Magallona PIL Reviewer

PUBLIC INTERNATIONAL LAW PROF. MERLIN M. MAGALLONA Part I: Nature and Method of International Law I. Concept and Nature of International Law A. In General Oppenheim, International Law, Vol. 1, pp. 4-23 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. Universal International Law is such part of International Law as is binding upon ALL States, without exception. Particular International Law is binding on 2 or a few States only while General International Law are binding upon a great many States, including the leading States. Denial of the Legal Force of the Law of Nations Austin and his followers defined law as a body of rules for human conduct set and enforced by a sovereign political authority. Following this definition, International Law cannot be considered law because there is not a sovereign political authority above the sovereign States which could enforce such rules. A better understanding would be achieved if we recognize that rules of law must be enforced by external power. It should however be understood that for the existence of law, neither a law-giving authority nor courts of justice are essential. It is the community itself, which decides a question of law. The existence of legislature is only necessitated by the expansion of primitive communities. In more modern States, the legislature makes law, which courts of justice administer. However, this power still comes from the common consent of the community. What, then, are the essential conditions of Law? Are these present in International Law?

1. There must be a community. A community is a body of a number of individuals more or less bound together through such common interests as create a constant and manifold intercourse between single individuals. This power unifying factor, their common interests (science, art, agriculture, industry, trade, etc), create an international community vulnerable only to occasional threats due to economic nationalism, political intolerance, and the pursuit of self-sufficiency o the part of sovereign States.

2. There must be a body of rules for human conduct within that community. 1

An undeniable existence both of customary and written laws is seen in International Law.

3. There must be a common consent of that community that these rules shall be enforced by external power. Examples of this so-called external power include: a. Self-help and intervention on the part of other States which sympathize with the wronged one. b. Subject to certain conditions, war is the ultimate instrument for defending violated legal rights vital to the existence of States. c. The Charter provides for a system of sanctions for repressing the violation of its principal obligation. Practice and the Legal Nature of the Law of Nations States are of the opinion that they are legally and morally bound by the Law of Nations. They do not deny that there is a law between themselves. The States, in breaking the Law of Nations, never deny its existence, but recognize its existence through the endeavor to interpret the law of Nations as justifying their conduct. Common Consent as the Basis of International Law Common consent only means the express or tacit consent of such an overwhelming majority of the members that those who dissent are of no importance as compared with the community viewed as an entity in contradistinction to the wills of its single members. In International Law, common consent manifested through customs, then mutual usage of certain rules, and finally to the development of a systematized body of rules which commended themselves so much to the needs and wants of the time that they became the basis of the subsequent development (Hugo Grotius’ work, De Jure Belli ac Pacis, librii iii). Even 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 recognized rule of the Law of Law of Nations. The body of the rules of law can be altered by common consent only, not by a unilateral declaration on the part of one state. States as the Normal Subjects of the Law of Nations If International Law is based on common consent, what then are the normal subjects of the Law of Nations? Primarily, 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 persons may then be endowed directly with international rights and duties and constitute them to that extent, subjects of International Law. Illustrations: 2

1. Jurisdiction of the Courts of Danzig States may expressly grant to individuals direct rights by treaty; such rights may validly exist and be enforceable without having been previously incorporated in municipal law. 2. Reparation for Injuries Suffered in the Service of the United nations Entities other than States may be subjects of International Law. For the subjects of law in any legal system are not necessarily identical in their nature or in the extent of their rights, and their nature depends upon the needs of the community. NOTE: members of the international community are equal to each other as subjects of International Law. Brierly, The Basis of Obligation in International Law, pp. 9-18 Many accept the doctrine that consent may be a basis of legal obligation. Sir John Salmond writes: “The law of nations is essentially a species of conventional law- that it has its source in international agreement- that it consists of the rules which sovereign states have agreed to observe in their dealings with each other.” However, what if a state refuses to consent to be under the obligation of a previously entered into treaty? Without 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? What are the ways by which a state comes under the obligations of international law, aside from expressly giving its consent to be bound by it? 1. A new state becomes subject to International Law as a matter of course, without their consent being either asked or given. This challenges the consent theory because these States may recognize International Law’s obligatory force but does not automatically mean that they have consented to it. 2. Hegelian doctrine of self-limitation and Jellinek’s theory of self-limitation assume that a state may create law for itself both in internal and external affairs. By this faculty, the state is able to subject itself, when it thinks fit, to its own private law, to recognize the personality of foreign states, and to bind its own will by entering into the international system. 3. States feel a sense of obligation, from the feeling that a certain course of conduct is legally incumbent upon itself, irrespective of its own wishes or interests. The 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 find the relevant rule by a process of judicial reasoning rather than relying on the consent of the party litigant- States alone. In fact, Article 38 of the Statute of the Permanent Court of International Justice directs the Court to apply international conventions, international custom, as evidence of a general practice as accepted as law, the general principles of law recognized by civilized nations and on certain conditions, judicial decisions and the teachings of the most highly qualified 3

publicists, as subsidiary means for the determination of rules of law. Autograph question: who is the cutest person in the block? pp. 46-46 The State is an institution that claims the unique characteristic of having the exclusive control of the use of force. However, this feature is incapable of being the explanation of the binding force of law (as usually applied in international law). The theory that law is binding because it is the word of a sovereign (usually applied to the law of the state) is also insufficient to explain the binding force of law, and is in fact a widely rejected theory. Note: Author then proceeds to answer the question: Does international law differ from the law of the State? 1. Do they concern different subjects? Not really. Primarily, International Law involves States while the law of the State involves human beings. This distinction is, however, artificial. M. Saleilles presents a true system, which he calls ‘la theorie realiste.’ Both the state and the individuals of whom it consists are and remain equally real entities, we may even say that they are equally real ‘persons’, provided that we can keep the juridical sense of that word uncontaminated by any of its non-juridical associations. There are 3 truths which support the system presented by Saleilles: 1. that individuals who form an institution, whether it be the state or any other institution, do not disappear from the scene 2. an institution is a real and not a fictitious unity, and by juridical personality the law recognizes, but does not create, this unity 3. this unity which the institution has given to the individuals does not embrace the whole personality of each of them. Conclusion: International Law and the law of the state do not, in reality, involve different subjects. The international juridical 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 members; it is the state as expressing their unity. 2. Do they differ in the form of sanctions? Does International Law provide for sanctions, in the first place? No marked difference in sanctions because International Law, too, has sanctions. But there is very little temptation to violate International Law, because its yoke lies easily on the states 4

and also because to violate it habitually would invite reprisals and would not be in the interest of any state. Conclusion: The real difference between International Law and state law in respect of enforcement lies not in any principle but in organization. 1. State law interferes with the individual’s freedom of action that in the course of centuries an organized system for the coercion of the recalcitrant has been built up. - NA in International Law where the sense of a common interest in the law being enforced has been weak and where the need for systematic enforcement is less in proportion as the temptation to violate the law is weaker. (hindi extensive ang institutionalization) 2. International Law has less adequate legislative and judicial machinery. 3. Power in the international sphere is still largely unregulated by law. (hmm, di ko lam bakit sinama tong pp. 46-56) Tunkin, International Law in the International System, 147 Recueil des Cours 7884 (1975) Is there a system of international law? Tunkin says yes. He rejects the German doctrine that a system of law requires the existence of a supreme authority that creates the system. He says this doctrine is completely divorced from reality. A system (IL) is a reality in itself. It is not something imposed upon a social reality from outside. IL is a unit, an aggregate of legal norms in interaction. It is a specific component of the intl system which must not be confused with other components of the system. The unified system of contemporary IL The traditional division of IL into law of peace & law of war has been replaced by a new division of contemporary IL into (1) the law of co-existence – governing diplomatic interstate relations and (2) the law of cooperation – governing pursuit of common human interests (Friedmann). This transformation resulted in: 1. greater unity in the intl level, as manifested in the ff. features of contemporary IL: - no more difference in status of States - no more division of IL into law of peace & law of war - growing number of principles of jus cogens contributing to unity; and at the same time… 2. greater diversity on a regional level

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Universalism & Regionalism in the system of IL There are two levels of IL: (1) universal and (2) regional. Also, IL comprises of (1) General IL and (2) Particular IL. Difference bet GL and PL: 1.GL results from the co-ordination of the wills of all or almost all States whereas PL results from the co-ordination of two or some States. 2.Norms of GL are created only by States whereas norms of PL can be created by other subjects of international law. Similarities: They have the same legal foundation – the co-ordination of the wills of States – since even in GL there is no central legislative authority ∴ both are considered as belonging to corpus juris gentium. What is the role of particular norms in international law? 1. Particular norms solve particular problems bec. general norms are not sufficient to properly govern relations bet. individual States 2. Particular norms provide for the proper functioning of general norms. In most instances, GL depends upon creation by States concerned of particular norms specifying rights & obligations based on general intl law. * see Art. 41 of the Vienna Convention Brownlie, The Reality and Efficacy of International Law, 52 BYIL 1 (1981) The reality of IL The reality of IL cannot be denied on the excuse that it is imperfect. The actual use by governments of IL as part of the normal process of decision-making only proves that IL is a reality. IL confronts inescapable features of the political landscape. [Like municipal law] Rules of IL are essentially principles of self-limitation, addressing the very agents who should apply the rules. They are immanent and internal. The efficacy of IL Brownlie looks at the efficacy of IL vis-à-vis the performance of national legal systems. Eccentrics appear in IL just as much as individual criminals exist in NLS. Compared to NLS, IL is not doing so bad. Why does IL appear to be ineffective? 1. IL depends upon the application of standards within the natl legal & admin systems. Thus, the inefficacy of IL is only a consequence of the relative inefficacy of domestic law in enforcing IL standards. The biggest obstacle to treaty administration is the inability of natl administrations to cope with even minimal burdens under their intl obligations. 2. There is constant inflation (exaggeration) of the incidence of illegality in international life. People fail to acknowledge that many cases of illegal behavior on the part of States are really only ultra vires acts of a public body or minister. [It is not the State’s fault].

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On Hart Hart gives two specific qualities of the concept of law: 1. existence of primary laws (concerning human actions) & secondary laws (conferring powers to make and change primary rules); and 2. existence of rules of recognition (provides the system with a criteria for validity) Brownlie criticizes Hart: Hart puts misplaced emphasis on secondary rules and the compulsory jurisdiction of courts & legislature as normal marks of a legal system. 1 Secondary rules do not play that much of a decisive role in maintaining the more basic forms of legality in municipal systems. The operation of secondary rules may break down (as in the case of civil strife) without affecting the operation of the primary rules to any great extent. Thus, Hart is wrong in giving a low status to PIL among other systems on the basis of the absence of secondary rules. POINT BEING: Whether, in a given situation, the law is ultimately “effective” is a question of taste. In other words, it is a matter of political and moral evaluation. When the law is seen to be “ineffective”, the cause is not “the law” but the absence of organization, political will, sufficient personnel or funding, and so forth. Law, whether national or international, is not a source of alibis for politicians and administrators. Higgins, Problems and Process: International Law and How We Use It (1994), pp. 1-16 Int’l law is not rules. It is a normative system which makes possible that degree of order if society is to maximize the common good. Two Apparent points: 1. The role of law is to provide an operational system for securing desired values (security, freedom, etc) 2. Int’l is no different from domestic law What is Int’l Law? Int’l Law is the entire decision-making process and not just the reference to the trend of past decisions which are termed “rules”. If it were rules, then it would not be able to contribute to and cope with a changing political world. Relying merely on rules when the context to which they were articulated has changed ensures that Int’l Law will not be able to contribute to today’s problems and it will be disobeyed for that reason. Int’l law is decision-making by authorized decision-makers who are not simply finding the rule and applying it. The determination of what is the relevant rule is part of the decision-maker’s functions. The judge does not find rules but makes choices. When these authorized decision7

makers make decisions, what occurs is legal decision-making. Policy considerations, different from rules, are an integral part of the decision-making process called Int’l Law. Policy factors are dealt with systematically (properly considered and weighed) and openly (open to public scrutiny and discussion) If law as rules requires the application of outdated and inappropriate norms, law as a process encourages interpretation and choice that is more compatible with the values we seek and objectives we seek to achieve. In viewing Int’l Law as a process, there are still tools for authoritative decision-making on the problem notwithstanding the absence of a precise rule which must be applied. (by use of analogy, by reference to context, by analysis of alternative consequences) Take Note: Law as a process does not entail a rejection of that core of predictability that is essential if law is to perform its functions in society.

To whom does Int’l Law apply? states in their relationship with each other - int’l organization - in some circumstances directly to individuals (war crimes, rights, etc) What is the basis of Int’l Law? 1. Some writers suggest that it is in the natural order of things that certain matters should be regarded in a compulsory manner. An obligatory foundation to the basic precepts of justice is to be found in natural law. 2. Consent. Norms are binding because the states consent that they should be. This view is based on the concept of sovereignty that in turn emphasizes their freedom to act unilaterally save to the extent they agreed to be constrained. Consent has gradually been replaced by consensus 3. Reciprocity: If consensus, often tacit and unenthusiastic, is the basis of Int’l Law, then that consensus comes about because states perceive a reciprocal advantage in cautioning self-restraint. Notes: Analyze IL as a process rather than a set of rules. When the authorized persons or organs make decisions, what occurs is a legal decision-making process. IL is a continuing process of arriving at authoritative decisions. This view rejects the notion of law as merely the impartial application of rules. B. Changing Structure and Dimension of International Law Magallona, “The Concept of Jus Cogens in the Vienna Convention on the Law of Treaties,” in International Issues in Perspective (1996) 8

Jus Cogens (JC) – are general norms of imperative character which the subjects of law cannot modify or set aside in their contractual relations; constitute irreducible minimum principles in the legal system; set above the wills of the parties to a contract Jus Dispositivum – norms which can be derogated by private contracts The concept of JC is identified 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 JC could not yet mature in the field of Int’l Law because this concept presupposes the existence of an effective de jure order which is envisaged in the model of the municipal legal order. The emergence of JC is defined by the condition that in the international legal order, the subjects (States) of the law are themselves the creators of the law on the basis of legal equality. The process of identifying a general norm as JC is definitely 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. Example of JC norms: Nuremberg Principles, human rights, Sovereign equality of States, nonintervention , right of self-determination Definition of JC under the Vienna Convention (VC) Art 53: A treaty is void if at the time of its conclusion, it conflicts with a peremptory norm of general international law. For the purposes of the present convention, a peremptory norm of (1) general int’l law (2) is a norm accepted and recognized by the int’l community of States as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general int’l law having the same character. Art 64: If a peremptory norm of general int’l law emerges, any existing w/c is in conflict with that norm becomes void and terminates. 1 and 2 in Art 53 are elements of JC which projects the consensual nature of such norm. However, the consensual nature should not lead to the formalism that character of JC finds explanation in mere expression of the State’s consent. It is the particular nature of subject matter with which it deals with that may give it JC character. JC is either customary or conventional rule. It is also either universal or so recognized by a great majority of States. The words “as a whole” in Art 53 precludes the possibility that an objection on any 1 State may operate as a veto to the characterization of norm as JC. Universal consent or unanimity is not intended as a basis for the determination of JC norm.

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Function of Conventional Rules on JC The specific function of JC 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 JC is either declared void under Art 53 or becomes void and terminates under Art 64. Under Art 45 of the Convention, a State may lose the right to invoke a ground for invalidating, terminating, withdrawing or suspending the operation of a treaty through confirmation or acquiescence. However, Art 45 does not cover Art 53 and 64 w/c points to the conclusion that the invalidity of a treaty arising from the violation of JC norms cannot be cured by confirmation or acquiescence of the parties. This serves to reinforce the objective of character of JC norms as criterion of Illegality and to project their importance over the narrow individual interests of the States. Operation of Convention Rules on JC A treaty in conflict with JC norm is invalid in Int’l Law but it can only be invalidated on that ground w/in the framework of the VC. Limitations: Invoked only by parties to the VC Follow procedural requirement of VC Procedure: 1. Written notification by contesting party to other party stating grounds for invalidation, termination, etc, measures proposed to be taken and reasons therefor 2. Transmitted directly to the other party or depositary 3. 3 months after receipt of notice, if no raised objections, contesting party can effectuate the invalidation/termination of treaty by a declaration to that effect in an instrument communicated to other parties 4. If objections were raised, settle dispute through UN means (negotiation, mediation, other peaceful means); resort to Int’l Court of Justice in case of failure to reach solution after 12 mos. Non-retroactivity of Convention Rules on JC Art 28: establishes non-retroactive operation of treaties in general and provides for flexibility for the parties to stipulate expressly the retroactive effects of treaties Treaties concluded after the entry into the force of convention is which are in conflict with JC are void under Art 53 or become void & terminate under Art 64. Treaties concluded before the Convention’s entry into force are saved from the operation of Art 53 even if they conflict with JC norm. But under Art 64, they are affected by the invalidating force of the ‘new” JC norm when the norm is given binding force as such by the entry into the force of the Convention The points of references for operation of Non-retroactivity rule: 10

Art 53: the date the Convention is enters into force. Art 64: the time of emergence of the JC norm. 2 categories of JC: 1. JC existing on the date of the VC’s entry into force 2. general norms becoming JC sometime later after VC has come into force Modification of JC JC is not immutable. It is subject to change in keeping with the societal developments of global scale. But only a JC norm can supercede or partially change an existing peremptory norm. The process of modification follows the same mechanism as its formation which is on the same consensual basis as any other norm of general int’l law. Conclusion One of the most significant features of progressive development in contemporary Int’l law is that the competence of States in treaty-making has ceased to be unlimited. The introduction of JV in VC can serve as transformative mechanism for discarding out-moded rules in the old Int’l Law and for replacing them with progressive principles. Notes: PACTA SUNT SERVANDA: States or other international persons are bound by treaties which have been regularly concluded and have entered into force and they must be carried out in good faith. The basis of the obligatory character of conventional rules or what is sometimes called sanctity of treaties is not clear. Baxter, International Law on Her Infinite Variety, 29 Intl & Comp. LQ 549 (1980) As generally understood today: Principles of IL have a real existence and create obligations for states and individuals, even though they may not be enforced by sanctions.

Baxter’s radical assertion to be defended: That legal norms occupy a place in IL, even though they do not create rights or duties. A great majority 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. But 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 Agreement – refers not only to treaties but used by Baxter in a wide sense 11

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 subject to an obligation of performance in good faith. I.

“SOFT / WEAK” Law – recognized as peculiar e.g. treaties where states enter into an allegiance, agree to coordinate military action, declare neutrality of an area.

1.

“Political Treaties” – There is an awareness that these agreements are vulnerable to the operation of rebus sic stantibus in the sense of established boundaries / status of territory. If a state refuses to come to the aid of another, nothing can force it to. The Vienna Convention does not refer to “Political Treaties” because it would add complexity and it would have supplied a basis from escaping from treaty obligations which is susceptible to abuse. But these “Political Treaties” are nevertheless kept alive by perceptions of mutual advantage and by political and economic force (so long as the states concerned see it to be in their natural interest to concert their policies.)

2.

Other treaties regarding national security – the force making for compliance is that violation of agreement may being the whole structure tumbling down (agreements where easy release is available).

⇒

⇒

Nuclear Test Ban Treaty (1963) – violation of the treaty, justify it in withdrawing from the treaty. The right of denunciation is the threat that holds the parties to their obligation. Geneva Protocol of 1925 for the Prohibition of the Use in War of Asphyxiating Poisonous or Other Gases, and of Biological Methods of Warfare – reserve the right to employ chemical warfare against the one who has violated, in effect brings the Protocol to an end.

Numbers 1 and 2 do carry some measure of obligation, although they may not be enforceable in the strict legal sense. The following types of norms in international agreements have the common characteristic of not creating legal obligations which are susceptible of enforcement (soft law): 1.

Pacta de Contrabedo – a provision of the treaty which calls for negotiations looked to the conclusion of further, more detailed agreements. These provisions cannot be enforced if the parties do not reach an agreement (agreements cannot be forced upon them, cannot be compelled to negotiate), e.g Treaty of Rome – established European Economic Community

2.

Norms of treaties which are non-self executing, requiring further, more detailed treaties in order to give effect to the principal treaty

3.

Provisions which are Hortatory, calling for cooperation by states to achieve certain 12

purposes. In the absence of institutional machinery, a party’s refusal to follow the recommendations / exhortations of the treaty cannot be met with any measures of compulsion. ⇒

Executive Agreements – (difficult to fit in the existing structure) US, after the Vietnam War, Congress found out that the President made commitments which were not submitted to the Senate for approval (outcome was the enactment of legislation which requires the Department of State to transmit the test of any international agreement (in writing), other than a treaty, to Congress within 60days). § The international significance 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 officials to cooperate on some scientific work, to give effect to a treaty, to exchange information, etc. § Definition of treaty in Vienna Convention is unclear on how far international dealings should be codified (result in immense masses of paper) § It is probably fair to say that states have no intention of “enforcing” the forces that make for compliance – are manifold, but non-legal § These arrangements (executive agreements) are “soft law” – complied with in fact but not under the coercion of the principle of pacta sunt servanda § States do set up by agreement, machinery of cooperation and coordination which does not have the complexity of international agreement (not treaties but they soften the clash of interests) § states have create legal the conduct unclear)

The “soft” laws have been for about some time. But in recent years undertaken the preparation of instruments which deliberately do not obligations but which are intended to create pressures and to influence of states and to set the development of IL in new courses (legal impact

⇒ Treaties which purport to lay down rules governing the behavior of States towards their nationals / towards aliens – sometimes ambiguous and will do nothing to control the conduct of states unless fleshed out by the decrees of court or other agencies. Magallona, “Towards the Consolidation and Progressive Development of the Norms of International Economic Law,” in Magallona, International Law Issues in Perspective A.

2 major qualitative changes in the historical development of the international community of states: a) Breakdown of medieval society 13

a. IL operated in a small circle of Christian states in Western Europe b. Peoples of Africa, Asia, and Latin America were objects of colonial exploitation b) Emergence of independent states from the breakdown of the colonial system together with the rise of the socialist community B.

Crisis between old and the establishment of the new international economic order Despite the collapse of the colonial system, exploitation and dependency continued between old colonial powers and their former colonies. b) Establishment of new economic order is essential to the economic upliftment of the developing countries. a)

C.

Rationale and scope of international economic law a) IL law must now reflect the basic interests and needs of the developing countries, which constitute a majority of the international community b) Polarization of states on the basis of level of development c) IL deals with the public-international aspect of one of the principal purposes of the UN: “to achieve international cooperation in solving international problems of an economic character.”

D.

General content of international economic law a) principles and norms of international economic law have matured and constitute a stage in the progressive development of: a. fundamental principles and purposes of the UN b. specific orientation of the general principles of law to the economic relations of states with different levels of development c. work of various organs and agencies of the UN and of international conferences b)

International Economic Law deals with the regulation and coordination of economic activities of states, particularly legal issues relating to economic and technical assistance.

Notes: In theory, consent may be withdrawn as fast as it was given but this results to instability of the legal order as predicted by Brierly. Why do States hesitate in withdrawing its consent? Because in the first 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 financial interest as the subject matter of the mutual exchange between states. 14

How do you know that a norm is a norm of international law? Look at the norm-creating process. 2 categories of norms: a. inter se: rules which govern the relations of states among themselves b. erga omnes: rules which govern the relations of states in relation to the international community consensuality: element which controls normcreating process; when one speaks of consent, one pertains to normative consent, a process is involved, it is not a simple matter of saying yes What are the legal bases of international personality? 1. the moment a state is conferred statehood, it assumes international personality, primary subject of law. 2. could also be created by state like the ILO 3. conduct between the states may become the basis of personality, for example when the action of the state becomes opposable to itself as in recognizing passports and envoys, that state cannot anymore deny recognition The Principle of Attribution: for a stet to be internationally responsible given the breach, the acts or omission must be attributable to the state, not its peoples. Persistent Objection Rule: 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 objecting is not bound. But if persistent objection is only manifested the time when that norm has already become binding law, 15

then no amount of objection will make it not bound.

II. International Law and the International Community H. Mosler, International Society as a Legal Community, 140 Recueil des Cours 1 (1974)

1. CONDITIONS OF EXISTENCE OF AN INT’L LEGAL ORDER International Law (IL) existed only when the 2 necessary elements existed: 1) factual-a certain number of independent societies organized on a territorial basis exist side by side, and 2) psychological-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 first element, there exists an age-old tension between equality in law and difference in actual power. There is a continuing influence of European tradition on current IL, emphasized by Mosler on 2 points: 1) the logical deduction from the nature of things and the nature of IL still contributes to current IL (e.g. by author) and 2) appreciation of the expansion of IL in today’s enlarged int’l society, w/c is no longer focused on Europe. This point partly explains the acceptance of the new members of the int’l society of a large part of int’l law originating in Europe even without European tradition. The extent of internal and external sovereignty has been diminished by the interdependence of the states (relative sovereignty) and the general tendency of centralization (because of the foundation of world organizations). Note that today’s IL takes into account the formerly unknown existence of international organizations (IO) and the resurrection of the individual as a part of the int’l legal order (ILO).

2. CHARACTERISTICS AND STRUCTURE OF THE INT’L SOCIETY a) historical perspective The predominant feature of the States existing between the end of 18th Century and WW1, was that it was a political unit of effective action, consisting of a people conscious (derived from either history, ethnic and linguistic unity etc) of being a nation. This group of nationStates was a closed community with a limited number of members. Although each was sovereign, such sovereignty has 2 meanings 1) political- acting according to one’s own will to the greatest possible extent and 2) law- there is no legal obligation on the State to show obedience to any superior. Since a legal community of equals in law and unequals in fact can’t function without political guidance, it is but natural that the task of directing political dev’t in the framework of society was assumed by the most powerful states. Since no single power was able to gain an overwhelming advantage, the result was the establishment and maintenance of certain balance of power between the great powers (see e.g by author). This led to a combination for the 1st time of a balance of on a higher greater power level , and the political domination exercised by the great powers (that, as a group, dealt with matters of general interest) on smaller States within their sphere of influence. The lower-level balance of 16

power between medium and small sized states (that participated in matters of their own interest) was established on the assumption that these groups belonged in a sphere of influence of one or more (gasp! D.G. is that you?) hegemonic powers. This practice provided at a time which the theory of absolute sovereignty prevented the rise of IO the organizational element apparently indispensable to society with members equal in law but not in fact. This lesson in history (that a society consisting of immensely different sovereign states must pay a price for its continuing existence by allowing major partners a greater influence in the form of a hegemonic role) is still valid now. If historical dev’t leads to this, then the equivalent of an internal const’l law arises. b) in its present state of development The new ILO began around the time of WWs 1 and 2. Such experience of a world-scale destruction led to an the attempt to overcome, by means of international organization, the anarchy caused by the unlimited exercise of sovereignty. This was followed by an increase in the number of members of int’l society which also resulted in the addition of essential new characteristics: the institutionalized cooperation in IO, increasing interdependence in communications, economic and technical matters, the position of a few superpowers challenged by the non-aligned states and the reappearance of the individual and of human values in int’l law.

3. LEGAL RELATIONS BETWEEN SOVEREIGN STATES AND THE INTERNATIONAL COMMUNITY In the present, a horizontal legal relationship existed between states. The only sanction for a breach of these rules was the reaction of the states injured by the act of another. In contrast, the so-called classical period, the states formed a legal community without any vertical element of subordination. 4. CONSTITUTIONAL ELEMENTS IN THE INTERNATIONAL COMMUNITY In spite of the lack of a general constitution for the functioning of the int’l community there are many const’l elements of varying form and importance. Statues of IO have the essential features of a const but it its object is limited vis-a-vis internal const.. These statutes taken as a whole amount to a considerable element of const’l life in the int’l community. IL developed through the consensus of members of the int’l society. Since the principle of consensus is inherent in any kind of legal community, there must be a legal rule as to how the law is created and develops. This task is done by a compeytent organ of the memebers themselves develop the rules and principles they are to be bound. It is this basic principle which makes the international society a legal community. 5. “INTERNATIONAL PUBLIC ORDER” AND JUS COGENS In any legal community, there must be a minimum of uniformity to maintain the community. This uniformity may relate to legal values, legal principles or legal rules. The whole of this minimum can be called the common public order. The int’l community can’t dispense (or exist) with this minimum of principles and rules. The public order of the the int’l community consists of principles and rules of enforcement of which is of vital importance to the international community as a whole that any unilateral action or any agreement which contravenes these principles have no legal force. 17

The concept of a public order of the int’l community has a wider meaning than jus cogens. The rules belonging to it apply not only to the members of the int’l community acting as contracting parties but are also binding in relevant legal situations other than treaty relations.

6. GUIDING PRINCIPLES IN THE FORMATION OF THE POLITICAL ORDER IN INTERNATIONAL SOCIETY The statement that principles and rules have emerged as generally accepted IL is the work of codification and interpretation; to define new principles and rules appropriate to the to new situations is the work of law creating. This 2nd task is a matter of policy, as something new is to be created and a step forward is attempted. 1. § § §

political doctrines and maxims Balance of influence among superpowers Right to self-determination Political doctrine based on political legitimacy/Doctrine of intervention

or

geographical

innovations-Doctrine

of

2.principles of friendly relations and co-operation between states This is the most interesting achievement of the UN is the 7 principles of the declaration on principles of IL concerning friendly relations and cooperation among states as guidelines for the conduct of states (see p41 of the article). These principles are declared to be interrelated so that each principle shall be construed in the context of others. Reference to the legal effect attributed by the UN Gen. Ass to the principles individually and collectively is made in the final part of the resolution. Each principle is developed by detailed definitions w/c 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 existing principles taken up the UN Charter. These and other questions have divided the principal Western and socialist states, the latter joined by the non-aligned states. The principles w/c were finally accepted have the unanimous support of the UN membership. This support is not weakened by the fact it is the result of a compromise. Bedjaoui, General Introduction, International Law: Achievements and Prospects (1991) 1. International Law: A specific, unfinished and changing construct Fundamental characteristic of IL-functions to regulate the rel’ns bet. States or between those known to be sovereign and which, in principle, assert their full independence of any legal order. This is possible because IL is largely based on (express or implied) consent. Thus, IL is more of law of coordination than subordination. Such coordination took on a significant lease of life when it finally became institutionalized, which is opposite of exclusive and unfettered State control. This was accompanied by another step which transformed this coordination into cooperation bet. States through the emergence of international organizations (IO), resulting in qualitative changes. Later, the universal mission of these IOs and the promotion of the right of peoples to self- determination became the primary source and better organized 18

int’l community in which the traditional unshared competencies of the States were disciplined. This led to the emergence of new subjects of IL (individual, people, the human race) w/c figured as potential rivals to the State in the int’l order. In sum, IL today is “developing” because of its extension to new areas. These changes in int’l rel’ns (IR) came about in int’l society after the upheavals of 2 world wars and decolonization affected classical IL. Throughout history, IL faced 3 periods of challenge: 1) Geographical 2) Ideological and 3) Economic.

2. From an Oligarchic law to a Law of community Before the League of Nations came into existence, IL was nothing other than a European law, born of the marriage of a regional situation and a material power, and transposed, as the dominant law governing the entire range of IR. This classical IL was a system of norms having a geographical content (European-based), an ethical and religious inspiration (Christian law), an economic motivation (mercantilist) and political objectives (imperialistic). This IL worked on 2 distinct planes: 1) between “civilized” States and the rest of the world and 2) between the “civilized” States to the extent that each one of them enjoyed sovereignty and independence on a basis of full reciprocity. The Treaty of Westphalia (1648) replaced the turbulent co-existence of Christian countries to a “European system of states” w/c rested on a need for every European state to respect the status of the others. However, classical IL placed “uncivilized (meaning non-Christian)” outside the scope of its protection. Its function was to be a law of domination by exclusion of the “int’l” community, thus didn’t acknowledge other States as equals. But this order, having been shaken by a number of “shockwaves” was progressively replaced by a law of int’l community: 1) the advent of a large number of new States made quantitative and qualitative changes in the int’l community which is now open; the process of selection had been replaced today by automatic or semi-automatic acceptance to IOs; 2) the new int’l legal order is responsible for the task of accommodating the dev’t of all peoples and of promoting int’l economic cooperation; and 3) the increased role of IOs led to the States acceptance of an institutionalized cooperation among themselves at price of relinquishment of sovereignty. But this “democratization” 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. From a Law of states to a Law for people Fundamentally, IL remains a law w/c disciplines the jurisdiction of States in rel’ns bet. them. But it is also clear that it has begun to take an interest in the State’s conduct towards individuals. The active principle of this evolution was undeniably the right of peoples to selfdetermination. It was gradually discovered that the State is, in the final analysis, no more than a community of peoples. This discovery restores to IL its essential finality w/c is the service of human beings. The State is not alone in leading towards this goal: the int’l community also plays its part since the human individual is the supreme common heritage of mankind. 4. From a Law of coordination to a Law of finalities. The democratization of the int’l legal order, an objective in itself, would be purposeless if it 19

did not provide a means of putting the int’l legal order at the service of goals w/c address the needs of the human race. This involves the assessment of the priorities w/c the int’l community should set itself. Many of the finalities (ex. outlaw war or guarantee a certain minimum in the conduct of hostilities) w/c are proper to a juridical order of coordination and have been pursued for centuries as being of unquestionable validity will not be abandoned. The preservation of these values can’t be called into question under the pretext that it has been promoted since the remotest antiquity. But the principal areas of confrontation are, of course, those involving new finalities set by the present international community. By asserting the common good and by challenging the perpetuation of the logic of political, economic and military domination, the majority of States have set in train a process in which the emphasis is placed on whatever may be expected to contribute to the reducing the de facto inequalities between States and to promote greater heed for the long term interests of the globe. IL has been invested with a task of transforming international society and has been applied in the service o finalities such as peace, dev’t, human happiness and the ecological preservation of the planet. O. Schacter, “The UN legal order: An Overview” in CC Joyner (ed.) The United Nations and International Law (1997) Structure of the UN Legal Order Ground floor: actions of states- including the demands and goals of the governments and other organized groups in furtherance pf their needs, wishes, and expectations 2nd level: activities of a legal character- the formation and invoking of legal norms, and their application to particular situations. 3rd level: broad policy goals, aspirations, and ideals that influence governments and the other actors Law-making in the UN System Neither the United Nations nor any of its specialized agencies was conceived as a legislative body. They were limited to recommendations aimed at coordinating the actions of their member states. The authority to impose mandatory rules was limited to the internal administration of the organization in question. However, most of these bodies have utilized their recommendatory authority to achieve binding law where that served their aims and had the requisite political support. Examples of Instrument of law-making in the UN system: 1. multilateral “norm-creating” treaty - products of political process, usually marked by conflicting interests and concerns over grants of power 20

-

all member states have a right to participate in the negotiation and adoption process on the basis of sovereign equality

2. resolutions that embody declarations of principles and rules of international law considered as authoritative evidence of binding international law on the following grounds: (a response to felt needs which must be addressed without the complicated and often, slow procedures involved in treaty making) a. as authentic interpretations of the UN charter agreed by all the parties b. as affirmations of recognized customary law c. as expressions of general principles of law accepted by states 3. 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 4. regulations applicable to the military forces engaged in peace keeping or enforcement activities: 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 2 categories: 1. lays stress on the aims and ideals of the institution as expressed in the Charter 2. argues on the basis of practice and precedent UN interpretation does not usually have an adjudicative character. Primarily, 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 specific contexts. Controversies in interpretation are not the result of defective drafting or even of political compromise; it is, rather, a reflection of the plurality of values and aims in the international society. How then are these controversies resolved?PRINCIPLES OF INTERPRETATION 1. principle of effectiveness: priority to achieving the major purposes of the Organization overriding restrictive provisions of the Charter such that interpretations that are ‘generally acceptable’ settle the issue 2. Interpretation by majority votes based on political considerations: 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 utilizing the International 21

Court to render advisory opinions on the interpretation of the Charter by political organs o problematic because the IC has not been given review or appellate power to pass on decisions of the political organs unless it is asked for an advisory opinion by the organ Compliance and enforcement For a long time compliance and enforcement were on the margins of UN concern. However, 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 Various Compliance and Enforcement Processes Used by UN Organs: 1. 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-finding by an international authority 2. Facilitative measures taken by the United Nations to assist states in carrying out obligations imposed by law or by specific decisions of the organs -

armed peacekeeping forces to assist governments to comply with transborder truce and cease-fire agreements, use of observers for national elections

3. Direct penalty of expulsion from the Organization or from taking part in some of the latter’s activities 4. Nonmilitary enforcement action taken by the Security Council under Article of Chapter 7 of the Charter (imposing economic embargoes extending to trade and financial relations on either a comprehensive or selective basis) 5. Use of armed force 6. Judicial enforcement limited in respect of binding adjudication of cases in which the parties have accepted the Court’s jurisdiction 7. Self-help measures a. reprisals: generally permitted if they do not involve the use of force and if they are directed to obtaining redress for the wrong committed and must not be disproportionate to the violations to which they respond. b. retorsion: legal WON responsive to a prior illegal act. States are free to reduce trade, investment, or aid with another state, whether or not the other state acted illegally.

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8. Public opinion (NGOs and civil society) Patterns and Politics of UN Law Two areas stand out: human rights law and the law relating to peace and security. In human rights law, it has been observed that the economic criteria originally applied to development have been supplemented with criteria of human development 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 stakes are the highest. WON a United Nations Legal Order exists will be determined largely by the effectiveness of its efforts to maintain peace and security. Several concepts have to be discussed in relation to the law of peace and security: 1. Veto or principle of unanimity: embodied for political reasons by the permanent members primarily in their national interests 2. interpretive resolutions on basic Charter concerns: adopted by near-unanimity or consensus In international economic law, there is the undertaking to give preferences to the lessdeveloped countries. What then are the basic postulates of international law? 1. States are regarded as the principal actors in creating and applying the law. 2. Independence and formal equality of States 3. principles of territorial integrity and pacta sunt servanda 4. Basic divide between the international and domestic domains Characteristics of the UN system: 1. Decision-making in the UN are essentially political processes shaped by the conditions of quasi-parliamentary procedures and the mandates of constituent instruments. 2. Substantive complexity of UN law-making and law application: states are compelled to define 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. 3. relative transparency and linkages to nonstate actors (experts, lobbyists, activists) III. Relation of International Law and Municipal Law A. In General 23

Oppenheim, op. cit., pp. 35-47 Dualistic View International Law and Municipal Law are essentially different. Sources: ML: custom grown up within the boundaries of the State concerned and statutes enacted by the law-giving authority International Law: custom grown up among States and law-making treaties concluded by them Relations they regulate: ML: between the individuals under the sway of the State and the relations between the State and the individual International Law: relations between States Substance of their law: ML: law of a sovereign over individuals subjected to his sway International Law: between sovereign States The Monistic Doctrine: - 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 Municipal Law are derived by way of delegation 1. Both regulate the conduct of individuals but in the international sphere, the consequences of such conduct are attributed to the State. 2. In both sphere, law is essentially a command binding upon the subjects of the law independently of their will. 3. Both are manifestations of a single conception of law. Law of Nations as Part of Municipal Law 1. In Great Britain: a. customary rules are recognized and applied b. Treaties affect private rights. The Crown is willing to allow Parliament to approve treaties prior to their ratification and that enabling legislation is passed before the treaty is ratified. c. English statutory law is binding upon English courts, even if in conflict with International Law but this does not mean that English law recognizes in all circumstance the supremacy of International Law.

