persons inter se or private persons(State whereas the intl &eld is the &eld of relations between States. A. P9ILOOP9ICAL $he moni(t!duali(t contro@er(' K it( artiBcial F (terile character It is useless to discuss the conMict bet $L D IL on the basis of the monist(dualist debate because $L D IL operate in di=erent &elds. +hey do not operate in the same set of relations D transactions ∴ there is no basis in which to even start an argument.
IL is supreme in the intl &eld not because of any inherent supremacy but because of the &eld of operation. IL is not only the supreme system in the intl &eld, it is the only system there is. =i7cultie( of the @iew that the tate i( onl' an a**re*ation of indi@idual( In order to create a common &eld bet $L D IL 0and thus be able to compare them1, it would be necessary to reduce the behavior of the State to the behavior of individuals representing the State.
3ut individuals whose function it is the carry out an obligation of the State does not act in any personal capacity. +hey are acting on behalf of the collectivity. +hus, the attempt to circumvent the personality of the State merely results in its reintroduction in some other form. 3e(ultin* Po(ition Since IL D $L have no common &eld, it would be meaningless to discuss whether their relationship is one of co(ordination, or of subordination, or of mutual subordination to a common superior order.
+herefore, IL D $L as systems can never come into conMict. hat may occur is only a conMict of obligations E an inability of the State on the domestic plane to act in the manner re*uired by international law. 9uh/ +he fact that no one understands you doesn
;. +he State cannot plead the provisions of its national law, or of its constitution, as a ground for the non(observance of its intl obligations. ". +he State is under a general duty to cause its law D consti to conform or to be such as to enable the State to conform to its intl obligations. >. +he State cannot plead changes, even revolutionary changes in the State
7onist5 primarily asserts supremacy of IL over 7L. 0Although Telsen, a monist, does not support this1. It is IL which is ultimately concerned wO the conduct D welfare of individuals. +he state is dislied as an abstraction. 7onist(naturalist5 IL D 7L are subordinate to a > rd legal order, usually postulated in terms of 9natural law: or 9general principles of law:, superior to both D capable of determining their respective spheres. J> theories above assume that 7L D IL operate
14
simultaneously in a common &eld in regard to the same sub)ect(matterK Coordination5 0%it'maurice1 7L D IL don. hen Intl tribunal is faced wO the tas of deciding issues solely on the basis of municipal law of a particular state. 0i.e., Serbian Loans case1 ML a( fact(< )efore Intl tri)unal( B aspects5 ;. 7L as evidence of conduct in violation of rule of treaty or customary law ". 8udicial notice does not apply to matters of 7L. !roof re*uired. >. Interpretation of their own laws by natl courts is binding on an intl tribunal. . Assumption that for any domestic issue, there must always be some applicable rule of 7L, which will be ascertainable in the same way as other @facts< in the case. . Intl tribunals can
-ow IL are given e=ect in the intl sphere 0the 4nglish model1
Incorporation5 Customary rules are to be considered as part of the law of the land, with the *uali&cation that they are incorporated only so far as is consistent wO acts of the legislature D prior )udicial decisions of the State. +ransformation5 IL is part of the law of the land only in so far as the rules have been clearly adopted D made part of the law of the State by legislature, )udicial decision or established usage. +reaties5 3ecome part of law if an enabling act of the legislature has been passed. Statute prevails over treaty. Gesort to the tet of a Convention may be had under the condition that there be cogent etrinsic evidence that the enactment was intended to ful&ll obligations under a particular convention. Self(eecuting treaties5 Certain rules of IL don
Conclusion %actors that operate on the sub)ect matter of the relation between 7L and IL5 ;. rgani'ational E to what etent are organs of the states willing to apply rules of IL internally and eternally/ ". $i2culty of proving the eistence of particular rules of IL. In case of di2culty, municipal courts may rely on advice from the eecutive or eisting internal precedents. >. Courts will often be concerned with the more technical *uestion as to which is the appropriate system to apply. Vienna Con@ention on the Law of $reatie( 5,T 2: 5 party may ino#e the proisions of its internal law as ustiDcation for its failure to perform a treaty. 5rt.?C: roisions of nt"l law ,eardin *ompetence to *onclude Treaties 1. 5 /tate may not ino#e the fact that its consent to be bound by a treaty has been expressed in iolation of a proision its internal law reardin competence to conclude treaties as inalidatin its consent unless that iolation was manifest
15
2.
and concerned a rule of its internal law of fundamental importance. 5 iolation is manifest if it would be obectiely eident to any state conductin itself in the manner in accordance with normal practice and in ood faith.
IV. ource( of International Law A. In General Virall', $he ource( of International Law, in oren(en +he basis and sources of law
As any other legal system, Int
%or irally, there
+he term 9international law: not only connotes general IL but other rules of general and permanent character which are valid in relation to certain stats only. +he *uestion N a given r ule is one of general IL may have great importance. If such, then it? of Statute of IC8 +he sources enumerated are those which the parties to the statute recogni'e as creative of international law. +here is a fairly general agreement that the terminology Art >? is purely descriptive and not intended to circumscribe in any way the operation of the sources which are described. 4very imaginable new source is indirectly envisaged in the list in Art >? and is simply the product of the law emanating from the sources which are mentioned in that list. tatute of the International Court of ?u(tice, Article # 1. The *ourt$ whose function is$ to decide in accordance with international law such disputes as are submitted to it$ shall apply: a. international conention$ whether eneral or particular$ establishin rules expressly reconi+ed by contestin statesF b. international custom$ as eidence of eneral practice accepted as lawF c. the eneral principles of law reconi+ed by ciili+ed nations d. subect to the proisions of 5rticle @G$ udicial decisions and the teachins of the most hihly ualiDed publicists of the arious nations$ as subsidiary means for the determination of rules of law. 2. This proision shall not preudice the power of the *ourt to decide a case ex aeuo t bono$ if the parties aree thereto. Article 59 The decision of the court has no bindin force except between the parties and in respect on that particular case. Note(: Ma*i note( on Article # +he word subsidiary in 0d1 may indicate that a(c are the primary sources law whereas the " items in d are merely subsidiary.
16
hen we spea of sources of law, we are referring to norm(creating mechanisms. In a(c, there is a creation of norms while in 0d1, we have methods for proving or indicating the roots of law that are already in eistence. 0d1 may be considered as evidence of law. Article P emphasi'es the fact that )udicial decisions and the wors of publicists are not by themselves intended to be operative as norms. Article >? seems to present a hierarchy, a(c over d but this is wrong because a(c and d in fact do not belong to the same category. +he application of the conventional rules is given primacy even if this eists side by side with customary norm of a general character. hy/ ;. on account of the nature of those norms and on account of the speci&c relationship of the parties. Not parties to the treaty but parties to the dispute. It is this principle that governs the primary application of conventional rules. If there is any hierarchy, it is on the basis of this principle and not on the physical placement in the tet of Article >?. &. International Cu(tom olfe, Cu(tom in Pre(ent =a' International Law, 1+0 +he source of customary law is the community or, more accurately, the way of life of the community.
+he formation of custom is a continuous process with the =. main stages5 ;1
moment of formation • when a certain practice becomes su2ciently ripe to )ustify at least a presumption that it has been accepted by other interested states as an epression of law • corresponding customary rule of international law begins to have binding e=ect "1 ascertainment of an already eisting custom the establishment of the eistence • of an international custom 0or the ful&lment of its elements1, the formulation of the corresponding customary rule, and the &ing of its range of validity 7echanisms of formation5 ;1 analogy with custom in municipal law and somewhat arbitrary • 9misleading simpli&cation: • %auchile5 International custom arises lie all customs i.e. by repetition of actions in similar situations "1 7c$ougal
•
mutual claims and the adoption of an attitude to such claims by competent state organs 0decision(maers1 States advance through their organs unilateral claims and the other states appraise these claims in terms of the interests of the world community and ultimately 9accept them: 0most often only by means of tacit tolerance1 or 9re)ect them: 0above all by means of protest1.
4lements of custom5 ;1 !ractice 0ob)ective15 • !ractice constitutes the raw material of custom, while the legal importance is added by the element of acceptance as law • +he rapid acceleration of the rhythm of international life and improvement of the means of communication has made possible the formation of custom within a shorter time and with *uantitatively lesser practice. • Can abstention be a source of custom/ N 08udge Altamira15 a custom must by its very nature be positive in character, and a customary rule must be positively supported by the acts which have occurred. 4S 0Sorensen15 abstention is often a result of positive decision or actionFdepends on the ind of custom developing i.e. whether it is simple inaction or abrogation of an eisting customary rule. "1 Acceptance 0sub)ective15 7eans of epressing acceptance5 ;1 epress declarations E most une*uivocal "1 tacit E other individual or collective verbal acts, depending on their content, legal validity, and all other circumstances • In most cases the element of acceptance is ful&lled tacitly, only by means of a presumption based upon various inds of active or passive reactions to the practice by the interested states. • Consensus is used mainly to facilitate the reaching of an agreement during the phase of negotiations of a draft preceding its &nal acceptance. No ob)ections are raised since they are not binding anyhow. Gole of certain factors in f ormation of custom5 ;1 international usage • 9Fis, or at least should be, considered as a sort of *uali&ed practice accepted, not as an epression of law, but as a simple habit or, at most as a rule of conduct of another ind5 rules of comity, international morality, etc.: distinction between usage and • custom is 9very di2cult: and possible only in cases of international conMict, when a legal claim, responsibility or sanctions come into play
17
"1 international agreements • AGNIN#5 a treaty can never of itself lead to the formation of an international custom. It is an outcome of the active will of states to create mutual rights and obligations of eclusively conventional character. 9Accession by way of custom:5 • Custom may etend the application of rules contained in a treaty beyond the contracting States. Acceptance maes the treaty binding on third States by way of custom, but the treaty itself does not have legal e=ects for such States. +reaties may contribute to the formation • of customs as their elements5 may constitute custom(forming precedents, may be evidence of practice. >1 courts and tribunals • a statement by the court that a certain rule applies in settling a dispute involves a law(creating factor. • decision may a=ect the further development or etinction of a custom e.g. declaration that there is no su2cient evidence for admission of the eistence of a custom may paraly'e development 1 opinions of publicists consists of the analysis of facts and • opinions and in drawing conclusions on binding customary rules and on trends in their evolutionF0which1 involves unrestricted supplementation of elements lacing. 1 national law may be a serious factor in &elds • concerning both national and international relations • may initiate international practice B1 the rise of the great powers power, wealth, sheer si'e, and • #eorge . 3ush • presumed acceptance of great powers fre*uently has a decisive e=ect 1 practice of international organi'ations • brings about an 9enormous intensi&cation of international intercourse by multiplication of contacts between states, and, in general, a rapid development of international practice.: SoFuhhhFcustom is formed somewhere in between all that ummmFintercourse. hat
than your
?1 UN #en Assembly Gesolutions " types5 • 0;1 acts of conduct regulated by rules of procedure of organi'ations E only
binding upon the organi'ation and its members 0"1 bindingOunbinding decisions E the latter do not constitute evidence of acceptance of a practice as law, but only of the eistence of a presumption thereof by member(states Virall', op cit. pp. 1"!1#, (upra Ca(e(: 416 North ea Continental helf Ca(e( 41+0+6 The Euidistance rinciple 8ot nherent in the 'asic %octrine of the *ontinental /helf 0paras. >( P of the 8udgment1
It had been maintained by $enmar and the Netherlands that the %ederal Gepublic was in any event, and *uite apart from the #eneva Convention, bound to accept delimitation on an e*uidistance basis, since the use of that method was a rule of general or customary international law, automatically binding on the %ederal Gepublic.
ne argument advanced by them in support of this contention, which might be termed the a priori argument, started from the position that the rights of the coastal State to its continental shelf areas were based on its sovereignty over the land domain, of which the shelf area was the natural prolongation under the sea. %rom this notion of appurtenance was derived the view, which the Court accepted, that the coastal StateVs rights eisted ipso facto and ab initio. $enmar and the Netherlands claimed that the test of appurtenance must be WproimityW5 all those parts of the shelf being considered as appurtenant to a particular coastal State which were closer to it than they were to any point on the coast of another State. -ence, delimitation had to be e=ected by a method which would leave to each one of the States concerned all those areas that were nearest to its own coast. As only an e*uidistance line would do this, only such a line could be valid, it was contended.
+his view had much force6 the greater part of a StateVs continental shelf areas would normally in fact be nearer to its coasts than to any other. 3ut the real issue was whether it followed that every part of the area concerned must be placed in that way. +he Court did not consider this to follow from the notion of proimity, which was a somewhat Muid one. 7ore fundamental was the concept of the continental shelf as being the natural prolongation of the land domain. 4ven if proimity might a=ord one of the tests to be applied, and an
18
important one in the right conditions, it might not necessarily be the only, nor in all circumstances the most appropriate, one. Submarine areas did not appertain to the coastal State merely because they were near it, nor did their appurtenance depend on any certainty of delimitation as to their boundaries. hat conferred the ipso ure title was the fact that the submarine areas concerned might be deemed to be actually part of its territory in the sense that they were a prolongation of its land territory under the sea. 4*uidistance clearly could not be identi&ed with the notion of natural prolongation, since the use of the e*uidistance method would fre*uently cause areas which were the natural prolongation of the territory of one State to be attributed to another. -ence, the notion of e*uidistance was not an inescapable a priori accompaniment of basic continental shelf doctrine.
A review of the genesis of the e*uidistance method of delimitation con&rmed the foregoing conclusion. +he W+ruman !roclamationW issued by the #overnment of the United States on "? September ;P could be regarded as a starting point of the positive law on the sub)ect, and the chief doctrine it enunciated, that the coastal State had an original, natural and eclusive right to the continental shelf o= its shores, had come to prevail over all others and was now reMected in the;P? #eneva Convention. ith regard to the delimitation of boundaries between the continental shelves of ad)acent States, the +ruman !roclamation had stated that such boundaries Wshall be determined by the United States and the State concerned in accordance with e*uitable principlesW. +hese two concepts, of delimitation by mutual agreement and delimitation in accordance with e*uitable principles, had underlain all the subse*uent history of the sub)ect. It had been largely on the recommendation of a committee of eperts that the principle of e*uidistance for the delimitation of continental shelf boundaries had been accepted by the United Nations International Law Commission in the tet it had laid before the #eneva Conference of ;P? on the Law of the Sea which had adopted the Continental Shelf Convention. It could legitimately be assumed that the eperts had been actuated by considerations not of legal theory but of practical convenience and cartography. 7oreover, the article adopted by the Commission had given priority to delimitation by agreement and had contained an eception in favour of Wspecial circumstancesW.
+he Court conse*uently considered that $enmar and the Netherlands inverted the true order of things and that, far from an e*uidistance rule having been generated by an antecedent principle of proimity inherent in the whole concept of
continental shelf appurtenance, the latter was rather a rationali'ation of the former
The Euidistance rinciple 8ot a ,ule of *ustomary nternational aw 0paras. BQ(?" of the 8udgment1
+he *uestion remained whether through positive law processes the e*uidistance principle must now be regarded as a rule of customary international law.
Ge)ecting the contentions of $enmar and the Netherlands, the Court considered that the principle of e*uidistance, as it &gured in Article B of the #eneva Convention, had not been proposed by the International Law Commission as an emerging rule of customary international law. +his Article could not be said to have reMected or crystalli'ed such a rule. +his was con&rmed by the fact that any State might mae reservations in respect of Article B, unlie Articles ;, " and >, on signing, ratifying or acceding to the Convention. hile certain other provisions of the Convention, although relating to matters that lay within the &eld of received customary law, were also not ecluded from the faculty of reservation, they all related to rules of general maritime law very considerably antedating the Convention which were only incidental to continental shelf rights as such, and had been mentioned in the Convention simply to ensure that they were not pre)udiced by the eercise of continental shelf rights. Article B, however, related directly to continental shelf rights as such, and since it was not ecluded from the faculty of reservation, it was a legitimate inference that it was not considered to reMect emergent customary law.
It had been argued on behalf of $enmar and the Netherlands that even if at the date of the #eneva Convention no rule of customary international law eisted in favour of the e*uidistance principle, such a rule had nevertheless come into being since the Convention, partly because of its own impact, and partly on the basis of subse*uent State practice. In order for this process to occur it was necessary that Article B of the Convention should, at all events potentially, be of a norm( creating character. Article B was so framed, however, as to put the obligation to mae use of the e*uidistance method after a primary obligation to e=ect delimitation by agreement. %urthermore, the part played by the notion of special circumstances in relation to the principle of e*uidistance, the controversies as to the eact meaning and scope of that notion, and the faculty
19
of maing reservations to Article B must all raise doubts as to the potentially norm(creating character of that Article.
%urthermore, while a very widespread and representative participation in a convention might show that a conventional rule had become a general rule of international law, in the present case the number of rati&cations and accessions so far was hardly su2cient. As regards the time element, although the passage of only a short period of time was not necessarily a bar to the formation of a new rule of customary international law on the basis of what was originally a purely conventional rule, it was indispensable that State practice during that period, including that of States whose interests were specially a=ected, should have been both etensive and virtually uniform in the sense of the provision invoed and should have occurred in such a way as to show a general recognition that a rule of law was involved. Some ; cases had been cited in which the States concerned had agreed to draw or had drawn the boundaries concerned according to the principle of e*uidistance, but there was no evidence that they had so acted because they had felt legally compelled to draw them in that way by reason of a rule of customary law. +he cases cited were inconclusive and insu2cient evidence of a settled practice.
+he Court conse*uently concluded that the #eneva Convention was not in its origins or inception declaratory of a mandatory rule of customary international law en)oining the use of the e*uidistance principle, its subse*uent e=ect had not been constitutive of such a rule, and State practice up to date had e*ually been insu2cient for the purpose.
The rinciples and ,ules of aw 0paras. ?>(;Q; of the 8udgment1
5pplicable
+he legal situation was that the !arties were under no obligation to apply the e*uidistance principle either under the ;P? Convention or as a rule of general or customary international law. It conse*uently became unnecessary for the Court to consider whether or not the con&guration of the #erman North Sea coast constituted a Wspecial circumstanceW. It remained for the Court, however, to indicate to the !arties the principles and rules of law in the light of which delimitation was to be e=ected.
+he basic principles in the matter of delimitation,
deriving from the +ruman !roclamation, were that it must be the ob)ect of agreement between the States concerned and that such agreement must be arrived at in accordance with e*uitable principles. +he !arties were under an obligation to enter into negotiations with a view to arriving at an agreement and not merely to go through a formal process of negotiation as a sort of prior condition for the automatic application of a certain method of delimitation in the absence of agreement6 they were so to conduct themselves that the negotiations were meaningful, which would not be the case when one of them insisted upon its own position without contemplating any modi&cation of it. +his obligation was merely a special application of a principle underlying all international relations, which was moreover recogni'ed in Article >> of the Charter of the United Nations as one of the methods for the peaceful settlement of international disputes.
+he !arties were under an obligation to act in such a way that in the particular case, and taing all the circumstances into account, e*uitable principles were applied. +here was no *uestion of the CourtVs decision being ex aeuo et bono. It was precisely a rule of law that called for the application of e*uitable principles, and in such cases as the present ones the e*uidistance method could un*uestionably lead to ine*uity. ther methods eisted and might be employed, alone or in combination, according to the areas involved. Although the !arties intended themselves to apply the principles and rules laid down by the Court some indication was called for of the possible ways in which they might apply them.
%or all the foregoing reasons, the Court found in each case that the use of the e*uidistance method of delimitation was not obligatory as between the !arties6 that no other single method of delimitation was in all circumstances obligatory6 that delimitation was to be e=ected by agreement in accordance with e*uitable principles and taing account of all relevant circumstances, in such a way as to leave as much as possible to each !arty all those parts of the continental shelf that constituted a natural prolongation of its land territory, without encroachment on the natural prolongation of the land territory of the other6 and that, if such delimitation produced overlapping areas, they were to be divided between the !arties in agreed proportions, or, failing agreement, e*ually, unless they decided on a rXgime of )oint )urisdiction, user, or eploitation.
In the course of negotiations, the factors to be taen into account were to include5 the general con&guration of the coasts of the !arties, as well
20
as the presence of any special or unusual f eatures6 so far as nown or readily ascertainable, the physical and geological structure and natural resources of the continental shelf areas involved, the element of a reasonable degree of proportionality between the etent of the continental shelf areas appertaining to each State and the length of its coast measured in the general direction of the coastline, taing into account the e=ects, actual or prospective, of any other continental shelf delimitations in the same region.
Note(: Le lata( law as it is Le ferenda( law as it ought to be $e lege ferenda( eperimental basis
Universality is not necessary to ful&ll the re*uirement of generality of law. #enerality merely maes an assumption of consistency of general practice. n why the e*uidistance principle is not norm( creating, the IC8 said5 ;. the primary rule is that there must be an agreement among the parties as to how to delimit. 4*uidistance is relegated to a secondary position as a rule6 ". the parties may derogate from the e*uidistance principle by agreement6 >. art. ;" of the convention gives states the right to reserve unilaterally, hence they can refuse to agree to the principle6 . special circumstances may be taen into consideration, such as irregular coastlines. 7agi( by its very nature, a customary or general law should not be sub)ect to reservation because this type of law should operate with e*ual force on every state. n pinio 8uris 0recognition of a practice as legally binding1( $enmar and the Netherlands contend that proof of general practice should also be taen as proof of opinio )uris. -owever, the IC8
n April P, ;P?, the Ambassador of the Gepublic of Nicaragua to the Netherlands &led in the Gegistry of the Court an Application instituting
proceedings against the United States concerning responsibility &r military and paramilitary activities in Nicaragua. used military force intervened in internal a=airs created an army of more than ;Q,QQQ mercenaries to harass and destabili'e the #overnment of Nicaragua Nicaragua claimed that Court had )urisdiction by virtue Nicaraguaedina +he United States opposed on the ground that5 Nicaragua never rati&ed the Statute of the !ermanent Court of International 8ustice 0&les of the League of nations contained no evidence that an instrument of rati&cation had ever been received1 ;P? noti&cation denied Court )urisdiction5 declaration shall not apply to disputes with any *entral 5merican /tate or arisin out of or related to eents in *entral 5merica
Issue5 N NicaraguaB on compulsory )urisdiction. Such States as themselves publish lists of states bound by the compulsory )urisdiction of the court have placed Nicaragua on their li sts. >. In e=ect, Nicaragua was placed in an eceptional position, since the international organs empowered to handle such declarations declared that the formality in *uestion had been accomplished by Nicaragua.
21
United States raised another provision in its ;PB $eclaration which said the it was to sub)ect itself to the )urisdiction of the Court only if all the parties to the treaty a=ected by the decisions are also parties to the case before the Court.0multilateral treaty reservation1 -
-
Court ruled that this provision does not deprive court of )urisdiction because Nicaragua invoes a number of principles of customary and general international law that have been violated by the US. 0no need to bring in parties to treaty if case involves violation of customary law1 !rinciples such as those of the non(use of force, non(intervention, respect for independence and territorial integrity of States, freedom of navigation, continue to be binding as part of the customary international law, despite the operations of conventional law in which they have been incorporated.
Note(: 4ven if customary norms have been codi&ed, they do not cease to eist as customary norms, even to states parties to the convention. CIL continues to apply separately from IL even when the two have an identical content.
Nicaragua laid down a limitation to the North Sea holding when the IC8 here said5 there are practices of states that by their very nature may ehibit on their face, opinio )uris.
7agi( if you combine the " elements 0general practice and opinio )uris1, it will give you the )uridical nature of the practice of law. So it seems that the emphasis of art. >? 0b1 is the )uridi cal character of practice and therefore the emphasis is on opinio )uris con&rmed by general practice. 4#6 A('lum Ca(e 41+5H6
%acts5 Act if Lima between the Colombian #overnment and !eruvian #overnment5 Colombian 4mbassy in Lima re*uested for delivery of a safe conduct for 7sr. ictor Gaul -aya de la +orre. +he re*uest was based on the Convention on Asylum signed at -avana and the Agreement on 4tradition signed in Caracas. Colombia submits that it is competent to *ualify the o=ense for the purpose of asylum and that such is by a unilateral and de&nitive decision binding on !eru5 based submission partly on rules, resulting from agreement, partly on an alleged custom peculiar to Latin American States.
Ato ualify the o0ense for the purpose of asylumB +o *ualify refugees as5 ;. o=enders for common crimes ". deserters from the army or navy >. political o=enders
Issue5 N custom is a valid basis for Colombia? of SoC5 9 international custom as evidence of a general practice accepted as law. >. 7ontevido Convention of ;P>>5 limited number of States rati&ed this convention and thus not su2cient to prove international custom even if there was such a custom, !eru still would not be bound because it repudiated such convention by refraining from ratifying it. GUL45 Colombia, as the state granting asylum, is not competent to *ualify the o=ence by a unilateral and de&nitive decision, binding on !eru.
Note(: +erritorial asylum( there is no derogation of sovereignty of the host state 0the state to which the o=ender escaped or sought asylum1
$iplomatic asylum( asylum is given by the embassy of a foreign power in the territory of the host state
IC85 diplomatic asylum is a derogation of the general rule, therefore it was incumbent upon Colombia to show that this rule eists and that is binds !eru. Colombia failed in this respect.
Although the IC8 concedes that there may be customary norms merely on a regional scope or application as contended by Colombia, the court said Colombia nonetheless failed to prove the eistence of such rule and failed to show that !eru was bound.
22
C. $reatie(
$unin, $heor' of International Law, 1+2
Shortcuts5 IC E International Conference I+ E International +reaty I E International rgani'ation IL E International Law ILC E International Law Commission I. $3%A$I% &%$. $A$%
Interstate treaty ( as a method of creating norms of IL, is a clearly epressed agreement bet. states relating to the recognition of a particular rule as a norm of IL or to the change or li*uidation of eisting norms of IL Y ienna convention, Art. "5 treaty 0def1 is an intl agreement concluded between states in written form Y Conventional norm of IL E result of an agreement epressed in the form of treaties bet. states In " nd half of ;Pth century, theories emerged that only a certain group of intl treaties played a role in norm(formation.
A. &er*)ohm ( two categories eist based on di=erence in purpose, which contracting parties set for themselves5 ;. contract treaties E don
4. A. ;lloa5 7a)ority of intl treaties are not a source of IL. +hey simply arise out of prevailing IL. %. A. Verdro(( , divides treaties into5 ;. ereinbarungen 0law(maing treaties1 E includes multilateral and bilateral treaties that establish general abstract norms ". Gechtsgeschafte 0contracts1 E includes treaties pertaining to speci&c *uestions #. 3o((eau5 nly law(maing treaties 0traites(lois1 are recogni'ed as sources of IL -. ?imene de Aracha*a5 Although both law( maing and contractual treaties create legal norms, only those treaties which form general norms are a source of IL.
+oday, many writers re)ect this division.
A. 3o((eau5 3oth types of treaties have the same force in positive IL and no hierarchy eists between them. +he division is of interest only in terms of description and classi&cation. 3. Oppenheim! Lauterpacht5 All treaties are law(maing inasmuch as they lay down rules of conduct which the parties are bound to observe as law. C. C. de Vi((cher5 Although both treaties play une*ual roles in the development of IL, both are law for the contracting parties. nly di=erence5 ;. law(maing treaties E relate to wider sphere of relations and concluded for a prolonged period ". contractual treaties E concluded wO regard to private *uestions, short(term, and after being ful&lled, terminate their operation $. el(en E completely re)ects the division6 +he essential function of a treaty is to mae law, to create a legal norm, whether general or an individual norm. 4. Gu**enheim5 +he di=erence bet. norm( creating and contractual treaties a=ects only the content, and interpretation but not the legal nature of intl conventions. %. D.I. ohe@ni 5 All treaties in principle have a norm(formative characterFsince they establish rules of conduct which their parties are bound to observe. $i=erence lies in treaties which establish rules for5 ;. whole sphere of relations among states ". de&nite concrete *uestions #. oro@in5 $ivision is unfounded. Any treaty, as an act originating with state(sub)ects of IL, has a particular law(maing signi&cance. -. Lach(5 In realityFan intl treaty, either bilateral or multilateral, is a source of rights and duties, even when it regulates very commonplace *uestions of everyday life. Lachs divides treaties into5 ;. +reaties aIrmin or formulating certain already eisting binding principles and norms of law for the purpose of greater clarity6 ". +reaties creatin new principles and norms6
23
>.
+reaties applyin eisting principles or norms of law ad casum.
$unin5 !roblem Jof distinctionK is eaggerated D has no practical signi&cance. Any valid intl treaty has legally binding force for its parties D in this sense is law(maing.
Conclusion of a +reaty 0def1 is a process of bringing the wills of States into concordance, the result of which is an agreement that is embodied in the norms of the treaty. +he process embraces several stages5 ;. negotiations ". initialing >. adoption by IC or organ of I . signature . con&rmation B. rati&cation . echangeOdeposit of instruments ?. entry into force It is, however, not obligatory that conclusion of a speci&c treaty pass through all these stages.
