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SOURCEBOOK ON PUBLIC INTERNATIONAL LAW

C P
Cavendish Publishing Limited

London Sydney

SOURCEBOOK ON PUBLIC INTERNATIONAL LAW


Tim Hillier, LLB, MA, Senior Lecturer in law, De Montfort University, Leicester

C P
Cavendish Publishing Limited

London Sydney

First published in Great Britain 1998 by Cavendish Publishing Limited, The Glass House, Wharton Street, London WC1X 9PX. Telephone: 0171-278 8000 Facsimile: 0171-278 8080 e-mail: info@cavendishpublishing.com Visit our Home Page on http://www.cavendishpublishing.com

Hillier, T 1998

All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, electronic, mechanical, photocopying, recording, scanning or otherwise, except under the terms of the Copyright Designs and Patents Act 1988 or under the terms of a licence issued by the Copyright Licensing Agency, 90 Tottenham Court Road, London W1P 9HE, UK, without the permission in writing of the publisher.

Hillier, Tim Sourcebook on Public International Law (Sourcebook series) I Title II Series 341

ISBN 1 85941 050 2 Printed and bound in Great Britian

CONTENTS
Table of Cases Table of Statutes Table of International Conventions and Other Documents 1 INTRODUCTION 1.1 HISTORICAL DEVELOPMENT 1.2 DEFINITIONS AND THE NATURE OF PUBLIC INTERNATIONAL LAW 1.2.1 The traditional view 1.2.2 The modern view 1.2.3 Contemporary theories IS INTERNATIONAL LAW REALLY LAW? THE ENFORCEMENT OF INTERNATIONAL LAW 1.4.1 The United Nations 1.4.2 Judicial enforcement 1.4.3 Loss of legal rights and privileges 1.4.4 Self-help xv xxv xxvii 1 2 5 9 10 11 20 30 30 30 30 31

1.3 1.4

2 THE RELATIONSHIP BETWEEN MUNICIPAL LAW AND INTERNATIONAL LAW 2.1 INTRODUCTION 2.2 THE THEORETICAL ISSUE 2.2.1 Monism 2.2.2 Dualism 2.2.3 A third way? THE PRACTICAL ISSUE 2.3.1 Municipal law before international tribunal 2.3.3 International law in municipal courts 2.3.3.1 Transformation and incorporation 2.3.3.2 British practice 2.3.3.3 The practice of other states 2.3.4 The relationship between international law and European law 2.3.5 The relationship between regional international law and universal international law

33 33 33 34 35 35 38 38 39 39 40 45 46 57 59 59 63 64

2.3

3 SOURCES OF INTERNATIONAL LAW 3.1 INTRODUCTION 3.2 3.3 ARTICLE 38 OF THE STATUTE OF THE INTERNATIONAL COURT OF JUSTICE TREATIES
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3.4

3.5

3.6 3.7 3.8 3.9

CUSTOM 3.4.1 Definitions of international custom 3.4.2 The material element 3.4.2.1 State practice 3.4.2.2 The extent of the practice 3.4.2.3 The practice of dissenting states and persistent objectors 3.4.2.4 Duration of practice 3.4.3 The psychological element 3.4.4 Treaties as evidence of customary law GENERAL PRINCIPLES OF LAW 3.5.1 Some examples 3.5.2 Equity JUDICIAL DECISIONS THE TEACHINGS OF THE MOST HIGHLY QUALIFIED PUBLICISTS OF THE VARIOUS NATIONS OTHER POSSIBLE SOURCES RESOLUTIONS OF INTERNATIONAL ORGANISATIONS

65 66 71 71 73 74 74 75 83 83 92 93 93 94 95 95 98 98 99 100 103 103 125 126 127 130 130 131 131 131 131 132 132 132 133

3.10 RESOLUTIONS OF REGIONAL ORGANISATIONS 3.11 THE INTERNATIONAL LAW COMMISSION AND CODIFICATION 3.12 SOFT LAW 3.13 JUS COGENS OR PEREMPTORY NORMS 4 THE LAW OF TREATIES 4.1 INTRODUCTION 4.2 DEFINITIONS 4.2.1 Unilateral agreements 4.2.2 Subjects of international law 4.2.3 An intention to produce legal effects 4.2.4 Legal effects under public international law 4.2.5 Designation CONCLUSION AND ENTRY INTO FORCE OF TREATIES 4.3.1 Accrediting of negotiators 4.3.2 Negotiation and adoption 4.3.3 Authentication, signature and exchange 4.3.4 Effect of signature 4.3.5 Ratification 4.3.6 Accessions and adhesions

4.3

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Contents

4.4

4.5

4.6 4.7

4.3.7 Entry into force 4.3.8 Registration and publication RESERVATIONS 4.4.1 Definitions 4.4.2 Validity of reservations APPLICATION OF TREATIES 4.5.1 The observance of treaties 4.5.2 Non-retroactivity 4.5.3 Territorial application 4.5.4 Successive treaties 4.5.5 Treaties and third parties AMENDMENT AND MODIFICATION TREATY INTERPRETATION 4.7.1 Aims and goals of interpretation 4.7.2 The Vienna Convention on the Law of Treaties 1969 Section 3 4.7.2.1 Good faith 4.7.2.2 Ordinary meaning 4.7.2.3 Special meaning 4.7.2.4 The context and the object and purpose 4.7.2.5 Supplementary means of interpretation MULTILINGUAL TREATIES

133 133 133 134 134 137 137 138 138 138 139 141 142 142 143 143 143 143 144 144 144 144 145 145 145 145 145 145 146 146 154 155 155 155 155 156 156 157 165 165

4.8 4.9

VALIDITY OF TREATIES 4.9.1 Non-compliance with municipal law requirements 4.9.2 Error 4.9.3 Fraud and corruption 4.9.4 Coercion 4.9.4.1 Coercion of state representatives 4.9.4.2 Coercion of a state 4.9.5 Unequal treaties 4.9.6 Jus cogens 4.9.7 The effect of invalidity 4.10 TERMINATION, SUSPENSION OF AND WITHDRAWAL FROM TREATIES 4.10.1 By consent 4.10.2 Material breach 4.10.3 Supervening impossibility of performance 4.10.4 Fundamental change of circumstances 4.10.5 Other possible grounds 4.10.6 The effect of termination or suspension 4.11 DISPUTE SETTLEMENT 4.12 STATE SUCCESSION
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5 THE SUBJECTS OF INTERNATIONAL LAW 5.1 INTRODUCTION 5.2 THE SUBJECTS OF INTERNATIONAL LAW 5.2.1 Independent states 5.2.1.1 Population and territory 5.2.1.2 Government 5.2.1.3 Capacity to enter into international relations/ independence/sovereignty 5.2.1.4 Permanence 5.2.1.5 Legality 5.2.1.6 State succession 5.2.2 Non self-governing territories/dependent states 5.2.2.1 Colonies 5.2.2.2 Protectorates 5.2.2.3 Mandates and Trust Territories 5.2.3 International organisations 5.2.4 Individuals

175 175 181 181 184 185 185 188 188 195 196 196 197 198 199 200 201 201 201 201 202 203 204 205 205 219 219 221 222 223 223 223 223 226 227 227

6 RECOGNITION AND LEGITIMATION 6.1 INTRODUCTION 6.2 THE THEORETICAL ISSUE 6.2.1 The constitutive theory 6.2.2 The declaratory theory NON-RECOGNITION RECOGNITION OF GOVERNMENTS DE FACTO AND DE JURE RECOGNITION COLLECTIVE RECOGNITION THE LEGAL EFFECTS OF RECOGNITION IN MUNICIPAL LAW: UK PRACTICE 6.7.1 Locus standi 6.7.2 Effectiveness of legislative and executive acts 6.7.3 Sovereign immunity

6.3 6.4 6.5 6.6 6.7

7 TERRITORIAL RIGHTS 7.1 INTRODUCTION 7.2 BASIC CONCEPTS 7.2.1 Terra nullius 7.2.2 Intertemporal law 7.2.3 Critical date TITLE TO TERRITORY
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7.3

Contents

7.4 7.5 7.6

Occupation of terra nullius Prescription and acquiescence Conquest/annexation Cession Accretion Other possible modes of acquisition 7.3.6.1 Adjudication 7.3.6.2 Disposition by joint decision 7.3.6.3 Continuity and contiguity BOUNDARIES RIGHTS OF FOREIGN STATES OVER TERRITORY LOSS OF STATE TERRITORY

7.3.1 7.3.2 7.3.3 7.3.4 7.3.5 7.3.6

228 238 241 243 243 243 243 244 244 244 245 247 249 249 253 254 275 276 278 279 280 282 283 283 285 286 287 287 287 287 289 289 302 303 303 315

8 JURISDICTION 8.1 INTRODUCTION 8.2 8.3 8.4 8.5 8.6 8.7 8.8 8.9 CIVIL JURISDICTION TERRITORIAL PRINCIPLE PROTECTIVE OR SECURITY PRINCIPLE 8.4.1 The effects doctrine NATIONALITY PRINCIPLE PASSIVE PERSONALITY UNIVERSALITY PRINCIPLE DOUBLE JEOPARDY EXTRADITION

8.10 ASYLUM 8.11 ILLEGAL SEIZURE OF OFFENDERS 8.12 THE WRONGFUL EXERCISE OF JURIDICTION 9 IMMUNITIES FROM NATIONAL JURISDICTION 9.1 INTRODUCTION 9.2 STATE IMMUNITY 9.2.1 The basis of state immunity 9.2.2 Absolute and restrictive immunity 9.2.3 The British position 9.2.4 The current legal position FOREIGN ARMED FORCES DIPLOMATIC IMMUNITY 9.4.1 The basis of diplomatic immunity
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9.3 9.4

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9.5 9.6

9.4.2 The international law on diplomatic relations 9.4.3 The diplomatic mission 9.4.4 Diplomatic personnel 9.4.5 Diplomatic communications CONSULAR IMMUNITY INTERNATIONAL ORGANISATIONS

316 316 317 318 318 319 321 321 321 337 338 338 340 340 341 343 344 345 346 355 355 355 356 357 357 359 360 361 367 369 369 371 371 373 375 375

10 STATE RESPONSIBILITY 10.1 INTRODUCTION 10.2 THE DRAFT ARTICLES ON STATE RESPONSIBILITY 10.3 FAULT 10.3.1 Objective or risk responsibility 10.3.2 Subjective responsibility 10.4 IMPUTABILITY 10.4.1 Organs of the state 10.4.2 Individuals 10.4.3 Ultra Vires acts 10.4.4 Insurrectionaries 10.5 INTERNATIONAL CRIMES 10.5.1 The International Law Commission and the Draft Code of Crimes against the Peace and Security of Mankind 10.5.2 An international criminal court 10.6 STATE RESPONSIBILITY FOR THE TREATMENT OF ALIENS 10.6.1 Standard of treatment 10.7 LOCUS STANDI AND THE RIGHT TO BRING CLAIMS 10.8 NATIONALITY OF CLAIMS 10.8.1 Individuals 10.8.2 Corporations and their shareholders 10.9 EXHAUSTION OF LOCAL REMEDIES 10.10 DEFENCES AND JUSTIFICATIONS 10.11 REMEDIES FOR INTERNATIONAL WRONGS 11 LAW OF THE SEA 11.1 INTRODUCTION 11.2 BASELINES 11.2.1 Straight baselines 11.2.2 Bays 11.2.3 River mouths 11.2.4 Harbour works
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11.3

11.4

11.5

11.6

11.7

11.8

11.2.5 Low-tide elevations 11.2.6 Islands 11.2.7 Reefs 11.2.8 Archipelagos INTERNAL WATERS 11.3.1 Rights of access to ports and other internal waters 11.3.2 Exercise of jurisdiction over foreign ships in internal waters 11.3.3 Archipelagic waters TERRITORIAL SEA 11.4.1 The breadth of the territorial sea 11.4.2 Delimitation of maritime boundaries 11.4.3 The right of innocent passage 11.4.4 The right to deny and suspend passage 11.4.5 Straits THE EXCLUSIVE ECONOMIC ZONE (EEZ) AND THE CONTIGUOUS ZONE 11.5.1 Rights within the EEZ THE CONTINENTAL SHELF 11.6.1 Continental shelf rights 11.6.2 Delimitation of the continental shelf and the EEZ HIGH SEAS 11.7.1 Freedom of the high seas 11.7.2 Jurisdiction on the high seas 11.7.2.1 The flagging of ships 11.7.2.2 Collisions at sea 11.7.2.3 Exceptions to the flag states exclusive jurisdiction 11.7.3 Hot pursuit 11.7.4 Safety of shipping INTERNATIONAL SEA BED 11.8.1 The LOSC regime

375 375 376 377 377 378 378 379 379 379 380 380 381 381 382 383 383 384 384 386 386 387 387 388 388 389 390 390 391 483 483 483 486 486 486 499 499

12 AIR AND SPACE LAW 12.1 AIR SPACE 12.2 THE CHICAGO CONVENTION 12.3 UNAUTHORISED AERIAL INTRUSION 12.4 JURISDICTION OVER AIRCRAFT 12.4.1 Threats to aviation security 12.5 THE LIABILITY OF AIRLINE COMPANIES 12.6 OUTER SPACE

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13 THE PEACEFUL SETTLEMENT OF DISPUTES 13.1 INTRODUCTION 13.2 NEGOTIATION AND CONSULTATION 13.3 GOOD OFFICES 13.4 MEDIATION 13.5 CONCILIATION 13.6 INQUIRY 13.7 ARBITRATION 13.8 JUDICIAL SETTLEMENT 13.8.1 The World Court 13.8.2 Composition of the Court 13.8.3 Jurisdiction of the Court 13.8.3.1 Jurisdiction in contentious cases 13.8.3.2 Incidental jurisdiction 13.8.3.3 Advisory opinions 13.8.4 Law applied by the Court 13.8.5 Effect of judgment 13.8.6 Non-appearance 13.9 SETTLEMENT WITHIN THE UN 14 THE USE OF FORCE 14.1 INTRODUCTION 14.2 THE LAW BEFORE 1945 14.3 THE LAW AFTER 1945: ARTICLE 2(4) OF THE UN CHARTER 14.4 THE DEFINITION OF FORCE 14.5 THE JUSTIFICATIONS FOR THE UNILATERAL USE OF FORCE 14.5.1 Self-defence 14.5.2 Invitation and civil wars 14.5.3 Protection of nationals and property abroad 14.5.4 Humanitarian intervention 14.5.5 Self-determination 14.6 COLLECTIVE USE OF FORCE 14.6.1 The United Nations a brief introduction 14.6.2 The UN and collective use of force the Security Council 14.6.3 Enforcement action under Chapter VII 14.6.3.1 Korea 1950 14.6.3.2 Rhodesia 1965 14.6.3.3 Iraq 14.6.3.4 Somalia, Bosnia and Haiti 14.6.4 Peace-keeping actions
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525 525 536 536 537 538 541 541 543 543 555 557 557 559 562 567 567 568 568 591 591 591 595 600 601 601 606 609 611 612 613 613 614 616 616 617 617 618 621

Contents

14.6.5 The General Assemblys role 14.6.6 Regional organisations 15 THE REGULATION OF ARMED CONFLICT 15.1 INTRODUCTION 15.2 THE SOURCES OF THE LAW OF ARMED CONFLICT 15.3 APPLICATION OF THE LAW: INTERNATIONAL AND NON- INTERNATIONAL ARMED CONFLICTS 15.4 EFFECT OF OUTBREAKS OF WAR AND ARMED CONFLICTS 15.5 RULES ON BELLIGERENCE 15.5.1 Restrictions on weapons 15.5.1.1 Conventional weapons 15.5.1.2 Weapons of mass destruction 15.5.1.3 Biological and chemical weapons 15.5.1.4 Environmental weapons 15.5.2 Restrictions on methods of warfare 15.5.3 Humanitarian rules 15.5.3.1 Treatment of civilians 15.5.3.2 Specially protected groups 15.6 RESPONSIBILITY AND ENFORCEMENT 16 HUMAN RIGHTS 16.1 INTRODUCTION 16.2 THE SOURCES OF THE LAW 16.2.1 General international agreements 16.2.2 Specialised international agreements 16.2.3 Regional agreements 16.2.3.1 European Convention for the Protection of Human Rights and Fundamental Freedoms 1950 16.2.3.2 Other regional agreements 16.2.4 Customary rules 16.3 THIRD GENERATION HUMAN RIGHTS 16.3.1 The right to self-determination 16.4 ENFORCEMENT 16.4.1 UN mechanisms 16.4.2 European mechanisms 17 ECONOMIC RELATIONS 17.1 INTRODUCTION 17.1.1 The nature of international economic law and its definition
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622 623 625 625 626 627 628 628 628 630 640 667 668 669 671 671 672 673 679 679 682 682 720 721 721 722 722 723 724 728 729 730 733 733 734

Sourcebook on Public International Law

17.2 THE SOURCES OF INTERNATIONAL ECONOMIC LAW 17.3 FREE TRADE AND THE WTO 17.3.1 Commitment to most-favoured-nation trade 17.3.2 Reduction of tariff barriers 17.3.3 Non-discrimination 17.3.4 Import quotas 17.3.5 Anti-dumping 17.3.6 Export subsidies 17.4 FINANCIAL STABILITY 17.4.1 The International Monetary Fund 17.4.2 The International Bank for Reconstruction and Development 17.5 DEVELOPMENT 17.6 EXPROPRIATION OF FOREIGN-OWNED PROPERTY 18 ENVIRONMENTAL PROTECTION 18.1 INTRODUCTION 18.2 SOURCES 18.3 THE STOCKHOLM CONFERENCE 18.4 THE ENVIRONMENT AND DEVELOPMENT 18.5 THE 1992 EARTH SUMMIT 18.6 GENERAL PRINCIPLES 18.6.1 The duty to prevent, reduce and control environmental harm 18.6.2 Consultation, co-operation and communication 18.6.3 The polluter pays principle 18.7 POLLUTION 18.7.1 Atmospheric pollution 18.7.2 Marine pollution 18.7.3 Nuclear energy 18.8 CONSERVATION OF NATURAL RESOURCES 18.8.1 Conservation of migratory and land-based species 18.8.2 Conservation of marine resources 18.8.3 Antarctica 18.9 A RIGHT TO A DECENT ENVIRONMENT APPENDIX UNITED NATIONS MEMBER STATES Index

740 741 757 757 758 758 758 759 759 759 760 761 786 791 791 793 795 800 804 808 809 810 810 810 811 819 833 833 837 851 851 852 853 861

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TABLE OF CASES
Aaland Islands case (1920) LNOJ Sp Supplement No 4 . . . . . . . . . . . . . . . . . . . . . . . . . .246 Adams v National Bank of Greece [1961] AC 255 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .298 Administrateur des Affaires Maritimes, Bayonne v Dorca Marina (Cases 5052/82) [1982] ECR 3949 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .50 Aerial Incident of 27 July 1955 case [1956] ICJ Rep . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .360 Ahlstrom Osakeyhtio v Commission [1988] ECR 5193 . . . . . . . . . . . . . . . . . . . . . . . . . . .277 Alabama Claims Arbitration (1872) Moore, 1 Int Arb 495 . . . . . . . . . . . . . . . . . . . . .38, 542 Alcoa decision see US v Aluminium Co of America Alfred Dunhill of London Inc v Republic of Cuba 425 US 682 (1976) . . . . . . . . . . . . . .289 Ambatelios Arbitration (1956) 12 RIAA 83 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .350 Amministrazione delle Finanze dello Stato v SPI and SAMI (Joined Cases 267 and 269/81) [1983] ECR 801 . . . . . . . . . . . . . . . . . . . . . . . . . . . .47, 50 Anglo-French Continental Shelf Arbitration (1979) 53 ILR 6 . . . . . . . . . . . . . . . . . . . . . .385 Anglo-Iranian Oil case [1952] ICJ Rep . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .130 Anglo-Norwegian Fisheries case [1951] ICJ Rep . . . . . . . . . . . . . . . . . . . . . . .39, 71, 74, 372 Aprile Srl en Liquidation v Amministrazione delle Finanze dello Stato (Case C-125/94) [1995] ECR I-2919 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .55 Arab Monetary Fund v Hashim [1991] 2 WLR 729 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .220 Arantzazu Mendi, The [1939] AC 256 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .221 Archion Ndhlovu and others v The Queen, Appellate Division, High Court of Rhodesia, 13 September 1968; [1968] (4) SALR 515 . . . . . . . . . . . . . .208 Assessment of Aliens case [1970] ILR 43 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .153 Asylum case see Columbia v Peru Attorney General v Burgoa (Case 812/79) [1980] ECR 2787 . . . . . . . . . . . . . . . . . . . .51, 52 Australia v France [1974] ICJ Rep . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .126, 387, 666, 792 Baccus SA v Nacional del Trigo [1957] 1 QB 438 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .292 Barbie case [1983] 78 ILR 78 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .282 Barcelona Traction, Light and Power Limited Case see Belgium v Spain Beattie v US (1984) 756 F 2d 91 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .264, 269 Belgium v Spain (Second Phase) [1970] ICJ Rep . . . . . . . . . . . . . . . . . . . . . . . .6, 38, 92, 153, 212, 252, 359, 723 Belios v Switzerland (1988) 10 EHRR 466, ECHR . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .134 Bolivar Railway Company Claim (1903) RIAA 445 . . . . . . . . . . . . . . . . . . . . . . . . . .344, 345 Bosnia-Herzogovina v Yugoslavia, Case Concerning the Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Preliminary Objections) Judgment of ICJ of 11 July 1996 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .167, 169, 557 British Guiana v Venezuela Boundary Arbitration (1899) 92 British and Foreign State Papers 160 (18991900) . . . . . . . . . . . . . . . . . . . . . . . . . .241

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British Nylon Spinners Ltd v Imperial Chemical Industries [1953] 1 Ch 19 . . . . . . . . .276 Brown v Duchesne 60 US 183 (1875) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .271 Buck v AG [1965] Ch 745 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .288 Buttes Gas & Oil Co v Hammer [1975] QB 557 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .296 Buvot v Barbuit (1737) Cas t Talbot 281 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .40, 41 Caire claim (1929) RIAA 575 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .338, 343 Cameroon v Nigeria, Case Concerning the Land and Maritime Boundary between Cameroon and Nigeria (Provisional Measures) Order of 15 March 1996 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .56062 Campbell v Cosans (1982) 4 EHRR 293 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .730 Carl Zeiss Stiftung v Rayner and Keeler Ltd (No 2) (1967) . . . . . . . . . . . . . . . . . . . . . . .221 Caroline, The (1841) 29 British and Foreign State Papers 113738; 30 British and Foreign State Papers 19596 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .603 Chamizal Arbitration see US v Mexico Chevreu case (1931) RIAA 575 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .356 Chorzow Factory (Jurisdiction) case (1927) PCIJ Ser A, No 9 . . . . . . . . . . . . . . . . . .92, 164 Chorzow Factory (Merits) case (1928) PCIJ Ser A, No 17 . . . . . . . . . . . . . . . . . . . . . .92, 367 Christina, The [1938] AC 485 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .250, 299, 300 Chung Chi Cheung v The King [1939] AC 160 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .41 City of Berne v The Bank of England (1804) 9 Ves Jun 347 . . . . . . . . . . . . . . . . . . . . . . . .219 Civil Air Transport Inc v Central Air Transport Corporation [1953] AC 70 . . . . . . . . .222 Clipperton Island Arbitration see France v Mexico Columbia v Peru [1950] ICJ Rep . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .66, 73, 78, 284 Commission v FRG (Case C-64/94) [1996] ECR . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .57 Commission v Italian Republic (Case 10/61) [1962] ECR 1 . . . . . . . . . . . . . . . . . . . . . . . .52 Commission v Italy (Case 39/72) [1973] ECR 101 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .48 Competence of the General Assembly for the Admission of a State to the UN case [1950] ICJ Rep . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .143 Conceria Daniele Bresciani v Amministrazione delle Finanze Stato (Case 87/75) [1976] ECR 129 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .54, 55, 56 Continental Shelf case [1985] ICJ Rep . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .38285 Continental Shelf (Tunisia/Libyan Arab Jamahirya) case [1982] ICJ Rep . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .93, 385, 560, 657 Corfu Channel (Jurisdiction) case [1947] ICJ Rep . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .557 Corfu Channel (Merits) case [1949] ICJ Rep . . . . . . . . . . . . . . . . . . . . . . . . . . . .339, 381, 598, 601, 602, 660, 809 Customs Regime between Germany and Austria case (1931) PCIJ Ser A/B, No 41 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .186 Cutting case (1887) Moore, Digest of International Law, vol II, 1906, p 228 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .259, 272, 279
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De Haber v Queen of Portugal (1851) 17 QB 171 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .289 Defrenne v SABENA (Case 43/75) [1976] ECR 455 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .57 Demirel v Stadt Schwabisch Gmund (Case 12/86) [1987] ECR 3719 . . . . . . .48, 50, 53, 55 Denmark v Norway, Case Concerning Maritime Delimitation in the Area Between Greenland and Jan Mayen [1993] ICJ Rep . . . . . . . . . . .93, 385, 386 Department of Trade v Maclaine Watson [1990] 2 AC 418 . . . . . . . . . . . . . . . . . . . . . . . . .43 Derbyshire County Council v Times Newspapers Ltd [1992] QB 770 . . . . . . . . . . . . . . .45 Deutsche Continental Gas-Gesellschaft v Polish State (1929) 5 AD 15 . . . . . . . . . . . . . .184 Deutsche Shell AG v Hauptzollamt Hamburg-Harburg (Case C-188/91) [1993] ECR I-363 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .49 Diversion of Water from the Meuse case (1937) PCIJ Ser A/B, No 70 . . . . . . . . . . . . . . .93 Douaneagent der NV Nederlandse Spoorwegen v Inspecteur der Invoerrechten en Accijzen (Case 38/75) [1975] ECR 1439 . . . . . . . . . . . . . . . . . . . . . .50 DPP v Doot [1973] AC 807 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .255 Dralle v Republic of Czechoslovakia [1950] 17 ILR 165 . . . . . . . . . . . . . . . . . . . . . . . . . .289 Duff Development Co v Kelantan [1924] AC 797 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .301 Dyestuffs case see ICI v Commission Eastern Carelia case (1923) PCIJ Ser B, No 5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .563, 565 Eichmann case [1961] 36 ILR 5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .281, 285 El Salvador v Nicaragua (1917) AJIL 674 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .374 Electricity Company of Sofia and Bulgaria PCIJ Ser A/B, No 77 (1939) . . . . . . . . . . . . .35 Elettronica Sicula SpA (ELSI) case [1989] ICJ Rep . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .361 Empire of Iran case (1963) 45 ILR 57 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .302 Employment of Women During the Night case (1932) PCIJ Ser A/B, No 50 . . . .143, 144 Environmental Defense Fund v Massey (1993) 986 F 2d 528 . . . . . . . . . . . . . . . . . . . . . .270 Etablissements A De Bloos v Etablissements Bouyet SA [1977] 1 CMLR 60 . . . . . . . . .295 Ethiopia and Liberia v South Africa (Second Phase) [1966] ICJ Rep . . .6, 17, 95, 153, 356 Expenses case [1962] ICJ Rep . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .621 Federal Republic of Germany v Denmark [1969] ICJ Rep . . . . . . . .65, 67, 7276, 83, 132, 184, 211, 385, 536, 599 Federal Republic of Germany v The Netherlands [1969] ICJ Rep . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .65, 67, 7276, 83, 132, 184, 211, 385, 536, 599 Fender v St John-Mildmay [1938] AC 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .147 Ferchimex SA v Council (Case T-164/94) [1995] ECR II-2681 . . . . . . . . . . . . . . . . . . . . . .50 Filartiga v Pena-Irala (1980) 630 F2d 876 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .722 Finnish Shipowners Arbitration (1934) RIAA 1479 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .360 Fisheries Jurisdiction case see UK v Iceland
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Foster v British Gas plc (Case C-188/89) [1990] ECR I-3133 . . . . . . . . . . . . . . . . . . . . . . . .57 Fothergill v Monarch Airlines Ltd [1981] AC 251 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .44 France v Mexico (1932) 26 AJIL 390 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .233 France v UK [1953] ICJ Rep . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .226, 227, 236 Free Zones of Upper Savoy and District of Gex case (1932) PCIJ Ser A, No 22 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .246, 536 Gdynia Ameryka Linie v Boguslawski [1953] AC 70 . . . . . . . . . . . . . . . . . . . . . . . . . . . .221 German Interests in Polish Upper Silesia, Ser A, No 7 (1926) . . . . . . . . . . . . . . . . . . . . . .36 Germany v Council (Case C-280/93) [1994] ECR I-4973 . . . . . . . . . . . . . . . . . . . . . . . .54, 55 Greece v Commission (Case 30/88) [1989] ECR 63 . . . . . . . . . . . . . . . . . . . . . . . . . . . .47, 48 Guinea Bissau v Senegal [1991] ICI Rep . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .543 Guinea/Guinea-Bissau Maritime Delimitation case [1985] ICJ Rep . . . . . . . .383, 385, 542 Gulf of Maine case [1984] ICJ Rep . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .75, 385, 556 Gur Corporation v Trust Bank of Africa [1986] 3 WLR 583 . . . . . . . . . . . . . . . . . . . . . . .220 Haegemann v Belgium (Case 181/73) [1974] ECR 449 . . . . . . . . . . . . . . . . . . .4749, 54, 55 Haile Selassie v Cable and Wireless Ltd (No 2) [1939] Ch 182 . . . . . . . . . . . . . . . . . . . . .220 Hauptzollamt Mainz v Kupferberg (Case 104/81) [1982] ECR 3641 . . . . . . .4749, 5156 Heyman v Darwins [1942] AC 356 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .294 Home Missionary Society Claim (1920) RISS 42 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .339 Hughes Aircraft v US (1993) 29 Fed Cl 197 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .266, 271 Hungary v Slovakia, Case Concerning the Gabcikovo-Nagymaros Project Judgment of ICJ of 25 September 1997 . . . . . . . . . . . . . . . . . . . . . . . .157, 36367 ICI v Commission [1972] ECR 619 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .277 I Congreso del Partido [1981] 2 All ER 1064 . . . . . . . . . . . . . . . . . . . . . . . . . . . .290, 291, 296 Im Alone, The (1933) RIAA 1609 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .368, 389 Interhandel case [1959] ICJ Rep . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .559 International Fruit Company NV v Produktschap voor Groenten en Fruit (Joined Cases 21 and 24/72) [1972] ECR 1219 . . . . . . . . . . . . . . . . . . .4750, 54 International Shoe v Washington 326 US 310 (1945) . . . . . . . . . . . . . . . . . . . . . . . . . . . . .261 International Tin Council case [1990] 2 AC 418 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .43, 319 Interpretation of Peace Treaties case [1950] ICJ Rep . . . . . . . . . . . . . . . . . . . . . . . . .535, 566 Ireland v UK (1978) 58 ILR 190 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .731 Islamic Republic of Iran v United States of America, Case Concerning Oil Platforms (Preliminary Objection) Judgment of ICJ of 12 December 1996 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .142 Island of Palmas case see Netherlands v US