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2. In the United States: - International Law is binding even if it conflicts municipal law and vice versa. Municipal Courts must apply International Law even if it has not been expressly incorporated in the Municipal Law because of several presumptions: 1. presumption against the existence of a conflict between ML and International Law - it is improbable that a State would intentionally enact a rule conflicting with the Law of Nations 2. In case of a gap between the 2 laws, it is presumed that such privileges are tacitly granted. 3. Even if a State may renounce International Law-endowed rights, municipal courts ought to presume that their State has tacitly consented to make use of such rights. Fitzmaurice, The General Principles of International Law Considered from the Standpoint of the Rule of Law, 92 Recueil des Cours 5, pp. 68-94 Nature of the conflict problem The fields in which DL and IL operate are distinct. Two different sets of relations are involved. The domestic field is the field of relations between private persons inter se or private persons-State whereas the intl field is the field of relations between States. A. PHILOSOPHICAL The monist-dualist controversy – its artificial & sterile character It is useless to discuss the conflict bet DL & IL on the basis of the monist-dualist debate because DL & IL operate in different fields. They do not operate in the same set of relations & transactions ∴ there is no basis in which to even start an argument. IL is supreme in the intl field not because of any inherent supremacy but because of the field of operation. IL is not only the supreme system in the intl field, it is the only system there is. Difficulties of the view that the State is only an aggregation of individuals In order to create a common field bet DL & IL (and thus be able to compare them), it would be necessary to reduce the behavior of the State to the behavior of individuals representing the State. But individuals whose function it is the carry out an obligation of the State does not act in any personal capacity. They are acting on behalf of the collectivity. Thus, the attempt to circumvent the personality of the State merely results in its reintroduction in some other form. Resulting Position Since IL & DL have no common field, it would be meaningless to discuss whether their 25

relationship is one of co-ordination, or of subordination, or of mutual subordination to a common superior order. Therefore, IL & DL as systems can never come into conflict. What may occur is only a conflict of obligations – an inability of the State on the domestic plane to act in the manner required by international law. Huh? The fact that no one understands you doesn’t mean you’re an artist. Any connection between your reality and mine is purely coincidental. B. PRACTICAL Practical principles: 1. The State cannot plead the provisions of its national law, or of its constitution, as a ground for the non-observance of its intl obligations. 2. The State is under a general duty to cause its law & consti to conform or to be such as to enable the State to conform to its intl obligations. 3. The State cannot plead changes, even revolutionary changes in the State’s government, admin, dynasty, political or social system or regime, or in the personality of the head of State as an excuse for the non-performance of its intl obligations. When there is a new govt, there is no devolution of obligations or rights. The State and its entity and personality persist uninterruptedly. 4. When there is not merely a new regime but a new State: a. The new State becomes ipso facto subject of general international law rights and obligations. b. As to obligations undertaken by treaties, rights and obligations devolve in accordance with State Succession. Brownlie, Principle of Public International Law Theoretical problems Dualist: points to essential difference of IL and ML, primarily to the fact that they legislate diff. subject matter. IL is law bet. sovereign states. ML is law within a state. Neither legal order has power to create or alter rules of the other. Monist: primarily asserts supremacy of IL over ML. (Although Kelsen, a monist, does not support this). It is IL which is ultimately concerned w/ the conduct & welfare of individuals. The state is disliked as an abstraction. Monist-naturalist: IL & ML are subordinate to a 3rd legal order, usually postulated in terms of “natural law” or “general principles of law”, superior to both & capable of determining their respective spheres. [3 theories above assume that ML & IL operate simultaneously in a common field in regard to the same subject-matter] 26

Coordination: (Fitzmaurice) ML & IL don’t conflict in systems bec. they operate in diff. spheres. Each is supreme in its own field. Their relation may only result in a conflict of obligations. The relation bet. obligations of States & ML State cannot adduce its own Consti w/ a view to evading obligations incumbent upon it under IL. The Position of the Individual The Intl Military Tribunal and many natl tribunals do not admit pleas by persons charged w/ war crimes that they had acted in accordance with their national law. Issues of ML before Intl Tribunals Cases in w/c a tribunal dealing w/ issues of IL has to examine ML of States: 1. As a matter of evidence, when tackling spheres of competence claimed by states – issues relating to expropriation, fishing limits, nationality etc. 2. When treaties contain provisions referring directly to ML or employing concepts w/c by implication are to be understood in the context of a particular natl. law. 3. When Intl tribunal is faced w/ the task of deciding issues solely on the basis of municipal law of a particular state. (i.e., Serbian Loans case) ML as ‘facts’ before Intl tribunals 6 aspects: 1. ML as evidence of conduct in violation of rule of treaty or customary law 2. Judicial notice does not apply to matters of ML. Proof required. 3. Interpretation of their own laws by natl courts is binding on an intl tribunal. 4. Assumption that for any domestic issue, there must always be some applicable rule of ML, which will be ascertainable in the same way as other ‘facts’ in the case. 5. Intl tribunals can’t declare the internal validity of rules of natl law. ILO must respect the reserved domain of domestic jurisdiction. 6. ML are merely facts. Issues of IL before Municipal Courts Before municipal courts] Rules of IL are accepted as rules of law & are not required to be established by formal proof [unlike rules of foreign law]. But public policy requires special considerations in procedure whereby the executive is consulted on questions of mixed fact & law. This is in order to avoid the embarrassment of conflict of opinion. How IL are given effect in the intl sphere (the English model) Incorporation: Customary rules are to be considered as part of the law of the land, with the qualification that they are incorporated only so far as is consistent w/ acts of the legislature & prior judicial decisions of the State. Transformation: IL is part of the law of the land only in so far as the rules have been clearly adopted & made part of the law of the State by legislature, judicial decision or 27

established usage. Treaties: Become part of law if an enabling act of the legislature has been passed. Statute prevails over treaty. Resort to the text of a Convention may be had under the condition that there be cogent extrinsic evidence that the enactment was intended to fulfill obligations under a particular convention. Self-executing treaties: Certain rules of IL don’t need incorporation in order to have internal effect. Res judicata There is no effect of res judicata from the decision of a municipal court so far as an intl jurisdiction is concerned. Although the subject matter may be substantially the same, the parties and issues will not be. However, considerations of admissibility may have the effect of creating an exception to this general rule. Relation to sources of IL Judicial decisions in municipal sphere provide prima facie evidence of attitudes of states on points of intl law and very often constitute the only available evidence of the practice of states. Conclusion Factors that operate on the subject matter of the relation between ML and IL: 1. Organizational – to what extent are organs of the states willing to apply rules of IL internally and externally? 2. Difficulty of proving the existence of particular rules of IL. In case of difficulty, municipal courts may rely on advice from the executive or existing internal precedents. 3. Courts will often be concerned with the more technical question as to which is the appropriate system to apply. Vienna Convention on the Law of Treaties ART 27: A party may not invoke the provisions of its internal law as justification for its failure to perform a treaty.

Art.46: Provisions of Int’l law Regarding Competence to Conclude Treaties 1. A State may not invoke the fact that its consent to be bound by a treaty has been expressed in violation of a provision its internal law regarding competence to conclude treaties as invalidating its consent unless that violation was manifest and concerned a rule of its internal law of fundamental importance. 2. A violation is manifest if it would be objectively evident to any state conducting itself in the manner in accordance with normal practice and in good faith. IV. Sources of International Law A. In General

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Virally, The Sources of International Law, in Sorensen The basis and sources of law As any other legal system, Int’l Law invests its subjects w/ rights and duties and the result is that every such system and the rules composing it stands above its subjects and has for them obligatory character not affected by the fact that the principal subjects of IL are sovereign political units – states. For Virally, there’s no need to answer the question how can there be IL binding upon states. It suffices that IL exists and it is universally agreed that states are bound by it. The problem is merely to determine upon given facts what IL forbids, permits or requires to be done. And when IL is invoked, it must be asked WON it is in truth a rule of law, WON it’s endowed w/ obligatory character that rules of IL possess or WON it is a valid rule. The solution is provided by the doctrine of the sources of IL. Where do IL derive their validity 1. Doctrine of Natural Law – rules of natural law are binding upon man because they conform to the divine will or the dictate of reason. Validity is independent of human intervention. 2. Doctrine of Positive Law – valid and binding only if laid down in a manner investing it w/ validity – proceeds from a recognized source. The notion of sources of law The term sources of law is traditionally confined to the methods of creation of legal rules i.e. general and permanent rules capable of repeated application without any limit. It is not applied to the methods of creation of particular regimes involving rights and duties for individual subjects of the law namely particular rules. This view raises special problem in IL system which contains few rules of general IL binding upon all states forming part of the int’l community. The term “international law” not only connotes general IL but other rules of general and permanent character which are valid in relation to certain stats only. The question WON a given rule is one of general IL may have great importance. If such, then it’s sufficient to establish its existence since it will bind every state. If not, then existence must be established as well as how it have come into existence in such a manner as to be binding upon the particular state to which it is averred to apply. Nevertheless, the very same source, custom can give rise to both rules of general IL and to rules applying to a few states. The source of law may be relied upon both for formulation of general rules and in providing for particular situation.

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Art 38 of Statute of ICJ The sources enumerated are those which the parties to the statute recognize as creative of international law. There is a fairly general agreement that the terminology Art 38 is purely descriptive and not intended to circumscribe in any way the operation of the sources which are described. Every imaginable new source is indirectly envisaged in the list in Art 38 and is simply the product of the law emanating from the sources which are mentioned in that list. Statute of the International Court of Justice, Article 38 1. The Court, whose function is, to decide in accordance with international law such disputes as are submitted to it, shall apply: a. international convention, whether general or particular, establishing rules expressly recognized by contesting states; b. international custom, as evidence of general practice accepted as law; c. the general principles of law recognized by civilized nations d. subject to the provisions of Article 59, judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law.

2. This provision shall not prejudice the power of the Court to decide a case ex aequo t bono, if the parties agree thereto. Article 59 The decision of the court has no binding force except between the parties and in respect on that particular case. Notes: Magi notes on Article 38 The word subsidiary in (d) may indicate that ac are the primary sources law whereas the 2 items in d are merely subsidiary. When we speak of sources of law, we are referring to norm-creating mechanisms. In a-c, there is a creation of norms while in (d), we have methods for proving or indicating the roots of law that are already in existence. (d) may be considered as evidence of law. Article 59 emphasizes the fact that judicial decisions and the works of publicists are not by themselves intended to be operative as norms. Article 38 seems to present a hierarchy, a-c over d but this is wrong because a-c and d in 30

fact do not belong to the same category. The application of the conventional rules is given primacy even if this exists side by side with customary norm of a general character. Why? 1. on account of the nature of those norms and on account of the specific 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 text of Article 38. B. International Custom Wolfke, Custom in Present Day International Law, 1964 The source of customary law is the community or, more accurately, the way of life of the community. The formation of custom is a continuous process with the ff. main stages: 1)

moment of formation • when a certain practice becomes sufficiently ripe to justify at least a presumption that it has been accepted by other interested states as an expression of law • corresponding customary rule of international law begins to have binding effect 2) ascertainment of an already existing custom • the establishment of the existence of an international custom (or the fulfilment of its elements), the formulation of the corresponding customary rule, and the fixing of its range of validity Mechanisms of formation: 1) analogy with custom in municipal law • “misleading and somewhat arbitrary simplification” • Fauchile: International custom arises like all customs i.e. by repetition of actions in similar situations 2) McDougal’s mechanism • a continuous process of raising mutual claims and the adoption of an attitude to such claims by competent state organs (decision-makers) • 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 “accept them” (most often only by means of tacit tolerance) or “reject them” (above all by means of protest). 31

Elements of custom: 1) Practice (objective): • Practice constitutes the raw material of custom, while the legal importance is added by the element of acceptance as law • The 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 quantitatively lesser practice. • Can abstention be a source of custom? ð NO (Judge Altamira): 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. ð YES (Sorensen): abstention is often a result of positive decision or action…depends on the kind of custom developing i.e. whether it is simple inaction or abrogation of an existing customary rule. 2) Acceptance (subjective): Means of expressing acceptance: 1) express declarations – most unequivocal 2) tacit – other individual or collective verbal acts, depending on their content, legal validity, and all other circumstances • In most cases the element of acceptance is fulfilled tacitly, only by means of a presumption based upon various kinds 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 final acceptance. No objections are raised since they are not binding anyhow. Role of certain factors in formation of custom: 1) international usage • “…is, or at least should be, considered as a sort of qualified practice accepted, not as an expression of law, but as a simple habit or, at most as a rule of conduct of another kind: rules of comity, international morality, etc.” • distinction between usage and custom is “very difficult” and possible only in cases of international conflict, when a legal claim, responsibility or sanctions come into play 2) international agreements • WARNING: a treaty can never of itself lead to the formation of an international custom. ð It is an outcome of the active will of states to create mutual rights and obligations of exclusively conventional character. • “Accession by way of custom”: Custom may extend the application of rules contained in a treaty beyond the contracting States. ð Acceptance makes the treaty binding on third States by way of custom, but the treaty itself does not have legal effects for such States. • Treaties may contribute to the formation of customs as their elements: may constitute custom-forming precedents, may be evidence of practice. 32

3) courts and tribunals • a statement by the court that a certain rule applies in settling a dispute involves a law-creating factor. • decision may affect the further development or extinction of a custom e.g. declaration that there is no sufficient evidence for admission of the existence of a custom may paralyze development 4) opinions of publicists • consists of the analysis of facts and opinions and in drawing conclusions on binding customary rules and on trends in their evolution…(which) involves unrestricted supplementation of elements lacking. 5) national law • may be a serious factor in fields concerning both national and international relations • may initiate international practice 6) the rise of the great powers • power, wealth, sheer size, and George W. Bush • presumed acceptance of great powers frequently has a decisive effect 7) practice of international organizations • brings about an “enormous intensification of international intercourse by multiplication of contacts between states, and, in general, a rapid development of international practice.” So…uhhh…custom is formed somewhere in between all that ummm…intercourse. What’s Prof. Agabin’s problem, other than your performance? 8) UN Gen Assembly Resolutions • 2 types: (1) acts of conduct regulated by rules of procedure of organizations – only binding upon the organization and its members (2) binding/unbinding decisions – the latter do not constitute evidence of acceptance of a practice as law, but only of the existence of a presumption thereof by memberstates Virally, op cit. pp. 128-143, supra Cases: (1) North Sea Continental Shelf Cases (1969)

The Equidistance Principle Not Inherent in the Basic Doctrine of the Continental Shelf (paras. 37-59 of the Judgment) It had been maintained by Denmark and the Netherlands that the Federal Republic was in any event, and quite apart from the Geneva Convention, bound to accept delimitation on an 33

equidistance basis, since the use of that method was a rule of general or customary international law, automatically binding on the Federal Republic. One 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. From this notion of appurtenance was derived the view, which the Court accepted, that the coastal State's rights existed ipso facto and ab initio. Denmark and the Netherlands claimed that the test of appurtenance must be "proximity": 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. Hence, delimitation had to be effected 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 equidistance line would do this, only such a line could be valid, it was contended. This view had much force; the greater part of a State's continental shelf areas would normally in fact be nearer to its coasts than to any other. But the real issue was whether it followed that every part of the area concerned must be placed in that way. The Court did not consider this to follow from the notion of proximity, which was a somewhat fluid one. More fundamental was the concept of the continental shelf as being the natural prolongation of the land domain. Even if proximity might afford one of the tests to be applied, and an 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. What conferred the ipso jure 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. Equidistance clearly could not be identified with the notion of natural prolongation, since the use of the equidistance method would frequently cause areas which were the natural prolongation of the territory of one State to be attributed to another. Hence, the notion of equidistance was not an inescapable a priori accompaniment of basic continental shelf doctrine. A review of the genesis of the equidistance method of delimitation confirmed the foregoing conclusion. The "Truman Proclamation" issued by the Government of the United States on 28 September 1945 could be regarded as a starting point of the positive law on the subject, and the chief doctrine it enunciated, that the coastal State had an original, natural and exclusive right to the continental shelf off its shores, had come to prevail over all others and was now reflected in the1958 Geneva Convention. With regard to the delimitation of boundaries between the continental shelves of adjacent States, the Truman Proclamation had stated that such boundaries "shall be determined by the United States and the State concerned in accordance with equitable principles". These two concepts, of delimitation by mutual agreement and delimitation in accordance with equitable principles, had underlain all the subsequent history of the subject. It had been largely on the recommendation of a committee of experts that the principle of equidistance for the delimitation of continental 34

shelf boundaries had been accepted by the United Nations International Law Commission in the text it had laid before the Geneva Conference of 1958 on the Law of the Sea which had adopted the Continental Shelf Convention. It could legitimately be assumed that the experts had been actuated by considerations not of legal theory but of practical convenience and cartography. Moreover, the article adopted by the Commission had given priority to delimitation by agreement and had contained an exception in favour of "special circumstances". The Court consequently considered that Denmark and the Netherlands inverted the true order of things and that, far from an equidistance rule having been generated by an antecedent principle of proximity inherent in the whole concept of continental shelf appurtenance, the latter was rather a rationalization of the former

The Equidistance Principle Not a Rule of Customary International Law (paras. 60-82 of the Judgment) The question remained whether through positive law processes the equidistance principle must now be regarded as a rule of customary international law. Rejecting the contentions of Denmark and the Netherlands, the Court considered that the principle of equidistance, as it figured in Article 6 of the Geneva Convention, had not been proposed by the International Law Commission as an emerging rule of customary international law. This Article could not be said to have reflected or crystallized such a rule. This was confirmed by the fact that any State might make reservations in respect of Article 6, unlike Articles 1, 2 and 3, on signing, ratifying or acceding to the Convention. While certain other provisions of the Convention, although relating to matters that lay within the field of received customary law, were also not excluded 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 prejudiced by the exercise of continental shelf rights. Article 6, however, related directly to continental shelf rights as such, and since it was not excluded from the faculty of reservation, it was a legitimate inference that it was not considered to reflect emergent customary law. It had been argued on behalf of Denmark and the Netherlands that even if at the date of the Geneva Convention no rule of customary international law existed in favour of the equidistance principle, such a rule had nevertheless come into being since the Convention, partly because of its own impact, and partly on the basis of subsequent State practice. In order for this process to occur it was necessary that Article 6 of the Convention should, at all events potentially, be of a norm-creating character. Article 6 was so framed, however, as to put the obligation to make use of the equidistance method after a primary obligation to effect delimitation by agreement. Furthermore, the part played by the notion of special 35

circumstances in relation to the principle of equidistance, the controversies as to the exact meaning and scope of that notion, and the faculty of making reservations to Article 6 must all raise doubts as to the potentially norm-creating character of that Article. Furthermore, 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 ratifications and accessions so far was hardly sufficient. 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 affected, should have been both extensive and virtually uniform in the sense of the provision invoked and should have occurred in such a way as to show a general recognition that a rule of law was involved. Some 15 cases had been cited in which the States concerned had agreed to draw or had drawn the boundaries concerned according to the principle of equidistance, 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. The cases cited were inconclusive and insufficient evidence of a settled practice. The Court consequently concluded that the Geneva Convention was not in its origins or inception declaratory of a mandatory rule of customary international law enjoining the use of the equidistance principle, its subsequent effect had not been constitutive of such a rule, and State practice up to date had equally been insufficient for the purpose.

The Principles and Rules of Law Applicable (paras. 83-101 of the Judgment) The legal situation was that the Parties were under no obligation to apply the equidistance principle either under the 1958 Convention or as a rule of general or customary international law. It consequently became unnecessary for the Court to consider whether or not the configuration of the German North Sea coast constituted a "special circumstance". It remained for the Court, however, to indicate to the Parties the principles and rules of law in the light of which delimitation was to be effected. The basic principles in the matter of delimitation, deriving from the Truman Proclamation, were that it must be the object of agreement between the States concerned and that such agreement must be arrived at in accordance with equitable principles. The Parties 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 agreement; 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 modification of it. This obligation was merely a special application of a principle underlying all 36

international relations, which was moreover recognized in Article 33 of the Charter of the United Nations as one of the methods for the peaceful settlement of international disputes. The Parties were under an obligation to act in such a way that in the particular case, and taking all the circumstances into account, equitable principles were applied. There was no question of the Court's decision being ex aequo et bono. It was precisely a rule of law that called for the application of equitable principles, and in such cases as the present ones the equidistance method could unquestionably lead to inequity. Other methods existed and might be employed, alone or in combination, according to the areas involved. Although the Parties 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. For all the foregoing reasons, the Court found in each case that the use of the equidistance method of delimitation was not obligatory as between the Parties; that no other single method of delimitation was in all circumstances obligatory; that delimitation was to be effected by agreement in accordance with equitable principles and taking account of all relevant circumstances, in such a way as to leave as much as possible to each Party 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 other; and that, if such delimitation produced overlapping areas, they were to be divided between the Parties in agreed proportions, or, failing agreement, equally, unless they decided on a régime of joint jurisdiction, user, or exploitation. In the course of negotiations, the factors to be taken into account were to include: the general configuration of the coasts of the Parties, as well as the presence of any special or unusual features; so far as known 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 extent of the continental shelf areas appertaining to each State and the length of its coast measured in the general direction of the coastline, taking into account the effects, actual or prospective, of any other continental shelf delimitations in the same region. Notes: Lex lata- law as it is Lex ferenda- law as it ought to be De lege ferenda- experimental basis Universality is not necessary to fulfill the requirement of generality of law. Generality merely makes an assumption of consistency of general practice. On why the equidistance principle is not 37

norm-creating, the ICJ said: 1. the primary rule is that there must be an agreement among the parties as to how to delimit. Equidistance is relegated to a secondary position as a rule; 2. the parties may derogate from the equidistance principle by agreement; 3. art. 12 of the convention gives states the right to reserve unilaterally, hence they can refuse to agree to the principle; 4. special circumstances may be taken into consideration, such as irregular coastlines. Magi- by its very nature, a customary or general law should not be subject to reservation because this type of law should operate with equal force on every state. On Opinio Juris (recognition of a practice as legally binding)- Denmark and the Netherlands contend that proof of general practice should also be taken as proof of opinio juris. However, the ICJ’s stand is that opinio juris must be proved separately because it could happen that states enter into agreement merely for expediency. On General Practice- it must be extensive and consistent. The duration of time involved is not decisive by itself. (2) Case Concerning Military and Paramilitary Activities In and Against Nicaragua (1986) On April 9, 1984, the Ambassador of the Republic of Nicaragua to the Netherlands filed in the Registry of the Court an Application instituting proceedings against the United States concerning responsibility fir military and paramilitary activities in Nicaragua. - used military force - intervened in internal affairs - created an army of more than 10,000 mercenaries - to harass and destabilize the Government of Nicaragua

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Nicaragua claimed that Court had jurisdiction by virtue Nicaragua’s Declaration of 1929:

On behalf of the Republic of Nicaragua, I recognize as compulsory unconditionally the jurisdiction of the Permanent Court of International Justice. Sgd. T. F. Medina The United States opposed on the ground that: - Nicaragua never ratified the Statute of the Permanent Court of International Justice (files of the League of nations contained no evidence that an instrument of ratification had ever been received) - 1984 notification denied Court jurisdiction: declaration shall not apply to disputes with any Central American State or arising out of or related to events in Central America Issue: WON Nicaragua’s 1929 Declaration is valid and binding Held: No Ratio: - did not accomplish the indispensable step of sending its instrument of ratification to the Secretary-general of the League of Nations HOWEVER, Court ruled that Nicaragua can still invoke compulsory jurisdiction of the Court: 1. The essential validity of the Nicaraguan declaration as an acceptance of the compulsory jurisdiction is confirmed by the evidence of a long series of public documents, by the general opinion of States and by the general opinion of qualified publicists. 2. Other Sates have never challenged the interpretation to which the publications of the UN bear witness and whereby Nicaragua was deemed to be covered by Article 36 on compulsory jurisdiction. Such States as themselves publish lists of states bound by the compulsory jurisdiction of the court have placed Nicaragua on their lists. 3. In effect, Nicaragua was placed in an exceptional position, since the international organs empowered to handle such declarations declared that the formality in question had been accomplished by Nicaragua. United States raised another provision in its 1946 Declaration which said the it was to subject itself to the jurisdiction of the Court only if all the parties to the treaty affected by the decisions are also parties to the case before the Court.(multilateral treaty reservation) -

-

Court ruled that this provision does not deprive court of jurisdiction because Nicaragua invokes a number of principles of customary and general international law that have been violated by the US. (no need to bring in parties to treaty if case involves violation of customary law) Principles 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 39

conventional law in which they have been incorporated. Notes: Even if customary norms have been codified, they do not cease to exist 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 ICJ here said: there are practices of states that by their very nature may exhibit on their face, opinio juris. Magi- if you combine the 2 elements (general practice and opinio juris), it will give you the juridical nature of the practice of law. So it seems that the emphasis of art. 38 (b) is the juridical character of practice and therefore the emphasis is on opinio juris confirmed by general practice. (3) Asylum Case (1950) Facts: Act if Lima between the Colombian Government and Peruvian Government: Colombian Embassy in Lima requested for delivery of a safe conduct for Msr. Victor Raul Haya de la Torre. The request was based on the Convention on Asylum signed at Havana and the Agreement on Extradition signed in Caracas. Colombia submits that it is competent to qualify the offense for the purpose of asylum and that such is by a unilateral and definitive decision binding on Peru: based submission partly on rules, resulting from agreement, partly on an alleged custom peculiar to Latin American States.

“to qualify the offense for the purpose of asylum” To qualify refugees as: 1. offenders for common crimes 2. deserters from the army or navy 3. political offenders Issue: WON custom is a valid basis for Colombia’s assertions 40

Held: NO Ratio: 1. Colombia must prove that this custom is established in such a manner that it has become binding on the other party. a. Rule is in accordance with a constant and uniform usage practiced by States. b. usage is the expression of a right appertaining to the State granting asylum and a duty incumbent on territorial states. 2. Only if above are proven can Colombia remain consistent with Article 38 of SoC: “ international custom as evidence of a general practice accepted as law. 3. Montevido Convention of 1933: limited number of States ratified this convention and thus not sufficient to prove international custom - even if there was such a custom, Peru still would not be bound because it repudiated such convention by refraining from ratifying it. RULE: Colombia, as the state granting asylum, is not competent to qualify the offence by a unilateral and definitive decision, binding on Peru. Notes: Territorial asylum- there is no derogation of sovereignty of the host state (the state to which the offender escaped or sought asylum) Diplomatic asylum- asylum is given by the embassy of a foreign power in the territory of the host state ICJ: diplomatic asylum is a derogation of the general rule, therefore it was incumbent upon Colombia to show that this rule exists and that is binds Peru. Colombia failed in this respect. Although the ICJ 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 existence of such rule and failed to show that Peru was bound.

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C. Treaties Tunkin, Theory of International Law, 1974 Shortcuts: IC – International Conference IT – International Treaty IO – International Organization IL – International Law ILC – International Law Commission I. TREATIES BET. STATES Interstate treaty - as a method of creating norms of IL, is a clearly expressed agreement bet. states relating to the recognition of a particular rule as a norm of IL or to the change or liquidation of existing norms of IL > Vienna convention, Art. 2: treaty (def) is an intl agreement concluded between states in written form > Conventional norm of IL – result of an agreement expressed in the form of treaties bet. states G In 2nd half of 19th century, theories emerged that only a certain group of intl treaties played a role in norm-formation. A. Bergbohm - two categories exist based on difference in purpose, which contracting parties set for themselves: 1. contract treaties – don’t go beyond possible limits already granted to states under prevailing IL; don’t establish norms of conduct for long periods of time; very rarely are sources of IL 2. law-making treaties – create abstract norms which are recognized/established by states as norms of conduct for the future; sources of IL B. N. Korkunov 1. constitutive – regulate an individual concrete relationship; do not establish a legal norm as the general rule 2. regulatory – have the purpose of standardizing a whole series of uniform relationships and establishing general norms for all uniform relationships C. F. Martens 1. treaties that formulate legal norms 2. contractual treaties concerning private interests D. Triepel – distinction bet. norm-creating treaties and other treaties: 1. Vertrag – in treaty which doesn’t create norms, there is divergence of wills of contracting parties 2. Vereinbarung – in norm-creating treaties, there is coincidence of wills and their amalgamation into a common will (Gemeinwille) 42

E. A. Ulloa: Majority of intl treaties are not a source of IL. They simply arise out of prevailing IL. F. A. Verdross, divides treaties into: 1. Vereinbarungen (law-making treaties) – includes multilateral and bilateral treaties that establish general abstract norms 2. Rechtsgeschafte (contracts) – includes treaties pertaining to specific questions G. Rosseau: Only law-making treaties (traites-lois) are recognized as sources of IL H. Jimenez de Arachaga: Although both law-making and contractual treaties create legal norms, only those treaties which form general norms are a source of IL. G Today, many writers reject this division. A. Rosseau: Both types of treaties have the same force in positive IL and no hierarchy exists between them. The division is of interest only in terms of description and classification. B. Oppenheim- Lauterpacht: All treaties are law-making inasmuch as they lay down rules of conduct which the parties are bound to observe as law. C. C. de Visscher: Although both treaties play unequal roles in the development of IL, both are law for the contracting parties. Only difference: 1. law-making treaties – relate to wider sphere of relations and concluded for a prolonged period 2. contractual treaties – concluded w/ regard to private questions, short-term, and after being fulfilled, terminate their operation D. Kelsen – completely rejects the division; The essential function of a treaty is to make law, to create a legal norm, whether general or an individual norm. E. Guggenheim: The difference bet. norm-creating and contractual treaties affects only the content, and interpretation but not the legal nature of intl conventions. F. F.I. Kozhevnik: All treaties in principle have a norm-formative character…since they establish rules of conduct which their parties are bound to observe. Difference lies in treaties which establish rules for: 1. whole sphere of relations among states 2. definite concrete questions G. Korovin: Division is unfounded. Any treaty, as an act originating with state-subjects of IL, has a particular law-making significance. H. Lachs: In reality…an intl treaty, either bilateral or multilateral, is a source of rights and duties, even when it regulates very commonplace questions of everyday life. Lachs divides treaties into: 1. Treaties affirming or formulating certain already existing binding principles and norms of law for the purpose of greater clarity; 2. Treaties creating new principles and norms; 3. Treaties applying existing principles or norms of law ad casum. G Tunkin: Problem [of distinction] is exaggerated & has no practical significance. Any valid intl treaty has legally binding force for its parties & in this sense is law-making. Conclusion of a Treaty (def) 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. The process 43

embraces several stages: 1. negotiations 2. initialing 3. adoption by IC or organ of IO 4. signature 5. confirmation 6. ratification 7. exchange/deposit of instruments 8. entry into force à It is, however, not obligatory that conclusion of a specific treaty pass through all these stages.

When does process begin & end? Fitzmaurice: Text ≠ Agreement. The drafting of the text is a technical process irrelevant to the agreement. Tunkin: Fitzmaurice’s construction is artificial. One can’t distinguish between the negotiating process among representatives of states and the preparation of the draft treaty by experts who are not plenipotentiary representatives of states. The process of concluding a treaty commences with negotiations among official state representatives irrespective of the form/level wherein these negotiations take place. Process of Treaty Formation 1 Content of agreement is formed in the course of working out a treaty text (during negotiations in ICs etc.). Agreement is fixed in the text. 2 By initialing, signature or enactments of ICs or IOs, the treaty text is established. - Gen Rule: Once text is established, no participant can insist on its being changed. - Exception: When reservations are made.



n. a diplomatic agent having full power or authority. The US, for example, has either an ambassador or a minister plenipotentiary in most important countries.

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Norm of IL – result of completion of the process of concluding an IT Note: But it is necessary to distinguish bet. entry into force and process of concluding a treaty Rules: 1 treaty concluded before entry into force à norm emerges but still not a prevailing norm 2 treaty entered into force before concluded à norm exists & commences to operate but operation is provisional (subject to ratification) 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. But this does not affect obligations concerning negotiations. - the consent of states to enter into negotiations doesn’t in itself impose an obligation to conclude a treaty Once process of concluding a treaty is complete, the process of forming norm of IL is complete. Modification/Liquidation of a Treaty Norm 1 Modification – may occur by treaty or by custom * By treaty à occurs by concluding a supplemental or new treaty BUT any modification of a treaty requires the consent of all parties unless the treaty itself provides otherwise. 2 Liquidation – also by treaty or custom * By treaty à expiration of the term of treaty, agreement of parties, denunciation, abrogation etc. II. TREATIES BET. STATES CONCLUDED W/IN THE FRAMEWORK OF IOs IOs concentrate in their hands the organizing of the conclusion of multilateral treaties among states concerning questions w/c relate towards the domain of their activities. Trend: towards simplifying procedure of concluding ITs. 45

Example: In the Intl Labor Organization… Convention adopted by General Conference à signed by Conference Chairman & ILO Director-General à certified copies sent to member-states à state ratifies & notifies Dir-Gen of ratification ∴ no sigs of state representatives required or deposit of instruments of ratification IOs vs Normal Norm-Creating Process There are two aspects of forming norms, whether customary or conventional. Normformation consists of bringing into concordance the wills of the states with respect to: 1 content of rules of conduct 2 recognition of rule as norm of IL In IOs, these aspects never coincide. Concordance of states as to: 1 content à accomplished w/in the framework of IO as in adoption of treaty text as final by the organ of the IO or conference of plenipotentiaries of States created by a decision of IO 2 recognition as norm of IL à formed from individual actions of states (signature, ratification etc.) w/o w/c treaties adopted by IOs don’t become legally binding upon states III. REGULATIONS ADOPTED BY SPECIALIZED IOs * Examples of Specialized IOs : World Meteorological Organization, Universal Postal Union etc. Why created Specialized IOs create normative regulations bec. of increase in quantity of primarily technical questions w/ w/c the orgs had to occupy themselves. Simplified procedure required. Technology moves rapidly ∴ norms must change frequently. How formulated Regulations are adopted by plenary or lesser organs. The charter come into force: 1 expressly – subject to ratification or approval of states 2 tacitly – regulation regarded as accepted if state does not object or does not refuse to accept a particular regulation w/in a prescribed period Legal Nature Other writers (Guggenheim, Friedmann, Vellas, Suba etc.) : These regulations are international legislation. They are more acts of the organization than an agreement bet. member- states & resemble unilateral legislative acts enacted by congress (in municipal law). Tunkin: Regulations are not legislation but International Treaties. Content of norms may have already been finally determined [by IO] but to become binding upon states, an expression of its will is necessary to recognize such norms as IL norms ∴ Binding force of forms of regulations is based upon agreement & not upon legislative power of IOs. 46

IV. TREATIES OF IOs Why created - result of development of IOs that are subjects of IL Two Categories 1 Treaties concluded by IOs with each other ex. Standard Agreement on Mutual Assistance to Jordan 2 Treaties concluded by IOs with states - relate to location of organizations & their organs, granting of assistance, privileges & immunities etc. Legal nature There are two views as to the legal nature of treaties of IOs: 1 considered as treaties bet. States This view arose out of a denial of the legal personality of IOs. Treaties of IOs are considered simply as variant forms of treaties bet. states. For example, agreements concluded by the UN give rise to rights & obligations not for the UN as such, but for member states of the UN. 2 considered as treaties bet. IO and states This view arose out of a confirmation that IOs have legal personality. IOs are created by states but they are organizations distinct from states. IOs acquire rights & assume specific obligations, separate from states. The ILC initially proposed to include treaties of IOs within the scope of draft articles on the law of treaties, such that a treaty will be defined as “an agreement in writing bet. two or more states or IOs…”. Even writers who consider treaties bet. subjects of IL as not necessarily being ITs or who do not have a definite position on this question also come to the conclusion that the overwhelming majority of treaties of IOs have an intl character. But the ILC eventually decided to work out a draft having in view only treaties bet. states in order to study later what modifications are required to be introduced to make them applicable to treaties of IOs. Tunkin says this decision is correct. Because…Recognizing agreements of IOs as ITs in no way signifies that such treaties can be equated to treaties bet. states. Specific feature of IOs as subjects of IL affects treaties which they conclude. Norms of treaties concluded bet. IO-IO and IO-States always are of a secondary nature. The validity of these treaties is always the charter of the IO, which contains norms of primary order. Notes:

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2 kinds of treaties1. contractual: contains provisions which do not go beyond the possible limit already granted to states under prevailing IL; rarely a source of IL. 2. law-making treaties: create abstract norms recognized by states as norms of conduct for the future. Treaty-making process1. 2. 3. 4. 5. 6. 7. 8.

negotiations initiating adoption by the intl. Organ signature confirmation ratification exchange & deposit of instruments entry into force

*** some of these stages my be skipped *** the drafting of the text is a technical process which has no relevance to agreeing to the treaty. Thus a state may agree to the language of the draft, but may later on refuse to accede to the treaty itself. How treaties are modified1. by custom 2. by a new treaty Jennings, Treaties in Bedjaoui Note: This digest does not include PROVISIONS of the VIENNA CONVENTION (to save on Xerox space) but these are VERY IMPORTANT. Please read them in the original, they’re in smaller fonts in the material. J Shortcuts: IC – International Conference IT – International Treaty IO – International Organization 48

IL – International Law I. INTRODUCTION The treaty is the most important instrument known to IL…and is also, in volume, range and ubiquity, the most important source of IL. The standard form of treaty…is a written agreement between States, which creates obligations & rights in IL…[But] besides treaties bet. States, there are treaties bet. StatesIOs and bet. IO-IO. IL prescribes no particular form or procedure for the making of intl engagements: though Consti Law of a State may and frequently does. Nor is there any required order of the content of a treaty. There are also many possible designations of a treaty. It may be called: convention, declaration, protocol, act etc. II. CONCLUSION & ENTRY INTO FORCE Two phases in conclusion & entry into force: 1. adoption of an agreed final draft of the treaty text 2. ways in which a party can thereafter effectively indicate its consent to become bound by the treaty

Phase 1: Vienna Convention Rules on the adoption of an agreed text 1. In bilateral treaties or treaties between a few States, unanimity remains the rule. Adoption requires the consent of all States participating. 2. At a general diplomatic conference, unanimity will be unrealistic. Adoption takes place by the vote of 2/3 of the States present and voting, unless by the same majority they shall decide to apply a diff. rule. Phase 2: Modes of expressing consent to become bound * Signature – serves two diff. functions: 1. one act of signature may both authenticate the text and express finally the consent of the signatory State to be bound by the treaty or; 2. signature authenticates the text but consent to be bound has to be expressed by a second step, such as ratification, approval etc. * Ratification – the exchange or deposit of a formal instrument, by which a State signifies its willingness to become bound by a treaty 1. bilateral treaty – instrument normally exchanged 2. multilateral treaty – instrument normally deposited with a designated depositary power * Acceptance & Approval – less formal modes of expressing willingness to become a party to a treaty * Accession – an act whereby a State becomes a party to a treaty already made and signed by other States; or an act whereby a State may become a party to a treaty made under the auspices of an IO

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Time of entry into force * Bilateral treaty - moment both parties validly express consent to be bound or; - subsequent date agreed upon by the parties for entry into force * Multilateral 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 text III. RESERVATION Legal Effect 1. Where treaty itself provides that a reservation may or may not be made, follow the treaty. 2. Otherwise: a. Traditional doctrine based on unanimity principle A reservation not expressly provided for in the treaty, is in effect a new offer; and accordingly a reserving State could not become a party unless the reservation received the express or tacit approval of every other State party. b. Object & Purpose Test A State which has made & maintained a reservation…can be regarded as being a party to the Convention if the reservation is compatible with the object and purpose of the Convention. If a party objected to a reservation as not being so compatible, that party is entitled to regard the reserving State as not being a party to the Convention; and conversely for a party taking the opposite view. c. Compatibility Test at the Vienna Conference A State may…formulate a reservation unless: a. the reservation is prohibited by the treaty b. the treaty provides that only specified reservations, which do not include the reservation in question, may be made c. or in cases not falling under (a) or (b), the reservation is not compatible with the object and purpose of the treaty. Legal Effect of Reservations on existing parties to a treaty Gen Rule: Acceptance of a reservation by another contracting State constitutes the reserving State a party in relation to that other State. An act expressing a State’s consent to be bound by the treaty and containing a reservation is effective as soon as at least one other contracting State has accepted the reservation; and a reservation is considered to have been accepted by a State if it has not objected to it within 50

12months of its notification. à Scheme leans in favor of the reserving state. Objectors have to take position action. A reservation established with regard to another party, modifies provisions of the treaty to the extent of the reservation, in the relation between the reserving State and the other party. However, the reservation does not modify the provisions of the treaty for the other parties inter se. IV. OBSERVANCE, APPLICATION and INTERPRETATION Observance The primary principle to be observed is pacta sunt servanda: Every treaty in force is binding upon the parties to it and must be performed by them in good faith; A party may not invoke the provisions of its internal law as justification for its failure to perform a treaty. Application In point of time: A treaty is not retroactive.