+he process of concluding a treaty commences with negotiations among o2cial state representatives irrespective of the formOlevel wherein these negotiations tae place. Proce(( of $reat' Dormation ; Content of agreement is formed in the course of woring out a treaty tet 0during negotiations in ICs etc.1. Agreement is &ed in the tet. " 3y initialing, signature or enactments of ICs or Is, the treaty tet is established. ( #en Gule5 nce tet is established, no participant can insist on its being changed. ( 4ception5 hen reservations are made.
Geservationb)ection4=ect Norm of IL E result of completion of the process of concluding an I+ Note5 3ut it is necessary to distinguish bet. entry into force and process of concluding a treaty Gules5 ; treaty concluded before entry into force norm emerges but still not a prevailing norm " treaty entered into force before concluded norm eists D commences to operate but
n. a diplomatic agent having full power or authority. +he US, for eample, has either an ambassador or a minister plenipotentiary in most important countries.
operation is provisional 0sub)ect to rati&cation1 Until a treaty norm of IL has entered into force, no legal obligations arise for the parties to the negotiations on the basis of it. 3ut this does not a=ect obligations concerning negotiations. ( the consent of states to enter into negotiations doesn
; 7odi&cation E may occur by treaty or by custom H 3y treaty occurs by concluding a supplemental or new treaty 3U+ any modi&cation of a treaty re*uires the consent of all parties unless the treaty itself provides otherwise. " Li*uidation E also by treaty or custom H 3y treaty epiration of the term of treaty, agreement of parties, denunciation, abrogation etc. II. +G4A+I4S 34+. S+A+4S CNCLU$4$ OIN +-4 %GA74GT % Is Is concentrate in their hands the organi'ing of the conclusion of multilateral treaties among states concerning *uestions wOc relate towards the domain of their activities. +rend5 towards simplifying procedure of concluding I+s. 4ample5 In the Intl Labor rgani'ationF Convention adopted by #eneral Conference signed by Conference Chairman D IL $irector( #eneral certi&ed copies sent to member(states state rati&es D noti&es $ir(#en of rati&cation no sigs of state representatives re*uired or deposit of instruments of rati&cation ∴
IO( @( Normal Norm!Creatin* Proce((
+here are two aspects of forming norms, whether customary or conventional. Norm(formation consists of bringing into concordance the wills of the states with respect to5 ; content of rules of conduct " recognition of rule as norm of IL In Is, these aspects never coincide. Concordance of states as to5 ; content accomplished wOin the framewor of I as in adoption of treaty tet as &nal by the organ of the I or conference of plenipotentiaries of States created by a decision of I " recognition as norm of IL formed from individual actions of states 0signature, rati&cation etc.1 wOo wOc treaties adopted by Is don
24
III. G4#ULA+INS A$!+4$ 3 S!4CIALIZ4$ Is H 4amples of Speciali'ed Is 5 7eteorological rgani'ation, Universal Union etc.
orld !ostal
h' created Speciali'ed Is create normative regulations bec. of increase in *uantity of primarily technical *uestions wO wOc the orgs had to occupy themselves. Simpli&ed procedure re*uired. +echnology moves rapidly ∴ norms must change fre*uently. 9ow formulated Gegulations are adopted by plenary or lesser organs. +he charter come into force5 ; epressly E sub)ect to rati&cation or approval of states " tacitly E regulation regarded as accepted if state does not ob)ect or does not refuse to accept a particular regulation wOin a prescribed period Le*al Nature Other writer( 0#uggenheim, %riedmann, ellas, Suba etc.1 5 +hese regulations are international legislation. +hey are more acts of the organi'ation than an agreement bet. member( states D resemble unilateral legislative acts enacted by congress 0in municipal law1. $unin5 Gegulations are not legislation but International +reaties. Content of norms may have already been &nally determined Jby IK but to become binding upon states, an epression of its will is necessary to recogni'e such norms as IL norms ∴ 3inding force of forms of regulations is based upon agreement D not upon legislative power of Is. IV. $3%A$I% OD IO( h' created ( result of development of Is that are sub)ects of IL $wo Cate*orie( ; +reaties concluded by Is with each other e. Standard Agreement on 7utual Assistance to 8ordan " +reaties concluded by Is with states ( relate to location of organi'ations D their organs, granting of assistance, privileges D immunities etc. Le*al nature $here are two @iew( a( to the le*al nature of treatie( of IO(: ; considered as treaties bet. States +his view arose out of a denial of the legal personality of Is. +reaties of Is are considered simply as variant forms of treaties bet. states. %or eample, agreements concluded by the UN give rise to rights D obligations not for the UN as such,
but for member states of the UN. " considered as treaties bet. I and states +his view arose out of a con&rmation that Is have legal personality. Is are created by states but they are organi'ations distinct from states. Is ac*uire rights D assume speci&c obligations, separate from states. +he ILC initially proposed to include treaties of Is within the scope of draft articles on the law of treaties, such that a treaty will be de&ned as 9an agreement in writing bet. two or more states or 7sF:. 4ven writers who consider treaties bet. sub)ects of IL as not necessarily being I+s or who do not have a de&nite position on this *uestion also come to the conclusion that the overwhelming ma)ority of treaties of Is have an intl character. 3ut the ILC eventually decided to wor out a draft having in view only treaties bet. states in order to study later what modi&cations are re*uired to be introduced to mae them applicable to treaties of Is. +unin says this decision is correct. 3ecauseF Gecogni'ing agreements of Is as I+s in no way signi&es that such treaties can be e*uated to treaties bet. states. Speci&c feature of Is as sub)ects of IL a=ects treaties which they conclude. Norms of treaties concluded bet. I(I and I( States always are of a secondary nature. +he validity of these treaties is always the charter of the I, which contains norms of primary order. Note(:
" inds of treaties(
;.
contractual5 contains provisions which do not go beyond the possible limit already granted to states under prevailing IL6 rarely a source of IL.
".
law(maing treaties5 create abstract norms recogni'ed by states as norms of conduct for the future.
+reaty(maing process(
;. ". >. . . B. . ?.
negotiations initiating adoption by the intl. rgan signature con&rmation rati&cation echange D deposit of instruments entry into force
25
HHH some of these stages my be sipped HHH the drafting of the tet is a technical process which has no relevance to agreeing to the treaty. +hus a state may agree to the language of the draft, but may later on refuse to accede to the treaty itself. -ow treaties are modi&ed( ;. by custom ". by a new treaty
?ennin*(, $reatie( in &edaoui 8ote: This diest does not include ,7=/78/ of the =E885 *78=E8T78 (to sae on erox space) but these are =E,; >7,T58T. lease read them in the oriinal$ they"re in smaller fonts in the material.
Shortcuts5 IC E International Conference I+ E International +reaty I E International rgani'ation IL E International Law I. IN$3O=;C$ION
+he treaty is the most important instrument nown to ILFand is also, in volume, range and ubi*uity, the most important source of IL. +he standard form of treatyFis a agreement between States, which obligations D rights in ILFJ3utK besides bet. States, there are treaties bet. States( bet. I(I.
written creates treaties Is and
IL prescribes no particular form or procedure for the maing of intl engagements5 though Consti Law of a State may and fre*uently does. Nor is there any re*uired order of the content of a treaty. +here are also many possible designations of a treaty. It may be called5 convention, declaration, protocol, act etc. II. CONCL;ION F %N$38 IN$O DO3C% +wo phases in conclusion D entry into force5 ;. adoption of an agreed &nal draft of the treaty tet ". ways in which a party can thereafter e=ectively indicate its consent to become bound by the treaty hase 1: ienna Convention Gules on the adoption of an agreed tet ;. In bilateral treaties or treaties between a few States, unanimity remains the rule. Adoption re*uires the consent of all States participating. ". At a general diplomatic conference, unanimity will be unrealistic. Adoption taes place by the vote of "O> of the States present
and voting, unless by the same ma)ority they shall decide to apply a di=. rule. hase 25 7odes of epressing consent to become bound H Signature E serves two di=. functions5 ;. one act of signature may both authenticate the tet and epress &nally the consent of the signatory State to be bound by the treaty or6 ". signature authenticates the tet but consent to be bound has to be epressed by a second step, such as rati&cation, approval etc. H Gati&cation E the echange or deposit of a formal instrument, by which a State signi&es its willingness to become bound by a treaty ;. bilateral treaty E instrument normally echanged ". multilateral treaty E instrument normally deposited with a designated depositary power H Acceptance D Approval E less formal modes of epressing willingness to become a party to a treaty H Accession E an act whereby a State becomes a party to a treaty already made and signed by other States6 or an act whereby a State may become a party to a treaty made under the auspices of an I Tie o! entr" into !orce # 'ilateral treaty ( moment both parties validly epress consent to be bound or6 ( subse*uent date agreed upon by the parties for entry into force # >ultilateral treaty ( desirable to postpone entry into force until the convention has been accepted by a goodly number of States ( but procedural provisions governing entry into force etc. usually apply from the time of the adoption of the tet III. 3%%3VA$ION Le*al %ect ;. here treaty itself provides that a reservation may or may not be made, follow the treaty.
". therwise5 a. +raditional doctrine based on unanimity principle A reservation not epressly provided for in the treaty, is in e=ect a new o=er6 and accordingly a reserving State could not become a party unless the reservation received the epress or tacit approval of every other State party. b. b)ect D !urpose +est A State which has made D maintained a
26
reservationFcan be regarded as being a party to the Convention if the reservation is compatible with the ob)ect and purpose of the Convention. If a party ob)ected to a reservation as not being so compatible, that party is entitled to regard the reserving State as not being a party to the Convention6 and conversely for a party taing the opposite view. c. Compatibility +est at the ienna Conference A State mayFformulate a reservation unless5 a. the reservation is prohibited by the treaty b. the treaty provides that only speci&ed reservations, which do not include the reservation in *uestion, may be made c. or in cases not falling under 0a1 or 0b1, the reservation is not compatible with the ob)ect and pur pose of the treaty.
Legal 4=ect of Geservations on eisting parties to a treaty #en Gule5 Acceptance of a reservation by another contracting State constitutes the reserving State a party in relation to that other State. An act epressing a State
leans in favor of the reserving state. b)ectors have to tae position action.
A reservation established with regard to another party, modi&es provisions of the treaty to the etent of the reservation, in the relation between the reserving State and the other party. -owever, the reservation does not modify the provisions of the treaty for the other parties inter se.
Application n point of time5 A treaty is not retroactive. Territorial application5 A treaty will apply to the whole territory of the State. *onKicts of treaties relating to the same sub)ect matter5 H If all parties to treaty ; are parties to treaty " Y Le posterior principle will apply D treaty " will prevail. H If not all parties to treaty ; are parties to treaty "5 ( as between States parties to both treaties Y later treaty prevails ( as between a State ( party to both treaties and another State ( party to only one treaty Y treaty to which both are parties prevails Interpretation #en. Gule5 here the meaning is clear, the treaty should be applied accdng to its clear meaning. If interpretation is re*uired, the #en. Gule of Interpretation is5 A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their contet D in the light of its ob)ect D purpose. primarily tetual, but also incorporates principles of ob)ect D purpose and intention of parties V. $3%A$I% F #3= $A$%
A treaty does not create obligations or rights for a >rd State without its consent. An obligation or right created may not be modi&ed or revoed without the consent of the > rd State. If a treaty rule is the same as an eisting general rule of customary law, the latter will still apply to >rd States as custom ∴ States parties to the treaties will be doubly bound5 by custom in regard to States generally, and also by treaty in regard to the other parties. 4ample of an indirect way by which a treaty may a=ect the rights and obligations of > rd States5 If a treaty validly creates an I with legal personality, a >rd State may not be in a position to deny the ob)ective and legal eistence of that organi'ation. VI. AM%N=M%N$ F MO=IDICA$ION
IV. O&%3VANC%, APPLICA$ION and IN$%3P3%$A$ION
O)(er@ance +he primary principle to be observed is pacta sunt servanda5 4very treaty in force is binding upon the parties to it and must be performed by them in good faith6 A party may not invoe the provisions of its internal law as )usti&cation for its failure to perform a treaty.
Aendent $ %odi&cation di'tin()i'*ed 5mendment 0def1 a formal agreement to alter the treaty with respect to all parties >odiDcation 0def1 an inter se agreement between only some parties and intended to vary the treaty bet. themselves alone
+he ienna Convetion lays down rules for the amendment of multilateral treaties and agreements to modify multilateral treaty as bet.
27
two parties. 0pls. see p.;P of 8ennings1 VII. INVALI=I$8 !ossible causes of invalidity5
C. &us *oens A treaty is void if, at the time of its conclusion, it conMicts with a peremptory norm of general IL. 0pls see Art. >, B, ; of UN Charter1
1. 'reach of [5 7ay the State be bound through a person acting ultra vires, yet having ostensible authority to deal in the eyes of the other party/ Gule5 Consent on the intl plane binds. 4ception5 here the violation of the internal law was manifest and the internal law rule violated was of fundamental importance.
III. +4G7INA+IN AN$ SUS!4NSIN % !4GA+IN
2. Error 4rror may be invoed as a ground invalidating consent only if the error relates to some fact or situation which was assumed by the State invoing the error to eist at the time when the treaty was concluded, and that fact or situation formed an essential basis of its consent to be bound by the treaty. 4rror may not be invoed by the State if it contributed to the error by its own conduct or if the circumstances were such as to put the State on notice of a possible error.
1. Those loically lin#ed with the notion of areement as the basis of treaties.
3. 9raud If a State has been induced to conclude a treaty by the fraudulent act of another negotiating State, the State may invoe the fraud as invalidating its consent to be bound by the treaty. 7anipulation of a State representative through corruption may also be invoed as invalidating the State
+he sanction, however, is not invalidity, but that the unregistered treaty or agreement may not be invoed before any organ of the UN, including the IC8.
+ermination deals with a valid treaty which has been in force for the parties. It is not the same as invalidity. #rounds for termination or suspension5
+reaty may terminate whereF ( this is in conformity with the provisions of the treaty, or where all parties are consulted and agree to it. ( the treaty does not have such provision, but parties nevertheless intended such a possibility or the right of withdrawal can be implied in the nature of the treaty. ( termination is a necessary implication of the conclusion of a later treaty between the same parties, relating to the same sub)ect(matter. 2. Those outside any area of areement
a. 3reach #en Gule5 A su2ciently impt breach of an agreement by a party, gives a party su=ering from the breach the option to abrogate the arrangement, as well as a claim to appropriate reparation for damage caused to him. hat maes a particular breach important enough/ +he ind of breach that can )ustify an option to abrogate must be one in an essential respect, going to the root or foundation of the treaty relationship bet. the parties and calling in *uestion the continued value, or even the possibility of that relationship.
3ut the e=ects of a material breach of a bilateral treaty are the di=erent from the e=ects of a material breach of a multilateral treaty. 4=ects of the latter are more complicated. %inally, breach must be distinguished from )usti&ed non(performance 0i.e., as a legitimate retaliation for a prior wrong1. b. Supervening Impossibility of !erformance Impossibility of performance is con&ned to the physical removal of an ob)ect indispensable to the eecution of the treaty. Subtler inds of impossibility of performing fall into the net heading ofF c. %undamental Change of Circumstances In domestic law, a common device to deal with a
28
9frustration: of the purpose of an agreement is the implied term, according to which the parties are supposed, by an implied but tacit term of their agreement, to have agreed that the continuance of certain ey circumstances was essential to the operation of the agreement6 therefore a frustrating and unanticipated change of those circumstances would void the agreement. In IL, the problem of frustration of the purpose of agreement is dealt with under the rubric of an implied so(called clausula rebus sic stantibus, lie the implied term devise in domestic law. +he ienna Convetion presents this concept as an eception to the superior concept of pacta sunt servanda. 3U+ there are cases where the plea of obsolescence may not be used at all5 ;. boundary treaty E where permanence and stability, even though circumstances change, is of the essence of the matter ". where the party seeing to invoe the change has himself wrought it I.L%GAL CON%;%NC% OD INVALI=I$8, $%3MINA$ION O3 ;P%NION
#en. Gule5 +he provisions of a void treaty have no legal e=ect. Speci&c Gule5 If acts have nevertheless been performed in reliance on a void treatyF ;. each party may re*uire any other party to establish as far as possible in their mutual relations the position that would have eisted if the acts had not been performed ". acts performed in good faith before the invalidity was invoed are valid Fbut these rules do not apply in cases where there is fraud, corruption or coercion, with respect to the party to which the fraud, act of corruption or the coercion is imputable. . %PA3A&ILI$8 OD $3%A$8 P3OVIION AN= $9% INVOING OD INVALI=I$8 O3 OD A G3O;N= DO3 $%3MINA$ING O3 ;P%N=ING
#en. Gule5 #rounds for termination etc. may be invoed only with respect to the whole treaty. 4ception5 If ground relates solely to particular clauses, it may be invoed only with respect to those clauses where5 ;. said clauses are separable from the remainder of the treaty with regard to their application ". it appears that acceptance of those clauses was not an essential basis of the consent of the party to be bound
a radical change of circumstances which maes an agreement into something essentially di=erent from what was contemplated by the parties at the time they made it
>. continued performance of the remainder of the treaty would be in)ust 0R1 Speci&c Gules5 H A party must denounce the whole of the treaty or refrain from denouncing any part of it. H nly a material breach will create the option of termination. A material breach a=ects the whole of the treaty, therefore termination in case of breach may be in respect of the whole, as well as of the parts. H In cases of coercion of a representative, or the use of unlawful force or threat of force against a State, or of conMict with a peremptory norm, the whole treaty is a=ected and no separation of clauses is permitted. H here the ground of invalidity is fraud or corruption a=ecting a State
%$+he =. are complementary procedural rules for dealing with disputes5 Art. B lays down a re*uirement of due notice5 A party invoingFany defectFmust notify in writing the other parties of its claim, indicating the measure proposed to be taen and the reasons therefor. Art. >> lists possible means of paci&c settlement of disputes such as negotiation, en*uiry, mediation etc.5 If an ob)ection is raised by any other party against the proposed measure under Art. B, parties may see a solution through means indicated in Art. >>. Art. BB provides a procedure to be followed where procedures under Art. B have produced no solution within ;" months of the ob)ection5 Any one of the parties may submit the dispute to the IC8 by written application, when the parties by common consent agree to submit the dispute to arbitrationF Ma*allona, A Primer on the Law of $reatie( 41++26 4(ee primer it(elf6 Vienna Con@ention on the Law of $reatie(, 0# Am ?. Intl L 25Q =DA$ +0 41+0+6 Ca(e(: 416 North ea, (upra 4"6 Nicara*ua, (upra =. General Principle( of Law &rownlie, Principle( of Pu)lic International Law, (upra Chen*, General Principle( of Law a( Applied )' International Court( and $ri)unal( 41+5#6 4NO$ AVAILA&L%6
29
%. ?udicial Pu)lici(t(
=eci(ion(
and
ritin*(
of
&rownlie, Principle( of Pu)lic International Law 41+56, (upra D. Pro)lem( 1. $he ue(tion of ;N General A((em)l' 3e(olution( Ma*allona, >ome 3emar( on the Le*al Character of the ;nited Nation( General A((em)l' 3e(olution(: in International Law I((ue( in Per(pecti@e 41++06 +here are some provisions in the UN Charter that provide the binding e=ect of certain resolutions of the #A even those who voted against. 3U+ Art ;Q provides that the #A may discuss within the scope of the Charter or relating to the functions and powers of the UN organs. +he legal e=ect of such resolutions may depend on speci&c circumstances attending each resolution. Landes< suggest some variable a=ecting e=ectiveness5 0;1 fundamental issues lying at the root of the resolutions6 0"1 the time at which the resolution was passed6 0>1 the vote taen on the resolution6 01 language of the resolution6 01methods and means used by the #A to implement resolutions6 0B1 epectations of member(states
UN #A resolutions are still not in a form of international legislation. Gecommendations may deal within the scope of the Charter or its powers and organs of the Charter. +he #A determines the scope at each particular point in time through the interpretation sub)ect or embodied in the resolution. Gesolutions may be considered as an authoritative interpretation of the treaty 5 0;1 it embodies any subse*uent agreement between the parties regarding the interpretation of the treaty or the application of the provisions6 0"1 it epresses any subse*uent practice in the application of the treaty wOc establishes the parties agreement +here is no way wOc a resolution interpreting the Charter can be assailed constitutionally if the resolution has been adopted in unanimity or by consensus. +he #A may have gone beyond the literal terms of the Charter but the Charter is nothing but what the 7ember(States say it is. +he collective of coordinated wills of the 7ember( States cannot be said to have been ehausted in ; single epression in the conclusion of the treaty as a Charter. Gather, such collective epression continues as a process throughout the lifetime of that constituent instrument. A declaratory resolution becomes an institutional means for registering consensus, at the same time it constitutes a medium for articulating their acceptance of the practice as law, or indicating at the least, the direction of the progressive devt of
law. +he consensus operates as a pactum tacitum. +he #A performs the role of applying law in the int? of the IC8 Statute. Gemember that the fundamental concept of IL as rooted in the agreement of States 0aa consent1. Consent is e*uated wO formalities associated with the 9sources of law:, no other formulation may be seriously treated as law. 3ut as IL develops, such sources that it recogni'es may change not merely in relative importance, but in e=ective eistence. 7ore in eeping with the reality is the attitude that the binding force of all rules of IL ultimately rests on their consent, recognition, ac*uiescence, or estoppel, and as to States wOc consider themselves bound by given rules of IL, it is di2cult to see why it should not be treated as such insofar as those States are concerned. Ca(e(: 416 e(tern ahara Ca(e 41+256 IC? 3eport( Luestion 1: M
0paras. (?> of Advisory pinion1
%or the purposes of the Advisory pinion, the Wtime of coloni'ation by SpainW may be considered as the period beginning in ;??, when Spain proclaimed its protectorate over the Gio de ro. It is therefore by reference to the law in force at that period that the legal concept of terra nullius must be interpreted. In law, WoccupationW was a means
30
of peaceably ac*uiring sovereignty over territory otherwise than by cession or succession6 it was a cardinal condition of a valid WoccupationW that the territory should be terra nullius. According to the State practice of that period, territories inhabited by tribes or peoples having a social and political organi'ation were not regarded as terrae nullius: in their case sovereignty was not generally considered as e=ected through occupation, but through agreements concluded with local rulers. +he information furnished to the Court shows (a) that at the time of coloni'ation estern Sahara was inhabited by peoples which, if nomadic, were socially and politically organi'ed in tribes and under chiefs competent to represent them6 (b) that Spain did not proceed upon the basis that it was establishing its sovereignty over terrae nullius: thus in his rder of "B $ecember ;?? the Ting of Spain proclaimed that he was taing the Gio de ro under his protection on the basis of agreements entered into with the chiefs of local tribes.
+he Court therefore gives a negative answer to [uestion I. In accordance with the terms of the re*uest for advisory opinion, Wif the answer to the &rst *uestion is in the negativeW, the Court is to reply to [uestion II.
P. +he validity of the principle of self( determination, de&ned as the need to pay regard to the freely epressed will of peoples, is not a=ected by the fact that in certain cases the #eneral Assembly has dispensed with the re*uirement of consulting the inhabitants of a given territory. +hose instances were based either on the consideration that a certain population did not constitute a people entitled to self( determination or on the conviction that a consultation was totally unnecessary, in view of special circumstances.
?Q. hatever di=erences of opinion there may have been among )urists, the State practice of the relevant period indicates that territories inhabited by tribes or peoples having a social and political organi'ation were not regarded as terrae nullius. It shows that in the case of such territories the ac*uisition of sovereignty was not generally considered as e=ected unilaterally through occupation of terra nullius by original title but through agreements concluded with local rulers. n occasion, it is true, the word occupation was used in a non(technical sense denoting simply ac*uisition of sovereignty6 but that did not signify that the ac*uisition of sovereignty through such agreements with authorities of the country was regarded as occupation of terra nullius. n the contrary, such agreements with local rulers,
whether or not considered as an actual cession of the territory, were regarded as derivate roots of title, and not originally titles obtained by occupations of terra nullius.
Luestion 11: Morocco and the >auritanian Entity4M
0paras. ?(;B; of Advisory pinion1
+he meaning of the words Wlegal tiesW has to be sought in the ob)ect and purpose of resolution >"P" 0\\I\1 of the United Nations #eneral Assembly. It appears to the Court that they must be understood as referring to such legal ties as may a=ect the policy to be followed in the decoloni'ation of estern Sahara. +he Court cannot accept the view that the ties in *uestion could be limited to ties established directly with the territory and without reference to the people who may be found in it. At the time of its coloni'ation the territory had a sparse population that for the most part consisted of nomadic tribes the members of which traversed the desert on more or less regular routes, sometimes reaching as far as southern 7orocco or regions of present( day 7auritania Algeria or other States. +hese tribes were of the Islamic faith.
7orocco 0paragraphs PQ(;"P of the Advisory pinion1 presented its claim to legal ties with estern Sahara as a claim to ties of sovereignty on the ground of an alleged immemorial possession of the territory and an uninterrupted eercise of authority. In the view of the Court, however, what must be of decisive importance in determining its answer to [uestion II must be evidence directly relating to e=ective display of authority in estern Sahara at the time of its coloni'ation by Spain and in the period immediately preceding. 7orocco re*uests that the Court should tae account of the special structure of the 7oroccan State. +hat State was founded on the common religious bond of Islam and on the allegiance of various tribes to the Sultan, through their caids or sheis, rather than on the notion of territory. It consisted partly of what was called the 3led 7ah'en, areas actually sub)ect to the Sultan, and partly of what was called the 3led Siba, areas in which the tribes were not submissive to him6 at the relevant period, the areas immediately to the north of estern Sahara lay within the 3led Siba.
As evidence of its display of sovereignty in estern Sahara, 7orocco invoed alleged acts of
31
internal display of 7oroccan authority, consisting principally of evidence said to show the allegiance of Saharan caids to the Sultan, including dahirs and other documents concerning the appointment of caids, the alleged imposition of Toranic and other taes, and acts of military resistance to foreign penetration of the territory. 7orocco also relied on certain international acts said to constitute recognition by other States of its sovereignty over the whole or part of estern Sahara, including (a) certain treaties concluded with Spain, the United States and #reat 3ritain and Spain between ;B and ;?B;, provisions of which dealt inter alia with the safety of persons shipwreced on the coast of ad Noun or its vicinity, 0b1 certain bilateral treaties of the late nineteenth and early twentieth centuries whereby #reat 3ritain, Spain, %rance and #ermany were said to have recogni'ed that 7oroccan sovereignty etended as far south as Cape 3o)ador or the boundary of the Gio de ro.
-aving considered this evidence and the observations of the other States which too part in the proceedings, the Court &nds that neither the internal nor the international acts relied upon by 7orocco indicate the eistence at the relevant period of either the eistence or the international recognition of legal ties of territorial sovereignty between estern Sahara and the 7oroccan State. 4ven taing account of the speci&c structure of that State, they do not show that 7orocco displayed any e=ective and eclusive State activity in estern Sahara. +hey do, however, provide indications that a legal tie of allegiance eisted at the relevant period between the Sultan and some, but only some, of the nomadic peoples of the territory, through +ena caids of the Noun region, and they show that the Sultan displayed, and was recogni'ed by other States to possess, some authority or inMuence with respect to those tribes.
+he term W7auritanian entityW 0paragraphs ;>P( ;" of the Advisory pinion1 was &rst employed during the session of the #eneral Assembly in ;P at which resolution >"P" 0\\I\1, re*uesting an advisory opinion of the Court, was adopted. It denotes the cultural, geographical and social entity within which the Islamic Gepublic of 7auritania was to be created. According to 7auritania, that entity, at the relevant period, was the 3ilad Shinguitti or Shinguitti country, a distinct human unit, characteri'ed by a common language, way of life, religion and system of laws, featuring two types of political authority5 emirates and tribal groups.
4pressly recogni'ing that these emirates and
tribes did not constitute a State, 7auritania suggested that the concepts of WnationW and of WpeopleW would be the most appropriate to eplain the position of the Shinguitti people at the time of coloni'ation. At that period, according to 7auritania, the 7auritanian entity etended from the Senegal river to the ad Saiet 4l -amra. +he territory at present under Spanish administration and the present territory of the Islamic Gepublic of 7auritania thus together constituted indissociable parts of a single entity and had legal ties with one another.
+he information before the Court discloses that, while there eisted among them many ties of a racial, linguistic, religious, cultural and economic nature, the emirates and many of the tribes in the entity were independent in relation to one another6 they had no common institutions or organs. +he 7auritanian entity therefore did not have the character of a personality or corporate entity distinct from the several emirates or tribes which comprised it. +he Court concludes that at the time of coloni'ation by Spain there did not eist between the territory of estern Sahara and the 7auritanian entity any tie of sovereignty, or of allegiance of tribes, or of simple inclusion in the same legal entity. Nevertheless, the #eneral Assembly does not appear to have so framed [uestion II as to con&ne the *uestion eclusively to those legal ties which imply territorial sovereignty, which would be to disregard the possible relevance of other legal ties to the decoloni'ation process. +he Court considers that, in the relevant period, the nomadic peoples of the Shinguitti country possessed rights, including some rights relating to the lands through which they migrated. +hese rights constituted legal ties between estern Sahara and the 7auritanian entity. +hey were ties which new no frontier between the territories and were vital to the very maintenance of life in the region.