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Janson v Driefontein Consolidated Mines [1902] AC 484 . . . . . . . . . . . . . . . . . . . . . . . . .147 Jean-Louis Thevenon and Others v Landesversicherrungsanstalt (Case C-475/93) [1995] ECR I-3813 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .52 Jessie case (1921) RIAA 575 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .338 Joyce v DPP [1946] AC 347 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .275 Juan Ysmael & Co Inc v Indonesian Government [1955] AC 72 . . . . . . . . . . . . . . . . . . .300 Koch, in re [1970] ILR 30 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .153 Krajina v The Tass Agency [1949] 2 All ER 274 . . . . . . . . . . . . . . . . . . . . . . . . . . . . .290, 296 Kuwait Airways Corporation v Iraqi Airways Company [1995] 1 WLR 1147; [1995] 3 All ER 694, HL . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .222 Lac Lanoux Arbitration see Spain v France Land, Island and Maritime Frontier case [1992] ICJ Rep . . . . . . . . . . . . . . . . . . . . . . . . .560 Lawless v Ireland (1961) EHRR 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .731 Legality of the Use by the State of Nuclear Weapons in Armed Conflict [1966] ICJ Rep . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .18, 164, 363, 567, 645, 663 Legal Status of Eastern Greenland see Norway v Denmark Lingens v Austria (1986) ECHR 407 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .731 Lockerbie case (1992) ICJ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .283, 560 Lotus, The (1927) PCLJ Ser A, No 10 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .9, 69, 75, 184, 249, 252, 255, 277, 279, 388 Luther v Sagor [1921] 1 KB 456 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .221 Maclaine Watson v Department of Trade [1989] 3 All ER 523 . . . . . . . . . . . . . . . . . .42, 219 Mahon v Air New Zealand Ltd, PC, 1 AC 808; [1984] 3 All ER 201 . . . . . . . . . . . . . . . .269 Mallen Claim (1927) RIAA 173 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .344 Marbury v Madison 5 US (1 Cranch) 137 (1803) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .23 Marshall v Southampton & SWHAHA (Teaching) (Case C-91/92) [1986] ECR 723 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .57 Mavrommatis Palestine Concessions (Jurisdiction) case (1924) PCIJ . . . . . . . . . . .535, 536 Mellenger v New Brunswick Development Corporation [1971] 1 WLR 604 . . . . . . . .292 Merge Claim [1955] ICJ Rep . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .359 Metalsa Srl v Italy (Case C-312/91) [1993] ECR I-3751 . . . . . . . . . . . . . . . . . . . . . . . . . . . .55 Metliss v National Bank of Greece [1958] AC 509 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .298 Military and Paramilitary Activities in and against Nicaragua (Jurisdiction) case [1984] ICJ Rep . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .559 Military and Paramilitary Activities in and against Nicaragua (Merits) case [1986] ICJ Rep . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .76, 98, 100, 152, 342, 378, 595, 596, 605, 608, 646, 650, 738
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Miller v California (1971) 413 US 15 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .275 Ministre public et direction du travail et lemploi v Levy (Case C-158/91) [1993] ECR I-4287 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .51, 52 Minquiers and Ecrehos case see France v UK Mostyn v Fabrigas (1774) 98 ER 1021 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .265 Mund and Fester v Hatrex International Transport (Case C-389/92) [1994] ECR 1-467; . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .49 Nakajima All Precision Co v Council (Case C-69/89) [1991] ECR I-2069 . . . . . . . . . . . .50 Namibia opinion [1971] ICJ Rep . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .153, 199, 556 Nationality Decrees in Tunis and Morocco case (1923) PCIJ Ser B, No 4 . . . . . . . . . . . .278 Naulilaa Arbitration see Germany v Portugal Naylor Benzon Ltd v Krainische Ind Ges [1918] 1 KB 331 . . . . . . . . . . . . . . . . . . . . . . . .147 Neer Claim (1926) RIAA 60 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .356 Netherlands v US (1928) 2 RIAA 829 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .22628, 238, 244 New Zealand v France [1974] ICJ Rep . . . . . . . . . . . . . . . . . . . . . . . . . . . . .126, 387, 649, 792 North Sea Continental Shelf cases see Federal Republic of Germany v Denmark; Federal Republic of Germany v The Netherlands Norway v Denmark (1933) PCIJ Ser A/B, No 53 . . . . . . . . . . . .126, 131, 143, 224, 225, 235 Norwegian Loans case [1957] ICJ Rep . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .360, 558 Nottebohm case [1955] ICJ Rep . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .278, 358 Nova (Jersey) Knit Ltd v Kammgarnspinnerei [1977] 1 WLR 713 . . . . . . . . . . . . . . . . .294 Nuclear Tests cases see Australia v France Nuclear Tests cases see New Zealand v France Office Nationale de lEmploi v Kziber (Case C-18/90) [1991] ECR I-199 . . . . . . . . . . . .53 Office Nationale de lEmploi v Minne (Case C-13/93) [1994] ECR I-371 . . . . . . . . . . . . .51 Pabst & Richarz KZ v Hauptzollamt Oldenburg (Case 17/81) [1982] ECR 1331 . . . . . .55 Panevezys-Saldutiskis case (1939) PCIJ Ser A/B, No 76 . . . . . . . . . . . . . . . . . . . . . . . . . .357 Paquet Habana, The 175 US 677 (1900) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .256 Parlement Belge, The (1880) 5 PD 197 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .290 Paulo Faccini Dori v Recreb Srl (Case C-91/92) [1994] ECR I-3325 . . . . . . . . . . . . . . . . .57 Philippine Admiral, The [1977] AC 373 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .290 Playboy Enterprises Inc v Frena, 839 F Supp 1552 (Md Fla 1993) . . . . . . . . . . . . . . . . . .273 Polydor Ltd v Harlequin Record Shops Ltd (Case 270/80) [1982] ECR 329 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .48, 52, 54, 55, 57 Porto Alexandre, The (1920) AC 30 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .290

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Post Office v Estuary Radio [1968] 2 QB 740 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .374, 375 Public Prosecutor v Y, Supreme Court, 1957 (1961) 24 Int L Rep 265 . . . . . . . . . . . . . . .257 R v Keyn (The Franconia) (1876) 2 Ex D 63 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .40, 41 R v Ministry of Agriculture, Fisheries and Food ex p Anastasiou (Case C-432/92) [1994] ECR I-3087 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .53 R v Plymouth Justices ex p Driver [1986] 1 QB 95 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .285 R v Secretary of State for the Home Department ex p Brind [1991] 1 AC 696 . . . . . . . .45 R v Secretary of State for Transport ex p Factortame (No 2) [1991] 1 AC 603 . . . . . . . . .44 Radio Telefis Eireann and Independent Television Publications v Commission (Cases C-241/91P and C-242/91P) [1995] ECR I-743 . . . . . . . . . . . . . .52 Rahimtoola v Nizam of Hyderabad [1958] AC 379 . . . . . . . . . . . . . . . . . . . . . . . . . .290, 299 Rainbow Warrior Arbitration (1987) 26 ILM 1346 . . . . . . . . . . . . . . . . . . . . . . . . . . .341, 368 Religious Technology Center v Netcom, No C95-20091 RMW (ND Cal, 3 March 1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .273 Reparation for Injuries Suffered in the Service of the United Nations case [1949] ICJ Rep . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .10, 175, 199 Republic of Somaila v Woodhouse Drake and Carey SA [1993] QB 54 . . . . . . . . . . . . .219 Reservations to the Convention on Genocide case [1951] ICJ Rep . . . . . . . . . . . . .135, 565 Right of Passage over Indian Territory (Merits) [1960] ICJ Rep . . .73, 77, 78, 85, 245, 246 Rights of US Nationals in Morocco case [1952] ICJ Rep . . . . . . . . . . . . . . . . . . . . . . . . . .197 Rindos v Hardwick No 940164 (31 March 1994) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .274 River Oder case (1929) PCIJ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .144 SIOT v Ministero delle Finanze [1983] ECR 731 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .50 Saloman v Commissioners of Customs and Excise [1967] 2 QB 116 . . . . . . . . . . . . . . . . .44 Schooner Exchange, The v McFaddon (1812) 11 US (7 Cranch) 116 . . . .259, 270, 287, 288 Serbian Loans case (1929) YBILC 1949, p 286 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .38 Sevince v Staatssecretaris van Justitie (Case C-192/89) [1990] ECR I-3461 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .47, 48, 53, 56 Shaw v DPP [1962] AC 220 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .147 Short v Iran (1988) AJIL 140 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .345 Smith v US 507 US 197, 122 L Ed 2d, 548 (1993) . . . . . . . . . . . . . . . . . . . . .265, 266, 269, 271 Somchai Liangsiriprasert v Government of the USA [1990] 3 WLR 606 . . . . . . . . . . . .255 South West Africa case [1950] ICJ Rep . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .92, 130 South West Africa cases [1962] ICJ Rep . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .16, 17 South West Africa cases see Ethiopia and Liberia v South Africa Sovereignty of Certain Frontier Land case [1959] ICJ Rep . . . . . . . . . . . . . . . . . . . . . . . .129 Sowerby v Smith [1884] LR 9 CP 524 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .293
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Spain v France (1957) 24 ILR 101 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .810 Stanley v Georgia, 394 US 557 (1969) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .275 Swiss-Israel Trade Bank v Government of Malta [1972] 1 Lloyds Rep 497 . . . . . . . . .292 Techt v Hughes (1920) New York CA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .157 Tel-Oren v Libyan Arab Republic 765 F 2d 774 (1984) . . . . . . . . . . . . . . . . . . . . . . . . . . .196 Temple of Preah Vihear case [1962] ICJ Rep . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .92, 368 Texaco Overseas Petroleum Co v Libya (1978) 17 ILM 1 . . . . . . . . . . . . . . . . . . . . . . . . . .96 Thai-Europe Tapioca Service Ltd v Government of Pakistan [1975] 1 WLR 1485 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .298 The Queen v Jameson [1896] 2 QB 425 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .251 Timberlane Lumber Co v Bank of America [197697] ILR 66 . . . . . . . . . . . . . . . . . . . . .276 Tokyo Suikosha case (1979) 13 Japanese Ann of IL 113 . . . . . . . . . . . . . . . . . . . . . . . . . .153 Trail Smelter Arbitration see US v Canada Treacey v DPP [1971] AC 537 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .254 Trendtex Trading Corporation v Central Bank of Nigeria [1977] QB 578; 2 WLR 356 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .42, 43, 290 UK v Iceland [1974] ICJ Rep . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .156, 162, 294, 382 Union Bridge Company Claim (1924) RIAA 138 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .343 US Diplomatic and Consular Staff in Teheran case [1980] ICJ Rep . . . . .31416, 341, 558 US ex rel Claussen v Day 279 US 398 (1929) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .265 US v Aluminium Co of America (1945) 148 F 28 147 . . . . . . . . . . . . . . . . . . . . . . . . .276, 277 US v Alvarez-Machain [1992] 95 ILR 355 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .280, 285 US v Canada (1941) 3 RIAA 1905; 196566 (Arbitral Tribunal) . . . . . . . . . . . . . . . .791, 809 US v Dollfus Mieg & Cie [1952] AC 582 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .299, 300 US v Escamilla 467 F 2d 341 (4th Cir 1972) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .265 US v Gonzales (1986) 80 AJIL 653 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .105 US v Mexico (1911) 5 AJIL 782 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .239 US v Rodriguez 182 F Supp 479 (SD Cal 1960) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .258 US v Yunis (1989) 83 AJIL 94 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .279, 285 Van Gend en Loos v Nederlandse Administratie der Belastingen (Case 26/62) [1963] ECR 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .52 Voting Procedure case (South West Africa) [1955] ICJ Rep . . . . . . . . . . . . . . . . . . . . . . .738 West Rand Central Gold Mining Co v R [1905] 2 KB 391 . . . . . . . . . . . . . . . . . . . . . . . . . .41 Western Sahara case [1975] ICJ Rep . . . . . . . . . . . . . . . . . . . . . . . . . . .215, 224, 564, 565, 724 Wimbledon case (1923) PCIJ Ser A, No 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .65

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Table of Cases
Woodpulp case see Ahlstrom Osakeyhtio v Commission Yeager v Iran [1987] 17 Iran-US Claims Tribunal Reports . . . . . . . . . . . . . . . . . . . . . . . .342 Yessenin-Volpin v Novosti Press Agency, Tass Agency and the Daily World (1978) 443 F Sup 849 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .296 Youmans Claim (1926) RIAA 110 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .343 Yousfi v Belgian State (Case C-58/93) [1994] ECR I-1353 . . . . . . . . . . . . . . . . . . . . . . . . . .52 Zoulika Krid v Caisse Nationale dAssurances Vieillesse des Travailleurs Salaries (Case C-103/94) [1995] ECR I-719 . . . . . . . . . . . . . . . . . . . . . . . .55

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TABLE OF STATUTES
Arbitration Act 1950 ...........................294, 301 s 1(1)...........................................................294 Army Act 1955 s 70 .............................................................278 Single European Act 1986 Art 25.........................................................810 Slave Trade Act 1873 s 26 .............................................................281 State Immunity Act 1978 ...........290, 295, 296 s 1 .......................................................291, 293 ss 211........................................................293 s 2 ...............................................................294 s 3 ..............................................291, 293, 294, 296, 297, 301 s 4 .......................................................294, 297 ss 57 .................................................296, 297 s 5 ...............................................................297 s 6 ...............................................................298 s 6(2)...........................................................298 s 7 ...............................................................300 s 8 ...............................................................300 s 9 ...............................................................301 s 10 .............................................................301 s 11 .............................................................302 s 14(1) ................................................292, 295 s 14(1)(a)....................................................291 s 14(5) ................................................292, 293 s 14(6).........................................................293 s 17(1).........................................................293 s 20 .............................................................291 s 21 .............................................................291 Status of Ciskei Act 1981 (South Africa)...........................................220 Statute of the International Court of Justice ..................................54455 Art 2 ...........................................................555 Art 17(2) ....................................................556 Art 26.................................................556, 808 Art 34.........................................................557 Art 36(1) ....................................................557 Art 36(2) ..............................................55759 Art 36(3) ....................................................558 Art 36(6) ............................................558, 559 Art 38 ..............63, 64, 72, 85, 9395, 98, 738 Art 38(1) ....................................................567 Art 38(1)(b) .................................................78 Art 38(1)(c) ...............................39, 8486, 90 Art 38(2) ..............................................93, 567 Art 41...................................................56062 Art 53.........................................................568 Art 59.............................................63, 94, 567
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Broadcasting Act 1981 ..................................45

Carriage by Air Act 1961..............................44 Civil Jurisdiction and Judgments Act 1982.....................................................254 Customs and Excise Act 1952 .....................44 Customs and Excise Management Act 1979 s 170 ...........................................................276

Diplomatic Privileges Act 1964 ......................................44, 291, 316

European Communities Act 1972 ..............43 Extradition Act 1989 ...................................283

Federal Tort Claims Act (US)............266, 269 Foreign Sovereign Immunities Act 1976 (US) ...................................289, 301

General Act on Pacific Settlement of International Disputes 1928........53840

Kiribati Act 1979..........................................248

Nazi and Nazi Collaborators (Punishment) Law 1951 (Israel)............282

Protection of Trading Interests Act 1980.....................................................277

Sourcebook on Public International Law


Art 60.........................................................567 Art 61.........................................................567 Art 62.................................................559, 560 Art 63.........................................................559 Art 65(1)....................................562, 563, 565

Territorial Waters Jurisdiction Act 1878.......................................................41

xxvi

TABLE OF INTERNATIONAL CONVENTIONS AND OTHER DOCUMENTS


Agreement Governing the Activities of States on the Moon and Other Celestial Bodies 1979 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .500, 50815 Agreement on the Rescue of Astronauts, the Return of Astronauts and the Return of Objects Launched into Outer Space 1968 . . . . . . . . . . . .500, 50508 Antarctic Treaty 1959 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .65, 139, 244, 264, 26670, 645, 654, 656, 657, 793, 851 Biological Weapons Convention 1972 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .668 Brussels Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters 1968 . . . . . . . . . . . . . . . . . . . .49, 253, 254 Charter of Economic Rights and Duties of States 1974 . . . . . . . . . . . . . . . . . . . .77483, 800 Chemical Weapons Convention 1992 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .668 Chicago Convention on Internal Civil Aviation 1944 . . . . . . . . . . . . . . . . . . . . . . . . .48385 Chicago Internal Air Services Transit Agreement 1944 . . . . . . . . . . . . . . . . . . . . . . .48586 Convention for the Conservation of Antarctic Seals 1972 . . . . . . . . . . . . . . . . . . . . . . . .851 Art 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .268 Convention for the Prevention of Marine Pollution by Dumping from Ships and Aircraft 1972 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .820 Convention for the Prevention of Marine Pollution from Land Based Sources 1974 Art 4(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .809 Convention for the Prevention of Pollution by Ships 1973 . . . . . . . . . . . . . . . . . . . . . . . .820 Convention on Assistance in Case of Nuclear Accident or Radiological Emergency 1986 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .833 Convention on Biological Diversity 1992 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .84951 Convention on Early Notification of Nuclear Accident 1986 . . . . . . . . . . . . . . . . . . . . . .833 Convention on Fishing and the Conservation of the Living Resources of the High Seas 1958 . . . . . . . . . . . . . . . . . . . . . . .369, 382, 40510, 819, 851 Convention on International Liability for Damage Caused by Space Objects 1972 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .500, 51623 Convention on International Trade in Endangered Species of Wild Fauna and Flora 1973 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .837, 838, 84348 Convention on Long-Range Transboundary Air Pollution 1979 . . . . . . . . . . . . . . .81016 Art 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .811 Convention on Registration of Objects Launched into Space 1975 . . . . . . . . . .500, 51516 Convention on the Conservation of Antarctic Marine Living Resources 1980 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .851 Convention on the Conservation of Migratory Species of Wild Animals 1980 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .838, 84849
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Sourcebook on Public International Law


Convention on the Continental Shelf 1958 . . . . . . . . . . . . . . . . . . . . . . .75, 369, 384, 41114 Art 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .384 Art 6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .137, 385 Convention on the Elimination of Racial Discrimination 1966 . . . . . . . . . . . . . . . . . . . .721 Art 20 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .136 Convention on the High Seas 1958 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .369, 398405 Art 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .386 Art 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .386, 387 Art 5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .388 Art 6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .387, 388 Art 11 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .388 Art 14 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .388 Art 15 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .281, 388 Art 19 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .281 Art 23 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .389 Art 110 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .390 Convention on the International Regulations for Preventing Collisions at Sea 1972 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .390 Convention on the Prevention and Punishment of the Crime of Genocide 1948 . . . . . . . . . . . . . . . . . . . . . . . . . . . .16769, 647, 661, 67478, 720 Art 9 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .135 Convention on the Prevention of Marine Pollution by Dumping of Wastes and other Matters 1972 . . . . . . . . . . . . . . . . . . . . . . . . . . . .820, 833 Convention on the Privileges and Immunities of the United Nations 1946 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .176, 319, 565 Convention on the Prohibition of Military Use of Environmental Modification Techniques 1977 . . . . . . . . . . . . . . . . . . . . . . . . . .176, 668 Convention on the Regulation of Antarctic Mineral Resource Activities 1988 Art 2.11 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .269 Convention on the Settlement of Investment Disputes 1964 . . . . . . . . . . . . . . . . . . . . . .543 Convention on the Territorial Sea and the Contiguous Zone 1958 . . . . . . . . . .369, 39298 Art 311 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .371 Art 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .371 Art 4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .372, 377 Art 7 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .374 Art 8 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .375 Art 10(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .375 Art 11(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .375 Art 12 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .380 Art 13 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .371, 375 Art 14(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .380 Art 14(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .381 Art 16(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .381 Art 24 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .382

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Table of International Conventions and Other Documents


Convention on Unlawful Acts Against Maritime Navigation 1988 Art 16(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .557 Convention on Valuation of Goods for Customs Services 1950 . . . . . . . . . . . . . . . . . . . .44 Convention on Wetlands of International Importance 1971 . . . . . . . . . . . . . . . . . . .83740 Covenant of the League of Nations 1919 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .59194 Art 14 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .87 Art 22 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .198, 679 Art 23 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .680 Declaration on Principals of International Law concerning Friendly Relations and Co-operation among States in accordance with the UN Charter 1970 . . . . . . . . . . . . . . . . . . . . . . . .52535, 595, 596, 601, 611, 612, 665 Declaration on the Establishment of a New International Economic Order 1974 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .78385 Declaration on the Human Environment (the Stockholm Declaration) 1972 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .795800, 810, 811, 833 Declaration on the Inadmissability of Intervention in the Domestic Affairs of States and the Protection of their Independence and Sovereignty 1965 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .598, 608, 611 Declaration on the Right to Development 1986 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .77073 European Convention on Human Rights 1950 . . . . . . . . . . . . . . . . . . . . . . . .45, 50, 721, 730 Art 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .249 Art 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .722 Art 10 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .45 Art 1956 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .730 European Convention on State Immunity 1972 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .290 Art 114 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .292 Art 15 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .293 Art 28 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .292 Framework Convention on Climate Change 1992 . . . . . . . . . . . . . . . . . . . . . . . . . . . .81719 General Treaty for the Renunciation of War 1928 . . . . . . . . . . . . . . . . . . . . . . . . . . .594, 595 Geneva Convention 1958 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .69, 70 Art 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .68 Art 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .68 Art 6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .68 Art 13 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .68 Geneva Conventions on the Protection of War Victims 1949 . . . . . . . . .148, 157, 210, 626, 659, 661, 67173, 675 Art 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .627

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Geneva Gas Protocol 1925 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .629630, 653, 659, 668 Geneva Protocol I 1977 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .626, 627, 660, 661, 670, 671, 675 Art 12 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .670 Art 35(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .648, 649 Art 40 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .671 Art 52 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .670 Art 54 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .671 Art 55 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .649, 668 Art 57 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .670 Art 65 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .670 Art 6971 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .671 Art 75 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .671 Art 79 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .672 Geneva Protocol II 1977 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .62628, 661, 671 Hague Convention for the Pacific Settlement of Disputes 1899 . . .626, 627, 653, 659, 660 Art 914 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .541 Art 15 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .542 Hague Convention for the Pacific Settlement of Disputes 1907 . . . . . . . . . . .626, 629, 653, 659, 661, 662 Art 935 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .541 Art 22 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .659 Art 23 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .660 Art 37 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .542 Hague Convention for the Suppression of Unlawful Seizure of Aircraft 1970 . . . .49194 Hague Convention on the Conflict of Nationality Laws 1930 Art 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .278 Art 4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .358 Hague Convention on the Recognition of Divorces and Legal Separations 1970 . . . .254 Helsinki Declaration 1975 (Final Act of the Conference on Security an Co-operation in Europe) . . . . . . . . . . . . . . . . . . . . . . . .99, 130, 192, 526, 598, 665, 722 ILC Draft Articles on State Responsibility . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .32138, 361 Art 5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .340, 356, 357 Art 6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .341 Art 7 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .341 Art 8 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .341, 342 Art 9 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .341 Art 10 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .343 Art 11 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .343, 344 Art 14 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .344 Art 19 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .345 Art 19(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .345 Art 19(3)(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .793 Art 33 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .362, 363

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ILC Draft Code of Crimes against the Peace and Security of Mankind . . . . . . . . . .34655 ILO Convention 1948 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .51 International Convention for the Safety of Life at Sea 1974 . . . . . . . . . . . . . . . . . . . . . . .390 International Convention on Civil Liability for Oil Pollution Damage 1969 . . . . . . . . .820 International Convention on the Elimination of all Forms of Racial Discrimination 1986 Art 4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .713 Art 6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .713 Art 19 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .133 International Convention on the Establishment of an International Fund for Compensation for Oil Pollution Damage 1971 . . . . . . . . . . . . . . . . . . . . . . . . . . .820 International Covenant on Civil and Political Rights 1966 . . . . . . . . . . . . . . . . . . . . . . . .65, 189, 695709, 720, 724 Art 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .193, 194 Art 2(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .149 Art 6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .695 Art 6(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .647 Art 7 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .695 Art 27 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .724 Art 40 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .729 Art 41 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .729 International Covenant on Economic, Social and Cultural Rights 1966 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .189, 68795, 720, 724, 729 Art 2(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .727 Law of the Sea Convention 1982 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .99, 369, 370, 41481, 543, 793, 82032, 851 Art 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .379 Art 411 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .371 Art 5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .371 Art 6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .376 Art 7 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .372 Art 9 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .375 Art 10 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .374 Art 11 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .375 Art 13(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .375 Art 15 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .380 Art 16 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .371 Art 18 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .380 Art 19 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .381 Art 46 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .377 Art 47 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .377 Art 5153 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .379 Art 57 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .383 Art 77(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .384 Art 79 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .384

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Art 83 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .386 Art 86 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .386 Art 87 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .386, 387 Art 88 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .387 Art 89 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .386 Art 91 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .388 Art 92 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .387 Art 97 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .388 Art 100 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .388 Art 101 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .388 Art 105 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .281 Art 109(3)(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .389 Art 111 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .389 Art 121(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .375 Art 121(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .376 Art 194(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .809 Lugano Convention 1989 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .254 Montevideo Convention on the Rights and Duties of States 1933 . . . . . . . . . . .67, 18183 Art 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .185, 208 Art 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .202 Art 6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .203 Art 9 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .356 Montevideo Convention on the Rights and Duties of States 1939 . . . . . . . . . . . . . . . . . .67 Montreal Convention for the Suppression of Unlawful Acts Against the Safety of Civil Aviation 1971 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .49499 North Atlantic Treaty Agreement 1951 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .303 Paris Convention on the Regulation of Aerial Navigation 1919 . . . . . . . . . . . . . . . . . . .483 Peace Treaty of Paris 1763 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .248 Refugee Convention 1951 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .284 Rio Declaration on Environment and Development 1992 . . . . . . . . .793, 80508, 810, 837 Singapore Ministerial Declaration 1996 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .75157 Slavery Convention 1926 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .281, 720 Tokyo Convention on Offences and Certain Other Acts Committed on Board Aircraft 1963 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .48791 Treaty of Paris 1898 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .228 Treaty of Rome 1957 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .722, 740 Art 177 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .46

