Public International Law Pointers and Cases

International Law are set of Norms w/o legislation; affects states not necessarily individuals (subjects); arises from the relations of states as principle subjects; consent of a state is necessary before it can be bound by that law; International community; western in character; eastern history is relatively a modern discovery (colonization); most of international law has western influence; europe is the cradle of civilization; State – Reimbodiment of a thing; International Law – Basis: Consent of States PIL is a Process more than a set of Rules (Higgins)

PUBLIC INTERNATIONAL LAW Part I: Introduction A. The Development of the International Order Bobbit, Philip. “From Princes to Princely States: 1494-1648” in The Shield of Achilles: War, Peace and the Course of History (New York: Alfred A. Knopf, 2002) pp. 75-94 Bobbit, Philip. “From Kingly States to Territorial States: 1648-1776” in The Shield of Achilles: War, Peace and the Course of History (New York: Alfred A. Knopf, 2002) pp. 95143 Bobbit, Philip. “From State-Nations to Nation States: 1776-1914” in The Shield of Achilles: War, Peace and the Course of History (New York: Alfred A. Knopf, 2002) pp. 144-205 B. The International Legal Order League of Nations United Nations International Court of Justice C. The Nature and Function of International Law Higgins, Rasalyn. “The Nature and Function of International Law” in Problems and Process: International Law and How We Use It (Oxford: Clarendon Press, 1995) pp. 1-16 Part II: Sources of International Law 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 conventions, whether general or particular, establishing rules expressly recognized by the contesting states; b) International custom, as evidence of a general practice accepted as law; c) The general principles of law recognized by civilized nations;

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d) Subject to the provisions of Article 591, 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 et bono (according to the right and good), if the parties agree thereto. A. Custom Fisheries Case, ICJ Reports (1951) Judge Read The Fisheries Case was brought before the Court by the United Kingdom of Great Britain and Northern Ireland against Norway. By a Decree of July 12th 1935, the Norwegian Government had, in the northern part of the country (north of the Arctic Circle) delimited the zones in which the fisheries were reserved to its own nationals. The United Kingdom asked the Court to state whether this delimitation was or was not contrary to international law. In its Judgment the Court found that neither the method employed for the delimitation by the Decree, nor the lines themselves fixed by the said decree, are contrary to international law. The delimitation of sea areas has always an international aspect since it interests States other than the coastal State; consequently, it cannot be dependent merely upon the will of the latter. Norway puts forward the 1935 Decree as the application of a traditional system of delimitation in accordance with international law. In its view, international law takes into account the diversity of facts and concedes that the delimitation must be adapted to the special conditions obtaining in different regions. The Judgment notes that a Norwegian Decree of 1812, as well as a number of subsequent texts (Decrees, Reports, and diplomatic correspondence) show that the method of straight lines, imposed by geography, has been established in the Norwegian system and consolidated by a constant and sufficiently long practice. The application of this system encountered no opposition from other States. Even the United Kingdom did not contest it for many years: it was only in 1933 that the United Kingdom made a formal and definite protest. And yet, traditionally concerned with maritime questions, it could not have been ignorant of the reiterated manifestations of Norwegian practice, which was so well-known. The general toleration of the international community therefore shows that the Norwegian system was not regarded as contrary to international law. 1. As opposed to usage Parking Privileges for Diplomats Case, ILR 70, 396 (Fed. Admin. Ct., FRG) Under the domestic law of many of these States, the reservation of parking space and the issuing of the appropriate traffic orders are made by the police in the exercise of their discretion and are not subject to judicial review (Portugal, Greece, Norway, Sweden and Argentina). The conduct of the authorities in these States cannot be regarded as evidence of the existence of a rule of customary international law. There is no serious doubt that this is not a question of customary international law but rather one of courtesy is supported by the fact that neither the Foreign Ministry nor any

1 Art. 59.

The decision of the Court has no binding force except between the parties and in respect of that particular case.