7orocco and 7auritania both laid stress on the overlapping character of the respective legal ties which they claimed estern Sahara to have had with them at the time of coloni'ation 0paragraphs ;>(;BQ of the Advisory pinion1. Although their views appeared to have evolved considerably in that respect, the two States both stated at the end of the proceedings that there was a north appertaining to 7orocco and a south appertaining to 7auritania without any geographical void in between, but with some overlapping as a result of the intersection of nomadic routes. +he Court con&nes itself to noting that this geographical overlapping indicates the di2cul ty of disentangling the various relationships eisting in the estern Sahara region at the time of coloni'ation.
32
Dre(hman email: 3UOS4LL5 [uality Unedited C$s. Call 4d, QP;P(>BP?. W4d saw, and it was good. 4"6 $eEaco O@er(ea( Petroleum @(. Li)'an Ara)ic 3epu)lic, 12 Intl Le*al Mat 41+26
+his speci&c paragraph concerning nationali'ations, disregarding the role of international law, not only was not consented to by the most important estern countries, but caused a number of the developing countries to abstain. ((Gesolution >"Q; 0S(I1 was adopted without a vote by the #eneral Assembly, but the statements made by >? delegates showed clearly and eplicitly what was the position of each main group of countries. +he +ribunal should therefore note that the most important estern countries were opposed to abandoning the compromise solution contained in Gesolution ;?Q> 0\II1.
((+he conditions under which Gesolution >"?; 0\\I\1, proclaiming the Charter of 4conomic Gights and $uties of States, was adopted also show unambiguously that there was no general consensus of the States with respect to the most important provisions and in particular those concerning nationali'ation. -aving been the sub)ect matter of a roll(call vote, the Charter was adopted by ;;? votes to B, with ;Q abstentions. +he analysis of votes on speci&c sections of the Charter is most signi&cant insofar as the present case is concerned. %rom this point of view, paragraph " 0c1 of Article " of the Charter, which limits consideration of the characteristics of compensation to the State and does not refer to international law, was voted by ;Q to ;B, with B abstentions, all of the industriali'ed countries with maret economies having abstained or having voted against it. ?B. +aing into account the various circumstances of the votes with respect to these Gesolutions, this +ribunal must specify the legal scope of the provisions of each of these Gesolutions for the instant case. A &rst general indication of the intent of the drafters of the Charter of 4conomic Gights and $uties of States is a=orded by the discussions which too place within the oring #roup concerning the mandatory force of the future tet. As early as the &rst session of the oring #roup, di=erences of opinion as to the nature of the Charter envisaged gave rise to a very clear division between developed and developing countries. +hus, representatives of Ira*, Sri Lana, 4gypt, Tenya, 7orocco, Nigeria, Zaire, 3ra'il, Chile, #uatemala, 8amaica, 7eico, !eru and Gumania held the view that the draft Charter should be a legal instrument of a binding nature and not merely a declaration of intention.
n the contrary, representatives of developed countries, such as Australia, %rance, %ederal Gepublic of #ermany, Italy, 8apan, United Tingdom and United States epressed doubt that it was advisable, possible or even realistic to mae the rights and duties set forth in a draft Charter binding upon States 0Geport of the oring !arty on its ;st Session, U.N. $oc. +$O3OAC. ;"O; 0;P>1, at B1. +he form of resolution adopted did not provide for the binding application of the tet to those to which it applied, but the problem of the legal validity to be attached to the Charter is not thereby solved. In fact, while it is now possible to recogni'e that resolutions of the United Nations have a certain legal value, this legal value di=ers considerably, depending on the type of resolution and the conditions attached to its adoption and its provisions. 4ven under the assumption that they are resolutions of a declaratory nature, which is the case of the Charter of 4conomic Gights and $uties of States, the legal value is variable. Ambassador Castaneda, who was Chairman of the oring #roup entrusted with the tas of preparing this Charter, admitted that Wit is etremely di2cult to determine with certainty the legal force of declaratory resolutionsW, that it is Wimpossible to lay down a general rule in this respectW, and that Wthe legal value of the declaratory resolutions therefore includes an immense gamut of nuancesW 0WLa aleur 8uridi*ue des Gesolutions des Nations UniesW, ;"P G.C.A.$.I. "Q 0;PQ1, at >;P(>"Q1. As this +ribunal has already indicated, the legal value of the resolutions which are relevant to the present case can be determined on the basis of circumstances under which they were adopted and by analysis of the principles which they state5 ((ith respect to the &rst point, the absence of any binding force of the resolutions of the #eneral Assembly of the United Nations implies that such resolutions must be accepted by the members of the United Nations in order to be legally binding. In this respect, the +ribunal notes that only Gesolution ;?Q> 0\II1 of ; $ecember ;PB" was supported by a ma)ority of 7ember States representing all of the various groups. 3y contrast, the other Gesolutions mentioned above, and in particular those referred to in the Libyan 7emorandum, were supported by a ma)ority of States but not by any of the developed countries with maret economies which carry on the largest part of international trade. ?. 0"1 ith respect to the second point, to wit the appraisal of the legal value on the basis of the principles stated, it appears essential to this +ribunal to distinguish between those provisions stating the eistence of a right on which the
33
generality of the States has epressed agreement and those provisions introducing new principles which were re)ected by certain representative groups of States and having nothing more than a de lege ferenda value only in the eyes of the States which have adopted them6 as far as the others are concerned, the re)ection of these same principles implies that they consider them as being contra legem. ith respect to the former, which proclaim rules recogni'ed by the community of nations, they do not create a custom but con&rm one by formulating it and specifying its scope, thereby maing it possible to determine whether or not one is confronted with a legal rule. As has been noted by Ambassador Castaneda, WJsuch resolutionsK do not create the law6 they have a declaratory nature of noting what does eistW 0;"P G.C.A.$.I. "Q 0;PQ1, at >;1. n the basis of the circumstances of adoption mentioned above and by epressing an opinio )uris communis, Gesolution ;?Q> 0\II1 seems to this +ribunal to reMect the state of customary law eisting in this &eld. Indeed, on the occasion of the vote on a resolution &nding the eistence of a customary rule, the States concerned clearly epress their views. +he consensus by a ma)ority of States belonging to the various representative groups indicates without the slightest doubt universal recognition of the rules therein incorporated, i.e., with respect to nationali'ation and compensation the use of the rules in force in the nationali'ing State, but all this in conformity with international law. ??. hile Gesolution ;?Q> 0\II1 appears to a large etent as the epression of a real general will, this is not at all the case with respect to the other Gesolutions mentioned above, which has been demonstrated previously by analysis of the circumstances of adoption. In particular, as regards the Charter of 4conomic Gights and $uties of States, several factors contribute to denying legal value to those provisions of the document which are of interest in the instant case. ((In the &rst place, Article " of this Charter must be analy'ed as a political rather than as a legal declaration concerned with the ideological strategy of development and, as such, supported only by non(industriali'ed States.
((In the second place, this +ribunal notes that in the draft submitted by the #roup of to the Second Commission 0U.N. $oc AOC."OL. ;>?B 0;P1, at "1, the #eneral Assembly was invited to adopt the Charter Was a &rst measure of codi&cation and progressive developmentW within the &eld of the international law of development. -owever, because of the opposition of several States, this description was deleted from the tet submitted to the vote of the Assembly. +his important modi&cation led !rofessor irally to
declare5
WIt is therefore clear that the Charter is not a &rst step to codi&cation and progressive development of international law, within the meaning of Article ;>, para. ; 0a1 of the Charter of the United Nations, that is to say an instrument purporting to formulate in writing the rules of customary law and intended to better ad)ust its content to the re*uirements of international relations. +he persisting di=erence of opinions in respect to some of its articles prevented reaching this goal and it is healthy that people have become aware of this.W 0WLa Charte des $roits et $evoirs 4conomi*ues des 4tats. Notes de LectureW, "Q A.%.$.I. 0;P1, at P.1 +he absence of any connection between the procedure of compensation and international law and the sub)ection of this procedure solely to municipal law cannot be regarded by this +ribunal ecept as a de lege ferenda formulation, which even appears contra legem in the eyes of many developed countries. Similarly, several developing countries, although having voted favorably on the Charter of 4conomic Gights and $uties of States as a whole, in eplaining their votes regretted the absence of any reference to international law. ?P. Such an attitude is further reinforced by an eamination of the general practice of relations between States with respect to investments. +his practice is in conformity, not with the provisions of Article " 0c1 of the above(mentioned Charter conferring eclusive )urisdiction on domestic legislation and courts, but with the eception stated at the end of this paragraph. +hus a great many investment agreements entered into between industrial States or their nationals, on the one hand, and developing countries, on the other, state, in an ob)ective way, the standards of compensation and further provide, in case of dispute regarding the level of such compensation, the possibility of resorting to an international tribunal. In this respect, it is particularly signi&cant in the eyes of this +ribunal that no fewer than B States, as of >; ctober ;P, had rati&ed the Convention on the Settlement of Investment $isputes between States and Nationals of other States, dated 7arch ;?, ;PB. PQ. +he argument of the Libyan #overnment, based on the relevant resolutions enacted by the #eneral Assembly of the United Nations, that any dispute relating to nationali'ation or its conse*uences should be decided in conformity with the provisions of the municipal law of the nationali'ing State and only in its courts, is also negated by a complete analysis of the whole tet of the Charter of 4conomic Gights and $uties of States.
34
%rom this point of view, even though Article " of the Charter does not eplicitly refer to international law, this +ribunal concludes that the provisions referred to in this Article do not escape all norms of international law. Article >>, paragraph ", of this Gesolution states as follows5 W". In their interpretation and application, the provisions of the present Charter are interrelated and each provision should be construed in the contet of the other provisionsW. Now, among the fundamental elements of international economic relations *uoted in the Charter, principle 0)1 is headed as follows5 W%ul&llment in good faith of international obligationsW. Analy'ing the scope of these various provisions, Ambassador Castaneda, who chaired the oring #roup charged with drawing up the Charter of 4conomic Gights and $uties of States, formally stated that the principle of performance in good faith of international obligations laid down in Chapter I0)1 of the Charter applies to all matters governed by it, including, in particular, matters referred to in Article ". %ollowing his analysis, this particularly competent and eminent scholar concluded as follows5 W+he Charter accepts that international law may operate as a factor limiting the freedom of the State should foreign interests be a=ected, even though Article " does not state this eplicitly. +his stems legally from the provisions included in other Articles of the Charter which should be interpreted and applied )ointly with those of Article ".W 0WLa Charte des $roits et $evoirs 4conomi*ues des 4tats. Note sur son !rocessus dV4laborationW, "Q A.%.$.I. >; 0;P1, at .1
P;. +herefore, one should note that the principle of good faith, which had already been mentioned in Gesolution ;?Q> 0\II1, has an important place even in Gesolution >"?; 0\\I\1 called W+he Charter of 4conomic Gights and $uties of StatesW. ". ;nilateral Act( of tate( u)i(we(i, ;nilateral Act( of tate( /hortcuts: UA E Unilateral Act U$ E Unilateral $eclaration I. IN$3O=;C$ION hy are UAs impt in the intl community/ 3ecauseF ; $espite limitations by commands of intl law, there still eists a domain where States have eclusive competence, in which they are free to act according to their natl policies D arrive unilaterally at decisions which a=ect their relations with other States6 " Customary D treaty rules provide a place
for unilateral acts in various legal processes D authori'e such acts in di=. situations Scope of Subis'ewsi UAs that create, modify or terminate intl legal relationships, regime or status As to degree of autonomy possessed by UAs5
( (
UA whose &nal aim is to bring into eistence an act that is not unilateral 0i.e., rati&cation of a treaty1 UA whose &nal aim is to produce legal e=ects that are free of any lin or relations to a legal transaction in which another StateOs participates
III. $I%%4G4N+ 7ANI%4S+A+INS % UNILA+4GAL A++I+U$4S &' ord( ( usually in the nature of statements or declarations ( made publicly nown or communicated to a speci&c addressee ( may be oral or in writing &' Conduct Gepresentatives of States may not say or write anything, but they may display an attitude by various inds of actions E initiating, reacting to activity of another state or remaining passive. In certain situations, inaction is evidence of the conduct of a State E silence, absence of reaction,
35
ac*uiescence will occasionally have some legal conse*uences. IV. OM% CA$%GO3I% OD ;NILA$%3AL AC$ 1. +nilateral Act a' an ,n'tr)ent A. =eclaration ( can have any content6 not limited to stating something already eisting, but can create a new state of things ( may be oral or written6 if oral, usually recorded into writing ( may concern all States or may have speci&c addresseeOs Some eamples of U$s with legal e=ects 0see article for more eamples15 ( +he Ihlen $eclaration Norwegian 7inister for %oreign A=airs Ihlen
H !urpose5 +o bring its contents to the o2cial nowledge of the addressee H 4=ect5 Addresses cannot invoe ignorance of what has been noti&ed, but may refuse recognition of the noti&ed fact etc. Some eamples of Noti&cation 0see article for more eamples15 ( Austria notifying all states as to its permanent neutrality ( Instances where general or treaty law impose a duty of noti&cation state of war to be noti&ed to neutral powers, noti&cation of declaration of naval blocade etc. ". Unilateral Act from the Standpoint of its Content D 4=ect A. 3eco*nition ( most impt unilateral legal act, &nds wide application in view of various situations calling for recognition 0birth of States, non( constitutional change of govts etc.1 ( an action of those organs which represent State in its eternal relations ( vs. cogni'ance 0def1 an act of another domestic organ, which consists in taing note of a situation calling for recognition and in allowing conse*uences to follow therefrom within the domestic sphere of competence of that organ not binding on eecutive D is not recognition in intl legal sense ( ac*uiescence D silence may lead to implied recognition
H 4=ect5 Gecogni'ing State cannot contest what it has recogni'ed. &. Prote(t H $eftn5 an act whereby the State epresses its opposition to a situation, claim, or generally, a state of things and the ensuing legal conse*uences. H !urpose5 Jif anticipatory protestK +o inMuence the conduct of the addressee H 4=ect5 hat is protested is brought into *uestion in the relations bet. the States concerned. !rotest involves non(recognition but mere non( recognition does not automatically amount to a protest. !rotest must be eplicit, maintained, and should manifest itself in an active attitude. +here must be actual assertion of the position that &nds epression in the protest. A protest that is isolated D is not repeated may lose its original e=ect. Ge5 4=ect of silence or failure to react No general rule. +here are some situations that call for a reaction if some legal conse*uence is to be avoided, while there are other situations where silence does not pre)udge anything. C. Promi(e H $eftn5 an act whereby the State maing it, binds itself unilaterally to follow a certain course of conduct. H Ge*uirement5 an act whose e=ect does not depend on the attitude of another StateOs A promise that is made in response to a demand by another States, or made to secure its acceptance by another State, or one which is made conditional upon a reciprocal promise by another State is not a unilateral promise. =. ai@er H $eftn5 an act whereby the State gives up its claim, right, competence, or power which conse*uently cease to eist. H 4=ect5 nce made, is irrevocable. aiver produces its e=ect solely by virtue of the decision of the renouncing State. -ence, if a waiver is stipulated in a treaty, it loses its unilateral character because its e=ect depends on the treaty
36
which result from coercion are void. > be done by organ that has the power to spea in the name or the State, generally or in a particular &eld or matter, on the plane of IL 0Competence1. Authority may be givenF ( epressly ( by general law, which considers various State organs as competent i.e., heads of States, ministers for foreign a=airs etc. #en Gule5 +he addressee of the act cannot be epected to in*uire to deeply into matters of internal powers D domestic law whenever circumstances point to the competence of the organ in a particular area. +he addressee can invoe the principle of good faith in considering the organ as authori'ed. 4ception5 here the violation of the domestic law was manifest and concerned a rule of fundamental importance. VI.&IN=ING DO3C% OD ;NILA$%3AL AC$ Gule5 +he intention of the State is decisive the State is bound by its unilateral act because such has been its intent. Speci&c rules5 If act is based on customary or treaty rule, it is in that rule that one must loo for the legal e=ects of the act, including its binding force. If act is not based on customary or treaty rule, the State is granted more latitude. 0/1 !rinciple of #ood %aith H $eftn5 Fimposes upon the State the duty to conform to its intention and to abide by the unilateral act, though the act remains its own creation H 4=ect5 Fgoverns e=ects of the act the moment the act has been made public or has been communicated to interested StateOs. State cannot anymore invoe its freedom of conduct. +he foundation of an act
H Ge*uirement5 act must be nown to the State E act either notorious or noti&ed to the State III. 7$I%ICA+IN D G4CA3ILI+ % UNILA+4GAL AC+S #en Gule5 +he State can modify or revoe its unilateral act at will and at any time. +his capacity is presumed and need not be reserved. 4ception5 hen UA is governed by general IL or treatiesF ( 4ample of UA governed by general IL5 recognition de )ure of a State or govt once granted, cannot be withdrawn ( hen governed by treaties5 revocability is governed by the relevant treaties which may impose some limitations States en)oy more latitude in the modi&cation D revocation of acts not governed by customary or treaty rulesF #en Gule5 !rinciple of good faith speas in favor of maintenance of the act if another State relies upon the act in its relations with the act
Australia claims5 %rench tests caused some fall out of radioactive matter to be deposited in Australian territory. %rance contends5 Gadioactive matter so in&nitesimal and negligible that it does not constitute any danger to the health of Australians. In 7ay ;P>, Australia instituted proceedings against %rance in the IC8, asing the Court to5 ad)udge D declare that the tests in the South !aci&c are not consistent with applicable rules of IL6 and order %rance not to carry out further tests %rance, in letter, said the IC8 did not have )urisdiction D re*uested that the case be removed from the list of the Court. n 8une "", ;P>, the IC8 issued an order
37
indicating interim measures E that %rance should avoid further nuclear tests that cause fall out in Australian territory. Australia pointed out that even after this order, %rance continued to perform subse*uent series of tests i n the !aci&c !rior to and subse*uent to the oral proceedings before the IC8, several authoritative statements were made by the %rench government concerning its intention as to future nuclear testing in the South !aci&c5 a. Communi*ue issued by the 2ce of the !resident of %rance, copy transmitted to Australia 08une ?, ;P1 9Fin view of the stage reached in carrying out the %rench nuclear defence programme, %rance will be in a position to pass on to the stage of underground eplosions as soon as the series of tests planned for this summer is completed: b. Note from the %rench 4mbassy in ellington to New Zealand 7inistry of %oreign A=airs 08une ;Q, ;P1 9+hus the atmospheric tests which are soon to be carried out will , in the normal course of events, be the last of this type.: c. Letter from the !resident of %rance to the !rime 7inister of New Zealand 08uly ;, ;P1 d. !ress Conference by the !resident of %rance 08uly ", ;P1 9FI had myself made it clear that this round of atmospheric tests would be the last, and so the members of the #ovt were completely informed of our intentions in this respectF: e. Speech made by the %rench 7inister for %oreign A=airs beore the UN #en. Assembly 0Sept.", ;P1 f. +elevision interview and press conference by the 7inister of $efense of %rance 0Aug ;; and ct ;;, ;P1 I((ue: N a dispute eists so as to re*uire )udgment from the IC8 ( None 9eld 0by vote of P(B15 ;. +he original and ultimate ob)ective of Australia is to obtain a termination of the nuclear tests. 0]>"(;1 ". %rance, by various public statements made in ;P, has announced its intention to cease the conduct of such tests, following the completion of the ;P series of atmospheric tests. 0] >"(;1 >. +he ob)ective of Australia has in e=ect been accomplished, inasmuch as %rance has undertaen the obligation to hold no further nuclear tests in the South !aci&c. 0]("1 . +he dispute has thus disappeared and there is nothing upon which the Court can give )udgment. 0](P1
Other ar*ument(5 ;. A )udgment would reinforce the position of Australia in a2rming the obligation of %rance. IC85 %rance has assumed an obligationFno further )udicial action is re*uired. Any further &nding would have no raison d? says the Court can eercise its )urisdiction in contentious proceedings only when a dispute genuinely eists bet. parties. In refraining from further action in this case, the Court is only acting in accordance with the proper interpretation of its )udicial function. Needless continuance of litigation is an obstacle to harmony.
Note5 Same ruling in Nuclear +est Case between New Zealand and %rance. Important para*raph( (ummaried:
] " +he *uestion that is essentially preliminary is the eistence of a dispute. +he resolution of this *uestion eerts a decisive inMuence on the continuation of the proceedings. ] > Unilateral acts may have the e=ect of creating legal obligations. +he intention of the State to become bound according to the terms of the declaration, confers on the declaration the character of a legal undertaing, the State thenceforth legally re*uired to follow a course of conduct consistent with the declaration. +he undertaing, if made publicly and with intent to be bound, is binding. +here is nothing else re*uired for the declaration to tae e=ect. ] Intention should be ascertained by interpretation of the act. ] %orm is not decisive. +he only relevant *uestion is whether the language employed reveals a clear intention. ] B +he binding character of an intl obligation assumed by unilateral declarations is based on good faith. +hus, interested States may tae cogni'ance of unilateral declarations and place con&dence in them, and are entitled to re*uire that the obligation thus created be respected. #. Dal >An Ar*ument to %Epand the $raditional ource( of International Law! with pecial 3eference to the Dact( of the outh e(t Africa ca(e( 41+2H6 I. %al? 0;1( multilateral treaties should be liberally interpreted to include wOin its sphere the resolutions passed by the UN #A, especially those made on a continuous basis and by near unanimous vote. Gatio5 UN is created by a treaty, thus its acts should liewise f all under this category.
II. Contra(argument5 +he #A is without any powers to mae International Laws
38
III. %actual bacground Southwest Africa 0SA1, now Namibia during the 7andela days, was ruled by the white administration by virtue of a 7andate handed to it by the League of Nations and later on carried over by the UN. ne provision of this 7andate states that the SA gov? is not an ehaustive list of the sources comprising the totality of the IL. It is rather a directive to the IC8 to decide disputes before it in the light of these sources. +he following are his arguments for the inclusion of the UN #A Gesolution within Art >? enumeration5 Art >? 0a1 E Int?0b1 EInt
undoubtedly provide rich source of evidence of customary rule or norm v apartheid. (Contra5 ne of the arguments relied upon by SA was the dicta contained in the %isheries and Asylum Cases namely that a State is not deemed bound or eempt from the binding e=ects of any customary rule if it had persistently and actively made nown its ob)ection v the rule even at its inception. (%als?0c1 #eneral !rinciples of Int
39
Art >? as authori'ed by Chapter of the UN Charter and binding on all members because the UN SC is supposed to act on behalf of the whole membership. UN #A Gesolutions E these could either be IL or mere recommendation depending on whether they are construed under the ienna Convention or the Charter. C( Art> in relation to Art >; par ; provides that agreements and practices of parties form part of the contet. +he UN #A declaration of -uman Gights could fall under this category. UN Charter( under Art ;Q, UN #A Gesolutions are mere recommendations, thus not NIL. +he status therefore of any UN #A Gesolutions would really depend on the framewor 0to suit one
$I7INU+I4 S+A+4S not typical full sub)ects of IL dependent on to a greater or lesser etent on a third state, esp. for the conduct of their foreign relations not members of UN while possessing a de&ned territory, gov
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-
rules of IL and thus becomes sub)ect of IL. !rotectorates5 similar to a self(governing colony 0e. 3hutan, Siim1 Usually retains or subse*uently ac*uired a large measure of independence in the management of their internal a=airs and to some etent, foreign relations. +he sub)ects of protectoratesOother forms of non(fully independent states is increasingly becoming of a merely academic signi&cance. 7any have gained independence. UN proclaimed the need to bring speedy end to colonialism.
+GUS+ +4GGI+GI4S [uestion of Int
40
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insurgents. In practice, other states may and do conduct their relations wO the insurgents in accordance with the rules of IL governing neutrality and belligerency thus maing the insurgents sub)ects of some rules of IL and thus sub)ects of IL.
IN$II$UALS5 AG4 +-4 SU384C+S % IL/ di=erent views5 sub)ects of IL sub)ects of IL but that sub)ectivity is not possible without intervention of state of that individual failure to distinguish bet recognition of rights enuring to the bene&t of the individual and enforceability of these rights incapacity to tae steps to enforce his own rights does not signify that he is not sub)ect of IL 0analogy to infants who have rights1 !resent view #enerally speaing, individuals lac the procedural capacity to espouse their claims before international tribunals and such claims can be entertained only at the instance of the state of which the individual is a national or in certain circumstances by the international institution of which he is a servant. Characteristic trend of modern development of IL is the granting of procedural capacity to individuals for the protection of certain well( de&ned rights. Chen*, Introduction to u)ect( of International Law I. International Legal !ersonality • Sub)ects of International Law, also nown as international persons, are entities that are endowed with international legal personality, which is the capacity to bear rights and duties under the international legal system. • +hey are the direct addressees of the rules of international law. +hus, ;1 Gights and duties have to be those under IL 4ntities en)oying legal personality in one or even several systems of municipal law do not necessarily en)oy legal personality in IL, and vice versa. In the ,eparation for nuries /u0ered in the /erice of the nited 8ations case, the IC8 had to &nd indices of the intention of member states to confer legal personality on the UN. 3ased on the UN Charter, they concluded that it was the necessary intendment of such states to do so. 4istence or absence of legal personality is based on concrete indices of actual possession of rights and duties
under IL. "1 Legal rights and duties, not mere bene&ts and burdens >1 Sub)ect must be the direct and intended addressee of the rights and duties Gules are often stated in such a manner that they transpose the rights and duties from the sub)ects of the law to the ob)ects concerned. hat may appear to be rights belonging to some inanimate ob)ects under rules of IL are in reality rights belonging to 9States !arties: to which these ob)ects internationally belong, and not rights of these inanimate ob)ects themselves 0e.g. right of innocent passage under Art ; of the UNCLS1. II. Ac*uisition and Loss of International Legal !ersonality international legal system re*uires a • An minimum of two parties, who ac*uire international legal personality through mutual recognition of each other
41
>1
•
rgani'ed government that should function at all times 1 Capacity to enter into treaties E a latent capacity which depends on the acceptance of other States !roblem5 no speci&c organ that determines by a binding decision N an entity meets the re*uirements of statehood
II. 4=ect of 7embership in the UN • •
Admission to the UN ^ recognition of statehood Art , par ; of UN Charter5 membership in the UN is open 9to all peace(loving States which accept the obligations contained in the present Charter and, in the )udgment of the rgani'ation, are able and willing to carry out these obligations.: Statehood is the basic condition to which the other criteria are attached. 3roms submits that, based on UN practice, statehood is a condition sine *ua non to admission. It is not by itself, however, a guarantee of admission.