Territorial application: A treaty will apply to the whole territory of the State. Conflicts of treaties relating to the same subject matter: * If all parties to treaty 1 are parties to treaty 2 > Lex posterior principle will apply & treaty 2 will prevail. * If not all parties to treaty 1 are parties to treaty 2: - as between States parties to both treaties > later treaty prevails - as between a State - party to both treaties and another State - party to only one treaty > treaty to which both are parties prevails Interpretation Gen. Rule: Where the meaning is clear, the treaty should be applied accdng to its clear meaning. If interpretation is required, the Gen. Rule of Interpretation is: 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 context & in the light of its object & purpose. à primarily textual, but also incorporates principles of object & purpose and intention of parties V. TREATIES & 3RD STATES A treaty does not create obligations or rights for a 3rd State without its consent. An obligation or right created may not be modified or revoked without the consent of the 3rd State. If a treaty rule is the same as an existing general rule of customary law, the latter will still apply to 3rd States as custom ∴ States parties to the treaties will be doubly bound: by custom 51

in regard to States generally, and also by treaty in regard to the other parties. Example of an indirect way by which a treaty may affect the rights and obligations of 3rd States: If a treaty validly creates an IO with legal personality, a 3rd State may not be in a position to deny the objective and legal existence of that organization. VI. AMENDMENT & MODIFICATION

Amendment & Modification distinguished Amendment (def) a formal agreement to alter the treaty with respect to all parties Modification (def) an inter se agreement between only some parties and intended to vary the treaty bet. themselves alone The Vienna Convetion lays down rules for the amendment of multilateral treaties and agreements to modify multilateral treaty as bet. two parties. (pls. see p.149 of Jennings) VII. INVALIDITY Possible causes of invalidity:

1. Breach of IL Q: May the State be bound through a person acting ultra vires, yet having ostensible authority to deal in the eyes of the other party? Rule: Consent on the intl plane binds. Exception: Where the violation of the internal law was manifest and the internal law rule violated was of fundamental importance. 2. Error Error may be invoked as a ground invalidating consent only if the error relates to some fact or situation which was assumed by the State invoking the error to exist 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. Error may not be invoked 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. 3. Fraud If a State has been induced to conclude a treaty by the fraudulent act of another negotiating State, the State may invoke the fraud as invalidating its consent to be bound by the treaty. Manipulation of a State representative through corruption may also be invoked as invalidating the State’s consent. 4. Coercion a. employed against the representative of the State - consent shall be without legal effect; except when the State concerned has already ratified the representative’s act b. employed against the State itself 52

- A treaty is void [in its entirety] if its conclusion has been procured by the threat or use of force in violation of the principles of IL embodied in the Charter of the UN. - Q: What uses of force are in violation of the principles of IL? A: Force in any form, whether military, political or economic.

5. Registration & Publication Art. 102 UN Charter requires: Every treaty and every intl agreement entered into by any Member of the UN…be registered as soon as possible with the Secretariat and published by it. The sanction, however, is not invalidity, but that the unregistered treaty or agreement may not be invoked before any organ of the UN, including the ICJ.

6. Jus Cogens A treaty is void if, at the time of its conclusion, it conflicts with a peremptory norm of general IL. (pls see Art. 53, 64, 71 of UN Charter) VIII. TERMINATION AND SUSPENSION OF OPERATION Termination deals with a valid treaty which has been in force for the parties. It is not the same as invalidity. Grounds for termination or suspension:

1. Those logically linked with the notion of agreement as the basis of treaties. Treaty may terminate where… - 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 subject-matter.

2. Those outside any area of agreement a. Breach Gen Rule: A sufficiently impt breach of an agreement by a party, gives a party suffering from the breach the option to abrogate the arrangement, as well as a claim to appropriate reparation for damage caused to him. à What makes a particular breach important enough? The kind of breach that can justify 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 question the continued value, or even the possibility of that relationship. But the effects of a material breach of a bilateral treaty are the different from the effects of a 53

material breach of a multilateral treaty. Effects of the latter are more complicated. Finally, breach must be distinguished from justified non-performance (i.e., as a legitimate retaliation for a prior wrong). b. Supervening Impossibility of Performance Impossibility of performance is confined to the physical removal of an object indispensable to the execution of the treaty. Subtler kinds of impossibility of performing fall into the next heading of… c. Fundamental Change of Circumstances In domestic law, a common device to deal with a “frustration”Y 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 key circumstances was essential to the operation of the agreement; 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, like the implied term devise in domestic law. The Vienna Convetion presents this concept as an exception to the superior concept of pacta sunt servanda. BUT there are cases where the plea of obsolescence may not be used at all: 1. boundary treaty – where permanence and stability, even though circumstances change, is of the essence of the matter 2. where the party seeking to invoke the change has himself wrought it IX.LEGAL CONSEQUENCES OF INVALIDITY, TERMINATION OR SUSPENSION Gen. Rule: The provisions of a void treaty have no legal effect. Specific Rule: If acts have nevertheless been performed in reliance on a void treaty… 1. each party may require any other party to establish as far as possible in their mutual relations the position that would have existed if the acts had not been performed 2. acts performed in good faith before the invalidity was invoked are valid …but 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. X. SEPARABILITY OF TREATY PROVISIONS AND THE INVOKING OF INVALIDITY OR OF A GROUND FOR TERMINATING OR SUSPENDING Gen. Rule: Grounds for termination etc. may be invoked only with respect to the whole treaty. Y

a radical change of circumstances which makes an agreement into something essentially different from what was contemplated by the parties at the time they made it

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Exception: If ground relates solely to particular clauses, it may be invoked only with respect to those clauses where: 1. said clauses are separable from the remainder of the treaty with regard to their application 2. it appears that acceptance of those clauses was not an essential basis of the consent of the party to be bound 3. continued performance of the remainder of the treaty would be injust (!) Specific Rules: * A party must denounce the whole of the treaty or refrain from denouncing any part of it. * Only a material breach will create the option of termination. A material breach affects the whole of the treaty, therefore termination in case of breach may be in respect of the whole, as well as of the parts. * In cases of coercion of a representative, or the use of unlawful force or threat of force against a State, or of conflict with a peremptory norm, the whole treaty is affected and no separation of clauses is permitted. * Where the ground of invalidity is fraud or corruption affecting a State’s consent to be bound, termination must be with respect to the whole treaty; But where clauses are severable, the ground invoked may be limited to particular clauses only. (see Gen. Rule and Exception above) XI. PROCEDURES IN CASES OF DISPUTE The ff. are complementary procedural rules for dealing with disputes: Art. 65 lays down a requirement of due notice: A party invoking…any defect…must notify in writing the other parties of its claim, indicating the measure proposed to be taken and the reasons therefor. Art. 33 lists possible means of pacific settlement of disputes such as negotiation, enquiry, mediation etc.: If an objection is raised by any other party against the proposed measure under Art. 65, parties may seek a solution through means indicated in Art. 33. Art. 66 provides a procedure to be followed where procedures under Art. 65 have produced no solution within 12 months of the objection: Any one of the parties may submit the dispute to the ICJ by written application, when the parties by common consent agree to submit the dispute to arbitration… Magallona, A Primer on the Law of Treaties (1997) (see primer itself) Vienna Convention on the Law of Treaties, 63 Am J. Intl L 875; 8 DFATS 96 (1969) Cases: (1) North Sea, supra (2) Nicaragua, supra D. General Principles of Law Brownlie, Principles of Public International Law, supra 55

Cheng, General Principles of Law as Applied by International Courts and Tribunals (1953) (NOT AVAILABLE) E. Judicial Decisions and Writings of Publicists Brownlie, Principles of Public International Law (1985), supra F. Problems 1. The Question of UN General Assembly Resolutions Magallona, “Some Remarks on the Legal Character of the United Nations General Assembly Resolutions: in International Law Issues in Perspective (1996) There are some provisions in the UN Charter that provide the binding effect of certain resolutions of the GA even those who voted against. BUT Art 10 provides that the GA may discuss within the scope of the Charter or relating to the functions and powers of the UN organs. The legal effect of such resolutions may depend on specific circumstances attending each resolution. Landes’ suggest some variable affecting effectiveness: (1) fundamental issues lying at the root of the resolutions; (2) the time at which the resolution was passed; (3) the vote taken on the resolution; (4) language of the resolution; (5)methods and means used by the GA to implement resolutions; (6) expectations of member-states UN GA resolutions are still not in a form of international legislation. Recommendations may deal within the scope of the Charter or its powers and organs of the Charter. The GA determines the scope at each particular point in time through the interpretation subject or embodied in the resolution. Resolutions may be considered as an authoritative interpretation of the treaty : (1) it embodies any subsequent agreement between the parties regarding the interpretation of the treaty or the application of the provisions; (2) it expresses any subsequent practice in the application of the treaty w/c establishes the parties agreement There is no way w/c a resolution interpreting the Charter can be assailed constitutionally if the resolution has been adopted in unanimity or by consensus. The GA may have gone beyond the literal terms of the Charter but the Charter is nothing but what the MemberStates say it is. The collective of coordinated wills of the Member-States cannot be said to have been exhausted in 1 single expression in the conclusion of the treaty as a Charter. Rather, such collective expression 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. The consensus operates as a pactum tacitum. The GA performs the role of applying law in the int’l society. There are declaratory resolutions whose law creating or law-declaring character cannot be adequately explained by an approach to Charter interpretation for their legal significance is 56

defined w/in the international customary law (ICL). The question of how the formation of ICL should be conceptualized is raised. The conditions for ts emergence are radically different than before A declaratory resolution of the GA may have a moral or political character. But w/in that int’l legal order, it is only in the abstract that it is possible to distnguish sanction in the technical sense, directed towards the observance of pre-existing judicial obligations, fr. political pressure intended to compel a non-mandatory conduct recommended by an int’l organization. In effect, GA resolutions may embody general principles of law recognized by civilized nations or may constitute subsidiary means for the determination of rules if law as used in Art 38 of the ICJ Statute. Remember that the fundamental concept of IL as rooted in the agreement of States (aka consent). Consent is equated w/ formalities associated with the “sources of law”, no other formulation may be seriously treated as law. But as IL develops, such sources that it recognizes may change not merely in relative importance, but in effective existence. More in keeping with the reality is the attitude that the binding force of all rules of IL ultimately rests on their consent, recognition, acquiescence, or estoppel, and as to States w/c consider themselves bound by given rules of IL, it is difficult to see why it should not be treated as such insofar as those States are concerned. Cases: (1) Western Sahara Case (1975) ICJ Reports

Question 1: "Was Western Sahara (Rio de Oro and Sakiet El Hamra) at the Time of Colonization by Spain a Territory Belonging to No One (terra nullius)?" (paras. 75-83 of Advisory Opinion) For the purposes of the Advisory Opinion, the "time of colonization by Spain" may be considered as the period beginning in 1884, when Spain proclaimed its protectorate over the Rio de Oro. 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, "occupation" was a means of peaceably acquiring sovereignty over territory otherwise than by cession or succession; it was a cardinal condition of a valid "occupation" 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 organization were not regarded as terrae nullius: in their case sovereignty was not generally considered as effected through occupation, but through agreements concluded with local rulers. The information furnished to the Court shows (a) that at the time of colonization Western Sahara was inhabited by peoples which, if nomadic, were socially and politically organized in tribes and under chiefs competent to represent them; (b) that Spain did not proceed upon the basis that it was establishing its sovereignty over terrae nullius: thus in his Order of 26 December 1884 the King of Spain proclaimed that he was taking the Rio de Oro under his protection on the basis of agreements entered into with the chiefs of local tribes. 57

The Court therefore gives a negative answer to Question I. In accordance with the terms of the request for advisory opinion, "if the answer to the first question is in the negative", the Court is to reply to Question II. 59. The validity of the principle of self-determination, defined as the need to pay regard to the freely expressed will of peoples, is not affected by the fact that in certain cases the General Assembly has dispensed with the requirement of consulting the inhabitants of a given territory. Those 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. 80. Whatever differences of opinion there may have been among jurists, the State practice of the relevant period indicates that territories inhabited by tribes or peoples having a social and political organization were not regarded as terrae nullius. It shows that in the case of such territories the acquisition of sovereignty was not generally considered as effected unilaterally through occupation of terra nullius by original title but through agreements concluded with local rulers. On occasion, it is true, the word occupation was used in a non-technical sense denoting simply acquisition of sovereignty; but that did not signify that the acquisition of sovereignty through such agreements with authorities of the country was regarded as occupation of terra nullius. On 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.

Question 11: "What Were the Legal Ties of This Territory with the Kingdom of Morocco and the Mauritanian Entity?" (paras. 84-161 of Advisory Opinion) The meaning of the words "legal ties" has to be sought in the object and purpose of resolution 3292 (XXIX) of the United Nations General Assembly. It appears to the Court that they must be understood as referring to such legal ties as may affect the policy to be followed in the decolonization of Western Sahara. The Court cannot accept the view that the ties in question 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 colonization 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 Morocco or regions of present-day Mauritania Algeria or other States. These tribes were of the Islamic faith. Morocco (paragraphs 90-129 of the Advisory Opinion) presented its claim to legal ties with Western Sahara as a claim to ties of sovereignty on the ground of an alleged immemorial 58

possession of the territory and an uninterrupted exercise of authority. In the view of the Court, however, what must be of decisive importance in determining its answer to Question II must be evidence directly relating to effective display of authority in Western Sahara at the time of its colonization by Spain and in the period immediately preceding. Morocco requests that the Court should take account of the special structure of the Moroccan State. That State was founded on the common religious bond of Islam and on the allegiance of various tribes to the Sultan, through their caids or sheiks, rather than on the notion of territory. It consisted partly of what was called the Bled Makhzen, areas actually subject to the Sultan, and partly of what was called the Bled Siba, areas in which the tribes were not submissive to him; at the relevant period, the areas immediately to the north of Western Sahara lay within the Bled Siba. As evidence of its display of sovereignty in Western Sahara, Morocco invoked alleged acts of internal display of Moroccan 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 Koranic and other taxes, and acts of military resistance to foreign penetration of the territory. Morocco also relied on certain international acts said to constitute recognition by other States of its sovereignty over the whole or part of Western Sahara, including (a) certain treaties concluded with Spain, the United States and Great Britain and Spain between 1767 and 1861, provisions of which dealt inter alia with the safety of persons shipwrecked on the coast of Wad Noun or its vicinity, (b) certain bilateral treaties of the late nineteenth and early twentieth centuries whereby Great Britain, Spain, France and Germany were said to have recognized that Moroccan sovereignty extended as far south as Cape Bojador or the boundary of the Rio de Oro. Having considered this evidence and the observations of the other States which took part in the proceedings, the Court finds that neither the internal nor the international acts relied upon by Morocco indicate the existence at the relevant period of either the existence or the international recognition of legal ties of territorial sovereignty between Western Sahara and the Moroccan State. Even taking account of the specific structure of that State, they do not show that Morocco displayed any effective and exclusive State activity in Western Sahara. They do, however, provide indications that a legal tie of allegiance existed at the relevant period between the Sultan and some, but only some, of the nomadic peoples of the territory, through Tekna caids of the Noun region, and they show that the Sultan displayed, and was recognized by other States to possess, some authority or influence with respect to those tribes. The term "Mauritanian entity" (paragraphs 139-152 of the Advisory Opinion) was first employed during the session of the General Assembly in 1974 at which resolution 3292 (XXIX), requesting an advisory opinion of the Court, was adopted. It denotes the cultural, geographical and social entity within which the Islamic Republic of Mauritania was to be created. According to Mauritania, that entity, at the relevant period, was the Bilad Shinguitti or Shinguitti country, a distinct human unit, characterized by a common language, way of life, religion and system of laws, featuring two types of political authority: emirates and tribal 59

groups. Expressly recognizing that these emirates and tribes did not constitute a State, Mauritania suggested that the concepts of "nation" and of "people" would be the most appropriate to explain the position of the Shinguitti people at the time of colonization. At that period, according to Mauritania, the Mauritanian entity extended from the Senegal river to the Wad Sakiet El Hamra. The territory at present under Spanish administration and the present territory of the Islamic Republic of Mauritania thus together constituted indissociable parts of a single entity and had legal ties with one another. The information before the Court discloses that, while there existed 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 another; they had no common institutions or organs. The Mauritanian entity therefore did not have the character of a personality or corporate entity distinct from the several emirates or tribes which comprised it. The Court concludes that at the time of colonization by Spain there did not exist between the territory of Western Sahara and the Mauritanian entity any tie of sovereignty, or of allegiance of tribes, or of simple inclusion in the same legal entity. Nevertheless, the General Assembly does not appear to have so framed Question II as to confine the question exclusively to those legal ties which imply territorial sovereignty, which would be to disregard the possible relevance of other legal ties to the decolonization process. The 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. These rights constituted legal ties between Western Sahara and the Mauritanian entity. They were ties which knew no frontier between the territories and were vital to the very maintenance of life in the region. Morocco and Mauritania both laid stress on the overlapping character of the respective legal ties which they claimed Western Sahara to have had with them at the time of colonization (paragraphs 153-160 of the Advisory Opinion). 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 Morocco and a south appertaining to Mauritania without any geographical void in between, but with some overlapping as a result of the intersection of nomadic routes. The Court confines itself to noting that this geographical overlapping indicates the difficulty of disentangling the various relationships existing in the Western Sahara region at the time of colonization. Freshman email: BUY/SELL: Quality Unedited VCDs. Call Ed, 0919-3697487. "Ed saw, and it was good. (2) Texaco Overseas Petroleum vs. Libyan Arabic Republic, 17 Intl Legal Mat (1978) This specific paragraph concerning nationalizations, disregarding the role of international law, not only was not consented to by the most important Western countries, but caused a 60

number of the developing countries to abstain. --Resolution 3201 (S-VI) was adopted without a vote by the General Assembly, but the statements made by 38 delegates showed clearly and explicitly what was the position of each main group of countries. The Tribunal should therefore note that the most important Western countries were opposed to abandoning the compromise solution contained in Resolution 1803 (XVII). --The conditions under which Resolution 3281 (XXIX), proclaiming the Charter of Economic Rights and Duties 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 nationalization. Having been the subject matter of a roll-call vote, the Charter was adopted by 118 votes to 6, with 10 abstentions. The analysis of votes on specific sections of the Charter is most significant insofar as the present case is concerned. From this point of view, paragraph 2 (c) of Article 2 of the Charter, which limits consideration of the characteristics of compensation to the State and does not refer to international law, was voted by 104 to 16, with 6 abstentions, all of the industrialized countries with market economies having abstained or having voted against it. 86. Taking into account the various circumstances of the votes with respect to these Resolutions, this Tribunal must specify the legal scope of the provisions of each of these Resolutions for the instant case. A first general indication of the intent of the drafters of the Charter of Economic Rights and Duties of States is afforded by the discussions which took place within the Working Group concerning the mandatory force of the future text. As early as the first session of the Working Group, differences of opinion as to the nature of the Charter envisaged gave rise to a very clear division between developed and developing countries. Thus, representatives of Iraq, Sri Lanka, Egypt, Kenya, Morocco, Nigeria, Zaire, Brazil, Chile, Guatemala, Jamaica, Mexico, Peru and Rumania held the view that the draft Charter should be a legal instrument of a binding nature and not merely a declaration of intention. On the contrary, representatives of developed countries, such as Australia, France, Federal Republic of Germany, Italy, Japan, United Kingdom and United States expressed doubt that it was advisable, possible or even realistic to make the rights and duties set forth in a draft Charter binding upon States (Report of the Working Party on its 1st Session, U.N. Doc. TD/B/AC. 12/1 (1973), at 6). The form of resolution adopted did not provide for the binding application of the text 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 recognize that resolutions of the United Nations have a certain legal value, this legal value differs considerably, depending on the type of resolution and the conditions attached to its adoption and its provisions. Even under the assumption that they are resolutions of a declaratory nature, which is the case of the Charter of Economic Rights and Duties of States, the legal value is variable. Ambassador Castaneda, 61

who was Chairman of the Working Group entrusted with the task of preparing this Charter, admitted that "it is extremely difficult to determine with certainty the legal force of declaratory resolutions", that it is "impossible to lay down a general rule in this respect", and that "the legal value of the declaratory resolutions therefore includes an immense gamut of nuances" ("La Valeur Juridique des Resolutions des Nations Unies", 129 R.C.A.D.I. 204 (1970), at 319-320). As this Tribunal 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 state: --With respect to the first point, the absence of any binding force of the resolutions of the General 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 Tribunal notes that only Resolution 1803 (XVII) of 14 December 1962 was supported by a majority of Member States representing all of the various groups. By contrast, the other Resolutions mentioned above, and in particular those referred to in the Libyan Memorandum, were supported by a majority of States but not by any of the developed countries with market economies which carry on the largest part of international trade. 87. (2) With 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 Tribunal to distinguish between those provisions stating the existence of a right on which the generality of the States has expressed agreement and those provisions introducing new principles which were rejected 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 them; as far as the others are concerned, the rejection of these same principles implies that they consider them as being contra legem. With respect to the former, which proclaim rules recognized by the community of nations, they do not create a custom but confirm one by formulating it and specifying its scope, thereby making it possible to determine whether or not one is confronted with a legal rule. As has been noted by Ambassador Castaneda, "[such resolutions] do not create the law; they have a declaratory nature of noting what does exist" (129 R.C.A.D.I. 204 (1970), at 315). On the basis of the circumstances of adoption mentioned above and by expressing an opinio juris communis, Resolution 1803 (XVII) seems to this Tribunal to reflect the state of customary law existing in this field. Indeed, on the occasion of the vote on a resolution finding the existence of a customary rule, the States concerned clearly express their views. The consensus by a majority 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 nationalization and compensation the use of the rules in force in the nationalizing State, but all this in conformity with international law. 88. While Resolution 1803 (XVII) appears to a large extent as the expression of a real general will, this is not at all the case with respect to the other Resolutions mentioned above, which has been demonstrated previously by analysis of the circumstances of adoption. In particular, as regards the Charter of Economic Rights and Duties of States, several factors contribute to denying legal value to those provisions of the document which are of interest in the instant 62

case. --In the first place, Article 2 of this Charter must be analyzed as a political rather than as a legal declaration concerned with the ideological strategy of development and, as such, supported only by non-industrialized States. --In the second place, this Tribunal notes that in the draft submitted by the Group of 77 to the Second Commission (U.N. Doc A/C.2/L. 1386 (1974), at 2), the General Assembly was invited to adopt the Charter "as a first measure of codification and progressive development" within the field of the international law of development. However, because of the opposition of several States, this description was deleted from the text submitted to the vote of the Assembly. This important modification led Professor Virally to declare: "It is therefore clear that the Charter is not a first step to codification and progressive development of international law, within the meaning of Article 13, para. 1 (a) 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 adjust its content to the requirements of international relations. The persisting difference of opinions in respect to some of its articles prevented reaching this goal and it is healthy that people have become aware of this." ("La Charte des Droits et Devoirs Economiques des Etats. Notes de Lecture", 20 A.F.D.I. 57 (1974), at 59.) The absence of any connection between the procedure of compensation and international law and the subjection of this procedure solely to municipal law cannot be regarded by this Tribunal except 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 Economic Rights and Duties of States as a whole, in explaining their votes regretted the absence of any reference to international law. 89. Such an attitude is further reinforced by an examination of the general practice of relations between States with respect to investments. This practice is in conformity, not with the provisions of Article 2 (c) of the above-mentioned Charter conferring exclusive jurisdiction on domestic legislation and courts, but with the exception stated at the end of this paragraph. Thus 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 objective 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 significant in the eyes of this Tribunal that no fewer than 65 States, as of 31 October 1974, had ratified the Convention on the Settlement of Investment Disputes between States and Nationals of other States, dated March 18, 1965. 90. The argument of the Libyan Government, based on the relevant resolutions enacted by the General Assembly of the United Nations, that any dispute relating to nationalization or its consequences should be decided in conformity with the provisions of the municipal law of the nationalizing State and only in its courts, is also negated by a complete analysis of the whole 63

text of the Charter of Economic Rights and Duties of States. From this point of view, even though Article 2 of the Charter does not explicitly refer to international law, this Tribunal concludes that the provisions referred to in this Article do not escape all norms of international law. Article 33, paragraph 2, of this Resolution states as follows: "2. In their interpretation and application, the provisions of the present Charter are interrelated and each provision should be construed in the context of the other provisions". Now, among the fundamental elements of international economic relations quoted in the Charter, principle (j) is headed as follows: "Fulfillment in good faith of international obligations". Analyzing the scope of these various provisions, Ambassador Castaneda, who chaired the Working Group charged with drawing up the Charter of Economic Rights and Duties of States, formally stated that the principle of performance in good faith of international obligations laid down in Chapter I(j) of the Charter applies to all matters governed by it, including, in particular, matters referred to in Article 2. Following his analysis, this particularly competent and eminent scholar concluded as follows: "The Charter accepts that international law may operate as a factor limiting the freedom of the State should foreign interests be affected, even though Article 2 does not state this explicitly. This stems legally from the provisions included in other Articles of the Charter which should be interpreted and applied jointly with those of Article 2." ("La Charte des Droits et Devoirs Economiques des Etats. Note sur son Processus d'Elaboration", 20 A.F.D.I. 31 (1974), at 54.) 91. Therefore, one should note that the principle of good faith, which had already been mentioned in Resolution 1803 (XVII), has an important place even in Resolution 3281 (XXIX) called "The Charter of Economic Rights and Duties of States". 2. Unilateral Acts of States Skubiswezski, Unilateral Acts of States Shortcuts: UA – Unilateral Act UD – Unilateral Declaration I. INTRODUCTION Why are UAs impt in the intl community? Because… 1 Despite limitations by commands of intl law, there still exists a domain where States have exclusive competence, in which they are free to act according to their natl policies & arrive unilaterally at decisions which affect their relations with other States; 2 Customary & treaty rules provide a place for unilateral acts in various legal processes & authorize such acts in diff. situations Scope of Skubiszewski’s article: only those UAs that produce legal effects & are legally relevant in intl relations 64

A UA of a State does not constitute a source of IL. The fact that some UAs… - have binding nature - are non-revocable - often influence the operation of sources of law - are at the origin of customary rules and treaty-making …does not confer upon UAs the status of a source of law. They can give birth to legal rights, obligations or relationships but this is not the same as being a source of law. II. LEGALLY RELEVANT UNILATERAL ACTS OF STATES Categories of UAs: 1 UAs in the nature of admissions relating to various facts or matters that have relevance in IL - have bearing on application of, but do not create, rights, obligations or legal regimes; may define manner by which State will interpret & exercise its existing rights & duties - ex., State may admit it has certain duties under IL, recognize validity of intl legal instrument, declare that it recognizes a claim of another State etc. 2 UAs that accept an intl legal obligation towards a specific State, all States or towards other subjects of IL (IOs) - as a result, addressee acquires a corresponding right 3 UAs that create, modify or terminate intl legal relationships, regime or status 4 As to degree of autonomy possessed by UAs: -

UA whose final aim is to bring into existence an act that is not unilateral (i.e., ratification of a treaty) UA whose final aim is to produce legal effects that are free of any link or relations to a legal transaction in which another State/s participates

III. DIFFERENT MANIFESTATIONS OF UNILATERAL ATTITUDES By Words - usually in the nature of statements or declarations - made publicly known or communicated to a specific addressee - may be oral or in writing By Conduct Representatives of States may not say or write anything, but they may display an attitude by various kinds of actions – initiating, reacting to activity of another state or remaining passive. In certain situations, inaction is evidence of the conduct of a State – silence, absence of reaction, acquiescence will occasionally have some legal consequences. IV. SOME CATEGORIES OF UNILATERAL ACTS 1. Unilateral Act as an Instrument A. Declaration - can have any content; not limited to stating something already existing, but can create a new state of things - may be oral or written; if oral, usually recorded into writing - may concern all States or may have specific addressee/s Some examples of UDs with legal effects (see article for more examples): 65

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The Ihlen Declaration à Norwegian Minister for Foreign Affairs Ihlen’s declaration re: Danish sovereignty over the whole of Greenland - UDs individually terminating state of war with Germany bet. 1951-1955 in view of the absence of a peace treaty with Germany - Nuclear Test Cases à France expressing undertaking not to hold further nuclear tests in the South Pacific B. Notification * Deftn: an act whereby one States informs officially another State/s or IO of a fact, situation, action or instrument. * Purpose: To bring its contents to the official knowledge of the addressee * Effect: Addresses cannot invoke ignorance of what has been notified, but may refuse recognition of the notified fact etc. Some examples of Notification (see article for more examples): - Austria notifying all states as to its permanent neutrality - Instances where general or treaty law impose a duty of notification à state of war to be notified to neutral powers, notification of declaration of naval blockade etc. 2. Unilateral Act from the Standpoint of its Content & Effect A. Recognition - most impt unilateral legal act, finds wide application in view of various situations calling for recognition (birth of States, non-constitutional change of govts etc.) - an action of those organs which represent State in its external relations - vs. cognizance (def) an act of another domestic organ, which consists in taking note of a situation calling for recognition and in allowing consequences to follow therefrom within the domestic sphere of competence of that organ à not binding on executive & is not recognition in intl legal sense - acquiescence & silence may lead to implied recognition * Effect: Recognizing State cannot contest what it has recognized. B. Protest * Deftn: an act whereby the State expresses its opposition to a situation, claim, or generally, a state of things and the ensuing legal consequences. * Purpose: [if anticipatory protest] To influence the conduct of the addressee * Effect: What is protested is brought into question in the relations bet. the States concerned. Protest involves non-recognition but mere non-recognition does not automatically amount to a protest. Protest must be explicit, maintained, and should manifest itself in an active attitude. There must be actual assertion of the position that finds expression in the protest. A protest that is isolated & is not repeated may lose its original effect. Re: Effect of silence or failure to react à No general rule. There are some situations that call for a reaction if some legal consequence is to be avoided, while there are other situations where silence does not prejudge anything. C. Promise * Deftn: an act whereby the State making it, binds itself unilaterally to follow a certain course of conduct. * Requirement: an act whose effect does not depend on the attitude of another State/s à A promise that is made in response to a demand by another States, or made to secure its 66

acceptance by another State, or one which is made conditional upon a reciprocal promise by another State is not a unilateral promise. D. Waiver * Deftn: an act whereby the State gives up its claim, right, competence, or power which consequently cease to exist. * Effect: Once made, is irrevocable. Waiver produces its effect solely by virtue of the decision of the renouncing State. Hence, if a waiver is stipulated in a treaty, it loses its unilateral character because its effect depends on the treaty’s entry into force. Waiver is not legally possible if the right, competence or power is connected with a duty. It cannot be presumed or inferred but implicit renunciation is possible, provided it is unequivocal. Non-exercise of a right, competence or power does not amount to a waiver. V. VALIDITY OF UNILATERAL ACTS To be valid, any UA must: 1 conform to… - substantive rules of IL - treaty commitments of their authors - enabling rule of law & requirements it lays down, if the UA has been provided for or authorized by custom or treaty 2 express the true intention of its author ∴ UAs obtained by error, fraud, corruption of a State representative are voidable, while those which result from coercion are void. 3 be done by organ that has the power to speak in the name or the State, generally or in a particular field or matter, on the plane of IL (Competence). Authority may be given… - expressly - by general law, which considers various State organs as competent à i.e., heads of States, ministers for foreign affairs etc. Gen Rule: The addressee of the act cannot be expected to inquire to deeply into matters of internal powers & domestic law whenever circumstances point to the competence of the organ in a particular area. The addressee can invoke the principle of good faith in considering the organ as authorized. Exception: Where the violation of the domestic law was manifest and concerned a rule of fundamental importance. VI.BINDING FORCE OF UNILATERAL ACTS Rule: The intention of the State is decisive à the State is bound by its unilateral act because such has been its intent. Specific rules: If act is based on customary or treaty rule, it is in that rule that one must look for the legal effects of the act, including its binding force. If act is not based on customary or treaty rule, the State is granted more latitude. (?) Principle of Good Faith * Deftn: …imposes upon the State the duty to conform to its intention and to abide by the unilateral act, though the act remains its own creation * Effect: …governs effects of the act the moment the act has been made public or has 67

been communicated to interested State/s. State cannot anymore invoke its freedom of conduct. The foundation of an act’s binding force is not any agreement with the States concerned, nor offer and acceptance resulting in a contractual relationship. The reliance on the unilateral act by the interested State influences its application. Agreement may decide questions of revocability but it does not confer binding force upon an act. VII. OPPOSABILITY OF UNILATERAL ACTS * Deftn: an act is opposable to another State when the act constitutes a restriction on the latter’s freedom of action, and…the latter is obliged to take cognizance of the act, to bring its conduct into line with the act, and/or accept the effects of the act and submit to them. UAs cannot impose obligations on other States but it can activate certain duties that these States have under general IL or treaties. à especially because various matters in intl life are left by custom & treaties to unilateral decisions by the interested or competent State - when this happens, the duties of a State can be traced to the UA of another State and in this sense, the act is opposable to the former * Requirement: act must be known to the State – act either notorious or notified to the State VIII. MODIFICATION & REVOCABILITY OF UNILATERAL ACTS Gen Rule: The State can modify or revoke its unilateral act at will and at any time. This capacity is presumed and need not be reserved. Exception: When UA is governed by general IL or treaties… - Example of UA governed by general IL: recognition de jure of a State or govt à once granted, cannot be withdrawn - When governed by treaties: revocability is governed by the relevant treaties which may impose some limitations States enjoy more latitude in the modification & revocation of acts not governed by customary or treaty rules… Gen Rule: Principle of good faith speaks in favor of maintenance of the act if another State relies upon the act in its relations with the act’s author. There is room for reliance on the act when its contents, nature or purpose do not show that the author of the act has kept his full freedom of action. To the extent such reliance has been established, the State is estopped from modifying or revoking. Exceptions [when revocable]: impossibility of performance, fundamental change of circumstances, emergence of a new peremtory norm. Case: Nuclear Test Cases (1976) France carried out nuclear atmospheric tests in the territory of the French Polynesia in the years 1966-68 and 1970-72. - main firing site was the Mururoa Atoll, 6,000km east of the Australian mainland Australia claims: French tests caused some fall out of radioactive matter to be deposited in Australian territory. 68

France contends: Radioactive matter so infinitesimal and negligible that it does not constitute any danger to the health of Australians. In May 1973, Australia instituted proceedings against France in the ICJ, asking the Court to: - adjudge & declare that the tests in the South Pacific are not consistent with applicable rules of IL; and - order France not to carry out further tests France, in letter, said the ICJ did not have jurisdiction & requested that the case be removed from the list of the Court. On June 22, 1973, the ICJ issued an order indicating interim measures – that France should avoid further nuclear tests that cause fall out in Australian territory. - Australia pointed out that even after this order, France continued to perform subsequent series of tests in the Pacific Prior to and subsequent to the oral proceedings before the ICJ, several authoritative statements were made by the French government concerning its intention as to future nuclear testing in the South Pacific: a. Communique issued by the Office of the President of France, copy transmitted to Australia (June 8, 1974) à “…in view of the stage reached in carrying out the French nuclear defence programme, France will be in a position to pass on to the stage of underground explosions as soon as the series of tests planned for this summer is completed” b. Note from the French Embassy in Wellington to New Zealand Ministry of Foreign Affairs (June 10, 1974) à “Thus 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 President of France to the Prime Minister of New Zealand (July 1, 1974) d. Press Conference by the President of France (July 25, 1974) à “…I had myself made it clear that this round of atmospheric tests would be the last, and so the members of the Govt were completely informed of our intentions in this respect…” e. Speech made by the French Minister for Foreign Affairs beore the UN Gen. Assembly (Sept.25, 1974) f. Television interview and press conference by the Minister of Defense of France (Aug 11 and Oct 11, 1974) Issue: WON a dispute exists so as to require judgment from the ICJ - None Held (by vote of 9-6): 1. The original and ultimate objective of Australia is to obtain a termination of the nuclear tests. (¶32-41) 2. France, by various public statements made in 1974, has announced its intention to cease the conduct of such tests, following the completion of the 1974 series of atmospheric tests. 69

(¶ 32-41) 3. The objective of Australia has in effect been accomplished, inasmuch as France has undertaken the obligation to hold no further nuclear tests in the South Pacific. (¶47-52) 4. The dispute has thus disappeared and there is nothing upon which the Court can give judgment. (¶55-59) Other arguments: 1. A judgment would reinforce the position of Australia in affirming the obligation of France. ICJ: France has assumed an obligation…no further judicial action is required. Any further finding would have no raison d’etre. 2. ICJ may select cases submitted to it which it feels suitable for judgment and reject others. ICJ: Art. 38 says the Court can exercise its jurisdiction in contentious proceedings only when a dispute genuinely exists bet. parties. In refraining from further action in this case, the Court is only acting in accordance with the proper interpretation of its judicial function. Needless continuance of litigation is an obstacle to harmony. Note: Same ruling in Nuclear Test Case between New Zealand and France. Important paragraphs summarized: ¶ 24 The question that is essentially preliminary is the existence of a dispute. The resolution of this question exerts a decisive influence on the continuation of the proceedings. ¶ 43 Unilateral acts may have the effect of creating legal obligations. The intention of the State to become bound according to the terms of the declaration, confers on the declaration the character of a legal undertaking, the State thenceforth legally required to follow a course of conduct consistent with the declaration. The undertaking, if made publicly and with intent to be bound, is binding. There is nothing else required for the declaration to take effect. ¶ 44 Intention should be ascertained by interpretation of the act. ¶ 45 Form is not decisive. The only relevant question is whether the language employed reveals a clear intention. ¶ 46 The binding character of an intl obligation assumed by unilateral declarations is based on good faith. Thus, interested States may take cognizance of unilateral declarations and place confidence in them, and are entitled to require that the obligation thus created be respected. 3. Falk “An Argument to Expand the Traditional Sources of International Lawwith Special Reference to the Facts of the South West Africa cases (1970) I. Falk’s Theses: Art 38 (1)- multilateral treaties should be liberally interpreted to include w/in its sphere the resolutions passed by the UN GA, especially those made on a continuous basis and by near unanimous vote. Ratio: UN is created by a treaty, thus its acts should likewise fall under this category. II. Contra-argument: The GA is without any powers to make International Laws

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III. Factual background Southwest Africa (SWA), now Namibia during the Mandela days, was ruled by the white administration by virtue of a Mandate handed to it by the League of Nations and later on carried over by the UN. One provision of this Mandate states that the SWA gov’t shall promote to the utmost the material & moral well-being of the inhabitants therein. In view of the apartheid policy adopted by such gov’t, the GA continually and near unanimously passed resolutions condemning such practice. Ethiopia and Liberia subsequently filed applications for the enforcement of the “well-being” provisions of the mandate using the UN GA. Resolutions as the standard of interpretation i.e. since the GA says apartheid is bad, then it must be bad. The ICJ dismissed their claims for lack of legal standing w/out ruling on the legality of the apartheid policy. In short, ICJ said that what the UN GA said is nothing. Falk picks up the cudgels for Ethiopia and Liberia and argues that UN GA Resolutions could in fact serve as valid norms vs which the well-being provisions of the mandate can be interpreted. Preliminarily, Falk states that Art 38 is not an exhaustive list of the sources comprising the totality of the IL. It is rather a directive to the ICJ to decide disputes before it in the light of these sources. The following are his arguments for the inclusion of the UN GA Resolution within Art 38 enumeration: Art 38 (a) – Int’l Conventions -The mandate is an int’l convention w/c came under the auspices of the League of Nations, thus the UN Resolutions pertaining to its provisions should likewise be deemed as part of the mandate. -The UN GA Resolutions could also qualify as interpretations of Human Rights provisions of the Charter. These provisions are capable of generating binding rules of IL and should have the same force and effect as the Charter itself. -Falk argues that the ICJ is w/out competence to exercise judicial reviews over the legality of these resolutions and should merely apply them as per se IL on non-discrimination because they are value judgment of the organized int’l community w/c the court cannot “judge” w/o making value judgment themselves, a task for w/c the Court could not find any applicable criteria to use. Art 38(b) –Int’l Custom -Falk: granting that the resolutions are not per se binding, still the body of resolutions as a whole undoubtedly provide rich source of evidence of customary rule or norm v apartheid.