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Art 177(1)(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .47 Art 228 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .46, 49 Art 228(7) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .48 Art 234 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .46, 51, 52 Art 238 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .50 Treaty of Saint-Germain 1919 Art 88 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .186 Treaty of Versailles (Kiel Canal) 1919 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .139, 144 Art 380 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .65, 66 Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies 1967 . . . . . . . . . . . . . . . . . . . . . . . . . . . . .266, 267, 270, 50005, 645, 654 Treaty on the Non-Proliferation of Nuclear Weapons 1968 . . . . . . .64145, 651, 653, 655, 656, 665, 666 UN Charter 1945 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .157, 56890, 613, 681 Art 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .176, 188, 595, 513 Art 1(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .724, 727 Art 1(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .681, 727 Art 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .176, 613 Art 2(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .183 Art 2(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .665 Art 2(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .595 Art 2(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .151, 241, 595, 596, 60002, 605, 612, 650, 652, 667 Art 2(5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .95 Art 2(7) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .183 Art 4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .566 Art 4(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .184 Art 10 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .96, 563 Art 11 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .563 Art 13 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .563 Art 13(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .98 Art 14 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .568 Art 17 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .95 Art 24 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .568 Art 33 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .119, 165 Art 34 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .568 Art 36 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .621 Art 37 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .621 Art 39 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .614, 616 Art 40 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .614 Art 41 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .614, 616, 617, 619 Art 42 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .614, 616, 617, 619, 650 Art 43 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .596, 616, 617 Art 46 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .619
xxxiii

Sourcebook on Public International Law


Art 47 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .619 Art 51 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .597, 601, 602, 605, 606, 619 650, 651, 655, 664 Art 52 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .568 Art 53 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .623 Art 55 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .149, 188, 681, 727 Art 56 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .149, 681, 727 Art 68 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .682 Art 76 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .199 Art 91 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .562 Art 92 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .565 Art 93 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .557 Art 94 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .557 Art 96 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .563, 564 Art 100 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .178, 179 Art 102 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .130, 133 Art 103 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .111, 149 UN General Assembly Resolutions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .9597 44/23 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1 47/47 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .649 48/91 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .713 49/75K . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .652 50/157 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .716 50/167 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .714 51/157 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1 Resolution on Permanent Sovereignty over Natural Resources 1962 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .78688 Resolution on Permanent Sovereignty over Natural Resources 1973 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .789 Resolution on the Definition of Aggression 1974 . . . . . . . . . . . . . . . . . . . . . . . . . . . . .61415 Universal Declaration of Human Rights 1948 . . . . . . . . . . . . . . . . . . . . . . . .68287, 71824 Art 21 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .724 US Constitution Art VI . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .45 Unification Treaty between FRG and GDR 1990 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .166 Vienna Convention for the Protection of the Ozone Layer 1985 . . . . . . . . . . . . . . . .81617 Vienna Convention on Consular Relations 1963 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .318 Art 23 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .319 Vienna Convention on Diplomatic Relations 1961 . . . . . . . . . . . . . . . .44, 30314, 316, 628 Art 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .316 Art 9 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .316 Art 22 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .316 Art 24 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .318 Art 26 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .318

xxxiv

Table of International Conventions and Other Documents


Art 27 Art 29 Art 31 Art 32 Art 41 Art 44 Art 45 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .318 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .317 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .317 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .318 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .317 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .315 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .315

Vienna Convention on the Law of Treaties 1969 . . . . . . . . . . . . . . . . . .44, 53, 101, 10328, 133, 144, 212, 628, 661 Art 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .132 Art 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .128 Art 7 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .131 Art 8 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .131 Art 9 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .131 Art 12 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .132 Art 18 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .132, 138 Art 1923 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .136 Art 21 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .137 Art 26 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .137, 665 Art 27 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .38 Art 28 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .138 Art 29 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .138 Art 30 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .138 Art 31 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .14244 Art 32 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .142, 144 Art 34 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .83, 139, 269 Art 35 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .139 Art 36 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .139 Art 40 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .141 Art 41 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .142 Art 45 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .152 Art 48 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .145 Art 49 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .145 Art 50 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .145 Art 51 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .145 Art 52 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .145 Art 53 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .100, 153 Art 5459 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .155 Art 60 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .159 Art 61 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .15558, 161 Art 62 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .156, 158, 162 Art 62(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .166 Art 63 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .156 Art 64 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .154 Art 65 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .154 Art 6567 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .163 Art 66 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .165 Art 69 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .154

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Art 70 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .157 Art 71 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .154 Art 80 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .133 Vienna Convention on the Law of Treaties between States and International Organisations or between International Organisations 1986 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .53, 100, 103, 125 Art 2(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .104 Vienna Convention on the Succession of States with Respect of Treaties 1978 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .50, 103, 165, 245 Art 11 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .170 Art 12 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .17072 Art 15 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .166 Art 16 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .166 Art 34 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .170, 171 Art 34(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .173 Warsaw Convention for the Unification of Certain Regulations concerning International Air Travel 1929 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .44, 499 Art 20 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .499 Weaponry Convention and Protocols 1981 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .63040, 659 World Charter for Nature 1982 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .83537 World Heritage Convention 1972 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .376, 837, 838, 84043 World Trade Organisation Agreement 1994 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .74250

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CHAPTER 1 INTRODUCTION
States and law faculties of higher educational institutions are encouraged to include international law as a core subject in their curricula. They are also encouraged to introduce courses in international law for students studying law, political science, social sciences and other relevant disciplines; they should study the possibility of introducing topics of international law in the curricula of schools at the primary and secondary levels. They should also consider introducing public international law courses geared towards career training and the establishment of clinical programmes in various areas of international law. Co-operation between institutions at the university level among developing countries, on the one hand, and their co-operation with those of developed countries, on the other, should be encouraged.1

On 17 November 1989 the UN General Assembly passed Resolution 44/23 by which it declared the period 199099 the United Nations Decade of International Law. Among the purposes of the Decade are the promotion of the acceptance of and respect for the principles of international law and the encouragement of the teaching, study, dissemination and wider appreciation of international law. The adoption of the resolution by the 183 member states of the United Nations indicates the ever-increasing significance of international law. The purpose of this Sourcebook is to provide a clear and comprehensive guide to the major topics of international law. It has been the authors aim to include all the up-to-date material necessary for the reader to achieve the level of discussion expected of a good student during classes and for the preparation for examinations. It is hoped that this Sourcebook can be used both as a textbook and as a cases and materials book. International law is a subject for which a Sourcebook is particularly appropriate: the sources of its rules are numerous and diverse and many of these sources are not always readily available in the standard law library. The Sourcebook has been written so as to provide an entire and comprehensive undergraduate course in public international law, although it should also prove useful to those who simply wish to find a particular source. This chapter provides a general introduction to the subject of international law by examining the definition, nature and scope of the subject. It is also useful at this stage to place modern international law in its historical context by tracing its development over the last three centuries.
A new and very small sovereign state was admitted as a member of the United Nations in the 1970s. Within the United Nations the de facto position is that each sovereign state is equal and has one vote in the United Nations General Assembly, even though beneath that technical equality the usual hierarchy exists with the richest and most powerful states exerting the most influence. The newly appointed representative from the newly independent state did not initially
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Resolution adopted by the United Nations General Assembly Resolution 51/157 United Nations Decade of International Law (A/RES/51/157 16 December 1996). 1

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grasp that the quality was supposed only to be formal. Consequently he or she spoke at length on every topic which fell for debate to the obvious chagrin of the representatives of the larger and greater states. At last, in considerable frustration, he was taken off into the office of a delegate of one of the great states, upon the wall of which hung a large map of the world. The Important Delegate explained to the unimportant new representative his position by showing the vast area of the map covered by such states as the US, Canada, Ghana, and even New Zealand, when compared to the tiny dots which represented the new delegates country. The new delegates immediate response was to ask a question who drew that map?2

The question who drew that map? can partially be answered by an investigation of the historical development of international law. Closely linked to the question of who are the questions of how and why which will also be addressed in this chapter. With a grasp of the theoretical underpinnings, the map of international law, investigated in subsequent chapters, will be more understandable.

1.1

Historical development

The modern system of international law is a product, roughly speaking, of only the last four hundred years. It grew to some extent out of the usages and practices of modern European states in their intercourse and communications, while it still bears witness to the influence of writers and jurists of the sixteenth, seventeenth, and eighteenth centuries, who first formulated some of its most fundamental tenets. Moreover, it remains tinged with concepts such as national and territorial sovereignty, and the perfect equality and independence of states, that owe their force to political theories underlying the modern European state system, although, curiously enough, some of these concepts have commanded the support of newly emerged non-European states. But any historical account of the system must being with earliest times, for even in the period of antiquity rules of conduct to regulate the relations between independent communities were felt necessary and emerged from the usages observed by these communities in their mutual relations. Treaties, the immunities of ambassadors, and certain laws and usages of war are to be found many centuries before the dawn of Christianity, for example in ancient Egypt and India, while there were historical cases of recourse to arbitration and mediations in ancient China and in the early Islamic world, although it would be wrong to regard these early instances as representing any serious contribution towards the evolution of the modern system of international law.3 The Law of Nations, or International Law, may be defined as the body of rules and principles of action which are binding upon civilised states in their relations with one another. Rules which may be described as international law are to be found in the history of both the ancient and medieval worlds; for ever since men began to organise their common life in political communities they have felt the need of some system of rules, however rudimentary, to regulate their intercommunity relations. But as a definite branch of jurisprudence the system which
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2 3

Mansell, Meteyard and Thomson, A Critical Introduction to Law, 1995, London: Cavendish Publishing at p 1. IA Shearer, Starkes International Law, 11th edn, 1994, London: Butterworths at p 7. 2

Introduction
we now know as international law is modern, dating only from the 16th and 17th centuries, for its special character has been determined by that of the modern European state system, which was itself shaped in the ferment of the Renaissance and the Reformation.4 The origin of the international community in its present structure and configuration is usually traced back to the Peace of Westphalia (1648), which concluded the ferocious and sanguinary Thirty Years War. However, it was not then that international intercourse between groups and nations started. From time immemorial there had been consular and diplomatic relations between different communities, as well as treaties of war and peace and treaties of alliance; reprisals had been regulated for many years, and during the Middle Ages a body of law on the conduct of belligerent hostilities had gradually evolved. A peace treaty going back to approximately 3100 BC has come to light concluded in the Sumerian language between Eannatum, the victorious ruler of the Mesopotamian city state of Lagash, and the representatives of Umma, another Mesopotamian city state, which had been defeated. And yet all these relations were radically different from current international dealings, for the body politic itself was different.5

It can be seen that there is widespread agreement that the modern system of international law developed from Western European origins. With the gradual break up of the Holy Roman Empire after 1648, states such as England, the Netherlands, France and Spain became strong and independent from any superior authority. Without the influence of Papal or Imperial laws, new rules were developed to govern inter-state relations. These rules owed much to doctrines of canon law and of Roman law. The basis of the system was the consensus of equal, independent sovereign states and the rules could therefore be created by express agreement or develop out of a continued common practice. Holding such a view of the development of international law has important consequences both for the nature and definition of international law6 and for the sources of international law.7 However, while the perception of modern international law as a phenomenon of medieval Western European origins tends to be the prevailing one there are those who take a different view:
As all the introductory historical sections of the leading textbooks agree, it was not until this time8 that there appeared, in the shape of nation states possessing unlimited sovereignty, those subjects of international law which, together with the simultaneously and universally blossoming theoretical study of constitutional and international law, provided the doctrinal bases for a legally ordered system of states. At this time the only open question was the date when the international law of the modern era was supposed to have begun. After some hesitation, a willingness was expressed to go back a good century before Grotius, to Charles VIIs Italian Campaign of 1649, to Machiavelli and Bodin, to the
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4 5 6 7 8

JL Brierly, The Law of Nations, An Introduction to the International Law of Peace, 6th edn, 1963, Oxford: Oxford University Press at p 1. Antonio Cassese, International Law in a Divided World, 1986, Oxford: Oxford University Press at p 34. See, for example, the views expressed by Hall, Westlake and Oppenheim at p 9. Discussed in Chapter 3. ie the modern era post 1648. 3

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overseas expansion of the European maritime powers and to the theories of the Spanish late scholastics. Everything lying further back, even in the cases where important development factors were recognised, was consciously left out of consideration It was evident from a comparatively early point that the basic requirements for an international legal order were fully present in the European society of states not just at the beginning of the modern era, but, at the latest, by the end of the 13th century. It was recognised that the concepts of law and legal validity underlying European international law, the justifications which were always necessary when an action entailed intervention in a foreign area, the duty to participate in common sanctions against disturbers of the peace, and other basic ideas all went back to the early era of the ancient Greek polis, ie to the sixth century before Christ. It was further recognised that, not merely in the modern eras but at all times, international legal practice was accompanied by the theoretical ideas and claims of theologians, philosophers, historians and, later, lawyers. What this means is that, although the theory of the modern era became vastly more detailed over what had hitherto been customary, it hardly contained anything in principle that was new. Since the beginning of the 1930s, following in the footsteps of historical and archaeological research, the history of international law finally began to explore the wider world beyond Europe. First of all the history of international law turned to the ancient Near East which also includes Egypt and to later international legal developments in the region, in particular, those brought into being from the sixth decade of the seventh century onwards by the formation and spread of Islam. The most incisive changes to the picture handed down by the 19th century may, however, be expected from the efforts which only began in recent decades to uncover international legal developments which, of their own volition, appeared in the world outside Europe and away from the Mediterranean. As yet, no more than a start has been made. It is nevertheless possible, even given the gaps in our knowledge, to accept that there is, beyond the world of the Near East and Europe (which understandably claimed the attention of early researchers), evidence of international law scattered over the earth in abundance.9 The end of World War I is almost unanimously considered as the end of an epoch in the history of the law of nations. It is also generally accepted that this caesura was more profound than those of 1648 or 1815, which marked previous transformations of international law, adopted it to the changing character of the state system which was fashioned and conditioned by the sequence of Spanish, French and British supremacy. It is generally accepted that by 1919 the classical system of international law had given way to a different system, often called new or modern international law. However, terminological confusion may result from the ambiguity inherent in the words new and modern. Historians customarily see modern times as beginning at the end of the 15th century, and the new type of international law which developed from this juncture, the classical system, is often called modern international law. In the interest of avoiding confusion the author prefers to use the term post-classical to denote the type of international law which began to evolve in 1919. Together with the classical system, it forms part of modern in contrast to medieval international law.

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Wolfgang Prieser, History of the Law of Nations in R Bernhardt (ed), Encyclopedia of Public International Law, Vol II, 1995, pp 71718. 4

Introduction
In the wake of World War II and as a consequence of a new balance of forces and deep structural changes in the state system, post-classical international law was again significantly modified. What began in 1919 entered into a second stage in 1945 a stage, however, which both continued and developed the traits of the first post-classical period. In comparison with the law of preceding centuries, the two latest stages belong together and justify their classification within a coherent post-classical system. The basic and characteristic feature of the classical system was its close commitment to the modern sovereign state as the sole subject of international law. Deriving from this basic structure, two other elements helped to form the shape of the classical system: the unorganised character of the international community, composed of a multitude of sovereign states as legally equal, if de facto unequal members; and the acceptance of war as the ultimate instrument of enforcing law and safeguarding national honour and interest. Starting in 1919, a different system of international law developed, based on a new concept of the nation state which, by force of circumstances, was more receptive to the idea of some restrictions of its sovereign rights (eg in the field of minority protection) and more sensitive to the rights of the human individual and his legal protection. For the first time in history, an attempt was made to organise the international community within a League of Nations, which was intended to become a universal framework for regulating the peaceful intercourse of nations and for preventing armed conflict. War as an instrument of national policy was intended to be restricted by the League Covenant, and subsequently outlawed by the Kellogg-Briand Pact (1928).10

1.2

Definitions and the nature of public international law

International law is the body of rules which are legally binding on states in their intercourse with each other. These rules are primarily those which govern the relations of states, but states are not the only subjects of international law. International organisations and, to some extent, also individuals may be subjects of rights conferred and duties imposed by international law. International law in the meaning of the term as used in modern times began gradually to grow from the second half of the Middle Ages. As a systematised body of rules, it owes much to the Dutch jurist Hugo Grotius, whose work, De Jure Belli ac Pacis, Libri iii, appeared in 1625, and became a foundation of later development. That part of international law that is binding on all states, as is far the greater part of customary law, may be called universal international law, in contrast to particular international law which is binding on two or a few states only. General international law is that which is binding upon a great many states. General international law, such as provision of certain treaties which are widely, but not universally, binding and which establish rules appropriate for universal application, has a tendency to become universal international law. One can also distinguish between those rules of international law which, even though they may be of universal application, do not in any particular situation give rise to rights and obligations erga omnes, and those which do. Thus, although all states are under certain obligations as regards the treatment of aliens, those
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10 William G Grewe, in R Bernhardt (ed), Encyclopaedia of Public International Law, Vol II, 1995 pp 83940. 5

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obligations (generally speaking) can only be invoked by the state whose nationality the alien possesses: on the other hand, obligations deriving from the outlawing of acts of aggression, and of genocide, and from the principles and rules concerning the basic rights of the human person, including protection from slavery and racial discrimination, are such that all states have an interest in the protection of the rights involved.11 Rights and obligations erga omnes may even be created by the actions of a limited number of states. There is, however, no agreed enumeration of rights and obligations erga omnes and the law in this area is still developing, as it is in the connected matter of a states ability, by analogy with the actio popularis (or actio communis) known to some national legal systems, to institute proceedings to vindicate an interest as a member of the international community as distinct from an interest vested more particularly in itself. The International Court of Justice has held that proceedings in defence of legal rights or interests require those rights or interests to be clearly vested in those who claim them (even though they need not necessarily have a material or tangible object damage to which would directly harm the claimant state), and that the actio popularis is not known to international law as it stands at present.12 Although the notion of actio popularis is in some respects associated with that of rights and obligations erga omnes, the two are distinct and, to the extent that they are accepted, each may exist independently of the other. International law is sometimes referred to as public international law to distinguish it from private international law. Whereas the former governs the relations of states and other subjects of international law amongst themselves, the latter consists of the rules developed by states as part of their domestic law to resolve the problems which, in cases between private persons which involve a foreign element, arise over whether the court has jurisdiction and over the choice of the applicable law: in other terms, public international law arises from the juxtaposition of states, private international law from the juxtaposition of legal systems. Although the rules of private international law are part of the internal law of the state concerned, they may also have the character of public international law where they are embodied in treaties. Where this happens the failure of a state party to the treaty to observe the rule of private international law prescribed in it will lay it open to proceedings for breach of an international obligation owed to another party. Even where the rules of private international law cannot themselves be considered as rules of public international law, their application by a state as part of its internal law may directly involve the rights and obligations of the state as a matter of public international law, for example where the matter concerns the property of aliens, or the extent of the states jurisdiction.13

The title and subject matter of this book is Public International Law . For convenience we shall use the terms public international law and international law interchangeably. The subject has also been known as the Law of Nations and the Law of War and Peace. International law must be distinguished from municipal, internal or domestic law. As a starting point, international law can be said to apply only between those entities that can claim international
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11 Barcelona Traction case (Second Phase) [1970] ICJ Rep at p 32. 12 South West Africa cases (Ethiopia and Liberia v South Africa) (Second Phase) [1966] ICJ Rep at p 47. 13 Oppenheims International Law, edited by Jennings and Watts, 9th edn, 1992, Longman at pp 4 7 (footnotes omitted). 6

Introduction

personality, whilst municipal law is the internal law of states and regulates the conduct of individuals and other legal persons within the jurisdiction. Public international law should also be distinguished from private international law. Private international law, or the conflict of laws, is the term used to describe the body of rules of municipal law that regulates legal relations with a foreign element such as, for example, contracts of sale between persons in different countries or marriages between persons from different legal systems. It can be argued that the functions of international law are different from the functions of municipal law. In the main, international law is not concerned with the rights and duties of individuals, except where states have agreed that this should be so. International law plays a major role in facilitating international relations. It is clearly of considerable importance in the drafting of diplomatic documents and treaties, as well as, in appropriate instances, in the drafting and application of internal legislation. It should also be remembered that law can never be totally separated from questions of political reality. In international law, the political and the legal are extremely closely intertwined. International law cannot exist in isolation from the political factors operating in the sphere of international relations. On another level, international law needs to be distinguished from international non-law. Reference is sometimes made to international comity or international usage to indicate those norms of behaviour that are outside the rules of law, properly called. Some writers argue that the problem is resolved with the adoption of a comprehensive definition of law, while others deny that a definition is either possible or desirable. To some extent the problem of identifying the rules of international law is dealt with in Chapter 3, but at this early stage it may be useful to refer to some of the various concepts and definitions of the subject that have been offered.
International law, as its name implies, is a form of law. In your law studies, you have come across various other forms of law contract law, land law, LA Law. Well, international law is no different in principle from any other form of law. However, since none of you will have anything but the most infantile ideas about the theoretical nature of law in general, its not really very exciting of me to say that international law is law like any other law. Itll probably never have occurred to you, and maybe no one has ever told you, that law is an aspect of the systematic structure of a society. Theres been a great deal of discussion down the centuries about just how law fits into the general structural system of society. Some really heavy names have had all sorts of seriously weird ideas about that Plato and Confucius and Moses and Nietzsche and Hitler people like that. But the long and the short of it all is that society is not quite like a poem, and society is not quite like a motor-car, but society is a bit like both of them. Society is like a poem because its a creation of human consciousness, for human consciousness. Society is a work of the imagination, like literature. But society is also a bit like a machine, such as a car, because its designed to process specific inputs into specific outputs, following a structured system. And the structured system determines the relationship of the output to the input. And the result of it all is that society, like a motor-car, is designed to travel from A to B, namely, from the past to the future.

Sourcebook on Public International Law


Well, one input into society is the activity of individual human consciousness, imagination and reason. And the output is social consciousness which then reenters individual consciousness and pre-existing social consciousness. So theres a systematic loop with the individual human being making society, as society makes society and the individual. Society and the individual make society and the individual. Our first slogan. A poem works because there are conventions of vocabulary and grammar and syntax, and there are great semantic force-fields in which the poem is placed, force-fields of associative meaning and shared meaning. So the poem is an output from the poet and an input into the reader into which the reader also puts an input. A poem does not exist in quite the same way that a particular table exists: it is any number of resultants formed from all the interacting inputs and outputs. In the case of a particular society, the society creates great semantic force-fields for itself, as an integral part of its self-creating as a society religion, mythology, morality, philosophy, art and so on. And then systematic principles of societys functioning social vocabulary and grammar and syntax, as it were determine the specific outputs of the given society, determine the interactive effect between society and its members, and between the society and other societies. The totality of the systematic processes of society is presented to society in what we call a constitution. The constitution of a society is a bit like the personality of a human person: its a structured summation of a particular functioning identity, evolving over time, forming itself over time. The constitution forms the society as the society forms its constitution. Society is a system constituting itself as a system. Another slogan. One aspect of the constitution of a society is its legal constitution. This is a specifically organised set of social sub-systems which process social material in a particular way. The constitution of a society carries the society from its past to its future. The society continues over time and space because it continues in the consciousness of its members and of those who observe it. And the continuation over time and space of a society is achieved by ordering the willing and acting of the members of society in accordance with the constitution of the society. The law, made under the legal constitution, organises legal relations thats to say, it organises the interactive willing and acting of two or more members of society. If you and I are bound by a legal relation say, a right or a duty then, if we will and act in conformity with the legal relation, we act in the way society wanted us to act. The legal relation socialises our behaviour, or, to put it another way, the legal relation universalises the particularity of our behaviour in the social interest. But, of course, there are not only two people involved in a legal relation. A legal relation involves many other people in its implementation. A legal relation is really the focus of a network of legal relations. And legal relations necessarily involve what is called accountability. Accountability means that society watches the way in which its legal relations take effect. It monitors them socially social accountability; and it monitors them legally legal accountability, including the monitoring through legal proceedings. Accountability means that the implementation of legal relations feeds back into the total social process, being judged in terms of societys values, leading perhaps to protest or dissent, leading perhaps to a change in the law. So law is an intensely dynamic thing, flowing from the past of society into its future, tending to make the future of society into what society has willed in the
8

Introduction
past that its future should be. Thats why some of us define the law as specifically retained acts of social willing. The law is an ever-changing set of retained acts of social willing. Our third slogan. So society is a purposive enterprise, inventing purposes for itself in the form of values, organising itself to achieve its purposes. One way in which society acts is through economic action, thats to say, through transforming material reality and ideal reality in ways which society values as conducive to its survival and prospering. And thats an important social function of law. The law is used to make economic transformation possible. The law of property, contract, money, corporate law and so on are sets of legal relations which are designed to organise particular forms of social transformation, especially economic transformations. So thats what all society is and what all law is. And that means that we now already know what international society is and what international law is. International law is, simply, the law of international society. The whole human race seeks its survival and prosperity through transforming the world in accordance with its values. The whole human race uses social processes to cause its future to be in accordance with what it wills that its future should be.14

1.2.1 The traditional view


The view expressed in the most recent edition of Oppenheim represents a retreat from the traditional conception of international law as the law of nations, exclusively the province of nation states. For example, Hall in 1890 wrote:
International law consists in certain rules of conduct which modern civilised states regard as being binding on them in their relations with one another with a force comparable in nature and degree to that binding the conscientious person to obey the laws of the country, and which they also regard as being enforceable by appropriate means in case of infringement.15

Four years later Westlake stated, international law is the body of rules prevailing between states.16 Oppenheim was even more explicit when he wrote, states solely and exclusively are the subjects of international law.17 In 1927, the Permanent Court of International Justice was called upon to decide a dispute between France and Turkey. In the course of the judgment the court found it necessary to set down the parameters of international law:
International law governs relations between independent states. The rules of law binding upon states therefore emanate from their own free will as expressed in conventions or by usages generally accepted as expressing principles of law and established in order to regulate the relations between these co-existing independent communities or with a view to the achievement of common aims.18
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14 Philip Allott, New International Law The First Lecture of the Academic Year 20 in Theory and International Law: An Introduction, 1991, London: BIICL at pp 10810. 15 WE Hall, A Treatise on International Law, 3rd edn, 1890, Oxford: Clarendon Press. 16 Westlake, International Law, 1894, Cambridge: Cambridge University Press. 17 Oppenheim, International Law, 1st edn, 1905, London: Longmans. 18 The Lotus case PCLJ Ser A, No 10 (1927). 9

Sourcebook on Public International Law

1.2.2 The modern view


Although international law may have developed as a system of rules governing the relations between sovereign states, it has developed beyond that. The establishment of the League of Nations after the First World War marked a shift in approach to international relations which received further impetus with the setting up of the United Nations Organisation in 1945. The Nuremberg War Crimes Tribunal in 1946 raised questions of the international obligations of individuals and the Universal Declaration of Human Rights 1948 suggested the possibility of individual international rights. In the wake of the United Nations, a number of other super-national organisations were established, all raising questions of their status within the community of nation states. In 1949 the International Court of Justice was asked by the General Assembly of the United Nations for its opinion on matters arising out of the assassination of a UN representative in Jerusalem. In the course of its judgment the court stated:
[the United Nations Organisation] is a subject of international law and capable of possessing international rights and duties, and has capacity to maintain its rights by bringing international claims.19

It was becoming clear that it was no longer adequate to discuss international law in terms of a system of rules governing exclusively the relations between states.20 Later definitions reflected this fact:
International law can no longer be adequately or reasonably defined or described as the law governing the mutual relations of states, even if such a basic definition is accompanied by qualifications or exceptions designed to allow for modern developments; it represents the common law of mankind in an early stage of development, of which the law governing the relations between states is one, but only one, major division.21

Some definitions continued to stress the primacy of states, for example:


International law is a strict term of art, connoting that system of law whose primary function it is to regulate the relations of states with one another. As states have formed organisations of themselves, it has come also to be concerned with international organisations and an increasing concern with them must follow from the trend which we are now witnessing towards the integration of the community of states. And because states are composed of individuals and exist primarily to serve the needs of individuals, international law has always had a certain concern with the relations of the individual, if not to his own state, at least to other states ... even the relations between the individual and his own state have come to involve questions of international law ... Nevertheless, international law is and remains essentially a law for states and thus stands in contrast to what international lawyers are accustomed to call municipal law 22

Other definitions give greater acknowledgment to non-state entities:


International law is the body of rules of conduct, enforceable by external sanction, which confer rights and impose obligations primarily, though not
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19 20 21 22

Reparation for Injuries Suffered in the Service of the United Nations case [1949] ICJ Rep at p 174. See also Chapter 5. C Jenks, The Common Law of Mankind, 1958, London: Stevens. C Parry in M Sorensen (ed), Manual of Public International Law, 1968, London: Macmillan (emphasis added) 10

Introduction
exclusively, upon sovereign states and which owe their validity both to the consent of states as expressed in custom and treaties and to the fact of the existence of an international community of states and individuals. In that sense international law may be defined more briefly (though perhaps less usefully), as the law of the international community.23