%actory Surplus SaleR 4verything must goR !leaseR Contact AndroVs %actory of 3ad Tarma, QP;P(B>;B. (by ato
III. Gecognition of States term signi&es the decision of the • +he government of an already eisting state to recogni'e another entity as a state. • +here is no principle of international law which would oblige a State to grant recognition to a new entity even if it would possess the criteria which are normally re*uired. I. Classi&cation of States ;1 %ederal states and confederations • +he %ederal Union represents the entity as a whole from confederations5 the • $istinguished power of central government does not etend to the citi'ens of entities forming a confederation6 States forming a confederation do not lose their internal and eternal sovereignty "1 !ersonal Unions and Geal Unions • -ave historical, rather than actual, importance !ersonal Union E union between • two States under the same ruler6 States remain independent Geal Union E based on an • agreement between two monarchies which agree to have the same hereditary ruler >1 !rotectorates • Status created by a wea state entering into
treaty with another State for protection. > types5 protected state, international protectorates, colonial protectorates 1 +he -oly See • Italy recogni'ed the sovereignty of the -oly See under the name of the atican in the Lateran +reaty. • +he territory of the atican was declared to be neutral and inviolable in all circumstances. member of various international • A organi'ations, but has never applied for membership in the UN. 1 !ermanently Neutral States • A state that has bound itself to remain neutral in any wars between other States. • Not allowed to enter into such military alliances that could )eopardi'e its neutrality should a state of war brea out. • Status of permanent neutrality is always based on the consent of the State in *uestion. B1 7icro(States • Characteristic feature is minimal territory 0e.g. Liechtenstein, 7onaco, San 7arino •
. +he $octrine of %undamental Gights and $uties • !roposed by natural rights theorists5 right to independence, local )urisdiction, self( defence in against an armed attacFduty to respect human rights, pacta sunt servanda, etc. • Legal value5 has made States more willing to accept the paramountcy of international legal rules. It has, however, been used to limit the sovereignty of States 0e.g. loser States in the !eace +reaties of !aris concluded at the end of II1. • $octrine cannot be accepted because fundamental rights do not have corresponding duties. Instead, legal conclusions as to the nature of the relationship between the members of the international community will have to be drawn on the basis of an in casu eamination taing the special circumstances into account. • Article made special mention of the principle of peaceful cooperation, which evolved into the $eclaration on !rinciples of International Law Concerning %riendly Gelations among States 0please refer to UN Charter1. I. +he !rinciple of Sovereign 4*uality of States • Gecogni'ed in the second paragraph of the UN Charter
42
statement about the e*uality of States, because there is no mention of the corresponding obligations of States. It nevertheless a2rms one of the ideals of the UN. • +he operative part of the Charter contains several provisions on e*uality of states5 Art ", par ; on sovereign e*uality of members, which is a2rmed by Art ? on the principle of trusteeship based on the principle of sovereign e*uality. • 4lements of sovereign e*uality, according to the report of Committee IO;5 ;1 States are )uridically e*ual No speci&c interpretation of 9)uridically e*ual: "1 4ach State en)oys the right inherent in full sovereignty >1 +he personality of the State is respected, as well as its territorial integrity and political independence 1 +he State should, under international order, comply faithfully with its international duties and obligations • Sovereign e*uality may be divided into sovereignty and e*uality. +he former is intended to protect members from arbitrary treatment on the part of the UN itself or other members. ;1 Sovereign e*uality is also recogni'ed in the $eclaration on !rinciples of International Law Concerning %riendly Gelations among States, which adds the 9right to freely choose and develop its political, social, economic, and cultural systems: to the 4lements supra . Lach(, $he =e@elopment And General $rend( Of International Law In Our $ime 1. +he State was, from the outset, a rationali'ed abstraction uniting three well(nown, determinative but not ehaustive, basic and constitutive elements5 the eercise of power within a de&ned territory on a de&ned mass of population. 2. $espite the changes of the State
answerK 0i.e. -ow independent are States/16 there must be obviously be a sense in which soereinty is subordinate to international law$ in which the sub)ect of international law is also sub)ect to international law. @. +he idea the State sovereignty is absolute is anachronistic. +he recent evolution of international law and the direction of its development indicate " trends which complement each other5 ;1 the increased epansion of rights of individual States the greater mutual sharing of rights 0see pages >(B1. C. States applies both domestic and international law, but can it act at the epense of the other States/ Logically, No 0but if the /tate is a superpower or headed by a madman or bothO 1. ith so many States neighboring each other, it becomes easy to violate the rights of other States. +hus, it becomes clear of the necessity for States to conclude treaties, and by doing so accept obligations and restrictions on the eercise of their sovereignty and ac*uire reciprocal rights from other parties to the treaties 0 which most$ if not all$ /tates do1. +his is not only in the State
>odes of 5cuirin Territory
43
occupation E means of ac*uiring territory not already forming part of the dominions of any state
in principle, area to which the l egal e=ects of an occupation etend should be simply the area e=ectively occupied
since actual, physical occupation is impracticable, etension of area allowed such that a settlement is entitled, not only to the lands actually inhabited and brought under its immediate control, but to all those which may be needed f or its security, and to the territory which may fairly be considered to be attendant upon them
ccupation must be e=ective thus mere discovery of an unappropriated territory is not su2cient to create a title
Some weight given to mere discovery and is regarded as giving an inchoate title, a temporary right to eclude other states until the state of the discoverer has had a reasonable time within which to mae an e=ective occupation
". !rescription E where long possession may operate either to con&rm the eistence of a title the precise origin of which cannot be shown or to etinguish the prior title of another sovereign
!eaceful and continuous possession raises a presumption that the original assumption of sovereignty was in conformity with IL and has the e=ect of consolidating the claimant
>. cession E mode of transferring the title to territory from one state to another
Gesults sometimes from a war or from peaceful negotiations and may either be gratuitous or for some consideration
. accretion E addition of new territory to the eisting territory of a state by operation of nature, as by the drying up of a river or the recession of the sea
$ependent +erritories 0not important since most are moot with the respect to contemporary IL1
*olonies and colonial protectorates
Colonies E lands ac*uired by treaty of cession, anneation, prescription, or con*uest, which become dependent possessions of the ac*uiring state without being brought constitutionally under the state
Colonial protectorate E relation between a state and a native community not su2ciently civili'ed to be regarded as a state
Trust Territories
+erritories surrendered by #ermany and +urey to the !rincipal Allied and Associate !owers which were inhabited by peoples not yet able to stand by themselves
ell(being of these peoples forms a sacred trust of civili'ation6 and this trust was to be carried out by placing them under the tutelage of di=erent members of the League of Nations
eases: diplomatic device for rendering a permanent loss of territory more palatable to the dispossessed state by avoiding any mention of anneation and holding out the hope of eventual recovery
/eritudes
. con*uest E ac*uisition of the territory of an enemy by its complete and &nal sub)ugation and a declaration of the con*uering state
Constitutionally, inhabitants of a protectorate do not tae the nationality of the protecting state
In Goman law, it is a right en)oyed by the owner of one piece of land, the praedium dominans, not in his personal capacity, but in his capacity as owner of the land, over land which belongs to another, the praedium servinas
44
A right in rem, eercisable not only vs. a particular owner of the servient tenement by vs. any successor to him in title, and not only by a particular owner of the dominant tenement but also by his successors title +est of an international servitude5 right should be one that will survive a change in the sovereignty of either of the tw o states concerned in the transaction No real evidence that any such right eists in the international system
>aritime Territory
sovereignty of a state etends beyond its land territory to certain areas of sea which form part of its domain either as internal waters or as territorial sea
internal waters E state is entitled, which i n certain limits, to treat ports, estuaries, bays and other enclosed areas of the sea as sub)ect to its sovereignty
problem before whether a state was entitled to claim all the waters of its bays as internal waters or whether in bays, as on the open coast, it was to be limited to a belt of territorial sea6 and, if bays were to be claimable as internal waters, there was the further problem of what waters could be said to fall within the concept of a bay
#eneva convention of ;P? on the territorial Sea and Contiguous Zone E if th e distance between the low(water mars of the natural entrance points of a bay does not eceed " miles, a closing line may be drawn and the waters so enclosed are to be considered as internal waters6 if however, the natural entrance points are than " miles apart, a straight baseline of " miles may be drawn inside the bay in such a way as to enclose the maimum area of water that is possible with a li ne of that length
territorial sea E state mile limit has traditionally been represented as simply the rough e*uivalent of the maimum range of cannon in the ;> th century
contiguous 'one E 'ones of high sea contiguous to the territorial sea
Continental Shelf5 area from the seabed shelves downward to the ocean depths
0if you have time, try to read the UNCLS for concrete information on 7AGI+I74 +4GGI+GI4S and the CN+IN4N+IAL S-4L%1 Ca(e(: 416 Min-uier( and %creho( ca(e 41+5#6
+he 7in*uiers and 4crehos case was submitted to the Court by virtue of a Special Agreement concluded between the United Tingdom and %rance on $ecember "Pth, ;PQ. In a unanimous decision, the Court found that sovereignty over the islets and rocs of the 4crehos and the 7in*uiers groups, in so far as these islets and rocs are capable of appropriation, belongs to the United Tingdom.
In its 8udgment, the Court began by de&ning the tas laid before it by the !arties. +he two groups of islets in *uestion lie between the 3ritish Channel Island of 8ersey and the coast of %rance. +he 4crehos lie >.P sea miles from the former and B.B sea miles from the latter. +he 7in*uiers group lie P.? sea miles from 8ersey and ;B." sea miles from the %rench mainland and ? miles away from the Chausey islands which belong to %rance. Under the Special Agreement, the Court was ased to determine which of the !arties had produced the more convincing proof of title to these groups and any possibility of applying to them the status of terra nullius was set aside. In addition, the *uestion of burden of proof was reserved5 each !arty therefore had to prove its alleged title and the facts upon which it relied. %inally, when the Special Agreement refers to islets and rocs, in so far as they are capable of appropriation, it must be considered that these terms relate to islets and rocs physically capable of appropriation. +he Court did not have to determine in detail the facts relating to the particular units of the two groups.
+he Court then eamined the titles invoed by both !arties. +he United Tingdom #overnment derives its title from the con*uest of 4ngland by illiam $ue of Normandy in ;QBB. +he union thus established between 4ngland and the $uchy of Normandy, including the Channel Islands, lasted until ;"Q, when !hilip Augustus of %rance con*uered continental Normandy. 3ut, his attempts to occupy also the islands having been unsuccessful, the United Tingdom submitted the view that all of the Channel Islands, including the 4crehos and the 7in*uiers, remained united with 4ngland and that this situation of fact was placed on a legal basis by subse*uent treaties concluded
45
between the two countries. +he %rench #overnment contended for its part that, after ;"Q, the Ting of %rance held the 7in*uiers and the 4crehos, together with some other islands close to the Continent and referred to the same medieval treaties as those invoed by the United Tingdom.
+he Court found that none of those treaties 0+reaty of !aris of ;"P, +reaty of Calais of ;>BQ, +reaty of +royes of ;"Q1 speci&ed which islands were held by the Ting of 4ngland or by the Ting of %rance. +here are, however, other ancient documents which provide some indications as to the possession of the islets in dispute. +he United Tingdom relied on them to show that the Channel Islands were considered as an entity and, since the more important islands were held by 4ngland, this country also possessed the groups in dispute. %or the Court, there appears to be a strong presumption in favour of this view, without it being possible however, to draw any de&nitive conclusion as to the sovereignty over the groups, since this *uestion must ultimately depend on the evidence which relates directly to possession.
%or its part, the %rench #overnment saw a presumption in favour of %rench sovereignty in the feudal lin between the Ting of %rance, overlord of the whole of Normandy, and the Ting of 4ngland, his vassal for these territories. In this connection, it relies on a 8udgment of the Court of %rance of ;"Q", which condemned 8ohn Lacland to forfeit all the lands which he held in fee of the Ting of %rance, including the whole of Normandy. 3ut the United Tingdom #overnment contends that the feudal title of the %rench Tings in respect of Normandy was only nominal. It denies that the Channel Islands were received in fee of the Ting of %rance by the $ue of Normandy, and contests the validity, and even the eistence, of the )udgment of ;"Q". ithout solving these historical controversies, the Court considered it su2cient to state that the legal e=ects attached to the dismemberment of the $uchy of Normandy in ;"Q, when Normandy was occupied by the %rench, have been superseded by the numerous events which occurred in the following centuries. In the opinion of the Court, what is of decisive importance is not indirect presumptions based on matters in the 7iddle Ages, but the evidence which relates directly to the possession of the groups.
3efore considering this evidence, the Court &rst eamined certain *uestions concerning both groups. +he %rench #overnment contended that a Convention on &shery, concluded in ;?>P, although it did not settle the *uestion of
sovereignty, a=ected however that *uestion. It is said that the groups in dispute were included in the common &shery 'one created by the Convention. It is said also that the conclusion of this Convention precludes the !arties from relying on subse*uent acts involving a manifestation of sovereignty. +he Court was unable to accept these contentions because the Convention dealt with the waters only, and not the common user of the territory of the islets. In the special circumstances of the case, and in view of the date at which a dispute really arose between the two #overnments about these groups, the Court shall consider all the acts of the !arties, unless any measure was taen with a view to improving the legal position of the !arty concerned.
+he Court then eamined the situation of each group. ith regard to the Ecrehos in particular, and on the basis of various medieval documents, it held the view that the Ting of 4ngland eercised his )ustice and levied his rights in these islets. +hose documents also show that there was at that time a close relationship between the 4crehos and 8ersey.
%rom the beginning of the nineteenth century, the connection became closer again, because of the growing importance of oyster &shery. +he Court attached probative value to various acts relating to the eercise by 8ersey of )urisdiction and local administration and to legislation, such as criminal proceedings concerning the 4crehos, the levying of taes on habitable houses or huts built in the islets since ;??P, the registration in 8ersey of contracts dealing with real estate on the 4crehos.
+he %rench #overnment invoed the fact that in ;BB the States of 8ersey prohibited &shing at the 4crehos and the Chausey and restricted visits to the 4crehos in ;BP". It mentioned also diplomatic echanges between the two #overnments, in the beginning of the nineteenth century, to which were attached charts on which part of the 4crehos at least was mared outside 8ersey waters and treated as res nullius. In a note to the %oreign 2ce of $ecember ;th, ;??B, the %rench #overnment claimed for the &rst time sovereignty over the 4crehos.
Appraising the relative strength of the opposing claims in the light of these facts, the Court found that sovereignty over the 4crehos belonged to the United Tingdom.
ith regard to the >inuiers$ the Court noted that
46
in ;B;, ;B;B, ;B; and ;BP", the 7anorial court of the &ef of Noirmont in 8ersey eercised its )urisdiction in the case of wrecs found at the 7in*uiers, because of the territorial character of that )urisdiction.
ther evidence concerning the end of the eighteenth century, the nineteenth and the twentieth centuries concerned in*uests on corpses found at the 7in*uiers, the erection on the islets of habitable houses or huts by persons from 8ersey who paid property taes on that account, the registration in 8ersey of contracts of sale relating to real property in the 7in*uiers. +hese various facts show that 8ersey authorities have, in several ways, eercised ordinary local administration in respect of the 7in*uiers during a long period of time and that, for a considerable part of the nineteenth century and the twentieth century, 3ritish authorities have eercised State functions in respect of this group.
respect of the islets.
In such circumstances, and having regard to the view epressed above with regard to the evidence produced by the United Tingdom #overnment, the Court was of opinion that the sovereignty over the 7in*uiers belongs to the United Tingdom. Availing themselves of the right conferred on them by Article of the Statute, 8udges 3asdevant and Carneiro, while concurring in the decision of the Court, appended to the 8udgment statements of their individual opinions. 8udge Alvare', while also concurring in the decision of the Court, made a declaration epressing regret that the !arties had attributed ecessive importance to medieval evidence and had not su2ciently taen into account the state of international law or its present tendencies in regard to territorial sovereignty. 4"6 An*lo!Norwe*ian Di(herie( Ca(e
+he %rench #overnment alleged certain facts. It contended that the 7in*uiers were a dependency of the Chausey islands, granted by the $ue of Normandy to the Abbey of 7ont(Saint(7ichel in ;Q"". In ;? a correspondence between %rench authorities concerned an application for a concession in respect of the 7in*uiers made by a %rench national. +he Court held the view that this correspondence did not disclose anything which could support the present %rench claim to sovereignty, but that it revealed certain fears of creating di2culties with the 4nglish Crown. +he %rench #overnment further contended that, since ;?B;, it has assumed the sole charge of the lighting and buoying of the 7in*uiers, without having encountered any ob)ection from the United Tingdom. +he Court said that the buoys placed by the %rench #overnment at the 7in*uiers were placed outside the reefs of the groups and purported to aid navigation to and from %rench ports and protect shipping against the dangerous reefs of the 7in*uiers. +he %rench #overnment also relied on various o2cial visits to the 7in*ui ers and the erection in ;P>P of a house on one of the islets with a subsidy from the 7ayor of #ranville, in continental Normandy.
-i'tor" 3ritish &shing vessels began appearing o= the Coast of 4astern %innmar ( suppose this is in 8orway$ couldn"t Dnd it in the map) in ;PQB. +he vessels increased in number from ;PQ? onwards, which led the Norwegian #ovt to prescribe limits within which &shing by foreigners was prohibited.
+he Court did not &nd that the facts invoed by the %rench #overnment were su2cient to show that %rance has a valid title to the 7in*uiers. As to the above(mentioned facts from the nineteenth and twentieth centuries in particular, such acts could hardly be considered as su2cient evidence of the intention of that #overnment to act as sovereign over the islets. Nor were those acts of such a character that they could be considered as involving a manifestation of State authority in
Procedure )efore the Court So on Sept. "?, ;PP, UT and Ireland instituted proceedings before the Court against Norway. +he issue in the proceedings was the validity, under international law, of the lines of delimitation of the Norwegian &sheries 'one laid down by the ;P> $ecree.
In ;P;;, a 3ritish trawler was sei'ed and condemned for violating these measures. +his was the &rst incident of arrest. In ;P>", the number of warnings and arrests increased. +he United Tingdom sent a memorandum to Norway complaining that Norway used un)usti&able base(lines in delimiting its territorial sea. n 8uly ;", ;P>, a Norwegian Goyal $ecree was enacted delimiting the Norwegian &sheries 'one north of BB`"?.?V North latitude. !ending the result of negotiations as to whether or not the States should submit the dispute to the IC8, Norway made it nown that Norwegian &shery patrol vessels would deal leniently with foreign vessels. In ;P?, however, since no agreement had been reached, incidents of arrest again became more and more fre*uent.
Nature of the Norwe*ian Coa(t +he coastal 'one under dispute has a very
47
distinctive con&guration. +he coast is very broen along its length, constantly opening out into indentations that often penetrate great distances inland. It includes Norway
I;%:
UT ased the Court to5 a1 declare the principles of IL applied in de&ning base(lines6 b1 award damages to UT in respect of all interferences by Norway with 3ritish &shing vessels outside the 'one which Norway is entitled to reserve for its nationals u)ect: =elimitation of Norwa'<( territorial water( 3oth !arties agree that the breadth of the territorial waters should be miles from the base( line. +hey agree that the low(water ; mar rule was to be used as the base(point (low-water mar# Q base-line wRc is the point from which ? miles will be measured to determine the width of 8orway"s territorial waters) , but they disagree as to what constitutes the relevant low(water mar. ;<( propo(ed delimitation UT says the relevant low(water mar is Norway
As an eception to the general rule, UT concedes that Norway is entitled to claim, by historic title, f)ords and sunds as internal waters, and close these waters with imaginary lines whether or not the lines eceed ;Q miles 0these are nown as historic waters1. %rom this we glean that UT regards the ;Q(mile rule as a rule of IL and Norway
Lowest level reached by a body of water
;Pth and "Qth centuries. Norway further contends that there should be no maimum length for the straight lines drawn. (The lines drawn by 8orway in its delimitation actually raned from 1P to ?C.1 miles.) IC?<( method( of delimitation +he Court mentioned three methods to e=ect the applicability of the low(water mar rule5 ; trace(parallele method E where the line is drawn following the coast in all its sinuosities 0curves, dents and bends1. +his method is inapplicable in coasts that are too broen, such as Norway straight base(lines method E appropriate points are selected on the low(water mar and then straight lines are drawn bet. them. +his is done both in cases of well(de&ned bays and in minor curvatures. 9%L=: +he ;P> $ecree has not violated IL. Norway
;1 +he ;Q(mile rule relating to bays has not ac*uired the authority of a general rule of IL. In any event, the ;Q(mile rule would appear inapplicable as against Norway, inasmuch as she has always opposed any attempt to apply it to the Norwegian coast . (8orway was not a party to the 8orth /ea 9isheries *onention of 1PP2) p.B "1 Contrary to UT1 +he delimitation system was consistently applied by Norway from ;?BP until the dispute arose. It encountered no opposition from other States, including the UT. +herefore, the system, by ac*uiescence, became enforceable against all States. p.;> part UT did not contest Norway
48
interested in the problem of Norway. UT
p.? III ] > onwards +he =. are basic considerations inherent in the nature of the territorial sea, which provide courts with basis for their decisions5 ;1 general direction of the coast 0close dependence of territorial sea upon the land domain1 hile a State must be allowed the latitude necessary in order to be able to adapt its delimitation to practical needs and local re*uirements, the drawing of base(lines must not depart to any appreciable etent from the general direction of the coast. "1 as to sea areas divided by lands the *uestion being, whether or not certain sea areas lying within these lines are su2ciently closely lined to the land domain to be sub)ect to the regime of internal waters >1 economic considerations E economic interests peculiar to the region Note(: 7agi on 3ritain
In art. >? 0d1 there is no reference to practice of states. +here were only two items referred to, )udicial
decisions and wors of well(nown publicists. If by these declarations, the IC8 is trying to imply the application of principles of ac*uiescence or recognition or estoppel, then it should have said so. hen we spea therefore of acts of states which might have legal signi&cance, as a unilateral act of declaration, the term 9act: should also include abstention of absence of protest. 4#6 I(land of Palma( Ca(e
n 8anuary ">, ;P", the United States of America and the Netherlands signed an agreement relating to the arbitration of di=erences respecting sovereignty over the Island of !almas 0or 7iangas1. 3oth States agreed to refer the decision of the abovementioned di=erences to the !ermanent Court of Arbitration at +he -ague. +he arbitral tribunal shall consist of one arbitrator whose sole duty shall be to determine whether the Island of !almas in its entirety forms part of territory of the United States of America or of the Netherlands territory. +he claim of the US to sovereignty over the Island of !almas were based on > grounds5 1. &a(ed on title( of di(co@er' +he US asserted that the Island of !almas was discovered by Spain and was deemed sub)ect to Spanish sovereignty. Conse*uently, by virtue of the +reaty of !aris, all rights of sovereignty, which Spain had on several regions including the Island, were also ceded to the United States.
It was therefore necessary to resolve N Spain had rights over the Island, which it could have legally transferred to the US by virtue of the +reaty of !aris. Arbitrator5 No, mere claims of discovery are insu2cient . ;. International law lays down the principle that occupation, to constitute a claim to territorial sovereignty, must be e=ective, that is o=er certain guarantees to other states and their nationals. $iscovery alone, without any subse*uent act, cannot at the present time su2ce to prove sovereignty over the Island. ". n the claim that discovery creates an inchoate title5 an inchoate title of discovery must be completed within a reasonable period by e=ective occupation of the region claimed to be discovered. In the CA3, neither act of occupation nor any eercise of sovereignty at !almas by Spain has been alleged. an inchoate title could not prevail over the continuous and peaceful display of authority by anther state6 for such display
49
may prevail even over a prior, de&nitive title put forward by another State. ". &a(ed on the *round of reco*nition )' treat' +he US based its claim on the +reaty of 7unster, which established a state of peace between Spain and the States #eneral of the United !rovinces of the Netherlands. +he treaty establishes as a criterion the principle of possession to determine which regions belong to one state and which belong to the other.
Arbitrator5 treaties invoed cannot support US< claim. ;. +here is no proof to support a claim that Spain ever had indirect possession of the Island of !almas. ". As to the contention that there was a violation of the +reaty of 7unster when the $utch too possession of +abuan 0Island considered to be a part of this region1 in ;B5 can be disregarded. +here is further no trace of evidences that Spain ever claimed at a later opportunity the restitution of territories taen or withheld from her in violation of the treaties of 7unster or Utrecht. >. 3ased on the claim that title may arise out of contiguity states have in certain circumstance maintained that islands relatively close to their shores belonged to them in virtue of their geographical situation Arbitrator5 +he title of contiguity, understood as a basis of territorial sovereignty, has no foundation in international law. ;. It is impossible to show the eistence of a rule of positive international law to the e=ect that islands situated outside territorial waters should belong to a state from the mere fact that its territory form terra &rma 0nearest continent or island of considerable si'e1. ". +he principle is by its very nature so uncertain and contested that even governments of the same state have on di=erent occasions maintained contradictory opinions as to its soundness. >. Inadmissible as a legal method of deciding *uestions of territorial sovereignty for it is wholly lacing in precision and would in its application lead to arbitrary results. Conclusion5 +he Island of !almas forms in its entirety a part of Netherlands territory. ;. +he peaceful character of the display of Netherlands sovereignty for the entire period to which the evidence concerning acts of display relates must be admitted. It has been open and public, that is to say it was in conformity with usages as to eercise of sovereignty over colonial
states. from ;B(;??, several conventions were entered into by the $utch 4ast India Company and the princes, rad)as or ings of +abuan, +aruna and Tandahar these conventions were based on the conception that the prince receives his principality as a &ef of the company or the $utch state, which is su'erain. - +hese conventions granted the $utch 4ast India Company 0Netherlands1 economic advantages, commercial privileges, and the right to eercise public authority in regard to their own nationals and to foreigners. +he form of legal relations created by such contracts is most generally that of su'erain and vassal, or of the so(called colonial protectorate. US *uestions the power of the 4ast India Company to act validly under international law, on behalf of the Netherlands, in particular by concluding so( called political contracts with the native rulers. -
Arbitrator5 +hese contracts are not, in the international law sense, treaties or conventions capable of creating rights and obligations such as may, in international law, arise out of treaties. 3ut contracts of this nature are not wholly void of indirect e=ect on situations governed by international law6 if they do not constitute titles in international law, they are nonetheless facts of which that law must in certain circumstances tae account. It is not an agreement between e*uals6 it is rather a form of internal organi'ation of a colonial territory, on the basis of autonomy for the natives. 46 tate $erritor': Ac-ui(ition and Lo(( Ma*allona, >Ac-ui(ition and Lo(( of $erritor' in International Law 7$4S % AC[UISI+IN 1. Occupation of territor' must be e=ective occupation since mere discovery of territory does not confer title. - +erritory must be terra nullius E never been appropriated or not under sovereignty of another State
H the degree D ind of possession e=ective to create a title " elements which must eist5 intention 0animus occupandi1 D • will to act as sovereign • actual eercise or display of such authority 0titre de souverain E speci&c manifestations of sovereignty1 +he eercise of sovereignty must be5
50
a.
peaceful E not be usurpation nor contested by other states b. actual settlement and close physical possession 0not re*uired if occupation is e=ective1 c. continuous( degree of activity depends on the circumstances of the territory (loss of title by discontinuity E may result from intention to abandon 0epress or tacit1 d. su2cient to confer valid title to sovereignty
3are discovery merely gives an inchoate title. It only creates an option or a priority as against other states, to consolidate the &rst step leading to an e=ective occupation which must be done wOin reasonable time. ". Ce((ion -
-
mode of transferring title to territory from one state to another by a treaty of cession whereby the ceding state renounces its rights and title to the territory in *uestion a derivative mode5 its validity depends on the valid title of the ceding state. +he cessionary state shall not have more rights than what the ceding state possessed.
" elements5 • •
agreement to cede actual handing over of territory to cessionary state
>ay a treaty of session be imposed by force of arms in iew of the prohibition s use of threat or force4 Intertemporal principle 0I!1 should be considered. +he e=ect of an act , such as the decisive act in ac*uiring territory, is to be determined by the law at the time it was done, not by the law the claim is made. ld titles resting on enforced treaty of session must be held to be valid but even if outside the framewor of the ienna Convention and before its entry into force, the prohibition of threat and use of force would apply to prior treaties of cession as part of the regime of UN charter. #. Pre(cription (title is ac*uired by e=ective possession over a period of time.
4tinctive prescription( mode of losing property since it etinguishes the former owner
2 situations to acuire title throuh possession a. immemorial possession where no original source of proprietary right can be shown to eist b. adverse possession where possession in the ;st instance being wrongful, the legitimate possessor neglected or was unable to assert his right6 possession cures the defect in title even if of wrongful origin. *onditions for acuisition of title a. possession a titre de souverain E the display of authority must manifest a clear intent to act as sovereign b. peaceful and uninterrupted possession E generally presumed but only wO respect to maintenance of possession as distinguished from taing of possession c. public possession E wOout nowledge, there can be no ac*uiescence at all d. possession must endure for a certain length of time E complete lac of agreement as to the length of time re*uired for prescriptive title to ripen
+hree forms a. immemorial possession b. prescription ain to usucopio on Goman Law characteri'ed by 8ustus titulus even if defective, good faith D uninterrupted possession for a period of time de&ned in years c. prescription under conditions of usucopio but modi&ed by elements of bad faith . Acce((ion or accretion (natural process of land formation resulting in the increase of territory
Ca(e: %a(tern Greenland Ca(e %AC+S5 +he Norwegian #overnment issued !roclamation of 8uly ;Q, ;P>; con&rming the occupation of 4ri Gaides Land in 4astern #reenland and placed it under Norwegian sovereignty. Norway was acting on the theory that the territory was terra nullius.
As both $enmar and Norway made the same declaration under Art >B0"1 of the Court
51
these colonies. 416 In General
Issue5 N Norway
Mann, $he =octrine of ?uri(diction in International Law ;. 8urisdiction is by no means concerned only with the problem of ascertaining the state which, in a given case, has the sole right of regulation. +o a large etent, legislative )urisdiction is concurrent rather than eclusive.
+he eistence of a State
n the ;st element, the Court was satis&ed by the evidence that at any rate after a certain date, ;";, denmar6s intention to claim title to the whole of #reenland was established. n the "nd element, it was necessary for the court to eamine carefully the evidence of actual eercise of authority as the areas in dispute were outside the settled areas of #reenland. +he Court pointed out that the absence of any competing claim by another state is an important consideration. A relatively slight eercise of authority will su2ce when no state can show a superior claim. Until ;P>;, no state other than $enmar had ever claimed title to # reenland. +he Court held too that the character of the country must be regarded. +he arctic and inaccessible nature of the uncoloni'ed parts of #reenland made it unreasonable to loo for a continuous or intensive eercise of authority. $enmar was able to show numerous legislative and administrative acts purporting to apply to the whole of #reenland, treaties in which other states, by agreeing to a clause ecluding #reenland from their e=ects, had apparently ac*uiesced in her claim, and in recent years an epress recognition of it by many states. +he Court held that in the circumstances, this was su2cient evidence to establish $enmar; was therefore not at that time a terra nullius capable of being ac*uire 456 tate ?uri(diction
8urisdiction is concerned with the State
>. +he problem of )urisdiction only arises in 7A++4GS N+ 4\CLUSI4L % $74S+IC CNC4GN. If there occurs in a State a certain set of facts which involves only !4GSNS - AG4 NA+INALS %, and domiciled and resident in, +-A+ S+A+4, and if these facts have to be considered by a tribunal sitting within that State, there is no room for any problem of international )urisdiction. It is only when there is some %G4I#N 4L474N+, when the State purports to a=ect person of foreign nationality, domicile or residence in AC+S -IC- -A!!4N A3GA$ that the problem of international )urisdiction maes its appearance. 8urisdiction, it thus appears, is concerned with regulating and delimiting the respective competencies of States. .