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-Contra: One of the arguments relied upon by SWA was the dicta contained in the Fisheries and Asylum Cases namely that a State is not deemed bound or exempt from the binding effects of any customary rule if it had persistently and actively made known its objection v the rule even at its inception. -Falks’s response; The cited dicta, w/their traditional listing of uniform practice, subjective motive of compliance, etc, apply only the customary rules arising out of practice of states and not out of the norm setting procedures of the organized int’l community. Fisheries and Asylum deal with the problem of adjusting competing interests of States rather than enforcing world community standards vs a dissenting stat. It is precisely because there is an “offender” that there is a drive to create a norm and if that offender is allowed to prevent the legal condition of his action by starting a protest, the IL is rendered impotent in the face of the gravest challenges to the values underlying the entire global order. Art 38(c) General Principles of Int’l Law -The ICJ in its advisory opinion in the Reservation to the Convention on the Prevention the Genocide case ruled that genocide is contrary to IL. The basis of the ruling was a UN GA Resolution which condemned the practice long before the convention came into force. Since it is under this heading that the ICJ has consistently introduced considerations of equity and justice into its legal argument, at the very least, this should have been used for the interpretation of the Mandate. The substantial repercussions between the subject matters involved are certainly not different since they both shock the conscience of mankind and ignore minimum expectations about the intent of human decency. In sum, the ICJ should have ruled that the UN GA is competent to generate norms of Il in the area of human rights if it acts on the basis of virtual unanimity. If the ICJ repudiates the norm of non-discrimination after it had been so frequently posited as authoritative by the organized int’l community, then it will create impression that the int’l judicial process is aloof from the share values and policies of mankind. IV. The Dean’s comments With regard to the binding effects of the acts of the organs of the UN, a distinction should be made between the UN SC (Security Council) and the UN GA Resolutions to wit: UNSC Resolutions- these are always under IL under Art 38 as authorized by Chapter 7 of the UN Charter and binding on all members because the UN SC is supposed to act on behalf of the whole membership. UN GA Resolutions – these could either be IL or mere recommendation depending on whether they are construed under the Vienna Convention or the Charter. VC- Art3 in relation to Art 31 par 1 provides that agreements and practices of parties form part of the context. The UN GA declaration of Human Rights could fall under this category.

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UN Charter- under Art 10, UN GA Resolutions are mere recommendations, thus not NIL. The status therefore of any UN GA Resolutions would really depend on the framework (to suit one’s needs). V. Subjects of International Law A. In General Mugerwa, Subjects of International Law The following subjects of law lack one or the other of the essential requirements of sovereign state (governmental authority, population, territory, sovereignty esp in external relations) DIMINUTIVE STATES - not typical full subjects of IL - dependent on to a greater or lesser extent on a third state, esp. for the conduct of their foreign relations - not members of UN - while possessing a defined territory, gov’t and population, they do not possess the full capacity to enter into foreign relations - examples: Andorra, Monaco, Liechtenstein, San Marino COLONIES, CERTAIN SELF-GOVERNING TERRITORIES, PROTECTORATES - Colonies: internal and external sovereignty is completely vested in the metropolitan country. Together, they form a unit in IL which continues as such until it suffers reduction in size by the assumption on the part of the dependent territory of full responsibility. But this does not mean that dependent people have no rights or that they have no capacity to assume obligations under it. - Some territories enjoy varying degrees of internal autonomy, the metropolitan country retaining control only of their external relations or defense. But if such colony has capacity to undertake obligations, which are normally undertaken, by sovereign states like entering into treaties, it may attract some rules of IL and thus becomes subject of IL. - Protectorates: similar to a self-governing colony (ex. Bhutan, Sikkim) - Usually retains or subsequently acquired a large measure of independence in the management of their internal affairs and to some extent, foreign relations. - The subjects of protectorates/other forms of non-fully independent states is increasingly becoming of a merely academic significance. Many have gained independence. UN proclaimed the need to bring speedy end to colonialism. TRUST TERRITORIES - Question of Int’l Personality has become academic since these territories have gradually acceded to full sovereign independence except South West Africa. - The question of int’l personality is bound up with the question of where sovereignty in such territory is vested. - Generally Accepted View: these territories stand in a category apart by reason of the 73

international system which brought them into existence, and for that reason they possess a degree of international personality even in those cases where their inhabitants enjoy no authority over the conduct of the internal and external affairs of their territories. SEMINARS: Are You A Serial Killer: An InDepth Look Into Fundamentalist Christianity and Male Masturbation.–by kato BELLIGERENT PARTIES - insurrection remains internal affair as long as established gov’t retains power to control situation - when insurrection takes on such proportions that the established gov’t is no longer in a position to fulfill any state responsibility, different considerations arise which are the proper concern of IL - It often happens that (i) there exists w/in the state an armed conflict of a general character (ii) insurgents occupy a substantial portion of nat’l territory and (iii) they conduct the hostilities in accordance with rules of war. In such a case, there is present the necessary basis for the recognition of the emergence of a subject of IL to which belligerent rights may be accorded. - This state of facts must be first formally acknowledged before it can have effect between state and the belligerent. INSURGENTS - Where rebellious forces do not have effective control over any substantial portion of territory and are w/out organized chain of command, other states are in strict law entitled to disregard the insurgents. - In practice, other states may and do conduct their relations w/ the insurgents in accordance with the rules of IL governing neutrality and belligerency thus making the insurgents subjects of some rules of IL and thus subjects of IL. INDIVIDUALS: ARE THEY SUBJECTS OF IL? different views: - subjects of IL - subjects of IL but that subjectivity is not possible without intervention of state of that individual - failure to distinguish bet recognition of rights enuring to the benefit of the individual and enforceability of these rights - incapacity to take steps to enforce his own rights does not signify that he is not subject of IL (analogy to infants who have rights) Present view Generally speaking, individuals lack 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.

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Characteristic trend of modern development of IL is the granting of procedural capacity to individuals for the protection of certain well-defined rights. Cheng, Introduction to Subjects of International Law I. International Legal Personality • Subjects of International Law, also known 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. • They are the direct addressees of the rules of international law. Thus, 1) Rights and duties have to be those under IL ð Entities enjoying legal personality in one or even several systems of municipal law do not necessarily enjoy legal personality in IL, and vice versa. ð In the Reparation for Injuries Suffered in the Service of the United Nations case, the ICJ had to find indices of the intention of member states to confer legal personality on the UN. Based on the UN Charter, they concluded that it was the necessary intendment of such states to do so. ð Existence or absence of legal personality is based on concrete indices of actual possession of rights and duties under IL. 2) Legal rights and duties, not mere benefits and burdens 3) Subject must be the direct and intended addressee of the rights and duties ð Rules are often stated in such a manner that they transpose the rights and duties from the subjects of the law to the objects concerned. ð What may appear to be rights belonging to some inanimate objects under rules of IL are in reality rights belonging to “States Parties” to which these objects internationally belong, and not rights of these inanimate objects themselves (e.g. right of innocent passage under Art 17 of the UNCLOS). II. Acquisition and Loss of International Legal Personality • An international legal system requires a minimum of two parties, who acquire international legal personality through mutual recognition of each other’s capacity to enter into such a relationship. • International legal systems can be created ad hoc (e.g. agreements concluded between international persons and private entities, called quasi-international law). • The subjects of IL are its own lawmakers and judges. WON a new member will bear legal rights and duties under this system is dependent on the mutual consent of existing members to grant the former such a status. • In the absence of clear evidence of a rule to the contrary having emerged, legal personality remains essentially subjective and consequently relative (e.g. UN as an entity possessing objective international personality with respect to a non-member state in the Reparation case). Test of WON an entity possesses international legal personality, if such has not been granted expressly or impliedly: possession in fact of rights and duties under IL. B. States 1. General View 75

Broms, States I. Criteria of a State • Taken from the Art 1 of the Montevideo Convention and also found in subsequent documents which have included definitions of the State. 1) Permanent population, though some entities without permanent populations have been recognized as States due to the nature of such entity or its geographical position which may be such that people cannot permanently reside in the territory. 2) Defined territory – boundaries may be disputed, but there must be a basic territory. 3) Organized government that should function at all times 4) Capacity to enter into treaties – a latent capacity which depends on the acceptance of other States • Problem: no specific organ that determines by a binding decision WON an entity meets the requirements of statehood II. Effect of Membership in the UN • •

Admission to the UN ≠ recognition of statehood Art 4, par 1 of UN Charter: membership in the UN is open “to all peace-loving States which accept the obligations contained in the present Charter and, in the judgment of the Organization, are able and willing to carry out these obligations.” ð Statehood is the basic condition to which the other criteria are attached. ð Broms submits that, based on UN practice, statehood is a condition sine qua non to admission. It is not by itself, however, a guarantee of admission.

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III. Recognition of States • The term signifies the decision of the government of an already existing state to recognize another entity as a state. • There 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 required. IV. Classification of States 1) Federal states and confederations • The Federal Union represents the entity as a whole • Distinguished from confederations: the power of central government does not extend to the citizens of entities forming a confederation; States forming a confederation do not lose their internal and external sovereignty 2)

Personal Unions and Real Unions 76

Have historical, rather than actual, importance Personal Union – union between two States under the same ruler; States remain independent • Real Union – based on an agreement between two monarchies which agree to have the same hereditary ruler Protectorates • Status created by a weak state entering into treaty with another State for protection. • 3 types: protected state, international protectorates, colonial protectorates The Holy See • Italy recognized the sovereignty of the Holy See under the name of the Vatican in the Lateran Treaty. • The territory of the Vatican was declared to be neutral and inviolable in all circumstances. • A member of various international organizations, but has never applied for membership in the UN. Permanently 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 jeopardize its neutrality should a state of war break out. • Status of permanent neutrality is always based on the consent of the State in question. Micro-States • Characteristic feature is minimal territory (e.g. Liechtenstein, Monaco, San Marino • •

3)

4)

5)

6)

V. The Doctrine of Fundamental Rights and Duties • Proposed by natural rights theorists: right to independence, local jurisdiction, selfdefence in against an armed attack…duty to respect human rights, pacta sunt servanda, etc. • Legal value: has made States more willing to accept the paramountcy of international legal rules. It has, however, been used to limit the sovereignty of States (e.g. loser States in the Peace Treaties of Paris concluded at the end of WWII). • Doctrine 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 examination taking the special circumstances into account. • Article made special mention of the principle of peaceful cooperation, which evolved into the Declaration on Principles of International Law Concerning Friendly Relations among States (please refer to UN Charter). VI. The Principle of Sovereign Equality of States • Recognized in the second paragraph of the UN Charter’s preamble: “the equal rights…of nations large and small.” • The author submits that such statement possesses legal force, in light of Committee I/1’s report which indicate that all provisions of the Charter are equally valid and operative. • The preambular statement is not a strictly legal statement about the equality of States, because there is no mention of the corresponding obligations of States. It nevertheless 77

affirms one of the ideals of the UN. • The operative part of the Charter contains several provisions on equality of states: Art 2, par 1 on sovereign equality of members, which is affirmed by Art 78 on the principle of trusteeship based on the principle of sovereign equality. • Elements of sovereign equality, according to the report of Committee I/1: 1) States are juridically equal ð No specific interpretation of “juridically equal” 2) Each State enjoys the right inherent in full sovereignty 3) The personality of the State is respected, as well as its territorial integrity and political independence 4) The State should, under international order, comply faithfully with its international duties and obligations • Sovereign equality may be divided into sovereignty and equality. The former is intended to protect members from arbitrary treatment on the part of the UN itself or other members. 1) Sovereign equality is also recognized in the Declaration on Principles of International Law Concerning Friendly Relations among States, which adds the “right to freely choose and develop its political, social, economic, and cultural systems” to the Elements supra. Lachs, The Development And General Trends Of International Law In Our Time 1. The State was, from the outset, a rationalized abstraction uniting three well-known, determinative but not exhaustive, basic and constitutive elements: the exercise of power within a defined territory on a defined mass of population. 2. Despite the changes of the State’s visage and structure, sovereignty has become its most characteristic and prominent feature. Although there have been questions on its scope and dimensions, it has been clear that it has 2 faces: one directed inside the State and the other directed outside. 3. Because of the swift growth in the number of States, there is the consequent multiplication of the potentials of conflict and cooperation; this makes the State the central figure in international relations. Note that the modern State is still a sovereign state. Yet it is frequently assumed that the relationship between international law and sovereignty constitutes an antimony which could be overcome only with great difficulty. This is wrong for the very nature of international law is decisively determined by independence of its subjects (i.e., the State, is not its creature). 4. Thus, the question that remains is the scope of sovereignty [see # 9, 2nd sentence for the answer] (i.e. How independent are States?); there must be obviously be a sense in which sovereignty is subordinate to international law, in which the subject of international law is also subject to international law. 5. The idea the State sovereignty is absolute is anachronistic. The recent evolution of international law and the direction of its development indicate 2 trends which complement each other: 1) the increased expansion of rights of individual States the greater mutual sharing of rights (see pages 34-6). 6. States applies both domestic and international law, but can it act at the expense of the other States? Logically, No (but if the State is a superpower or headed by a madman or both…). With so many States neighboring each other, it becomes easy to violate the rights of other States. Thus, it becomes clear of the necessity for States to conclude treaties, and by doing so accept obligations and restrictions on the exercise of their sovereignty and acquire reciprocal rights from other parties to the treaties (which most, if not all, States do). This is 78

not only in the State’s best interest but also to fulfill its international obligations. Here the integral link between sovereignty and international law is fully established. 7. States also confront each other within their borders, where the rights and interests of other States are concerned. Here, the mutual dependence is clearly manifest despite it being easier to violate the rights of other States, as determined by realities of geography, economics and political factors (think of the European Union as a concrete example-rainier). 8. This strong trend of interdependence does not mean the waning of State sovereignty. Sovereignty, though conditioned or limited, remains an essential element of decision-making of the State. 9. The State has to adapt to the changing conditions of history and life; But to continue its existence it must retain control and freedom of action of its security and basic rights; it thus must remain a sovereign State. 2. Recognition Brownlie, Principles of Public International Law (1966), supra 3. State Territory in General Brierly, The Law of Nations Territorial Sovereignty – when a state occupies a definite part of the surface of the earth, with in which it normally exercises, subject to the limitations imposed by IL, jurisdiction over persons and things to the exclusion of the jurisdiction of other states

Modes of Acquiring Territory Ø occupation – means of acquiring territory not already forming part of the dominions of any state Ø in principle, area to which the legal effects of an occupation extend should be simply the area effectively occupied Ø since actual, physical occupation is impracticable, extension 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 for its security, and to the territory which may fairly be considered to be attendant upon them Ø Occupation must be effective thus mere discovery of an unappropriated territory is not sufficient to create a title Ø Some weight given to mere discovery and is regarded as giving an inchoate title, a temporary right to exclude other states until the state of the discoverer has had a reasonable time within which to make an effective occupation 2. Prescription – where long possession may operate either to confirm the existence of a title the precise origin of which cannot be shown or to extinguish the prior title of another 79

sovereign Ø Peaceful and continuous possession raises a presumption that the original assumption of sovereignty was in conformity with IL and has the effect of consolidating the claimant’s title Ø Peaceful display of state territory over a long period excludes the existence of any valid prior title in another state and makes it unnecessary to rely upon the principle of extinctive prescription by long adverse possession 3. cession – mode of transferring the title to territory from one state to another Ø Results sometimes from a war or from peaceful negotiations and may either be gratuitous or for some consideration 4. conquest – acquisition of the territory of an enemy by its complete and final subjugation and a declaration of the conquering state’s intention to annex it 5. accretion – addition of new territory to the existing territory of a state by operation of nature, as by the drying up of a river or the recession of the sea Dependent Territories (not important since most are moot with the respect to contemporary IL)

Colonies and colonial protectorates Colonies – lands acquired by treaty of cession, annexation, prescription, or conquest, which become dependent possessions of the acquiring state without being brought constitutionally under the state’s own system of government Colonial protectorate – relation between a state and a native community not sufficiently civilized to be regarded as a state Ø Constitutionally, inhabitants of a protectorate do not take the nationality of the protecting state

Trust Territories 80

Ø Territories surrendered by Germany and Turkey to the Principal Allied and Associate Powers which were inhabited by peoples not yet able to stand by themselves Ø Well-being of these peoples forms a sacred trust of civilization; and this trust was to be carried out by placing them under the tutelage of different members of the League of Nations

Leases: diplomatic device for rendering a permanent loss of territory more palatable to the dispossessed state by avoiding any mention of annexation and holding out the hope of eventual recovery Servitudes Ø In Roman law, it is a right enjoyed 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 Ø A right in rem, exercisable 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 Ø Test of an international servitude: right should be one that will survive a change in the sovereignty of either of the two states concerned in the transaction Ø No real evidence that any such right exists in the international system

Maritime Territory Ø sovereignty of a state extends beyond its land territory to certain areas of sea which form part of its domain either as internal waters or as territorial sea Ø internal waters – state is entitled, which in certain limits, to treat ports, estuaries, bays and other enclosed areas of the sea as subject to its sovereignty Ø 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 sea; 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 Geneva convention of 1958 on the territorial Sea and Contiguous Zone – if the distance between the low-water marks of the natural entrance points of a bay does not exceed 24 miles, a closing line may be drawn and the waters so enclosed are to be considered as internal waters; if however, the natural entrance points are than 24 81

miles apart, a straight baseline of 24 miles may be drawn inside the bay in such a way as to enclose the maximum area of water that is possible with a line of that length Ø territorial sea – state’s sovereignty extended as far out to sea as cannon would reach; and the 3 mile limit has traditionally been represented as simply the rough equivalent of the maximum range of cannon in the 13th century Ø contiguous zone – zones of high sea contiguous to the territorial sea Continental Shelf: area from the seabed shelves downward to the ocean depths (if you have time, try to read the UNCLOS for concrete information on MARITIME TERRITORIES and the CONTINENTIAL SHELF) Cases: (1) Minquiers and Ecrehos case (1953) The Minquiers and Ecrehos case was submitted to the Court by virtue of a Special Agreement concluded between the United Kingdom and France on December 29th, 1950. In a unanimous decision, the Court found that sovereignty over the islets and rocks of the Ecrehos and the Minquiers groups, in so far as these islets and rocks are capable of appropriation, belongs to the United Kingdom. In its Judgment, the Court began by defining the task laid before it by the Parties. The two groups of islets in question lie between the British Channel Island of Jersey and the coast of France. The Ecrehos lie 3.9 sea miles from the former and 6.6 sea miles from the latter. The Minquiers group lie 9.8 sea miles from Jersey and 16.2 sea miles from the French mainland and 8 miles away from the Chausey islands which belong to France. Under the Special Agreement, the Court was asked to determine which of the Parties 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 question of burden of proof was reserved: each Party therefore had to prove its alleged title and the facts upon which it relied. Finally, when the Special Agreement refers to islets and rocks, in so far as they are capable of appropriation, it must be considered that these terms relate to islets and rocks physically capable of appropriation. The Court did not have to determine in detail the facts relating to the particular units of the two groups. The Court then examined the titles invoked by both Parties. The United Kingdom Government derives its title from the conquest of England by William Duke of Normandy in 1066. The union thus established between England and the Duchy of Normandy, including the Channel Islands, lasted until 1204, when Philip Augustus of France conquered continental Normandy. But, his attempts to occupy also the islands having been unsuccessful, the United Kingdom 82

submitted the view that all of the Channel Islands, including the Ecrehos and the Minquiers, remained united with England and that this situation of fact was placed on a legal basis by subsequent treaties concluded between the two countries. The French Government contended for its part that, after 1204, the King of France held the Minquiers and the Ecrehos, together with some other islands close to the Continent and referred to the same medieval treaties as those invoked by the United Kingdom. The Court found that none of those treaties (Treaty of Paris of 1259, Treaty of Calais of 1360, Treaty of Troyes of 1420) specified which islands were held by the King of England or by the King of France. There are, however, other ancient documents which provide some indications as to the possession of the islets in dispute. The United Kingdom relied on them to show that the Channel Islands were considered as an entity and, since the more important islands were held by England, this country also possessed the groups in dispute. For the Court, there appears to be a strong presumption in favour of this view, without it being possible however, to draw any definitive conclusion as to the sovereignty over the groups, since this question must ultimately depend on the evidence which relates directly to possession. For its part, the French Government saw a presumption in favour of French sovereignty in the feudal link between the King of France, overlord of the whole of Normandy, and the King of England, his vassal for these territories. In this connection, it relies on a Judgment of the Court of France of 1202, which condemned John Lackland to forfeit all the lands which he held in fee of the King of France, including the whole of Normandy. But the United Kingdom Government contends that the feudal title of the French Kings in respect of Normandy was only nominal. It denies that the Channel Islands were received in fee of the King of France by the Duke of Normandy, and contests the validity, and even the existence, of the judgment of 1202. Without solving these historical controversies, the Court considered it sufficient to state that the legal effects attached to the dismemberment of the Duchy of Normandy in 1204, when Normandy was occupied by the French, 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 Middle Ages, but the evidence which relates directly to the possession of the groups. Before considering this evidence, the Court first examined certain questions concerning both groups. The French Government contended that a Convention on fishery, concluded in 1839, although it did not settle the question of sovereignty, affected however that question. It is said that the groups in dispute were included in the common fishery zone created by the Convention. It is said also that the conclusion of this Convention precludes the Parties from relying on subsequent acts involving a manifestation of sovereignty. The 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 Governments about these groups, the Court shall consider all the acts of the Parties, unless any measure was taken with a view to improving the legal position of the Party concerned. 83

The Court then examined the situation of each group. With regard to the Ecrehos in particular, and on the basis of various medieval documents, it held the view that the King of England exercised his justice and levied his rights in these islets. Those documents also show that there was at that time a close relationship between the Ecrehos and Jersey. From the beginning of the nineteenth century, the connection became closer again, because of the growing importance of oyster fishery. The Court attached probative value to various acts relating to the exercise by Jersey of jurisdiction and local administration and to legislation, such as criminal proceedings concerning the Ecrehos, the levying of taxes on habitable houses or huts built in the islets since 1889, the registration in Jersey of contracts dealing with real estate on the Ecrehos. The French Government invoked the fact that in 1646 the States of Jersey prohibited fishing at the Ecrehos and the Chausey and restricted visits to the Ecrehos in 1692. It mentioned also diplomatic exchanges between the two Governments, in the beginning of the nineteenth century, to which were attached charts on which part of the Ecrehos at least was marked outside Jersey waters and treated as res nullius. In a note to the Foreign Office of December 15th, 1886, the French Government claimed for the first time sovereignty over the Ecrehos. Appraising the relative strength of the opposing claims in the light of these facts, the Court found that sovereignty over the Ecrehos belonged to the United Kingdom. With regard to the Minquiers, the Court noted that in 1615, 1616, 1617 and 1692, the Manorial court of the fief of Noirmont in Jersey exercised its jurisdiction in the case of wrecks found at the Minquiers, because of the territorial character of that jurisdiction. Other evidence concerning the end of the eighteenth century, the nineteenth and the twentieth centuries concerned inquests on corpses found at the Minquiers, the erection on the islets of habitable houses or huts by persons from Jersey who paid property taxes on that account, the registration in Jersey of contracts of sale relating to real property in the Minquiers. These various facts show that Jersey authorities have, in several ways, exercised ordinary local administration in respect of the Minquiers during a long period of time and that, for a considerable part of the nineteenth century and the twentieth century, British authorities have exercised State functions in respect of this group. The French Government alleged certain facts. It contended that the Minquiers were a dependency of the Chausey islands, granted by the Duke of Normandy to the Abbey of MontSaint-Michel in 1022. In 1784 a correspondence between French authorities concerned an application for a concession in respect of the Minquiers made by a French national. The Court held the view that this correspondence did not disclose anything which could support the present French claim to sovereignty, but that it revealed certain fears of creating difficulties 84

with the English Crown. The French Government further contended that, since 1861, it has assumed the sole charge of the lighting and buoying of the Minquiers, without having encountered any objection from the United Kingdom. The Court said that the buoys placed by the French Government at the Minquiers were placed outside the reefs of the groups and purported to aid navigation to and from French ports and protect shipping against the dangerous reefs of the Minquiers. The French Government also relied on various official visits to the Minquiers and the erection in 1939 of a house on one of the islets with a subsidy from the Mayor of Granville, in continental Normandy. The Court did not find that the facts invoked by the French Government were sufficient to show that France has a valid title to the Minquiers. As to the above-mentioned facts from the nineteenth and twentieth centuries in particular, such acts could hardly be considered as sufficient evidence of the intention of that Government 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 respect of the islets. In such circumstances, and having regard to the view expressed above with regard to the evidence produced by the United Kingdom Government, the Court was of opinion that the sovereignty over the Minquiers belongs to the United Kingdom. Availing themselves of the right conferred on them by Article 57 of the Statute, Judges Basdevant and Carneiro, while concurring in the decision of the Court, appended to the Judgment statements of their individual opinions. Judge Alvarez, while also concurring in the decision of the Court, made a declaration expressing regret that the Parties had attributed excessive importance to medieval evidence and had not sufficiently taken into account the state of international law or its present tendencies in regard to territorial sovereignty. (2) Anglo-Norwegian Fisheries Case

History British fishing vessels began appearing off the Coast of Eastern Finnmark (I suppose this is in Norway, I couldn’t find it in the map) in 1906. The vessels increased in number from 1908 onwards, which led the Norwegian Govt to prescribe limits within which fishing by foreigners was prohibited. In 1911, a British trawler was seized and condemned for violating these measures. This was the first incident of arrest. In 1932, the number of warnings and arrests increased. The United Kingdom sent a memorandum to Norway complaining that Norway used unjustifiable base-lines in delimiting its territorial sea. On July 12, 1935, a Norwegian Royal Decree was enacted delimiting the Norwegian fisheries zone north of 66°28.8' North latitude. Pending the result of negotiations as to whether or not the States should submit the dispute to the ICJ, Norway made it known that Norwegian fishery patrol vessels would deal leniently with foreign vessels. In 1948, however, since no agreement had been reached, incidents of arrest again became 85

more and more frequent. Procedure before the Court So on Sept. 28, 1949, UK and Ireland instituted proceedings before the Court against Norway. The issue in the proceedings was the validity, under international law, of the lines of delimitation of the Norwegian fisheries zone laid down by the 1935 Decree. Nature of the Norwegian Coast The coastal zone under dispute has a very distinctive configuration. The coast is very broken along its length, constantly opening out into indentations that often penetrate great distances inland. It includes Norway’s mainland as well as all the islands, islets, rocks, and reefs known as the skjaergaard (literally, rock rampart).

ISSUES: UK asked the Court to: a) declare the principles of IL applied in defining base-lines; b) award damages to UK in respect of all interferences by Norway with British fishing vessels outside the zone which Norway is entitled to reserve for its nationals Subject: Delimitation of Norway’s territorial waters Both Parties agree that the breadth of the territorial waters should be 4 miles from the baseline. They agree that the low-water1 mark rule was to be used as the base-point (low-water mark = base-line w/c is the point from which 4 miles will be measured to determine the width of Norway’s territorial waters), but they disagree as to what constitutes the relevant lowwater mark. UK’s proposed delimitation UK says the relevant low-water mark is Norway’s mainland or permanently dryland. According to the UK, the general rule is that a State may draw an imaginary straight line to close the openings between headlands of a bay, when the length of such line does not exceed ten miles. This is known as the 10-mile rule. In accordance with this rule, Norway may draw imaginary straight lines as base-lines (or base-lines over water) only across bays, but not between islands, islets and rocks. As an exception to the general rule, UK concedes that Norway is entitled to claim, by historic title, fjords and sunds as internal waters, and close these waters with imaginary lines whether or not the lines exceed 10 miles (these are known as historic waters). From this we glean that UK regards the 10-mile rule as a rule of IL and Norway’s historic waters only as an exception to the 10-mile rule.

1

Lowest level reached by a body of water

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Norway’s sytem of delimitation On the other hand, Norway contends that the relevant low-water mark should be the island or islet farthest from the mainland not covered by the sea. A Decree issued by Norway in 1812 did not expressly say that the lines drawn must be in the form of straight lines but this was how the 1912 Decree was invariably construed by Norway in the 19th and 20th centuries. Norway further contends that there should be no maximum length for the straight lines drawn. (The lines drawn by Norway in its delimitation actually ranged from 18 to 46.1 miles.) ICJ’s methods of delimitation The Court mentioned three methods to effect the applicability of the low-water mark rule: 1 trace-parallele method – where the line is drawn following the coast in all its sinuosities (curves, dents and bends). This method is inapplicable in coasts that are too broken, such as Norway’s coast. 2 arcs of circles method – reviewer says imaginary circles are drawn with centers at designated points along the coast. These circles have a radius of 4 miles. The outer rings are then interconnected to constitute the territorial sea. 3 straight base-lines method – appropriate points are selected on the low-water mark and then straight lines are drawn bet. them. This is done both in cases of well-defined bays and in minor curvatures. HELD: The 1935 Decree has not violated IL. Norway’s delimitation upheld. 1) The 10-mile rule relating to bays has not acquired the authority of a general rule of IL. In any event, the 10-mile rule would appear inapplicable as against Norway, inasmuch as she has always opposed any attempt to apply it to the Norwegian coast. (Norway was not a party to the North Sea Fisheries Convention of 1882) à p.6 2) Contrary to UK’s claims, the delimitation adopted by Norway is not an exception to a general rule, but is only the application of GIL to a specific case. (Reviewer says the Court failed to mention what this GIL was and where it came from, but the case mentioned – several times – the principle that the belt of territorial waters must follow the general direction of the coast.) à p.6 3) The delimitation system was consistently applied by Norway from 1869 until the dispute arose. It encountered no opposition from other States, including the UK. Therefore, the system, by acquiescence, became enforceable against all States. à p.13 part V - UK did not contest Norway’s practice for more than 60 yrs - UK could not have been ignorant of the Decrees of 1869 (which provoked a request for explanation by the French Govt) and 1889, both constituting application of the practice - Norway refused to adhere to the North Sea Fisheries Convention, objecting to the maximum length of lines adopted in it. UK attempted to secure Norway’s adherence to the Convention, indicating that it was interested in the problem of Norway’s coastal waters. The… 87

1. notoriety of the facts 2. general toleration of the intl community 3. UK’s prolonged abstention despite her position in the North Sea – The UK, while being a coastal State greatly interested in fisheries in the area and a maritime power traditionally concerned with the law of the sea, remained silent as to Norway’s delimitation. …warrant Norway’s enforcement of her delimitation system against the UK. 4) UK attempted to show, by several documents, that Norway admitted by implication, some other method necessary to comply with IL. Court held that “it is impossible to rely upon a few words taken from a single note to draw the conclusion that the Norwegian Govt had abandoned a position which its earlier official documents had clearly indicated”. à p.12 Important Statements p.8 III ¶ 1 à Although it is true that the act of delimitation is necessary a unilateral act, because only the coastal State is competent to undertake it, the validity of the delimitation with regard to other States depends upon IL. p.8 III ¶ 3 onwards à The ff. are basic considerations inherent in the nature of the territorial sea, which provide courts with basis for their decisions: 1) general direction of the coast (close dependence of territorial sea upon the land domain) à While a State must be allowed the latitude necessary in order to be able to adapt its delimitation to practical needs and local requirements, the drawing of baselines must not depart to any appreciable extent from the general direction of the coast. 2) as to sea areas divided by lands à the question being, whether or not certain sea areas lying within these lines are sufficiently closely linked to the land domain to be subject to the regime of internal waters 3) economic considerations – economic interests peculiar to the region Notes: Magi on Britain’s acquiescence to Norway’s delimitation- they only time Britain protested against Norway’s delimitation of its fishing boundaries was when British fishermen were punished for poaching in Norway’s fishing zone. Was the ICJ charging Britain of estoppel? In art. 38 (d) there is no reference to practice of states. There were only two items referred to, judicial decisions and works of well-known publicists. If by these declarations, the ICJ is trying to imply the application of principles of acquiescence or recognition or estoppel, then it should have said so.