1.2.3 Contemporary theories


Although the early development of international law owes considerable debt to natural law concepts, much of the discussion about its nature over the last 100 years has been held within the broad church of legal positivism. Analysis of international law tended to concentrate on the activities of states and the identification of positive legal rules. Underlying the theories was a firm view that international law was based on the consensus of states to be bound. After the Second World War, world events increasingly undermined this view of law. The independence of former colonies raised the issue of the extent to which new states could be truly taken to consent to existing rules of international law.
International law (or more precisely public international law) is an autonomous system of law that is distinct from the national legal systems of specific states. International law operates in the international system and represents its normative subsystem. In literature one may find different definitions of the international system. Some of them are so wide that they encompass, in effect, all of human society. In the present context there is no need to analyse these definitions. What is then the international system in which international law is a component part? That system encompasses states, international (inter-state) organisations, various associations of states (eg the non-aligned movement and the Group of 77), nations and peoples struggling for their independence, and also certain state-like formations (eg free cities and the Vatican). That, then, is the inter-state system. It includes not only the subjects that have been listed but also relations among them (international relations in the narrow sense of the word), international legal and other social norms (norms of international morality, international comity, international customs) and also mutual interactions among all the components of the international system and between that system itself and its components. Such a system does indeed exist. Lenin noted that we are living not merely in a state but in a system of states. What is important for international legal science is that aside from other components the concept of international system also includes international law. It follows that international law must be viewed in its mutual interaction with them, while international relations must be studied in their interaction with international law and not independently of it ... The basic task of international law is to contribute to a normal functioning of the international system and to ensure peace and a resolution of international problems through legal means, on the basis of agreements among sovereign and equal states.24
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23 Hersch Lauterpacht, Collected Papers, Vol 1, 1970, Cambridge: Cambridge University Press. 24 G Tunkin (ed), International Law: a textbook, 1982, Moscow: Progress Publishers. 11

Sourcebook on Public International Law

The onset of the Cold War and the dominance of the two super-powers brought into question the extent to which the behaviour of the United States and the Soviet Union was guided by positive legal rules. In the 1950s the American Realists turned their attention from analysing municipal legal systems to international law. They found that law was not determined by legal rules nor by precedents but that judicial decision making was an intuitive act motivated by a desire to do justice in a particular context. International law needs to be studied in the context of international society and not merely as a collection of legal rules capable of being understood on their own. Another approach, often referred to as sociological jurisprudence, involved an attempt to move away from simple analysis of rules to consider international law as an integral part of the diplomatic and political process. Notable here is the work of Myres McDougal whose policy-oriented approach sees law as a process of decision-making rather than a system of rules and obligations. McDougal has been criticised for minimising the legal content of the study of international law, and later writers, such as Richard Falk, while adopting the general approach of McDougal, have sought to place greater emphasis on the importance of legal rules and structures.
Two criticisms are often advanced against international law. One group of critics has accused international law of being too political in the sense of being too dependent on states political power. Another group has argued that the law is too political because founded on speculative utopias. The standard point about the non-existence of legislative machineries, compulsory adjudication and enforcement procedures captures both criticisms. From one perspective, this criticism highlights the infinite flexibility of international law, its character as a manipulable facade for power politics. From another perspective, the criticism stresses the moralistic character of international law, its distance from the realities of power politics. According to the former criticism, international law is too apologetic to be taken seriously in the construction of international order. According to the latter, it is too utopian, to identical effect. International lawyers have had difficulty answering these criticisms. the more reconstructive doctrines have attempted to prove the normativity of the law, its autonomy from politics, the more they have become vulnerable to the charge of utopianism. The more they have insisted on the close connection between international law and state behaviour, the less normative their doctrines have appeared ... Many of the doctrines which emerged from the ashes of legal scholarship at the close of the First World War explained the failure of pre-war international doctrines by reference to their apologist character ... Writings by Hersch Lauterpacht, Alfred Verdross and Hans Kelsen among others, created an extremely influential interpretation of the mistakes of pre-war doctrines. By associating the failure of those doctrines with their excessive closeness to state policy and national interest and by advocating the autonomy of international legal rules, these jurists led the way to the establishment of what could be called a rule approach to international law, stressing the laws normativity, its capacity to oppose state policy as the key to its constraining relevance. The approach insists on an objective, formal test of pedigree (sources) which will tell which standards qualify as legal rules and which do not. If a rule meets this test, then it is binding. Though there is disagreement between rule approach lawyers over what constitutes the proper test, there is no dispute about its
12

Introduction
importance. The distinctions between hard and soft law, rules and principles, regular norms and jus cogens, for instance, are suspect: these only betray political distinctions with which the lawyer should not be too concerned. Two wellknown criticisms have been directed against this approach. First, it has remained unable to exclude the influence of political considerations from its assumed tests of pedigree. To concede that rules are sometimes hard to find while their content remains, to adopt HLA Harts expression relatively indeterminate is to undermine the autonomy which the rule approach stressed. Second, the very desire for autonomy seems suspect. A pure theory of law, the assumption of a Volkerrechtsgemeinschaft or the ideal of the wholeness of law a central assumption in most rule approach writing may only betray forms of irrelevant doctrinal utopianism. They achieve logical consistency at the cost of applicability in the real world of state practice. The second major position in contemporary scholarship uses these criticisms to establish itself ... Roscoe Pounds programmatic writings laid the basis for the contemporary formulation of this approach by criticising the attempt to think of international law in terms of abstract rules. It was, rather, to be thought of in terms of social ends. According to this approach the policy approach international law can only be relevant if it is firmly based in the social context of international policy. Rules are only trends of past decision which may or may not correspond to social necessities. Binding force is a juristic illusion. Standards are, in fact, more or less effective and it is their effectiveness their capacity to further social goals which is the relevant question, not their formal validity. But this approach is just as vulnerable to well-founded criticisms as the rule approach. By emphasising the laws concreteness, it will ultimately do away with its constraining force altogether. If law is only what is effective, then by definition, it becomes an apology for the interests of the powerful. If, as Myres McDougal does, this consequence is avoided by postulating some goal values whose legal importance is independent of considerations of effectiveness, then the (reformed) policy approach becomes vulnerable to criticisms which it originally voiced against the rule approach. In particular, it appears to assume an illegitimate naturalism which as critics stressing the liberal principle of the subjectivity of value have noted is in constant danger of becoming just an apology of some states policies. The rule and the policy approaches are two contrasting ways of trying to establish the relevance of international law in the face of what appear as wellfounded criticisms. The former does this by stressing the laws normativity, but fails to be convincing because it lacks concreteness. The latter builds upon the concreteness of international law, but loses the normativity, the binding force of its law. It is hardly surprising, then, that some lawyers have occupied the two remaining positions: they have either assumed that international law can neither be seen as normatively controlling nor widely applied in practice (the sceptical position), or have continued writing as if both the laws binding force as well as its correspondence with developments in international practice were a matter of course (idealist position). The former ends in cynicism, the latter in contradiction ... The difficulty in choosing between a rule and a policy approach is the difficulty of defending the set of criteria which these put forward to disentangle law from other aspects of state behaviour. For the rule approach lawyer, the relevant criteria are provided by his theory of sources. For the policy approach, the corresponding criteria are provided by his theory of base-values, authority or some constellation of national or global interest and need, because it is these
13

Sourcebook on Public International Law


criteria which claim to provide the correct description of social processes themselves. To decide on the better approach, one would have to base oneself on some non-descriptive (non-social) theory about significance or about the relative justice of the types of law rendered by the two or any alternative matrices. Such a decision would, under the social concept of law and the principle of the subjectivity of value, be one which would seem to have no claim for objective correctness at all. It would be a political decision ... The formality of international law makes it possible for each state to read its substantive concept of world society as well as its view of the extent of sovereign freedoms into legal concepts and categories. This is no externally introduced distortion in the law. It is a necessary consequence of a view which holds that there is no naturally existing good life, no limit to sovereign freedom which would exist by force of some historical necessity. If this kind of naturalism is rejected and since the Enlightenment, everybody has had good reason to reject it then to impose any substantive conception of communal life or limits of sovereignty can appear only as illegitimate constraint preferring one states politics to those of another. It is impossible to make substantive decisions within the law which would imply no political choice. The late modern turn to equity in the different realms of international law is, in this sense, a healthy admission of something that is anyway there: in the end, legitimising or criticising state behaviour is not a matter of applying formally neutral rules but depends on what one regards as politically right, or just.25 International law is not rules. It is a normative system. All organised groups and structures require a system of normative conduct that is to say, conduct which is regarded by each actor, and by the group as a whole, as being obligatory, and for which violation carries a price. Normative systems make possible that degree of order if society is to maximise the common good and, indeed, even to avoid chaos in the web of bilateral and multilateral relationships that that society embraces. Without law at the domestic level, cars cannot safely travel on the roads, purchases cannot be made, personal safety cannot be secured. Without international law, safe aviation could not be agreed, resources could not be allocated, people could not safely choose to dwell in foreign lands. Two points are immediately apparent. The first is that this is humdrum stuff. The role of law is to provide an operational system for securing values that we all desire security, freedom, the provision of sufficient material goods. It is not, as is commonly supposed, only about resolving disputes. If a legal system works well, then disputes are in large part avoided. The identification of required norms of behaviour, and techniques to secure routine compliance with them, play an important part. An efficacious legal system can also contain competing interests, allowing those who hold them not to insist upon immediate and unqualified vindication. Of course, sometimes dispute resolution will be needed; or even norms to limit the parameters of conduct when normal friendly relations have broken down and dispute resolution failed. But these last elements are only a small part of the overall picture. The second point is that, in these essentials, international law is no different from domestic law. It is not, as some suppose, an arcane and obscure body of rules whose origin and purpose are shrouded in mystery. But, if the social purpose of
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25 Martti Koskenniemi, The Politics of International Law, in (1990) 1/2 EJIL 4 at pp 913, 31. 14

Introduction
international law and domestic law is broadly similar, there are important differences arising from the fact that domestic law operates in a vertical legal order, and international law in a horizontal legal order. Consent and sovereignty are constraining factors against which the prescribing, invoking, and applying of international law norms must operate. ... There is a widely held perception of international law as rules rules that are meant to be impartially applied but are frequently ignored. It is further suggested that these rules are ignored because of the absence of effective centralised sanctions and, in turn, that all of this evidences that international law is not real law at all. The view that international law is a body of rules that fails to restrain states falls short on several counts. In the first place, it assumes that law is indeed rules. But the specialised social processes to which the word law refers include many things besides rules. Rules play a part in law, but not the only part. I remain committed to the analysis of international law as process rather than rules and to the view I expressed many years ago, when I said: When decisions are made by authorised persons or organs, in appropriate forums, within the framework of certain established practices and norms, then what occurs is legal decision-making. In other words, international law is a continuing process of authoritative decisions. This view rejects the notion of law merely as the impartial application of rules. International law is the entire decision-making process, and not just the references to the trend of past decisions which are termed rules. There inevitably flows from this definition a concern, especially where the trend of past decision is not overwhelmingly clear, with policy alternatives for the future.26 Thus rules are just accumulated past decisions. And, if international law was just rules, then international law would indeed be unable to contribute to, and cope with, a changing political world. To rely merely on accumulated past decisions (rules) when the context in which they were articulated has changed and indeed when their content is often unclear is to ensure that international law will not be able to contribute to todays problems and, further, that it will be disobeyed for that reason. The rejection of the perception of law as rules entails a necessary consequence. It means that those who have to make decisions on the basis of international law judges, but also legal advisers and others are not simply finding the rule and then applying it. That is because the determination of what is the relevant rule is part of the decision-makers function; and because the accumulated trend of past decisions should never be applied oblivious of context. Although this reality has been regarded as anathema by many traditionalists, it was well understood by Sir Hersch Lauterpacht. He rejected the notion that the judicial function meant finding the appropriate rule in an impartial manner. The judge, he argued, does not find rules but he makes choices and choices not between claims which are fully justified and claims which have no foundation at all but between claims which have varying degrees of legal merit.27

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26 R Higgins, Policy Considerations and the International Judicial Process (1968) 17 ICLQ 58 at pp 5859. 27 H Lauterpacht, The Development of International Law by the International Court, 1958, London: Stevens at p 399. 15

Sourcebook on Public International Law


The reason why some insist that international law is rules, and that all international lawyers have to do is identify them and apply them, are not hard to find. They are an unconscious reflection of two beliefs, deeply held by many international lawyers. The first is that, if international law is regarded as more than rules, and the role of the authorised decision-maker as other than the automatic applier of such rules, international law becomes confused with other phenomena, such as power or social or humanitarian factors. The second reason is that it is felt by many that only by insisting on international law as rules to be impartially applied will it be possible to avoid the manifestation of international legal argument for political ends. I want to deal with each of these reasons in turn, and tell you why I do not agree with them. To seek to contrast law with power (in which task the perception of law as rules plays an essential task) is fundamentally flawed. It assumes that law is concerned only with the concept of authority and not with power or control. International law is indeed concerned with authority and authority not just in the sense of binding decisions, but in the broader sense of jurisdictional competence, and more. Myres McDougal has explained: By authority is meant expectations of appropriateness in regard to the phases of effective decision processes. These expectations specifically relate to personnel appropriately endowed with decision-making power; the objectives they should pursue; the physical, temporal and institutional features of the situations in which lawful decisions are made; the values which may be used to sustain decision, and so forth ... 28 So far, so good. But it is not the case, as is frequently supposed, that international law is concerned with authority alone, and that power stands somehow counterpoised to authority, and is nothing to do with law, and indeed inimical to it. This view which banishes power to the outer darkness (that is to say, to the province of international relations) assumes that authority can exist in the total absence of supporting control, or power. But this is a fantasy. The authority which characterises law exists not in a vacuum, but exactly where it intersects with power. Law, far from being authority battling against power, 29 is the interlocking of authority with power. Authority cannot exist in the total absence of control. Of course, there will be particular circumstances when power overrides authority. On such occasions we will not have decision-making that we can term lawful. But that is not to say that law is about authority only, and not about power too; or that power is definitionally to be regarded as hostile to law. It is an integral element of it. What then of the other argument that a perception of international law as other than neutral rules inevitably leads to bias and partiality? A classical statement of this view was made by Judges Fitzmaurice and Spender in the South West Africa cases in 1962, when they wrote: We are not unmindful of, nor are we insensible to, the various considerations of a non-judicial character, social humanitarian and other but these are matters for the political rather than for the legal area. They cannot be allowed
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28 M McDougal, H Lasswell, and M Reisman, The World Constitutive Process of Authoritative Decision (1966) 19 Journal of Legal Education 253 at p 256. 29 For expression of this view, see G Shwarzenberger, The Misery and Grandeur of International Law, inaugural lecture 1963; see also M Bos, A Methodology of International Law, 1984, Amsterdam: North-Holland, esp Chapter XI. 16

Introduction
to deflect us from our duty of reaching a conclusion strictly on the basis of what we believe to be the correct legal view.30 This formulation reflects certain assumptions: that the correct legal view is to be discerned by applying rules the accumulated trend of past decisions, regardless of context or circumstance and that the correct legal view has nothing to do with applying past decisions to current contexts by reference to objectives (values) that the law is designed to promote. The classical view, so brilliantly articulated by Fitzmaurice but shared by very many others, is that international law can best perform its service to the community exactly by distancing itself from social policy. As the International Court of Justice put it in 1966: Law exists, it is said, to serve a social need; but precisely for that reason it can do so only through and within the limits of its own discipline. Otherwise, it is not a legal service that would be rendered. 31 Of course, the International Court of Justice thought it self-evident as to where law does draw the limits of its own discipline. But what is self-evident to one is merely question begging to another. Reference to the correct legal view or rules can never avoid the element of choice (though it can seek to disguise it), nor can it provide guidance to the preferable decision. In making this choice one must inevitably have consideration for the humanitarian, moral, and social purposes of the law. As I have written elsewhere: Policy consideration, although they differ from rules, are an integral part of that decision making process which we call international law; the assessment of so-called extralegal considerations is part of the legal process, just as is reference to the accumulation of past decisions and current norms. A refusal to acknowledge political and social factors cannot keep law neutral, for even such a refusal is not without political and social consequence. There is no avoiding the essential relationship between law and politics.32 Because I believe there is no avoiding the essential relationship between law and policy, I also believe that it is desirable that the policy factors are dealt with systematically and openly. Dealing with them systematically means that all factors are properly considered and weighed, instead of the decision-maker unconsciously narrowing or selecting what he will take into account in order to reach a decision that he has instinctively predetermined is desirable. Dealing with policy factors openly means that the decision-maker himself is subjected to the discipline of facing them squarely (instead of achieving unconsciously desired policy objectives by making a particular choice, which is then given the label of the correct legal rule). It also means that the choices made are open to public scrutiny and discussion. All this being said, there is still a problem we have to address. If international law is not the mere application of neutral rules in an impartial fashion, but requires choices to be made between alternative norms that could, in the context, each be applicable, then do we really have something other than a justification of the end by the means? This is the serious question, made the more so by the
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30 South West Africa cases [1962] ICJ Rep at p 466. 31 South West Africa cases [1966] ICJ Rep 6 at para 49. 32 Higgins, Integrations of Authority and Control: Trends in the Literature of International Law and Relations, in B Weston and M Reisman (eds), Towards World Order and Human Dignity, 1976, New York: Free Press. 17

Sourcebook on Public International Law


events of the early 1980s. During the administration of President Reagan, the United States engaged in various acts of foreign policy which were designed not only to secure national goals but to secure certain objectives perceived as being in the interests of international order and justice. In particular, there occurred military interventions to remove totalitarian rulers and to allow a democratic freedom of choice to the peoples of the countries concerned. We may cite military action in Nicaragua in 1983, in Grenada in 1983, and in Panama in 1989. There has also been military action to punish perceived terrorism: here we may cite the US bombing of Libya in 1986. Each of these actions occasioned significant debate, among Americans and friends of the United States as much among others. There were widely differing views as to the lawfulness of these various actions under international law. The Legal Adviser to the Department of state and the scholars who supported the military interventions very much emphasised the social purposes of international law in their analysis of what was and was not permitted under the United Nations Charter and under customary international law. My intention is not to enter the fray on the substance of these matters Rather, I ask this question: if one shares the belief in the preferability of democracy over tyranny, and if one is committed to the policy-science approach to international law, whereby trends of past decisions are to be interpreted with policy objectives in mind, does it necessarily follow that one would have viewed all these actions as lawful? I think not. In the first place, I do not believe that the policy-science approach requires one to find every means possible if the end is desirable. Trends of past decisions still have an important role to play in the choices to be made, notwithstanding the importance of both context and desired outcome. Where there is ambiguity or uncertainty, the policy-directed choice can properly be made. Some will say that, in a decentralised legal order, to allow one party to interpret the law to achieve desirable outcomes merely will allow another, less scrupulous party to claim to do the same. I am not greatly impressed with that argument. There is no escaping the duty that each and every one of us has to test the validity of legal claims. We will each know which are intellectually supportable and which are not, and it is a chimera to suppose that, if only international law is perceived as the application of neutral rules, it will then be invoked only in an unbiased manner. But it is in the common interest that some prohibitions should be absolute (for example, the prohibitions against some kinds of weaponry);33 and it is in the common interest that other kinds of limitation on conduct should be regarded as compelling, even if, on any single occasion, that prevents the achievement of an outcome otherwise to be regarded as desirable. That being said, it is still quite wide of the mark to suggest, as some do, that, in the absence of third-party determination, the policy-science approach means simply whatever the policy-maker wants. It really carries matters no further for critics to say that this approach can lead to international law being used by states as a device for post facto justifying decisions without really taking international law into account. 34 This simply begs the question of what international law is. Such a comment merely presupposes that there is a real international law that all men of good faith can recognise that is, rules that can
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33 See Chapter 14 and the Legality of the Use by the state of Nuclear Weapons in Armed Conflict [1966] ICJ Rep at p 1. 34 GJH Van Hoof, Rethinking the Sources of International Law, 1983, Deventer: Kluwer at p 43. 18

Introduction
be neutrally applied, regardless of circumstance and context. And that is where the debate began. Of course the debate on legal theory is not only about whether international law is rules or process. But this is a critical aspect. Emphasis on rules is associated with, but not limited to, legal positivists that is to say, those who conceive of law as commands emanating from a sovereign. Austin, the founding father of legal positivism, put it thus: Every positive law, or every law simply and strictly so called, is set by a sovereign individual or a sovereign body of individuals, to a person or persons in a state of subjection to its authority.35 Kelsen, seeking to give meaning to positivism in a horizontal, decentralised international legal order, where command and sovereignty are notably lacking, proposed the existence of a Grundnorm the highest fundamental norm from which all others derived their binding force.36 Some leading scholars have sought to reconcile the rule and process approaches. Yet others, while showing an interest in these matters, have sought to avoid taking positions, insisting that they will merely address the substantive problems of international law on a pragmatic level. My view is that, superficially attractive though reconciliation or synthesis or middle views may seem (as writers frequently want to claim to offer these attractive middle ways), they avoid or blur the essential questions rather than provide an answer to them. And pragmatism itself entails certain assumptions about legal philosophy, no matter how much it seeks to cut clear of the argument.37

More recently, and coinciding with the rise of the critical legal studies movement, there has been an increase in interest in international legal theory. Writers such as Anthony Carty, David Kennedy and Philip Allott have all made valuable contributions to this area of study by re-examining the nature of international law. A major reason for the increase in interest has been the perceived decline in the influence of the sovereign state, particularly in the light of events in the Balkans and elsewhere in Eastern Europe. Characteristic of the new approach is the view that the traditional ideal of international law is based on contradictory premises. Social conflict is resolved by political means and law is just one of the political weapons available. Such theorists argue that a universal definition of law is not possible and instead maintain that the study of law should involve analysis of the way in which states behave and the way in which they justify their behaviour.
Critical international legal studies constitute a so-called post-modern approach to international law. This is to assert that the discipline is governed by a particular, historically conditioned discourse which is, in fact, quite simply, the translation onto the international domain of some basic tenets of liberal political theory. It opposes itself to the positivist international law, as representative of an actual consensus among states. The crucial question is simply whether a positive system of universal international law actually exists, or whether particular states
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35 J Austin, Lectures on Jurisprudence or the Philosophy of Positive Law, 5th edn, 1885, London: John Murray at p 34. 36 H Kelsen, General Theory of Law and State, trans A Wedberg, 1949, Cambridge, Mass: Harvard University Press at p 113. 37 Rosalyn Higgins, Problems and Processes, International Law and How We Use it (1994), Oxford: Oxford University Press at pp 18. The book is a revised version of Rosalyn Higgins General Course in International Law delivered to the Hague Academy of International Law. 19

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and their representative legal scholars merely appeal to such positivist discourse so as to impose a particular language upon others as if it were a universally accepted legal discourse . So post-modernism is concerned with unearthing difference, heterogeneity and conflict as reality in place of fictional representations of universality and consensus There is a contradiction within international legal practice which consists in a virtually unending process of reification38 of the discourse of state consent into actually existing, constraining rules independent of states, which have only to be identified for problems of authority in relations between states to be resolved. In practice this leads to sterile and acrimonious attempts to demonstrate that the other side has consented to a viewpoint which one prefers, an elusive exercise, given that the starting point will usually be a conflict of interest which supposes that neither party is consenting to what the other wishes. The critical approach, far from denying the very existence of international law, allows a way out of this impasse precisely because it recognises the character of liberalism as a tradition. It does this by means of two devices. It recognises the absence of a central international legal order as an impartial point to which state actors can refer, ie the simple meaning to be given to the phrase the disappearance of the referent.39 At the same time it favours a mature anarchy in international relations, the recognition of states as independent centres of legal culture and significance, which have to be understood, in relation to one another, as opposing to one another very fragile, because invariably partial, understanding of order and community. The role of the international lawyer in such an acutely relativised, self-reflective culture is now, more than ever, crucial. It is his function to resist phoney, reified, would-be universalist legal discourse in favour of the recognition of the inevitably restrictive and exclusive nature of individual state discourse. Above all this calls for the development of a new critical standard which is concerned with penetrating through the cultural symbols of pseudo-universalisation thrown up by individual state to assert themselves against one another. It is not the ambition of the critical international lawyer to substitute another pseudoimpartial legal order, but to facilitate the development of the process of interstate/inter-cultural dialogue and understanding which may allow a coming together, however temporary and fragile. What is called for is scholarly work of legal translation, itself attempting to be impartial, to stand outside the circles of meaning projected by individual states.40

1.3

Is international law really law?

One particular aspect of the discussion about international law has been the questioning by some writers of the very claim made to legal status. Much of the debate surrounding international laws status as law can be traced to the
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38 Reification means simply to consider or to make an abstract idea or concept real or concrete. 39 Referent means the object or idea to which a word or phrase refers. A major thesis of postmodernism, very closely linked to the concept of reification is that words have, to a very significant extent, lost any outside referents, that concepts merely refer to one another in a process of mutual differentiation within language. 40 Anthony Carty, Critical Legal Law: Recent Trends in the Theory of International Law (1991) 2 EJIL 66 at pp 6668. 20

Introduction

positivist legacy of John Austin. In his major theoretical work, The Province of Jurisprudence Determined, he wrote:
Laws properly so called are a species of commands And hence it inevitably follows, that the law obtaining between nations is not positive law: for every positive law is set by a given sovereign to a person or persons in a state of subjection to its author ... The positive moral rules which are laws improperly so called, are laws set or imposed by general opinion: that is to say, by the general opinion of any class or any society of persons. For example, some are set or imposed by the general opinion of persons who are members of a profession or calling: others by that of persons who inhabit a town or province: others, by that of a nation or independent political society: others, by that of a larger society formed of various nations ... The body by whose opinion the law is said to be set, does not command; expressly or tacitly, that conduct of the given kind shall be forborne or pursued. For, since it is not a body precisely determined or certain, it cannot, as a body, express or intimate a wish. As a body, it cannot signify a wish by oral or written words, or by positive or negative deportment. The so called law or rule which its opinion is said to impose, is merely the sentiment which it feels, or is merely the opinion which it holds, in regard to a kind of conduct ... The law obtaining between nations is law (improperly so called) set by general opinion. The duties which it imposes are enforced by moral sanctions: by fear on the part of nations, or by fear on the part of sovereigns, of provoking general hostility, and incurring its probable evils, in case they shall violate maxims generally received and respected.41

HLA Hart also questioned the nature of international law contrasting the clear standard cases of law constituted by the legal systems of modern states with the doubtful cases exemplified by primitive law and international law.42
Many serious students of the law react with a sort of indulgence when they encounter the term international law, as if to say, well, we know it isnt really law, but we know that international lawyers and scholars have a vested interest in calling it law. Or they may agree to talk about international law as if it were law, a sort of quasi-law or near-law. But it cannot be true law, they maintain, because it cannot be enforced: how do you enforce a rule of law against an entire nation, especially a superpower such as the United States or the Soviet Union? I THE ENFORCEMENT ARGUMENT One intriguing answer to these serious students of the law is to attempt to persuade them that enforcement is not, after all, the hallmark of what is meant, or what should be meant, by the term law. As Roger Fisher observed, much of what we call law in the domestic context is also unenforceable. For example, where the defendant is the United States, such as in a case involving constitutional law, how would the winning private party enforce his or her judgment against the United States? Upon reflection, we see that the United States, whenever it loses a case ... only complies with the courts judgment because it wants to. The winning party cannot hold a gun to the head of the
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41 Austin, The Province of Jurisprudence Determined, 1955, London: Weidenfeld and Nicholson, at pp 133, 140, 141. 42 See The Concept of Law, 1961, Oxford: Clarendon Press at p 3. 21

Sourcebook on Public International Law


United States to enforce compliance, even if there were a natural meaning to the term head of the United States. We can go even further than Professor Fisher did: every criminal law prosecution is a case of an individual pitted against the state (or the people of the state). What is to stop the state from saying, you were acquitted by the jury, but that was a travesty of justice, so were going to imprison you anyway? How does the defendant, in handcuffs, stop the state from going ahead? In some countries, at some times, we have heard of dictators or military regimes proceeding with the imprisonment and execution of defendants who were acquitted by their own courts. In terms of power, there is nothing to stop the United States from disregarding adverse judgments of its own courts. In this sense, therefore, a great deal of what we normally call law in the United States is unenforceable by private parties against the state. It is no objection to this line of reasoning, by the way, to dismiss it as far-fetched. If one objects that the United States, in any event, routinely complies with adverse judgments of its own courts, then the international lawyer can answer that the same is true of rules of international law. As Louis Henkin put it, almost all nations observe almost all principles of international law and almost all of their obligations almost all of the time. But a more substantial critique of Professor Fishers analogy between cases involving the government as a party and international law cases is that most domestic litigation, after all, does not involve the government as a party. Most cases involve one citizen against another (citizen including artificial persons such as corporations), and to those cases the law is enforced by the full sovereign powers of the state against the losing litigant. This majority of cases, then, tends to define what we mean by law; it constitutes the paradigmatic instance of law. Therefore, the argument goes, the minority of cases that do involve the state or the United States as a party are, in a sense, parasitic upon the paradigmatic instance. We tend to regard this latter minority of cases as law only because they share certain attributes with the generality of cases. But if we look hard at this minority of cases where the government is a party, we must concede that they are not really law because, at bottom, they are unenforceable. They only appear to be law when looked at uncritically. In short, this line of argument concedes Professor Fishers major premise that international law cases are similar to domestic cases where the government is a party but denies his minor premise, that such cases are instances of law. Hence, international law is no more law than constitutional law or even criminal law. As John Austin stated, both constitutional and international law are merely positive morality. Let us then consider a second line of reasoning against the proposition that enforcement is the hallmark of law. This argument is not associated with any particular writer, because it relies on early conceptions of law and also on the philosophy of law itself. If we consider what law is not, we soon realise it is not a rationale for the application of force. It is not a system of might makes right in the sense that the state constantly has to compel people, at gunpoint, to behave in a certain way. If you look through a volume of cases, or even a volume of statutes or annotations, you will find that most of the matters therein concern the working-out of private arrangements in a complex society. Most of law concerns itself with the interpretation and enforcement of private contracts, the redress of international and negligent harms, rules regarding sales of goods and sales of securities, rules relating to the family and the rights of members thereof, and other such rules, norms, and cases. The rules are obeyed not out of fear of the states power, but because the rules by and large are perceived to be right, just, or appropriate. No state could possibly compel people to obey all these rules
22