Legislative )urisdiction should be distinguished from sovereignty. +he doctrine of legislative )urisdiction answers the *uestion of whether and under what circumstances a State has the right of regulation. If the right eists, it is eercised by the State by virtue of its sovereignty. +he distinction is the same as that between !IL and 7unicipal Law in general6 the former is the higher law which decides upon
52
the rightful eistence of a power6 the latter is the subordinate instrument whereby the State as sovereign gives e=ect to the power allowed to it. herever its international implications are concerned, )urisdiction is limited by rules of International Law. No theory of sovereignty can displace them. .
G4LA+INS-I! 34+44N 8UGIS$IC+IN AN$ CN%LIC+ % LAS ConMict rules are a product of municipal law, which has to stand the test of the international doctrine of )urisdiction. In other words, it is the function of )urisdiction to de&ne the international scope which the municipal legislator is entitled to give to his enactments. +he conMict rule implements and gives e=ect to the re*uirements of !IL. -owever, !IL does not contain detailed rules regulating the application of this or that legal system. It merely provides the principles which limit the freedom or competence of States in enacting the conMict rule. In this sense, the international rule of )urisdiction and the municipal rule are complementary..
Mourning for California red: what was once a towering symbol of goodwill, of sanity and good humor is now reduced to rubble... no longer shall we witness sitro shake his booty. no longer shall we hear mike ask cuando, cuando, "cuando" "?". no longer shall we have the pleasure of seeing banuar...well...sleep. 'tis sad, i tell you. 'tis so painfully heartbreaking indeed. but i urge you, friends, to remember our beloved california red as she was once - as that undying symbol of our most repressed fantasies. she will always be the place where closet losers gather - to sing, to belch, to scream the universe's curses, to forget that one battle fought has been lost and to hope that in the next they wouldn't feel as inadequate. if only for these, i know my beloved california red will always stay alive - maybe not in that corner at the back of a gasoline station where no self-respecting person would ever pass. but in my mind, beside the memory of my first boyfriend whom i wish i could have killed but did not. in loving memory, gladisniff,sniffsnort
Case: .. Lo!us Case !acts #he $otus, a !rench mail steamer, collided with the %o&-ourt, a #urkish collier, in the high seas. #he latter sank, and eight #urkish nationals on board perished. #urkey exercised (urisdiction over criminal proceedings against )emons, a !rench national and the $otus* officer of the watch, and sentenced him to + days imprisonment and a fine. )uring the first hearing, )emons submitted that the #urkish courts had no (urisdiction. #his case was submitted to the / pending the #urkish ourt*s decision on appeal. ssue 0as #urkey, contrary to 1rt 23 of the onvention of $ausanne 4$5 respecting conditions of residence and business and (urisdiction, acted in conflict with the principles of $ and if so, what principles, by instituting (oint criminal proceedings in pursuance of #urkish law against )emons? yes, what • f pecuniary reparation is due to )emons, provided, according to the principles of $,
reparation be made in similar cases? 0eld 67 8ain arguments a.!rance 4exclusive territorial character of law5 • 1ccording to international law as established by the practice of civili&ed nations, in their relations with each other, a state is not entitled, apart from express or implicit special agreements to extend the criminal (urisdiction of its courts to include a crime or offense committed by a foreigner abroad solely in consequence of the fact that one of its nationals has been a victim of the crime or offense. n order to exercise /) in this case, #urkey must be able to point out some title to /) in its favor recogni&ed by $. b.#urkey 4principle of freedom5 • 1rt 23 of the $ refers simply and solely to the principles of international law, sub(ect only to the provisions of 1rt 29. #he former cannot be read as supporting any reservation whatever or any construction giving it another meaning. 1rt 23 allows /) whenever such /) is not in conflict with any principle of $.
53
c.1rticle 23 of the $ Subject to the provisions of Art 16, all questions of jurisdiction shall, as between Turkey and the other contracting Powers, be decided in accordance with the principles of !"
.
)ecision of the ourt a. :ene ral consideration s • ;estriction s upon the independe nce of states cannot be presumed. nterna tional law is a produc t of indepe ndent acts of indepe ndent states. • #he first and foremost restriction imposed by $ upon
•
of another state. n this sense, /) is territorial. t does not, however, follow that states are prohibited from exercising /) in its own territory in connection with acts that have taken place abroad and in which it cannot rely on some permissive rule of $. $ gives
they should not overste p the limits on /) impose d by $. >ithin these limits, its title to exercis e /) rests on its soverei gnty. b.
1ppli cation of general consideration s to criminal /) • #he territorial character of criminal law, though fundament al, is not an absolute principle of $ and by no means coincides with territorial sovereignty . • sing either !rance*s or #urkey*s theory would lead to the same result the need to ascertain >76 there exists a principle of $ which
prohibited the exercise of /) in this case. c.
)oes general $, to which 1rt 23 $ refers, contain such a prohibition? • 6ationality of the victim is not the only criterion to determine /). • 6o rule of internation al law prohibits #urkey from taking into considerati on the fact that the effects of the offense took place in a #urkish vessel which, by assimilatio n, is #urkish territory over which it could exercise its /). • ourts in many countries, even those that have given criminal law a strictly territorial character, interpret criminal
54
•
•
law in the sense that offenses, the authors of which at the moment of commissio n are in the territory of another
•
the freedom of the seas, a ship is assimilated to the territory of its flag state. t is therefore placed in the same position as national territory. #here is no principle of $ which prohibits a flag
#0A;A < 67 ;$A 7! $ 6 ;A:1;) #7 7$$<76 1#06 #0A /) 7! #0A <#1#A >076.
. 7ther arguments a. !ranc e • #he substitution of /) of #urkish ourts is
•
based on consent given by the @owers in the $.
force betwee n all indepe ndent nations and which therefo re apply equally to all the contrac ting parties 1rt 23 could only refer to principl es of $ relating to /). #he propos ed limitati on of #urkish /) to crimes commit ted in #urkey itself was discard ed by the )raftin g ommi ttee. 0ence, it would be equally (ustifia ble to assert that the intentio n was
55
not to limit #urkey* s /) in any way.
1 2ig$ eas Ar!i/les 34,()" '56,''' &d* E7/lusi8e E/ono#i/ 9one" 66, 63" )5,)&e* Con!inen!al $elf
have representation negotiation.
been and
#he !oundations of )iplomatic mmunities and @rivileges nternational law confers on diplomatic immunity from the exercise of (urisdiction by the receiving state. #he principles governing diplomatic immunities are among the most ancient and universally recogni&ed rules of international law.
Case: Lo!us Case &'(+3*" su0ra No!es: .
(urisdiction of the receiving state, their freedom of movement and communication and the inviolability of the mission*s premises and archives. mmunity from civil and administrative (urisdiction does not apply to the ff 2. real property in the territory of receiving state and held by the diplomat in his private capacity F. succession in which the diplomat is personally involved as executor, administrator, etc. E. professional or commercial activity in which the diplomat engages outside his official functions. ategories of personnel entitled to diplomatic immunities and privileges )iplomatic personnel of a mission and to members of their immediate family, regardless of rank, as long as the diplomat is a national of the sending state. !amilies of the administrative and technical staff have immunity if they are not nationals of or permanently residing in the receiving. )uration of mmunities and @rivileges !rom the moment the diplomat enters the territory of the receiving state en route to his postG or if he is already in the
56
receiving state, from the moment the appropriate ministry of that state is notified of the appointment. >hen the appointment is terminated, immunities and privileges normally cease to apply when the diplomat leaves the receiving state, or after a reasonable period, even in the case of armed conflict. )iplomatic 1sylum #he inviolability of mission premises is the foundation of this doctrine, which occurs when a person seeks refuge in the premises of a foreign mission in the receiving state.
Cariations of
B. Na!ionali!< Bro%nlie" T$e Rela!ions of Na!ionali!< in Puli/ In!erna!ional La% . ntroduction" 8ission to estimate the role which the concept of nationality, and the rules of municipal law in this sphere, have de lege lata
. #reedo$ of States in %atters of &ationality '&(" #he accepted view )octrine of 1utonomy
0udson n principle, questions of 6 fall within the domestic (urisdiction of each
$ocus lassicus of the @ermanent 1#1 /;A 8@A; sovereign governmental acts ourt*s 4@5 1dvisory 1#1 /;A :A<#76< commercial, private, 7pinion on the #unis nongovernmental acts K 8orocco 6ationality )ecrees #he ncorporation of state immunity in @hilippine legal question whether a system is through the onsti and not by declaration of certain matter is or is < not solely within the domestic (urisdiction
%ut % said the above are ambiguous 4not absolute5, noting the use of the term Lin principleM. %*s provisional conclusion is that the questions of 6 are not solely within the domestic (urisdiction of the
N in a matter which, like that of 6, is not, in principle regulated by $, the right of a
. Principle Stated by )ppenhei$" 6 of an
individual is his quality of being a sub(ect of a certain
C. *ole of & in !" #he principle of the 6 of claims is allimportant. #hus, a
C. +onsiderations of Principle"
57
even by the existence of other
C. Syste$s of acco$$odation" :ood faith and comity. #o say that a
C. eneral Principles of !" #he general principles of
$ 41rt. E+.2.c /
C. 8eaning of )omestic /urisdiction. 6 isn*t capable of being confined to the reserved domain 4i.e., )/5 or the realm of
protection. t is $ which determines whether a
B. )pinions of ov-ts on Autono$y" #he ma(ority of replies to the @reparatory ommittee for the 0ague odification onference 405 accepted the position that the right to determine 6 is not unlimited. !urther, where a
B. .ague +onvention on +ertain /uestions *elating to the +onflict of & !aws 4065. 1rt. 2 of the onvention produced by the 0 of 2IE states t is for each
06 were followed by
B. 7pinion of /urists. 7rthodox view supports the autonomy of
B. 6ationality ;ules ommonly 1dopted by
1. 0us Sanguinis" 1ttribution of 6 at
58
birth based on descent = generally on the status of the father, of either or both parents, of unmarried mother, etc. 0udson K >eis state that (us sang, (us soli or a combination of both are the predominant modes of acquisition of 6.
%. 0us Soli" 1ttribution of 6 at birth based on birth in the territory. @redominant in the world, though in varying degrees the most
E.
children of enemy alien fathers born in territory under enemy occupationG some
the country
. Axtensions of /us
). nvoluntary naturali&ation. 6 is automatically conferred by operation of law as the effect of changes in civil status see 4A5 to 405. recogni&ed as consistent with $ due to consistent practice of
A. 8arriage. 06 of 2I3Q favors principle of equality but compromisesP celebrationOdissolutio n of marriage between national and an alien or change of 6 by husband during marriage shall not affect the wife*s 6 automatically. %ut alien wife may, at her request, acquire husband*s nationality.
!. legal recognitionOlegitimatio n. hild follows the father*s nationality, but states are free to
grant or withhold 6 despite legitimation.
:. 1doption. 8inor acquires adoptive parents* 6.
0. 1cquisition of )omicileO1nalogous $inks ;esidence, domicile, immigration animo manendi, conferment of 6 on members of ethnicOother defined groups belonging to s
. Coluntary naturali&ation. :rant of 6 based on an explicit voluntary act of the individual. ;equires prolonged residence as a precondition R specific intent to obtain 6.
/. 6ationality e neccessiiate juris. hild of unknown parents presumed to have 6 of the
B. $egal
states. >eis said such concordance of 8$ does not create customary $ since opinio (uris et necessitates is lacking.
%rierly 25 such legislation of 6 can be evidence of international custom and F5 lack of uniformity in 6 laws isn*t lack of opinio (uris but due to numerous permutations 4noted in 6ottebohm5.
BC. logical 1pplication of $ ;ules. mportant limitations on the powers of individual
1. 1rea of attribution must have legal personality., #here must be a state, recogni&ed as such by the forum, or other international person having the capacity to create a law of attribution on the basis of nationality 4Catican5. f the entity has not developed a stable personality, its citi&ens may not be regarded as having.
%. regimes of divided sovereignty or indeterminate status. n international lease, protected
59
#here are also territories, not res nullius, which have no determinate sovereign, !ormosa which /apan renounced its rights to tin 2I32. f 6 fails to provide an answer, residence or domicile is a reasonable substitute.
. 8andated and trust territories.
). hapter 22 6 harter. 1rticle QE imposes the obligation to ensure the (ust treatment and protection. onferment and denationali&ation limited.
A.
!. @ersons 7utside
6ational $egislation. $egislation may categori&e the population into citi&ens with full status and others, but such persons have the status of nationals for $ purposes. )istinguish this internal regime of status from denationali&ation. )eprivation of 6 intended to have an international effect.
:.
0. llegal acts and onrecognition. 6 conferred due to illegal acts may arise 2. by acts ultra vires in that, in the absence of an effective link, a
by acts of conferment the effectiveness of which rests on illegal annexation of territory or the detention of abduction of aliens within state territory.
. 76 nationals, and has the duty to admit its nationals expelled by another state R duty not to expSel nationals. % postulates a general principle of genuine link as to the causa for conferment or deprivation of 6 which has the F considerations 25 presumption of validity of an act of naturali&ation since government acts presumed to be in good faith and F5 6 is a status, conferment of 6 acted upon shouldn*t be invalidated except in very clear cases.
/. 6ationality of laims. @rinciple of diplomatic protection rests on the fact that 6 of the claimant
. )iplomatic protection.
depends on 6, but in the absence of formal evidence of ties with any
$. 6ationality by Astoppel. Astoppel or preclusion is a principle of $. >here the basic facts concerning the individual are ambiguous, the government*s conduct will provide the answer. %ut this should not be used in opposition to status based on effective links.
BC. @resumptions and @olicy ;ules on the nternational @lane.
1. @resumption vs.
%. @resumption of
60
continuance. @resumption of act as a principle of evidence, but easily rebutted. 6o general presumption of continuance of nationality since such may result in multiple 6 R goes against general principles of effectiveness and effective link doctrine. )ifferent from continuity of 6 principle where loss of 6 only admissible if another 6 is acquired simultaneously.
. )eprivation of 6. f the denationali&ation, particularly of a group, is part of a breach of international duty, it is illegal. f it only involves citi&ens domiciled within the frontiers of a state who lack any other links, there is no delict but such deprivation is not entitled to recognition by others because it disregards the effective link doctrine and attempts to avoid responsibility of territorial sovereignty and statehood.
). ompulsory hange of nationality.
or where principle of self-determination gives ethnic minorities the right, but such is not lex lata.
A.
!. ;ight of expatriation. hange of 6 may, depending on the facts, place other states under a duty to recogni&e the new 6. 6ote that there is no rule that 6 of origin has more strength than a naturali&ation.
:. ;acial laws. )enationali&ation on grounds of a policy of racial inequality or persecution is contrary to $ and elementary principles of humanity, breach of $ if such groups are expelled.
BC. 6ationality as a status.
6ationality involves a question of status. t is recogni&ed in the doctrines of effective
link and dominant nationality, that establishment in a community gives statusG arbitrary deprivation of nationality may not be recogni&ed d by other states. 6otion of status connotes stability and effectiveness. n accordance with stability. nstruments affecting nationality should not be retroactive in general. %ut when there is no period of usurpation and where nationality law is introduced by the successor state into ceded or annexed areas with retroactive effect with qualifications as to residence abroad and the existence of domicile in the area, such satisfies the principles of effectiveness and of effective or real link.
BC. !unctional 1pproach to nationality t is common for legislation and (udicial decisions to create functional authority, whereby parts of national law are applied to aliens on the basis of allegiance, residence, and other connections. #here is also a tendency to bypass the nationality criterion for purposes related to national security or to international public policies.
Magallona" =On ual Allegian/e and ual Na!ionali!<> :eneral ategories of )uality 0ow dual nationality arises 2. 1 person whose parents come from a municipal law system of nationality based on (us sanguinis is born in a
;etention by a person of the nationality of one
6ote nationali&ation does not always entail the loss of prior nationality E.
1ssumption of a new nationality by naturali&ation with the retention of the previous nationality on account of the requirement of the
6ote expatriation or the right to change nationality is
61
recogni&ed. %ut actually, it is left to domestic (urisdiction of
onflict of laws re treatment of married women
F factors
a.
#here are states which provide under their laws that marriage of their women nationals to aliens shall not result in the automatic loss of their nationality b. #here are states which provide for the automatic acquisition of nationality by alien women upon marriage to their nationals ;esult the married woman retains her own nationality, even as she automatically acquires her husband*s nationality. :eneral basis K @roblems of )ual nationality
the basic rule in $ is that nationality is within the domestic (urisdiction of
every
a.
2.
F.
allegiance. #his creates the problem of divided allegiance but from the viewpoint of the individual national, dual nationality is not altogether undesirable since he is able to seek diplomatic protection from more than
nt*l regulation of dual nationality the present state of $ makes no prohibition vs. the acquisition of a second nationality but there are rules which are intended to avoid dual nationality from the 0ague onvention on certain questions ;elating to the onflict of 6ational laws a omen
62
neither matrimony nor its dissolution affects the nationality of the husband onvention on the 6ationality of 8arried >omen marriage, dissolution of marriage, K change of nationality of the husband during the marriage shall not automatically affect the nationality of the wife 1s can be seen, dual citi&enship is an int*l phenomenon because it presents problems in the relationship between states with respect to an individual who is both their national or citi&en, as well as in the relationship between a state K the persons who it considers citi&ens under its law
!rom the viewpoint of domestic law, strictly there cannot arise a problem of dual nationality because the
2. /urisprudence a. %efore dual nationality 7 4@arado vs. ;epublic5 b. 6ow re(ection of dual nationality 47h 0ek how vs. ;epublic5 F. $egislation • 8arked by schi&ophreni a 1. 6o dual nationality allowed Ax. ;evised naturali&ation law requiring oath of allegiance before one can become a @hil. iti&en • 1 9E loss of @hilippine citi&enship by naturali&ation in a foreign country %. Axpress recognition of dual nationality F9EI a ;1 @hilippine natural-born citi&en who acquires the citi&enship of one of the berian K friendly democratic beromerican countries shall retain his @hilippine citi&enship, basta may reciprocity at treaty ;1 E+EJ extending same privilege to a !ilipino who acquires %ritish citi&enship 1 9E rare case of divided allegiance wOo involving the question of
divided nationality !ilipino may be divested of citi&enship by rendering services to, or accepting commission in, the armed forces of a foreign country 8agi this case emphasi&es that dual allegiance should not be interpreted as limited to cases of dual nationality 1 @hilippine citi&en can be a national of another
63
nationality by birth. f his father is !rench, a third nationality attaches to him F. 1lso in the onsti, female @hil. iti&en retains her citi&enship despite marriage to an alien, unless she is deemed to have renounced such citi&enship. f under the laws of her husband*s
which they may have. 6ote that his policy is in form a constitutional mandate lacking legal implementation. 0owever, due to the pronouncements of the > broke out in
enemy alien, where he was detained until 2IJ9. : proceeded against his property as that of an enemy alien. 1fter his release, 6 sought to return to : but : refused to admit him. $ instituted proceedings before the /, espousing 6*s claim. $ asked the ourt to declare that : acted in breach of its obligations under $ in arresting, detaining, expelling K refusing to readmit 6. $ further asked for damages K restoration of 6*s property in :, or the payment of the value of such property. : contended that $*s claim is inadmissible bec. of lack of prior diplomatic negotiations, on grounds of nationality of the claimant and for failure to exhaust local remedies. IUE: >76 the nationality conferred to 6 gave $ sufficient title to exercise protection in respect of 6 as against : in (ustification of proceedings before the ourt 2EL: 6o. : is under no obligation to recogni&e the nationality granted by $ to 6 under the circumstances in this case. $ has no title to exercise protection its claim bef. the ourt is inadmissible.
RATIO &Cour!?s !rain of !$oug$!*: 2 =We %ill de/ide !$e issue on !$e in!erna!ional 0lane.> #he question of nationality is within domestic (urisdiction, but to apply to the ourt places it in the $ plane the ourt will not decide >76 6*s naturali&ation was in accord with the law of $.
/ said Lt is for every sovereign
64
on the same person 4dual nationality5, arbitrators K courts of Erd
E #o decide this issue, arbitrators, courts of Erd &REN* 0rin/i0leF. 2hat does *3& say4 t says that nationality is a legal bond having as its basis a social fact of attachment, a 2
G4NO#enuine Lin principle is N+ general intl law used to determine nationality. It is a procedural D speciali'ed norm used by the Court only for purposes of this case in respect to L
genuine connection of existence, interest K sentiments, together with the existence of reciprocal rights K duties. 6ationality is the (uridical expression of the fact that the individual upon whom it is conferredNis in fact more closely connected wO the population of the
claim that the rules it has thus laid down are entitled to recognition by another
transferring some of his business activities there. #he only links bet. 6 K $ were his short trips to $ in 2IE2 to visit a brother who lived there. t appears that 6 sought $ citi&enship to acquire the status of a neutral national 4get rid of his :erman nationality bec. of the war5 before returning to :uatemala.
#he naturali&ation granted by $ was Lnot based on any real prior connection with $, nor did it alter the manner of the life of the person upon whom it was conferredNit was lacking in the genuineness requisite to an act of such importance, if it is to be entitled to be respected by a
pursuan
Aspousal- under $, there is a du exhaust local remedies as a con may espouse his case.
65
<<A 6ationality- a (uridical form that reflects social, >76 economic %elgium has the right and political attachments. to exercise diplomatic protection F legal principles that determine nationality4)@5 of %elgian shareholders in was a borncompany 2. (us soli- where the person incorporated in F. (us sanguine- what the nationality of his parents anada are. 4the measures complained of having . Bar/elona been taken in relation Tra/!ion Co. not to any %elgian Case &'(4* national but to the !1#< #he company itself5 %arcelona #raction, $ight K @ower $td is a holding company incorporated in #oronto, anada where it had its head office. !or the purpose of developing an electric power and distribution system in >2, %arcelona*s share capital came to be largely held by %elgian nationals. n 2IE9, the payment of interest on bonds which %arcelona had issued was suspended by the ar. Aventually, the company was declared bankrupt . ;epresentations in behalf of the company were initially made by the %ritish, anadian, < and %elgian gov*t. anada*s interposition ceased entirely in 2I33.
0A$) 6o ;1#7 7bligations, the performance of which is the sub(ect of )@ are inter se which means that in order to bring a claim in respect of the breach of such an obligation, a state must first establish its right to do so. t must show that a. the defendant state has broken an obligation towards the national state in respect of its nationals b. only the party to whom an int*l obligation is due can bring a claim in respect of its breach. %elgium*s capacity is to be determined by the existenceOabsence of a right to protect the rights its nationals suffered as shareholders in a company not of %elgian nationality. #here*s no treaty on
the sub(ect between the parties, court said it had to resort to general rules on )@. #heory of orporate personality #he concept of the company is founded on a firm distinction between the rights of company and those of the shareholders. 7nly the company, which was endowed with legal personality, could take action in respect of matters that were of corporate character. 1n act infringing only the company*s rights did not involve responsibility towards the shareholders, even if their interests were affected. #o enable shareholders to act on their own, the violation must be against their direct rights which is not the situation in the case at bar. 6o rules of $ expressly confer a right on the shareholder*s
that it*s dead. t*s still capable of defending its own rights and that of its shareholders. b. W$ere !$e 0ro!e/!ing s!a!e of !$e /o#0an< la/;s /a0a/i!< !o !a;e a/!ion = rebutted by the fact that anada had made representatio ns in behalf of the company and so was deemed by the court to be the one who should file a claim. n relation to this, the court discussed F theories of incorporation or how corporate nationality is determined. a. ncorporation theory = right to protect falls on the state under which the corporation was formed. n 1%, it*s anada. b.
66
#he court in 1% adhered to the theory of incorporation. #hus, it*s anada and not %elgium who has the right to exercise )@. 7ther issues ;A claim that state can exercise )@ if its economic interests were pre(udiced by investments of its nationals abroad allow ed only if there* s a speci al treaty or agree ment betw een the partie s. n 1%, no such thing. ;A equity -
ourt didn*t want to use this beca use it woul d open the door to insta bility of intern ation al relati
ons.
that international orgs have their own legal personality under any law and so are No!es: sub(ects of it was / a corporation is a national of the state where international law incorporated 4doctrine of incorporation5. order. n municipal law 4which the / considered5, the of from personality of a corporation is#ypes separate and distinct ntergovernmental the personality of its shareholders. 7rgani&ations F kinds of intl oblig 2. niversal v losed 7rgani&ation 2. inter se- between states only F. erga omnes- to the whole intl community niversal = strive at membership ofdoctrine all #he / in this case elevated the incorporation as statesa and aims at even a norm of $. #he ourt assumed high position, making principles. rules for the precluding the application of equitable entire world e.g. 6 C. In!erna!ional Organi@a!ions /$er#ers" T$e In!erna!ional Organi@a!ions A. 1#A:7;A< 7! 6#*$ 7;:16U1#76< 6on-governmental 7rg = all org established by individual citi&ens even if they perform important gov*t tasks. t must be established under law of a
losed = covers only a limited group of states who have similar interests or cultural and political patternsG may be closed to states outside a particular group and usually addresses themselves to a particular region e.g. 7A, 7
E. ntergovernmental v
F. :eneral !unctional
v
:eneral = field of operation is not limited to one or more special sub(ectsG can discuss any sub(ect insofar as it has not been excludedG never has many powers cos of the width of field of operation, can draw attention to many problems but decisions of binding nature are rarely possible !unctional = operate in a narrowly defined field
@A;<761$#D 1. apacity to 1ct nder 6ational $aw provided for by the org*s constitution includesG exercise of its functions, capacity to contract, acquire K dispose of immovable property, institute legal proceedings orgs have legal personalityP foreign legal
67
person %. $iability nder national $aw liable for their contracts in the same way as any individual citi&en and for noncontractual obligations but in noncontractual obligation, orgs may claim immunity wOc makes it impossible to establish liability of an int*l org . $iability nder nt*l $aw when liability under national law cannot be established, org can still be liable under int*l law for damages caused to indiv citi&ens if orgs don*t have own tribunals, damages have to be settled along diplomatic channels ). apacity to 1ct nder $ 2. :eneral powers are limited to those expressly granted by their constitution capacity to act not
presumed but has to be demonstrated / accepted nt*l personality of 6 under ff grounds i. t o a c h i e v e e n d s o f 6 , a tt ri b u ti o n o f i n t*l p e r s o n a lit y is i n d is p e n s a b l
ii.
iii.
e 7 r g is e q u i p p e d w O o r g a n s K h a s s p e ci a l t a s k s h a rt e r h a s d e fi n e d p o si ti o n o f
m e m b e rs t a t e s i n r e l* n t o o r g b y r e q u ir i n g t h e m t o g iv e e v e r y a s si s t a n c e a n d
68
t o a c c e p t t h e d e ci si o n s o f < , b y g iv i n g o r g l e g a l c a p a ci ty , i m m u n it y a n d p ri vi l
iv.
e g e s 7 r g e n ( o y s f u n c ti o n s a n d ri g h t s w O c c a n o n ly b e e x p l a i n e d o n t h e b a si s o
f t h e p o s s e s si o n o f l a r g e m e a s u r e o f i n t*l p e r s o n a lit y 1t present, it is generally recogni&ed that all public < org has some int*l legal personality limited to the fields in wOc they have competence to operate. n practice, virtually all int*l orgs perform acts under int*l law.
-
-
J.
-
-
3.
-
F. ;ight to %ring nt*l claim 4;eparations ase5 -
E.
making capacity int*l org has power to conclude treaty wO other sub(ects of int*l law int*l org has not been accepted as parties to large multilateral law-making treties ;ight to establish diplomatic relations normal role of orgs accredited wO Vpermanent missionsM is to keep contact wO
#reaty-
69
by int*l org cannot be seen separately from recognition by other states );1#76 1. Astablishment nt*l org is born when treaty containing its constitution comes into force %. )issolution F reasons 425 task has been completed 4F5 another org has taken over its functions in practice, both are rare almost every dissolution of int*l org contains aspects of succession and termination 8ethods - consti can empower gen. ongress to dissolve org by qualified ma(ority dissolved after certain period of time - provided for in add*l docs upon orgs establishmen t - decision of gen congress
-
even if no consti empowermen t onsequenc es of )issolution other o orgs take over remai ning functi on even wOout offici al transf er annul o s certai n legal acts of orgs bindi o ng decisi ons of orgs will proba bly not lose their force orgs o wOc are mean s of coop eratio n inters tate agree ment wOc will conti nue
o
o
o
o
witho ut org orgs wOc are legisl ating body incor porat ed in nat*l legal order empl oyee s lose (obs but not rights prope rty of org distri buted propo rtiona lly to mem ber state s if transf erred , value shoul d be credit ed to mem ber state s
III. FUNCTION AN POWER -
1ll ntl 7rg 475 cam make recommendat ions to member states
-
-
-
-
1ll 7 can issue declarations 1ll 7 have power to propose draft conventions :eneral 7rg vaguer functions more of political nature
I. INTITUTIONAL TRUCTURE @articipation 1. ategories of @articipants 2. !ull members = usually consti provides criteria that qualifies one for members hip share responsib ility for decisionmaking, bears costs F.