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other administrative agencies have as yet presumed the existence of such an obligation on the basis of international law. The parking regulation which exempted diplomatic vehicles was illegal. German law did not contain the necessary enabling legislation for such an exemption and it could not be justified on the basis of existing international law. As a consequence, foreign diplomats in Germany could not be granted special parking privileges. 2. Practice – Uniformity, Consistency and Generality Asylum Case, Columbia v. Peru, ICJ Reports (1950) The ICJ recognised that the scope of Article 38 2 of the Statute of the International Court of Justice encompassed bi-lateral and regional international customary norms as well as general customary norms, in much the same way as it encompasses bilateral and multilateral treaties. The Court also clarified that for custom to be definitively proven, it must be continuously and uniformly executed. 1. Grant of Asylum, should it be Unilateral or Bilateral “[T]he Colombian Government has referred to a large number of particular cases in which diplomatic asylum was in fact granted and respected. But it has not shown that the alleged rule of unilateral and definitive qualification was invoked or … that it was, apart from conventional stipulations, exercised by the States granting asylum as a right appertaining to them and respected by the territorial States as a duty incumbent on them and not merely for reasons of political expediency. The facts brought to the knowledge of the Court disclose so much uncertainty and contradiction, so much fluctuation and discrepancy in the exercise of diplomatic asylum and in the official views expressed on various occasions, there has been so much inconsistency in the rapid succession of conventions on asylum, ratified by some States and rejected by others, and the practice has been so much influenced by considerations of political expediency in the various cases, that it is not possible to discern in all this any constant and uniform usage, mutually accepted as law, with regard to the alleged rule of unilateral and definitive qualification of the offence.”

2. Does the Country of Exit have the obligation to provide for safe passage “There exists undoubtedly a practice whereby the diplomatic representative who grants asylum immediately requests a safe conduct without awaiting a request from the territorial state for the departure of the refugee…but this practice does not and cannot mean that the State, to whom such a request for safe-conduct has been addressed, is legally bound to accede to it.”

Fisheries Case, ICJ Reports (1951)3 The method of straight lines, imposed by geography, has been established in the Norwegian system and consolidated by a constant and sufficiently long practice. The application of this system encountered no opposition from other States. Even the United Kingdom did not contest it for many years.

2 Supra 3 Supra [3]

Genocide Case, ICJ Reports (1951) The convention on Genocide was unanimously adopted by the United Nations in 1951. Several states made reservations to one or more of its provisions. An opinion as to whether a party could express reservations and still be considered a signatory was laid before the International Court of Justice. A reservation to the U.N. Convention on Genocide may be effected by a state and still be considered a signatory thereto. In a multilateral treaty, as long as the reservation does not defeat the purpose of the treaty, a reservation is permitted. By virtue of its sovereignty, it has been argued that a state may affect any reservation. In this case, the validity of each reservation must be examined on a case-by-case basis since numerous reservations were made by different states. (The court held that the state objecting to a reservation could if it desired, consider the reserving state not to be a party to the Convention. Politics was at play in this case as it has also been in other cases. Going by precedence, international law usually held that reservations to a multilateral treaty had to be accepted by all other parties. Unanimous acceptance of the Convention would not have made the Convention possible if the rule was followed. The Court was undoubtedly determined to facilitate such unanimity. Wimbledon Case (1923), PCIJ, Ser. A, no. 1 The matter related to national sovereignty and the role of the newly developing jurisprudence of international law. A British steamship, the “Wimbledon” chartered by French Company Les Affréteurs réunis was taking a cargo of munitions and artillery stores from Salonica to the Polish Naval Base at Danzig. It arrived at the Kiel Canal and was refused permission to pass through due to German neutrality in the Russo-Polish war. The ship was forced to take a longer route to Danzig. In reaching its decision the court considered Articles 380 to 386 of the Treaty of Versailles and Articles 2 and 7 of the Hague Convention of 1907.