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When we speak therefore of acts of states which might have legal significance, as a unilateral act of declaration, the term “act” should also include abstention of absence of protest. (3) Island of Palmas Case On January 23, 1925, the United States of America and the Netherlands signed an agreement relating to the arbitration of differences respecting sovereignty over the Island of Palmas (or Miangas). Both States agreed to refer the decision of the abovementioned differences to the Permanent Court of Arbitration at The Hague. The arbitral tribunal shall consist of one arbitrator whose sole duty shall be to determine whether the Island of Palmas in its entirety forms part of territory of the United States of America or of the Netherlands territory. The claim of the US to sovereignty over the Island of Palmas were based on 3 grounds: 1. Based on titles of discovery The US asserted that the Island of Palmas was discovered by Spain and was deemed subject to Spanish sovereignty. Consequently, by virtue of the Treaty of Paris, 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 WON Spain had rights over the Island, which it could have legally transferred to the US by virtue of the Treaty of Paris. Arbitrator: No, mere claims of discovery are insufficient. 1. International law lays down the principle that occupation, to constitute a claim to territorial sovereignty, must be effective, that is offer certain guarantees to other states and their nationals. Discovery alone, without any subsequent act, cannot at the present time suffice to prove sovereignty over the Island. 2. On the claim that discovery creates an inchoate title: an inchoate title of discovery must be completed within a reasonable period by effective occupation of the region claimed to be discovered. In the CAB, neither act of occupation nor any exercise of sovereignty at Palmas by Spain has been alleged. - an inchoate title could not prevail over the continuous and peaceful display of authority by anther state; for such display may prevail even over a prior, definitive title put forward by another State. 2. Based on the ground of recognition by treaty The US based its claim on the Treaty of Munster, which established a state of peace between 89

Spain and the States General of the United Provinces of the Netherlands. The treaty establishes as a criterion the principle of possession to determine which regions belong to one state and which belong to the other. Arbitrator: treaties invoked cannot support US’ claim. 1. There is no proof to support a claim that Spain ever had indirect possession of the Island of Palmas. 2. As to the contention that there was a violation of the Treaty of Munster when the Dutch took possession of Tabukan (Island considered to be a part of this region) in 1677: can be disregarded. There is further no trace of evidences that Spain ever claimed at a later opportunity the restitution of territories taken or withheld from her in violation of the treaties of Munster or Utrecht. 3. Based 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 Arbitrator: The title of contiguity, understood as a basis of territorial sovereignty, has no foundation in international law. 1. It is impossible to show the existence of a rule of positive international law to the effect that islands situated outside territorial waters should belong to a state from the mere fact that its territory form terra firma (nearest continent or island of considerable size). 2. The principle is by its very nature so uncertain and contested that even governments of the same state have on different occasions maintained contradictory opinions as to its soundness. 3. Inadmissible as a legal method of deciding questions of territorial sovereignty for it is wholly lacking in precision and would in its application lead to arbitrary results. Conclusion: The Island of Palmas forms in its entirety a part of Netherlands territory. 1. The 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 exercise of sovereignty over colonial states. - from 1677-1885, several conventions were entered into by the Dutch East India Company and the princes, radjas or kings of Tabukan, Taruna and Kandahar - these conventions were based on the conception that the prince receives his principality as a fief of the company or the Dutch state, which is suzerain. - These conventions granted the Dutch East India Company (Netherlands) economic advantages, commercial privileges, and the right to exercise public authority in regard to their own nationals and to foreigners. The form of legal relations created by such contracts is most generally that of suzerain and vassal, or of the so-called colonial protectorate. 90

US questions the power of the East 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. Arbitrator: These 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. But contracts of this nature are not wholly void of indirect effect on situations governed by international law; if they do not constitute titles in international law, they are nonetheless facts of which that law must in certain circumstances take account. It is not an agreement between equals; it is rather a form of internal organization of a colonial territory, on the basis of autonomy for the natives. (4) State Territory: Acquisition and Loss Magallona, “Acquisition and Loss of Territory in International Law” MODES OF ACQUISITION 1. Occupation of territory - must be effective occupation since mere discovery of territory does not confer title. - Territory must be terra nullius – never been appropriated or not under sovereignty of another State * the degree & kind of possession effective to create a title 2 elements which must exist: • intention (animus occupandi) & will to act as sovereign • actual exercise or display of such authority (titre de souverain – specific manifestations of sovereignty) The exercise of sovereignty must be: a. peaceful – not be usurpation nor contested by other states b. actual settlement and close physical possession (not required if occupation is effective) c. continuous- degree of activity depends on the circumstances of the territory -loss of title by discontinuity – may result from intention to abandon (express or tacit) d. sufficient to confer valid title to sovereignty Bare discovery merely gives an inchoate title. It only creates an option or a priority as against other states, to consolidate the first step leading to an effective occupation which must be done w/in reasonable time. 2. Cession 91

-

-

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 question a derivative mode: its validity depends on the valid title of the ceding state. The cessionary state shall not have more rights than what the ceding state possessed.

2 elements: • •

agreement to cede actual handing over of territory to cessionary state

May a treaty of session be imposed by force of arms in view of the prohibition vs use of threat or force? Intertemporal principle (IP) should be considered. The effect of an act , such as the decisive act in acquiring territory, is to be determined by the law at the time it was done, not by the law the claim is made. Old titles resting on enforced treaty of session must be held to be valid but even if outside the framework of the Vienna 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. 3. Prescription -title is acquired by effective possession over a period of time. Extinctive prescription- mode of losing property since it extinguishes the former owner’s right to recover possession of property upon failure in time to present a claim. Acquisitive prescription- creates a substantive right, resulting at the same time in the extinction of the right of the former owner

2 situations to acquire title through possession a. immemorial possession where no original source of proprietary right can be shown to exist b. adverse possession where possession in the 1st instance being wrongful, the legitimate possessor neglected or was unable to assert his right; possession cures the defect in title even if of wrongful origin. Conditions for acquisition of title a. possession a titre de souverain – the display of authority must manifest a clear intent to act as sovereign b. peaceful and uninterrupted possession – generally presumed but only w/ respect to maintenance of possession as distinguished from taking of possession c. public possession – w/out knowledge, there can be no acquiescence at all d. possession must endure for a certain length of time – complete lack of agreement as to the length of time required for prescriptive title to ripen Three forms 92

a. immemorial possession b. prescription akin to usucopio on Roman Law characterized by Justus titulus even if defective, good faith & uninterrupted possession for a period of time defined in years c. prescription under conditions of usucopio but modified by elements of bad faith 4. Accession or accretion -natural process of land formation resulting in the increase of territory Case: Eastern Greenland Case FACTS: The Norwegian Government issued Proclamation of July 10, 1931 confirming the occupation of Erik Raides Land in Eastern Greenland and placed it under Norwegian sovereignty. Norway was acting on the theory that the territory was terra nullius. As both Denmark and Norway made the same declaration under Art 36(2) of the Court’s statute, The Danish government filed an application with the Registry of the Court asking the Court to give judgment on the issue that the action of Norway constituted a violation of the existing legal situation and was therefore unlawful and invalid. Norway on the other hand claimed that Denmark has no sovereignty over the area which the former occupied as it was far from the Danish colonies and that the Danish sovereignty applies only to these colonies. Issue: WON Norway’s acts (proclamation and occupation) were invalid HELD: Yes RATIO: The court pointed out that the Danish claim is based merely upon the continued display of authority. Such claim involves 2 elements: a. intention or will to act as sovereign b. some actual exercise or display of authority. In these words, the court was affirming the well-established principle that occupation, in order to create a title to territory, must be effective occupation. It must be followed up by action, such as in a simple case, the planting of a settlement, or building of a fort which shows that the state not only desires to but can and does control the territory. On the 1st element, the Court was satisfied by the evidence that at any rate after a certain date, 1721, denmark;s intention to claim title to the whole of Greenland was established. On the 2nd element, it was necessary for the court to examine carefully the evidence of actual exercise of authority as the areas in dispute were outside the settled areas of Greenland. 93

The Court pointed out that the absence of any competing claim by another state is an important consideration. A relatively slight exercise of authority will suffice when no state can show a superior claim. Until 1931, no state other than Denmark had ever claimed title to Greenland. The Court held too that the character of the country must be regarded. The arctic and inaccessible nature of the uncolonized parts of Greenland made it unreasonable to look for a continuous or intensive exercise of authority. Denmark was able to show numerous legislative and administrative acts purporting to apply to the whole of Greenland, treaties in which other states, by agreeing to a clause excluding Greenland from their effects, had apparently acquiesced in her claim, and in recent years an express recognition of it by many states. The Court held that in the circumstances, this was sufficient evidence to establish Denmark’s title to the whole of the country. Thus, the area claimed by Norway in 1931 was therefore not at that time a terra nullius capable of being acquire (5) State Jurisdiction (1) In General Mann, The Doctrine of Jurisdiction in International Law 1. Jurisdiction is by no means concerned only with the problem of ascertaining the state which, in a given case, has the sole right of regulation. To a large extent, legislative jurisdiction is concurrent rather than exclusive. The existence of a State’s right to exercise jurisdiction is exclusively determined by Public International Law. Moreover, it will be necessary to turn to PIL to ascertain the consequences of the wrongful exercise of jurisdiction. Joseph Beale made this very clear, stating that “the sovereign cannot confer jurisdiction on his court or legislature when he has no such jurisdiction according to the principles of International Law.” 2. Jurisdiction is concerned with the State’s right of regulation. Regulation may occur in 2 forms: a. PRESCRIPTIVE/LEGILATIVE jurisdiction, which designates a State’s international right to make legal rules; and b. ENFORCEMENT/PREROGATIVE jurisdiction, which involves the right of a State to give effects to its legal rules in a given case. Thus, it is obvious that a State, though entitled to exercise its prescriptive jurisdiction, is by no means necessarily entitled to enforce it.

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3. The problem of jurisdiction only arises in MATTERS NOT EXCLUSIVELY OF DOMESTIC CONCERN. If there occurs in a State a certain set of facts which involves only PERSONS WHO ARE NATIONALS OF, and domiciled and resident in, THAT STATE, and if these facts have to be considered by a tribunal sitting within that State, there is no room for any problem of international jurisdiction. It is only when there is some FOREIGN ELEMENT, when the State purports to affect person of foreign nationality, domicile or residence in ACTS WHICH HAPPEN ABROAD that the problem of international jurisdiction makes its appearance. Jurisdiction, it thus appears, is concerned with regulating and delimiting the respective competencies of States. 4. Legislative jurisdiction should be distinguished from sovereignty. The doctrine of legislative jurisdiction answers the question of whether and under what circumstances a State has the right of regulation. If the right exists, it is exercised by the State by virtue of its sovereignty. The distinction is the same as that between PIL and Municipal Law in general; the former is the higher law which decides upon the rightful existence of a power; the latter is the subordinate instrument whereby the State as sovereign gives effect to the power allowed to it. Wherever its international implications are concerned, jurisdiction is limited by rules of International Law. No theory of sovereignty can displace them. 5. RELATIONSHIP BETWEEN JURISDICTION AND CONFLICT OF LAWS Conflict rules are a product of municipal law, which has to stand the test of the international doctrine of jurisdiction. In other words, it is the function of jurisdiction to define the international scope which the municipal legislator is entitled to give to his enactments. The conflict rule implements and gives effect to the requirements of PIL. However, PIL 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 conflict rule. In this sense, the international rule of jurisdiction 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 95

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, gladi*sniff,sniff*snort

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Case: S.S. Lotus Case Facts: The Lotus, a French mail steamer, collided with the Boz-Kourt, a Turkish collier, in the high seas. The latter sank, and eight Turkish nationals on board perished. Turkey exercised jurisdiction over criminal proceedings against Demons, a French national and the Lotus’ officer of the watch, and sentenced him to 80 days imprisonment and a fine. ð During the first hearing, Demons submitted that the Turkish courts had no jurisdiction. This case was submitted to the ICJ pending the Turkish Court’s decision on appeal. Issue: Has Turkey, contrary to Art 15 of the Convention of Lausanne (CL) respecting conditions of residence and business and jurisdiction, acted in conflict with the principles of IL and if so, what principles, by instituting joint criminal proceedings in pursuance of Turkish law against Demons? • If yes, what pecuniary reparation is due to Demons, provided, according to the principles of IL, reparation be made in similar cases? Held: NO Main arguments a. France (exclusive territorial character of law) • According to international law as established by the practice of civilized nations, in their relations with each other, a state is not entitled, apart from express or implicit special agreements to extend the criminal jurisdiction 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. ð In order to exercise JD in this case, Turkey must be able to point out some title to JD in its favor recognized by IL. b. Turkey (principle of freedom) • Art 15 of the CL refers simply and solely to the principles of international law, subject only to the provisions of Art 16. The former cannot be read as supporting any reservation whatever or any construction giving it another meaning. ð Art 15 allows JD whenever such JD is not in conflict with any principle of IL. c. Article 15 of the CL: 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 IL.

II.

Decision of the Court

a.

General considerations • Restrictions upon the independence of states cannot be presumed. ð International law is a product of independent acts of independent states. • The first and foremost restriction imposed by IL upon States is that – failing the existence of a permissive rule to the contrary – a State may not exercise its power in the territory of another state. In this sense, JD is territorial. • It does not, however, follow that states are prohibited from exercising JD in its own territory in connection with acts that have taken place abroad and in which it cannot rely on some permissive rule of IL. ð IL gives States a wide measure of discretion to extend its JD, which is only limited in certain cases by prohibitive rules. ð In exercising such discretion, all that can be required of States is that they should not overstep the limits on JD imposed by IL. Within these limits, its title to exercise JD rests on its sovereignty.

b.

Application of general considerations to criminal JD • The territorial character of criminal law, though fundamental, is not an absolute principle of IL and by no means coincides with territorial sovereignty. • Using either France’s or Turkey’s theory would lead to the same result: the need to ascertain WON there exists a principle of IL which prohibited the exercise of JD in this case.

c.

Does general IL, to which Art 15 CL refers, contain such a prohibition? • Nationality of the victim is not the only criterion to determine JD. • No rule of international law prohibits Turkey from taking into consideration the fact that the effects of the offense took place in a Turkish vessel which, by assimilation, is Turkish territory over which it could exercise its JD. • Courts in many countries, even those that have given criminal law a strictly territorial character, interpret criminal law in the sense that offenses, the authors of which at the moment of commission are in the territory of another State, are nevertheless to be regarded as having been committed in the national territory if one of the constituent elements of the offense, and more especially its effects, have taken place there. • Principle of freedom of the seas: absence of territorial sovereignty on the high seas. ð No state may exercise any kind of JD over foreign vessels on the high seas. • As a corollary to the principle of the freedom of the seas, a ship is assimilated to the territory of its flag state. It is therefore placed in the same position as national territory. • There is no principle of IL which prohibits a flag State from regarding the effect of an act committed aboard its vessel as one committed within its territory and prosecuting the perpetrator accordingly.

\THERE IS NO RULE OF IL IN REGARD TO COLLISION CASES TO THE EFFECT THAT CRIMINAL PROCEEDINGS ARE EXCLUSIVELY WITHIN THE JD OF THE STATE WHOSE FLAG IS FLOWN.

III.

Other arguments a. France • The substitution of JD of Turkish Courts is based on consent given by the Powers in the CL. Such consent with respect to criminal proceedings has been definitely refused by the Powers and France. ð Interpret based on the intent of the parties. • Court says: ð There is no occasion to have regard to the preparatory work if the text of the convention is sufficiently clear in itself. ð The phrase should be construed in its ordinary meaning: principles which are in force between all independent nations and which therefore apply equally to all the contracting parties \ Art 15 could only refer to principles of IL relating to JD. ð The proposed limitation of Turkish JD to crimes committed in Turkey itself was discarded by the Drafting Committee. Hence, it would be equally justifiable to assert that the intention was not to limit Turkey’s JD in any way.

Notes: I.

State Jurisdiction

3 aspects: 1. prescriptive- power or authority to prescribe norms of conduct within its territorial sphere 2. enforcementpower to enforce prescriptive jurisdiction above or within its territorial domain 3. adjudicatory- power of courts to interpret and apply normative prescriptions. Principles in Criminal Jurisdiction: 1. territoriality- does not coincide with territorial jurisdiction; involves some kind of extraterritorial jurisdiction 2. nationality- a person is subject to the laws of his nationality. See art. 15 CC. 3. protective principle of jurisdiction- see art. 2 RPC. II.

2 Competing Theories

France: burden is on Turkey to identify a particular rule of IL supporting its stand. If Turkey fails to do so, its case must fail. Turkey: Turkey exercised a particular jurisdiction in its statute book, a valid act because there was no prohibition in IL to do so. ICJ: restrictions to independence or jurisdiction of states cannot be presumed. There must be an express prohibition in IL to preclude a state’s exercise of jurisdiction. If there is no express prohibition, then it is allowed. Gen. Rule: jurisdiction of one state ends where another begins. See Magallona, a Primer on the Law of the Sea (1997), for the following: (a) Territorial Sea, Arts 27-32 (b) Archipelagic Waters © High Seas Articles 86-97, 105-111 (d) Exclusive Economic Zone, 55-58, 70-73 (e) Continental Shelf Case: Lotus Case (1928), supra A. Immunities and Privileges of Foreign States Brownlie, Principles Of Public International Law, supra Deak, Organs of State in Their External Relations: Immunities and Privileges of State Organs and of the State International Law, Foreign Policy and Diplomacy Diplomacy and foreign policy are related to, but distinct from IL. IL operates within the community of sovereign states whose foreign policies shape their relations, and it is implemented through diplomacy. Foreign Policy: aggregate of decisions made by a government regarding a state’s position vis-àvis other states and its posture in international institutions and conferences. Diplomacy: instrument through which foreign policy is implemented. Traditionally its most

important functions have been representation and negotiation. The Foundations of Diplomatic Immunities and Privileges International law confers on diplomatic immunity from the exercise of jurisdiction by the receiving state. The principles governing diplomatic immunities are among the most ancient and universally recognized rules of international law. Representational theory: the ambassador was regarded as the foreign sovereign’s personal representative; impleading or arresting him was tantamount to arresting the sovereign himself. Functional theory: a diplomat should be free from interference by local authorities so that he can perform his duties unhindered. (grounded on principle of reciprocity) Immunity here is from exercise of jurisdiction, not immunity from jurisdiction itself. Scope of Diplomatic Immunities 1961 Vienna Convention on Diplomatic relations: immunity from civil and criminal jurisdiction of the receiving state, their freedom of movement and communication and the inviolability of the mission’s premises and archives. Immunity from civil and administrative jurisdiction does not apply to the ff: 1. real property in the territory of receiving state and held by the diplomat in his private capacity 2. succession in which the diplomat is personally involved as executor, administrator, etc. 3. professional or commercial activity in which the diplomat engages outside his official functions. Categories of personnel entitled to diplomatic immunities and privileges Diplomatic 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. Families of the administrative and technical staff have immunity if they are not nationals of or permanently residing in the receiving. Duration of Immunities and Privileges From the moment the diplomat enters the territory of the receiving state en route to his post; or if he is already in the receiving state, from the moment the appropriate ministry of that state is notified of the appointment. When 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. Diplomatic Asylum The 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. Such doctrine

has not gained general acceptance in IL. Diplomats in transit Article 40: imposes on 3rd states the duty of granting inviolability and such other immunities to insure the transit of diplomats and their families, whether traveling with him or separately. Notes: On State Immunity 2 schools of thought: 1. absolute 2. restrictive ACTA JURE IMPERII: sovereign governmental acts ACTA JURE GESTIONIS: commercial, private, nongovernmental acts Incorporation of state immunity in Philippine legal system is through the Consti and not by declaration of SC Variations of State Immunity: 1. act of state doctrine: that the Philippine court shall not sit in judgment to consider the legality of an act of a foreign government undertaken in its jurisdiction; principle of selfrestraint. 2. diplomatic immunities and privileges - body of customary norms of IL codified by ILC- substance of these conventional rules remains as customary norm - Vienna Convention on Diplomatic Relations and Consular relations

B. Nationality Brownlie, The Relations of Nationality in Public International Law I. Introduction. Mission: to estimate the role which the concept of nationality, and the rules of municipal law in this sphere, have de lege lata

II. Freedom of States in Matters of Nationality (N). The accepted view: Doctrine of Autonomy Hudson: In principle, questions of N fall within the domestic jurisdiction of each State. Locus Classicus of the Permanent Court’s (PC) Advisory Opinion on the Tunis & Morocco Nationality Decrees: The question whether a certain matter is or is not solely within the domestic jurisdiction of a State is an essentially relative question; it depends upon the dev’t of international relations. Thus in the present state of IL, questions of N are, in the opinion of this Court, in principle within this reserved domain. But B said the above are ambiguous (not absolute), noting the use of the term “in principle”. B’s provisional conclusion is that the questions of N are not solely within the domestic jurisdiction of the State. Note that the PC also states the following in the same Opinion: … in a matter which, like that of N, is not, in principle regulated by IL, the right of a State to use its discretion is nevertheless restricted by obligations which it may have undertaken towards other States. In such a case, jurisdiction which, in principle, belongs solely to the State, is limited by rules of IL. II. Principle Stated by Oppenheim. N of an individual is his quality of being a subject of a certain State and therefore its citizen. It is not for IL but for Municipal Law (ML) to determine who is and who is not to be considered a subject… it matters not, as far as the law of Nations is concerned, that ML may distinguish between different kinds of subjects (ex. A subject is a State’s subject under IL whether he’s a full British citizen or the subject of a British colony). For all international purposes, all distinctions made by MLs between subjects and citizens and between different kinds of subjects have NO theoretical or practical value. IV. Role of N in IL. The principle of the N of claims is all-important. Thus, a State, a national of which has suffered a wrong at the hands of another State, has the right to exercise diplomatic protection. N also provides a normal (but not exclusive) basis for the exercise of civil and criminal jurisdiction, even in acts done abroad. Ex. extradition V. Considerations of Principle. Sovereignty which is ex hypothesis unlimited, even by the existence of other States, is ridiculous whether dominion is sought to be exercised over territory,

sea, airspace or population. N is problem of attribution. Though nat’l law prescribes it, this prescription does not preclude a forum which is applying Il from deciding questions in its own way, using criteria of IL. To leave issues to the unilateral determination of States is to give them the power to contract out the very system of legal obligation (i.e., as if States are not subject to IL at all). VI. Systems of accommodation. Good faith and comity. To say that a State can make a nonjusticiable unilateral determination, provided it is made in good faith and in accordance with IL, is to produce a logical circle. Also, none of the alternative systems of accommodating state policies (i.e., principles of comity, natural law, etc.) is an adequate substitute for the use of limitations derived from the existing rules of IL. VII. General Principles of IL. The general principles of IL (Art. 38.1.c ICJ Statute) operate in the field of N, providing limitations in the matter of the conferment and deprivation of N. Example: disregarding the allegiance and loyalty existing between individuals and a particular State violates the territorial sovereignty of the state the population of which is sought to be annexed (like the grant of asylum in an embassy in the Asylum case, or if the UK suddenly conferred British citizenship on French citizens living in Brittany). There is this no presumption vs. the existence of limitations in matters of N. VIII. Meaning of Domestic Jurisdiction. N isn’t capable of being confined to the reserved domain (i.e., DJ) or the realm of State relations. It has 2 aspects – dominant one depends on the facts/ type of dispute. The ICJ in the Nottebohm case stated: It is … for every sovereign State, to settle by its own legislation the rules relating to the acquisition of its N … But the issue which the ICJ must decide is not one which pertains to the legal system of Liechtenstein… whether the State is entitled to exercise its protection. It is IL which determines whether a State is entitled to exercise protection. IX. Opinions of Gov’ts on Autonomy. The majority of replies to the Preparatory Committee for the Hague Codification Conference (HCC) accepted the position that the right to determine N is not unlimited. Further, where a State adopts legislation ex facie contrary to its international obligations, the legislation may itself constitute the breach of an obligation, but potential plaintiff States must await the occurrence of actual damage before presenting a claim. X. Hague Convention on Certain Questions Relating to the Conflict of N Laws (HCN). Art. 1 of the Convention produced by the HCC of 1930 states: It is for each State to determine under its own law who are its nationals. This law shall be recognized by other States in so far as it is consistent with international conventions, international custom, and the principles of law generally recognized with regard to nationality. Lauterpacht notes that some ideas incorporated

in the HCN were followed by States which did and didn’t ratify it. Ex. Changes in laws on the subordination of married women’s N to husbands’ N. XI. Opinion of Jurists. Orthodox view supports the autonomy of States in the matter of N. But eminent jurists, such as Lauterpacht, Guggenheim, Redslob, Fitzmaurice and McNair, have expressed the opinion that IL regulated the question of N. Cordova of the IL Commission states: xxx IL considers that a certain nat’l legislation is not legal because it comes into conflict with the broader interests of the international community… is dependent upon and subordinate to the rules of IL… questions of N are not… entirely reserved for the exclusive jurisdiction of the individual States themselves. XII. Nationality Rules Commonly Adopted by States. Certain principles on the conferment of N are adopted in States’ legislation often enough to acquire the status of general principles: A. Jus Sanguinis. Attribution of N at birth based on descent – generally on the status of the father, of either or both parents, of unmarried mother, etc. Hudson & Weis state that jus sang, jus soli or a combination of both are the predominant modes of acquisition of N. B. Jus Soli. Attribution of N at birth based on birth in the territory. Predominant in the world, though in varying degrees the most States’ laws rest on both this and jus sanguinis. Exceptions: 1. established rule of IL also in Article 12 of HCN of 1930= children born to persons with diplomatic immunity won’t automatically acquire N of State where the diplomatic agent is accredited when they are born there; 2. children of enemy alien fathers born in territory under enemy occupation; 3. some States exclude the children of aliens passing thru the country C. Extensions of Jus Soli. Applied to birth on ships and aircraft registered under the flag of the State. Does not apply ipso facto in cases of birth on a foreign ship in territorial waters- general consensus (but not de lege lata) is that N is settled by the laws of coastal State that has legal jurisdiction. Extensions of jus soli by treaty requires notice. D. Involuntary naturalization. N is automatically conferred by operation of law as the effect of changes in civil status: see (E) to (H). recognized as consistent with IL due to consistent practice of States. E. Marriage. HCN of 1957 favors principle of equality but compromises= celebration/dissolution

of marriage between national and an alien or change of N by husband during marriage shall not affect the wife’s N automatically. But alien wife may, at her request, acquire husband’s nationality. F. legal recognition/legitimation. Child follows the father’s nationality, but states are free to grant or withhold N despite legitimation. G. Adoption. Minor acquires adoptive parents’ N. H. Acquisition of Domicile/Analogous Links Residence, domicile, immigration animo manendi, conferment of N on members of ethnic/other defined groups belonging to s Stet’s population, general rule that a Head of State has the N of the State he represents. I. Voluntary naturalization. Grant of N based on an explicit voluntary act of the individual. Requires prolonged residence as a precondition + specific intent to obtain N. J. Nationality ex neccessiiate juris. Child of unknown parents presumed to have N of the State in which it was found. Minor children naturalized together with father or responsible parent though minor is given an option when he reaches majority. XIII. Legal Status of general Principle Above. Principles above are generally recognized principles in ML of various states. Weis said such concordance of ML does not create customary IL since opinio juris et necessitates is lacking. Brierly: 1) such legislation of N can be evidence of international custom and 2) lack of uniformity in N laws isn’t lack of opinio juris but due to numerous permutations (noted in Nottebohm). XIV. logical Application of IL Rules. Important limitations on the powers of individual States in the attribution of persons for IL purposes. A. Area of attribution must have legal personality., There must be a state, recognized as such by the forum, or other international person having the capacity to create a law of attribution on the basis of nationality (Vatican). If the entity has not developed a stable personality, its citizens may not be regarded as having.

B. regimes of divided sovereignty or indeterminate status. In international lease, protected States, condominium, status of populations must be regulated by IL. There are also territories, not res nullius, which have no determinate sovereign, Formosa which Japan renounced its rights to tin 1951. If N fails to provide an answer, residence or domicile is a reasonable substitute. C. Mandated and trust territories. Status of inhabitants of such territories cannot be a domestic question since neither the Mandatory nor the administering authority, respectively, has sovereignty over the territory, though the administering power may exercise the right of diplomatic protection in respect of the population. Inhabitants share the status in rem of a mandate d or trust territory. The tests are residence and domicile. D. Chapter 11 UN Charter. Article 73 imposes the obligation to ensure the just treatment and protection. Conferment and denationalization limited. E. Status without N legislation. New states automatically confer N on their inhabitants (Israel) F. Persons Outside National Legislation. Legislation may categorize the population into citizens with full status and others, but such persons have the status of nationals for IL purposes. Distinguish this internal regime of status from denationalization. Deprivation of N intended to have an international effect. G. State succession. Population follows the change of sovereignty in matters of N. H. Illegal acts and on-recognition. N conferred due to illegal acts may arise: 1. by acts ultra vires in that, in the absence of an effective link, a State [purports to give extra-territorial effect to its laws by conferring N or 2. by acts of conferment the effectiveness of which rests on illegal annexation of territory or the detention of abduction of aliens within state territory. I. State responsibility in Genuine Link Doctrine. Sates cannot plead internal law to justify international wrongs and are responsible for conditions on their territory which lead to harm of other states. Thus, States are responsible for delinquents in its territory WON nationals, and has the duty to admit its nationals expelled by another state + duty not to exp[el nationals. B postulates a general principle of genuine link as to the causa for conferment or deprivation of N

which has the 2 considerations 1) presumption of validity of an act of naturalization since government acts presumed to be in good faith and 2) N is a status, conferment of N acted upon shouldn’t be invalidated except in very clear cases. J. Nationality of Claims. Principle of diplomatic protection rests on the fact that N of the claimant States existed in the individual or corporation at the time of the breach of duty and when the claim was presented. K. Diplomatic protection. States may only exercise DP in respect to their nationals. DP depends on N, but in the absence of formal evidence of ties with any State, the interest of a government in an individual and the attempt to exercise protection may provide cogent evidence of N. Applying effective link test, refusal to give DP would be regarded on the international plane as severing important links with the State. Persons not enjoying the protection of their State (by internal law) are de facto stateless. L. Nationality by Estoppel. Estoppel or preclusion is a principle of IL. Where the basic facts concerning the individual are ambiguous, the government’s conduct will provide the answer. But this should not be used in opposition to status based on effective links. XV. Presumptions and Policy Rules on the International Plane. A. Presumption vs. Statelessness. Article 15 par 1 of UDHR states that everyone has the right to N. But factors of stability and effectiveness must be considered. B. Presumption of continuance. Presumption of act as a principle of evidence, but easily rebutted. No general presumption of continuance of nationality since such may result in multiple N + goes against general principles of effectiveness and effective link doctrine. Different from continuity of N principle where loss of N only admissible if another N is acquired simultaneously. C. Deprivation of N. If the denationalization, particularly of a group, is part of a breach of international duty, it is illegal. If it only involves citizens 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. D. Compulsory Change of nationality. Some tribunals and jurists have stated that IL does not

permit this. Note that IL does not permit states to impose their N on alien residents abroad. The right of option will be favored where the law or treaty is ambiguous, or where principle of selfdetermination gives ethnic minorities the right, but such is not lex lata. E. Substitution of N. Automatic substitution principle, where N is ipso facto withdrawn upon acquisition of foreign N, is generally favored since it avoids statelessness and dual nationality, Rules of IL requires for the new N’s recognition the establishment of sufficient links. F. Right of expatriation. Change of N may, depending on the facts, place other states under a duty to recognize the new N. Note that there is no rule that N of origin has more strength than a naturalization. G. Racial laws. Denationalization on grounds of a policy of racial inequality or persecution is contrary to IL and elementary principles of humanity, breach of UL if such groups are expelled. XVI. Nationality as a status. Nationality involves a question of status. It is recognized in the doctrines of effective link and dominant nationality, that establishment in a community gives status; arbitrary deprivation of nationality may not be recognized d by other states. Notion of status connotes stability and effectiveness. In accordance with stability. Instruments affecting nationality should not be retroactive in general. But 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. XVII. Functional Approach to nationality It is common for legislation and judicial decisions to create functional authority, whereby parts of national law are applied to aliens on the basis of allegiance, residence, and other connections. There is also a tendency to bypass the nationality criterion for purposes related to national security or to international public policies. Magallona, “On Dual Allegiance and Dual Nationality” General Categories of Duality How dual nationality arises: 1. A person whose parents come from a municipal law system of nationality based on jus

sanguinis is born in a State that adheres to the jus soli system of nationality Ex. Person born in UK of Filipino parents 2.

Retention by a person of the nationality of one State & his naturalization as a citizen of another State

Note: nationalization does not always entail the loss of prior nationality 3.

Assumption of a new nationality by naturalization with the retention of the previous nationality on account of the requirement of the State of origin that the effectivity of naturalization I another State is subject to its consent. Denial of such consent results in dual nationality.

Note: expatriation or the right to change nationality is recognized. But actually, it is left to domestic jurisdiction of States & no rule of IL requires its provision. 4.

Conflict of laws re treatment of married women

2 factors: a. There 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. There are states which provide for the automatic acquisition of nationality by alien women upon marriage to their nationals Result: the married woman retains her own nationality, even as she automatically acquires her husband’s nationality. General basis & Problems of Dual nationality Ø the basic rule in IL is that nationality is within the domestic jurisdiction of every State Ø thus a person may have more than one nationality, because both in theory and practice, a State may confer its nationality on those who have not sought it in the first place Ø dual or plural nationality then arises as a result of concurrent operation of two or more municipal law systems of nationality when as a consequence a person is ascribed the nationality of each Ø the solution to the problem of dual nationality lies primarily in the conflict rules of the municipal law system involved. However, significant steps have been taken to unify rules on this question, which is why dual nationality as become the subject matter of int’l regulation Ø dual nationality breaks the exclusive character of the legal tie (i.e. nationality) which binds the national to his State. The national acquires the right to seek protection from a second state which can likewise claim his allegiance. This creates the problem of divided allegiance Ø but from the viewpoint of the individual national, dual nationality is not altogether undesirable

Ø a. Ø Ø 1. 2. Ø

since he is able to seek diplomatic protection from more than State & he becomes less dependent on the protection of the State of his first nationality dual nationality imposes a restriction on diplomatic protection which each State of his nationality may give him because the doctrine of master nationality (Fitzmaurice): its reason for being: to avoid an impossible conflict the rules; when a dual national is resident or present in the territory of either of his nationalities, the nationality of that territory for the time being takes precedence & prevails the state of one of his nationalities can never give him, or his interests, diplomatic protection or support, or bring int’l claim on his behalf, vs. the State of his own nationality, even if he is not at the time resident in that state & is resident in the territory of the State desiring to claim rationale of these rules: a State cannot be normally responsible to its own acts with respect to its nationals

Int’l regulation of dual nationality Ø the present state of IL makes no prohibition vs. the acquisition of a second nationality but there are rules which are intended to avoid dual nationality Ø from the Hague Convention on certain questions Relating to the Conflict of National laws: a State may not afford diplomatic protection one of its nationals vs. a state whose nationality such a person also possesses. He may renounce any one nationality, but such renunciation requires the consent of the state whose nationality he desires to surrender Montevideo Convention on the Nationality of Women neither matrimony nor its dissolution affects the nationality of the husband Convention on the Nationality of Married Women Ø marriage, dissolution of marriage, & change of nationality of the husband during the marriage shall not automatically affect the nationality of the wife Ø As can be seen, dual citizenship 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 citizen, as well as in the relationship between a state & the persons who it considers citizens under its law Ø Since each State has the right to determine for itself what persons are or may become its nationals, from the viewpoint solely of one State, whatever nationality in addition to its own its citizens may possess or acquire is a matter that is completely within its domestic jurisdiction Ø From the viewpoint of domestic law, strictly there cannot arise a problem of dual nationality because the State merely gives full effect to its own nationality ties Ø However, other states may have claims over persons who it considers as its own nationals Ø The problem that may arise from this situation is that such person may invoke & receive diplomatic protection from one State (of which he is a national) with respect to the assertion of jurisdiction by the other State over him also as its national

Ø Magi: the fact is in asserting its jurisdiction, the State concerned is simply dealing with its own national & in doing so it cannot possibly be internationally responsible even as to the other State of which that person is also a national. Only exception; if the matter is covered by a treaty. Survey of Philippine Law & Philippine Law & Policy 1. Jurisprudence a. Before: dual nationality OK (Parado vs. Republic) b. Now: rejection of dual nationality (Oh Hek how vs. Republic) 2. Legislation • Marked by schizophrenia A. No dual nationality allowed Ex. Revised naturalization law: requiring oath of allegiance before one can become a Phil. Citizen • CA 63: loss of Philippine citizenship by naturalization in a foreign country B. Express recognition of dual nationality Ø RA 2639: a Philippine natural-born citizen who acquires the citizenship of one of the berian & friendly democratic Ibero-merican countries shall retain his Philippine citizenship, basta may reciprocity at treaty RA 3834: extending same privilege to a Filipino who acquires British citizenship Ø CA 63: rare case of divided allegiance w/o involving the question of divided nationality: Filipino may be divested of citizenship by rendering services to, or accepting commission in, the armed forces of a foreign country Ø Magi: this case emphasizes that dual allegiance should not be interpreted as limited to cases of dual nationality Ø A Philippine citizen can be a national of another State, w/o his intending to be so, since a state is not in a position to determine the membership of the political community of other states. In which case, whatever the Philippines may do within its jurisdiction, to prevent duality in nationality can only be binding within its own jurisdiction Ø Instances in which a Philippine citizen acquires a second nationality: 1. Under the present Consti, a person whose father or mother is citizen of the Philippines is ipso facto a Philippine citizen. Or if born in UK, he is also a British nationality by birth. If his father is French, a third nationality attaches to him 2. Also in the Consti, female Phil. Citizen retains her citizenship despite marriage to an alien, unless she is deemed to have renounced such citizenship. If under the laws of her husband’s State she acquires his nationality automatically by virtues of marriage, dual nationality case again. 3. Chinese nationals who acquired Filipino nationality by naturalization under the Parado rule are still formally Chinese citizens under the laws of Taipei for failure to renounce their citizenship 4. In Phil. Law, adoption does not affect the citizenship of the adopted Social relevance of the Constitutional Policy Ø Re: dual or multiple nationality, the Phil. adopts a policy of indifference, i.e. it asserts full

jurisdiction over its national within its territory without respect to other nationalities which they may have. Note that his policy is in form a constitutional mandate lacking legal implementation. However, due to the pronouncements of the Supreme Court, this policy should be regarded as an already operative rule which has in the meantime acquired a constitutional status. As such it must have the effect of supervening statutory provisions & executive acts expressly recognizing dual nationality & other cases of dual allegiance, without need of further legislative action. Case: C. Nottenbohm Case (1955) FACTS: Nottebohm (N) was a German national, born in Germany in 1881. In 1905, he became a resident of Guatemala (G), which has since become the center of his interests and business activities. In October 1939, N applied and was granted naturalization by Liechtenstein (L). He returned to G shortly thereafter. In 1943, N was taken into custody as a result of war measures (WWII broke out in Sept. 1939 when Germany attacked Poland). He was removed to the US as a dangerous enemy alien, where he was detained until 1946. G proceeded against his property as that of an enemy alien. After his release, N sought to return to G but G refused to admit him. L instituted proceedings before the ICJ, espousing N’s claim. L asked the Court to declare that G acted in breach of its obligations under IL in arresting, detaining, expelling & refusing to readmit N. L further asked for damages & restoration of N’s property in G, or the payment of the value of such property. G contended that L’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. ISSUE: WON the nationality conferred to N gave L sufficient title to exercise protection in respect of N as against G in justification of proceedings before the Court HELD: No. G is under no obligation to recognize the nationality granted by L to N under the circumstances in this case. L has no title to exercise protection \ its claim bef. the Court is inadmissible. RATIO (Court’s train of thought): 1 “We will decide the issue on the international plane.” The question of nationality is within domestic jurisdiction, but to apply to the Court places it in

the IL plane \ the Court will not decide WON N’s naturalization was in accord with the law of L. ICJ said: “It is for every sovereign State, to settle by its own legislation the rules relating to the acquisition of its nationality…[bec] nationality has its most immediate, most farreaching…effects within the legal system of the State conferring it. Nationality serves…to determine that the person upon whom it is conferred enjoys the rights & is bound by the obligations which the law of the State in question grants to or imposes on its nationals…Nationality is within the domestic jurisdiction of the State…[But] To exercise protection, to apply to the Court is to place oneself on the plane of IL. It is IL which determines whether a State is entitled to exercise protection and to seize the Court.” 2 In a situation where two States have conferred nationality on the same person (dual nationality), arbitrators & courts of 3rd States determine whether the nationality invoked by the applicant State is one which could be relied upon as against the respondent State à Should full intl effect be attributed to the nationality invoked by the applicant State? Is G obliged to recognize the nationality granted to N? 3 To decide this issue, arbitrators, courts of 3rd States, writings of publicists and State practice have given preference to the “Real and Effective Nationality” (REN) principle2. What does REN say? It says that nationality is a legal bond having as its basis a social fact of attachment, a genuine connection of existence, interest & sentiments, together with the existence of reciprocal rights & duties. Nationality is the juridical expression of the fact that the individual upon whom it is conferred…is in fact more closely connected w/ the population of the State conferring nationality than with any other State. What factors are considered? habitual residence of individual concerned, center of his interests, family ties, participation in public life, attachment shown by him for a given country & inculcated in his children etc. Why is there a need to establish the genuine link bet. the individual and the State? Bec. by taking up the case of one of its subjects and by resorting to diplomatic action or intl judicial proceedings on his behalf, a State is in reality asserting its own rights – its right to ensure, in the person of its subjects, respect for the rules of IL. 4 REN is not inconsistent with the fact that IL leaves the fixing of rules of nationality within the competence of States. It just says that “…a State cannot claim that the rules it has thus laid down are entitled to recognition by another State unless it has acted in conformity with this 2

REN/Genuine Link principle is NOT general intl law used to determine nationality. It is a procedural & specialized norm used by the Court only for purposes of this case in respect to L’s claim. The Court was careful to say that the issue of recognition of nationality decided in the case is not for all purposes but merely for the purposes of admissibility of the application and that what is involved is not the recognition by all States but only by G.

general aim of making the legal bond of nationality accord with the individual’s genuine connection with the State which assumes the defence of its citizens…” 5 In the CAB, the FACTUAL ISSUE them becomes à At the time of N’s naturalization (period preceding, contemporaneous and following such) does N appear to have been more closely attached by his tradition, establishment, interests, activities, family ties, intentions for the near future to L than to any other State? No. N’s actual connections with L are tenuous. He had no settled residence in L at the time of his application and no intention of settling there as proven by the fact that he returned to G shortly after his naturalization. The requirement that one must be a resident of L for three yrs bef one may be naturalized, was waived in N’s case but no reason was given for such waiver. N had no economic interests in L nor did he have any intention of transferring some of his business activities there. The only links bet. N & L were his short trips to L in 1931 to visit a brother who lived there. It appears that N sought L citizenship to acquire the status of a neutral national (get rid of his German nationality bec. of the war) before returning to Guatemala. The naturalization granted by L was “not based on any real prior connection with L, nor did it alter the manner of the life of the person upon whom it was conferred…it was lacking in the genuineness requisite to an act of such importance, if it is to be entitled to be respected by a State in the position of Guatemala. It was granted without regard to the concept of nationality adopted in intl relations.” Notes: Nationality- this is the legal nexus that enables a state to exercise protection over subject individuals; but if there is no genuine link between the individual and the state, the state has no locus standi to represent him in court. A state may bring a claim to the tribunal on the basis of: 1. injury to itself 2. espousal of a case of one of its nationals Diplomatic protection- pursuance of the judicial settlement of a dispute. Espousal- under CIL, there is a duty for the

individual to exhaust local remedies as a condition before the state may espouse his case. Nationality- a juridical form that reflects social, economic and political attachments. 2 legal principles that determine nationality: 1. jus soli- where the person was born 2. jus sanguine- what the nationality of his parents are. D. Barcelona Traction Co. Case (1964) FACTS: The Barcelona Traction, Light & Power Ltd is a holding company incorporated in Toronto, Canada where it had its head office. For the purpose of developing an electric power and distribution system in Spain, it formed a number of concession holding subsidiary companies. After WW1, Barcelona’s share capital came to be largely held by Belgian nationals. In 1936, the payment of interest on bonds which Barcelona had issued was suspended by the Spanish gov’t due to the Spanish Civil War. Eventually, the company was declared bankrupt . Representations in behalf of the company were initially made by the British, Canadian, US and Belgian gov’t. Canada’s interposition ceased entirely in 1955. ISSUE: WON Belgium has the right to exercise diplomatic protection (DP) of Belgian shareholders in a company incorporated in Canada (the measures complained of having been taken in relation not to any Belgian national but to the company itself) HELD: No RATIO: Obligations, the performance of which is the subject of DP 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. It 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.