1ssociate 8embers = does not fulfill full requirem ents for full members hip but is sufficientl y intereste
70
d in the work of the org for some form of participati on same o rights as mem bers exce pt cant vote in plena ry organ K can*t be chos en in exec utive board
speciali& ed interest of the org or related activityG represent ed in at least 2 organ of org 3.
9. E.
J.
@artial members = participat es in some organs wOout being members of the org itselfG no voteG pay contributi onsG may be chosen in executive boards of organs wOc they are members 1ffiliate members = concerne d wO the
7bserver s = usually for nonmember statesG allowed by org pres to make statemen tG right to receive docs of org onsultat ive
F.
e a d q u a rt e r s w O e x e c u ti v e o ffi c e r s h a s a d e m o c r a ti c a ll y a d o p t e d c o n s ti t u ti o n
E.
h a s a u t h o ri t y t o s p e a k o n b e h a lf o f it s m e m b e r s
%. )uration of 8embership 2. Antry into effect of membership orig members when consti obtained sufficient ratification when both org K states has accepted such membership from date of admission to org officially when act of
71
ratifying consti has been deposited F. termination of membership withdrawal from the org of the member state 4unilateral withdrawal allowed5 expulsion of the member state by the org 4not possible if no consti provision to that effect5 . ;epresentation of 8embers 2. by sending delegations each delegation has 2 vote whatever the no. of delegates sent usually required to be composed of cabinet members prove representatio ns by presenting credentials PLENARD ORGAN 1. :eneral ongress org*s supreme organ in which all member states are represented takes only broad policy
decision leaving more detailed tasks to smaller org %. /unior ongress secondary plenary organ composed of lower ranked civil servants wOc can prepare the meetings of the ministers and take the minor decisions .
general congress %. omposition 2. si&e most universal orgs have a council or exec board composed of delegation 2O3- 2OE of the membership of org F. components gen congress appoints the member states entitled to compose the non-plenary organ - some constis require that individual experts instead of gov*t rep be appointed for (udicial organs individual experts since independence is important for highly political organs gov*t reps due to requirement of consistency wOpolicy of other organs E. equitable representation of interests a. impt that the main intere sts repre sente d in the congr ess are also repre sente
d in the nonplena ry organ so as to guara ntee that the propo sed drafts get suffici ent supp ort in the congr ess. b. %alan ced geogr aphic ally K in the techn ical intere sts the org has to look after J. election of 6onplenary organs F systems 2. org as a whole selects the members from all regions and all interest groups results org will tend to appoint those member states or persons
72
closest to the average opinion of the org as a whole e.g. >orld %ank F.
each region or interest group appoints its own members result the region or interest group will take those states wOc are most representativ e of the ma(ority of the region e.g. 6 3. ;eplacements period after wOc the members are to be replaced varies according to the task of the organ. 8ost periodically replace part of their membership so as to prevent a situation where all members are new and inexperience d. OT2ER ORGAN 1. @arliamentary 7rgans background some states form of gov*t is one where
-
-
the executive is controlled by a parliament elected by the people. >hen powers are transferred from these
%. /urisdictional 7rgans court charged with the settlement of disputes between the member states, wO(udicial control over the legality of decisions of the org or wO the admin (urisdiction over staff matters
-
-
most 7*s (ust refer to / not limited to courts, can be wO a (udicial character only e.g. 0uman ;ights ommittee composition independent legal experts wO long term appointments and not entitled to receive instructions from their governments.
ECRETARIAT 1. #ask preparation of the meetings of the organs e.g. proper mgt, admin supervision, infogathering, etc head
criteri a of comp etenc e R equit able geogr aphic al distri butio n -
granted certain immunities K privileges such as tax exemptions to guarantee independent operation
%. 0eadquarters literally the building which house the secretariat K which often hosts the meetings of the org most org tend to cluster in Cienna and :eneva since neutral territory R good infrastructure . nternational ivil
73
K local (urisdiction to guarantee their independenc e =can be waived
. FINANCING -
-
-
-
-
-
costs are paid by the member states according to capacity to pay R interests that the states have in the org ;ule 6o state should pay more than F3W of the total cost or less than 2W 1ssociate and partial members pay a lower rate than full members ontributions must cover all administrativ e expenses, e.g. for meetings, salaries, upkeep of buildings. f special activity, special budgets financed through voluntary contributions are usually created 1lso receive money from private
sources Tun;in" T$eor< of In!erna!ional La% A. harters of nternational 7rgani&ations #reaties or onstitutions? .
onstitutional #heory
harters of nternational 7rgani&ations 4os5, specially the 6, are basically constitutions and only partially international treaties. #herefore the law on treaties is not applicable to them.
to prove that this practice 4of treating charters as constitutions5 conforms with international law and is not a violation of such. .
of the law of treaties are applicable to such charters 4albeit with some adaptations5, especially the ff 1"
conclusion and entry into force of multilateral treaties, except some provisions on reservation
5"
invalidity treaties
"
amendment and interpretation of treaties
7"
operation of international treaties, especially pacta sunt servanda
8"
significance treaties for states
#reaty #heory
harters of 7s are a special category of international treaties. #he attempt to ascribe certain features of state constitutions to said charters has no (ustification, since 7s are qualitatively different from states. #unkin
harters of 7s as constitutions are LflexibleM documents from whose provisions one may digress in practice, and this digression will not be a violation, but a modification of the charters. 1lthough by their origin the harters of 7s are international treaties, as regards their operation, they are basically not treated as treaties. #unkin*s ritique @olitically this theory is worked out and propagandi&ed strenuously in the >est because it is aimed at (ustifying the numerous violations of the charters of general 7s, under the pressure of imperialist powers. n re LoperationM fails
of
of Erd
;eview 1rt. 3 of Cienna onvention on the $aw of #reaties !.
/urisdiction of nternational 7rgani&ations
.
the Linherent (urisdictionM 4competence inherent5 theory
oncept #he practice of the 6 and other os shows that their activity goes beyond the limits provided by their charters. #his then means that there exists a generally recogni&ed norm of international law to
74
the effect that 7s can undertake activities necessary to achieve its purposes irrespective of the specific provisions of the organi&ation*s charter. )efinition #he legal capacity of 7s to perform LsovereignM and international acts is, like that of
0as no basis in international law
#hey are correct in saying that the practice of contemporary 7s often goes beyond the provisions of their charters %# the conclusions they draw from this is wrong. /ust because
there exists a practice of 7s going beyond the limits of their charters does not automatically mean that there also exists a generally recogni&ed norm of international law regarding the Linherent (urisdictionM of 7s. 1 customary norm of international law arises from international practice in consequence of the recurrent action of
has no basis in charters
1lso, this concept does not find basis in the 7s* charters themselves. #here are no 7s whose charters would empower them to use any means to achieve the purposes stipulated in their charters. ontemporary 7s are created by states, and only states may define the character of each organi&ation created by them, its purposes, and the means by which they place at its disposal. #his is done by treaty 4the organi&ation*s charter5
"
ontravenes Pacta Sunt Servanda
#he nherent /urisdiction #heory assumes that an 7 created by treaty between
ontravenes principles interpreting international treaties
in
1rt. E2 of the Cienna onvention on the $aw of #reaties establishes that L1 treaty must be interpreted in good faith in conformity with the ordinary meaning of the provisions in the context of the treaty and in the light of the sub(ect and purpose of the treaty.M 8eanwhile the concept of nherent /urisdiction ascribes a certain magical force wrested from the context of the
treaty, transforming them into something independent and essentially superseding the entire treaty. 8"
ontravenes $egal 6ature of ontemporary 7s
#he nherent /urisdiction theory contravenes the legal nature of 7s, as interstate formations of peaceful coexistence.
.
#he Lmplied @owers 4ompetence mplicit5 #heory oncept 4as formulated in the ;eparations case5 nder international law, the organi&ation must be deemed to have those powers which, though not expressly provided in the harter, are conferred upon it by necessary implication as being essential to the performance of its duties. ;ationale presumption of the conformity of (urisdiction to the purposes and functions of an organ = principles of effectiveness 8eaning #here exists a norm of international law according to which one should imply that member-states of an international organi&ation have
75
granted it that (urisdiction which is necessary to effectuate the purposes and functions of the organi&ation, and those powers which may be reasonably deduced from the purposes and the functions of the organi&ation.
of such (urisdiction in each individual instance is a question of interpreting the charter of the organi&ation with those additions and changes which might have been formed in the course of its activity on the basis of agreement of the members of the given organi&ation.
#unkin*s ritique 7f course, in practice it is impossible to provide for all possible instances of future activity in the charters of the 7s. #herefore in working out the charters the parties inevitably presuppose that a number of questions of the activity of an 7 remain to be decided on the basis of the charter provisions in the process of the fixing of the organi&ation = at this level, there still are implied powers. %ut note implied power is not a norm of general international law. 4see discussion on formation of norms under the 0 theory, which also applies to this case5. %ut here, the question is the creating of new, subordinate and more precise norms through additional agreements among the members. #hus implied powers of an organi&ation can occur. #he question of the existence and extent
I#0lied Po%er T$eor< nder international law, the 6 must be deemed to have those powers which, though not expressly provided in the harter, are conferred upon it by necessary implication as being essential to the performance of its duties. #unkin Lmplied powersM is not a norm of general international law. #he 2IJI 1dvisory 7pinion of the / goes farther than what corresponds to contemporary international law. #he implied power of an 7 in reality exists when in order to exercise the (urisdiction clearly granted to the organi&ation, it is necessary to resort to actions which not only do not contravene the charter of the organi&ation but also are customary in international practice.
Case: Re0ara!ion
for
Inuries Case &'((* . ssues #he / rendered this advisory opinion in response to the ff. issues a5 n the event of an agent of the 6 in the performance of his duties suffering in(ury in the circumstance s involving the responsibility of a
victim is national?
a
. apacity to bring an international claim on its own behalf a5 )efinition the capacity to resort to the customary methods recogni&ed by $ for the establishmen t, presentation, and settlement of claims e.g. protest, request for an enquiry, negotiation, and request for submission to an arbitral tribunal b5 )oes the 6 possess international personality i.e. capable of availing itself of obligations incumbent upon its members? i5 6ot settled by actual terms of 6 harter look into intent ii5 6ature of sub(ects of $ depende nt upon needs of communit y L%ut to achieve these
76
ends the attributio n of internatio nal personalit y is indispens able.M iii5 8embers , by entrustin g certain functions to it, with the attendant duties and responsib ilities, have clothed it with the compete nce required to enable those functions to be effectivel y discharge d. 425 hart er requir es 8em bers to give it Lever y assist anceM in any actio n under taken by it 41rt F, par 35G gives
6 legal capa city, privil eges, and immu nities in the territo ry of each of its 8em bersG provi des for concl usion of agree ment s with betw een the 6 and its 8em bers. 4F5 6 is a politic al body charg ed with politic al tasks of an impor tant chara cter 41rt 2, hart er5 by empl oying politic al mean s.
iv5 6 is an internatio nal person, sub(ect to internatio nal law and capable of possessi ng internatio nal rights and duties, and that it has the capacity to maintain its rights by bringing internatio nal claims. 425 6ot the same as sayin g that its legal perso nality, rights , and dutie s are the same as that of a her eas a
rights and dutie s recog ni&ed by $, the rights and dutie s of an entity such as the 6 must depe nd upon its purpo ses and functi ons as speci fied or impli ed in its const ituent docu ment s and devel oped in practi ce. 4E5 8em bers have endo wed the 6 with capa city to bring intern ation
77
al claim s when nece ssitat ed by the disch arge of its functi ons. c5 )amage caused to the interests of the 6 is a breach of an international obligation, and the 6 is (ustified in giving its claim the character of an international claim. . apacity to recover damages on behalf of its agents a5 #raditional rule of diplomatic protection does not give a negative answerNso pwede? i5 @resent claim not brought by a
iii5 %ases of diplomati c protectio n 425 )efe ndant state* s breac h of oblig ation to natio nal
nder internatio nal law, the 6 must be deemed to have those
powers which, though not expressly provided in the harter, are conferred upon it by necessar y implicatio n as being essential to the performa nce or its duties 4necessa ry intendme nt5. 425 1ppli ed by @erm anent ourt of ntern ation al /ustic e to the $7 in its 1dvis ory 7pini on 6o. 2E of /uly FE, 2IF9. 4F5 6eed for prote ction for agent s in the perfo rman
ce of offici al dutie s recog ni&ed in the @rea mble to the ;esol ution of )ece mber E, 2IJ+. 4a5 A c h o e d i n h a rt e r p r o vi si o n s a n d c o m p l e m e n t a r y a g r
78
e e m e n t s 4b5 m p o rt a n c e o f d u t y t o r e n d e r L e v e r y a s si s t a n c e M 4 1 rt F , p a r 3 5. 4E5 :uar antee of
prote ction is esse ntial to the indep ende nce of an agent in the perfo rman ce of his duty 4funct ional prote ction5 . ii5
6 brings action in its own right for a breach of internatio nal obligation s.
C. apacity to bring an international claim against a non-member a5 6 has capacity >76 defendant
y with internatio nal law, to bring into being an entity possessi ng ob(ective internatio nal personalit y, and not merely personalit y recogni&e d by them alone, together with the capacity to bring internatio nal claims. C. ;econciling the rights of the 6 vis-H-vis hat if agent
bears the nationality of defendant
I. In!erna!ional Res0onsiili!< A. !a!e Res0onsiili!< Are/$aga" In!erna!ional La% in !$e Pas! T$ird of a Cen!ur< &'()3*
79
onstituent elements 2. Axistence of an act or omission wOc violates an obligation established by a rule of $ in force between the
one
-
#he 1lbanian government replied that foreign warships and merchant vessels had not right to pass through 1lbanian territorial waters without prior authori&ation.
-
7n 1ugust nd F , 2IJ9, the replied that if, in the future, fire was opened on a %ritish warship passing through the channel, the fire would be returned.
Cases: Corfu C$annel Case &'((* 7n 7ctober FFnd, 2IJ9, two %ritish cruisers and two destroyers, entered the 6orth orfu
-
7n
have learnt to behave themselves. nformation is requested whether any ships under your command have passed through the 6orth orfu
7n 8arch F3, 2IJ+, the parties concluded a
s 1lbania responsible for the explosions, and is there a duty to pay compensatio n?
80
F.
0as the nited ingdom violated international law by the acts of its 6avy in 1lbanian waters, first on the day on which the explosions occurred and
these documents show that the minefield had been recently laid. 2. 1lbania could not have laid down the mines herself. #hat suggestion was only put forward pro memoria, without evidence in support
6o proof of secondly, on connivance with 6ovember Dugoslavia. 1 charge 2Fth and 2Eth, of such exceptional when it gravity against a undertook the
together and leading logically to a single conclusion.
d s h o w n it s i n t e n ti o n t o k e e p a ( e a l o u s w a t c h o n it s t e rr it o ri a l w a t e r s a n d i n w
81
h ic h it w a s r e q u ir i n g p ri o r a u t h o ri & a ti o n b e f o r e t h e y w e r e e n t e r e d a ll o f w h ic
ii.
h r e n d e r t h e a s s e rt i o n o f i g n o r a n c e a p ri o ri i m p r o b a b l e . 1 ft e r k n o w i n g a b o
u t t h e m i n e fi e l d *s e xi s t e n c e 4 p o s t7 c t o b e r F F nd
i n ci d e n t5 , it p r o t e s t e d s tr o n
g ly a g a i n s t t h e m i n e s w e e p i n g o p e r a ti o n s o f t h e % ri ti s h fl e e t, b u t n o t a g a i n s
82
iii.
t t h e l a yi n g o f t h e m i n e s < h e d i d n o t u n d e rt a k e a n y o f t h e m e a s u r e s o f ( u d ic i
a l i n v e s ti g a ti o n w h ic h w o u l d s e e m i n c u m b e n t o n h e r i n s u c h a c a s e . < u c h a n a
tt it u d e c o u l d o n ly b e e x p l a i n e d if t h e 1 l b a n i a n : o v e r n m e n t, w h il e k n o w i n g o f
t h e m i n e l a yi n g , d e si r e d t h e ci r c u m s t a n c e s i n w h ic h it w a s e ff e c t e d t o r e m a i n
83
s e c r e t. b. because a survey of the 1lbanian coast shows the possibili possibility ty of observing the mine laying operations i. #he channel is easi easily ly watched it is dominate d by heights offering excellent observati on points. ii. #he operation s cold have taken F to F and a half hours and if a normal lookout was kept kept in the surroundi ng capes, and if the lookouts were equipped with binocular s, 6)A; 67;81$ 76)# 76<, the minelaying operation s must have been noticed by thes these e coastgua
rds. 4in the ob(ectiona ob(ectionable ble language of the ourt 4naks, nagmamarunong5, ;fro$ all the facts and observations $ent $entio ione ned d , , the the +ourt draws the conc conclu lusi sion on that that the the laying of the $inefield could not have been accomplished without the knowledge of the Albanian overn$ent<( E. the 1lbanian government did not notify the existence of these mines as required by the 0ague onvention + of 2IQ in accordance with the general principles of international law and humanity
Nand so because 1lbania must have have known of the existence of the minefield, it had the obligation to make the necessary acts of notification.
ourt ourt DA<, DA<, 1lban 1lbania ia had the duty to notify xxx #he obligations consisted in notifying, for the benefit fit of shippi shipping ng in genera general, l, the existe existence nce of the minefield and in warning the approa approachi ching ng %riti %ritish sh warships of imminent danger danger to which which the mine minefi fiel eld d expo expose sed d
them. #his #his howeve however, r, is not based on the 0ague onvention as claimed by but on cert certai ain n gener general al and and well-recogni&ed prin princi cipl ples es,, name namely ly elementary consideration of humanity humanity,, even more exac exacti ting ng in peac eace than in warG the principle if freedom of maritime commun communica icatio tionG nG and every
#he 1lbanian :overn :overnmen mentt has not disputed the comp compet eten ence ce of the the ourt to decide what kind of satisfaction is due under the 1greement. f the ourt is component to decide what kind of satisfaction is due to 1lbania under the agreement, it is difficult to see why it should lack competenc competence e t decide decide the amount of compensati compensation on which which is due due to the the unit united ed ing ingdo dom m unde underr the the first part. <<AF 0as the nited ingdom violated violated internati international onal law by the acts of its 6avy in 1lbani anian wate waters rs,, firs firstt on the the day on which the explos explosion ions s occurr occurred ed and secondly dly, on 6ove 6ovemb mber er 2Fth and 2Eth, when it undertook the sweep of the strait? 4 says it was simply exercising the right of innocent passage5 C. C. was was the the 7c 7cto tobe ber r nd FF passage innocent? ourt Des. #he 6orth orfu hanne hannell belong belongs s to the class of international hig highway hways s throu hroug gh which passage cannot cannot be prohibited prohibited by a coastal state in time of peace.
84
#he 7ctober FFnd pass passag age e was was not not a poli politi tica call miss missio ion n as asserted asserted by 1lbaniaG 1lbaniaG it was desi design gned ed to affi affirm rm a righ rightt whic which h had had been been un(us n(usttly denied. 1lbania claimed that it was (ustified in requi equiri ring ng cons consen entt because of exceptional circumstances it was technically in a state of war war with with :reec :reece e which was claiming a part of its territory. territory. ourt #he circumsta circumstances nces would would have been (ustified in issuing ;A: ;A:$1 $1# #76< 76< in respect of the passage passage of warships warships through the straitG but not in prohibiting the passage or in sub( sub(ec ecti ting ng it to the the requirement of special authori&ation. J. >as 7per 7perat atio ion n ;etai etaill 46ovem ovembe ber r th FO2E %ritish minesweeping operations5 valid? ourt 67, the action of the the %rit %ritis ish h navy navy constituted a violation of 1lbanian sovereignty. i.
ii.
t was against the clearly expresse d wish of the 1lbanian governm ent. t did not have have the the consent of the internatio
iii.
nal nal mine mine clearance organi&ati ons. t was not an exercise of the right of innocent passage ob(ect was to secure the mines as quickly as possible a. prese nted this as a new and speci al appli catio n of the theor y of interv entio n, by mean s of which the interv ening
od of selfprote ction or selfhelp ourt not accepted. %etween independent
do not beli believ eve e that that international (ustice could be content with with indi indire rect ct evid eviden ence ce of the the sort sort that that has been prod produc uced ed in the the pres presen entt case case,, whic which h affects the hono honour ur of a
position in the community of nations. #hat #hat 1lba 1lbani nian an loca locall authorities must have seen een or hear eard the minelaying operations has cert ertainly not been proved. Aven if the 1lbanian coastal guards guards were were in the position to exer exerci cise se the the necessary vigilance over the strait, that in no way exclud excludes es the possib possibili ility ty of a clandesti clandestine ne operation. !urther, even the ourt expe expert rts s said said that under less favorable cond condit itio ions ns it would be impossibl impossible e to hear the operation from all points. #he culpa of 1lbania has not been proved. 7ne cann cannot ot condemn emn a
85
-
and functioni functioning ng of the 1lbani 1lbanian an coastal watchhaving the regard to the limited sources of hat small country = such a lack of dili dilige genc nce e as might involve involve the responsibility of 1lbania. 1nd even if 1lbania knew, the coastal guar guards ds had had neither sufficient time nor the necessary technical means for giving such a warning.
#he our ourt has no (urisdiction to assess the amount of compensation. #he text in the the
Minnocent passage.M -
#he question question of innoc nocent ent passage of warships warships has not been regula regulated ted by convention and it is impossibl impossible e to say that an international custom exists in regard to it. 1s such, the passage of foreign warships thru territorial waters is to a right but a tolerance. 1ccordingly, 1ccordingly, the righ rightt to regu regula late te the the passage of warships thru its its terri territor torial ial waters appertains appertains to the coas coasttal state 41lbania5. !or its its fail failur ure e to obtain the necessary cons consen ent, t, misu misuse sed d the the right of passag passage e and for that reas reason on,, the sovereignty of 1lban 1lbania ia in her territor territorial ial water aters s was violated.
%ritish minesweeping operations was nothing but the intervention of a foreig foreign n power power in the aff affair airs of anot anothe her r stat state. e. #he #he clai claim m to exe exercise (udicial action in the territory of anot anothe herr stat state e is
inadmissible because it violates the sove sovere reig ignt nty y of the the state in question. -
%ritish %ritish actions in the 1% invo nvolved the internati international onal liability liability of :reat :reat %ritai %ritain n and must be described as a violation of nternational law. UGE A9EEO %reach of international law has foremost place in the theory of responsibility. 1pproach suggested the victim has only to prov prove e dama damage ge and and the chain of causationG and that is enou enough gh to invol nvolv ve responsibi responsibility lity,, unless unless the the defe defend ndan antt can can prov prove e cul culpa in a Erd party, or in the victim, or force ma(eureG only these can relieve him from responsibility. f the participation of
a Erd coun countr try y was was evident 4Dugoslavia in the case at bar5 the condemnati condemnation on of the respondent could still not not be foun found ded on that fact. #he international (udge*s (urisdiction is based on the will of the parties in virtue of 1rticle E9 of the ourt urt*s
86
presumptions with a view to reaching that state of moral, human certainty with which, despite the risk of occasional errors, a court of (ustice must be content.
-
n the 1%, there is no need to speak of riskG the presumption of culpa is sufficient and is quite in its place in a case of recogni&ed and admitted negligence. #herefore, in international law 1lbania is responsibility. re assessment of compensation ourt should not have decided on the issue. t is not exactly a question of competence, but of determining the content of the petitum asked for a simple declaration of responsibility, reserving a subsequent settlement. #he adoption of a special agreement presupposes mutual renunciations limiting the effect of the ourt*s decision to the main fact
of recognition of responsibilityG and regarding essentially the purpose of international (ustice as being to declare the right. 1dditional matters, such as the estimation of the loss and the method of payment, have been left by the parties to other procedures, more favorable to their interests, and to be determined in the future.
R. ECER riminal character of the incident on nd 7ctober FF -
:reat %ritain seems to base her submission in regard to 1lbania*s responsibility primarily on the allegation that 1lbania laid the mines or took part as an accomplice in laying them, i.e., on an accusation of a definitely criminal character.
-
0owever, the nternational ourt is not a criminal court. #he
6o direct evidence has been produced to establish the 1lbanian cogni&ance of the laying of the mines. 7n international law, there is a presumption in favors of every
not an international delinquency if committed neither willfully and maliciously nor with culpable negligence. #he
ELI &'(3(*
udg#en!
0urisdiction of the +ourt and Ad$issibility of the Application= *ule of 3haustion of !ocal *e$edies 4pares. J+9E5
1n ob(ection to the admissibility of the present case was entered by taly in its ounter-8emorial, on the ground of an alleged failure of the two nited
#he nited
87
4the (urisdictional clause5 of the !6 #reaty is categorical in its terms, and unqualified by any reference to the local remedies rule. t also argued that in so far as its claim is for a declaratory (udgment of a direct in(ury to the nited
7n the question whether local remedies were, or were not exhausted by ;aytheon and 8achlett, the hamber notes that
the damage claimed in this case to have been caused to ;aytheon and 8achlett is said to have resulted from the Llosses incurred by A$<*s owners as a result of the involuntary change in the manner of disposing of A$<*s assetsM and it is the requisition order that is said to have caused this change, and which is therefore at the core of the nited
1fter examining the action taken by A$< in its appeal against the requisition order and, later, by the trustee in bankruptcy, who claimed damages for the requisition, the hamber considers that the municipal courts had been fully sei&ed of the matter which is the substance of the 1pplicant*s claim before the hamber. taly however contended that it was possible to cite the provision of the treaties themselves before the municipal courts, in con(unction with 1rticle FJE of the talian ivil ode, which was never done.
1fter examining the (urisprudence cited by
taly, the hamber concludes that it is impossible to deduce what the attitude of the talian courts would have been if such a claim had been brought.
Alleged >reaches of the Treaty of #riendship, +o$$erce and &avigation and its Supple$entary Agree$ent 4paras. 9J-9Q5
@aragraph of the nited
L425 #he ;espondent violated the international legal obligations which it undertook by the #reaty of !riendship, ommerce and 6avigation between the two countries, and the
particular, violated 1rticles , C, C of the #reaty and 1rticle of the
#he acts of the ;espondent which are alleged to violate its treaty obligations were described by the 1pplicant*s counsel in terms which it is convenient to cite here
L!irst, the ;espondent violated its legal obligations when it unlawfully requisitioned the A$< plant on 2 1pril 2I9+ which denied the A$< stockholders their direct right to liquidate the A$< assets in an orderly fashion.
88
of acquiring A$< for a price far less than its fair market value.M
#he most important of these acts of the ;espondent which the 1pplicant claims to have been in violation of the !6 #reaty is the requisition of the A$< plant by the 8ayor of @alermo on 2 1pril 2I9+, which is claimed to have frustrated the plan for what the 1pplicant terms an Lorderly liquidationM of the company. t is fair to describe the other impugned acts of the ;espondent as ancillary to this core claim based on the requisition and its effects.
Article Treaty 225
of #+& 4paras. 9+-
#he allegation by the nited
L#he nationals, corporations and associations of either 0igh ontracting @arty shall be permitted, in conformity with the applicable laws and regulations within the territories of the other 0igh ontracting
@arty, to organi&e, control and manage corporations and associations of such other 0igh ontracting @arty for engaging in commercial, manufacturing, processing, mining, educational, philanthropic, religious and scientific activities.M
n terms of the present case, the effect of this sentence is that ;aytheon and 8achlett are to be permitted, in conformity with the applicable laws and regulations within the territory of taly, to organi&e, control and manage A$<. #he claim of the nited
1 requisition of this kind must normally amount to a deprivation, at least in important part, of the right to control and manage. #he reference in 1rticle
to conformity with Lthe applicable laws and regulationsM cannot mean that, if an act is in conformity with the municipal law and regulations 4as, according to taly, the requisition was5, that would of itself exclude any possibility that it was an act in breach of the !6 #reaty. ompliance with municipal law and compliance with the provisions of a treaty are different questions.
#he treaty right to be permitted to control and manage cannot be interpreted as a warranty that the normal exercise of control and management shall never be disturbedG every system of law must provide, for example, for interferences with the normal exercise of rights during public emergencies and the like.
#he requisition was found both by the @refect and by the ourt of 1ppeal of @alermo not to have been (ustified in the applicable local lawG if therefore, as seems to be the case, it deprived ;aytheon and 8achlett of what were at the moment their most crucial rights to control and manage, it might appear prima facie a
violation of 1rticle , paragraph F.
1ccording to the ;espondent, however, ;aytheon and 8achlett were, because of A$<*s financial position, already naked of those very rights of control and management of which they claim to have been deprived. #he hamber has therefore to consider what effect, if any, the financial position of A$< may have had in that respect, first as a practical matter, and then also as a question of talian law.
#he essence of the 1pplicant*s claim has been throughout that ;aytheon and 8achlett, which controlled A$<, were by the requisition deprived of the right, and of the practical possibility, of conducting an orderly liquidation of A$<*s assets, the plan for which liquidation was however very much bound up with the financial state of A$<.