Introduction
at gunpoint; there would not be enough soldiers and policemen to hold the guns (a sort of extreme Orwellian vision of society), they would have to sleep sooner or later, and then anarchy might break out. ... If law is not, by and large, a body of rules that are enforced at gunpoint, what is an individual rule of law? Is it, as the 19th century positivists maintained, a command of the state that is backed by the states enforcement power? To be sure, some laws might be just that: a dictator issues a command for his personal indulgence or whim, and if he has sufficiently satisfied his close advisors and the military in other areas, they will probably enforce his command. But most laws will not have this characteristic. Indeed, looking at the matter more microscopically, what is it that forces a judge to decide the case before her on the basis of precedent and statutes? Is another judge holding a gun to her head? Does she examine whether the law will be enforced to see whether it is law? How does she know, in advance of her own decision, what will be enforced? This point came up in the famous case of Marbury v Madison , 43 famous to generations of American law students but often misinterpreted. In that case, Chief Justice Marshalls bottom line was that the Supreme Court has no original jurisdiction to issue writs of mandamus. In short, there was no power to enforce that which the plaintiff demanded. If law were coincident with enforceability, then, since under Marshalls reasoning there was not power of enforcement in the Supreme Court because it lacked jurisdiction, nothing Marshall said in his opinion would have had any legal significance. To put it another way, lacking a remedy, the plaintiff would have no right, not even a right to get a decision from the Court on the question of right. But Marshall took an entirely different tack. He began with the question: does the plaintiff have a right? He then asked the second question: if the plaintiff has a right, does he have a remedy? And his third question was, if the plaintiff has a remedy, can the relief issue form this Court? By putting the questions in this order, Marshall did the opposite of what the positivists would require. By dealing first with the question of right, Marshall was able to address that question wholly apart from whether there was a remedy or whether the remedy was available from the Supreme Court. As all law students know, Marshall answered his own question that there was indeed a right, and secondly, there being a right meant that the plaintiff had a remedy. By going through this reasoning, Marshall was able to establish the groundwork for his path-breaking assertion of judicial review of questions of constitutionality. He held that, in the face of a right and remedy, the congressional statute purporting to grant that remedy to the Supreme Court as a matter of original jurisdiction violated the Constitution. Marshall would not have been able to make his assertion of judicial review if he had begun and ended his opinion with the simple sentence, we have no jurisdiction; case dismissed. Hence, we see that in a case where by the Courts own admission it lacked jurisdiction and the power of enforcement, nevertheless the Court was able to establish a point of fundamental substantive significance. Marshalls persuasiveness was dependent upon a consensus at the time he wrote his opinion that there could be such a thing as a right without a legal remedy. This was part of a larger conviction in those days that the law itself was not something that only works when a policeman is standing by ready to enforce it physically. Law indeed is something that is opposed to force. Right is not the
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43 5 US (1 Cranch) 137 (1803). 23

Sourcebook on Public International Law


same thing as might. In Continental countries, the word for law is, as translated, the word right. In law, there is a fundamental element of right, of justice, dating back to Ciceros and St Thomas equation of right reason with the natural law (the latter being those reasonable rules that accommodate the peaceful affairs of persons in a society). Under this argument that we are developing, the relation of force to law, of might to right, is a contingent and not a necessary relation. We can imagine a society under law where there is no force. People obey the laws, and no one disobeys. There is no need, in this idyllic utopia, for enforcement, because there is universal willing compliance. Surely we cannot claim that such a society does not have law. It is clear that the society is one that is under law, and that the contingent use of force is simply not necessary. To take an example closer to home, suppose that in some state of the Union there has not been a kidnapping since that state entered the Union. Would we say that the law against kidnapping in that state is not a law? Certainly no one would argue that if a law is so successful that it never needs enforcement, it is not a law. Thus, we can conclude from this hypothetical that enforcement is not intrinsic to, is not necessary to, the idea of law. But you might object that enforcement must potentially be present, even if it is not invoked. In other words, in the state that has no kidnapping, it is nevertheless true that if someone commits this crime or even contemplates committing it the potential for enforcement is ever-present. It is this potential for enforcement, after all, that the positivists insist upon when they draw our attention to the necessary connection between a rule of law and its enforcement. To take care of this objection, we may simply modify our previous hypothetical of the idyllic utopia. Assume not only that they have never had a need to enforce their laws, but also that they have no enforcement machinery no police, no jails, no sheriffs, no marshals. They can still have a system of laws, as complex as you please, even without the potential for enforcement. You might now object that we cannot prove something about the nature of law, an all-too-human institution, by postulating the existence of a utopia where the inhabitants never break the law. Can we modify our utopia to make it seem more realistic? Suppose occasionally someone breaks the law, but is ostracised from society. Suppose one who breaches a contract is considered a moral renegade who should not be entrusted with any further business dealings. These expressions of sharp social disapproval, and occasionally of ostracism, may work to discourage the few people who would disobey the law. They may not always work, but they may be potent enough to deter most of the people (a minority to begin with) who might consider breaking the law. Thus, our non-perfect utopia now consists of a regime where almost all of the laws are obeyed almost all of the time, where occasional disobedience is met with sharp social disapproval, and where occasionally, despite the mechanism of social disapproval, occasional violations of the law occur. Is this not, nevertheless, a legal system? A positivist might happen to object to this concept as follows: the idea of social disapproval, and sometimes social ostracism, is the same thing as a sanction. It constitutes a way of enforcing the law. Hence, by introducing this socialdisapproval factor into this utopia, we have simply underscored the original point that law (except in idyllic utopias which do not exist) depends upon potential enforcement. But if that is the positivists position, then the international lawyer should gladly concede the point. For international law recognises that the social-disapproval
24

Introduction
factor operates as a sanction. A nation among the community of nations which violates the law, for example, by disregarding a treaty obligation, would certainly be subject to social disapproval by the other nations. in this sense, international law is really law. Now it is perhaps the positivists turn to beat a hasty retreat. The positivist may now want to retract the equation of social disapproval with sanction, for fear of including international law under the term law. Instead, the positivist will retreat to the original position that physical or even violent enforcement is necessary to make law law, and hence international law is not law. We may, however, suspect that the positivist is reshaping definitions in order to exclude the international case, rather than to arrive at a general definition of law. Consistent with this position, the positivist will have to argue that any legal system in which social disapproval functions as the sole sanction (for example, in a peaceful tribal society) does not have law. Law is present only when, in addition to social disapproval, there is physical coercion stemming from the sovereign power of the state. But what if there is no need for physical coercion? The positivist must then conclude that there is no law. Such a position would be difficult to defend, for if there is a society where people are so law-abiding that they get along only with the social-disapproval sanction, that society manifests a rather good case of law. It is strange to insist that, for there to be law, physical coercion must also be used even if there is no need for it. Yet even the serious student of law may not be satisfied with the preceding argument in its entirety. We want to ask what happens if the need for physical coercion should arise. In the international system, at least, we have states which occasionally break the rules of international law and which seem not to be deterred by expressions of social disapproval from other states. This is a reality of international life. Therefore, unlike the tribal society where social disapproval may constitute an effective sanction, international society needs a physical sanction to underscore its rules, otherwise, the rules will occasionally be flouted. Perhaps they will be ignored most often when the chips are down, which is exactly when they most need to be enforced. How can we call such a system, dependent for its support on so feeble a mechanism as social approval, a legal system? It is hard to discern the logic behind the preceding objection, even while it is easy to understand it. We all recognise, and regret, that rules of international law are flouted on occasion, and we are all too aware of the fact that an outraged world public opinion simply is incapable of discouraging the violation. Should our conclusion then be that the rules of international law are not law as we know the term, because as we know the term the law involves the concept of physical enforcement? Yet, even in asking this, we acknowledge that physical enforcement is not a necessary characteristic of law (our utopian examples). And we also acknowledge that, even in domestic cases, where the state is one of the parties, we cannot meaningfully speak of physical enforcement (Professor Fishers argument). These two arguments destroy most of the logical force of our position that international law is not really law, and yet, we may cling to that position. Some early writers on the law of nations attempted to meet the enforcement objection head-on, by asserting that rules of international law are indeed enforced by the mechanism of war. A nation that violates the rules will be the object of a just war initiated precisely to punish the transgressing nation and to enforce the validity of the rules. This argument today sounds like an archaic ploy, for we know enough about wars to have learnt that the transgressing state
25

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may occasionally win if it has the physical power to do so. Physical might bears no necessary connection to international right. Interestingly, the concept of a just war has become, if possible, even more archaic under the collective security mechanisms of the League of Nations and its successor the United Nations. These bodies, in principle at least, are designed to stamp out acts of aggression wherever they occur. In other words, they are not set up for the purpose of enforcing international law, but simply for the purpose of enforcing international peace. It follows that if the peace is unjust, it will be enforced anyway. The United Nations seems to call for a cease fire in disregard of the merits of the local conflict, and it appears to be concerned less with enforcing international law than with enforcing a prohibition against the use of force no matter what the justification. Yet there is something in the notion of a just war that may help us to fashion a more compelling case for the proposition that international law is really law than the other arguments we have examined ... what I will label as reciprocalentitlement violation is a mechanism akin to the old just war notion that underlies a realistic enforcement mechanism for international law.44

Some writers argue that much of the scepticism about international law could be equally applied to municipal law:
... the problem of the ultimate foundation of the binding character of law is in no way peculiar to international law.. It is a general legal problem, and arises just as much with regard to national law as it does for international law. No better illustration of this could be given than the one which is to be found in Salmonds Jurisprudence. A man is told he cannot ride his bicycle along a certain footpath. he asks why, and is told because it is forbidden by a certain by-law. He asks what is the authority for the by-law, and is told that it is made under an Act of Parliament. But if he asks what is the authority for the Act of Parliament, and what is the source of the rule that Acts of Parliament have the force of law, there is, and can be, no final answer. As Salmond says, no statute can confer this authority on Parliament, for that would be to assume the power that has to be accounted for. Whence would the statute itself derive its validity? No doubt the legal force of Acts of Parliament derives from the Constitution, written or unwritten. But then it must be asked what it is that gives the Constitution legal force? In some countries the Constitution itself has been enacted: but what gave that enactment validity? If those who enacted it had the legal, as distinct merely from the physical, power to do so, whence did they derive it, what is the rule of law that conferred the power on them, and whence did it derive its validity? And so on. Ultimately there can be no answer, or there can only be a series of answers, no one of which can be absolutely final. The reason why the difficulty is less obtrusive in the national than in the international field, is that in the national field the interim terms in the series afford a sufficiently satisfying practical basis for the obligatory force of the law to make the average person feel it unnecessary to go further for instance, it is usually enough that the law has been enacted by the proper method, without enquiring what it is that confers legal force on enactment by that particular method. In the international field, however, there are no interim terms of quite the same kind. The absence of any patent and obvious source of obligation, such as might exist if there were an international legislature, deprives the international
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44 Anthony DAmato, Is International Law Really Law? (1985) 79 Northwestern University Law Review at p 1300. 26

Introduction
jurist of any manifest point at which he can rest, and which he can regard as a satisfactory terminal point beyond which there is no practical necessity to go. In such a position as this, the international lawyer might well take a leaf out of the mathematicians book when the latter is faced with an infinite regress. One mathematical pronouncement on the subject45 is to this effect: that when the object of any search begins to recede in the repetitive fashion of a regress: ... you may rest assured that you are battering against a boundary of possible human knowledge a boundary which manifests itself in that form. The mathematician knows that, if this is the position, no useful purpose will be served, nor will any additional knowledge be gained, by going beyond the first and second, or, at most, the third term of the series; for with the third term, the regress is invariably entered. The international lawyer would be justified in adopting the same view. For those who favour the consent theory, for instance, there would be little practical object in going beyond the proposition that there is an overriding principle of customary international law, not itself deriving from consent, but having the consequence that the general consent of states to a rule, once given or shown to exist, makes that rule binding on each state, irrespective of its subsequent wishes. For those who see law in the hallmark of society the maxim ubi societas ibi jus and who consequently postulate the necessity for the existence of law in any society, there would be no need to go beyond a proposition to the effect that if law is a necessity of the international (or any other) order, this implies that the law must be binding, or it cannot serve its purpose. If law is necessary, that necessity must lie precisely in the need for obligatory rules as between members of a society, and it would involve an inherent contradiction to propound law as necessary, if it was not also necessarily binding. This way of putting the matter has considerable attractions.46 The international community, as a society whose members or at least whose basic members are sovereign states, cannot possess a corpus of law similar to that of domestic law. The latter is created and imposed on the members of each national society by an authority which is juridically superior to them; in other words, the structure of the domestic legal systems is institutionalised and the law or at least a major part of it is derived from institutional machinery. In the international society, on the other hand, the states, precisely because they are sovereign, are not subject to a hierarchical authority regarded as juridically imposed upon them as superior. The international community is therefore a noninstitutionalised society, that is to say endowed with only those institutions the international organisations which the basic members have been pleased to create by agreement among themselves, institutions which they can, if they so desire, liquidate. International law, therefore, can only be composed at bottom of rules which the sovereign states themselves establish in order to regulate the relations between them.47

Other writers accept the nature of international law as law and cast doubt on the positivist use of municipal law as a model for law in general. Such writers
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45 JW Dunne, Nothing Dies, 1946, London: Faber & Faber at p 32. 46 GG Fitzmaurice, The Foundations of the Authority of International Law and the Problem of Enforcement (1956) 19 MLR 1 at pp 911. 47 Luigi Condorelli (Professor of International Law at the University of Geneva), in International Law: Achievements and Prospects, 1991, Bedjaoui (ed) London: Martinus Nijhoff and UNESCO, at p 179. 27

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argue that municipal law governs legal persons within a state, and such law is derived from a legal superior. International law operates on a different plane.
International law is a law of co-ordination, not, as is the case of most internal law, a law of sub-ordination. By law of co-ordination we mean to say that it is created and applied by its own subjects, primarily the independent states (directly or indirectly), for their own common purposes.48 The young reader embarking on the study of international law is aware that law is a body of rules which a human community, a society or an entity sets up in order to govern respective relationships at a given time. Such a reader knows that, over the long term, the content of such law varies, particularly in terms of the type of regulation exercised over the relationships considered (law of subordination or equality, of constraint or freedom, such as feudal law, capitalist or liberal law, socialist law, colonial law, and so forth) or, of course, in terms of the subject areas and sectors of life to be regulated (civil, penal, commercial, aerial, medical law, and so forth), or again in terms of the countries or areas of civilisation (Roman law, Anglo-Saxon law, Islamic law, Chinese law, and so on). What informs the inquiry of the student as he sets out on what for him are the fresh fields of international law is therefore less the concept of law, on which he has already acquired some ideas, than the fact which calls for some explanation that it is termed international. Just as what is known as municipal law is the set of rules governing the relationships of individuals, juridical persons, groups and entities among themselves within a given state, the law known as international consists of a body of norms, in written form or otherwise, intended to discipline the relationships of states among themselves. Thus, in principle, it regulates the conduct of states and not that of individuals. states are still almost the only protagonists on the international stage. To be more precise, we should be speaking here of international public law but the shorter expression is preferred in ordinary speech and we shall maintain its use here. The fundamental characteristic of this international law is thus that its function is to regulate the relations between states, in other words between entities known to be sovereign and which, in principle, assert their full independence of any legal order. This at once raises the problem (which lends international law its specificity and colour) of how these states which affirm their sovereignty can be subject to international law. If one postulates at the outset that there is no higher authority than the state, how can the norm of international law be produced for and applied by such a sovereign state? As might be expected, there is only one possible answer to this question, namely that, historically, it has not been possible for international law to be anything other than a law resting largely on the consent, whether express or tacit, of states and that this situation is bound to continue for a long time to come. This determines the true nature and real tonality of international law. It is more a law of co-ordination (between the sovereign jurisdictions of individual states) than a law of subordination such as municipal law, which regulates its subjects, where necessary through coercion exercised by the state apparatus.49

The implication here is that international law and municipal law are two different species of law. This issue will be further referred to in the context of the monist-dualist debate discussed in Chapter 2. It should be noted here,
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48 Rosenne, Practice and Methods of International Law, 1984, Dobbsferry, New York: Oceana at p 2. 49 Mohammed Bedjaoui (Judge of the International Court of Justice), International Law: Achievements and Prospects, 1991, London: Martinus Nijhoff and UNESCO at p 2. 28

Introduction

however, that not all municipal law can be considered to be a law of subordination, derived from a legal superior. One only has to consider the development of public law in Britain to see an area of municipal law which is created and applied by its own subjects. Many of the rules of public law place restraints on government action although it is the government, as majority party in the House of Commons, that arguably has the power to make the law as it chooses. Other writers have countered arguments about the validity of international law by pointing to the behaviour of states. For example, Brierly has written:
The best evidence for the existence of international law is that every actual state recognises that it does exist and that it is itself under obligation to observe it. states may often violate international law, just as individuals often violate municipal law, but no more than individuals do states defend their violations by claiming that they are above the law.50

The fact is that states, the principal subjects of international law, do recognise a system of legal rules which they refer to as international law. Louis Henkin summed up the position:
almost all nations observe almost all principles of international law and almost all of their obligations almost all of the time.51 the reality of international law, that is to say, the actual use of rules described as rules of international law by governments, is not to be questioned. All normal governments employ experts to provide routine and other advice on matters of international law and constantly define their relations with other states in terms of international law. Governments and their officials routinely use rules which they have for a very long time called the law of nations or international law. It is not the case that resort to law is propagandist though it sometimes is. The evidence is that reference to international law has been a part of the normal process of decision-making.52

When Iraq invaded Kuwait in August 1990, Saddam Hussein did not argue that there was no system of law preventing Iraq acting in the way it did. Rather he sought to justify military action on the basis of compliance with the rules of international law. Of course, the fact that states refer to and justify their actions in the language of international law is not conclusive proof that it exists. It may be argued that states behave according to pure self-interest and only refer to international law for purposes of legitimisation. Schwarzenberger has written that the primary function of law is to assist in maintaining the supremacy of force and the hierarchies established on the basis of power, and to give this overriding system the respectability and sanctity law confers. But this is not to deny international laws status of law. It can and has been argued that municipal law exists to maintain the position of the ruling class. The actions of states cannot always be explained in terms of immediate self-interest. Even when extreme pragmatism governs state action and the result is the use of armed force, ultimately it is the rules of international law that are used to make the peace.
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50 Brierly, The Outlook for International Law, 1944, Oxford: Oxford University Press at p 5. 51 Henkin, How Nations Behave, 2nd edn, 1979, New York: Columbia University Press at p 47. 52 Brownlie, The Reality and Efficacy of International Law (1981) LII BYIL 1. 29

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International law receives a bad press because it is the breakdowns that make the news but just because a law is broken does not mean that it does not exist.

1.4

The enforcement of international law

International law is not imposed on states in the sense that there is no international legislature. As has been seen, the traditional Western view is that international law is founded essentially on consensus. As will be seen in Chapter 3, it has traditionally been created in two ways: by the practice of states (custom) and through agreements entered into by states (treaties). Once international rules are established they have an imperative character and cannot be unilaterally modified at will by states. Unlike municipal law, however, there is no uniform enforcement machinery. The full details of the various ways in which states are made to conform to their international obligations will be discussed throughout the book. The aim here is simply to introduce the range of mechanisms available.

1.4.1 The United Nations


Under Chapter VII of the Charter of the United Nations, the UN Security Council may take enforcement measures where it has determined the existence of a threat to the peace, breach of the peace, or act of aggression. This topic will be dealt with in more detail in Chapter 13. Suffice it to say at this stage that the measures available to the Security Council range from the use of economic sanctions, as in the case of the severance of air links with Libya as a result of the Lockerbie bombing in 1992, to the use of armed force in the case of Iraq. The Security Councils main role is in maintaining international peace and security rather than in enforcing international law, but the two functions will often overlap.

1.4.2 Judicial enforcement


Reference has already been made to judgments of the International Court of Justice, which is the judicial organ of the United Nations. Its main role is to resolve legal disputes between states and its judgments are binding on the parties to the dispute. In addition to the ICJ there are a number of specialised international tribunals dealing with particular areas of the law and it is not uncommon for states to establish ad hoc tribunals to resolve differences. The whole issue of the peaceful settlement of disputes will be dealt with in more detail in Chapter 12.

1.4.3 Loss of legal rights and privileges


A common enforcement method used by states is the withdrawal of legal rights and privileges. The best known example is the severing of diplomatic relations, but sanctions falling short of this may include trade embargoes, the freezing of assets, and suspension of treaty rights. The adoption of such measures, and indeed the mere threat of them, can very often prove effective in enforcing international obligations.

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Introduction

1.4.4 Self-help
In very limited situations, international law does countenance self-help in the sense of use of armed force. It is a fundamental rule of international law that the first use of armed force is prohibited but a right of self defence does exist and again the actual use or threat of action in self defence may be effective in enforcing international obligations. The law relating to the use of force, including the right of self defence, is discussed in Chapter 13. Two further points can be made about enforcement. First, an important aspect of law is its role in helping to predict future action. The action of individuals and states is generally predicated on a presumption that the law will be observed. Although the existing laws may be criticised and reforms demanded, it is in the general interest that law is upheld. An important factor influencing the observance of international law is therefore reciprocity. For example, it is in a states own interests to respect the territorial sovereignty of other states as they will in turn respect its territorial sovereignty. Over 300 years ago Grotius could state:
... law is not founded on expediency alone. There is no state so powerful that it may not some time need the help of others outside itself, either for the purposes of trade or even to ward off the forces of may foreign nations untied against it ... All things are uncertain the moment men depart from law.

The final point involves public opinion. Allusion has already been made to the role of law in the legitimisation of action. states are ever keen to show that their actions are compatible with international law and fear criticism based on the fact that they are failing to observe its rules. One only has to look at the role played by organisations such as Amnesty International in publicising abuses of international human rights law to recognise the effect that informed public opinion can have on state practice. Of course, no system of law can prevent atrocities being carried out. Just as municipal criminal law does not necessarily prevent the occurrence of murder and rape, international law cannot necessarily prevent genocide. It is worth considering whether multiracial elections would have taken place in South Africa if there existed no system of international law. For, arguably, it was the international law prohibition of apartheid, and the United Nations sanctions that were imposed on South Africa for its breach of the prohibition, that led to the demise of the white minority regime. The issue of human rights and apartheid will be further considered in Chapter 15.

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CHAPTER 2 THE RELATIONSHIP BETWEEN MUNICIPAL LAW AND INTERNATIONAL LAW


2.1 Introduction
International law is not confined to regulating the relations between states, and the scope of international law is no longer limited to the rules of warfare and the conduct of diplomatic relations. Matters of social concern such as health, education and economics fall within the ambit of international law and a growing body of rules sets down rights and duties for individuals. Even if it were still correct to speak in terms of international law being a system of rules governing the conduct of states, the fact remains that states are abstract entities which can only act through individuals. State actions are performed by individuals and it therefore follows that international rules have to be applied by individuals. Individual conduct within a state is the subject of municipal law and thus it can be seen that there is potential for the rules of international law to come into contact with rules of municipal law. This chapter is concerned with the relationship that exists between international law and municipal law. That relationship gives rise to two main areas of discussion: 1 The theoretical question as to whether international law and municipal law are part of a universal legal order (monism) or whether they form two distinct systems of law (dualism); 2 The practical issue of what rules govern the situation where there appears to be a conflict between the rules of international law and the rules of municipal law: This may occur either: (a) before an international court; or (b) before a municipal court

2.2

The theoretical issue

Historically there have been two main schools of thought: monism and dualism. Their ideas are outlined here but it should be noted that many modern writers doubt the utility of the monism/dualism dichotomy. Furthermore, courts faced with practical problems involving potential conflicts between the rules of international law and municipal law rarely refer to the theoretical issues. It is, however, instructive when considering actual court decisions to question their theoretical underpinnings.
The relationship between international law and municipal law has been the subject of much doctrinal dispute. At opposing extremes are the dualist and monist schools of thought. According to the former, international law and the internal law of states are totally separate legal systems. Being separate systems, international law would not as such form part of the internal law of a state: to the extent that in particular instances rules of international law may apply within a state they do so by virtue of their adoption by the internal law of the state, and apply as part of that internal law and not as international law. Such a view avoids any question of the supremacy of the one system of law over the other since they share no common field of application: and each is supreme in its own
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sphere. On the other hand, according to the monistic doctrine, the two systems of law are part of one single legal structure, the various national systems of law being derived by way of delegation from the international legal system. Since international law can thus be seen as essentially part of the same legal order as municipal law, and superior to it, 1 it can be regarded as incorporated in municipal law, giving rise to no difficulty of principle in its application as international law within states. These differences in doctrine are not resolved by the practice of states or by such rules of international law as apply in this situation. International developments, such as the increasing role of individuals as subjects of international law, the stipulation in treaties of uniform internal laws and the appearance of such legal orders as that of the European Communities, have tended to make the distinction between international law and national law less clear and more complex than was formerly supposed at a time when the field of application of international law could be regarded as solely the relations of states amongst themselves. Moreover, the doctrinal dispute is largely without practical consequences, for the main practical questions which arise how do states, within the framework of their internal legal order, apply the rules of international law, and how is a conflict between a rule of international law and a national rule of law to be resolved? are answered not be reference to doctrine but by looking at what the rules of various national laws and of international law prescribe.2

2.2.1 Monism
Monism considers international law and municipal law to be both part of the same body of knowledge law. They both operate in the same sphere of influence and are concerned with the same subject matter and thus can come into conflict. If there is a conflict, it is international law that prevails. Some, like Kelsen, argue that this is because international law is a higher law from which the state derives its authority and thus its ability to make municipal laws:
Since the basic norms of the national legal orders are determined by a norm of international law, they are basic norms only in a relative sense. It is the basic norm of the international legal order which is the ultimate reason of validity of the national legal orders too.3

Others, including Lauterpacht, argue on natural law grounds that international law prevails because it protects individuals, and the state itself is only a collection of individuals. It is supported by the natural law doctrine that authority and legal duty are both subject to the universality of natural law. A recent articulation of this view is to be found in the writing of Philip Allott:
Every legal power in every society in the world is connected with every other legal power in every other society in the world through the international law of the international society, the society of all societies, from which all law-making

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1 2 3

There is an alternative theory which, while being monistic, asserts the supremacy not of international but of municipal law. Oppenheims International Law, Vol 1, 9th edn, 1992, London: Longman at pp 5354. Kelsen, General Theory of Law and the State, 1945, Cambridge, Mass: Harvard University Press at pp 36768. 34

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power is delegated.4

2.2.2 Dualism
The dualist doctrine developed in the 19th century partly because of the development of theories about the absolute sovereignty of states and partly alongside the development of legal positivism. Dualist doctrine considers international law and municipal law to be two separate legal orders operating and existing independently of one another. International law is the law applicable between sovereign states and is dependent on the common will of states for its authority; municipal law applies within the state regulating the activities of its citizens and has as the source of its authority the will of the state itself. On this basis neither system has the power to create or alter rules of the other. Since both systems may deal with the same subject matter it is possible for conflicts between the two systems to arise. Where there is a conflict between the two systems, a municipal court following the dualist doctrine would apply municipal law. This might lead to a state being in breach of its international obligations, but that would be a matter for an international tribunal.