Belgium’s capacity is to be determined by the existence/absence of a right to protect the rights its nationals suffered as shareholders in a company not of Belgian nationality. There’s no treaty on the subject between the parties, court said it had to resort to general rules on DP. Theory of Corporate personality The concept of the company is founded on a firm distinction between the rights of company and those of the shareholders. Only the company, which was endowed with legal personality, could take action in respect of matters that were of corporate character. An act infringing only the company’s rights did not involve responsibility towards the shareholders, even if their interests were affected. To 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. No rules of IL expressly confer a right on the shareholder’s State to exercise DP. But the court said that under special circumstances, State may be allowed to exercise DP which are: a. where the company has ceased to exist – not present in CAB because a company in a precarious financial situation doesn’t mean that it’s dead. It’s still capable of defending its own rights and that of its shareholders. b. Where the protecting state of the company lacks capacity to take action – rebutted by the fact that Canada had made representations in behalf of the company and so was deemed by the court to be the one who should file a claim. In relation to this, the court discussed 2 theories of incorporation or how corporate nationality is determined. a. Incorporation theory – right to protect falls on the state under which the corporation was formed. In CAB, it’s Canada. b. Siege Social – right to protect is in the state in which the corporation carries out its main operations and has headquarters. In CAB, it’s Canada. The court in CAB adhered to the theory of incorporation. Thus, it’s Canada and not Belgium who has the right to exercise DP. Other issues: RE claim that state can exercise DP if its economic interests were prejudiced by investments of its nationals abroad - allowed only if there’s a special treaty or agreement between the parties. In CAB, no such thing. RE equity -

Court didn’t want to use this because it would open the door to instability of international relations.

Notes: ICJ: a corporation is a national of the state where it was incorporated (doctrine of incorporation). In municipal law (which the ICJ considered), the personality of a corporation is separate and distinct from the personality of its shareholders. 2 kinds of intl oblig: 1. inter se- between states only 2. erga omnes- to the whole intl community The ICJ in this case elevated the incorporation doctrine as a norm of IL. The Court assumed a high position, even precluding the application of equitable principles. C. International Organizations Schermers, The International Organizations A. CATEGORIES OF INT’L ORGANIZATIONS Non-governmental Org – all org established by individual citizens even if they perform important gov’t tasks. It must be established under law of a State to obtain legal; personality. Governmental Organization – established by interstate agreement which is usually expressed in a treaty which is usually called the Constitution of the Org. - this constitutional treaty distinguishes a gov’t org from an NGO It is now recognized that international orgs have their own legal personality under any law and so are subjects of international law order. Types of Intergovernmental Organizations 1. Universal v Closed Organization Universal – strive at membership of all states and aims at making rules for the entire world e.g. UN

Closed – covers only a limited group of states who have similar interests or cultural and political patterns; may be closed to states outside a particular group and usually addresses themselves to a particular region e.g. OEC, OIC 2. General v Functional General – field of operation is not limited to one or more special subjects; can discuss any subject insofar as it has not been excluded; 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 Functional – operate in a narrowly defined field 3. Intergovernmental v Supranational Intergovernmental – int’l orgs between states; legally the States are members but in practice it is the org which promotes cooperation between gov’ts Supranational – have real powers above the level of the State; charged w/ making legislation applicable to territory of member states - sovereignty has been transferred from the member states to the organization (make laws binding to indiv citizens of member states w/out involvement of nat’l gov’t) - financially independent; always functional org e.g. European Community II. LEGAL STATUS PERSONALITY A. Capacity to Act Under National Law - provided for by the org’s constitution - includes; exercise of its functions, capacity to contract, acquire & dispose of immovable property, institute legal proceedings - orgs have legal personality= foreign legal person B. Liability Under national Law - liable for their contracts in the same way as any individual citizen and for non-contractual obligations - but in non-contractual obligation, orgs may claim immunity w/c makes it impossible to establish liability of an int’l org C. Liability Under Int’l Law - when liability under national law cannot be established, org can still be liable under int’l law for damages caused to indiv citizens - if orgs don’t have own tribunals, damages have to be settled along diplomatic channels

D. Capacity to Act Under IL 1. General - powers are limited to those expressly granted by their constitution - capacity to act not presumed but has to be demonstrated ICJ accepted Int’l personality of UN under ff grounds: i. to achieve ends of UN, attribution of int’l personality is indispensable ii. Org is equipped w/organs & has special tasks iii. Charter has defined position of member-states in rel’n to org by requiring them to give every assistance and to accept the decisions of SC, by giving org legal capacity, immunity and privileges iv. Org enjoys functions and rights w/c can only be explained on the basis of the possession of large measure of int’l personality At present, it is generally recognized that all public S org has some int’l legal personality limited to the fields in w/c they have competence to operate. In practice, virtually all int’l orgs perform acts under int’l law. 2. Right to Bring Int’l claim (Reparations Case) 3. Treaty-making capacity - int’l org has power to conclude treaty w/ other subjects of int’l law - int’l org has not been accepted as parties to large multilateral law-making treties 4. Right to establish diplomatic relations - normal role of orgs accredited w/ ‘permanent missions” is to keep contact w/ Secretariat of the org & w/ organs in session - reps of orgs to States & Org perform role comparable to that of diplomat 5. Right to recognize other subjects of IL - Int’l orgs officially have no power to recognize new subjects of law (admission to UN is of greater importance than recognition) - Recognition by int’l org cannot be seen separately from recognition by other states DURATION A. Establishment - Int’l org is born when treaty containing its constitution comes into force B. Dissolution - 2 reasons: (1) task has been completed (2) 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

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Methods: - consti can empower gen. Congress to dissolve org by qualified majority - dissolved after certain period of time - provided for in add’l docs upon orgs establishment - decision of gen congress even if no consti empowerment Consequences of Dissolution o other orgs take over remaining function even w/out official transfer o annuls certain legal acts of orgs o binding decisions of orgs will probably not lose their force o orgs w/c are means of cooperation: interstate agreement w/c will continue without org o orgs w/c are legislating body: incorporated in nat’l legal order o employees lose jobs but not rights o property of org distributed proportionally to member states o if transferred, value should be credited to member states III. FUNCTIONS AND POWERS

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All Intl Org (IO) cam make recommendations to member states All IO can issue declarations All IO have power to propose draft conventions General Org: vaguer functions more of political nature Sec. Council: can issue binding decisions IV. INSTITUTIONAL STRUCTURE

Participation A. Categories of Participants 1. Full members – usually consti provides criteria that qualifies one for membership - share responsibility for decision-making, bears costs 2. Associate Members – does not fulfill full requirements for full membership but is sufficiently interested in the work of the org for some form of participation o same rights as members except cant vote in plenary organ & can’t be chosen in executive board 3. Partial members – participates in some organs w/out being members of the org itself; no vote; pay contributions; may be chosen in executive boards of organs w/c they are members 4. Affiliate members – concerned w/ the specialized interest of the org or related activity;

represented in at least 1 organ of org 5. Observers – usually for non-member states; allowed by org pres to make statement; right to receive docs of org 6. Consultative Status – usually granted to NGO’s; less rights than observers Requirements: 1. has an established headquarters w/ executive officers 2. has a democratically adopted constitution 3. has authority to speak on behalf of its members B. Duration of Membership 1. Entry into effect of membership - orig members: when consti obtained sufficient ratification - when both org & states has accepted such membership - from date of admission to org - officially when act of ratifying consti has been deposited 2. termination of membership - withdrawal from the org of the member state (unilateral withdrawal allowed) - expulsion of the member state by the org (not possible if no consti provision to that effect) C. Representation of Members 1. by sending delegations - each delegation has 1 vote whatever the no. of delegates sent - usually required to be composed of cabinet members - prove representations by presenting credentials PLENARY ORGANS A. General Congress - org’s supreme organ in which all member states are represented - takes only broad policy decision leaving more detailed tasks to smaller org B. Junior Congress - secondary plenary organ composed of lower ranked civil servants w/c can prepare the meetings of the ministers and take the minor decisions C. Specialized Congresses - handle very technical subjects D. Plenary Commissions - commissions of the general congress meeting during the time of the congress and

preparing its decisions NON-PLENARY ORGANS A. Task - for IO w/large membership - functions: (1) Take decisions of such minor importance that these do not require the gathering of reps from all member states (2) usually make the preparatory act of the general congress B. Composition 1. size: most universal orgs have a council or exec board composed of delegation 1/5- 1/3 of the membership of org 2. components: gen congress appoints the member states entitled to compose the nonplenary organ - some constis require that individual experts instead of gov’t rep be appointed - for judicial organs: individual experts since independence is important - for highly political organs: gov’t reps due to requirement of consistency w/policy of other organs 3. equitable representation of interests a. impt that the main interests represented in the congress are also represented in the non-plenary organ so as to guarantee that the proposed drafts get sufficient support in the congress. b. Balanced geographically & in the technical interests the org has to look after 4. election of Non-plenary organs 2 systems: 1. 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 closest to the average opinion of the org as a whole e.g. World Bank 2. each region or interest group appoints its own members result: the region or interest group will take those states w/c are most representative of the majority of the region e.g. UN 5. Replacements - period after w/c the members are to be replaced varies according to the task of the organ. - Most periodically replace part of their membership so as to prevent a situation where all members are new and inexperienced. OTHER ORGANS

A. Parliamentary Organs - background: some states form of gov’t is one where the executive is controlled by a parliament elected by the people. When powers are transferred from these States to an IO, the nat’l parliaments lose control over these powers. Parliamentary organs in the org are then created to compensate for this loss. - May either be elected directly by the people of the member states or appointed by the nat’l parliaments of the member states - Usually can make only recommendations. B. Jurisdictional Organs - court charged with the settlement of disputes between the member states, w/judicial control over the legality of decisions of the org or w/ the admin jurisdiction over staff matters - most IO’s just refer to ICJ - not limited to courts, can be w/ a judicial character only e.g. Human Rights Committee - composition: independent legal experts w/ long term appointments and not entitled to receive instructions from their governments. SECRETARIAT A. Task - preparation of the meetings of the organs e.g. proper mgt, admin supervision, infogathering, etc - head: Secretary General o appointed by the general congress o responsible for the appointment of other civil servants using criteria of competence + equitable geographical distribution - granted certain immunities & privileges such as tax exemptions to guarantee independent operation B. Headquarters - literally the building which house the secretariat & which often hosts the meetings of the org - most org tend to cluster in Vienna and Geneva since neutral territory + good infrastructure C. International Civil Servants - the permanent staff working for the org - must be professionally qualified and recruited on an equitable geographical basis - usually immune from local taxation & local jurisdiction to guarantee their independence – can be waived

V. FINANCING -

costs are paid by the member states according to capacity to pay + interests that the states have in the org Rule: No state should pay more than 25% of the total cost or less than 1% Associate and partial members pay a lower rate than full members Contributions must cover all administrative expenses, e.g. for meetings, salaries, upkeep of buildings. If special activity, special budgets financed through voluntary contributions are usually created Also receive money from private sources

Tunkin, Theory of International Law E. Charters of International Organizations: Treaties or Constitutions? I.

Constitutional Theory

Charters of International Organizations (Ios), specially the UN, are basically constitutions and only partially international treaties. Therefore the law on treaties is not applicable to them. Charters of IOs as constitutions are “flexible” documents from whose provisions one may digress in practice, and this digression will not be a violation, but a modification of the charters. Although by their origin the Charters of IOs are international treaties, as regards their operation, they are basically not treated as treaties. Tunkin’s Critique: Politically: this theory is worked out and propagandized strenuously in the West because it is aimed at justifying the numerous violations of the charters of general IOs, under the pressure of imperialist powers. In re “operation” : fails to prove that this practice (of treating charters as constitutions) conforms with international law and is not a violation of such. II.

Treaty Theory

Charters of IOs are a special category of international treaties. The attempt to ascribe certain features of state constitutions to said charters has no justification, since IOs are qualitatively different from states. Tunkin:

Said charters are international treaties having certain peculiarities, treaties sui generis. In contrast to the usual multilateral treaties, such charters create a permanent international entity which functions on its basis. It defines not only the rights and duties of state-parties to the treaty, but also the purposes and tasks of the organization, the mutual relations by which the organization and its member-states, etc. Conclusion: it is a more complex phenomenon than the ordinary multilateral treaty. Therefore, it is but natural that the conclusion and the operation of such would be with certain peculiarities. BUT, all the basic provisions of the law of treaties are applicable to such charters (albeit with some adaptations), especially the ff: 1. conclusion and entry into force of multilateral treaties, except some provisions on reservation 2. invalidity of treaties 3. amendment and interpretation of treaties 4. operation of international treaties, especially pacta sunt servanda 5. significance of treaties for 3rd states *Review Art. 5 of Vienna Convention on the Law of Treaties F. Jurisdiction of International Organizations I.

the “inherent jurisdiction” (competence inherent) theory

Concept: The practice of the UN and other Ios shows that their activity goes beyond the limits provided by their charters. This then means that there exists a generally recognized norm of international law to the effect that IOs can undertake activities necessary to achieve its purposes irrespective of the specific provisions of the organization’s charter. Definition: The legal capacity of IOs to perform “sovereign” and international acts is, like that of States, not confined to what can be positively adduced from their constitutions, but comprises all acts which do not impose new obligations upon parties who are not subject to their jurisdiction. If the organization’s constitution does not define matters with which the organization can deal, then it can deal in any matter. And if the constitution does not preclude certain types of acts or exhaustibly enumerate the acts

which the organization may perform, then it can perform any type of acts. Tunkin’s Critique: 1. Has no basis in international law They are correct in saying that the practice of contemporary IOs often goes beyond the provisions of their charters BUT the conclusions they draw from this is wrong. Just because there exists a practice of IOs going beyond the limits of their charters does not automatically mean that there also exists a generally recognized norm of international law regarding the “inherent jurisdiction” of IOs. A customary norm of international law arises from international practice in consequence of the recurrent action of States. But practice in itself is not yet a norm of international law. The process of forming a customary norm in international law is completed only with the recognition by States of a customary rule as a norm of international law. Here, no such recognition is shown. 2. has no basis in charters Also, this concept does not find basis in the IOs’ charters themselves. There are no IOs whose charters would empower them to use any means to achieve the purposes stipulated in their charters. Contemporary IOs are created by states, and only states may define the character of each organization created by them, its purposes, and the means by which they place at its disposal. This is done by treaty (the organization’s charter) 3. Contravenes Pacta Sunt Servanda The Inherent Jurisdiction Theory assumes that an IO created by treaty between States is immediately separated from its base. The concept of Inherent Jurisdiction then contravenes the pacta sunt servanda principle. States should fulfill their obligations in good faith according to the Charter of the organization, more should not be required of the member-states than what is provided by the Charter, and that member -states have the right to require that the organization act in conformity with its charter. 4. Contravenes principles in interpreting international treaties Art. 31 of the Vienna Convention on the Law of Treaties establishes that: “A 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 subject and purpose of the treaty.” Meanwhile the concept of Inherent Jurisdiction ascribes a certain magical force wrested from the context of the treaty, transforming them into something independent and essentially

superseding the entire treaty. 5. Contravenes Legal Nature of Contemporary IOs The Inherent Jurisdiction theory contravenes the legal nature of IOs, as interstate formations of peaceful coexistence. II. The “Implied Powers (Competence Implicit) Theory Concept: (as formulated in the Reparations case) Under international law, the organization must be deemed to have those powers which, though not expressly provided in the Charter, are conferred upon it by necessary implication as being essential to the performance of its duties. Rationale: presumption of the conformity of jurisdiction to the purposes and functions of an organ – principles of effectiveness Meaning: There exists a norm of international law according to which one should imply that member-states of an international organization have granted it that jurisdiction which is necessary to effectuate the purposes and functions of the organization, and those powers which may be reasonably deduced from the purposes and the functions of the organization. Tunkin’s Critique: Of course, in practice it is impossible to provide for all possible instances of future activity in the charters of the IOs. Therefore in working out the charters the parties inevitably presuppose that a number of questions of the activity of an IO remain to be decided on the basis of the charter provisions in the process of the fixing of the organization – at this level, there still are implied powers. But note: implied power is not a norm of general international law. (see discussion on formation of norms under the IH theory, which also applies to this case). But here, the question is the creating of new, subordinate and more precise norms through additional agreements among the members. Thus: implied powers of an organization can occur. The question of the existence and extent of such jurisdiction in each individual instance is a question of interpreting the charter of the organization 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 organization. Implied Power Theory Under international law, the UN must be deemed to have those powers which, though not expressly provided in the Charter, are conferred upon it by necessary implication as being essential to the performance of its duties.

Tunkin: “Implied powers” is not a norm of general international law. The 1949 Advisory Opinion of the ICJ goes farther than what corresponds to contemporary international law. The implied power of an IO in reality exists when in order to exercise the jurisdiction clearly granted to the organization, it is necessary to resort to actions which not only do not contravene the charter of the organization but also are customary in international practice. Case: Reparation for Injuries Case (1949) The United Nations (UN) requested an advisory opinion from the International Court of Justice (ICJ) on two primary questions. First, it asked whether, when an agent of the UN is injured while performing duties relating to an individual State, the UN may bring an international claim against the State’s government for damages caused to either the UN or to the victim. In the event of an affirmative answer to the first question, the UN also requested an answer on the following question: when both the UN and an individual State have an interest in the same international claim, does the UN’s interest in bringing the claim outweigh the State’s interest in either providing diplomatic protection for its offending national, or bringing the claim itself, depending on the factual circumstances present? I. Issues The ICJ rendered this advisory opinion in response to the ff. issues: a) In the event of an agent of the UN in the performance of his duties suffering injury in the circumstances involving the responsibility of a State, has the UN, as an international organization, the capacity to bring an international claim against the responsible de jure and de facto government with a view to obtaining the reparation due in respect of the damage caused (a) to the UN, (b) to the victim or to the persons entitled through him? b) In the event of an affirmative reply on point 1(b), how is action by the UN to be reconciled with such rights as may be possessed by the State of which the victim is a national? II. Capacity to bring an international claim on its own behalf a) Definition: the capacity to resort to the customary methods recognized by IL for the establishment, presentation, and settlement of claims e.g. protest, request for an enquiry, negotiation, and request for submission to an arbitral tribunal b) Does the UN possess international personality i.e. capable of availing itself of obligations incumbent upon its members? i) Not settled by actual terms of UN Charter: look into intent ii) Nature of subjects of IL dependent upon needs of community: “But to achieve these ends the attribution of international personality is indispensable.” iii) Members, by entrusting certain functions to it, with the attendant duties and responsibilities, have clothed it with the competence required to enable those functions to be effectively discharged. (1) Charter requires Members to give it “every assistance” in any action undertaken by

it (Art 2, par 5); gives UN legal capacity, privileges, and immunities in the territory of each of its Members; provides for conclusion of agreements with between the UN and its Members. (2) UN is a political body charged with political tasks of an important character (Art 1, Charter) by employing political means. iv) UN is an international person, subject to international law and capable of possessing international rights and duties, and that it has the capacity to maintain its rights by bringing international claims. (1) Not the same as saying that its legal personality, rights, and duties are the same as that of a State. (2) Whereas a State possess the totality of international rights and duties recognized by IL, the rights and duties of an entity such as the UN must depend upon its purposes and functions as specified or implied in its constituent documents and developed in practice. (3) Members have endowed the UN with capacity to bring international claims when necessitated by the discharge of its functions. c) Damage caused to the interests of the UN is a breach of an international obligation, and the UN is justified in giving its claim the character of an international claim. III. Capacity to recover damages on behalf of its agents a) Traditional rule of diplomatic protection does not give a negative answer…so pwede? i) Present claim not brought by a State ii) Exceptions involving claims brought by a State on behalf of persons not having its nationality iii) Bases of diplomatic protection: (1) Defendant state’s breach of obligation to national State in respect of its nationals (2) Only the party to whom an international obligation is due can bring the claim b) Charter does not expressly confer upon the UN the capacity to include damages to its agents in its claim for reparation i) Under international law, the UN must be deemed to have those powers which, though not expressly provided in the Charter, are conferred upon it by necessary implication as being essential to the performance or its duties (necessary intendment). (1) Applied by Permanent Court of International Justice to the ILO in its Advisory Opinion No. 13 of July 23, 1926. (2) Need for protection for agents in the performance of official duties recognized in the Preamble to the Resolution of December 3, 1948. (a) Echoed in Charter provisions and complementary agreements (b) Importance of duty to render “every assistance” (Art 2, par 5). (3) Guarantee of protection is essential to the independence of an agent in the performance of his duty (functional protection). ii) UN brings action in its own right for a breach of international obligations.

IV. Capacity to bring an international claim against a non-member a) UN has capacity WON defendant State is a member of the UN i) Fifty States, representing the vast majority of the members of the international community, had the power, in conformity with international law, to bring into being an entity possessing objective international personality, and not merely personality recognized by them alone, together with the capacity to bring international claims. V. Reconciling the rights of the UN vis-à-vis State of nationality a) No rule of law assigns priority to one, to the exclusion of the other. i) “…find solutions inspired by goodwill and common sense…” ii) eliminate risk of competition by convention, agreements, and emergence of practice b) What if agent bears the nationality of defendant State? Nationality is not pertinent to the admissibility of the claim: action based on status as agent, not on nationality. Notes: Magi- UN was accorded personality by the ICJ.

sui

generis

On intl orgs as subjects of law: their legal personality must first be established by their constituent elements. Their status then is determined by agreement and not by general of customary law. Criteria of legal personality: 1. a permanent association of states with lawful subjects equipped with organs 2. a distinction in terms of legal power and purpose between the org and its member states 3. existence of legal powers exercisable on the intl plane and not solely within the natl systems of one or more member states VI. International Responsibility

A. State Responsibility Arechaga, International Law in the Past Third of a Century (1978) State responsibility occurs: a) by a direct injury to the rights of another State; or b) by a wrongful act or omission w/c causes injury to an alien. In this case, the responsibility is owed to the State of w/c the alien is a national. Constituent elements: 1. Existence of an act or omission w/c violates an obligation established by a rule of IL in force between the State responsible for the act or omission and the injured State 2. The unlawful act may be attributed to the State as a legal person 3. Loss or damage must have resulted from the unlawful act. But in inter-State rel’ns even acts affecting the dignity of the State must be compensated by adequate reparation even if no pecuniary loss exist; damage is not a separate constituent element The failure to fulfill an int’l obligation is necessary but not a sufficient element in the case of int’l delicts. To create an automatic link of responsibility between the acting and the claimant State, an additional condition [damage suffered by claimant State] is required. This requirement is connected with the 2ndary rules of State responsibility since it concerns its implementation on the diplomatic and judicial plane. It is always the element of damage suffered by one State that entitles that State to claim against another State w/c caused the damage and demand redress. Cases: Corfu Channel Case (1949) On October 22nd, 1946, two British cruisers and two destroyers, entered the North Corfu Strait. The channel they were following, which was in Albanian waters, was regarded as safe: it had been swept in 1944 and check-swept in 1945. One of the destroyers, Sumarez, when off Saranda, struck a mine and was gravely damaged. The other destroyer, the Volage, was sent to her assistance and, while towing her, struck another mine and was also seriously damaged. 45 British officers and sailors lost their lives, and 42 others were wounded. __ An incident had already occurred in these waters on May 15th, 1946: an Albanian battery had fired in the direction of 2 British cruisers. The UK government had protested, stating that innocent passage through straits is a right recognized by international law.

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The Albanian government replied that foreign warships and merchant vessels had no right to pass through Albanian territorial waters without prior authorization.

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On August 2nd, 1946, the UK replied that if, in the future, fire was opened on a British warship passing through the channel, the fire would be returned.

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On September 21st, 1946, the Admiralty in London had cabled to the British Commanderin-chief in the Mediterranean to the following effect: “establishment of diplomatic relations with Albania is again under consideration by His Majesty’s Government who wish to know whether the Albanian Government have learnt to behave themselves. Information is requested whether any ships under your command have passed through the North Corfu Strait since August and, if not, whether you intend to do so shortly.”

__ After the explosions on October 22nd, the United Kingdom announced its intention to sweep the Corfu Channel shortly. The International Central Mine Clearance Board’s made a definite statement to the effect that further sweeps would have to require the consent of Albania. The sweep effected by the British Navy took place on November 12th/13th 1946, absent Albanian consent. __ On March 25, 1948, the parties concluded a Special Agreement asking the Court to give judgment on the following questions: 1. Is Albania responsible for the explosions, and is there a duty to pay compensation? 2. Has the United Kingdom violated international law by the acts of its Navy in Albanian waters, first on the day on which the explosions occurred and secondly, on November 12th and 13th, when it undertook the sweep of the strait? ISSUE: Is Albania responsible for the explosions, and is there a duty to pay compensation? According to the UK, Albania is responsible because: 1. the minefield was laid by or with connivance or knowledge of the Albanian government;

2. alternatively, the Albanian government knew that said minefield was lying in a part of its territorial waters 3. the Albanian government did not notify the existence of these mines as required by the Hague Convention 8 of 1907 in accordance with the general principles of international law and humanity 4. Albania, despite being in the position to observe the approach of the British ships, failed to warn them of the danger 5. existence of minefield in an international highway without notification violates the right of innocent passage COURT: - first, the documents produced by the UK government and the statements made by the Court’s experts and based on these documents show that the minefield had been recently laid. 1. Albania could not have laid down the mines herself. That suggestion was only put forward pro memoria, without evidence in support No proof of connivance with Yugoslavia. A charge of such exceptional gravity against a State would require a degree of certainty that has not been reached here, and the origin of the mines laid in Albanian territorial waters remain a matter for conjecture. 2. Did Albania know of the minelaying activities? YES, the proof may be drawn from INFERENCES OF FACT provided that they leave no room for reasonable doubt. -

Great Britain, being the victim must be allowed a more liberal recourse to inferences of fact and circumstantial evidence; such indirect evidence must be regarded as of especial weight when based on a series of facts, linked together and leading logically to a single conclusion.

So why did the court say that Albania knew of the minelaying activities? a. because of Albania’s attitude before or after the catastrophe i. The laying of the mines took place in a period in which it had shown its

ii. iii.

intention to keep a jealous watch on its territorial waters and in which it was requiring prior authorization before they were entered: all of which render the assertion of ignorance a priori improbable. After knowing about the minefield’s existence (post-October 22nd incident), it protested strongly against the minesweeping operations of the British fleet, but not against the laying of the mines She did not undertake any of the measures of judicial investigation which would seem incumbent on her in such a case. Such an attitude could only be explained if the Albanian Government, while knowing of the minelaying, desired the circumstances in which it was effected to remain secret.

b. because a survey of the Albanian coast shows the possibility of observing the mine laying operations i. The channel is easily watched: it is dominated by heights offering excellent observation points. ii. The operations could have taken 2 to 2 and a half hours and if a normal lookout was kept in the surrounding capes, and if the lookouts were equipped with binoculars, UNDER NORMAL CONDITIONS, the mine-laying operations must have been noticed by these coastguards. (in the objectionable language of the Court (naks, nagmamarunong), “from all the facts and observations mentioned xxx, the Court draws the conclusion that the laying of the minefield could not have been accomplished without the knowledge of the Albanian Government”) 3. the Albanian government did not notify the existence of these mines as required by the Hague Convention 8 of 1907 in accordance with the general principles of international law and humanity …and so because Albania must have known of the existence of the minefield, it had the obligation to make the necessary acts of notification. See discussion below.

Court: YES, Albania had the duty to notify xxx The obligations consisted in notifying, for the benefit of shipping in general, the existence of the minefield and in warning the approaching British warships of imminent danger to which the minefield exposed them. This however, is not based on the Hague Convention as claimed by UK but on certain general and well-recognized principles, namely elementary consideration of humanity, even more exacting in peace than in war; the principle if freedom of maritime communication; and every State’s obligation not to allow knowingly its territory to be used for acts contrary to the rights of

other States. Xxx ok so they should have notified UK, but was the possible? Court: YES, it was perfectly possible for the Albanian authorities to use the interval of almost two hours (from the time they saw the ships to the time the ships would have reached the minefield site) that elapsed before the explosion affecting Saumarez to warn the vessels of the danger they were running. Xxx now that Albania is responsible, is there a duty to pay compensation and can the Court fix the amount? Court: YES, Albania s responsible for the damage and loss of human life which resulted from them and that there is a duty upon Albania to pay compensation to the UK. The Albanian Government has not disputed the competence of the Court to decide what kind of satisfaction is due under the Agreement. If the Court is component to decide what kind of satisfaction is due to Albania under the agreement, it is difficult to see why it should lack competence t decide the amount of compensation which is due to the united Kingdom under the first part. ISSUE2: Has the United Kingdom violated international law by the acts of its Navy in Albanian waters, first on the day on which the explosions occurred and secondly, on November 12th and 13th, when it undertook the sweep of the strait? (UK says it was simply exercising the right of innocent passage) VII. was the October 22nd passage innocent? Court: Yes. The North Corfu Channel belongs to the class of international highways through which passage cannot be prohibited by a coastal state in time of peace. The October 22nd passage was not a political mission as asserted by Albania; it was designed to affirm a right which had been unjustly denied. Albania claimed that it was justified in requiring consent because of exceptional circumstances: it was technically in a state of war with Greece which was claiming a part of its territory. Court: The circumstances would have been justified in issuing REGULATIONS in respect of the passage of warships through the strait; but not in prohibiting the passage or in subjecting it to the requirement of special authorization. 4. Was Operation Retail (November 12/13th British minesweeping operations) valid?

Court: NO, the action of the British navy constituted a violation of Albanian sovereignty. i. ii. iii.

It was against the clearly expressed wish of the Albanian government. It did not have the consent of the international mine clearance organizations. It was not an exercise of the right of innocent passage: object was to secure the mines as quickly as possible a. UK presented this as a new and special application of the theory of intervention, by means of which the intervening State was acting to facilitate the task of the international tribunal, or as a method of self-protection or self-help Court: not accepted. Between independent States the respect for territorial sovereignty is an essential foundation for international relations. To ensure respect for international law, of which it is the organ, the Court must declare that the action of the British Navy constituted a violation of Albanian sovereignty.

JUDGE KRYLOV It was a mistake for the Court to base its decision on indirect evidence. -

I do not believe that international justice could be content with indirect evidence of the sort that has been produced in the present case, which affects the honour of a State, a subject of international law, and its position in the community of nations.

That Albanian local authorities must have seen or heard the minelaying operations has certainly not been proved. - Even if the Albanian coastal guards were in the position to exercise the necessary vigilance over the strait, that in no way excludes the possibility of a clandestine operation. Further, even the Court experts said that under less favorable conditions it would be impossible to hear the operation from all points. The culpa of Albania has not been proved. - One cannot condemn a State on the basis of probabilities/ To establish international responsibility, one must have clear and indisputable facts. - I cannot find in the organization and functioning of the Albanian coastal watch- having the regard to the limited sources of that small country – such a lack of diligence as might involve the responsibility of Albania. - And even if Albania knew, the coastal guards had neither sufficient time nor the necessary technical means for giving such a warning. The Court has no jurisdiction to assess the amount of compensation. - The text in the Special Agreement is clear such that the court may give judgment the question on principle. It does not follow at all that the Court has jurisdiction to fix the amount of compensation. The passage of British ships on October 22nd was not within the classification of ”innocent passage.”

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The question of innocent passage of warships has not been regulated by convention and it is impossible to say that an international custom exists in regard to it. As such, the passage of foreign warships thru territorial waters is not a right but a tolerance. Accordingly, the right to regulate the passage of warships thru its territorial waters appertains to the coastal state (Albania). For its failure to obtain the necessary consent, UK misused the right of passage and for that reason, the sovereignty of Albania in her territorial waters was violated.

British minesweeping operations was nothing but the intervention of a foreign power in the affairs of another state. The claim to exercise judicial action in the territory of another state is inadmissible because it violates the sovereignty of the state in question. -

Since 1945, after the coming into force of the Charter, the so-called right of self-help also known as the law of necessity which need to be upheld by a number of German authors can no longer be invoked. It must be regarded as obsolete.

British actions in the CAB involved the international liability of Great Britain and must be described as a violation of International law. JUDGE AZEVEDO Breach of international law has foremost place in the theory of responsibility. Approach suggested: the victim has only to prove damage and the chain of causation; and that is enough to involve responsibility, unless the defendant can prove culpa in a 3rd party, or in the victim, or force majeure; only these can relieve him from responsibility. If the participation of a 3rd country was evident (Yugoslavia in the case at bar) the condemnation of the respondent could still not be founded on that fact. - The international judge’s jurisdiction is based on the will of the parties in virtue of Article 36 of the Court’s Statute; this renders a mere allusion to the acts of a 3rd State inadmissible. A country which is not a party to the case and has not been summoned remains unaffected not only by the judgment itself, but by an incidental mention of it as mandatory or as performing an unlawful act. Use of indirect evidence was acceptable. - It would be going to far for an international court to insist on direct and visual evidence and to refuse to admit, after reflection, a reasonable amount of human presumptions with a view to reaching that state of moral, human certainty with which, despite the risk of occasional errors, a court of justice must be content. In the CAB, there is no need to speak of risk; the presumption of culpa is sufficient and is quite

in its place in a case of recognized and admitted negligence. Therefore, in international law Albania is responsible. re: assessment of compensation - Court should not have decided on the issue. It is not exactly a question of competence, but of determining the content of the petitum: UK asked for a simple declaration of responsibility, reserving a subsequent settlement. - The adoption of a special agreement presupposes mutual renunciations limiting the effect of the Court’s decision to the main fact of recognition of responsibility; and regarding essentially the purpose of international justice as being to declare the right. - Additional 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. DR. ECER Criminal character of the incident on October 22nd -

Great Britain seems to base her submission in regard to Albania’s responsibility primarily on the allegation that Albania laid the mines or took part as an accomplice in laying them, i.e., on an accusation of a definitely criminal character.