1fter noting that the orderly liquidation was an alternative to the aim of keeping the place going, and that it was hoped that the threat of closure might bring pressure to bear on the talian
89
authorities, and that the talian authorities did not come to the rescue on acceptable terms, the hamber observes that the crucial question is whether ;aytheon, on the eve of the requisition, and after the closure of the plant and the dismissal, on FI 8arch 2I9+, of the ma(ority of the employees, was in a position to carry out its orderly liquidation plan, even apart from its alleged frustration by the requisition.
#he successful implementation of a plan of orderly liquidation would have depended upon a number of factors not under the control of A$<*s management. Avidence has been produced by the 1pplicant that ;aytheon was prepared to supply cash flow and other assistance necessary to effect the orderly liquidation, and the hamber sees no reason to question that ;aytheon had entered or was ready to enter into such a commitmentG but other factors give rise to some doubt.
1fter considering these other factors governing the matter = the preparedness of creditors to cooperate in an orderly
liquidation, especially in case of inequality among them, the likelihood of the sale of the assets reali&ing enough to pay all creditors in full, the claims of the dismissed employees, the difficulty of obtaining the best price for assets sold with a minimum delay, in view of the trouble likely at the plant when the closure plans became known, and the attitude of the
!inally there was, beside the practicalities, the position in talian bankruptcy law. f A$< was in a state of legal insolvency at E2 8arch 2I9+, and if, as contended by taly, a state of insolvency entailed an obligation on the company to petition for its own bankruptcy, then the relevant rights of control and management would not have existed to be protected by the !6 #reaty. >hile not essential to the
hamber*s conclusion stated above, an assessment of A$<*s solvency as a matter of talian law is thus highly material.
1fter considering the decision of the @refect and the (udgments of the courts of @alermo, the hamber observes that whether their findings are to be regarded as determinations as a matter of talian law that A$< was insolvent on E2 8arch 2I9+, or as findings that the financial position of A$< on that date was so desperate that it was past saving, makes no differenceG they reinforce the conclusion that the feasibility of an orderly liquidation is not sufficiently established.
f, therefore, the management of A$<, at the material time, had no practical possibility of carrying out successfully a scheme of orderly liquidation under its own management, and may indeed already have forfeited any right to do so under talian law, it cannot be said that it was the requisition that deprived it of this faculty of control and management. #here were several causes acting together that
led to the disaster to A$<, of which the effects of the requisition might no doubt have been one. #he possibility of orderly liquidation is purely a matter of speculation. #he hamber is therefore unable to see here anything which can be said to amount to a violation by taly of 1rticle , paragraph F, of the !6 #reaty.
Article :, paragraphs 1 and , of #+& Treaty 4paras. 2F22F5
#he 1pplicant*s claim under paragraphs 2 and E of 1rticle C of the !6 #reaty is concerned with protection and security of nationals and their property.
@aragraph 2 of 1rticle C provides for Lthe most constant protection and securityM for nationals of each 0igh ontracting @arty, both Lfor their persons and propertyMG and also that, in relation to property, the term LnationalsM shall be construed to Linclude corporations and associationsMG and in defining the nature of the protection, the required standard is established by a reference to Lthe full protection and security required by
90
international lawM. @aragraph E elaborates this notion of protection and security further, by requiring no less than the standard accorded to the nationals, corporations and associations of the other 0igh ontracting @arty, and no less than that accorded to the nationals, corporations and associations of any third country. #here are, accordingly, three different standards of protection, all of which have to be satisfied.
1 breach of these provisions is seen by the 1pplicant to have been committed when the ;espondent Lallowed A$< workers to occupy the plantM. >hile noting the contention of taly that the relevant LpropertyM, the plant in @alermo, belonged not to ;aytheon and 8achlett but to the talian company A$<, the hamber examines the matter on the basis of the nited
#he reference in 1rticle C to the provision of Lconstant protection and securityM cannot be construed as the
giving of a warranty that property shall never in any circumstances be occupied or disturbed. n any event, considering that it is not established that any deterioration in the plant and machinery was due to the presence of the workers, and that the authorities were able not merely to protect the plant but even in some measure to continue production, the protection provided by the authorities could not be regarded as falling below Lthe full protection and security required by international lawMG or indeed as less than the national or third
#he 1pplicant sees a further breach of 1rticle C, paragraphs 2 and E, of the !6 #reaty, in the time taken = 29 months = before the @refect ruled on A$<*s administrative appeal against the 8ayor*s requisition order. !or the reasons already explained in connection with 1rticle , the hamber re(ects the contention that, had there been a speedy decision by the @refect, the bankruptcy might have been avoided.
>ith regard to the alternative contention that taly was obliged to protect A$< from the deleterious effects of the requisition, inter alia by providing an adequate method of overturning it, the hamber observes that under 1rticle C the Lfull protection and securityM must conform to the minimum international standard, supplemented by the criteria of national treatment and mostfavoured-nation treatment. t must be doubted whether in all the circumstances, the delay in the @refect*s ruling can be regarded as falling below the minimum international standard. 1s regards the contention of failure to accord a national standard of
protection, the hamber, though not entirely convinced by the ;espondent*s contention that such a lengthy delay as in A$<*s case was quite usual, is nevertheless not satisfied that a Lnational standardM of more rapid determination of administrative appeals has been shown to have existed. t is therefore unable to see in this delay a violation of paragraphs 2 and E of 1rticle C of the !6 #reaty.
Article :, paragraph 5, of #+& Treaty 4paras. 22E-22I5
#he first sentence of 1rticle C, paragraph F, of the !6 #reaty provides as follows
LF. #he property of nationals, corporations and associations of either 0igh ontracting @arty shall not be taken within the territories of the other 0igh ontracting @arty without due process of law and without the prompt payment of (ust and effective compensation.M
#he hamber notes a difference in terminology between the two authentic texts 4Anglish and talian5G the word
91
LtakingM is wider and looser than Lexpropria&ioneM.
n the contention of the nited
#he hamber observes that the charge based on the combination of the requisition and subsequent acts is really that the requisition was the beginning of a process that led to the acquisition of the bulk of the assets of A$< for far less than market value. >hat is thus alleged by the 1pplicant, if not an overt expropriation, might be regarded as a disguised expropriationG because, at the end of the process, it is indeed tide to property itself that is
at stake. #he nited
1ssuming, though without deciding, that Lexpropria&ioneM might be wide enough to include a disguised expropriation, account has further to be taken of the @rotocol appended to the !6 #reaty, extending 1rticle C, paragraph F, to Linterests held directly or indirectly by nationalsM of the @arties.
#he hamber finds that it is not possible in this connection to ignore A$<*s financial situation and the consequent decision to close the plant and put an end to the company*s activities. t cannot regard any of the acts complained of which occurred subsequent to the bankruptcy as breaches of 1rticle C, paragraph F, in the absence of any evidence of collusion, which is now no longer even alleged. Aven if it were possible to see the requisition as having been designed to bring about bankruptcy, as a step
towards disguised expropriation, then, if A$< was already under an obligation to file a petition of bankruptcy, or in such a financial state that such a petition could not be long delayed, the requisition was an act of supererogation. !urthermore this requisition, independently of the motives which allegedly inspired it, being by its terms for a limited period, and liable to be overturned by administrative appeal, could not, in the hamber*s view, amount to a LtakingM contrary to 1rticle C unless it constituted a significant deprivation of ;aytheon and 8achlett*s interest in A$<*s plantG as might have been the case if, while A$< remained solvent, the requisition had been extended and the hearing of the administrative appeal delayed. n fact the bankruptcy of A$< transformed the situation less than a month after the requisition. #he requisition could therefore only be regarded as significant for this purpose if it caused or triggered the bankruptcy. #his is precisely the proposition which is irreconcilable with the findings of the municipal courts, and with the hamber*s conclusions above.
Article of Supple$entary Agree$ent to #+& Treaty 4paras. 2F2E5
1rticle of the
L#he nationals, corporations and associations of either 0igh ontracting @arty shall not be sub(ected to arbitrary or discriminatory measures within the territories of the other 0igh ontracting @arty resulting particularly in 'a( preventing their effective control and management of enterprises which they have been permitted to establish or acquire thereinG or, 'b( impairing their other legally acquired rights and interests in such enterprises or in the investments which they have made, whether in the form of funds 4loans, shares or otherwise5, materials, equipment, services, processes, patents, techniques or otherwise. Aach 0igh ontracting @arty undertakes not to discriminate against nationals, corporations and associations of the other 0igh ontracting @arty as
92
to their obtaining under normal terms the capital, manufacturing processes, skills and technology which may be needed for economic development.M
#he answer to the 1pplicant*s claim that the requisition was an arbitrary or discriminatory act which violated both the ;'a(< and the ;'b(< clauses of the 1rticle is the absence of a sufficiently palpable connection between the effects of the requisition and the failure of A$< to carry out its planned orderly liquidation. 0owever, the hamber considers that the effect of the word LparticularlyM, introducing the clauses ;'a(< and ;'b(<, suggests that the prohibition of arbitrary 4and discriminatory5 acts is not confined to those resulting in the situations described in ;'a(< and ;'b(< , but is in effect a prohibition of such acts whether or not they produce such results. t is necessary, therefore, to examine whether the requisition was, or was not, an arbitrary or discriminatory act of itself.
#he nited
entity controlled by talyG there is, however, no sufficient evidence before the hamber to support the suggestion that there was a plan to favour ; at the expense of A$<, and the claim of Ldiscriminatory measuresM in the sense of the
n order to show that the requisition order was an LarbitraryM act in the sense of the
#hough examining the decisions of the @refect of @alermo and the ourt of 1ppeal of @alermo, the hamber observes that the fact that an act of a public authority may have been unlawful in
municipal law does not necessarily mean that that act was unlawful in international law. %y itself, and without more, unlawfulness cannot be said to amount to arbitrariness. #he qualification given to an act by a municipal authority 4e.g., as un(ustified, or unreasonable or arbitrary5 may be a valuable indication, but it does not follow that the act is necessarily to be classed as arbitrary in international law.
6either the grounds given by the @refect for annulling the requisition, nor the analysis by the ourt of 1ppeal of @alermo of the @refect*s decision as a finding that the 8ayor*s requisition was an excess of power, with the result that the order was sub(ect to a defect of lawfulness, signify, in the hamber*s view, necessarily and in itself any view by the @refect, or by the ourt of 1ppeal of @alermo, that the 8ayor*s act was unreasonable or arbitrary. 1rbitrariness is a willful disregard of due process of law, an act which shocks, or at least surprises, a sense of (uridical propriety. 6othing inthe decision of the @refect, or in the (udgment of the ourt of 1ppeal of @alermo,
conveys any indication that the requisition order of the 8ayor was to be regarded in that light. ndependently of the findings of the @refect or of the local courts, the hamber considers that it cannot be said to have been unreasonable or merely capricious for the 8ayor to seek to use his powers in an attempt to do something about the situation in @alermo at the moment of the requisition. #he 8ayor*s order was consciously made in the context of an operating system of law and of appropriate remedies of appeal, and treated as such by the superior administrative authority and the local courts. #hese are not at all the marks of an LarbitraryM act. 1ccordingly, there was no violation of 1rticle of the
Article : of #+& Treaty 4paras. 2E22E35
1rticle C of the !6 #reaty, in four paragraphs, is principally concerned with ensuring the right Lto acquire, own and dispose of immovable property or interests therein Sin the talian text, ;beni
93
i$$obili o " " " altri diritti real(
#he hamber notes the controversy between the @arties turning on the difference in meaning between the Anglish LinterestsM, and the talian, ;diritti reali(<, and the problems arising out of the qualification, by the #reaty, of the group of rights conferred by this 1rticle, laying down alternative standards, and sub(ect to a proviso. #he hamber considers, however, that, for the application of this 1rticle, there remains precisely the same difficulty as in trying to apply 1rticle , paragraph F, of the !6 #reaty what really deprived ;aytheon and 8achlett, as shareholders, of their right to dispose of A$<*s real property, was not the requisition but the precarious financial state of A$<, ultimately leading inescapably to bankruptcy. n bankruptcy the right to dispose of the property of a corporation no longer belongs even to the company, but to the trustee acting for itG and the hamber has already decided that A$< was on a course to bankruptcy even
before the requisition. #he hamber therefore does not find that 1rticle C of the !6 #reaty has been violated
0aving found that the ;espondent has not violated the !6 #reaty in the manner asserted by the 1pplicant, it follows that the hamber re(ects also the claim for reparation made in the
Bro%nlie" Prin/i0les of Puli/ In!erna!ional La%" su0ra B. Causes of A/!ion Bro%nlie" !a!e Res0onsiili!< &NOT AAILABLE* &'* On 00. (),(3. Ta;e no!e of !$e Canadian No!e of an +-" '()( !o !$e o8ie! A#assador" in /onne/!ion %i!$, &+* 00. +)),+3&A00endi7 II*: =Canadian Clai# for a#age Caused < o8ie! Cos#os>
>hen does a wrongful act of a stat #his arises when an act or omi state constitutes breach of its obli time when the obligation was in for >hat conduct on the part of the or considered as an act of that state state responsibility? ;eflecting general customary law i 1rticles on
>ill the conduct of an organ constitute a wrongful act if it is perf No!es: violation of law? 7n nternational ;esponsibility legal consequence Axpressing of an illegal a widely act held or positio internationally wrongful publicists conduct or by used arbitral in the tribunals i codification form of)raft thewhich nternational readsM L#he$aw conduct of ommission a territorial government entitie empowered to exercise elements on the concept of imputability authority, or attributionZextended such organ having to acted establish the connection between be considered the state as an andactthe of the sta wrongful act that particular case the organ exc according to internal law or co proposition ; arises when there concerning is an actitsoractivity.M omission in breach of legal duty imputable or attributable to the hat is the legal consequence of a Ro#e !a!u!e of !$e in general terms where there is no reason to impute or In!erna!ional attribute the act to the state, then #hethere opinion is failure of theto@/ attach in the h Cri#inal Cour! ; to that state. instructive, thusNMit is a principl general conception of law, tha o #en /$e/; ou! o!$er #en n the later draft of the $, engagement LimputedMinvolves changed an obligation to "worthy" members of my gender. i believe it's perfectly LattributedM- maybe because when you impute a motive, normal. it's not like i'd (ump into bed is with every cute not guybe i true there fiction, it may #heand essential the other principle hat is to be established firstestablish in the state theresponsibility situation which wo now tell me... is that so wrong?Y issue is the existence of the legal have duty. existed 7nce if that established, act had not bee A) it will be clear which state has to perform legal duty. ;estitution of this kind, or if this is II. Enfor/e#en! of 8ay a state commit and be of aheld sumresponsible corresponding fortoathe valu Clai#s wrongful act? kind would bearG the award, if restitution in kin or payment in A. Ad#issiili!< of 1 state may commit an act which principles is characteri&ed which should byserve $ to de Clai#s as wrongful. t is a norm of compensation general $ due thatfor Levery an act contr internationally wrongful act of a state entails the @ of that state.M
94
C. udi/ial e!!le#en! of is0u!es Bro%nlie" Prin/i0les of Puli/ In!erna!ional La%" su0ra
ands" Manual on In!erna!ional Cour!s and !riunals &NOT AAILABLE* INTEA: T2ING U NEE TO NOW ABOUT T2E IC: Onl< !a!es #a< e 0ar!ies !o /ases efore !$e Cour!
t is the function of the / to decide in accordance with international law disputes of a legal nature that are submitted to it by
1n international legal dispute is, as the @/ put it, "1 disagreement on a question of law or fact, a conflict, a clash of legal views or of interests."
opposing parties may eventually lead to contentious proceedings before an international tribunal. t is conceivable that such proceedings could be between a ithin their respective fields of (urisdiction, institutions such as the ourt of /ustice of the Auropean ommunities in $uxembourg or the Auropean ourt of 0uman ;ights in
and invokes against another arcelona Traction, !ight and Power +o$pany, !i$ited, 3lettronica Sicula S"p"A" '3!S(5. $ike any other court, the / can only operate within the constitutional limits that have been laid down for it. 0ardly a day passes without the ;egistry receiving written or oral applications from private persons. 0owever heartrending, however well founded such applications may be, the / is unable to entertain them and a standard reply is always sent "nder 1rticle EJ of the
•
#oday, the ourt is open to practically every
•
•
obligations and thus at the same time became parties to the
95
a member of the nited 6ations nor a party to the here they have
been parties to a case, they have been required to contribute to the costs thereof. #he (urisdiction of the ourt so far as concerns the parties entitled to appear before it Z (urisdiction ratione personae Z covers those
should be dealt with by the ourt. t is this agreement that determines the (urisdiction of the ourt so far as the particular dispute is concerned Z the ourt's (urisdiction ratione $ateriae. t is true that 1rticle E9 of the harter provides that the
force." #he first possibility envisaged here is where the parties bilaterally agree to submit an already existing dispute to the / and thus to recogni&e its (urisdiction over that particular case.
96
not recogni&ed the ourt's (urisdiction and inviting it to do so hitherto, this has always met with a negative response. Treaties and conventions #he second possibility envisaged in 1rticle E9, paragraph 2, of the
unilateral application, or conclude a special agreement with such party or parties providing for the issue to be referred to the /. #he wording of such (urisdictional clauses varies from one treaty to another. 8odel (urisdictional clauses have been prepared by, inter alia, the nstitute of nternational $aw 42I395. /urisdictional clauses are to be found in treaties or conventions •
•
having as their ob(ect the pacific settlement of disputes between two or more
concerning the interpretation or application of the treaty or convention or only some of its provisions 4e.g., disputes where the issue relates to a peremptory rule of international law Z jus cogens5.
of the /, any dispute that arises can be submitted to the / in the same way as it could have been to the @/. #he few hundred treaties or conventions that confer (urisdiction on the ourt in this way will normally have been registered with the
97
obligation, the (urisdiction of the ourt in all legal disputes concerning 'a( the interpretation of a treatyG 'b( any question of international lawG 'c( the existence of any fact which, if established, would constitute a breach of an international obligationG 'd( the nature or extent of the reparation to be made for the breach of an international obligation. E. #he declarations referred to above may be made unconditionally or on condition of reciprocity on the part of several or certain
why such declarations are known as "declarations of acceptance of the compulsory (urisdiction of the ourt". #hese declarations, which take the form of a unilateral act of the ork of the 7rgani&ation, in 2IQ and 2IQJ5 and by the nstitute of nternational $aw 42I3I5, they are fewer in number than had been hoped. n /uly 2II9 there were only 3I, from the following regional groups 1frica 2Q 422 of them since 2I995G $atin 1merica IG 1sia 3G Aurope and other
(urisdiction, Q of them after they had been made respondents in proceedings before the ourt. 1s with treaties or conventions, the
immediately. #he most frequently employed reservations relate to disputes Z •
•
•
•
•
for which another means of peaceful settlement is providedG arising before a certain date or concerning situations or facts anterior to that date, generally the date on which the
98
•
•
•
the declaration does not have diplomatic relationsG for the specific purpose of which the other party seems to have made its declaration of acceptance of compulsory (urisdictionG concerning certain multilateral treatiesG concerning certain aspects of the law of the sea.
#he two most important of these reservations, that relating to other methods of pacific settlement, which is found in EE declarations, and that relating to matters of domestic (urisdiction, which is found in FE declarations, correspond to 1rticle I3 and 1rticle F 4Q5 of the nited 6ations harter respectively. #hese provide that nothing in the harter "shall prevent 8embers of the nited 6ations from entrusting the solution of their differences to other tribunals by virtue of agreements already in existence or which may be concluded in
the future"G "shall authori&e the nited 6ations to intervene in matters which are essentially within the domestic (urisdiction of any ith regard to the latter, it is indisputable that every sovereign
reservation to declare that a question in relation to which proceedings have been brought against it in the / falls within its domestic (urisdiction for the ourt to be deprived of (urisdiction over the case. #en countries originally employed such a formula in their declarations accepting the compulsory (urisdiction of the ourt. #he reservation was invoked in the +ertain &orwegian !oans and nterhandel cases. #he / upheld the ob(ection based on this reservation in the former case and did not deal with it in the latter case since it upheld an ob(ection based on other grounds.
2II9, five declarations included a clause of this kind. #he importance of such reservations is increased by the condition of reciprocity, which expressly or by implication attaches to all declarations of acceptance of the ourt's compulsory (urisdiction. #his means that where a dispute arises between two or more
99
that have accepted the compulsory (urisdiction of the / is already limited, 4see table5 it will be seen that this (urisdiction is general in respect of only a few of this already restricted number, being limited to various extents in respect of all the others.
states and private persons inds a. legal = > 76 legal depends on the sub(ective evaluation of the parties characteri&in g it political = not suitable for settlement by ad(udication = other view is that it is suitable given the willingnes s of the parties to abide by (udicial verdict
. Indi8idual Enfor/e#en! . 9e#ane;" T$e Legal Founda!ions on !$e In!erna!ional
b.
/usticiable and non (usticiable
@rocedures of
conduct their relations wOone another and discuss, ad(ust and settle their differences proce eds from 1rt EE 425 of 6 harter 1n obligation to enter into nego does not imply an obligation to reach an agreement 8ay be carried on by ordinary diplomatic officials or officials specially appointed of the highest rank
E. 8ediation a more active involvement wherein the Erd party does not merely provide the opportunity for the parties to negotiate but also actively participates in their discussions to reconcile their conflicting terms. #he suggestions of the mediator are merely suggested and may be re(ected wOout offense by the parties involved.
F. :ood 7ffices - method by which a Erd party attempts to bring the disputing states together to let them discuss the issues and arrive at an agreement employed when the parties are no longer on speaking terms, have severed diplomatic relations or have actually commenced hostilities
J. nquiry proce dure for states which were unwilling to submit their dispute to arbitration the function of commission of inquiry is for elucidation of facts by an impartial K conscientious investigation findin gs are not conclusive upon disputing states but they may exert a strong
100
moral influence in the settlement of conflict. 3. onciliation comb ines the advantages of inquiry and mediation and their limitations calls for active participation of Erd party for the settlement of dispute but recommendat ions are not binding nlik e in mediation, services of conciliator are not offered by Erd party but are solicited by the parties in dispute 6o uniformly accepted definition for other diplomatic procedure but they have one thing in common Erd party comes into the picture %. 1d(ucative @rocedure = settled by a Erd party the determination of the questions of law and fact involved in the question
2. 1rbitration soluti on of a dispute by a
Erd party, usually a tribunal created by the parties under a charter known as the compromis, which provides for the composition of the body, its rules of proceedings, sometimes the law to be applied and issues of fact and law to be ascertained. @roc eedings are essentially (udicial and ward is binding on parties by previous agreement. F. /udicial
#hey differ on the following i. (udicial tribunal is peexisting and a permane nt body while arbtral tribunal is an ad hoc created and filled by the parties themselv es ii. (urisdictio n in /< is usually compulso ryG submissi on to arbitratio n is voluntary iii. $aw applied in /< is independ ent of the will of the partiesG in arbitratio n, it may be limited by parties . @rocedures wOin the framework of int*l institutions = are essentially diplomatic or ad(udicative but which have some special characteristics of their own. 2. $eague of 6ations = ended in 2IE2 @rovided for 4a5 arbitration and (udicial settlement and 4b5 diplomatic procedure wOc
comprised the traditional secret diplomacy, inquiry, mediation, diplomacy by conference and parliamentary diplomacy F. 6
101
disputes or situations wOc threaten peace less immediately than those wOc < is authori&ed to deal with. t has right to deal with situations of breaches of peace and aggression if < fails to act due to veto of any permanent member. J. 7ther 7rgans Aconomic and
parties
to any dispute, the continuance of which is likely to endanger the $aintenance of international peace and security, shall, first of all, seek a solution by negotiation, enquiry, $ediation, conciliation, arbitration, judicial settle$ent, resort to regional agencies or arrange$ent s, or other peaceful $eans of their own choice" 5" The Security +ouncil shall, when it dee$s necessary, call upon the parties to settle their dispute by such $eans" Article 7 The Security +ouncil $ay investigate any dispute, or any situation which $ight lead to international friction or give rise to a dispute, in order to deter$ine whether the continuance of the dispute or situation is likely to endanger the $aintenance of international peace and security"
Article 8 1" Any %e$ber of the Bnited &ations $ay bring any dispute, or any situation of the nature referred to in Article 7, to the attention of the Security +ouncil or of the eneral Asse$bly"
5" A state which is not a %e$ber of the Bnited &ations $ay bring to the attention of the Security +ouncil or of the eneral Asse$bly any dispute to which it is a party if it accepts in advance, for the purposes of the dispute, the obligations of pacific settle$ent provided in the present +harter" " The proceedings of the eneral Asse$bly in respect of $atters brought to its attention under this Article will be subject to the provisions of Articles 11
and 15" Article 6 1"
The Security +ouncil $ay, at any stage of a dispute of the nature referred to in Article or of a situation of like nature, reco$$end appropriate procedures or $ethods of adjust$ent"
5"
The Security +ouncil should take into consideration any procedures for the settle$ent of the dispute which have already been adopted by the parties"
"
n $aking reco$$enda tions under this Article the Security +ouncil should also take into consideration that legal disputes should as a general rule be referred by the parties to the nternational +ourt of 0ustice in accordance
102
with the provisions of the Statute of the +ourt" Article D 1" Should the parties to a dispute of the nature referred to in Article fail to settle it by the $eans indicated in that Article, they shall refer it to the Security +ouncil" 5" f the Security +ouncil dee$s that the continuance of the dispute is in fact likely to endanger the $aintenance of international peace and security, it shall decide whether to take action under Article 6 or to reco$$end such ter$s of settle$ent as it $ay consider appropriate" Article E 2ithout prejudice to the provisions of Articles to D, the Security +ouncil $ay, if all the parties to any dispute so request, $ake reco$$endations to
the parties with a view to a pacific settle$ent of the dispute" Manila e/lara!ion on !$e Pea/eful e!!le#en! of In!erna!ional is0u!es &Ma< '(3+* &NOT AAILABLE*
IH. In!erna!ional Pea/e and e/uri!<: Funda#en!al Prin/i0les in Rela!ions A#ong !a!es A. In General UN C$ar!er" ' and + C$a0s. ) and (
UN e/lara!ion on Prin/i0les of In!erna!ional La% Con/erning Friendl< Rela!ions and Coo0era!ion A#ong !a!es" in Magallona" o/u#en!s in Con!e#0orar< In!erna!ional La% &NOT AAILABLE*
efini!ion of Aggression" in Magallona 0aving considered the report of the
by the
recommends that it should, as appropriate, take account of that )efinition as guidance in determination, in accordance with the harter, the existence of an act of aggression.
FE2Ith plenary meeting 2J )ecember 2IQJ 1nnex )efinition 1ggression #he 1ssembly,
of
:eneral
%asing itself on the fact that one of the fundamental purposes of the nited 6ations is to maintain international peace and security and to take effective collective measures for the prevention and removal of threats to the peace, and for the suppression of acts of aggression or other breaches of the peace, ;ecalling that the
103
restore international peace and security, ;ecalling also the duty of
even temporarily, of military occupation or of other measures of force taken by another
determination, 1dopts the following )efinition of 1ggressionS!6ET 1rticle 1ggression is the use of armed force by a
their consequences are not of sufficient gravity. 1rticle E 1ny of the following acts, regardless of a declaration of war, shall, sub(ect to and in accordance with the provisions of article F, qualify as an act of aggression 4a5 #he invasion or attack by the armed forces of a
4b5 %ombardment by the armed forces of a
104
receiving
peace. 1ggression gives rise to international responsibility.
conformity with the above-mentioned )eclaration.
1cts of 1ggression 2.
1rticle + E. 6o territorial acquisition or special advantage resulting from aggression is or shall be recogni&ed as lawful. 1rticle 9 6othing in this )efinition shall be construed as in any way enlarging or diminishing the scope of the harter, including its provisions concerning cases in which the use of force is lawful. 1rticle Q 6othing in this )efinition, and in particular article E, could in any way pre(udice the right to self-determination, freedom and independence, as derived from the harter, of peoples forcibly deprived of that right and referred to in the )eclaration on @rinciples of nternational $aw concerning !riendly ;elations and ooperation among
n their interpretation and application the above provisions are interrelated and each provision should be construed in the context of the other provisions. XXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXX XXXXXXXXX
F. E. J. 3.
9.
Q. !77#67#A<
2. 7fficial ;ecords of the :eneral 1ssembly, #wentyninth
0ere the term LstateM is used 2.
F. F. ;esolution 4BBC5, annex.
F9F3
E. Axplanatory notes on articles E and 3 are to be found in paragraph F of the ;eport of the
invasion or attack of a occupation however temp the use of force bombardment or use of the territory of another stat blockade of the ports of co attacking another state*s land, seaN use of armed forces of f against the @hilippines w subic, or extension of the what was agreed upon allowing a territory placed by another state, for use i of aggression against a thi sending out armed ban irregulars to carry out another state of such gravi above-listed acts.
without pre(udice to qu or whether a state is a not includes the concept where appropriate.