2.2.3 A third way?


Both monism and dualism take the view that international law and municipal law can deal with the same subject matter. A third school of thought can be identified which, while subscribing to the dualist concept of two separate legal orders, argues that the two orders deal with different subject matters. Foremost among the advocates of this doctrine are two former judges at the World Court: Sir Gerald Fitzmaurice and Dionisio Anzilotti. In an opinion given in a case in 1939 Anzilotti stated:
It is clear that, in the same legal system, there cannot at the same time exist two rules relating to the same facts and attaching to these facts contradictory consequences ... It is for instance impossible that the relations between the two states should be governed at one and the same time by a rule to the effect that, if certain conditions are fulfilled, the Court has jurisdiction and by another rule to the effect that, if certain conditions are fulfilled, the Court has no jurisdiction by a rule to the effect that in certain circumstances the state concerned may have recourse to the Court and by another to the effect that in the same circumstances the state has no right to do so, etc, etc. In cases of this kind, either the contradiction is only apparent and the two rules are really co-ordinated so that each has its own sphere of application and does not encroach on the sphere of application of the other, or else one prevails over the other, ie, is applicable to the exclusion of the other.5

Anzilotti seemed to support the view that the two sets of rules, international law and municipal law, each had its own sphere of application. In an earlier case he had indicated how international tribunals should deal with rules of municipal law:
From the standpoint of International Law and of the Court which is its organ, municipal laws are merely facts which express the will and constitute the
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4 5

Allott, Eunomia: New Order for a New World, 1990, Oxford: Oxford University Press at p 308. The Electricity Company of Sofia and Bulgaria, Ser A/B, No 77 (1939). 35

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activities of states, in the same manner as do legal decisions or administrative measures.6

In a lecture to the Hague Academy of International Law, Fitzmaurice made the point even more forcefully:
The controversy [between monism and dualism] turns on whether international law and internal law are two separate legal orders, existing independently of one another and, if so, on what basis it can be said that either is superior to one or supreme over the other; or whether they are both part of the same order, one or the other of them being supreme over the other within that order. The first view is the dualist view, the second monist ... A radical view of the whole subject may be propounded to the effect that the entire monist-dualist controversy is unreal, artificial and strictly beside the point, because it assumes something that has to exist for there to be any controversy at all and which in fact does not exist namely a common field in which the two legal orders under discussion both simultaneously have their spheres of activity ... In order that there can be controversy about whether the relations between two orders are relations of coordination between self-existent independent orders, or relations of subordination of the one to the other, or of the other to the one or again whether they are part of the same order, but both subordinate to a superior order it is necessary that they should both be purporting to be, and in fact be, applicable in the same field that is, to be the same set of relations and transactions. For instance ... it would be idol to start a controversy about whether the English legal system was superior to or supreme over the French or vice versa, because these systems do not pretend to have the same field of application ... There is indeed no basis on which it is even possible to start an argument, because, although these legal systems may in a certain sense come into conflict in particular cases, thus giving rise to problems of what is called Conflict Law, or Private International Law, each country has its own conflict rules whereby it settles such problems arising before its own courts. Ultimately therefore, there can be no conflict between any two systems in the domestic field, for any apparent conflict is automatically settled by the domestic conflict rules of the forum. Any conflict between them in the international field, that is to say on the inter-governmental plane, would fall to be resolved by international law, because in that field international law is not only supreme, but in effect the only system there is. Domestic law does not, as such, apply at all in the international field. But the supremacy of international law in that field exists, not because of any inherent supremacy of international law as a category over national law as a category, but for other reasons. It is, rather, a supremacy of exactly the same order as the supremacy of French law in France, and of English law in England ie a supremacy not arising from content, but from the field of operation not because the law is French but because the place, the field, is France. The view here suggested is neither dualist nor monist: it is precisely the view put forward in the following passage from Anzilotti, who is often miscalled a dualist in this respect: It follows from the same principle that there cannot be conflict between the rules belonging to different juridical orders, and, consequently, in particular between international and internal law. To speak of conflict between international law and internal law is as inaccurate as to speak of the conflict between the laws of different states: in reality the existence of a conflict between norms belonging to different juridical orders cannot be confirmed except from a standpoint outside both the one and the other.
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Certain German Interests in Polish Upper Silesia, Ser A, No 7, p 39 (1926). 36

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The logic of this cannot be contraverted, and in actual fact, the necessity for a common field of operation as the basis of any discussion as to the relations between two legal orders, is recognised by modern protagonists of the monistdualist controversy. This can be seen from the following sentence in an article by a writer of the monist school, reading: Two normative systems with binding force in the same field must form part of the same order [italics added]. This may be true, or at least it is capable of discussion, if the two orders in question are binding in the same field, but not otherwise. Consider again a sentence such as the following one, taken from one of the most eminent and justly celebrated modern exponents of the positivist-monist view: International law and national law cannot be mutually different and mutually independent systems ... if ... both systems are considered to be valid for the same space and at the same time. Everything here depends of course on the if which surely assumes the very point that has to be proved. What calls for question is precisely the phrase valid for the same space at the same time. Had this passage said valid simultaneously for the same class of relations, it would not have been open to question, though only because international and national law do not in fact govern the same set of relations. To say this is not to deny the validity of the monist view, but only its relevance in this particular connexion. Equally, the relevance of the dualist view is denied. Recognising, as they evidently do, that only relations between legal orders that operate in the same field can usefully and meaningfully be discussed, the protagonists of the monist-dualist controversy seem to be driven to trying to create the necessary common field though it is more particularly the monists who seek to do this, since the dualists can rest quite content with the existence of two orders, provided they operate in separate fields. The endeavour to create a common field takes the form in effect of denying the existence or reality of the state, or reducing it to the sum total of the individuals composing it. For instance, the same eminent authority, evidently aware of the difficulty that must arise unless there is a common field, has suggested the following solution: The mutual independence of international and national law is often substantiated by the alleged fact that the two systems regulate different subject matters. National law, it is said, regulates the behaviour of individuals, international law the behaviour of states. We have already shown that the behaviour of states is reducible to the behaviour of individuals representing the state. Thus the alleged difference in subject matter between international and national law cannot be a difference between the kinds of subjects whose behaviour they regulate ... Formally, therefore, international and domestic law as systems can never come into conflict. What may occur is something strictly different, namely a conflict of obligations, or an inability for the state on the domestic plane to act in a manner required by international law. The supremacy of international law in the international field does not in these circumstances entail that the judge in the municipal courts of the state must override local law and apply international law. Whether he does or can do this depends on the local law itself, and on what legislative or administrative steps can be or are taken to deal with the matter. The supremacy of international law in the international field simply means that if nothing can be or is done, the state will, on the international plane, have committed a breach of international law obligations, for which it will be internationally responsible, and in respect of which it cannot plead the condition of domestic law by way of absolution. International law does not therefore in any way purport to govern the content of national law in the national field nor does it need to. It simply says and this is all it needs to say that certain things are valid according to international law, and that if a state in the application of its
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domestic law acts contrary to international law in these respects, it will commit a breach of its international obligations.7

2.3

The practical issue

2.3.1 Municipal law before international tribunal


There is ample judicial and arbitral authority for the rule that a state cannot rely upon the provisions or deficiencies of its municipal law to avoid its obligations under international law. One of the earliest authorities is the decision in the Alabama Claims Arbitration (1872).8 During the American Civil War, a number of ships were built in England for private buyers. The vessels were unarmed when they left England but it was generally known that they were to be fitted out by the Confederates in order to attack Union shipping. They were so fitted and caused considerable damage to American shipping. The US sought to make the UK liable for these losses on the basis that it had breached its international obligations as a neutral during the War. The UK argued that under English law as it stood there was no way in which it could prevent the sailing of the vessels. The arbitrator rejected the UK argument and had no hesitation in upholding the supremacy of international law. Similar rulings were made in the Serbian Loans Case (1929). In the Draft Declaration on the Rights and Duties of States 1949 prepared by the International Law Commission, Article 13 states:
Every state has the duty to carry out in good faith its obligations arising from treaties and other sources of international law, and it may not invoke provisions in its constitution or its laws as an excuse for failure to perform this duty.9

Similarly, Article 27 of the Vienna Convention on the Law of Treaties 1969 provides:
A party may not invoke the provisions of its internal law as justification for its failure to perform a treaty.

Although international tribunals will uphold the supremacy of international law over municipal law this should not be taken to mean that municipal law is of no relevance. Municipal law, and in particular domestic legislation, has an important role to play. Very often an international tribunal will have cause to examine domestic legislation closely to discern the practice of states. International tribunals have also looked to municipal law when considering the general principles of law indicated as source of international law in Article 38(1)(c) of the Statute of the International Court of Justice, although it should be pointed out that the court will look at municipal law in general rather than any single system of municipal law.
Barcelona Traction, Light and Power Company Limited Case (Second Phase)10 38 In this field international law is called upon to recognise institutions of municipal law that have an importance and extensive role in the international
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The General Principles of International Law Considered from the Standpoint of the Rule of Law, 1957, 92 Hague Recueil at p 70ff footnotes omitted. 8 Moore, 1 Int Arb 495. 9 YBILC 1949 p 286. 10 Belgium v Spain [1970] ICJ Rep at p 3. 38

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field. This does not necessarily imply drawing any analogy between its own institutions and those of municipal law, nor does it amount to making rules of international law dependent upon categories of municipal law. All it means is that international law has to recognise the corporate entity as an institution created by states in a domain essentially within their domestic jurisdiction. This in turn requires that, whenever legal issues arise concerning the rights of states with regard to the treatment of companies and shareholders, as to which rights international law has not established its own rules, it has to refer to the relevant rules of municipal law. Consequently, in views of the relevance to the present case of the rights of the corporate entity and its shareholders under municipal law, the Court must devote attention to the nature and interrelation of those rights ... 50 In turning now to the international legal aspects of the case, the Court must, as already indicated, start from the fact that the present case essentially involves factors derived from municipal law the distinction and the community between the company and the shareholder which the Parties, however widely their interpretations may differ, each take as the point of departure of their reasoning. If the Court were to decide the case in disregard of the relevant institutions of municipal law it would, without justification, invite serious legal difficulties. It would lose touch with reality, for there are no corresponding institutions of international law to which the Court could resort. Thus the Court has, as indicated, not only to take cognizance of municipal law but also refer to it. It is to rules generally accepted by municipal legal systems which recognise the limited company whose capital is represented by shares, and not to the municipal law of a particular state, that international law refers. In referring to such rules, the Court cannot modify, still less deform them.

Another manner in which municipal law may be of importance in a case before an international tribunal arises from the doctrine of opposability. This doctrine allows one state to invoke against, or oppose to, another state a rule of its own municipal law. As a general principle, provided that the rule of municipal law is not contrary to rules of international law it may be legitimately opposed in order to defeat the international claims of the other state. Thus, in the AngloNorwegian Fisheries case (1951)11 the ICJ held that a Norwegian law delimiting an exclusive fishery zone along almost 1,000 miles of coastline was not contrary to international law and therefore could be successfully opposed to defeat British claims to fish in the disputed waters.

2.3.3 International law in municipal courts


2.3.3.1 Transformation and incorporation
Before considering a number of examples of the treatment of international law by municipal courts it is necessary to explain briefly the concepts of transformation and incorporation. If, as the dualist theory maintains, international law and municipal law constitute two distinct legal systems, a practical consequence is that before any rule of international law can have effect within domestic jurisdiction it requires express and specific transformation into municipal law by the use of the appropriate constitutional machinery, such
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11 [1951] ICJ Rep at p 116. 39

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as a municipal statute. A different view, and one reflecting the monist position, is that rules of international law automatically become part of municipal law as a result of the doctrine of incorporation. Put at its simplest, transformation doctrine views rules of international law as being excluded from municipal law unless specifically included; the incorporation doctrine holds that rules of international law are included as part of municipal law unless they are specifically excluded.

2.3.3.2 British practice Customary international law


As far as the rules of customary international law are concerned the English courts have generally adopted the doctrine of incorporation. Provided that they are not inconsistent with Acts of Parliament or prior authoritative judicial decisions, then rules of customary international law automatically form part of English law: customary international law is incorporated into English law. The 18th century lawyer, Blackstone, wrote:
The law of nations, wherever any question arises which is properly the object of its jurisdiction, is here adopted in its full extent by the common law, and it is held to be a part of the law of the land.12

In Buvot v Barbuit (1737)13 Lord Talbot declared that the law of nations in its full extent was part of the law of England. Lord Talbots statement was followed in a series of 18th and early 19th century cases. Cynics may suggest that the reason for this view was that at the time the international community was small and Britain had a major impact on the formation of customary international law. Some doubt was thrown on the incorporation doctrine by the decision in R v Keyn (The Franconia) (1876).14 The Franconia, a German ship, collided with a British ship in the English Channel three miles off the British coast. The defendant was prosecuted for manslaughter of a passenger on board the English ship who drowned as a result of the collision and was found guilty. However, the question whether an English court had jurisdiction to hear the case was reserved for the Court of Crown Cases Reserved which decided by a seven to six majority that it did not. Cockburn CJ found that under international law, events occurring on board a foreign ship while it was on the high seas were governed by the law of the foreign state. It was only when the foreign ship came into the ports or waters of another state that the ship and those on board become subject to the local law. Unless, therefore, the defendant at the time of the offence was on British territory or on board a British ship, an English Court would have no jurisdiction. The question for the court was whether the collision had occurred in British territory. It found that according to English law, the three mile belt of sea surrounding Great Britain was not British territory. The court could also not find any clear rule of international law stipulating
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12 Blackstone, Commentaries, IV, Chapter 5. 13 (1737) Cas t Talbot 281. 14 (1876) 2 Ex D 63. 40

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jurisdictional rights over a three mile territorial sea and therefore found that there was no basis for jurisdiction over Keyn. The case led to the passing of the Territorial Waters Jurisdiction Act 1878 which gave the English courts jurisdiction over the territorial sea. Some have argued that the judgment of Lord Cockburn supports the transformation doctrine. In the course of his judgment he discussed what the position would have been had the court been able to discern a clear rule of international law recognising a three mile territorial sea. He argued that even if unanimity could be found among states on the adoption of a three mile territorial sea it would amount to a new law and the courts were not able to usurp the role of Parliament in creating new law. However, other writers have confined the case to its particular facts and argued that the decision was only concerned with the existence or not of any jurisdiction over the territorial sea and did not amount to a rejection of the rule that international law is part of the law of England. The confusion was not resolved in the case of West Rand Central Gold Mining Co v R (1905),15 Lord Alverstone CJ stated:
It is quite true that whatever has received the common consent of civilised nations must have received the assent of our country, and that to which we have assented along with other nations in general may properly be called international law, and as such will be acknowledged and applied by our municipal tribunals when legitimate occasion arises for those tribunals to decide questions to which doctrines of international law may be relevant. But any doctrine so invoked must be one really accepted as binding between nations, and the international law sought to be applied must, like anything else, be proved by satisfactory evidence, which must shew either that the particular proposition put forward has been recognised and acted upon by our own country, or that it is of such a nature, and has been so widely and generally accepted, that it can hardly be supposed that any civilised state would repudiate it. The mere opinions of jurists, however eminent or learned, that it ought to be so recognised, are not in themselves sufficient. They must have received the express sanction of international agreement, or gradually have grown to be part of international law by their frequent practical recognition in dealings between various nations ... Barbuits Case, Torquet v Bath and Heathfield v Chilton are cases in which the Courts of law have recognised and given effect to the privilege of ambassadors as established by international law. But the expressions used by Lord Mansfield when dealing with the particular and recognised rule of international law on this subject, that the law of nations forms part of the law of England, ought not to be construed so as to include as part of the law of England opinions of text-writers upon a question as to which there is no evidence that Great Britain has ever assented, a fortiori if they are contrary to the principles of her laws as declared by her Courts. The cases of Wolff v Oxholm (1817) and R v Keyn are only illustrations of the same rule namely, that questions of international law may arise, and may have to be considered in connection with the administration of municipal law.

The incorporation doctrine was further qualified by the Privy Council in Chung Chi Cheung v The King (1939)16 where Lord Atkin stated:

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15 [1905] 2 KB 391. 16 [1939] AC 160. 41

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It must always be remembered that, so far, at any rate, as the courts of this country are concerned, international law has no validity save in so far as its principles are accepted and adopted by our own domestic law. There is no external power that imposes its rule upon our own code of substantive law or procedure. The Courts acknowledge the existence of a body or rules which nations accept amongst themselves. On any judicial issue they seek to ascertain what the relevant rule is, and having found it, they will treat it as incorporated into the domestic law, so far as it is not inconsistent with rules enacted by statutes or finally declared by their tribunals.

The issue of the relationship of customary international law to English law was raised again in the important case of Trendtex Trading Corporation v Central Bank of Nigeria (1977).17 The case concerned issues of state immunity which will be further discussed in Chapter 8. In the course of their judgments all three members of the Court of Appeal accepted the incorporation doctrine, Shaw LJ stating, What is immutable is the principle of English law that the law of nations ... must be applied in the courts of England. The case also raised the question of the relationship between the doctrine of precedent and customary international law. The court had to consider whether stare decisis applies to rules of United Kingdom law that incorporate rules of customary international law so that a change in international law can only be recognised within the limits of that doctrine. Earlier cases seemed to suggest that the doctrine of precedent prevailed and that the courts could not recognise a change in the rules of customary international law if it conflicted with an earlier decision of the English courts. The majority in Trendtex rejected this view, Lord Denning stating:
... a decision of this court as to what was the ruling of international law 50 or 60 years ago is not binding on this court today. International law knows no rule of stare decisis. If this court today is satisfied that the rule of international law on a subject has changed from what it was 50 or 60 years ago, it can give effect to that change and apply the change in our English law without waiting for the House of Lords to do it.

The most recent confirmation of the incorporation doctrine applying to customary international law is to be found in the Court of Appeal judgments in Maclaine Watson v Department of Trade (1989). Their view was not contradicted in the House of Lords (1990) although their Lordships found that the case concerned the application of treaty rights rather than rules of customary international law. Taken as a whole, the authorities would seem to support the incorporation doctrine and thus it can be said that customary international law will be applied by the English courts subject to two main conditions: 1 If there is a conflict between customary international law and an Act of Parliament, the Act of Parliament prevails. It should be noted that, as a general rule of statutory interpretation, the courts will try to interpret statutes so as to avoid a conflict with international law. This does not of course apply if the statute is clear and unambiguous.
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17 [1977] QB 578. 42

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If there is a conflict between customary international law and a binding judicial precedent laying down a rule of English law, the judicial precedent prevails. But following the Trendtex case the English courts may now depart from earlier judicial precedent which lays down a rule of international law if the international law has changed in the meantime. One final point about the incorporation doctrine is that since customary international law is considered to be part of English law it does not need to be proved as fact by expert evidence, unlike the position with regard to rules of foreign municipal law. The British courts will take judicial notice of international rules, and may of their own volition refer to textbooks and other sources for evidence thereof.

Treaties
The British practice regarding treaties is different from that regarding customary law. The main reason for this is that the conclusion and ratification of treaties are matters for the executive, coming as they do under the scope of the prerogative. Parliament has no say in the making of treaties. If they were to have direct effect, the Crown could alter the law without recourse to Parliament: therefore it is established that treaties only become part of English law if an enabling act of Parliament has been passed. This point has been reiterated by the courts in a number of cases and should be familiar to those who have studied the doctrine of Parliamentary supremacy and the effect of British membership of the European Union. Recent discussion of the place of treaties in English law took place in the House of Lords in Department of Trade v Maclaine Watson (1990).18 The question for the courts was whether a member state of an international organisation could be sued directly for the liabilities of the organisation. As has already been stated the Court of Appeal saw the matter as raising issues of customary international law. The House of Lords viewed the matter differently they saw it as an issue of treaty rights, and explicitly confirmed that a treaty to which the United Kingdom is a party cannot automatically alter the laws of the UK. Only if a treaty is transformed into UK law by statute can it be enforced by the courts in this country; hence the need for the European Communities Act 1972 to transform the Treaty of Rome.
A treaty is a contract between the governments of two or more sovereign states. International law regulates the relations between sovereign states and determines the validity, the interpretation and the enforcement of treaties. A treaty to which Her Majestys government is a party does not alter the laws of the United Kingdom. A treaty may be incorporated into and alter the laws of the United Kingdom by means of legislation. Except to the extent that a treaty becomes incorporated into the laws of the United Kingdom by statute, the courts of the United Kingdom have no power to enforce treaty rights and obligations at the behest of a sovereign government or at the behest of a private individual.19

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18 [1990] 2 AC 418. 19 International Tin Council case [1990] 2 AC 418 per Lord Templeman. 43

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The usual way in which treaties are transformed into English law is by the passing of an enabling act to which a schedule is attached containing the provisions of the treaty to be enacted. For example the Diplomatic Privileges Act 1964 enacts the Vienna Convention on Diplomatic Relations 1961. Where the treaty is contained in a schedule it is an integral part of the Act and any interpretation of the statute will involve interpretation of provisions of the treaty. Full discussion of the international law rules on treaty interpretation is to be found in Chapter 4. The issue here is the rules of interpretation that the English courts use when considering the provisions of a treaty. The leading case is Fothergill v Monarch Airlines Ltd (1980).20 In that case the House of Lords was called upon to interpret the provisions of the Warsaw Convention for the Unification of Certain Regulations concerning International Air Travel 1929 which formed part of the Carriage by Air Act 1961. The House of Lords held that it was entitled to use the rules of treaty interpretation found in the Vienna Convention on the Law of Treaties 1969 even though such rules conflicted with the English rules of statutory interpretation. On some occasions, Parliament may pass legislation to give effect to the terms of a treaty without enacting the treaty itself in a schedule. In such cases the question arises as to the extent to which the courts can have regard to the treaty in interpreting the statute. The leading case here is Salomon v Commissioners of Customs and Excise (1967)21 in which the Court of Appeal had to interpret the Customs and Excise Act 1952. The Act was intended to give effect to the Convention on Valuation of Good for Customs Services 1950, although no specific mention was made of the Convention in the Act. The court set down three principles to be applied in such cases. First, if the terms of the statute are clear and unambiguous, the court must give effect to them even if they conflict with the treaty provisions. Secondly, if the provisions of the statute are not clear and are capable of more than one meaning, the treaty can be used as an aid to interpretation and a presumption operates that Parliament cannot have intended to legislate contrary to international law. Thirdly, the court may refer to the treaty in such cases even if there is no reference to it anywhere in the statute. Extrinsic evidence can be brought to show that the statute was intended to give effect to the treaty. It must be noted that the rules regarding European law are different and reference should be made to the House of Lords decision in R v Secretary of State for Transport ex p Factortame (No 2) (1990) 22 for a discussion of the relationship between English statute and European law. Finally, there is the situation where an act of Parliament, while not intended to give effect to any specific treaty, deals with the same subject matter as a treaty to which the UK is a party. Again, it should be noted that there are specific rules dealing with the position of European law and reference should be made to textbooks on Constitutional law and European law for the position with regard to conflict between statute and law derived from the Treaty of Rome. In other situations the rules are fairly straightforward. The courts will
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20 [1981] AC 251. 21 [1967] 2 QB 116. 22 [1991] 1 AC 603. 44

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always give effect to clear and unambiguous words contained in a statute even if they conflict with a treaty to which the UK is a party. Therefore in R v Secretary of State for the Home Department ex p Brind (1991)23 the House of Lords upheld the broadcasting ban on certain terrorist organisations introduced under the provisions of the Broadcasting Act 1981 even though it was argued that it breached provisions of the European Convention on Human Rights 1950 to which the UK is a party. However, where there is some ambiguity in the statute the courts will endeavour to interpret it so as to conform with the UKs international obligations. Similarly, if the common law is uncertain the courts should approach the issue on the basis that any decision should be in conformity with international obligations. Thus in Derbyshire County Council v Times Newspapers Ltd (1992), 24 the Court of Appeal was asked to decided whether a local authority could sue for libel. The court held that it could not and in the course of his judgment Balcombe LJ expressed the view that since the domestic law was uncertain the court could take into account the provisions of Article 10 of the European Convention on Human Rights.

2.3.3.3 The practice of other states


It is impossible to discern any uniform practice among states, although a number of similarities in approach can be identified. The majority of states with a common law system adopt an approach similar to that in Britain. Those states which have a written constitution do have the opportunity to make the situation clear by making specific reference to the status of international law. For example, although US practice concerning customary law is similar to Britain, the US Constitution provides:
... all treaties made or which shall be made with the authority of the United states, shall be the supreme law of the land and the Judges in every state shall be bound thereby, anything in the Constitution or Law of any state to the contrary notwithstanding.25

To mitigate the effects of this rule, the US courts have distinguished selfexecuting treaties which automatically become law and non-self-executing treaties which require legislation by Congress to become law. Discussion of the distinction between self-executing and non-self-executing treaties has taken up much American court time and the implication of the various cases is that the distinction depends on the political content of the treaty. Where a treaty involves political questions the issue should be left to Congress but where a treaty contains provisions which are capable of enforcement as between private parties then it will be regarded as self-executing. Treaties in conflict with the US Constitution are not regarded as binding. The constitutions of Austria, Germany and Italy all declare that the generally recognised rules of international law form part of the domestic system. For example, Article 25 of the Basic Law of Germany states:

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23 [1991] 1 AC 696. 24 [1992] QB 770. 25 US Constitution Article VI, s 2. 45

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... the general rules of public international law are an integral part of federal law. They shall take precedence over the laws and shall create rights and duties for the inhabitants of the federal territory.

The courts in all three states have found that while such provision may apply to customary international law, the provisions of treaties do not automatically become part of municipal law. A different approach is taken by the Dutch constitution which provides that international treaties to which the Netherlands is a party become part of municipal law and prevail over incompatible provisions of Dutch law. No mention is made of the rules of customary international law and the Dutch courts have not considered international custom to be automatically part of Dutch law. As a general observation it can be said that few municipal courts have upheld the priority of international law over municipal law.