CIVIL WAR The Court then considered the substantive issue in the case and found that Germany was perfectly free to regulate her neutrality in the Russo-Polish war but the court found that the Canal had ceased to be an internal navigable waterway of Germany. The Court found Germany had a definite duty of allowing the passage of the “Wimbledon” through the Kiel Canal, and her neutrality did not oblige her to prohibit passage. 3. Opinio juris et necessitates (an opinion of law or necessity) a. Assumed from general practice, previous determinations of courts Gulf of Maine case, Judgment of the Chamber, ICJ Reports (1984) After observing that the terms "principles and rules" really convey one and the same idea, the Chamber stresses that a distinction has to be made between such [4]

principles or rules and what, rather, are equitable criteria or practical methods for ensuring that a particular situation is dealt with in accordance with those principles and rules. Of its nature, customary international law can only provide a few basic legal principles serving as guidelines and cannot be expected also to specify the equitable criteria to be applied or the practical methods to be followed. The same may however not be true of international treaty law. In the eyes of the United States, the decisive factor lies in the fishing carried on by the United States and its nationals ever since the country's independence and even before, activities which they are held to have been alone in pursuing over the greater part of that period, and which were accompanied by other maritime activities concerning navigational assistance, rescue, research, defence, etc. Canada laid greater emphasis on the socio-economic aspects, concentrating on the recent past, especially the last 15 years, and presenting as an equitable principle the idea that a single maritime boundary should ensure the maintenance of the existing structures of fishing which, according to it, were of vital importance to the coastal communities of the area. The Chamber explains why it cannot subscribe to these contentions and finds that it is clearly out of the question to consider the respective scale of activities in the domain of fishing or petroleum exploitation as an equitable criterion to be applied in determining the delimitation line. What the Chamber would regard as a legitimate scruple lies rather in concern lest, unexpectedly, the overall result should appear radically inequitable as entailing disastrous repercussions on the subsistence and economic development of the populations concerned. It considers that there is no reason to fear any such danger in the present case on account of the Chamber's choice of delimitation line or, more especially, the course of its third segment, and concludes that the overall result of the delimitation is equitable. Noting the long tradition of friendly and fruitful co-operation in maritime matters between Canada and the United States, the Chamber considers that the Parties will be able to surmount any difficulties and take the right steps to ensure the positive development of their activities in the important domains concerned. The court used - No maritime delimitation between States with opposite or adjacent coasts may be effected unilaterally by one of those States. Such delimitation must be sought and effected by means of an agreement, following negotiations conducted in good faith and with the genuine intention of achieving a positive result. Where, however, such agreement cannot be achieved, delimitation should be effected by recourse to a third party possessing the necessary competence. In either case delimitation is to be effected by the application of equitable criteria and by the use of practical methods capable of ensuring, with regard to the geographic configuration of the area and other relevant circumstances, an equitable result. b. Positive Evidence of Recognition of Validity of Rule Lotus Case, PCIJ Ser. A, no. 10 The Lotus case concerns a criminal trial which was the result of the 2 August 1926 collision between the S.S. Lotus, a French steamship (or steamer), and the S.S. BozKourt, a Turkish steamer, in a region just north of Mytilene (Greece). As a result of [5]

the accident, eight Turkish nationals aboard the Boz-Kourt drowned when the vessel was torn apart by the Lotus. On 7 September 1927 the case was presented before the Permanent Court of International Justice, the judicial branch of the League of Nations, the predecessor of the United Nations. The Lotus case gives an important dictum on creating customary international law. France alleged that jurisdictional questions on collision cases are rarely heard in criminal cases because States tend to prosecute only before the flag State. France argued that this absence of prosecutions points to a positive rule in customary law on collisions. The Court held that this “…would merely show that States had often, in practice, abstained from instituting criminal proceedings, and not that they recognized themselves as being obliged to do so; for only if such abstention were based on their being conscious of having a duty to abstain would it be possible to speak of an international custom. The alleged fact does not allow one to infer that States have been conscious of having such a duty; on the other hand, as will presently be seen, there are other circumstances calculated to show that the contrary is true.” In other words, opinio juris is reflected in acts of States (Nicaragua Case) or in omissions (Lotus case) in so far as those acts or omissions are done following a belief that the said State is obligated by law to act or refrain from acting in a particular way. The first principle of the Lotus case said that jurisdiction is territorial: A State cannot exercise its jurisdiction outside its territory unless an international treaty or customary law permits it to do so. This is what we called the first Lotus Principle. The second principle of the Lotus case: Within its territory, a State may exercise its jurisdiction, on any matter, even if there is no specific rule of international law permitting it to do so. In these instances, States have a wide measure of discretion, which is only limited by the prohibitive rules of international law. North Sea Continental Shelf Cases, (Federal Republic of Germany v. Denmark; FRG v. The Netherlands) ICJ Reports (1969) Is Germany under a legal obligation to accept the equidistance-special circumstances principle, contained in Article 6 of the Geneva Convention, either as a customary international law rule or on the basis of the Geneva Convention? Article 6 of the Geneva Convention on the Continental Shelf states that unless the parties have agreed on a method for delimitation or unless special circumstances exist, the equidistance method would apply (see Article 6). Germany has signed but not ratified the Geneva Convention, while Netherlands and Denmark are parties to the Convention. The latter two States argue that while Germany is not a party to the Convention (not having ratified it), she is still bound by Article 6 of the Convention because: “…(1) by conduct, by public statements and proclamations, and in other ways, the Republic has unilaterally assumed the obligations of the Convention; or has manifested its acceptance of the conventional regime; or has recognized it as being generally applicable to the delimitation of continental shelf areas… [6]