Waldo/;" T$e Regula!ion of !$e Use of For/e < Indi8idual !a!es in In!erna!ional La% %efore $eague of 6ations, $ did not regulate war, only forcible measures short of war.
reprisal - in(ured state legitimately imposes on offending state reparation when a5 No!es: that state violated $ 1ggression is the use of armed a state against b5 force thereby had been the sovereignty or territorial integrity or political previous independence of another state, or in any manner set out unsuccessful demand by the 6 harterN for rederess and c5
105
measures were reasonably proportionate to the in(ury intervention@ dictatorial interference in external or internal matters of a
of the
rules of $. #o this requires the identification of the existing principles K rules, their interpretation K application to the threat or use of nuclear weapons
Cases: Ni/aragua" su0ra Legali!< of !$e T$rea! or Use of Nu/lear Wea0ons &'((4* <<A is the threat or use of nuclear weapons in any circumstance permitted under international law? 4s there any international norm which specifically prohibitOauthori&e the use of nuclear weapons?5 1. @reliminary 8atters ;esolved %y the / 2.
F.
/ has (urisdiction to give advisory opinion as authori&ed by 1rt. 93 425 of the 6 harter at the request of whatever body or in accordance with the harter K 1rt. I3 425 of the 6 harter gives the :1 or the < the authority to give an advisory opinion on any legal question #he advisory opinion relates to a legal question within the meaning of the /
E.
#here would be no reason for the / to decline the exercise of (urisdiction beech only compelling reasons could lead it to such refusal
/., #he purpose of the advisory function is not to settle at least directly = disputes between
#he t. is not going beyond its (udicial role K would be taking upon itself a lawmaking capacity. #he t. cannot legislate K it is not called upon, in the 1%, to do so. ;ather, its task is to engage in its normal (udicial functions of ascertaining the existence or otherwise of legal principles K rules applicable to the threat or use of nuclear weapons.
#he t. merely states the existing law K does not legislate. %. !ormulation of the [uestion @ut to the t. by the :eneral 1ssembly #here are two texts of the question, one in Anglish and one in !rench. #here are some criticisms on the use of the work permitted as incompatible with the basis of $ of the principles of sovereignty Q consent. /., #he t. finds it unnecessary to pronounce on the possible divergence between the two texts of the question posed. ts real ob(ective is clear to determine the legality or illegality of the threat or use of nukes. . ;elevant 1pplicable $aw /., #he court concludes that the most directly relevant applicable law, is that relating to the use of force enshrine in the 6 harter K the law applicable in armed conflict which regulates the conduct of hostilities, together with any specific treaties on nuclear weapon that the court might determine to be relevant ). nique har. 7f
106
6ukes 6uclear weapons are explosive devices whose energy results from the fusion or fission of the atom. %y its very nature, that process releases not only immense amount of heat K energy but also powerful K prolonged radiation. #he first two causes of damage are more powerful than the damage caused by other weapons, while the phenomenon of radiation is said to be peculiar to nuclear weapons. #hese char. renders the nukes potentially catastrophic. #he destructive power of nuclear weapons cannot be contained in either space or time. #hey have the potential to destroy all civili&ation K the entire ecosystem of the planet. A. $egalityOillegality of ;ecourse to nuclear weapons in the light of the provision of the charter relating to the threat or use of force
nder the harter
6
1rt. F 4J5 1rt. 32 = conditions of necessity K proportionality in the exercise of the inherent right of the individual K collective self-
defense if an armed attack occurs the notions of threat K use of force stand togetherG possession of nukes, deterrence K threat 1rt. JF = whereby the < may take military enforcement measures in conformity with hap. C. / these provisions do not refer to specific weapons. #hey apply to any use of force regardless of the weapons employed. #he harter rather expressly prohibits, not permits the use of any specific weapon, including nukes. 1 weapon that is really unlawful per se, whether by treaty or custom, does not become lawful by reason of its being used for a leg. @urpose under the harter. / onclusion 6o. 2 1 threat or use of force by means of nuclear weapons that is contrary to 1rt. F 4J5 of the 6 charter and that fails to meet all the requirements of 1rt. 32, is unlawful.
/ onclusion 6o. F
#here is in neither customary nor conventional law any specific authori&ation of the threat or use of nuclear weapons
/ onclusion 6o. E
#here is in neither customary nor conventional law any comprehensive and universal prohibition of the threat or use of nuclear weapons as such.
1.
nlawful ness per se treaty law
2.
nstruments prohibiting use of poisoned weapons advanced nukes should be treated the same way K thus would be prohibited under a.
c.
F.
7ct. 2IQ #he :eneve @rotocol of 2Q /une 2IF3
nstruments expressly prohibiting the use of certain weapons of mass destruction a. onventi on of 7 1pril 2IQF of the @rohibitio n of the )evelop ment, @roductio n K eapons K on their destructio n b. onventi on of 2E /an. 2IIE on the @rohibitio n of the )evelop ment, @roductio n, eapons K on their )estructi on #he t. does not find any specific prohibitions
107
of recourse to nuclear weapons in treaties expressly prohibiting the use of certain weapons of mass destruction. E.
•
#reaties concluded in order to limit the acquisition, manufacture K possession of nukes, the deployment K testing of nukes 6ot yet resulted in a treaty of gen. prohibition of the same kind as for bacteriological K chemical weapons
1. #he acquisition, manufacture K possession of nukes • #reaty of #latelolco of 2J !eb 2I9Q • #reaty of ;arotonga of 9 1ugust 2I+3 %. / #hese treaties could therefore be seen as foreshadowing a future general prohibition of the use of such weapons, but they do not constitute such a prohibition by themselves. #he t. notes the signing, even more recently, on 23 )ec.
2II3, at %angkok, of a #reaty on the -!-U in 1frica. t does not however, view these elements as amounting to a comprehensive K universal conventional prohibition on the use, or the threat of use, of those weapons as such. . nlawfulness @er
onsistent practice of nonutili&ation of nukes a.
see in that practice the expressio n of an opinion (uris on the part of those who possess such weapons. b. @olicy of deterrenc e =
their use have fortunatel y not arisen. / 6o opinion (uris. #he members of the nt*l communit y are profoundl y divided on the matter of whether non recourse to nukes over the past 3 years constitute s the expressio n of an opinion (uris. nder the circ. #he ourt does not consider itself able to find that there is such an opinion (uris. F.
:eneral 1ssembly resolutions affirming the illegality of nukes
/ #he :1 res. put before the t. declare that the use of nukes would be a direct violation of the harter of the 6. 1lthough those resolutions are a clear sign of deep
108
concern regarding the problem of nukes, they still fall short of establishing the existence of an opinion (uris on the illegality of the use of such weapons.
other. @rinciples K ;ules of nternational 0umanitarian $aw / onclusion 6o. J
E.
#he ourt points out that the adoption each year by the :eneral 1ssembly, by a large ma(ority, of resolutions recalling the comment of ;esolution 293E 4BC5, K requesting the member states to conclude a convention prohibiting the use of nuclear weapons in any circumstance, reveals the desire of a very large section of the int*l community to take, by a specified K express prohibition of the use of nukes, a significant step forward along the road to complete nuclear disarmament. #he emergence, as lex lata, of a customary rule specifically prohibiting the use of nuclear weapons as such is hampered by the continuing tensions bet. #he nascent opinion (uris on the hand, K still strong adherence to the pratice of deterrence on the
1 threat or use of nuclear weapons should also be compatible with the requirements of the international law applicable in armed conflict, particularly those of the principles and rules international humanitarian law. 1s well as with specific obligations under treaties and other undertakings which expressly deal with nuclear weapons.
onclusions t follows from the above mentioned requirements that the threat or use of nuclear weapons would generally be contrary to the rules of international law applicable in armed conflict, and in particular the principles and rules of humanitarian law. 0owever, in view of the current state of it, and of the elements of fact at its disposal, the court cannot conclude definitively whether the threat or use of nuclear weapons would be lawful or unlawful in an extreme circumstance of self defense, in which the
very survival of a state would be at stake. n the long run $, and with the stability of the int*l order which it is intended to govern, are bound to suffer from the continuing difference of view with regard to the legal status of weapons as deadly as nuclear weapons. t is consequently important to put an end to this state of affairs the long promised complete nuclear disarmament appears to be the most appropriate means of achievement that result. #here exists an obligation to pursue in good faith and bring to a conclusion negotiations leading to nuclear disarmament in all its aspects under strict and effective international control.
of self@defence shall be i$$ediately reported to the Security +ouncil and shall not in any way affect the authority and responsibility of the Security +ouncil under the present +harter to take at any ti$e such action as it dee$s necessary in order to $aintain or restore international peace and security" Bro%nlie" T$e Use of For/e in elf, defense &'(4'*
•
B. elf,efense •
UN C$ar!er" Ar!i/le 6' &othing in the present +harter shall i$pair the inherent right of individual or collective self@ defence if an ar$ed attack occurs against a %e$ber of the Bnited &ations, until the Security +ouncil has taken $easures necessary to $aintain international peace and security" %easures taken by %e$bers in the eercise of this right
#he right of selfpreservation is regarded as identical with that of self-defense #he (ustified use of force in exercise of the right of selfpreservation is identical with the operation of the doctrine of necessity #he occasions for lawful intervention are identical with the (ustification provided by the right of selfpreservations K the doctrine of necessity 4intervention is applied to (ustified use of force, K sometimes employed by both governments and writers to describe action
109
•
•
•
not intended to create a state of war. #here is no clear distinction between exercise of a right to go to war in exercise of the right of selfpreservation K its other forms, on the one hand, K Lhostile measures short of warM. 7n the other. #he variety of ways in which governments K writers characteri&e K classify the various occasions when force has been used indicates the ex post facto K illogical nature of their classifications. #he confusion is traceable to a dislike of governments for open reliance on an arbitrary right to resort to war. 1s a result there was a practice of relying on vaguely defined grounds (ustifying the use of force.
1nalytically, the customary right of self-preservation K the doctrine of necessity comprehend F situations a. 1ction to enforce legal rights. #his in theory would restrict the use of force to cases in which pacific settlement had
b.
failed. 1 much wider freedom of action when LsecurityM is threatened, or the status quo is disturbed it is in this situation that the law ceases to have any limiting effect.
#he greatest obstacle to adequate legal regulation of the use of force was the right to self preservation K the related tangle of doctrines concerning necessity K intervention.
#he state practice of the period 2IF-E chiefly in the form of treaties, considered force to be lawful in 3 situations treaty creating a casus belli in advance F. use of force sa a consequence of LprovocationM E. an action taken by virtue of 1rt. 29 of the covenant 4provided for sanctions vs. the aggressor with the ob(ect of reinforcing the provisions for peaceful settlement, policing the aggressor5. J. axn in collective defense 3. force (ustified by the right of legitimate defense
2.
#he right of legitimate defense. )octrine K
t gives the strong indication that force was force was (ustified only in reaction vs. some threat or force
@arties to the :en, #reaty for the ;enunciation of >ar agreed that no act of aggression could be (ustified on the following grounds 2. #he internal condition of a state F. #he int*l conduct of a state
#he right of self defense in the @d. 1fter >> •
•
•
#he increasing acceptance by the states in the pd. between 2IF K 2I9I of the view that war or any use of force as an instrument of national policy was unlawful, ahs resulted in the demise of the right of self-help K of selfpreservation. >hile the right of self-preservation no longer existed in its classical form, some of its contents was preserved. #his
residual right was referred to as that of self-defense or legitimate defense. t was confined to reaction to immediate danger to the physical integrity of the state itself. #he right of <) commonly appeared in the context of the use of force. t was essentially a reaction by a
#he right of 1nticipatory
•
2Ith century customary law permitted anticipatory action in face of imminent danger 1nticipatory action has taken K stated to the exercise of the right of selfdefense on several occasions vs. armed bands operating from neighboring territory or proceeding by sea towards the
110
acting state although still outside territorial waters.
1s a matter of principle K policy, anticipatory self defense is open to certain ob(ections. t involves a determination of the certainty of attack which is extremely difficult to make K necessitates an attempt to ascertain the intention of a government
#he ;ule •
•
@roportionality
#he force used must be proportionate to the threat. #he formula used was that self-defense must involve Lnothing unreasonable or excessiveG since the act (ustified by the necessity of self defense, must be limited by that necessity K kept clearly within it.
#he right of
manner that int*l peace K security, K (ustice are not endangered. 4J5 xxx shall refrain in their int*l relations from the threat or use of force vs. territorial integrity or political independence of any state.
•
•
1rt. 32 6othing in the present charter shall impair the inherent right of individual or collective selfdefense is an armed attack occurs vs. a member of the 6 until the security council has taken measures necessary to maintain int*l peace K securityN #here is a gen. assumption that the charter prohibited selfhelp K armed reprisals. 1rt. 32 is presented as rendering all use of force illegal except in the exercised of the right of <) Lif an armed attack occurs.M Aven if it is accepted that 1rt 32 contains the sole content of self-defense within the harter, it may be argued that the right of selfdefense existing in general law is still always
available to the 6 members, the right being broader than that stated in 1rt. 32.
#he relations of customary law K the 6 charter •
)oes 1rt. 32 @ermit 1nticipatory hat is an armed attack? •
•
•
8ay include support for revolutionary groupsG Axperience has shown that an armed attack is ordinarily selfevident. #his does not mean incidents created by irresponsible groups or individuals, but rather, an attack by one state upon another. @urely internal disorders or revolutions would not be considered within the meaning of an armed attack. 0owever, if a revolution were aided K abetted by an outside force, such assistance might possibly be considered an armed attack.
•
•
f the correctness of the view that for 6 members, 1rt. 32 defines the right of selfdefense K is not qualified by the customary law is accepted, then states not bound by the obligations of the charter have less extensive obligations that member states. %y 2IJ3 selfdefense was understood to be (ustified only case of an attack by forces of a state. t is submitted that there is considerable (ustification for the conclusion that the right of <), individual or collective, which has received general acceptance in the most recent period has a content identical with the right expressed in 1rt. 32.
#he legal position is dominated by the customary rule that vessels on the open sea remain under the (urisdiction of the
111
•
•
•
•
flag state #here is a customary right of approach on suspicion of piracy, K of sei&ure K punishment, a right which is universally recogni&ed. #he right of hot pursuit has the overwhelming support of
F.
E.
in piracy in the slave trade, or though flying a foreign flag or refusing to show its flag, the ship, in reality, of the same nationalit y
onclusion •
•
#he se of !orce #he use of force is implicit in the terms Lwar of aggressionM , MinvasionM , MattackM K Laggression.M se of weapons which do not involve any explosive effect, with concomitant shock waves K heat, such as bacteriological, biological K chemical could be assimilated to the use of force. #hese weapons are employed for the destruction of life and property.
of
•
•
#hese considerations have caused (urists K governments to place emphasis on the question of determining cases in which resort to force is (ustified, or the permission rather than the prohibition. #he modern law relating to the use of force in <) is represented by the ma(or proposition that the beginning of an armed attack is a condition precedent for resort to force in self defense. 1nticipatory self defense is unlawfulG an attack must have commenced. !urther, the attack must be directed vs.
'. Use of For/e < UN
Case: Legali!< of !$e T$rea! and Use of Nu/lear Wea0ons &'((6*" su0ra
&ar!i/les /i!ed < ir Magi* Article 5 The )rgani9ation and its %e$bers, in pursuit of the Purposes stated in Article 1, shall act in accordance with the following Principles" 1"
The )rgani9ation is based on the principle of the sovereign equality of all its %e$bers" 5" All %e$bers, in order to ensure to all of the$ the rights and benefits resulting fro$ $e$bership, shall fulfill in good faith the obligations assu$ed by the$ in accordance with the present +harter" " All %e$bers shall settle their international disputes by peaceful $eans in such a $anner that international peace and security, and
112
justice, are not endangered" 7" All %e$bers shall refrain in their international relations fro$ the threat or use of force against the territorial integrity or political independenc e of any state, or in any other $anner inconsistent with the Purposes of the Bnited &ations" 8" All %e$bers shall give the Bnited &ations every assistance in any action it takes in accordance with the present +harter, and shall refrain fro$ giving assistance to any state against which the Bnited &ations is taking preventive or enforce$ent action" 6" The )rgani9ation shall ensure that states which are not %e$bers of the Bnited &ations act in accordance with these Principles so far as $ay be
necessary for the $aintenance of international peace and security" D" &othing contained in the present +harter shall authori9e the Bnited &ations to intervene in $atters which are essentially within the do$estic jurisdiction of any state or shall require the %e$bers to sub$it such $atters to settle$ent under the present +harter= but this principle shall not prejudice the application of enforce$ent $easures under +hapter :ll" Article 57 1"
n order to ensure pro$pt and effective action by the Bnited &ations, its %e$bers confer on the Security +ouncil pri$ary responsibility for the $aintenance of international
peace and security, and agree that in carrying out its duties under this responsibility the Security +ouncil acts on their behalf" 5" n discharging these duties the Security +ouncil shall act in accordance with the Purposes and Principles of the Bnited &ations" The specific powers granted to the Security +ouncil for the discharge of these duties are laid down in +hapters :, :, :, and G" " The Security +ouncil shall sub$it annual and, when necessary, special reports to the eneral Asse$bly for its consideration " Article 56 n order to pro$ote the establish$ent and $aintenance of international peace and security with the least diversion for ar$a$ents of the
worldHs hu$an and econo$ic resources, the Security +ouncil shall be responsible for for$ulating, with the assistance of the %ilitary Staff +o$$ittee referred to in Article 7D, plans to be sub$itted to the %e$bers of the Bnited &ations for the establish$ent of a syste$ for the regulation of ar$a$ents" Article "
The parties to any dispute, the continuance of which is likely to endanger the $aintenance of international peace and security, shall, first of all, seek a solution by negotiation, enquiry, $ediation, conciliation, arbitration, judicial settle$ent, resort to regional agencies or arrange$ent s, or other peaceful $eans of their own choice"
Article I The Security +ouncil shall deter$ine the eistence of any threat to the peace, breach of the peace, or act of aggression
113
and shall $ake reco$$endations, or decide what $eas $easur ures es shal shalll be taken taken in accord accordanc ance e with with Artic Articles les 71 and 75, 75, to $ai $aintai ntain n or restore restore internatio international nal peace and security" security" Article 71 #he
Article 81 &othing in the present +harter shall i$pa i$pair ir the the inhe inhere rent nt right right of indivi individua duall or collective self@ defenc defence e if an ar$ed ar$ed attack occurs against a %e$ber of the Bnited Bnited &ations, &ations, until the Security Security +ouncil +ouncil has taken $easures $easures necessary to $aintain international peace and security" %eas %easur ures es take taken n by %e$bers in the eercise of this right of self@def self@defence ence shall be i$$ediately reported to the Security +ouncil and shall not in any way affe affect ct the the auth author orit ity y and respon responsib sibil ility ity of the Security Security +ouncil +ouncil unde underr the the pres presen ent t +harter to take at any ti$e such action as it dee$s dee$s necess necessary ary in order order to $ainta $aintain in or restore restore internati international onal peace and security" security" Article 8 1"
The Security +ouncil shall, where appropriate, util utili9 i9e e such such regional arrange$ent s or agencies for enforce$ent action action under under its its author authority ity"" >ut no enforce$ent acti action on shal shall l be taken under regional arrange$ent s or by regional agencies
wit without hout the authori9ation of the Security +ouncil, +ouncil, with the eception of $easur $easures es agai agains nstt any any ene$y state, state, as defined in paragraph 5 of this Article, Article, provided for pursuant to Article 1JD or in regional arrange$ent s directed against renewal of aggressive policy on the part of any suc such sta state, te, until such ti$ ti$e as the )rgani9ation $ay, on request of the overn$ents concerned, be charg harged ed with the responsibility for preventing further aggression by such a state" 5" The ter$ ene$y ene$y state state as used in paragraph 1 of this Article applies to any state which which during during the the Seco econd 2orld 2ar has been an ene$y of any sign signat ator ory y of the the pres presen ent t +harter" T Gill Gill"" Lega Legall and and
o#e Poli!i/al Li#i Li#i!a !a!i !ion ons s on !$e !$e Po%er of !$e UN e/uri!< e/uri!< Coun/il Coun/il !o E7er/ise i!s Enfor/e#en! Po%ers Under C$a0!er ) of !$e C$ar!er &NOT AAILABLE* ani anis$ s$ aro aroos os$i $i"" T$e Uni!ed Uni!ed Na!ions Na!ions And T$e e8elo0#en! en! Of Colle/!i8 Colle/!i8e e e/uri!< e/uri!< &NOT AAILABLE* AAILABLE*
Bedjaoui, The New World Order and the e!u e!urit" #oun #oun!i !ill $NOT $NOT %&%'(%B()*
TAL LATIN. PEOPLE WILL T2IN DOU?RE MART 4#A;8< 6 6#A;61#761$ $1>5
a fortiori - according to >ebst bster er "with greater reason or more convincing force -- used in drawing a concl onclus usiion that hat is infe inferr rred ed to be even even more ore cert certai ain n than than another."
Axample f it is a violation of the sending sending state's state's rights rights
114
to arrest arrest its consul consular ar offici official, al, then then a fortiori it would be a violation to arrest its ambassador. a poster sterio iorri - from from effect effect to causeG causeG from from particula particularr to generalG generalG indu induct ctiv ive e 4bas 4based ed on observation or experience5. a priori - from cause to effectG from generali&ation to particula particularG rG deductive deductiveGG pres presup uppo pose sed d by or reason reasoning ing from from selfselfeviden evidentt propos propositi itions ons 4based on theory rather than practice5. amic amicus us curi curiae ae "friend of the court"G a person person with with a strong strong interest in or views on the sub(ect matter of a given legal action may petiti petition on the court court for perm permis issi sion on to file file a brie brief, f, oste ostens nsib ibly ly on behalf of a party but actually actually to suggest suggest a ration rationale ale consis consisten tentt with with its its own own view views. s.
Axample &P+ of ran v" %KT Stol tolt Sheaf eaf case con contra leg legem "against the law" 4term used to describe an equitable decision of a court or tribunal that is cont contra rary ry to the the law law governing the controversy.
normally be permitted unle unless ss the the trib tribun unal al had been empowered empowered to act act ex ae aeq quo et bono5. bono 5. 1s opposed to intra legem. legem. de facto @ in fact 4as opposed to in law, de (ure55 (ure
de lege lege fere ferend nda a what the law ought to be 4as oppo oppos sed to what hat the law law is, is, lex lata5. lata 5.
de lege lege lata lata - what what the law is 4as opposed to what the law ought to be, de lege ferenda5. ferenda 5.
@art arty % to take ake an action that is the sub(ect of the current claim.
ase illustrations the Tinoco +lai$s Arbitration and the 3ast 3aster ern n ree reenl nlan and d case ex aeuo et bono bono - a (udgment based on considerations ons of fairness, not on considerations ons of existi existing ng law. law.
erga omnes omnes - "toward all" wrongful acts that harm harm ever everyo yone ne and and not simply one in(ured party5
ex propio motu - on its own accord.
the of lega legall "Dou "Dou bot both "Dou "Dou cake
0ypothetical example @arty 1 cannot claim a righ rightt from from @art @arty y % if @art @arty y 1 prev previo ious usly ly took actions or made statement statements s that were contrary to the current claims and which led
to
contra
ipso facto facto - by the fact 4or act5 itself.
de jure jure @ in law 4as opposed to in fact, de facto5. facto 5.
estoppel requirement cons consis iste tency ncy in argumentat argumentation. ion. can' an't have it ways." #hat is can't have your and eat it, too."
opposed legem.. legem
inter inter alia alia - amon among g other things.
intra intra fauces fauces terra terra "in "in the (aws aws of the land." land." a princi principle ple for defi defini ning ng terr territ itor oria iall seas.
intra intra legem legem - "within the law" 4term used to describe an equitable decision of a court or tribunal that is cons consis iste tent nt with ith the the rules of law governing the controver controversy5. sy5. 1s
jus inter gentes "law among peoples" peoples" 4nations5.
jus civile - law crea create ted d with within in each each country.
0us civile is civile is one of two cate catego gori ries es of law law in form formal al ;oma ;oman n law law, along with (us gentium.. gentium
jus cogens "co "compel mpelli ling ng law, aw," peremptory peremptory principles principles of inte intern rnat atio ional nal law law that cannot be overriden overriden by specific specific treaties between coun ountri triesG esG that that is norm norms s that that admi admitt of no derog derogat atio ionG nG they they are binding on all stat states es at all all times imes 4e.g., 4e.g., prohibiti prohibitions ons on aggres aggressio sion, n, slaver slavery y, and genocide5..
jus gentium gentium - "law of peop people les" s" or "law "law of tribes," tribes," a body of law developed by a ;oman praetor peregrinusGG applied to peregrinus nonnon-;o ;oma mans ns in the the Ampire and to deal dealin ing gs betw betwee een n ;omans and non;omans.
115
0us gentiu$ is gentiu$ is one of two categories of law in formal ;oman law, along with (us with (us civile. civile.
lex lata lata - what the law is 4as opposed to what the law ought to be, de lege ferenda5. ferenda5.
jus naturale - law of nature" nature"
lex posterior derogat priori ! more rece recent nt law law prev prevai ails ls over over 4abr abrogr ogrates ates,, overrrules, trumps5 an inco incons nsis iste tent nt earl earlie ier r law. law. 7ne test that is applied in circum circumsta stance nces s when when 425 425 both both cust custom omar ary y and treaty sources of law exist and 4F5 thes hese two sour source ces s cannot cannot be constr construed ued consistently.
the classi classical cal :reek :reeks s originated the "natural law" idea, but it was grea greatl tly y elab elabor orat ated ed upon by the ;omans, including 8arc arcus 1urelius and iceroG natura naturall law schol scholars ars argue that law has a metaphysic metaphysical al source source 4:od, 4:od, nature nature55 and is apprehe ehensible ble by ration rational al humans humansGG the law transcends transcends tiem, tiem, place, and circumstance jus sanguines sanguines - the "right of blood" or "law of descent" descent" - at birth birth an individual acquires the nation nationali ality ty of her or his paren parents ts.. n contrast to (us to (us soli. soli. jus soli - the "law 4or right5 of the soil" - the legal principle that an individual's nationality is determined by that person's place of birth 4that is, the territory of a given state5
ontrast sanguines
to
ontrast spe pec cialis generali " generali "
to lex derog oga at
lex scripta scripta @ written, "black letter" law lex specialis derogat generali - specific law prevails over 4abrogrates, over overrr rrul ules es,, trum trumps ps55 general law. 7ne test that is applied in circum circumsta stance nces s when when 425 425 both both cust custom omar ary y and treaty sources of law exist and 4F5 thes hese two sour source ces s cannot cannot be constr construed ued consistently.
(us
lacunae - "hol "holes es"" in the lawG a gap or blank in a writing. lex communi communis s - the common lawG the body of law developed by human practice.
ontrast posterior priori"" priori
to lex derog oga at
locus locus delicti delicti - #he #he place of the offense.
male male capt captus us"" bene bene
detentus - "badly captured, well deta detain ined ed," ," the the lega legall principle principle that permits permits the trial of an impr mproper operlly sei& ei&ed defe defend ndan antG tG in .<. .<. practi practice, ce, artic articula ulated ted by the L er-!risbie er-!risbie doctrine"
mare mare clau clausu sum m closed seasG as opposed to mare liberum 4freed 4freedom om of the seas5
mare are lib liberu erum freedom of the seasG as oppo oppose sed d to mare clausum 4closed seas5
mesne assignment an "assignment" is a tran transf sfer er or maki making ng over to another of the whole of any property, real or personal, or of any any est estate ate or rig right ther hereinG einG a "mesn mesne e assignment" 4from the 7ld Anglis Anglish h "mesne "mesne"" for "int "inter erme medi diat ate, e, interv interveni ening" ng"55 is an assignment interv interveni ening ng betwee between n an origin original al grant grant and the last assignment
usi usiness ness %achines mutatis mutatis mutandi mutandis s @ "when "when what what must must be chan chang ged has been been changed," after making the necessary changesG with alte altera rati tion ons s to fit fit the the new circum circumsta stance nces. s. !or examp example le "#he "#he
new provisions governing the tribun tribunal' al's s operat operation ions s are to apply as well to the court's operations, $utatis $utandis. $utandis. non liuet - the law is insuffici insufficient ent to provide provide a decision opini inio juri juris s sive sive necessitatis - 4or simply, opin opinio io juri juris s5 the perception perception that a given behavi avior is required by law, that it is lega legall lly y obli oblige ged, d, a duty. duty. 4as oppose opposed d to beh behavio aviorrs that that are are moti motiva vate ted d by othe other r conce concern rns, s, or simp simply ly rand random om or habi habitu tual al behavior5.
Axample the !otus case. !otus case.
S"S"
pacta sunt servanda - the doct octrin rine that hat agreem agreement ents s must must be obse observ rved ed 4tha 4thatt is is honored, obeyed5.
ontrast to rebus sic stantibus.. stantibus
persona non grata 1n unwelcome person -- this is the basis of expulsion in diplomatic exchanges.
praetor peregrinus peregrinus the ;oman magistrate who devised the rules of the jus the jus gentiu$
prima facie - "at first sight," on the face of it, on first
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