2.3.4 The relationship between international law and European law


An area of developing interest is the relationship between European law and international law although it has not yet been subject to the same degree of analysis as that given to the relationship between international law and municipal law. It is generally accepted that the European Union has a separate legal personality under international law and that European law constitutes a distinct legal order. Article 177 of the Treaty of Rome allows the European Court of Justice to rule on questions of the validity of European law and this can involve discussion of the relationship between it and international law. According to Article 228 of the Treaty of Rome, treaties concluded by the EU are binding on its institutions and on member states. They are regarded as forming an integral part of European law. Rules of customary international law will be upheld and applied by the European Court provided they are not incompatible with provisions of European law. A particular point which arises in respect of the EU is the extent to which a member state can rely on a rule of international law as a defence against it failing to fulfil obligations under European law. Article 234 of the Treaty of Rome provides that Community law leaves unaffected the treaty rights and obligations entered into between member states and non-member states if the conclusion of such agreements predates Community competence.
The monist conception is more in line with the ECJs conception of the European Community legal system,26 and it has applied it in its consideration of the relationship between international agreements and community law. The ECJ has applied a very extensive interpretation of Article 177 in the context of international agreements. A Council Decision or Regulation concluding an international agreement (in the sense of internal EC acceptance) is one of the

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26 See K Meessen, The Application of Rules of Public International Law within Community Law (1976) 13 CMLR 485501, pp 5001; J Groux and P Manin, The European Communities in the International Order (Brussels, EC Commission, European Perspective Series, 1985); Hancher, Constitutionalism, the Community Court and International Law (1994) 25 NYIL at pp 27677. 46

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acts of a Community institution for the purposes of Article 177(1)(b).27 So too are the decisions of an Association Council since they give effect and the Association Council is entrusted with responsibility for the implementation of the agreement.28 Therefore, the ECJ has jurisdiction to rule on the validity and interpretation of those acts under the preliminary reference procedure.29 In the SPI and SAMI case the ECJ ruled that jurisdiction also extended to an agreement, the GATT, to which the EC had succeeded as a matter of law and so there was no Community act at all.30 In the International Fruit Co case it was submitted that validity extended to validity under international law.31 The ECJ accepted this. Thus the validity of a measure, may be affected by reason of the fact that it was contrary to a rule of international law.32 The rule of international law could be derived from an international agreement, customary international law, or be a general principle of international law.33 However, only rules deriving from international agreements have been argued before the ECJ. Moreover, the ECJ has in fact never held a community measure invalid because it was contrary to international law. As the Court of the Community it is institutionally disposed to uphold the validity of community measures against rules in international agreements. 34 However, where an international agreement can be given effect without having to invalidate a community measure, then the ECJ has been more receptive.35 It is also interesting to note two arguments of the Commission in cases decided in 1982. In Kupferberg it submitted that, As a subject of international law particularly dependent on the proper functioning of the international legal order the Community has no interest in impeding that process by an a priori restrictive attitude to the direct effect of international agreements.36 At the same time,
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27 Case 181/73, Haegeman v Belgium [1974] ECR 449 pr 4 (hereinafter Haegeman); Case 104/81, Hauptzollamt Mainz v Kupferberg [1982] ECR 3641 (hereinafter Kupferberg). Often a sui generis decision is used. If the agreement contains provisions which are capable of having direct effect, or which, if promulgated as internal legislation within the Community, would take the form of a regulation, the Council act concluding the agreement will often take the form of a Regulation. Otherwise, the sui generis decision is used, I Macleod: A Manual of Law and Practice, 1996, Oxford: Oxford University Press at p 81. 28 Case C-192/89, Sevince v Staatssecretaris van Justitie [1990] ECR I-3461 prs 910 (hereinafter Sevince); Case 30/88, Greece v Commission [1989] ECR 63 pr 13; Case 351/95, Selma Kadiman v Freistaat Bayern on the interpretation of Article 7 of Decision 1/80 of the EEC/Turkey Association Council. 29 For a claim of alleged illegality of a bilateral fishing agreement concluded between the EC and Canada see Case T-194/95, Area Cova and Others v Council. 30 Joined Cases 267 and 269/81, Amministrazione delle Finanze dello Stato v SPI and SAMI [1983] ECR 801. The succession by the Community is thus treated as having the same effect as an act of the Community. See AG Reisch in The SPI and SAMI case; TC Hartley, International Agreements and the Community Legal System: Some Recent Developments (1983) 8 EL Rev at pp 38392. 31 Joined Cases, 21 and 24/72, International Fruit Company NV v Produktschap voor Groentend en Fruit [1972] ECR 1219 (hereinafter IFC case). 32 IFC case, para 5. 33 See Article 38 of the ICJ. 34 This partially explains why the ECJs restrictive interpretation of locus standi under Article 173. See TC Hartley, The Foundations of European Community Law, 3rd edn, 1994, Oxford: Clarendon Press at pp 36192. 35 See P Craig and G De Burca, EC Law Texts, Cases and Materials, 1995, Oxford: Oxford University Press at pp 17172. 36 Kupferberg, p 3654. 47

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however, the Commission argued in the Polydor case that the concept of direct effect, as developed in Community law, must not as such be transposed to the field of the Communitys international relations.37 In the International Fruit Co case the ECJ stated two conditions that would have to be satisfied before a Community measure could be held invalid due to its incompatibility with international law. First, the Community must be bound by the provision of international law concerned. Secondly, the provision of international law must have direct effect in Community law. We consider these conditions in turn. The Community must be bound by the provision of international law concerned: the binding nature of Treaties concluded by the Community Treaties concluded by the Community and one or more states or international organisations, shall be binding on the institutions of the Community and on member states (Article 228(7)).38 As a consequence of this, it is incumbent upon the Community institutions, as well as upon the member states, to ensure compliance with the obligations arising from such agreements. 39 When the member states ensure respect for such obligations they are fulfilling obligations in relation to the Community as well as to the non-member country concerned.40 This obligation to the Community explains the ECJs view that when an international agreement to which the EC is a party comes into force its provisions form an integral part of Community law,41 and of the community legal system.42 So too the Decisions of an Association Council.43 This integration into community law means that the provisions have, for the purposes of community law, a community nature or character. Given this character, the interpretation and effect of such provisions should not vary between member states, for example, by having direct effect in some but not others.44 Similarly it should not be dependent on whether the application of the provisions is the responsibility of the Community institutions or the member states.45 The requirements of consistent and uniform application throughout the Community,46 is ensured by the ECJ, through its jurisdiction to interpret the provisions of such agreements.47 However, it is important to be clear that the ECJ has no direct jurisdiction under the EC Treaty to interpret an international
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37 Case 270/80, Polydor Ltd v Harlequin Record Shops Ltd [1982] ECR 329, p 343 (hereinafter Polydor). 38 Formerly Article 228(2). 39 Kupferberg, pr 11. 40 Ibid, p 12. 41 Haegeman, pr 5. Internal implementation does not appear to be necessary as a matter of principle. 42 Kupferberg, pr 13. 43 Sevince, pr 9; Greece v Commission [1989] ECR 63 pr 13. 44 The concept appears elsewhere in EC law, for example, over regulations not being transposed by national laws and thereby losing their community character, Case 39/72, Commission v Italy [1973] ECR 101. 45 Kupferberg, pr 14; Case 12/86, Demeril v Stadt Schwabisch Gmund [1987] ECR 3719 pr 10 (hereinafter Demeril). 46 Kupferberg, pr 14. 47 See also Sevince, pr 11. Jurisdiction to interpret an international agreement could arise by way of a preliminary ruling or in a direct action, see Opinion 1/91 (First EEA Opinion), pr 38. 48

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agreement as between the EC and a non-member state party. 48 It only has jurisdiction to interpret an international agreement where its interpretation is relevant to the question of the validity of an act of a Community institution or to the question of the interpretation to be given for such an act.49 Its interpretation of the provisions concerned is for the purposes of [their] application in the Community 50 and in so far as that agreement is an integral part of the Community legal order.51 That interpretation is obviously not binding on the non-member state, though in practice it may be very influential. 52 An international agreement could confer jurisdiction on the ECJ to interpret it for the purposes of its application in non-member countries. 53 The original EEA Agreement did this. However, the ECJ has taken the view that such jurisdiction would only be compatible with the EC Treaty if the ECJs judgments have binding effect.54 Alternatively, an international court could be established or given jurisdiction to interpret an international agreement to which the EC is a party. The decisions of such a court would be binding on the community institutions, including the ECJ. 55 Such a system or courts is, in principle, compatible with Community law: The Communitys competence in the field of international relations and its capacity to conclude international agreements necessarily entails the power to submit to the decisions of a court which is created or designated by such an agreement as regards the interpretation and application of its provisions.56 As well as being bound as a treaty, the ECJ has also accepted that the EC can become bound by an international agreement by a process of substitution or replacement for the member states. 57 This has been the case with the
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48 Only states can be parties before the ICJ. A third state could refer a dispute over the interpretation of a Community agreement to the ICJ. Presumably a member state could also do in relation to the interpretation of the Agreement itself rather than matters of EC competence. Under Article 219 EC only the ECJ is to have jurisdiction over EC matters, see Opinion 1/91 (First EEA Opinion), pr 35, and the discussion in Opinion 2/94 (ECHR). A dispute over CFSP could also go to the ICJ although this is unlikely. 49 AG Warner, in Haegeman, p 473. 50 Kupferberg, pr 45. 51 Opinion 1/91 (First EEA Opinion), pr 39. 52 In effect the position of the ECJ is the same position as that of a national court interpreting an international agreement. 53 Opinion 1/91 (First EEA Opinion), pr 59. Note also the 1971 Protocol to the Brussels Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters (1968) which provides for the ECJ to have jurisdiction to interpret the Convention. Only member states are parties. See C-389-92, Mund and Fester v Hatrex International Transport [1994] ECR 1-467. 54 Opinion 1/91 (First EEA Opinion), pr 61. The agreement was changed to make the judgments of the ECJ binding, see Opinion 1/92 (Second EEA Opinion) [1992] ECR I-2821 See also Case C-188/91, Deutsche Shell AG v Hauptzollamt Hamburg-Harburg [1993] ECR I-363. 55 Opinion 1/91 (First EEA Opinion), pr 39. 56 Opinion 1/91 (First EEA Opinion), pr 40. See Schermers 29 CML Rev, 9911010. This would be of significance in relation to the jurisdiction of the European Court of Human Rights to interpret the ECHR in relation to the EC. See the discussion in Opinion 2/94 (ECHR). 57 There are a number of possible explanations for this process including an analogy with Article 228 or the transfer of sovereignty from the member state to the EC with the consent of the third parties concerned. See Cheyne, International Agreements and the European Community Legal System (1994) 18 EL Rev at pp 58198. 49

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GATT,58 and two customs conventions.59 Thus in the International Fruit Co case the ECJ found that the provisions of the GATT agreement were binding on the Community.60 The ECJ appears to treat such agreements as an integral part of the Community legal order in the same way as agreements expressly adopted by the EC.61 The ECJ has not accepted that the EC has succeeded to the European Convention on Human Rights.62 In the 1990s the EC has increasingly been faced with questions of state succession to treaties. German reunification, the disintegration of the USSR63 and of Yugoslavia, the separation of Czechoslovakia and the agreed secession of Eritrea from Ethiopia raised a series of issues for which Community practice has to develop. The results were inevitably variable and pragmatic with the 1978 Vienna Convention on Succession of States in Respect of Treaties providing analogous rules which have served as a useful point of reference but no more.64 The international law rules of state succession are themselves far from clear. In Demirel the UK and Germany argued that in the case of a mixed agreement the ECJs jurisdiction only extends to those parts of the agreement which are within EC competence. Arguably, it does not extend to those parts of the agreement which are within member state competence. 65 The ECJ responded that the question did not arise because Article 238 empowered the Community to guarantee commitments towards non-member countries in all fields covered by the Treaty. That obviously included the provisions on the free movement of workers that were in issue in the case. It made no difference to this conclusion that it was for member states to lay down rules which were necessary for giving effect in their territory to the provisions of an international agreement or the decisions adopted by an Association Council.66 The ECJ recalled its ruling in

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58 IFC case. The ECJ has also held that it has exclusive competence to interpret the GATT for the purposes of EC law, SIOT v Ministero delle Finanze [1983] ECR 731 (hereinafter SIOT). 59 The Convention on the Nomenclature for the Classification of Goods in Customs Tariffs and the Convention Establishing the Customs Co-operation Council. See Case 38/75, Douaneagent der NV Nederlandse Spoorwegen v Inspecteur der Invoerrechten en Accijzen [1975] ECR 1439. 60 See also Joined Cases 267 and 269/81 Amministrazione delle Finanze dello Stato v SPI and SAMI [1983] ECR 801. 61 See Cheyne, International Agreements and the European Community Legal System, p 5878; G Bebr, Agreements Concluded by the Community and their Possible Direct Effect: from International Fruit Company to Kupferberg (1983) 20 CMLR 3573, p 43; Case C-69/89, Nakajima All Precision Co v Council [1991] ECR I-2069 concerning the GATT Anti-dumping Code to which the EC is a party. ELM Volker, The Direct Effect of International Agreements in the Communitys Legal Order, Legal Issues of European Integration, 1983/1, 13145, pp 14243, expresses a contrary view. 62 See Cases 50-52/82, Administrateur des Affaires Maritimes, Bayonne v Dorca Marina [1982] ECR 3949. Opinion 2/94 (ECHR) would seem to reinforce that view. 63 On the application of the Communitys anti-dumping procedures to a successor state see Case T-164/94, Ferchimex SA v Council [1995] ECR II-2681. 64 See PJ Kuyper, The Community and State Succession in Respect of Treaties, in D Curtin and T Heukels (eds), Institutional Dynamics of European Integration: Essays in Honour of HG Schermers, Vol II, 1994, Dordrecht: Nijhoff at p 640. See also HG Schermers and NM Blocker, International Institutional Law, 3rd edn, 1995, The Hague: Nijhoff at pp 98688. 65 Demirel, see p 3725 (Germany) and p 3729 (UK). 66 Demirel, pr 10. 50

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Kupferberg that the obligation of member states to lay down such rules was a community obligation.67 Pre-existing international commitments and the EC legal order Article 234 protects third states by providing for the continuing effect of preexisting international agreements: The rights and obligations arising from agreements concluded before the entry into force of this Treaty between one or more member states on the one hand, and one or more third countries on the other, shall not be affected by this Treaty. Those international agreements with third states do not become part of the EC legal order. Whether the agreement has direct effect will depend on the national law of the member state concerned rather than on EC law.68 The agreements do not become binding on the EC,69 subject to the rare possibility of succession. Article 234 continues by providing that if there are incompatibilities between the international agreements and the EC Treaty then the member state concerned shall take all appropriate steps to eliminate the incompatibilities concerned. Member states are to assist each other to this end and, where appropriate, to adopt a common attitude.70 This obligation should not be interpreted to the point of requiring member states to denounce agreements with third states.71 The number of cases in which member states seek to rely on Article 234 is increasing steadily. Article 234 will effectively provide a member state with a defence when they would otherwise be in breach of their obligations under the EC Treaty.72 For example, in the Levy73 and Minne74 cases the effect of Article 234 was that Article 5 of the Equal Treatment Directive 76/207 could not be relied upon to prevail over the national provisions adopted to comply with an ILO Convention of 1948. The institutions of the Community are bound not to impede the performance of those obligations by the member state concerned. 75 The third paragraph of Article 234 emphasises the common advantages to member states of EC membership. This would be consistent with an interpretation of Article 234 which only allows member states to rely on it when it has an obligation to a third state that is relevant. A member state should not be able to rely on Article 234 to

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67 Ibid, pr 11. See TC Hartley, International Agreements and the Community Legal System: Some Recent Developments (1983) 8 EL Rev 38392, p 389. 68 See Case 812/79, Attorney General v Burgoa [1980] ECR 2787, pr 10 (hereinafter Burgoa). 69 Ibid, at 2808. 70 A particular problem that can arise is where one member state interprets similar international obligations in a different way to other member states, see JM Grimes, Conflicts Between EC Law and International Treaty Obligations: A Case Study of the German Telecommunications Dispute (1994) 35 Harv ILJ 53564, pp 5545. 71 See Grimes, Conflicts Between EC Law and International Treaty Obligations. See also Opinion 1/76 (Rhine Navigation case), pr 2, on Article 234 justifying participation in an international agreement. 72 See R Churchill and N Foster, European Community Law and Prior Treaty Obligations of Member States: The Spanish Fishermans cases (1987) 36 ICLQ 50424. 73 Case C-158/91, Ministre public et direction du travail et lemploi v Levy [1993] ECR I-4287. 74 Case C-13/93, Office nationale de lemploi v Minne [1994] ECR I-371. 75 Burgoa, at 2808. 51

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gain a benefit or advantage. 76 Article 234 cannot be relied upon in intracommunity relations if the rights of non-member states are not involved.77 The direct effect of international agreements The concept of direct effect has been of fundamental importance in the development of the European Community Law system. The EC Treaty does not contain the concept of direct effect. There is a similar sounding concept of direct applicability in Article 189 EC but that only refers to Regulations. The subject matter is similar to, but more extensive than, the international law concept of self-executing treaties.78 The ECJ uses the terms directly effective and directly applicable interchangeably. 79 This work uses the term directly effective. If a provision of an international agreement is directly effective, as a matter of EC law, then it grants natural and legal persons rights that must be upheld by the national courts of the member states.80 One or more of the provisions of an international agreement can have direct effect even if the other provisions of the same agreement do not have direct effect.81 In accordance with Van Gend En Loos82 and subsequent case law, the general test for direct effect of community law measures is threefold: 1 The provision must be clear and unambiguous. 2 It must be unconditional. 3 Its operation must not be dependent on further action being taken (by the community or by national authorities or international bodies such as an Association Council). These strict criteria were intended to make the doctrine more acceptable to states. In practice, although these tests appeared rigorous when first introduced, over time they have been considerably relaxed in their application. To an extent they are not even applied as successive tests anymore. For internal measures direct effect may now be regarded as the norm rather than the exception. The test is essentially a practical one. If a provision lends itself to judicial application it will be held to be directly effective. Only when direct effect would create serious practical problems will the provision be held not to be directly effective. This supports the view that the test has become little more than one of justiciability: A rule can have direct effect whenever its characteristics are such that it is

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76 See Case 10/61, Commission v Italian Republic [1962] ECR 1, at 10; Case 812/79, Attorney General v Burgoa [1980] ECR 2787; Case C-158/91, Ministre public et direction du travail et lemploi v Levy [1993] ECR I-4287. 77 Cases C-241/91P and C-242/91P, Radio Telefis Eireann (RTE) and Independent Television Publications v Commission [1995] ECR I-743. On the replacement by Community regulations of social security conventions concluded between member states see Case C-475/93, JeanLouis Thevenon and Others v Landesversicherrungsanstalt [1995] ECR I-3813. 78 See J Jackson, Status of Treaties in Domestic Legal Systems (1992) 86 AJIL 31040. 79 In Case C-58/93, Yousfi v Belgian State [1994] ECR I-1353, A-G Tesauro considered the alleged distinction between direct applicability and direct effect and stated that the difference between the expressions used, at least in the case law, is merely terminological and nonsubstantive, pp 135758. 80 See Bebr, Agreements Concluded by the Community; Volker, op cit; Bourgeois, Effects of International Agreements in European Community Law (1984) 82 MichLRev 125073. 81 So Polydor and Kupferberg concerned the same agreement with Portugal. 82 Case 26/62 [1963] ECR 1. 52

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capable of judicial application.83 It is possible that only part of an EC law can have direct effect. This jurisprudence on direct effect of EC measures is important because there has been substantial legislative implementation of international agreements within Community law by means of Regulations and Directives. If a provision in such a measure has direct effect there may be no need to consider as a separate issue whether the international agreement concerned can have direct effect in its own right. This issue is particularly important, however, if no internal implementation measures have been taken. Does the general test for direct effect apply to international agreements? Formally, the answer appears to be yes. 84 According to the ECJs wellestablished jurisprudence: A provision in an international agreement concluded by the Community with non-member countries must be regarded as being directly applicable when, regard being had to its wording and the purpose and nature of the agreement itself, the provision contains a clear and precise obligation which is not subject, in its implementation or effects, to the adoption of any subsequent measure.85 The decisions of an Association Council must satisfy the same conditions as those applicable to the provisions of the agreement itself.86 However, the result of the practical application of this test has been that direct effect of international agreements has been the exception rather than the norm. This is the reverse of the situation with internal EC measures. We need to consider closely the ECJs approach to the interpretation of international agreements. How does the ECJ approach the interpretation of international agreements? The ECJ has rarely referred expressly to the generally accepted rules of interpretation in international law in the Vienna Convention on the Law of Treaties (1969).87 According to the ECJ, to determine the effect in the community legal system of the provisions of an international agreement, its international origin has to be taken into account. 88 Parties to an agreement can [i]n conformity with principles of public international law expressly specify the

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83 See P Pescatore, The Doctrine of Direct Effect An Infant Disease of Community Law (1983) ELRev 15577. 84 Ibid, pp 17174. 85 Demirel, pr 14; Case C-18/90, Office National de lEmploi v Kziber [1991] ECR I-199, pr 15. N Neuwahl suggests that it is not clear whether these criteria are sufficient in the case of an international agreement, Individuals and the GATT: Direct Effect and Indirect Effects of the General Agreement on Tariffs and Trade in Community Law, in N Emiliou and D OKeeffe (eds), The European Union and World Trade Law After the GATT Uruguay Round , 1996, Chichester: Wiley at p 319. 86 Sevince, prs 1415. 87 Examples are Opinion 1/91 (First EEA Opinion), pr 14, and C-432/92, R v Ministry of Agriculture, Fisheries and Food, ex p Anastasiou, [1994] ECR I-3087, both referring to Article 31 VCLT. The Vienna Convention on the Law of Treaties between States and International Organisations or between International Organisations (1986) contains broadly analogous rules. The EC is not a party. See P Manin, The European Communities and the Vienna Convention on the Law of Treaties between States and International Organisations or between International Organisations (1987) 24 CMLR 45781. 88 Kupferberg, pr 17. 53

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effect of the provisions of an agreement in their respective legal orders.89 In practice they rarely do this and, in default, the question can come before the ECJ.90 It is then a question of interpretation of the agreement concerned. The general approach of the ECJ to the interpretation of international agreements is to examine its provisions in the light of the general structure of the agreement and any amending or additional Protocols to it.91 Simultaneously, The spirit, the general scheme and the general terms of the ... agreement must be considered.92 In Haegeman the ECJ clearly read the international agreement concerned in the light of the EC provisions concerned. There was no reference to GATT or to the international backgrounds. The aims and context of the agreement must also be considered, and its provisions analysed in the light of its object and purpose.93 The considerations which lead to a certain interpretation in a Community context do not necessarily apply in the context of an international agreement. The ECJ has stressed on many occasions that the EC Treaty creates a new and unique legal order notwithstanding that it was concluded in the form of an international legal agreement.94 The Treaty constitutes the constitutional charter of a Community based on the rule of law.95 Member states have limited their sovereign rights. Community law has primacy over the law of the member state and many of its provisions have direct effect.96 The Treaty pursues certain aims and objectives, and in particular, by establishing a common market and progressively approximating the economic policies of the member states, seeks to unite national markets into a single market having the characteristics of a domestic market.97 The provisions of the Treaty are not an end in themselves. They are only means to attaining the objectives of the EC and making concrete progress towards European unity.98 The interpretation and application of the Treaty, even against the same provisions in an international agreement, uses different approaches, methods and concepts in order to take account of the nature of each Treaty and its particular objectives. 99 Stress is also often placed on the institutional structure of the Treaty system and that the Community has at its disposal instruments to achieve the uniform application of EC law and the progressive abolition of legislative disparities.100
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89 Ibid. Presumably the parties could not all specify that an agreement does or does not have direct effect. 90 Kupferberg, pr 17. 91 Haegeman , pr 10. AG Warner at 469 stated that the expressions in question must be interpreted in the context of the association agreement read as a whole and against the background of the provisions of the EEC Treaty. This suggests a broader framework than just the EC. In Opinion 1/91 (First EEA Opinion) the ECJs interpretation of some of the Protocols to the EEA Agreement were very significant for its opinion. 92 IFC Case pr 20; Case C-280/93, Germany v Council [1994] ECR I-4973, pr 105; Case 87/75, Conceria Daniele Bresciani v Amministrazione delle Finanze Stato [1976] ECR 129 pr 16 (hereinafter Bresciani). 93 Kupferberg, pr 23. 94 Opinion 1/91 (First EEA Opinion) pr 21. 95 Ibid. 96 Ibid. 97 Polydor, pr 16. 98 Opinion 1/91 (First EEA Opinion), pr 17. 99 Opinion 1/91 (First EEA Opinion), pr 51. 100 Polydor, pr 20; Opinion 1/91 (First EEA Opinion), pr 21. 54

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By contrast, the various classes of international agreements to which the EC is a party pursue different and more limited objectives than the EC.101 In contrast to the EC Treaty, such an international agreement merely creates rights and obligations as between the Contracting Parties and provides for no transfer of sovereign rights to the inter-governmental institutions which it sets up.102 This is the case with free trade and co-operation agreements. Similarly with association agreements 103 but, to the extent that they seek to prepare the associating state for membership, they are closer on the spectrum to the EC Treaty than mere free trade and co-operation agreements.104 In Bresciani it was important that the international agreement concerned was intended to promote the development of the associated states. 105 The function of the provisions concerned is important and whether it is the same as that performed by similarly worded provisions of the EC Treaty.106 In any event the result is the same in that the interpretation given to the provisions of the EC Treaty cannot be applied by way of simple analogy to the provisions of other kinds of international agreements even if the wording is similar or even identical.107 Such similarity of terms is not a sufficient reason for transposing to the provisions of the Agreement, the case law of the Community.108 This is important because many of the ECs international agreements reproduce the language of the EC Treaty. For example, the provisions of the EEA Agreement are textually identical to the corresponding provisions of EC law.109 Similarly, each of the different classes of EC agreements, for example, free trade, partnership and co-operation, Europe agreements tend to use identical provisions. Thus, the interpretation of any one agreement has significance for others in the same class, and sometimes for agreements in other classes.110 In a small number of cases the ECJ held that provisions of association agreements can have direct effect.111 So too can the Decisions of an Association Council which are directly connected with the agreement to which they give effect. In
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101 Reference is often made to the Preamble or the first article of those agreements to determine their objectives and purpose: see, for example, Polydor, pr 10; Case C-280/93, Germany v Council [1994] ECR I-4973 pr 106. 102 Opinion 1/91 (First EEA Opinion), pr 20. 103 See Opinion 1/91 (First EEA Opinion), pr 15; Polydor, pr 1820. 104 In Demirel the Commission analysed the Association agreement concerned as a combination of an association for the purposes of development and an association prior to accession, p 3730. Also, The concept of association has a very wide scope and covers various forms of relationship, p 3730. 105 Bresciani, pr 22. 106 See Case 17/81, Pabst & Richarz KZ v Hauptzollamt Oldenburg [1982] ECR 1331, pr 26. For an important decision on the interpretation of changes having equivalent effect in bilateral or multilateral agreements concluded by the Community see Case C-125/94, Aprile Srl en liquidation v Amministrazione delle Finanze dello Stato [1995] ECR I-2919. 107 Kupferberg, pr 30; Polydor, pr 14; Opinion 1/91 (First EEA Opinion), pr 22; Case C-312/91, Metalsa Srl v Italy [1993] ECR I-3751. 108 Polydor, pr 15. 109 Opinion 1/91 (First EEA Opinion), pr 22. 110 In the Polydor case the UK submission noted that the provision in issue appeared in seven free trade agreements with EFTA countries, all of the Communitys agreements with Mediterranean countries, and in the GATT, p 340. See also Case C-103/94, Zoulika Krid v Caisse Nationale dAssurances Vieillesse des Travailleurs Salaries [1995] ECR I-719. 111 For example, Haegeman, Bresciani. 55

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Kupferberg (1982) the same reasoning was extended, in principle, to free trade agreements.112 The ECJ proceeded from one of the general rules of international law that there must be bona fide performance of every agreement.113It observed that in the absence of specific provisions on implementation in the agreement itself, international law did not specify the legal means appropriate for the full execution of a partys commitments under an agreement. It was a matter of discretion for the party concerned.114 Accordingly, that the legal system of one party accorded direct effect to the provisions of an agreement, while the other partys legal system did not, was simply a reflection of how the parties exercised their discretion as to methods of implementation. Such a situation did not in itself constitute a lack of reciprocity in the implementation of the agreement. In the context of an agreement on development, an imbalance in the obligations of the parties may be inherent in the special nature of the agreement itself. 115 Similarly, that the parties have established a special institutional framework for consultations and negotiations on implementation is not in itself a justification for excluding the possibility of direct effect in principle.116 Provisions in an international agreement which set out a programme to be achieved would not normally satisfy the standard conditions for direct effect. However, this does not prevent the decisions of Council of Association which give effect in specific respects to the programmes envisaged in the Agreement from having direct effect.117 The non-publication of a decisions of an Association Council will also not serve to deprive a private individual of the rights which that decision confer on him.118 Finally, the existence of safeguard clauses which enable parties to derogate from certain provisions of the agreement is also not itself sufficient to exclude the possibility of direct effect in principle.119 In principle then, neither the nature nor structure of a Free Trade Agreement prevented it from having direct effect in the community legal system.120 The direct effect of the decisions of an Association Council cannot be affected by the fact that under those decisions the rights concerned are to be established any national rules. Such provisions merely clarify the obligation of the member states to take such administrative measures as may be necessary for the implementation of those provisions, without empowering the member states to make correctional or restrict the application of the precise and unconditional right which the decisions of the Council of Association grant ...121 ...
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112 Kupferberg, pr 22. See Bebr, Agreements Concluded by the Community and their Possible Direct Effect. 113 Ibid, pr 18. Article 26 of the VCLT provides that Every treaty in force is binding upon the parties to it and must be performed by them in good faith. 114 This is clearly correct. For example, the UK has not incorporated the European Convention on Human Rights. 115 Bresciani, pr 23. 116 Kupferberg, prs 1920. Similarly in Fediol, pr 21. 117 Sevince, pr 21. 118 Ibid, pr 24. Non-publication would prevent the decision being applied adversely to an individual, ibid. 119 Kupferberg, pr 21; Sevince, prs 1920 in the context of an Association Agreement. 120 Interestingly, AG Rozes has taken a different view, stressing the lack of reciprocity, the flexibility of the provisions, the limited objectives of the agreement, and the difference in the wording of the provisions concerned. 121 Sevince, pr 22. 56

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Vertical and horizontal direct effect Another preliminary question concerns the nature of direct effect in terms of vertical and horizontal direct effect. Vertical effect concerns the relationship between an individual or other private legal person and the state. 122 For example, in cases concerning the direct effect of international agreements, the disagreement is often between the state (customs authorities, tax authorities) and an individual or a company. However, the state has a particular community law meaning in this context ( Foster v British Gas plc ) 123 and therefore covers emanations of the state which for other purposes would be considered as private bodies. 124 Horizontal effect concerns the relationship between one individual or private legal person and another individual or private legal person. Again, given the wide community interpretation of the state, this would be more accurately expressed as one non-state emanation and another non-state emanation. For our purposes, the important question is whether the direct effect of international agreements is limited to vertical direct effect. Provisions of the Community Treaties can have both horizontal and vertical effect.125 Many provisions of the EC Treaties have been held to be directly effective both vertically and horizontally. The fact of their being addressed to states has been no bar to their horizontal effects. The same argument can be applied to international agreements. In all of the cases considered by the ECJ to date the argument has been one of the vertical direct effect of an international agreement, for example, against a customs authority. However, the Polydor case (1982) represented an example of an attempt to rely on the direct effect of a Treaty against a private party. Finally, [as] Regulations and Directives are often used to implement international agreements it is important to note the possibility of them have direct effect. Regulations can have both vertical and horizontal direct effect, Directives, however, can have vertical direct effect, but not horizontal direct effect.126 Secondary legislation implementing an international agreement must, as far as possible, be interpreted in a manner that is consistent with it.127, 128

2.3.5 The relationship between regional international law and universal international law
Since 1945, particularly in the areas of human rights and environmental protection, there has been a growth in the number of treaties setting down rules applicable to particular regions of the world. Specific treaties are discussed in subsequent chapters but it is worth highlighting here the potential problems which have yet to be fully resolved. In the event of a conflict between the
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122 In a general sense, this regulation of the indiviudal-state relationship is one familiar to constitutional lawyers. 123 Case C-188/89, Foster v British Gas [1990] ECR I-3133. It does not matter in which capacity the state is acting. 124 For example, in the context of international personality or state immunity. 125 Case 43/75, Defrenne v SABENA [1976] ECR 455. 126 Case 152/84. Marshall v Southampton & SWHAHA (Teaching) [1986] ECR 723; Case C-91/92, Paulo Faccini Dori, Recreb Sri [1994] ECR I-3325. 127 See Case C-64/94, Commission v FRG [1996] ECR. 128 D McGoldrick, International Relations Law of the European Union, 1997, London: Longman at pp 11733. 57

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regional rule and the rule of universal application, which rule is to prevail? As will be seen in Chapter 3, the problem may be resolved by use of one of the principles: lex posterior derogat priori (a later law repeals an earlier law), lex posterior generalis non derogat priori speciali (a later law, general in character, does not derogate from an earlier law which is special in character), or the principle lex specialis derogat generali (a special law prevails over a general law). However, such principles are not always easily applicable to specific circumstances and it is not always clear which is the special law and which is the general law. It will only be as state practice builds up that it will be possible to state with any degree of certainty the relationship between rules of international law of limited regional application and those rules which have universal, global application.