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However, the International Court is not a criminal court. The Special Agreement did not ask it to decide whether Albania has committed this crime. It requires Court to give judgment as to Albania’s responsibility in international law, that is to say without describing it either as a criminal or as a noncriminal responsibility.

No direct evidence has been produced to establish the Albanian cognizance of the laying of the mines. On international law, there is a presumption in favor of every State: presumptio juris that a state behaves in conformity with international law. It was improper for the court to base its decisions on proof by indications, presumptions and even by conjecture. It would perhaps be desirable to state in express terms that the responsibility of a state assumes either dolus or culpa on its part. An act of a state injurious to another state is nevertheless not an international delinquency if committed neither willfully and maliciously nor with culpable negligence. The Special Agreement did not ask court to assess the amount of compensation.

ELSI Judgment (1989) Jurisdiction of the Court and Admissibility of the Application; Rule of Exhaustion of Local Remedies (pares. 48-63) An objection to the admissibility of the present case was entered by Italy in its CounterMemorial, on the ground of an alleged failure of the two United States corporations, Raytheon and Machlett, on whose behalf the United States claim is brought, to exhaust the local remedies available to them in Italy. The Parties agreed that this objection be heard and determined in the framework of the merits. The United States questioned whether the rule of the exhaustion of local remedies could apply at all, as Article XXVI (the jurisdictional clause) of the FCN Treaty is categorical in its terms, and unqualified by any reference to the local remedies rule. It also argued that in so far as its claim is for a declaratory judgment of a direct injury to the United States by infringement of its rights under the FCN Treaty, independent of the dispute over the alleged violation in respect of Raytheon and Machlett, the local remedies rule is inapplicable. The Chamber rejects these arguments. The United States also observed that at no time until the filing of the Respondent’s Counter-Memorial in the present proceedings did Italy suggest that Raytheon and Machlett should sue in the Italian courts on the basis of the Treaty, and argued that this amounts to an estoppel. The Chamber however found that there are difficulties in constructing an estoppel from a mere failure to mention a matter at a particular point in somewhat desultory diplomatic exchanges. On the question whether local remedies were, or were not exhausted by Raytheon and Machlett, the Chamber notes that the damage claimed in this case to have been caused to Raytheon and Machlett is said to have resulted from the “losses incurred by ELSI’s owners as a result of the involuntary change in the manner of disposing of ELSI’s assets”: and it is the requisition order that is said to have caused this change, and which is therefore at the core of the United States complaint. It was therefore right that local remedies be pursued by ELSI itself. After examining the action taken by ELSI in its appeal against the requisition order and, later, by the trustee in bankruptcy, who claimed damages for the requisition, the Chamber considers that the municipal courts had been fully seized of the matter which is the substance of the Applicant’s claim before the Chamber. Italy however contended that it was possible to cite the provision of the treaties themselves before the municipal courts, in conjunction with Article 2043 of the Italian Civil Code, which was never done.

After examining the jurisprudence cited by Italy, the Chamber concludes that it is impossible to deduce what the attitude of the Italian courts would have been if such a claim had been brought. Since it was for Italy to show the existence of a local remedy, and as Italy has not been able to satisfy the Chamber that there clearly remained some remedy which Raytheon and Machlett, independently of ELSI, and of ELSI’s trustee in bankruptcy, ought to have pursued and exhausted, the Chamber rejects the objection of non-exhaustion of local remedies. Alleged Breaches of the Treaty of Friendship, Commerce and Navigation and its Supplementary Agreement (paras. 64-67) Paragraph I of the United States Final Submissions claims that: “(1) The Respondent violated the international legal obligations which it undertook by the Treaty of Friendship, Commerce and Navigation between the two countries, and the Supplement thereto, and in particular, violated Articles III, V, VII of the Treaty and Article I of the Supplement . . .” The acts of the Respondent which are alleged to violate its treaty obligations were described by the Applicant’s counsel in terms which it is convenient to cite here: “First, the Respondent violated its legal obligations when it unlawfully requisitioned the ELSI plant on 1 April 1968 which denied the ELSI stockholders their direct right to liquidate the ELSI assets in an orderly fashion. Second, the Respondent violated its obligations when it allowed ELSI workers to occupy the plant. Third, the Respondent violated its obligations when it unreasonably delayed ruling on the lawfulness of the requisition for 16 months until immediately after the ELSI plant, equipment and work-in-process had all been acquired by ELTEL. Fourth and finally, the Respondent violated its obligations when it interfered with the ELSI bankruptcy proceedings, which allowed the Respondent to realize its previously expressed intention of acquiring ELSI for a price far less than its fair market value.” The most important of these acts of the Respondent which the Applicant claims to have been in violation of the FCN Treaty is the requisition of the ELSI plant by the Mayor of Palermo on 1 April 1968, which is claimed to have frustrated the plan for what the Applicant terms an “orderly liquidation” of the company. It is fair to describe the other impugned acts of the Respondent as ancillary to this core claim based on the requisition and its effects.

Article III of FCN Treaty (paras. 68-101) The allegation by the United States of a violation of Article III of the FCN Treaty by Italy relates to the first sentence of the second paragraph, which provides: “The nationals, corporations and associations of either High Contracting Party shall be permitted, in conformity with the applicable laws and regulations within the territories of the other High Contracting Party, to organize, control and manage corporations and associations of such other High Contracting Party for engaging in commercial, manufacturing, processing, mining, educational, philanthropic, religious and scientific activities.” In terms of the present case, the effect of this sentence is that Raytheon and Machlett are to be permitted, in conformity with the applicable laws and regulations within the territory of Italy, to organize, control and manage ELSI. The claim of the United States focuses on the right to “control and manage”. The Chamber considers whether there is a violation of this Article if, as the United States alleges, the requisition had the effect of depriving ELSI of both the right and practical possibility of selling off its plant and assets for satisfaction of its liabilities to its creditors and satisfaction of its shareholders. A requisition of this kind must normally amount to a deprivation, at least in important part, of the right to control and manage. The reference in Article III to conformity with “the applicable laws and regulations” cannot mean that, if an act is in conformity with the municipal law and regulations (as, according to Italy, the requisition was), that would of itself exclude any possibility that it was an act in breach of the FCN Treaty. Compliance with municipal law and compliance with the provisions of a treaty are different questions. The 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 disturbed; every system of law must provide, for example, for interferences with the normal exercise of rights during public emergencies and the like. The requisition was found both by the Prefect and by the Court of Appeal of Palermo not to have been justified in the applicable local law; if therefore, as seems to be the case, it deprived Raytheon and Machlett of what were at the moment their most crucial rights to control and manage, it might appear prima facie a violation of Article III, paragraph 2.

According to the Respondent, however, Raytheon and Machlett were, because of ELSI’s financial position, already naked of those very rights of control and management of which they claim to have been deprived. The Chamber has therefore to consider what effect, if any, the financial position of ELSI may have had in that respect, first as a practical matter, and then also as a question of Italian law. The essence of the Applicant’s claim has been throughout that Raytheon and Machlett, which controlled ELSI, were by the requisition deprived of the right, and of the practical possibility, of conducting an orderly liquidation of ELSI’s assets, the plan for which liquidation was however very much bound up with the financial state of ELSI. After 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 Italian authorities, and that the Italian authorities did not come to the rescue on acceptable terms, the Chamber observes that the crucial question is whether Raytheon, on the eve of the requisition, and after the closure of the plant and the dismissal, on 29 March 1968, of the majority of the employees, was in a position to carry out its orderly liquidation plan, even apart from its alleged frustration by the requisition. The successful implementation of a plan of orderly liquidation would have depended upon a number of factors not under the control of ELSI’s management. Evidence has been produced by the Applicant that Raytheon was prepared to supply cash flow and other assistance necessary to effect the orderly liquidation, and the Chamber sees no reason to question that Raytheon had entered or was ready to enter into such a commitment; but other factors give rise to some doubt. After 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 realizing 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 Sicilian administration – the Chamber concludes that all these factors point toward a conclusion that the feasibility at 31 March 1968 of a plan of orderly liquidation, an essential link in the chain of reasoning upon which the United States claim rests, has not been sufficiently established. Finally there was, beside the practicalities, the position in Italian bankruptcy law. If ELSI was in a state of legal insolvency at 31 March 1968, and if, as contended by Italy, 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 FCN Treaty. While not essential to the Chamber’s conclusion stated above, an assessment of ELSI’s solvency as a matter of Italian law is thus highly material. After considering the decision of the Prefect and the judgments of the courts of Palermo, the Chamber observes that whether their findings are to be regarded as determinations as a matter of Italian law that ELSI was insolvent on 31 March 1968, or as findings that the financial position of ELSI on that date was so desperate that it was past saving, makes no difference; they reinforce the conclusion that the feasibility of an orderly liquidation is not sufficiently established. If, therefore, the management of ELSI, 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 Italian law, it cannot be said that it was the requisition that deprived it of this faculty of control and management. There were several causes acting together that led to the disaster to ELSI, of which the effects of the requisition might no doubt have been one. The possibility of orderly liquidation is purely a matter of speculation. The Chamber is therefore unable to see here anything which can be said to amount to a violation by Italy of Article III, paragraph 2, of the FCN Treaty. Article V, paragraphs 1 and 3, of FCN Treaty (paras. 102-112) The Applicant’s claim under paragraphs 1 and 3 of Article V of the FCN Treaty is concerned with protection and security of nationals and their property. Paragraph 1 of Article V provides for “the most constant protection and security” for nationals of each High Contracting Party, both “for their persons and property”; and also that, in relation to property, the term “nationals” shall be construed to “include corporations and associations”; and in defining the nature of the protection, the required standard is established by a reference to “the full protection and security required by international law”. Paragraph 3 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 High Contracting Party, and no less than that accorded to the nationals, corporations and associations of any third country. There are, accordingly, three different standards of protection, all of which have to be satisfied. A breach of these provisions is seen by the Applicant to have been committed when the Respondent “allowed ELSI workers to occupy the plant”. While noting the contention of Italy that the relevant “property”, the plant in Palermo, belonged not to Raytheon and Machlett but to the

Italian company ELSI, the Chamber examines the matter on the basis of the United States argument that the “property” to be protected was ELSI itself. The reference in Article V to the provision of “constant protection and security” cannot be construed as the giving of a warranty that property shall never in any circumstances be occupied or disturbed. In 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 “the full protection and security required by international law”; or indeed as less than the national or third-State standards. The mere fact that the occupation was referred to by the Court of Appeal of Palermo as unlawful does not, in the Chamber’s view, necessarily mean that the protection afforded fell short of the national standard to which the FCN Treaty refers. The essential question is whether the local law, either in its terms or in its application, has treated United States nationals less well than Italian nationals. This, in the opinion of the Chamber, has not been shown. The Chamber must, therefore, reject the charge of any violation of Article V, paragraphs 1 and 3. The Applicant sees a further breach of Article V, paragraphs 1 and 3, of the FCN Treaty, in time taken – 16 months – before the Prefect ruled on ELSI’s administrative appeal against Mayor’s requisition order. For the reasons already explained in connection with Article III, Chamber rejects the contention that, had there been a speedy decision by the Prefect, bankruptcy might have been avoided.

the the the the

With regard to the alternative contention that Italy was obliged to protect ELSI from the deleterious effects of the requisition, inter alia by providing an adequate method of overturning it, the Chamber observes that under Article V the “full protection and security” must conform to the minimum international standard, supplemented by the criteria of national treatment and most-favoured-nation treatment. It must be doubted whether in all the circumstances, the delay in the Prefect’s ruling can be regarded as falling below the minimum international standard. As regards the contention of failure to accord a national standard of protection, the Chamber, though not entirely convinced by the Respondent’s contention that such a lengthy delay as in ELSI’s case was quite usual, is nevertheless not satisfied that a “national standard” of more rapid determination of administrative appeals has been shown to have existed. It is therefore unable to see in this delay a violation of paragraphs 1 and 3 of Article V of the FCN Treaty. Article V, paragraph 2, of FCN Treaty (paras. 113-119) The first sentence of Article V, paragraph 2, of the FCN Treaty provides as follows:

“2. The property of nationals, corporations and associations of either High Contracting Party shall not be taken within the territories of the other High Contracting Party without due process of law and without the prompt payment of just and effective compensation.” The Chamber notes a difference in terminology between the two authentic texts (English and Italian); the word “taking” is wider and looser than “expropriazione”. In the contention of the United States, first, both the Respondent’s act of requisitioning the ELSI plant and its subsequent acts in acquiring the plant assets, and work-in-progress, singly and in combination constitute takings of property without due process of law and just compensation. Secondly, the United States claims that, by interference with the bankruptcy proceedings, the Respondent proceeded through the ELTEL company to acquire the ELSI plant and assets for less than fair market value. The Chamber 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 ELSI for far less than market value. What is thus alleged by the Applicant, if not an overt expropriation, might be regarded as a disguised expropriation; because, at the end of the process, it is indeed tide to property itself that is at stake. The United States had, however, during the oral proceedings, disavowed any allegation that the Italian authorities were parties to a conspiracy to bring about the change of ownership. Assuming, though without deciding, that “expropriazione” might be wide enough to include a disguised expropriation, account has further to be taken of the Protocol appended to the FCN Treaty, extending Article V, paragraph 2, to “interests held directly or indirectly by nationals” of the Parties. The Chamber finds that it is not possible in this connection to ignore ELSI’s financial situation and the consequent decision to close the plant and put an end to the company’s activities. It cannot regard any of the acts complained of which occurred subsequent to the bankruptcy as breaches of Article V, paragraph 2, in the absence of any evidence of collusion, which is now no longer even alleged. Even if it were possible to see the requisition as having been designed to bring about bankruptcy, as a step towards disguised expropriation, then, if ELSI 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. Furthermore 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 Chamber’s view, amount to a “taking” contrary to Article V unless it constituted a significant deprivation of

Raytheon and Machlett’s interest in ELSI’s plant; as might have been the case if, while ELSI remained solvent, the requisition had been extended and the hearing of the administrative appeal delayed. In fact the bankruptcy of ELSI transformed the situation less than a month after the requisition. The requisition could therefore only be regarded as significant for this purpose if it caused or triggered the bankruptcy. This is precisely the proposition which is irreconcilable with the findings of the municipal courts, and with the Chamber’s conclusions above. Article I of Supplementary Agreement to FCN Treaty (paras. 120-130) Article I of the Supplementary Agreement to the FCN Treaty, which confers rights not qualified by national or most-favoured-nation standards, provides as follows: “The nationals, corporations and associations of either High Contracting Party shall not be subjected to arbitrary or discriminatory measures within the territories of the other High Contracting Party resulting particularly in: (a) preventing their effective control and management of enterprises which they have been permitted to establish or acquire therein; 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 (loans, shares or otherwise), materials, equipment, services, processes, patents, techniques or otherwise. Each High Contracting Party undertakes not to discriminate against nationals, corporations and associations of the other High Contracting Party as to their obtaining under normal terms the capital, manufacturing processes, skills and technology which may be needed for economic development.” The answer to the Applicant’s claim that the requisition was an arbitrary or discriminatory act which violated both the “(a)” and the “(b)” clauses of the Article is the absence of a sufficiently palpable connection between the effects of the requisition and the failure of ELSI to carry out its planned orderly liquidation. However, the Chamber considers that the effect of the word “particularly”, introducing the clauses “(a)” and “(b)”, suggests that the prohibition of arbitrary (and discriminatory) 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. It is necessary, therefore, to examine whether the requisition was, or was not, an arbitrary or discriminatory act of itself. The United States claims that there was “discrimination” in favour of IRI, an entity controlled by Italy; there is, however, no sufficient evidence before the Chamber to support the suggestion that there was a plan to favour IRI at the expense of ELSI, and the claim of “discriminatory measures” in the sense of the Supplementary Agreement must therefore be rejected.

In order to show that the requisition order was an “arbitrary” act in the sense of the Supplementary Agreement, the Applicant has relied (inter alia) upon the status of that order in Italian law. It contends that the requisition “was precisely the sort of arbitrary action which was prohibited” by Article I of the Supplementary Agreement, in that “Under both the Treaty and Italian law, the requisition was unreasonable and improperly motivated”; it was “found to be illegal under Italian domestic law for precisely this reason”. Though examining the decisions of the Prefect of Palermo and the Court of Appeal of Palermo, the Chamber 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. By itself, and without more, unlawfulness cannot be said to amount to arbitrariness. The qualification given to an act by a municipal authority (e.g., as unjustified, or unreasonable or arbitrary) may be a valuable indication, but it does not follow that the act is necessarily to be classed as arbitrary in international law. Neither the grounds given by the Prefect for annulling the requisition, nor the analysis by the Court of Appeal of Palermo of the Prefect’s decision as a finding that the Mayor’s requisition was an excess of power, with the result that the order was subject to a defect of lawfulness, signify, in the Chamber’s view, necessarily and in itself any view by the Prefect, or by the Court of Appeal of Palermo, that the Mayor’s act was unreasonable or arbitrary. Arbitrariness is a willful disregard of due process of law, an act which shocks, or at least surprises, a sense of juridical propriety. Nothing in-the decision of the Prefect, or in the judgment of the Court of Appeal of Palermo, conveys any indication that the requisition order of the Mayor was to be regarded in that light. Independently of the findings of the Prefect or of the local courts, the Chamber considers that it cannot be said to have been unreasonable or merely capricious for the Mayor to seek to use his powers in an attempt to do something about the situation in Palermo at the moment of the requisition. The Mayor’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. These are not at all the marks of an “arbitrary” act. Accordingly, there was no violation of Article I of the Supplementary Agreement. Article VII of FCN Treaty (paras. 131-135) Article VII of the FCN Treaty, in four paragraphs, is principally concerned with ensuring the right “to acquire, own and dispose of immovable property or interests therein [in the Italian text, “beni immobili o . . . altri diritti real)”] within the territories of the other High Contracting Party”.

The Chamber notes the controversy between the Parties turning on the difference in meaning between the English “interests”, and the Italian, “diritti reali)”, and the problems arising out of the qualification, by the Treaty, of the group of rights conferred by this Article, laying down alternative standards, and subject to a proviso. The Chamber considers, however, that, for the application of this Article, there remains precisely the same difficulty as in trying to apply Article III, paragraph 2, of the FCN Treaty: what really deprived Raytheon and Machlett, as shareholders, of their right to dispose of ELSI’s real property, was not the requisition but the precarious financial state of ELSI, ultimately leading inescapably to bankruptcy. In bankruptcy the right to dispose of the property of a corporation no longer belongs even to the company, but to the trustee acting for it; and the Chamber has already decided that ELSI was on a course to bankruptcy even before the requisition. The Chamber therefore does not find that Article VII of the FCN Treaty has been violated Having found that the Respondent has not violated the FCN Treaty in the manner asserted by the Applicant, it follows that the Chamber rejects also the claim for reparation made in the Submissions of the Applicant. B. Criminal Responsibility John Murphy, International Crimes (NOT AVAILABLE) M. Cheri Bassiouni, Characteristics Of International Criminal Law Conventions (NOT AVAILABLE) ILC Draft Articles on State responsibility, Article 19, in ILC Yearbook part 2 (NOT AVAILABLE) Rome Statute of the International Criminal Court Do men check out other men? i only check out the "worthy" members of my gender. i believe it's perfectly normal. it's not like i'd jump into bed with every cute guy i meet. i still like to think of myself as a decent, conservative chick with an old-fashioned catholic upbringing. now tell me... is that so wrong?! ED VII. Enforcement of Claims A. Admissibility of Claims Brownlie, Principles of Public International Law, supra

B. Causes of Action Brownlie, State Responsibility (NOT AVAILABLE) (1) On pp. 97-98. Take note of the Canadian Note of Jan 23, 1979 to the Soviet Ambassador, in connection with(2) pp. 277-283 (Appendix II): “Canadian Claim for Damage Caused by Soviet Cosmos” Notes: On International Responsibility - legal consequence of an illegal act or internationally wrongful conduct used in the codification form of the International Law Commission on the concept of imputability or attribution— extended to establish the connection between the state and the wrongful act proposition: IR arises when there is an act or omission in breach of legal duty imputable or attributable to the State in general terms: where there is no reason to impute or attribute the act to the state, then there is failure to attach IR to that state. In the later draft of the ILC, “imputed” changed to “attributed”- maybe because when you impute a motive, there is fiction, it may not be true and the other Sate may say, bakit ka nagbibintang!! What is to be established first in the state responsibility issue is the existence of the legal duty. Once established, it will be clear which state has to perform legal duty. May a state commit and be held responsible for a wrongful act? A

state

may

commit

an

act

which

is

characterized by IL as wrongful. It is a norm of general IL that “every internationally wrongful act of a state entails the IP of that state.”

When does a wrongful act of a state arise under IL? This arises when an act or omission attributable to a state constitutes breach of its obligation under IL at the time when the obligation was in force for that state. What conduct on the part of the organs of a state may be considered as an act of that state from the standpoint of state responsibility? Reflecting general customary law is Article 6 of the Draft Articles on State Responsibility adopted by the ILC which reads: “The conduct of the State shall be considered as an act of the state under IL whether that organ belongs to the constituent, legislative, executive, judicial or other power, whether its functions are of an international or an internal character and whether it holds a superior or a subordinate position in the organization of the state.” Will the conduct of an organ or official of a state constitute a wrongful act if it is performed ultra vires or in violation of law? Expressing a widely held position among wellknown publicists or by arbitral tribunals is Article 10 of the ILC Draft which reads” “The conduct of an organ of a state or a territorial government entities, or of an entity empowered to exercise elements of the governmental authority, such organ having acted in that capacity, shall be considered as an act of the state under IL even if, in that particular case the organ exceeded its competence according to

internal law or contravened concerning its activity.”

instructions

What is the legal consequence of a wrongful act? The opinion of the PCIJ in the Chorzow factory Case is instructive, thus…”it is a principle of IL and even a general conception of law, that any breach of an engagement involves an obligation to make reparation. The essential principle contained in the actual notion of an illegal act is that reparation must, as far as possible, wipe out all the consequences of the illegal act and re-establish the situation which would, in all probability, have existed if that act had not been committed. Restitution of this kind, or if this is not possible, payment of a sum corresponding to the value which a restitution in kind would bear; the award, if need be covered by restitution in kin or payment in place of it- such are principles which should serve to determine the amount of compensation due for an act contrary to IL.”

C. Judicial Settlement of Disputes Brownlie, Principles of Public International Law, supra Sands, Manual on International Courts and tribunals (NOT AVAILABLE) INSTEAD: THINGS U NEED TO KNOW ABOUT THE ICJ: Only States may be parties to cases before the Court

It is the function of the ICJ to decide in accordance with international law disputes of a legal nature that are submitted to it by States. In doing so it is helping to achieve one of the primary aims of the United Nations, which, according to the Charter, is to bring about the settlement of disputes by peaceful means and in conformity with the principles of justice and international law. An international legal dispute is, as the PCIJ put it, "A disagreement on a question of law or fact, a conflict, a clash of legal views or of interests." Such a dispute between opposing parties may eventually lead to contentious proceedings before an international tribunal. It is conceivable that such proceedings could be between a State on the one hand and an international organization, a collectivity or an individual on the other. Within their respective fields of jurisdiction, institutions such as the Court of Justice of the European Communities in Luxembourg or the European Court of Human Rights in Strasbourg would be entitled to hear such disputes. This is not the case, however, with the ICJ, to which no case can be submitted unless both applicant and respondent are States. Despite various proposals and even the existence of a treaty providing for the possibility of proceedings before the Court between an international agency and a State, neither the United Nations nor any of its specialized agencies can be a party in contentious proceedings before the ICJ. As for private interests, these can only form the subject of proceedings in the International Court of Justice if a State, relying on international law, takes up the case of one of its nationals and invokes against another State the wrongs which its national claims to have suffered at the latter's hands, the dispute thus becoming one between States (e.g., Ambatielos, Anglo-Iranian Oil Co., Nottebohm, Interhandel, Barcelona Traction, Light and Power Company, Limited, Elettronica Sicula S.p.A. (ELSI)). Like any other court, the ICJ can only operate within the constitutional limits that have been laid down for it. Hardly a day passes without the Registry receiving written or oral applications from private persons. However heartrending, however well founded such applications may be, the ICJ is unable to entertain them and a standard reply is always sent: "Under Article 34 of the Statute, only States may be parties in cases before the Court." Today, the Court is open to practically every State in the world:

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States Members of the United Nations, which, by signing the Charter, accepted its obligations and thus at the same time became parties to the Statute of the ICJ, which forms an integral part of the Charter; those States (Nauru and Switzerland) which have become parties to the Statute of the ICJ without signing the Charter or becoming members of the United Nations; these States have had to satisfy certain conditions laid down by the General Assembly upon the recommendation of the Security Council: acceptance of the provisions of the Statute, an undertaking to comply with the decisions of the ICJ and an undertaking to make an annual contribution to the expenses of the Court; any other State which, whilst neither a member of the United Nations nor a party to the

Statute of the ICJ, has deposited with the Registry of the ICJ a declaration that meets the requirements laid down by the Security Council whereby it accepts the jurisdiction of the Court and undertakes to comply in good faith with the Court's decisions in respect of all or a particular class or classes of disputes. Many States have found themselves in this situation before becoming members of the United Nations; having concluded treaties providing for the jurisdiction of the Court, they deposited with the Registry the necessary declaration to be able to appear before the Court. Where they have been parties to a case, they have been required to contribute to the costs thereof. The jurisdiction of the Court so far as concerns the parties entitled to appear before it — jurisdiction ratione personae — covers those States listed above. In other words, in order that a dispute may validly be submitted to the Court it is necessary that the dispute should be between two or more such States. A case can only be submitted to the Court with the consent of the States concerned Jurisdiction ratione personae is not, however, in itself enough. A fundamental principle governing the settlement of international disputes is that the jurisdiction of an international tribunal depends in the last resort on the consent of the States concerned. Accordingly, no sovereign State can be made a party in proceedings before the Court unless it has in some manner or other consented thereto. It must have agreed that the dispute or the class of disputes in question should be dealt with by the Court. It is this agreement that determines the jurisdiction of the Court so far as the particular dispute is concerned — the Court's jurisdiction ratione materiae. It is true that Article 36 of the Charter provides that the Security Council, which may at any stage of a dispute recommend appropriate procedures or methods of adjustment, is to "take into consideration that legal disputes should as a general rule be referred by the parties to the International Court of Justice". In the Corfu Channel case, however, the ICJ did not consider a recommendation by the Security Council to this effect sufficient to confer jurisdiction on the Court independently of the wishes of the parties to the dispute. Special agreements The way in which States manifest consent to their disputes of a legal nature being decided by the ICJ is defined in Article 36 of the Statute. Paragraph 1 thereof provides: "The jurisdiction of the Court comprises all cases which the parties refer to it and all matters specially provided for in the Charter of the United Nations or in treaties and conventions in force." The first possibility envisaged here is where the parties bilaterally agree to submit an already existing dispute to the ICJ and thus to recognize its jurisdiction over that particular case. Such a special agreement conferring jurisdiction on the Court is often referred to as a compromis (its name in French). Once such a special agreement has been lodged with the Court, the latter can entertain the case. Eleven disputes were referred to the PCIJ and 13 cases have been brought before the ICJ in this way. It can also happen that a dispute is brought before the Court while at the time of the institution of

the proceedings only one of the disputing States has validly recognized its jurisdiction over the case in question and the other has not, and that this latter State recognizes the Court's jurisdiction subsequently; this is a fairly rare situation and is known as forum prorogatum (*Mavrommatis Jerusalem Concessions, *Rights of Minorities in Upper Silesia, Corfu Channel). It has also happened ten times that a State has instituted proceedings in the ICJ whilst recognizing that the opposing party has not recognized the Court's jurisdiction and inviting it to do so: hitherto, this has always met with a negative response. Treaties and conventions The second possibility envisaged in Article 36, paragraph 1, of the Statute is where treaties or conventions in force confer jurisdiction on the Court. It has become a general international practice to include in international agreements — both bilateral and multilateral — provisions, known as jurisdictional clauses, providing that disputes of a given class shall or may be submitted to one or more methods for the pacific settlement of disputes. Numerous clauses of this kind have provided and still provide for recourse to conciliation, mediation or arbitration; others provide for recourse to the Court, either immediately or after the failure of other means of pacific settlement. Accordingly, the States signatory to such agreements may, if a dispute of the kind envisaged in the jurisdictional clause of the treaty arises between them, either institute proceedings against the other party or parties by filing a unilateral application, or conclude a special agreement with such party or parties providing for the issue to be referred to the ICJ. The wording of such jurisdictional clauses varies from one treaty to another. Model jurisdictional clauses have been prepared by, inter alia, the Institute of International Law (1956). Jurisdictional clauses are to be found in treaties or conventions •

•

having as their object the pacific settlement of disputes between two or more States and providing in particular for the submission to judicial decision of specified classes of conflicts between States subject sometimes to certain exceptions; having an object other than the pacific settlement of disputes, in which case the jurisdictional clause of the treaty or convention in question will refer solely to disputes concerning the interpretation or application of the treaty or convention or only some of its provisions (e.g., disputes where the issue relates to a peremptory rule of international law — jus cogens). Such clauses may be included in the body of the text or in a protocol annexed to the treaty. They may likewise be compulsory or optional and may be open to reservations or not.

Nowadays such jurisdictional clauses confer jurisdiction on the ICJ. Those that were drawn up before the creation of the United Nations conferred it on the PCIJ. In order to prevent these from losing their effectiveness, the present Statute provides that the ICJ is to be substituted for the PCIJ. Provided that the agreement to which they relate is still in force and that the States concerned are parties to the Statute of the ICJ, any dispute that arises can be submitted to the ICJ in the same way as it could have been to the PCIJ. The few hundred treaties or conventions that confer jurisdiction on the Court in this way will normally have been registered with the Secretariat of the League or the United Nations and will appear in the collections of treaties

published by those two Organizations. In addition, the PCIJ and the ICJ have published lists of and extracts from such treaties and conventions. It is not always easy to determine which of them are still in force. They probably number some 400 or so, some being bilateral, involving about 60 States, and others multilateral, involving a greater number of States. Declarations Accepting the Compulsory Jurisdiction of the Court A third means of consent to the Court's jurisdiction is described in paragraphs 2 and 3 of Article 36 of the Statute: "2. The States parties to the present Statute may at any time declare that they recognize as compulsory ipso facto and without special agreement, in relation to any other State accepting the same obligation, the jurisdiction of the Court in all legal disputes concerning: (a) the interpretation of a treaty; (b) any question of international law; (c) the existence of any fact which, if established, would constitute a breach of an international obligation; (d) the nature or extent of the reparation to be made for the breach of an international obligation. 3. The declarations referred to above may be made unconditionally or on condition of reciprocity on the part of several or certain States, or for a certain time." This so-called "optional clause" system has led to the creation of a group of States who stand as it were in the same position towards the Court as the inhabitants of a country stand towards the courts of that country. Each State belonging to this group has in principle the right to bring any one or more other States belonging to the group before the Court by filing an application instituting proceedings with the Court, and, conversely, it has undertaken to appear before the Court should proceedings be instituted against it by one or more such other States. This is why such declarations are known as "declarations of acceptance of the compulsory jurisdiction of the Court". These declarations, which take the form of a unilateral act of the State concerned, are deposited with the Secretary-General of the United Nations and are generally signed by the foreign minister of the State concerned or by its representative to the United Nations. They are published in the United Nations Treaty Series and in the I.C.J. Yearbook. Despite solemn appeals by the General Assembly of the United Nations, by the Secretary-General of the United Nations (in the introduction to his annual Report on the Work of the Organization, in 1970 and 1974) and by the Institute of International Law (1959), they are fewer in number than had been hoped. In July 1996 there were only 59, from the following regional groups: Africa 17 (11 of them since 1966); Latin America 9; Asia 5; Europe and other States 28. It must be added that 12 other States that had at one time recognized the compulsory jurisdiction of the ICJ have withdrawn their acceptance of such jurisdiction, 7 of them after they had been made respondents in proceedings before the Court. As with treaties or conventions, the Statute provides that declarations that refer to the PCIJ shall be regarded as applying to the ICJ. Seven of these were still in force in 1996, but 11 countries that had at one time recognized the compulsory jurisdiction of the PCIJ never did so in respect of the ICJ. The table below shows the relative increase and decrease in declarations over the years.

Matters are further complicated by reservations to the acceptances of compulsory jurisdiction which serve to limit their scope. Such reservations are to be found in most such declarations (41 out of the 59 in force in July 1995). They usually recapitulate some of the wording of paragraphs 2 and 3 of Article 36, including especially points (a), (b), (c) and (d) (15 declarations). The declarations are made for a specific period, generally for five years with tacit renewal — as a rule — and usually provide for the declarations to be terminated by simple notice, such notice to take effect after a specified time or immediately. The most frequently employed reservations relate to disputes — • •

• • • • • •

for which another means of peaceful settlement is provided; arising before a certain date or concerning situations or facts anterior to that date, generally the date on which the State making the declaration first accepted the Court's compulsory jurisdiction; relating to matters falling within the domestic jurisdiction of the declaratory State, as determined by international law or by the State making the declaration itself; arising during or out of hostilities; with certain States: as between members of the Commonwealth or with States with which the State making the declaration does not have diplomatic relations; for the specific purpose of which the other party seems to have made its declaration of acceptance of compulsory jurisdiction; concerning certain multilateral treaties; concerning certain aspects of the law of the sea.

The two most important of these reservations, that relating to other methods of pacific settlement, which is found in 33 declarations, and that relating to matters of domestic jurisdiction, which is found in 23 declarations, correspond to Article 95 and Article 2 (7) of the United Nations Charter respectively. These provide that nothing in the Charter: "shall prevent Members of the United Nations 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"; "shall authorize the United Nations to intervene in matters which are essentially within the domestic jurisdiction of any State". With regard to the latter, it is indisputable that every sovereign State has, under international law, what is known as its reserved domain, and it would be inconceivable for the ICJ to decide issues relating thereto. Nevertheless, as the PCIJ made clear in one of its first decisions, "The question whether a certain matter is or is not solely within the jurisdiction of a State is an essentially relative question; it depends upon the development of international relations." This is no doubt one of the reasons why certain States have excluded from their recognition of the compulsory jurisdiction of the ICJ questions falling essentially within their field of domestic

jurisdiction as "determined" by the State concerned or which such State "considers" essentially within its domestic jurisdiction. Such a reservation operates automatically: it is sufficient for a government relying upon such a reservation to declare that a question in relation to which proceedings have been brought against it in the ICJ falls within its domestic jurisdiction for the Court to be deprived of jurisdiction over the case. Ten countries originally employed such a formula in their declarations accepting the compulsory jurisdiction of the Court. The reservation was invoked in the Certain Norwegian Loans and Interhandel cases. The ICJ upheld the objection based on this reservation in the former case and did not deal with it in the latter case since it upheld an objection based on other grounds. Some Members of the Court expressed the opinion that such a reservation was contrary to the Statute, so that, according to certain judges, the reservation as such was null and void, whereas, according to others, the whole declaration accepting compulsory jurisdiction was null and void (1957, 1959). Following this, the Institute of International Law (1959) and various statesmen and jurists called upon those governments that had included such a reservation in their declaration to withdraw it. Certain States did so. In 1996, five declarations included a clause of this kind. The importance of such reservations is increased by the condition of reciprocity, which expressly or by implication attaches to all declarations of acceptance of the Court's compulsory jurisdiction. This means that where a dispute arises between two or more States that have made a declaration, the reservations made by any of them can be relied upon against it by all the others. In other words, the Court's jurisdiction over the case is restricted to those classes of dispute that have not been excluded by any of them. If, for instance, there are two States, one of which has accepted the compulsory jurisdiction of the Court only in respect of disputes arising after the date of its acceptance of such compulsory jurisdiction, such date being 1 February 1924, and the other State has excluded disputes relating to situations or facts prior to 21 August 1928, the ICJ, irrespective of which State was the applicant, would have jurisdiction only to hear cases arising after this latter date. Consequently, bearing in mind that the number of States that have accepted the compulsory jurisdiction of the ICJ is already limited, (see table) it will be seen that this jurisdiction is general in respect of only a few of this already restricted number, being limited to various extents in respect of all the others. D. Individual Enforcement K. Zemanek, The Legal Foundations on the International System (NOT AVAILABLE) E. Collective Enforcement: International Peace and Security VIII. Settlement of International Disputes Murty, Settlement of Disputes Dispute: a disagreement on a point of law or fact, a conflict of legal views or interests between the parties, may be said to have arisen when a party presents to another a specific claim based

upon an alleged breach of law & the latter rejects it Parties: a. between 2 states b. between states and int’l institutions c. between int’l institutions d. between states and private persons Kinds: a. legal – WON legal depends on the subjective evaluation of the parties characterizing it political – not suitable for settlement by adjudication – other view is that it is suitable given the willingness of the parties to abide by judicial verdict b. Justiciable and non-justiciable Procedures of Settlement under contemporary IL A. Diplomatic Procedure – to secure a solution by means of agreement between parties 1. Negotiation described as the legal & orderly administrative process by which governments in the exercise of their unquestionable powers, conduct their relations w/one another and discuss, adjust and settle their differences proceeds from Art 33 (1) of UN Charter An obligation to enter into nego does not imply an obligation to reach an agreement May be carried on by ordinary diplomatic officials or officials specially appointed of the highest rank 2. Good Offices - method by which a 3rd 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 3. Mediation a more active involvement wherein the 3rd party does not merely provide the opportunity for the parties to negotiate but also actively participates in their discussions to reconcile their conflicting terms. The suggestions of the mediator are merely suggested and may be rejected w/out offense by the parties involved.