(2) the Federal Republic had held itself out as so assuming, accepting or recognizing, in such a manner as to cause other States, and in particular Denmark and the Netherlands, to rely on the attitude thus taken up” (the latter is called the principle of estoppel). The court held that Article 6 of the Convention had not attained a customary law status (compare the 1958 Geneva Convention with the four Geneva Conventions on 1949 in the field of international humanitarian law in terms of its authority as a pronouncement of customary international law). For a customary rule to emerge the court held that it needed: (1) very widespread and representative participation in the convention, including States whose interests were specially affected (i.e. generality); and (2) virtually uniform practice (i.e. consistent and uniform usage) undertaken in a manner that demonstrates (3) a general recognition of the rule of law or legal obligation (i.e. opinio juries). In the North Sea Continental Shelf cases the court held that the passage of a considerable period of time was unnecessary (i.e. duration) for the formation of a customary law. The court held that the first criteria was not met. The number of ratifications and accessions to the convention (39 States) were not adequately representative (including of coastal States – i.e. those States whose rights are affected) or widespread. The court held that duration taken for the customary law rule to emerge is not as important as widespread and representative participation, uniform usage and the existence of an opinio juris. Military and Paramilitary Activities in and against Nicaragua (Nicaragua vs. United States [Merits]), ICJ Reports (1986) In July 1979 the Government of President Somoza collapsed following an armed opposition led by the Frente Sandinista de Liberacibn Nacional (FSLN) . The new government – installed by FSLN – began to meet armed opposition from supporters of the former Somoza Government and ex-members of the National Guard. The US – initially supportive of the new government – changed its attitude when, according to the United States, it found that Nicaragua was providing logistical support and weapons to guerrillas in El Salvador. In April 1981 it terminated United States aid to Nicaragua and in September 1981, according to Nicaragua, the United States “decided to plan and undertake activities directed against Nicaragua”. 1. Did the United States breach its customary international law obligation – not to intervene in the affairs of another State – when it trained, armed, equipped and financed the contra forces or encouraged, supported and aided the military and paramilitary activities against Nicaragua? The prohibition on the use of force is found in Article 2(4) of the UN Charter and in customary international law. The court held that the United States breached its customary international law obligation – not to use force against another State: (1) when it directly attacked Nicaragua in 1983 – 1984; and (2) when its activities with the contra forces resulted in the threat or use of force: when it laid mines; when it assisted the contras. [7]

