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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;

[1]

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.

[2]

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 refugeebut 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 Affrteurs
runis 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 States 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.

[10]

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

[12]

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 Kongs
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

[16]