4. Inquiry procedure 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 & conscientious investigation findings are not conclusive upon disputing states but they may exert a strong moral influence in the settlement of conflict. 5. Conciliation combines the advantages of inquiry and mediation and their limitations calls for active participation of 3rd party for the settlement of dispute but recommendations are not binding Unlike in mediation, services of conciliator are not offered by 3rd party but are solicited by the parties in dispute * No uniformly accepted definition for other diplomatic procedure but they have one thing in common: 3rd party comes into the picture B. Adjucative Procedure – settled by a 3rd party the determination of the questions of law and fact involved in the question 1. Arbitration solution of a dispute by a 3rd 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. Proceedings are essentially judicial and ward is binding on parties by previous agreement. 2. Judicial Settlement (JS) ICJ now entrusted with settlement of int’l dispute Jurisdiction of ICJ is dependent on the agreement of the parties to submit to and be bound by its decisions Arbitration & JS are similar in the nature of proceedings, binding character of decisions, and that the disputes submitted are legal rather than political. They differ on the following: i. judicial tribunal is pe-existing and a permanent body while arbtral tribunal is an ad hoc created and filled by the parties themselves ii. jurisdiction in JS is usually compulsory; submission to arbitration is voluntary iii. Law applied in JS is independent of the will of the parties; in arbitration, it may be limited by parties

C. Procedures w/in the framework of int’l institutions – are essentially diplomatic or adjudicative but which have some special characteristics of their own. 1. League of Nations – ended in 1931 Provided for (a) arbitration and judicial settlement and (b) diplomatic procedure w/c comprised the traditional secret diplomacy, inquiry, mediation, diplomacy by conference and parliamentary diplomacy 2. UN: Security Council (SC) maintenance of peace and security- primary objective under the Charter Methods: diplomatic processes and adjudication It limits itself to disputes which are likely to endanger maintenance of int’l peace and security and leaves less serious disputes to the parties to settle among themselves by means of their choice. Upon parties request, Security Council can make recommendations. SC has power to investigate any dispute, call upon parties to settle disputes by peaceful means, can recommend appropriate procedure of settlement and adjustments, can facilitate debates and discussions behind the scenes to settle disputes. 3. General Assembly It may discuss any questions or matter w/in scope of present charter. It can discuss and make recommendations on disputes or situations w/c threaten peace less immediately than those w/c SC is authorized to deal with. It has right to deal with situations of breaches of peace and aggression if SC fails to act due to veto of any permanent member. 4. Other Organs Economic and Social Council can exercise its function of discussion Secretariat through Sec Gen has more importance. As chief administrative officer, he is assigned a significant function in settlement of int’l dispute. He can bring to attention of SC any matter which in his opinion may threaten the maintenance of peace and security. He has been vested with diplomatic as well as operational responsibilities. 5. Religious Organization Org of African Unity, Arab League, the Org of American States, North Atlantic Treaty Org (NATO) These orgs may be resorted to by the parties on their own volition or taken by the body itself at its own instance if allowed by agreement of members. UN Charter, 33-38

Article 33 1. The parties to any dispute, the continuance of which is likely to endanger the maintenance of international peace and security, shall, first of all, seek a solution by negotiation, enquiry, mediation, conciliation, arbitration, judicial settlement, resort to regional agencies or arrangements, or other peaceful means of their own choice. 2. The Security Council shall, when it deems necessary, call upon the parties to settle their dispute by such means. Article 34 The Security Council may investigate any dispute, or any situation which might lead to international friction or give rise to a dispute, in order to determine whether the continuance of the dispute or situation is likely to endanger the maintenance of international peace and security. Article 35 1. Any Member of the United Nations may bring any dispute, or any situation of the nature referred to in Article 34, to the attention of the Security Council or of the General Assembly. 2. A state which is not a Member of the United Nations may bring to the attention of the Security Council or of the General Assembly any dispute to which it is a party if it accepts in advance, for the purposes of the dispute, the obligations of pacific settlement provided in the present Charter. 3. The proceedings of the General Assembly in respect of matters brought to its attention under this Article will be subject to the provisions of Articles 11 and 12. Article 36 1. The Security Council may, at any stage of a dispute of the nature referred to in Article 33 or of a situation of like nature, recommend appropriate procedures or methods of adjustment. 2. The Security Council should take into consideration any procedures for the settlement of the dispute which have already been adopted by the parties. 3. In making recommendations under this Article the Security Council should also take into consideration that legal disputes should as a general rule be referred by the parties to the

International Court of Justice in accordance with the provisions of the Statute of the Court. Article 37 1. Should the parties to a dispute of the nature referred to in Article 33 fail to settle it by the means indicated in that Article, they shall refer it to the Security Council. 2. If the Security Council deems that the continuance of the dispute is in fact likely to endanger the maintenance of international peace and security, it shall decide whether to take action under Article 36 or to recommend such terms of settlement as it may consider appropriate. Article 38 Without prejudice to the provisions of Articles 33 to 37, the Security Council may, if all the parties to any dispute so request, make recommendations to the parties with a view to a pacific settlement of the dispute. Manila Declaration on the Peaceful Settlement of International Disputes (May 1982) (NOT AVAILABLE) IX. International Peace and Security: Fundamental Principles in Relations Among States A. In General UN Charter, 1 and 2; Chaps. 7 and 9 UN Declaration on Principles of International Law Concerning Friendly Relations and Cooperation Among States, in Magallona, Documents in Contemporary International Law (NOT AVAILABLE) Definition of Aggression, in Magallona Having considered the report of the Special Committee on the Question of Defining Aggression, established pursuant to its resolution 2330(XXII) of 18 December 1967, covering the work of its seventh session held from 11 March to 12 April 1974, including the draft Definition of Aggression adopted by the Special Committee by consensus and recommended for adoption by the General Assembly,[FN1] Deeply, convinced that the adoption of the Definition of Aggression would contribute to the strengthening of international peace and security,

1. Approves the Definition of Aggression, the text of which is annexed to the present resolution; 2. Expresses its appreciation to the Special Committee on the Question of Defining Aggression for its work which resulted in the elaboration of the Definition of Aggression; 3. Calls upon all States to refrain from all acts of aggression and other uses of force contrary to the Charter of the United Nations and the Declaration on Principles of International Law concerning Friendly Relations and Cooperation among States in accordance with the Charter of the United Nations;[FN2] 4. Calls the attention of the Security Council to the Definition of Aggression, as set out below, and recommends that it should, as appropriate, take account of that Definition as guidance in determination, in accordance with the Charter, the existence of an act of aggression. 2319th plenary meeting 14 December 1974 Annex Definition of Aggression The General Assembly, Basing itself on the fact that one of the fundamental purposes of the United Nations 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, Recalling that the Security Council, in accordance with Article 39 of the Charter of the United Nations, shall determine the existence of any threat to the peace, breach of the peace or act of aggression and shall make recommendations, or decide what measures shall be taken in accordance with Articles 41 and 42, to maintain or restore international peace and security, Recalling also the duty of States under the Charter to settle their international disputes by peaceful means in order not to endanger international peace, security and justice, Bearing in mind that nothing in this Definition shall be interpreted as in any way affecting the scope of the provisions of the Charter with respect to the functions and powers of the organs of the United Nations, Considering also that, since aggression is the most serious and dangerous form of the illegal use of force, being fraught, in the conditions created by the existence of all types of weapons of

mass destruction, with the possible threat of a world conflict and all its catastrophic consequences, aggression should be defined at the present stage, Reaffirming the duty of States not to use armed force to deprive peoples of their right to selfdetermination, freedom and independence, or to disrupt territorial Integrity, Reaffirming also that the territory of a State shall not be violated by being the object, even temporarily, of military occupation or of other measures of force taken by another State in contravention of the Charter, and that it shall not be the object of acquisition by another State resulting from such measures or the threat thereof, Reaffirming also the provisions of the Declaration on Principles of International Law concerning Friendly Relations and Cooperation among States in accordance with the Charter of the United Nations, Convinced that the adoption of a definition of aggression ought to have the effect of deterring a potential aggressor, would simplify the determination of acts of aggression and the implementation of measures to suppress them and would also facilitate the protection of the rights and lawful interests of, and the rendering of assistance to, the victim, Believing that, although the question whether an act of aggression has been committed must be considered in the light of all the circumstances of each particular case, it is nevertheless desirable to formulate basic principles as guidance for such determination, Adopts the following Definition of Aggression:[FN3] Article I Aggression is the use of armed force by a State against the sovereignty, territorial integrity or political independence of another State, or in any other manner inconsistent with the Charter of the United Nations, as set out in this Definition. Explanatory note: In this Definition the term "State": (a) Is used without prejudice to questions of recognition or to whether a State is a member of the United Nations; (b) Includes the concept of a "group of States" where appropriate. Article 2 The First use of armed force by a State in contravention of the Charter shall constitute prima facie evidence of an act of aggression although the Security Council may, in conformity with the Charter, conclude that a determination that an act of aggression has been committed would not

be justified in the light of other relevant circumstances, including the fact that the acts concerned or their consequences are not of sufficient gravity. Article 3 Any of the following acts, regardless of a declaration of war, shall, subject to and in accordance with the provisions of article 2, qualify as an act of aggression: (a) The invasion or attack by the armed forces of a State of the territory of another State, or any military occupation, however temporary, resulting from such invasion or attack, or any annexation by the use of force of the territory of another State or part thereof, (b) Bombardment by the armed forces of a State against the territory of another State or the use of any weapons by a State against the territory of another State; (c) The blockade of the ports or coasts of a State by the armed forces of another State; (d) An attack by the armed forces of a State on the land, sea or air forces, or marine and air fleets of another State; (e) The use of armed forces of one State which are within the territory of another State with the agreement of the receiving State, in contravention of the conditions provided for in the agreement or any extension of their presence in such territory beyond the termination of the agreement; (f) The action of a State in allowing its territory, which it has placed at the disposal of another State, to be used by that other State for perpetrating an act of aggression against a third State; (g) The sending by or on behalf of a State of armed bands, groups, irregulars or mercenaries, which carry out acts of armed force against another State of such gravity as to amount to the acts listed above, or its substantial involvement therein. Article 4 The acts enumerated above are not exhaustive and the Security Council may determine that other acts constitute aggression under the provisions of the Charter. Article 5 1. No consideration of whatever nature, whether political, economic, military or otherwise, may serve as a justification for aggression.

2. A war of aggression is a crime against international peace. Aggression gives rise to international responsibility. 3. No territorial acquisition or special advantage resulting from aggression is or shall be recognized as lawful. Article 6 Nothing in this Definition shall be construed as in any way enlarging or diminishing the scope of the Charter, including its provisions concerning cases in which the use of force is lawful. Article 7 Nothing in this Definition, and in particular article 3, could in any way prejudice the right to selfdetermination, freedom and independence, as derived from the Charter, of peoples forcibly deprived of that right and referred to in the Declaration on Principles of International Law concerning Friendly Relations and Cooperation among States in accordance with the Charter of the United Nations, particularly peoples under colonial and racist regimes or other forms of alien domination: nor the right of these peoples to struggle to that end and to seek and receive support, in accordance with the principles of the Charter and in conformity with the abovementioned Declaration. Article 8 In their interpretation and application the above provisions are interrelated and each provision should be construed in the context of the other provisions. ___________________________________________ FOOTNOTES 1. Official Records of the General Assembly, Twenty-ninth Session, Supplement No. 19 (A/9619 and Corr. 1). 2. Resolution 2625 (XXV), annex. 3. Explanatory notes on articles 3 and 5 are to be found in paragraph 20 of the Report of the Special Committee on the Question of Defining Aggression (Official Records of the General Assembly, Twenty-ninth Session, Supplement No. 19 (A/9619 and Corr. 1). Statements on the Definition are contained in paragraphs 9 and 10 of the report of the Sixth Committee (A/9890 Notes: Aggression is the use of armed force by a

state against the sovereignty or territorial integrity or political independence of another state, or in any manner set out by the UN Charter… Acts of Aggression: 1. invasion or attack of another state, military occupation however temporary, annexation by the use of force 2. bombardment or use of any weapons against the territory of another state 3. blockade of the ports of coasts of another state 4. attacking another state’s armed forces by air, land, sea… 5. use of armed forces of for example, the u.s. against the Philippines when they were still in subic, or extension of their stay there beyond what was agreed upon 6. allowing a territory placed at a state’s disposal by another state, for use in perpetrating an act of aggression against a third state 7. sending out armed bands, mercenaries or irregulars to carry out armed force against another state of such gravity as to amount to the above-listed acts. Here the term “state” is used: 1. 2.

without prejudice to questions of recognition or whether a state is a member of the UN or not includes the concept of a “group of states” where appropriate.

Waldock, The Regulation of the Use of Force by Individual States in International Law Before League of Nations, IL did not regulate war, only forcible measures short of war. Such measures are:

retorsion – threat of imposing higher customs duties, tariffs etc; reprisal- injured state legitimately imposes on offending state reparation when a) that state violated IL b) there had been previous unsuccessful demand for rederess and c) measures were reasonably proportionate to the injury intervention- dictatorial interference in external or internal matters of a State that is injurious to its political independence and territorial integrity; Generally illegitimate except: 1) specific treaty right to intervene 2) by way way of legitimate reprisal 3) in self-defense & self protection Self-defense (D) and Self-Protection (P) D legit if: 1) actual or threatened infringement of rights of defending state 2) failure or inability of other State to use its powers to stop or prevent infringement 3) act is strictly confined to stopping or preventing infringement and reasonably proportionate. Another one of these measures, forcible measures of self-help (H), was regulated by defined principles, which principles though were weakened by the fact that escalation of measures to war itself removed the dispute from any legal dispute. Note: UN Charter prohibits war as a tool of the State Cases: Nicaragua, supra Legality of the Threat or Use of Nuclear Weapons (1996) ISSUE: is the threat or use of nuclear weapons in any circumstance permitted under international law? (Is there any international norm which specifically prohibit/authorize the use of nuclear weapons?) A. Preliminary Matters Resolved By the ICJ 1. ICJ has jurisdiction to give advisory opinion as authorized by Art. 65 (1) of the UN Charter at the request of whatever body or in accordance with the Charter & Art. 95 (1) of the UN Charter gives the GA or the SC the authority to give an advisory opinion on any legal question 2. The advisory opinion relates to a legal question within the meaning of the ICJ Statute & UN Charter, since the Ct is asked to rule on the compatibility of threat or use of nuclear weapons with the relevant principles and rules of IL. To this requires the identification of the existing principles & rules, their interpretation & application to the threat or use of nuclear weapons

3. There would be no reason for the ICJ to decline the exercise of jurisdiction beech only compelling reasons could lead it to such refusal ICJ., The purpose of the advisory function is not to settle at least directly – disputes between States, but to offer legal advice to the organ & institutions requesting the opinion. The fact that the ? put to the Ct. does not relate to a specific dispute should consequently lead the Ct to decline to give the opinion requested. 4. The Ct. is not going beyond its judicial role & would be taking upon itself a law-making capacity. The Ct. cannot legislate & it is not called upon, in the CAB, to do so. Rather, its task is to engage in its normal judicial functions of ascertaining the existence or otherwise of legal principles & rules applicable to the threat or use of nuclear weapons. The Ct. merely states the existing law & does not legislate. B. Formulation of the Question Put to the Ct. by the General Assembly There are two texts of the question, one in English and one in French. There are some criticisms on the use of the work permitted as incompatible with the basis of IL of the principles of sovereignty 7 consent. ICJ., The Ct. finds it unnecessary to pronounce on the possible divergence between the two texts of the question posed. Its real objective is clear: to determine the legality or illegality of the threat or use of nukes. C. Relevant Applicable Law ICJ., The court concludes that the most directly relevant applicable law, is that relating to the use of force enshrine in the UN Charter & 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 D. Unique Char. Of Nukes Nuclear weapons are explosive devices whose energy results from the fusion or fission of the atom. By its very nature, that process releases not only immense amount of heat & energy but also powerful & prolonged radiation. The 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. These char. renders the nukes potentially catastrophic. The destructive power of nuclear weapons cannot be contained in either space or time. They have the potential to destroy all civilization & the entire ecosystem of the planet. E. Legality/illegality of Recourse to nuclear weapons in the light of the provision of the charter relating to the threat or use of force

Ø Under the UN Charter: Art. 2 (4) Art. 51 – conditions of necessity & proportionality in the exercise of the inherent right of the individual & collective self-defense if an armed attack occurs the notions of threat & use of force stand together; possession of nukes, deterrence & threat Art. 42 – whereby the SC may take military enforcement measures in conformity with Chap. VII. ICJ: these provisions do not refer to specific weapons. They apply to any use of force regardless of the weapons employed. The Charter rather expressly prohibits, not permits the use of any specific weapon, including nukes. A 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. Purpose under the Charter. ICJ Conclusion No. 1 A threat or use of force by means of nuclear weapons that is contrary to Art. 2 (4) of the UN charter and that fails to meet all the requirements of Art. 51, is unlawful. Ø Specific rules regulating lawfulness or unlawfulness of the recourse to nuclear weapons ICJ Conclusion No. 2 Ø There is in neither customary nor conventional law any specific authorization of the threat or use of nuclear weapons ICJ Conclusion No. 3 Ø There is in neither customary nor conventional law any comprehensive and universal prohibition of the threat or use of nuclear weapons as such. A.

Unlawfulness per se: treaty law

1. Instruments prohibiting use of poisoned weapons advanced nukes should be treated the same way & thus would be prohibited under a. Second Hague Declaration of 29 July 1899 b. Art. 23 (a) of the Regulations respecting the laws & customs of war on land annexed to the Hague convention IV of 18 Oct. 1907 c. The Geneve Protocol of 17 June 1925

2. Instruments expressly prohibiting the use of certain weapons of mass destruction a. Convention of IO April 1972 of the Prohibition of the Development, Production & Stockpiling of Bacteriological (biological) & Toxin Weapons & on their destruction b. Convention of 13 Jan. 1993 on the Prohibition of the Development, Production, Stockpiling & use of Chemical Weapons & on their Destruction The Ct. does not find any specific prohibitions of recourse to nuclear weapons in treaties expressly prohibiting the use of certain weapons of mass destruction. 3. Treaties concluded in order to limit the acquisition, manufacture & possession of nukes, the deployment & testing of nukes •

Not yet resulted in a treaty of gen. prohibition of the same kind as for bacteriological & chemical weapons

A. The acquisition, manufacture & possession of nukes • Treaty of Tlatelolco of 14 Feb 1967 • Treaty of Rarotonga of 6 August 1985 B. ICJ: These 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. The Ct. notes the signing, even more recently, on 15 Dec. 1995, at Bangkok, of a Treaty on the Southeast Asia Nuclear weapon free Zone, & on 11 April 1996, at Cairo, of a treaty on the creation of N-W-F-Z in Africa. It does not however, view these elements as amounting to a comprehensive & universal conventional prohibition on the use, or the threat of use, of those weapons as such. C. Unlawfulness Per Se: Customary Law 1. Consistent practice of non-utilization of nukes a. States which hold the view that the use of nukes is illegal have endeavored to demonstrate the existence of a customary rule prohibiting this use. They refer to a consistent practice of non utilization of nukes by States since 1945 & they would see in that practice the expression of an opinion juris on the part of those who possess such weapons. b. Policy of deterrence – Some states which assert the legality of the threat & use of nuclear weapons in certain cit., invoked the doctrine & practice of deterrence in support of their argument. In their view, if nukes have not been used since 1945, it is not on acct. of an existing custom but merely because circumstances that might justify their use have fortunately not arisen.

ICJ: No opinion juris. The members of the Int’l community are profoundly divided on the matter of whether non recourse to nukes over the past 50 years constitutes the expression of an opinion juris. Under the circ. The Court does not consider itself able to find that there is such an opinion juris. 2. General Assembly resolutions affirming the illegality of nukes ICJ: The GA res. put before the Ct. declare that the use of nukes would be a direct violation of the Charter of the UN. Although those resolutions are a clear sign of deep concern regarding the problem of nukes, they still fall short of establishing the existence of an opinion juris on the illegality of the use of such weapons. 3. The Court points out that the adoption each year by the General Assembly, by a large majority, of resolutions recalling the comment of Resolution 1653 (XVI), & 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 & express prohibition of the use of nukes, a significant step forward along the road to complete nuclear disarmament. The emergence, as lex lata, of a customary rule specifically prohibiting the use of nuclear weapons as such is hampered by the continuing tensions bet. The nascent opinion juris on the hand, & still strong adherence to the pratice of deterrence on the other. Principles & Rules of International Humanitarian Law ICJ Conclusion No. 4 Ø A 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. As well as with specific obligations under treaties and other undertakings which expressly deal with nuclear weapons. Conclusions It 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. However, 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. In the long run IL, 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. It 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. There 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. B. Self-Defense UN Charter, Article 51 Nothing in the present Charter shall impair the inherent right of individual or collective selfdefence if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security. Measures taken by Members in the exercise of this right of self-defence shall be immediately reported to the Security Council and shall not in any way affect the authority and responsibility of the Security Council under the present Charter to take at any time such action as it deems necessary in order to maintain or restore international peace and security. Brownlie, The Use of Force in Self-defense (1961) Some conclusions on the state of the customary law as it had developed by 1914 • • •

•

•

•

The right of self-preservation is regarded as identical with that of self-defense The justified use of force in exercise of the right of self-preservation is identical with the operation of the doctrine of necessity The occasions for lawful intervention are identical with the justification provided by the right of self-preservations & the doctrine of necessity (intervention is applied to justified use of force, & sometimes employed by both governments and writers to describe action not intended to create a state of war. There is no clear distinction between exercise of a right to go to war in exercise of the right of self-preservation & its other forms, on the one hand, & “hostile measures short of war”. On the other. The variety of ways in which governments & writers characterize & classify the various occasions when force has been used indicates the ex post facto & illogical nature of their classifications. The confusion is traceable to a dislike of governments for open reliance on an arbitrary right to resort to war. As a result there was a practice of relying on vaguely defined grounds justifying the use of force.

Analytically, the customary right of self-preservation & the doctrine of necessity comprehend 2 situations: a. Action to enforce legal rights. This in theory would restrict the use of force to cases in which pacific settlement had failed. b. A much wider freedom of action when “security” is threatened, or the status quo is disturbed:

it is in this situation that the law ceases to have any limiting effect. The greatest obstacle to adequate legal regulation of the use of force was the right to self preservation & the related tangle of doctrines concerning necessity & intervention. The state practice of the period 1920-30 chiefly in the form of treaties, considered force to be lawful in 5 situations: 1. treaty creating a casus belli in advance 2. use of force sa a consequence of “provocation” 3. an action taken by virtue of Art. 16 of the covenant (provided for sanctions vs. the aggressor with the object of reinforcing the provisions for peaceful settlement, policing the aggressor). 4. axn in collective defense 5. force justified by the right of legitimate defense The right of legitimate defense. Doctrine & State practice in the pd. 1920-29 •

It gives the strong indication that force was force was justified only in reaction vs. some threat or force

State Practice & doctrine in the pd. 1930-1939 •

Parties to the Gen, Treaty for the Renunciation of War agreed that no act of aggression could be justified on the following grounds: 1. The internal condition of a state 2. The int’l conduct of a state

The right of self defense in the Pd. After WWII •

•

•

The increasing acceptance by the states in the pd. between 1920 & 1969 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 & of self-preservation. While the right of self-preservation no longer existed in its classical form, some of its contents was preserved. This residual right was referred to as that of self-defense or legitimate defense. It was confined to reaction to immediate danger to the physical integrity of the state itself. The right of SD commonly appeared in the context of the use of force. It was essentially a reaction by a State vs. the use or threat of force by the armed forces of another state. The essence of such a right was proportionality to the threat offered & this would create a presumption that force was only lawful as a reaction vs. force

The right of Anticipatory Self-defense in the Customary Law

• •

19th century customary law permitted anticipatory action in face of imminent danger Anticipatory action has taken & stated to the exercise of the right of self-defense on several occasions vs. armed bands operating from neighboring territory or proceeding by sea towards the acting state although still outside territorial waters.

Some reservations on the Customary Law in respect of Ant. Action •

As a matter of principle & policy, anticipatory self defense is open to certain objections. It involves a determination of the certainty of attack which is extremely difficult to make & necessitates an attempt to ascertain the intention of a government

The Proportionality Rule •

The force used must be proportionate to the threat. The formula used was that self-defense must involve “nothing unreasonable or excessive; since the act justified by the necessity of self defense, must be limited by that necessity & kept clearly within it.

The right of Self-defense under the UN Charter Art. 2 of the UN Charter (3) All members shall settle their int’l disputes by peaceful mean in such a manner that int’l peace & security, & justice are not endangered. (4) xxx shall refrain in their int’l relations from the threat or use of force vs. territorial integrity or political independence of any state. •

•

•

•

Art. 51 Nothing in the present charter shall impair the inherent right of individual or collective self-defense is an armed attack occurs vs. a member of the UN until the security council has taken measures necessary to maintain int’l peace & security… There is a gen. assumption that the charter prohibited self-help & armed reprisals. Art. 51 is presented as rendering all use of force illegal except in the exercised of the right of SD “if an armed attack occurs.” Even if it is accepted that Art 51 contains the sole content of self-defense within the Charter, it may be argued that the right of self-defense existing in general law is still always available to the UN members, the right being broader than that stated in Art. 51.

Does Art. 51 Permit Anticipatory Self-defense? The right of self-defense remains unimpaired “if an armed attack occurs vs. a UN member” – the ordinary meaning of the phrase has been taken to PRECLUDE actions which are preventive in character. What is an armed attack? •

•

May include support for revolutionary groups;

•

Experience has shown that an armed attack is ordinarily self-evident. This does not mean incidents created by irresponsible groups or individuals, but rather, an attack by one state upon another. Purely internal disorders or revolutions would not be considered within the meaning of an armed attack. However, if a revolution were aided & abetted by an outside force, such assistance might possibly be considered an armed attack.

The relations of customary law & the UN charter •

• •

If the correctness of the view that for UN members, Art. 51 defines the right of self-defense & 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. By 1945 self-defense was understood to be justified only I case of an attack by forces of a state. It is submitted that there is considerable justification for the conclusion that the right of SD, individual or collective, which has received general acceptance in the most recent period has a content identical with the right expressed in Art. 51.

Self-defense on the High Seas & claims to jurisdiction on the Basis of Self Defense • • • • •

The legal position is dominated by the customary rule that vessels on the open sea remain under the jurisdiction of the flag state There is a customary right of approach on suspicion of piracy, & of seizure & punishment, a right which is universally recognized. The right of hot pursuit has the overwhelming support of State practice. This right exists independent of the legal category of self-defense. It exist in order that the exercise of jurisdiction within the territorial water should be effective. It must now be recognized that the principle of contiguous zone for purposes of enforcing customs, fiscal & sanitary laws has become a part of the customary law, Art. 22(1) UNCLOS ’58 “Except where acts of interference derive from powers conferred by treaty, a warship which encounters a foreign merchant ship on the highs is not justified in boarding her unless there is a reasonable ground for suspecting: 1. that the ship is engaged in piracy 2. in the slave trade, or 3. though flying a foreign flag or refusing to show its flag, the ship, in reality, of the same nationality

The Use of Force • •

The use of force is implicit in the terms “war of aggression” , ”invasion” , ”attack” & “aggression.” Use of weapons which do not involve any explosive effect, with concomitant shock waves & heat, such as bacteriological, biological & chemical could be assimilated to the use of force. These weapons are employed for the destruction of life and property.

Special Cases of Necessity •

Some instances may be considered in which serious danger to the territory of a State arises o.w. than as a result of a use of armed force.

Conclusion •

•

• •

1.

These considerations have caused jurists & governments to place emphasis on the question of determining cases in which resort to force is justified, or the permission rather than the prohibition. The modern law relating to the use of force in SD is represented by the major proposition that the beginning of an armed attack is a condition precedent for resort to force in self defense. Anticipatory self defense is unlawful; an attack must have commenced. Further, the attack must be directed vs. State territory & territorial water. Forcible intervention to protect the lives &, or property of nationals is not lawful as selfdefense & the modern legal regime may well be considered to render such action unlawful even if it is characterized as a special right of intervention. Use of Force by UN

Case: Legality of the Threat and Use of Nuclear Weapons (1995), supra

(articles cited by Sir Magi) Article 2 The Organization and its Members, in pursuit of the Purposes stated in Article 1, shall act in accordance with the following Principles. 1. The Organization is based on the principle of the sovereign equality of all its Members. 2. All Members, in order to ensure to all of them the rights and benefits resulting from membership, shall fulfill in good faith the obligations assumed by them in accordance with the present Charter. 3. All Members shall settle their international disputes by peaceful means in such a manner that international peace and security, and justice, are not endangered. 4. All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.

5. All Members shall give the United Nations every assistance in any action it takes in accordance with the present Charter, and shall refrain from giving assistance to any state against which the United Nations is taking preventive or enforcement action. 6. The Organization shall ensure that states which are not Members of the United Nations act in accordance with these Principles so far as may be necessary for the maintenance of international peace and security. 7. Nothing contained in the present Charter shall authorize the United Nations to intervene in matters which are essentially within the domestic jurisdiction of any state or shall require the Members to submit such matters to settlement under the present Charter; but this principle shall not prejudice the application of enforcement measures under Chapter Vll. Article 24 1. In order to ensure prompt and effective action by the United Nations, its Members confer on the Security Council primary responsibility for the maintenance of international peace and security, and agree that in carrying out its duties under this responsibility the Security Council acts on their behalf. 2. In discharging these duties the Security Council shall act in accordance with the Purposes and Principles of the United Nations. The specific powers granted to the Security Council for the discharge of these duties are laid down in Chapters VI, VII, VIII, and XII. 3. The Security Council shall submit annual and, when necessary, special reports to the General Assembly for its consideration. Article 26 In order to promote the establishment and maintenance of international peace and security with the least diversion for armaments of the world's human and economic resources, the Security Council shall be responsible for formulating, with the assistance of the Military Staff Committee referred to in Article 47, plans to be submitted to the Members of the United Nations for the establishment of a system for the regulation of armaments. Article 33 3. The parties to any dispute, the continuance of which is likely to endanger the maintenance of international peace and security, shall, first of all, seek a solution by negotiation, enquiry, mediation, conciliation, arbitration, judicial settlement, resort to regional agencies or arrangements, or other peaceful means of their own choice. Article 39 The Security Council shall determine the existence of any threat to the peace, breach of the peace, or act of aggression and shall make recommendations, or decide what measures shall be taken in accordance with Articles 41 and 42, to maintain or restore international peace and

security. Article 41 The Security Council may decide what measures not involving the use of armed force are to be employed to give effect to its decisions, and it may call upon the Members of the United Nations to apply such measures. These may include complete or partial interruption of economic relations and of rail, sea, air, postal, telegraphic, radio, and other means of communication, and the severance of diplomatic relations. Article 42 Should the Security Council consider that measures provided for in Article 41 would be inadequate or have proved to be inadequate, it may take such action by air, sea, or land forces as may be necessary to maintain or restore international peace and security. Such action may include demonstrations, blockade, and other operations by air, sea, or land forces of Members of the United Nations. Article 51 Nothing in the present Charter shall impair the inherent right of individual or collective selfdefence if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security. Measures taken by Members in the exercise of this right of self-defence shall be immediately reported to the Security Council and shall not in any way affect the authority and responsibility of the Security Council under the present Charter to take at any time such action as it deems necessary in order to maintain or restore international peace and security. Article 53 1. The Security Council shall, where appropriate, utilize such regional arrangements or agencies for enforcement action under its authority. But no enforcement action shall be taken under regional arrangements or by regional agencies without the authorization of the Security Council, with the exception of measures against any enemy state, as defined in paragraph 2 of this Article, provided for pursuant to Article 107 or in regional arrangements directed against renewal of aggressive policy on the part of any such state, until such time as the Organization may, on request of the Governments concerned, be charged with the responsibility for preventing further aggression by such a state. 2. The term enemy state as used in paragraph 1 of this Article applies to any state which during the Second World War has been an enemy of any signatory of the present Charter. TD Gill, Legal and Some Political Limitations on the Power of the UN Security Council to Exercise its Enforcement Powers Under Chapter 7 of the Charter (NOT AVAILABLE) Danish Sarooshi, The United Nations And The Development Of Collective Security (NOT

AVAILABLE) Bedjaoui, The New World Order and the Security Council (NOT AVAILABLE)

TALK LATIN. PEOPLE WILL THINK YOU’RE SMART (TERMS IN INTERNATIONAL LAW) a fortiori - according to Webster: "with greater reason or more convincing force -- used in drawing a conclusion that is inferred to be even more certain than another." Example: If it is a violation of the sending state's rights to arrest its consular official, then a fortiori it would be a violation to arrest its ambassador. a posteriori - from effect to cause; from particular to general; inductive (based on observation or experience). a priori - from cause to effect; from generalization to particular; deductive; presupposed by or reasoning from self-evident propositions (based on theory rather than practice). amicus curiae - "friend of the court"; a person with a strong interest in or views on the subject matter of a given legal action may petition the court for permission to file a brief, ostensibly on behalf of a party but actually to suggest a rationale consistent with its own views. Such amicus curiae briefs are commonly filed in appeals concerning matters of a broad public interest. Example: NPC of Iran v. M/T Stolt Sheaf case contra legem - "against the law" (term used to describe an equitable decision of a court or tribunal that is contrary to the law governing the controversy. Such a decision would not normally be permitted unless the tribunal had been empowered to act ex aequo et bono). As opposed to intra legem. de facto - in fact (as opposed to in law, de jure)

de lege ferenda - what the law ought to be (as opposed to what the law is, lex lata). de lege lata - what the law is (as opposed to what the law ought to be, de lege ferenda). de jure - in law (as opposed to in fact, de facto). erga omnes - "toward all" wrongful acts that harm everyone and not simply one injured party) estoppel - the requirement of consistency in legal argumentation. "You can't have it both ways." That is: "You can't have your cake and eat it, too." Hypothetical example: Party A cannot claim a right from Party B if Party A previously took actions or made statements that were contrary to the current claims and which led Party B to take an action that is the subject of the current claim. Case illustrations: the Tinoco Claims Arbitration and the Eastern Greenland case ex aequo et bono - a judgment based on considerations of fairness, not on considerations of existing law. Such a judgment is rendered "beside" or "against the law" (praeter legem or contra legem), not within the law (infra legem or intra legem). Example: Article 38(2) of the I.C.J. Statute permits the Court to render a judgment on these grounds ex propio motu - on its own accord. inter alia - among other things. intra fauces terra - "in the jaws of the land." a principle for defining territorial seas. intra legem - "within the law" (term used to describe an equitable decision of a court or tribunal that is consistent with the rules of law governing the controversy). As opposed to contra legem.

ipso facto - by the fact (or act) itself. jus inter gentes - "law among peoples" (nations). jus civile - law created within each country. Jus civile is one of two categories of law in formal Roman law, along with jus gentium. jus cogens - "compelling law," peremptory principles of international law that cannot be overriden by specific treaties between countries; that is: norms that admit of no derogation; they are binding on all states at all times (e.g., prohibitions on aggression, slavery, and genocide).. jus gentium - "law of peoples" or "law of tribes," a body of law developed by a Roman praetor peregrinus; applied to non-Romans in the Empire and to dealings between Romans and nonRomans. Jus gentium is one of two categories of law in formal Roman law, along with jus civile. jus naturale - law of nature. the classical Greeks originated the "natural law" idea, but it was greatly elaborated upon by the Romans, including Marcus Aurelius and Cicero; natural law scholars argue that law has a metaphysical source (God, nature) and is apprehensible by rational humans; the law transcends tiem, place, and circumstance jus sanguines - the "right of blood" or "law of descent" - at birth an individual acquires the nationality of her or his parents. In contrast to jus soli. jus soli - the "law (or right) of the soil" - the legal principle that an individual's nationality is determined by that person's place of birth (that is, the territory of a given state) Contrast to jus sanguines lacunae - "holes" in the law; a gap or blank in a writing.

lex communis - the common law; the body of law developed by human practice. lex lata - what the law is (as opposed to what the law ought to be, de lege ferenda). lex posterior derogat priori - more recent law prevails over (abrogrates, overrrules, trumps) an inconsistent earlier law. One test that is applied in circumstances when (1) both customary and treaty sources of law exist and (2) these two sources cannot be construed consistently. Contrast to lex specialis derogat generali . lex scripta - written, "black letter" law lex specialis derogat generali - specific law prevails over (abrogrates, overrrules, trumps) general law. One test that is applied in circumstances when (1) both customary and treaty sources of law exist and (2) these two sources cannot be construed consistently. Contrast to lex posterior derogat priori. locus delicti - The place of the offense. male captus, bene detentus - "badly captured, well detained," the legal principle that permits the trial of an improperly seized defendant; in U.S. practice, articulated by the "Ker-Frisbie doctrine" mare clausum - closed seas; as opposed to mare liberum (freedom of the seas) mare liberum - freedom of the seas; as opposed to mare clausum (closed seas) mesne assignment - an "assignment" is a transfer or making over to another of the whole of any property, real or personal, or of any estate or right therein; a "mesne assignment" (from the Old English "mesne" for "intermediate, intervening") is an assignment intervening between an original grant and the last assignment See: Upright v. Mercury Business Machines

mutatis mutandis - "when what must be changed has been changed," after making the necessary changes; with alterations to fit the new circumstances. For example: "The new provisions governing the tribunal's operations are to apply as well to the court's operations, mutatis mutandis. non liquet - the law is insufficient to provide a decision opinio juris sive necessitatis - (or simply, opinio juris) the perception that a given behavior is required by law, that it is legally obliged, a duty. (as opposed to behaviors that are motivated by other concerns, or simply random or habitual behavior). Example: the S.S. Lotus case. pacta sunt servanda - the doctrine that agreements must be observed (that is: honored, obeyed). Contrast to rebus sic stantibus. persona non grata - An unwelcome person -- this is the basis of expulsion in diplomatic exchanges. praetor peregrinus - the Roman magistrate who devised the rules of the jus gentium prima facie - "at first sight," on the face of it, on first consideration. Something presumed or inferred to be true, unless proven otherwise. The standard of evidence applied at U.S. extradition hearings. quod hoc - on this matter. ratio scripta - "written reason," the assessment of Roman law commonly held in the Medieval period rebus sic stantibus - "matters standing thus," "things staying as they are" - the doctrine that treaty obligations hold only as long as the fundamental conditions and expectations that existed at the time of their creation hold.

Contrast to pacta sunt servanda. res judicata - "a matter adjudged ", the legal principle common to many municipal law systems that provides that a matter is settled once a final judgment has been made. Arguably, a general principle of international law under Article 38 (1)(c) of the I.C.J. Statute. sine qua non - "without which not," an indispensable condition, a prerequisite res publica christiana - the community of Christian nations. stare decisis - The doctrine that previous court decisions establish binding precedent for future cases of similar situations; that is, that courts will abide by previously decided cases. Stare decisis is inapplicable to the I.C.J.. See article 59 of the Statute of the ICJ. terra nullius - land without an owner ("no man's land"); territory that may be acquired by a state's occupation of it ultra vires - "beyond the powers "; in excess of the authority conferred by law, and hence, invalid, lacking legal effect uti possidetis - "as you possess", so you may continue to possess in the post-war context: the concept that a state may retain possession of territory acquired by force during war in the post-colonial context: the concept that colonial territorial boundaries continue in the postcolonial period and that decolonized territories are not terra nullius (and thus, subject to occupation) See, for example, Burkina Faso v. Mali vel non - "or not "