2. The Court held that the United States could not justify its military and paramilitary activities on the basis of collective self-defence. The Court held that the United States could not justify its military and paramilitary activities on the basis of collective self-defence. The criteria with regard to necessity and proportionality, that is necessary when using force in self-defence – was also not fulfilled. The Court looked extensively into the conduct of Nicaragua, El Salvador, Costa Rica and Honduras in determining whether an armed attack was undertaken by Nicaragua against the three countries – which in turn would necessitate selfdefence (paras 230 – 236). The Court referred to statements made by El Salvador, Costa Rica, Honduras and the United States before the Security Council. None of the countries who were allegedly subject to an armed attack by Nicaragua (1) declared themselves as a victim of an armed attack or request assistance from the United States in self-defence – at the time when the United States was allegedly acting in collective self-defence; and (2) the United States did not claim that it was acting under Article 51 of the UN Charter and it did not report that it was so acting to the Security Council. The Court concluded that the United States cannot justify its use of force as collective self-defence. 3. The Court held that the United States breached its CIL obligation – not to intervene in the affairs of another State – when it trained, armed, equipped and financed the contra forces or encouraged, supported and aided the military and paramilitary activities against Nicaragua. The principle of non- intervention means that every State has a right to conduct its affairs without outside interference – i.e it “…forbids States or groups of States to intervene directly or indirectly in internal or external affairs of other States.” . This is a corollary of the principle of sovereign equality of States. 4. The United States breached its customary international law obligation – not to violate the sovereignty of another State – when it directed or authorized its aircrafts to fly over Nicaraguan territory and when it laid mines in the internal waters of Nicaragua and its territorial sea. 5. The basic concept of State sovereignty in customary international law is found in Article 2(1) of the UN Charter. State sovereignty extends to a State’s internal waters, its territorial sea and the air space above its territory. The United States violated customary international law when it laid mines in the territorial sea and internal waters of Nicaragua and when it carried out unauthorised overflights over Nicaraguan airspace by aircrafts that belong to or was under the control of the United States. c. Acquiescence Right of Passage over Indian Territory, ICJ Reports (1960) Portugal held several small enclaves of territory within India; one on the coast but the others inland. Portugal claimed they had a right of passage to its inland territories over Indian land which they alleged India had interfered with. Does Portugal have a customary right over Indian Territory to its enclaves? [8]

A right of passage does exist in regional custom. India argued before the Court that practice between only two states was not sufficient to form a local custom. The Court rejected this reasoning, finding no reason why a century and a quarter of practice based on mutual rights and obligations was insufficient for local custom to arise. This local practice, thus, prevailed over any general rules. Local customary law can exist as long as the elements in the North Sea Continental Shelf case are made out. 4. Local Customary International Law Asylum Case (Colombia v. Peru), ICJ Rep. 1950 266 The Colombian government gave asylum to a Peruvian citizen, Haya de la Torre, in its embassy. It claimed it had a right to do this both under agreements between the states and in a local custom in the Latin American states. Can the Colombian government offer asylum under local custom? No such local custom exists sufficient to be binding at international law. The Court held that the party which relies on a custom of this kind has the burden of establishing that the custom exists in such a way that it has become binding on the other party, through constant and uniform usage of the states. On the facts, very few states had ratified the conventions which Colombia relied on and there was significant discrepancy in the practice of asylum. Because of this, the Court was unable to find a custom which met the standard in the North Sea Continental Shelf case. 5. The persistent objector Ango-Norwegian Fisheries Case, ICJ Reports (1951) The United Kingdom requested the court to decide if Norway had used a legally acceptable method in drawing the baseline from which it measured its territorial sea. The United Kingdom argued that customary international law did not allow the length of a baseline drawn across abay to be longer than ten miles. Norway argued that its delimitation method was consistent with general principles of international law. The court consistently referred to positive (1) state practice and (2) lack of objections of other states on that practice as a confirmation of an existing rule of customary international law. There was no mention of opinio juris in this early judgment. In the following passage, the court considered that expressed state dissent regarding a particular practice was detrimental to the existence of an alleged general rule. It did not elaborate whether these states adopted a contrary practice because it was claiming an exception to the rule (see the Nicaragua jurisprudence) or because it believed that the said rule did not possess the character of customary law. Persistent objector rule The court in its judgment held that even if a customary law rule existed on the ten-mile rule, [9]

“…the ten-mile rule would appear to be inapplicable as against Norway inasmuch as she has always opposed any attempt to apply it to the Norwegian coast.” In this case, the court appears to support the idea that an existing customary law rule would not apply to a state if it objected to any outside attempts to apply the rule to itself, at the initial stages and in a consistent manner, and if other states did not object to her resistance. In this manner, the Anglo Norwegian fisheries case joined the asylum case (Peru vs Colombia) in articulating what we now call the persistent objector rule. The court held that the fact that this consistent and sufficiently long practice took place without any objection to the practice from other states (until the time of dispute) indicated that states did not consider the Norwegian system to be “contrary to international law”. North Sea Continental Shelf Cases, ICJ Reports (1969) In customary international law, we call a state attempts to undertake (1) above – i.e. refuse to be bound by the customary international law at its inception – a persistent objector and (2) above – i.e. refuse to be bound by customary international law after it comes into force – a subsequent objector. The difference between treaty and customary international law in this respect is that in case of (1) theoretically at least both states are said to be exempt from their respective treaty and customary international law obligations and in case** of (2) for the treaty ceased to have an effect on the party that withdraws (with the exception of continuing obligations), but, subsequent objector remains bound by the customary law principle that it seeks to reject. (**there are some doubts as to the theoretical assumption presented in point (1) as will be seen below). We will first discuss legal issues surrounding the persistent objector and then the subsequent objector. 6. Burden of Proof Lotus Case, PCIJ Ser. A, no. 10 Must a state opposing jurisdiction prove the absence of customary law that permits jurisdiction? Because all acts that are not expressly forbidden under international law are permitted, the BOP is on the state opposing an act to show that there is a rule or custom that does not allow such an act to be exercised. Does customary abstention of a state from certain actions create an obligation under customary law to continue to refrain from committing those acts? That most states have abstained from certain actions in particular circumstances does not prove that they are obligated to do so, only that they have chosen to do so. The court decided that Turkey did have authority to arrest French officer under the Treaty of Lausanne (1923). Sovereignty is so important that, if you are challenging the jurisdiction of a sovereign state, you have burden of proof.

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International Law is a system of freedom — countries can do anything which is not expressly prohibited. This case is considered the high mark of positivism: states must agree to restraints on sovereignty. The court also decided that France and Turkey had concurrent jurisdiction over the cases arising aboard a French flag vessel on the high seas. Subsequent treaties have overruled this finding: only the flag state has jurisdiction. DISSENT: The Burden of Proof should be on the state seeking to show that it has jurisdiction. International Law does not permit everything that is not explicitly forbidden. B. Treaties Vienna Convention on the Law of Treaties, 1969 Arts, 6, 26 and 34 G. Fitzmaurice, ‘Some Problems Regarding the Formal Sources of International Law,’ Symbolaw Verzijl 153 (1958) 1. The Relationship of Customary International Law and Treaty Law R. Baxter, Multilateral Treaties as Evidence of Customary International Law, 41 British Yearbook of International Law 275 (1965) North Sea Continental Shelf Cases, supra. pars. 70-74 Military and Paramilitary Activities in and against Nicaragua, supra., pars. 174-179; also dissent of Judge Jennings 2. Unilateral Statements Nuclear Test Cases (Australia v. France and New Zealand v. France), Merits, ICJ Rep. 1974, pars. 43-51 3. Treaty as Evidence of Customary Norm Nottebohn Case (Second Phase), ICJ Reports (1955) In Re Muzza Aceituno, ILR 18 (1951) 4. Identity of Treaty and Customary Norm Case of Nicaragua vs. United States (Merits), ICJ Reports (1986) 5. Conclusions of International Conferences Namibia Opinion, ICJ Reports (1971) 6. Resolutions of the United Nations General Assembly South West Africa cases (Second Phase), ICJ Reports (1966); see dissenting opinions of Tanaka and Jessup C. General Principles of Law [11]

1. Sphere of application Chorzow Factor Case, PCIJ, 1927 A/9 Chorzow Factor Case, PCIJ, 1928 A/17 Corfu Channel Case, ICJ Rep, 1949 The Diversion of Water from the Meuse Case, Netherlands v. Belgium (1937), PCIJ Reports, A/B No. 70 (Ind. Op., Judge Hudson) Gulf of Maine Case, ICJ Rep., 1984 Barcelona Traction, Light and Power Co. Case, Belgium v. Spain, ICJ Reports, 1970 Frontier Dispute Case (Burkina Faso v. Mali), ICJ Rep 1985 6 2. How applied South West Africa Case, ICJ Rep 1950 (Lord McNair) D. Judicial Decisions and Teachings of Highly Qualified Publicists 1. Impact of Judicial Decisions in the Development of the International Law Art. 59, Statute of the ICJ a. In general The Paquete Habana 175 US SC Rep (1900) 677, United States Supreme Court Asylum Case, ICJ Rep, 1950 b. Binding Effect of Judicial Decisions Art. 38(I)(d) in rel. to Arts. 59 and 63, ICJ Statute German Interests in Polish Upper Silesia (Merits), (1926), PCIJ, Ser. A, no. 7 c. Judicial Precedent in the International Court of Justice Case Concerning the Land, Island and Maritime Frontier Dispute, ICJ Reports (1990), Dissenting Opinion, Judge Shahabuddeen E. UN General Assembly Resolutions United Nations Charter 1945 Arts. 10, 18 and 25 1. Generally Legality of the Threat or Use of Nuclear Weapons, ICJ Advisory Opinion, 1996 South West Africa Cases, ICJ Rep., 1966, Dissenting Op., Judge Tanaka 2. As evidence of state practice Western Sahara Case, Advisory Opinion, ICJ Reports, 1975 Cf G.A. Resn. 1514 (XV), December 14, 1960, G.A.O.R., 15 Session, Supp. 16 3. As affirmation of extant law F. Codification and Development of International Law

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UK Statement to the Sixth Committee of the General Assembly, 12 November 1996, 67 British Yearbook of International Law 703 (1996)

Part III: The Law on Treaties Vienna Convention on the Law of Treaties (1969) Art. 2 1. Treaty: Definition and Nature Case Concerning Maritime Delimitation and Territorial Questions between Qatar and Bahrain (Qatar v Bahrain) (Jurisdiction, First Phase), ICJ Rep. 1994 112, pars. 22-30 M. Craven, ‘Legal Differentation and the Concept of Human Rights Treaty in International Law’, 11 European Journal of International Law 489 (2000) N. White, ‘The United Nations System: Conference, Contract or Constitutional Order?’ 4 Singapore Journal of International and Comparative Law 281 (2000) 2. The Law on Treaties a. Formation and Application of Treaties Vienna Convention on the Law of Treaties 1969, Arts, 6-8, 11, 12, 14-15 Case Concerning Armed Activities on the Territory of Congo (New Application: 2002) (Democratic Republic of Congo v. Rwanda) Jurisdiction and Admissibility, ICJ Rep. 2006 6, pars. 46-48 North Sea Continental Shelf Cases, ICJ Reports (1969) – is Germany bound by the provisions of the continental shelf convention which it signed but did not ratify? If articles are emergent or pre-existing, yes Nottebohm Case (Second Phase), ICJ Reports (1955) b. Entry into Force Vienna Convention on the Law of Treaties 1969, Arts. 18, 24, 28 c. Pacta Sunt Servanda Vienna Convention on the Law of Treaties 1969, Art. 26 d. Impact of Treaties on Third States Vienna Convention on the Law of Treaties 1969, Arts. 34-38 e. State Succession to Treaties Vienna Convention on Succession of States in Respect of Treaties 1978, 1946 UNTS 3, Arts. 2, 5-6, 8-16 [13]

Case Concerning the Arbitral Award of 31 July 1989 (Guinea-Bissau v. Senegal) 83 ILR (1992), Special Arbitration Tribunal, par. 33 Application of the Genocide Convention (Bosnia Herzegovina v. Yugoslavia (Serbia and Montenegro) (Indication of Provisional Measures), ICJ Rep 1993 325, J. Weeramantry, Sep. Op. f.

Reservation to Treaties i.

Purpose of Reservation Vienna Convention on the Law of Treaties 1969, Art. 2(d), Arts. 19 and 23 Advisory Opinion Concerning Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide, ICJ Rep. 1951 51 Belilos v. Switzerland, ECHR Ser A (1988) Vol. 132, European Court of Human Rights

ii.

The Effect of Reservations Vienna Convention on the Law of Treaties 1969, Arts. 20-22 Case Concerning Armed Activities on the Territory of Congo (New Application: 2002) (Democratic Republic of Congo v. Rwanda), Jurisdiction and Admissibility of Application, ICJ Rep. 6 (2006), Sep. Op., Higgins, Koojimans, Elaraby, Owada and Simma, pars. 4-5, 9-12 English Channel Arbitration (United Kingdon v. France) 54 ILR 6 (1977), Special Court of Arbitration, pars. 59, 61-62 North Sea Continental Shelf Cases, ICJ Reports (1969) D. Bowett, ‘Reservation to Non-Restricted Multilateral Treaties’ 48 British Yearbook of International Law 67 (1976)

iii.

Reservations to Human Rights Treaties General Comment on Issues Relating to Reservations UN Human Rights Committee, General Comment No. 24, 2 IHRR 10 (1995), UN Human Rights Committee, pars. 4, 8, 11, 13, 17-18 Rawle Kennedy v. Trinidad and Tobago, 7 IHRR 315 (2000), UN Human Rights Committee Final Working Paper on Reservations to Human Rights Treaties, E/CN.4/Sub.2/2004/42, Economic and Social Council, Commission on Human Rights

g. Treaty Interpretation G. Fitzmaurice, ‘The Law and Procedure of the International Court of Justice, Treaty Interpretation and Certain other Treaty Points’, 28 British Yearbook of International Law 1 (1951) [14]

Vienna Convention on the Law of Treaties 1969, Arts. 31-33 M. Koskenniemi, From Apology to Utopia: The Structure of International Legal Argument (1989), pp. 291-293, 298-299 Territorial Dispute Case (Libya Arab Jamahiriya v. Chad, ICJ Rep. 1994 6, par. 51 Case Concerning the Territorial and Maritime Dispute (Nicaragua v. Colombia), Preliminary Objections, ICJ Rep. 2007 832, pars. 115-117 Case Concerning the Dispute Regarding Navigational and Related Rights (Costa Rica v. Nicaragua), 13 July 2009, International Court of Justice, pars. 48, 50-52, 62-64, 70 China Measures Affecting Imports of Automobile Parts, AB-2008-10, Report of the WTO appellate Body, 15 December 2008, par. 151 Oil Platforms (Islamic Republic of Iran v. United States of America, Merits, ICJ Rep. 2003 161, par. 41 h. Invalidity of Treaties i.

Generally

Vienna Convention on the Law of Treaties 1969, Arts. 42-53, 64 ii. Inconsistency with National Law and Coercion Case Concerning the Territorial and Maritime Dispute (Nicaragua v. Columbia, ICJ Rep 2007 832, pars. 75, 78-80 iii. Error Temple of Preah Vihear Case (Cambodia v. Thailand), Merits, ICJ 1962 6, pp. 26-27 iv.

Jus Cogens Report of the International Law Commission to the General Assembly, Yearbook of the International Law Commission (1966), vol II, 172 I. Sinclair, The Vienna Convention on the Law of Treaties (1984), 2 nd ed v. Unequal Treaties P. Wesley-Smith, Unequal Treaty 1898-1997: China, Great Britain and Hong Kong’s New Territories (1980), pp. 184-185 vi. Procedure for Invoking Treaty Invalidity Vienna Convention on the Law of Treaties 1969, Arts. 65, 69, 71

i.

Termination of Treaties

Vienna Convention on the Law of Treaties 1969, Arts. 45, 54, 56-57, 59, 60-62, 70, 72 [15]

Report of the International Law Commission to the General Assembly, Yearbook of the International Law Commission (1966), vol II, 172 Fisheries Jurisdiction Case (United Kingdom v. Iceland), Jurisdiction, ICJ Rep. 1973 3, pars. 37-38, 43 Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970), Ad. Op., ICJ Rep. 1971 16, pars. 94-96, 101 Case Concerning the Gabcikovo-Nagymaros Project Danube Dam Case (Hungary v. Slovakia), ICJ Rep. 1997 7, pars. 100-102, 104, 106 and 108

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