58

CHAPTER 3 SOURCES OF INTERNATIONAL LAW


3.1 Introduction

The term sources of law has generated considerable debate among writers and is capable of conveying more than one meaning.
In English jurisprudence at least, the classic scheme of the sources of law is that of Salmond, who divided them first into those which are formal and those which are material those imparting to a given rule the force of law and those from which its substance is drawn. He further subdivided material sources into legal and historical sources those which the law itself acknowledges, such as statute and judicial precedent in England, and those which, though possibly no less influential, are not so acknowledged, as, for instance, the Roman legal system from which, via judicial precedent, many English rules are derived. Finally, in a footnote, Salmond distinguished a category of literary sources, consisting in the sources of our knowledge of the law, or rather the original authoritative sources of our knowledge, as opposed to later commentary and literature.1 Though its primary distinction between formal and material sources, however difficult of application in practice, still commands some general acceptance, Salmonds scheme has been much criticised. The alternatives to it which have been proffered have not, however, fared much better. Indeed Sir Carleton Allen, Salmonds chief critic, is regarded by Professor Paton as advocating the abandonment of the search for the sources of law in favour of an enquiry, into first, its validity and, second, the origins of the materials from which it is fashioned, on the ground that the multiplicity of theories has utterly confused the term source.2 The traditional notion of sources in international law: terminology International lawyers appear to have persisted longer in the search for sources. Whether this is because they have displayed a greater capacity for the clear definition of terms is perhaps questionable. But their terminology is, in any case, slightly different from Salmonds. In an endeavour to introduce some order into the words used, Professor Corbett essayed 40 years ago to distinguish different elements relevant to the discussion. He laid it down thus: 1 The cause of international law is the desire of states to have the mutual relations which their social nature renders indispensable regulated with the greatest possible rationality and uniformity. 2 The basis of the rules of international law as a system and of the rules of which it is composed is the consent of states. 3 The origins of the rules of international law, which may also be called the sources of that law though the word source has such a history of confusion behind it that it might well be abandoned are the opinions, decisions or acts constituting the starting point from which their more or less gradual establishment can be traced.
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1 2

Salmond, Jurisprudence, 10th edn, 1947, London: Sweet & Maxwell at pp 15156. Paton, Jurisprudence, 3rd edn, 1964, Oxford: Clarendon Press at pp 15960. 59

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4 The records or evidence of international law are the documents or acts proving the consent of states to its rules. Among such records or evidence, treaties and practice play an essential part, though recourse must be had to unilateral declarations, instructions to diplomatic agents, laws and ordinances, and, in a lesser degree, to the writings of authoritative jurists. Custom is merely that general practice which affords conclusive proof of a rule.3

Amongst the interesting features of this series of propositions is, first, that the term but not ostensibly the concept of sources of law is condemned, though both term and concept are narrower than Salmond would have made them; and, secondly, the introduction of the term evidence. This last is something more, it is clear, than Salmonds literary sources. Even writers in English have not adhered to these golden rules, as is testified by John Basset Moore, who usually had a pretty turn of phrase. For, in the Introduction to his great series of International Adjudications he wrote: Being desirous to deal with the substance of things, and, by avoiding as far as possible wars of epithets, to save a great cause from needless injury and attrition, I have placed the words source and evidence [in the title to a section on the influence of arbitral decisions on the law] in the alternative, thus leaving it to their partisans, who may often agree except in terminology, the unchallenged enjoyment of the title they prefer.4 Oppenheim endeavoured to resolve the confusion between source and cause by tracing the former term to its own source, in the meaning of spring or well, which: ... has to be defined as the rising from the ground of a spring of water. When we see a stream of water and want to know whence it comes, we follow the stream upwards until we come to the spot where it rises naturally from the ground. On that spot, we say, is the source of the stream of water. We know very well that this source is not the cause of the existence of the stream of water ...5 ... If we apply the conception of source in this meaning to the term source of law the confusion of source with cause cannot arise. Just as we see streams of water running over the surface of the earth, so we see, as it were, streams of rules running over the area of law. And if we want to know whence these rules come, we have to follow these streams upwards until we come to the beginning; where we find that such rules do not rise from a spot on the ground as water does; they rise from facts in the historical development of a community. Thus in Great Britain a good many rules rise each year from Acts of Parliament. Source of law is therefore the name for an historical fact out of which rules of conduct rise into existence and legal force.6 Romantic and evocative though I find this image, I must avow that it is unhelpful to me for at least two reasons. First, I feel that the assertion that an Act of Parliament is, or is simply, an historical fact would stand, and would not
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3 4 5 6

Corbett, The Consent of States and the Sources of the Law of Nations (1925) BYIL VI at pp 20, 2930. International Adjudications, Modern Series (1929), Vol I, p xii. Oppenheim, International Law, Vol I, 8th edn, 1955, London: Longman at p 24. Oppenheim, International Law, Vol I, 8th edn, 1955, ibid at p 25. 60

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withstand, closer examination. And secondly, though I can see that an Act of Parliament would be both a literary source in Salmonds sense and an item of evidence in Professor Corbetts, and that this circumstance would not exclude its inclusion in other categories established by those authors (since these categories are not necessarily on the same plane or not mutually exclusive), I am troubled by the possible effect of Professor Corbetts cursory assignment of custom to the category of evidence. To say this is perhaps to be obscure unless it is first explained that Oppenheim goes on almost immediately to say that Custom is the oldest and original source of international law, to define it as a clear and continuous habit of doing certain actions [which] has grown up under the aegis of a conviction that these actions are, according to international law, obligatory or right, and to distinguish it from mere usage, a habit which has grown up without any such conviction.7 Professor Corbett is no doubt more logical here: he says, in effect, custom merely proves or illustrates or indeed merely provides evidence that the conduct it reflects is obligatory. Therefore, in his system it cannot be a source an origin. Oppenheim says or implies in somewhat circular fashion that a custom is already considered as binding before it becomes such, but it is for him a source. But perhaps I misunderstand Professor Corbett here. Perhaps what he terms practice is Oppenheims custom, and presumably he would concede practice to be both source and evidence in his sense. The alternative, which is not to be excluded, is that Professor Corbett has in fact carried out his threat and excised source in all but name from his system: certainly it is difficult to regard practice, however, defined, as involving no more than the opinions, decisions or acts constituting the starting-point. However, this may be, it is well a point sometimes overlooked by students of international law to see briefly how writers in other languages and other countries regard the matter of terminology. A fair and accurate summary seems, if one may say so, to be provided by Professor Sorensen, who says that in usual legal language the sources of international law are those things which indicate the actual or concrete content of that system. Admittedly, certain authors prefer to avoid the term altogether or substitute alternative lines of enquiry for an enquiry after sources. Among these he includes Professor Corbett, thus confirming in some measure the suspicion we have already aired. But there is no harm in retaining the word if one makes sure how it is intended to be used. And it should not be used in relation to the question why international law is in general binding: that is the problem of basis, upon which designation Professor Corbett and many others agree,8 or of source in the singular. Nor should it be used in connection with the question what are the material sources of international law in the sense of the elements and influences determining its content, be they the practical interests and needs of states or the idealistic urgings of the social conscience or the ideologies prevailing at any particular time.9 10

Clive Parry makes reference to Oppenheims International Law and cites passages from the eighth edition which was published in 1955. The view
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7 8 9 10

Oppenheim, International Law, Vol I, 8th edn, 1955, ibid at pp 2526. Cf Brierly, The Basis of Obligation in International Law, 1958, Oxford: Clarendon Press. Sorensen, Les Sources du Droit International, 1946, Copenhagen: E Munksgaard. Clive Parry, The Sources and Evidences of International Law , 1965, Manchester: Manchester University Press at pp 15. 61

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taken by the editors of the ninth edition (published in 1992) is slightly different:
There is much discussion of the meaning to be attributed to such terms as source, cause, basis and evidence of international law.11 There is, however, an unavoidable degree of flexibility and overlap in the use of such terms, and little practical purpose is served in attempting to define them too precisely or to differentiate them too rigidly. Nevertheless, the concept of a source of a rule of law is important, since it enables rules of law to be identified and distinguished from other rules (in particular rules de lege ferenda) and concerns the way in which the legal force of new rules of conduct is established and in which existing rules are changed. The causes of a rule of law are generally to be found in particular social and historical circumstances in the development of a community, which suggest the need for a rule of conduct in a particular sense. The source of a rule of law is, by contrast, to be found in the process by which it first becomes identifiable as a rule of conduct with legal force and from which it derives its legal validity. The sources of international law must not be confused with the basis of international law; this, as we have seen, is to be found in the common consent of the international community. The sources of law, on the other hand, concern the particular rules which constitute the system, and the processes by which the rules become identifiable as rules of law. The sources of the rules of law, while therefore distinct from the basis of the law, are nevertheless necessarily related to the basis of the legal system as a whole. We should at this point also note the distinction between the formal and the material sources of international law. The former with which we are more concerned here is the source from which the legal rule derives its legal validity, while the latter denotes the provenance of the substantive content of that rule. Thus, for example, the formal source of a particular rule may be custom, although its material source may be found in a bilateral treaty concluded many years previously, or in some states unilateral declaration.12 The attempt is often made to distinguish between the basis, the causes, the sources, the formal and material sources, and the evidence of sources of international law. These and similar distinctions may be useful, within limits, so long as their importance is not exaggerated and so long as they are not permitted to conceal the essential identity of the subject matter which they are intended to elucidate. The basis the primary cause of international law is the fact of the existence of an international society composed of human beings organised as sovereign states. Its more immediate cause (or, as it is occasionally referred to, its objective source) is the interdependence, in its manifold manifestations, of these sovereign states; the need to safeguard their interests and their independent existence by means of binding rules of law; and the necessity to protect the individual human being who is the ultimate unit of all law, in so far as such protection, both of nationals and aliens, is rendered relevant by reference to the existence of separate sovereign states ...
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11 On the different meanings of these terms see Corbett (1925) BYIL 6 at pp 2030; Fitzmaurice in Symbolae Verzijl, 1958, p 153; Parry, The Sources and Evidences of International Law, 1965, Manchester: Manchester University Press . 12 Jennings and Watts (eds), Oppenheims International Law, 9th edn, 1992, London: Longman at p 23. 62

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The more direct sources of international law are the agencies, human or other, by means of which it is expressed and rendered binding.13

Some writers have gone further to argue that the whole idea of sources of international law is flawed. For example, OConnell has written:
Sometimes the word source is used to indicate the basis of international law; sometimes it is confused with the social origin and other causes of the law; at others it is indicative of the formal law-making agency and at others again it is used instead of the term evidence of the law... As a figurative association the word source is misleading and should be discarded.14

3.2
1

Article 38 of the Statute of the International Court of Justice


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 recognised by the contesting states; (b) international custom, as evidence of a general practice accepted as law; (c) the general principles of law recognised by civilised 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. This provision shall not prejudice the power of the Court to decide a case ex aequo et bono, if the parties agree thereto.15

The traditional starting point for any discussion of the sources of international law has been Article 38 of the Statute of the International Court of Justice. Apart from a few formal changes the Statute is similar to the Statute of the Permanent Court of International Justice. The Permanent Court of International Justice (PCIJ) was created in 1920 under the auspices of the League of Nations and the Statute was drafted by an Advisory Committee of Jurists appointed by the Council of the League of Nations. The role and procedures of the International Court are discussed in Chapter 12.
The search for the thing which, by the highest compulsive force as it were, gives to the content of the rules of international law their character as law, whither should it be directed? The traditional approach leads one to turn to Article 38(1) of the Statute of the International Court of Justice formerly the same article in the Statute of the Permanent Court of International Justice. Quite why this should be the approach is not wholly clear. That article, says Brierly, is a text of the highest authority,16 which is to state the proposition to be proved. The article does not even say that it purports to be a list of sources otherwise than by implication. For it simply states that the Court whose function it is to decide in accordance with international law such disputes as are submitted to it, shall
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13 E Lauterpacht (ed), International Law Collected Papers of Hersch Lauterpacht , Vol 1, 1970, Cambridge: Cambridge University Press at p 51. 14 OConnell, International Law, Vol 1, 1970, London: Stevens. 15 Article 38 of the Statute of the International Court of Justice. 16 Brierly, Law of Nations, 6th edn, 1963, Oxford: Clarendon Press at p 56. 63

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apply that which it prescribes. One of the matters so prescribed is the writings of the most highly qualified publicists ... as a subsidiary means for the determination of rules of law, a formulation which suggests less a formal source than what Salmond would have called no more than legal literature not even a literary source. Another item echoes, or is echoed by, Professor Corbett: namely international custom as evidence of a general practice accepted by law not a source at all according to him, if he admits any sources at all.17

Article 38 does not actually use the term sources but rather describes how the Court is to decide disputes which come before it for settlement. Law is not necessarily simply defined in terms of how courts decide disputes. Article 38 does not refer to resolutions of the United Nations or other international organisations yet such resolutions may play an extremely important role in international society and may arguably constitute a source of law. A question that will be considered at the end of this chapter is the extent to which Article 38 is to be regarded as a comprehensive list of the sources of international law. Another question that arises is whether Article 38 para 1 creates a hierarchy of sources. It is argued that there is no rigid hierarchy, but those drafting the article intended to give an order and in practice the Court may be expected to observe the order in which they appear. (a) and (b) are obviously the important sources, and the priority of (a) is explicable by the fact that this refers to a source of mutual obligation of the parties source (a) is thus not primarily a source of rules of general application, although as we shall see, treaties may provide evidence of the formation of custom. It may be useful here to note what Lauterpacht has written on the issue:
The order in which the sources of international law are enumerated in the statute ... is, essentially, in accordance both with correct legal principle and with the character of international law as a body of rules based on consent to a degree higher than is law within the state. The rights and duties of states are determined, in the first instance, by their agreement as expressed in treaties just as, in the case of individuals, their rights are specifically determined by any contract which is binding upon them. When a controversy arises between two or more states with regard to a matter regulated by treaty, it is natural that the parties should invoke and that the adjudicating party should apply, in the first instance, the provisions of the treaty in question.18

3.3

Treaties

Treaties represent a source of law whose importance has grown since 1945. In this chapter we are only concerned with treaties as a source of law. Chapter 4 deals with the mechanics of treaty making and enforcement in more detail. Treaties may be bipartite/bilateral or multipartite/multilateral and they may create particular or general rules of international law. A distinction is often drawn between law-making treaties (trait-lois) and treaty contracts (trait contracts). The essence of the distinction lies in the fact that treaty contracts,
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17 Clive Parry, The Sources and Evidences of International Law , 1965, Manchester: Manchester University Press at p 5. 18 Lauterpacht, International Law, Collected Papers, Vol 1, p 87. 64

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being agreements between relatively few states, can only create a particular obligation between the signatories, an obligation which is capable of fulfilment, eg an agreement between France, Germany and the UK to develop and build a new fighter jet. Law-making treaties create obligations which can continue as law, eg an agreement between 90 states to outlaw the use of torture. There has been a great increase in the number of law-making treaties throughout this century. One reason for this growth is the increase in the number of states and the fact that many new states have a lack of faith in any rules of customary international law in which they have not played a part in creating. The term law-making can lead to confusion and it should be used with care strictly speaking no treaty can bind non-signatories. Even a multipartite treaty only binds those states which are party to it. The mere fact that a large number of states are party to a multilateral convention does not make it binding on nonparties although its existence may be evidence of customary international law as was discussed in the North Sea Continental Shelf cases (1969).19 For this reason sometimes the term law-making is replaced by normative. Normative treaties bind signatories as treaties, but may also provide evidence of rules of custom which bind all states. Examples of normative treaties would include treaties operating a general standard setting instrument eg International Covenant on Civil and Political Rights 1966; and treaties creating an internationally recognised regime eg the Antarctic Treaty 1959. Customary law and treaty law have equal authority. However if there is a conflict between the two it is the treaty that prevails. This point is illustrated by the Wimbledon case (1923). 20 In that case the PCIJ, while recognising that customary international law prohibited the passage of armaments through the territory of a neutral state into the territory of a belligerent state, upheld the Treaty of Versailles Article 380, which provided that the Kiel canal was to be free and open to all commercial vessels and warships belonging to states at peace with Germany. In stopping a vessel of a state with which it was at peace, Germany was in breach of treaty obligations. It should, however, be noted that there is a presumption against the replacement of custom by treaty treaties will be construed to avoid conflict with rules of custom unless the treaty is clearly intended to overrule existing custom.

3.4

Custom

In any society rules of acceptable behaviour develop at an early stage and the international community is no exception. As contact between states increased, certain norms of behaviour crystallised into rules of customary international law. Until comparatively recently the rules of general international law were nearly all customary rules.

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19 Federal Republic of Germany v Denmark; Federal Republic of Germany v The Netherlands [1969] ICJ Rep 3. 20 PCIJ Rep, Ser A, No 1. 65

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3.4.1 Definitions of international custom


Custom in international law is a practice followed by those involved because they feel legally obliged to behave in such a way. Custom must be distinguished from mere usage, such as acts done out of courtesy, friendship or convenience rather than out of obligation or a feeling that non-compliance would produce legal consequences. Article 38 circumscribes customary law as international custom, as evidence of a general practice accepted as law. The Court cannot apply custom, only customary law and subpara 1(b) arguably reverses the logical order of events since it is general practice, accepted as law, which constitutes evidence of a customary rule. Judge Hudson of the International Law Commission listed the following criteria for the establishment of a customary rule:
(a) concordant practice by a number of states with reference to a type of situation falling within the domain of international relations; (b) continuation or repetition of the practice over a considerable period of time; (c) conception that the practice is required by, or consistent with, prevailing international law; and (d) general acquiescence in the practice by other states.21

How then is custom distinguished from behaviour which involves no legal obligation? The traditional view is that a rule of customary international law derives its validity from the possession of two elements: a material element and a psychological element. The material element refers to the behaviour and practice of states; whereas the psychological element, usually referred to as the opinio juris sive necessitatis or simply opinio juris, is the subjective conviction held by states that the behaviour in question is compulsory and not discretionary. Any alleged rule of customary law must therefore be checked as to its material and its psychological element.

ASYLUM CASE22
The Colombian government has finally invoked American international law in general. In addition to the rules arising from agreements which have already been considered, it has relied on an alleged regional or local custom peculiar to Latin-American states. The Party which relies on a custom of this kind must prove that this custom is established in such a manner that it has become binding on the other Party. The Colombian government must prove that the rule invoked by it is in accordance with a constant and uniform usage practised by the states in questions, and that this usage is the expression of a right appertaining to the state granting asylum and a duty incumbent on the territorial state. This follows from Article 38 of the Statute of the Court, which refers to international custom as evidence of a general practice accepted as law. In support of its contention concerning the existence of such a custom, the Colombian government has referred to a large number of ... treaties ...
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21 UN Doc A/CN4/16 3/3/50 at p 5. 22 Asylum case (Columbia v Peru) [1950] ICJ Rep 266. 66

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Finally, the 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 ... was invoked or if in some cases it was in fact invoked that it was, apart from conventional stipulations, exercised by the states granting asylum as a right appertaining to them and respected by 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, accepted as law, with regard to the alleged rule of unilateral and definitive qualification of the offence. The Court cannot therefore find that the Colombian government has proved the existence of such a custom. But even if it could be supposed that such a custom existed between certain Latin-American states only, it could not be invoked against Peru which, far from having by its attitude adhered to, has, on the contrary, repudiated it by refraining from ratifying the Montevideo Conventions of 1933 and 1939, which were the first to include a rule concerning the qualification of the offence in matters of diplomatic asylum.

NORTH SEA CONTINENTAL SHELF CASES23


70 The Court must now proceed to the last stage in the argument put forward on behalf of Denmark and the Netherlands. This is due to the effect that even if there was at the date of the Geneva Convention no rule of customary international law in favour of the equidistance principle, and no such rule was crystallised in Article 6 of the Convention, nevertheless such a rule has come into being since the Convention, partly because of its own impact, partly on the basis of subsequent state practice and that this rule, being now a rule of customary international law binding on all states, including therefore the Federal Republic, should be declared applicable to the delimitation of the boundaries between the Parties respective continental shelf areas in the North Sea. In so far as this contention is based on the view that Article 6 of the Convention has had the influence, and has produced the effect described, it clearly involves treating that Article as a norm-creating provision which has constituted the foundation of, or has generated a rule which, while only conventional or contractual in its origin, has since passed into the general corpus of international law, and is now accepted as such by the opinio juris, so as to have become binding even for countries which have never, and do not, become parties to the Convention. There is no doubt that this process is a perfectly possible one and does from time to time occur: it constitutes indeed one of the recognised methods by which new rules of customary international law may be formed. At the same time this result is not lightly to be regarded as having been attained.

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23 Federal Republic of Germany v Denmark; Federal Republic of Germany v The Netherlands [1969] ICJ Rep 3. 67

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72 It would in the first place be necessary that the provision concerned should, at all events potentially, be of a fundamentally norm-creating character such as could be regarded as forming the basis of a general rule of law. Considered in abstracto the equidistance principle might be said to fulfil this requirement. yet in the particular form in which it is embodied in Article 6 of the Geneva Convention, and having regard to the relationship of that Article to other provisions of the Convention, this must be open to some doubt. In the first place, Article 6 is so framed as to put second the obligation to make use of the equidistance method, causing it to come after a primary obligation to effect delimitation by agreement. Such a primary obligation constitutes an unusual preface to what is claimed to be a potential general rule of law. Without attempting to enter into, still less pronounce upon on question of jus cogens, it is well understood that, in practice, rules of international law can, by agreement, be derogated from in particular cases, or as between particular parties but this is not normally the subject of any express provision, as it is in Article 6 of the Geneva Convention. Secondly, the part played by the notion of special circumstances relative to the principle of equidistance as embodied in Article 6, and the very considerable, still unresolved controversies as to the exact meaning and scope of this notion. must raise further doubts as to the potentially norm-creating character of the rule. Finally, the faculty of making reservations to Article 6, while it might not of itself prevent the equidistance principle being eventually received as general law, does add considerably to the difficulty of regarding this result as having been brought about (or being potentially possible) on the basis of the Convention: for so long as this faculty continues to exist, and is not made the subject of any revision brought about in consequence of a request made under Article 13 of the Convention of which there is at present no official indication it is the Convention itself which would, for the reasons already indicated, seem to deny to the provisions of Article 6 the same norm-creating character as, for instance, Articles 1 and 2 possess. With respect to the other elements usually regarded as necessary before a conventional rule can be considered to have become a general rule of international law, it might be that, even without the passage of any considerable period of time, a very widespread and representative participation in the convention might suffice of itself, provided it included that of states whose interests were specially affected. In the present case, however, the Court notes that, even if allowance is made for the existence of a number of states to whom participation in the Geneva Convention is not open, or which, by reason for instance of being land-locked states, would have no interest in becoming parties to it, the number of ratifications and accessions so far secured is, though respectable, hardly sufficient. That nonratification may sometimes be due to factors other than active disapproval of the convention concerned can hardly constitute a basis on which positive acceptance of its principles can be implied. The reasons are speculative, but the facts remain. As regards the time element, the Court notes that it is now over ten years since the Convention was signed, but that it is even now less than five years since it came into force in June 1964, and that when the present proceedings were brought it was less than three years, while less than one had elapsed at the time when the respective negotiations between the Federal Republic and the other two Parties for a complete delimitation broke down on the question of the application of the equidistance principle . Although the passage of only a short period of time is not necessarily, or of itself, a bar to the formation of a
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new rule of customary international law on the basis of what was originally a purely conventional rule, an indispensable requirement would be that within the period in question, short though it might be, state practice, including that of states whose interests are specially affected, should have been both extensive and virtually uniform in the sense of the provision invoked and should moreover have occurred in such a way as to show a general recognition that a rule of law or legal obligation is involved. The Court must now consider whether state practice in the matter of continental shelf delimitation has, subsequent to the Geneva Convention, been of such a kind as to satisfy this requirement ... Some fifteen cases have been cited in the course of the present proceedings, occurring mostly since the signature of the 1958 Geneva Convention, in which continental shelf boundaries have been delimited according to the equidistance principle in the majority of the cases by agreement, in a few other, unilaterally or else the delimitation was foreshadowed but has not yet been carried out ... even if these various cases constituted more than a very small proportion of those potentially calling for delimitation in the world as a whole, the Court would not think it necessary to enumerate or evaluate them separately, since there are, a priori, several grounds which deprive them of weight as precedents in the present context. ... Over half the states concerned, whether acting unilaterally or conjointly, were or shortly became parties to the Geneva Convention, and were therefore presumably, so far as they were concerned, acting actually or potentially in the application of the Convention. From their action no inference could legitimately be drawn as to the existence of a rule of customary international law in favour of the equidistance principle. As regards those states, on the other hand, which were not, and have not become parties to the Convention, the basis of their action can only be problematical and must remain entirely speculative. Clearly, they were not applying the Convention. But from that no inference could justifiably be drawn that they believed themselves to be applying a mandatory rule of customary international law. There is not a shred of evidence that they did and ... there is no lack of other reasons for using the equidistance method, so that acting, or agreeing to act in a certain way, does not of itself demonstrate anything of a juridical nature. The essential point in this connection and it seems necessary to stress it is that even if these instances of action by non-parties to the Convention were much more numerous than they in fact are, they would not, even in the aggregate, suffice in themselves to constitute the opinio juris for, in order to achieve this result, two conditions must be fulfilled. Not only must the acts concerned amount to a settled practice, but they must also be such, or be carried out in such a way, as to be evidence of a belief that this practice is rendered obligatory by the existence of a rule requiring it. The need for such a belief, ie the existence of a subjective element, is implicit in the very notion of the opinio juris sive necessitatis. The states concerned must therefore feel that they are conforming to what amounts to a legal obligation. The frequency, or even habitual character of the acts is not in itself enough. There are many international acts, eg in the field of ceremonial and protocol, which are performed almost invariably, but which are motivated only by considerations of courtesy, convenience or tradition, and not by any sense of legal duty. In this respect the Court follows the view adopted by the Permanent Court of Justice in the Lotus Case, as stated in the following passage, the principle of which is, by analogy, applicable almost word for word, mutatis mutandis, to the present case (PCIJ Ser A, No 10, p 28, (1927)):
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Even if the rarity of the judicial decisions to be found ... were sufficient to prove ... the circumstances alleged ... it would merely show that states had often, in practice, abstained from instituting criminal proceedings, and not that they recognised 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 ... there are other circumstances calculated to show that the contrary is true. Applying this dictum to the present case, the position is simply that in certain cases not a great number the states concerned agreed to draw or did draw the boundaries concerned according to the principle of equidistance. There is no evidence that they so acted because they felt legally compelled to draw them in this way by reason of a rule of customary law obliging them to do so especially considering that they might have been motivated by other obvious factors ... The Court accordingly concludes that if 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 for the delimitation of continental shelf areas between adjacent states; neither has its subsequent effect been constitutive of such a rule; and that state practice upto-date has equally been insufficient for this purpose ...

81

It should be noted that in recent years a number of writers have criticised this traditional view of customary law. In an article written in 1982, Sir Robert Jennings, former President of the ICJ criticised the traditional view on the basis that it was outworn and inadequate and commented:
... most of what we perversely persist in calling customary international law is not only not customary law, it does not even faintly resemble a customary law.24

Critics of the traditional view argue that although the ICJ speaks in terms of state practice and opinio juris, increasingly its conclusions are determined by the application of legal rules that are largely treated as self-evident. The interpretation of state practice and opinio juris is never a straightforward automatic operation but involves a choice, usually justified on grounds of relevance, between conflicting facts and statements. Advocates of the nontraditional view, such as Martti Koskenniemi and Bruno Simma, argue that the study of international law must involve discussion of the way in which that choice is to be made. There is considerable merit to this view and an attempt will be made here to look critically at the way in which the ICJ deals with alleged rules of international custom.

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24 The Identification of International Law in Cheng, International Law: Teaching and Practice, 1982, London: Stevens. 70

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3.4.2 The material element


3.4.2.1 State practice
State practice includes any act, articulation, or other behaviour of a state which discloses the states conscious attitude concerning a customary rule or its recognition of a customary rule. In 1950 the International Law Commission listed the following classical forms of Evidence of Customary International Law: treaties; decisions of national and international courts; national legislation; diplomatic correspondence; opinions of national legal advisers; practice of international organisations. The list was not intended to be exhaustive but to provide a basis for discussion.25 There is some disagreement as to whether, for the purpose of the formation of customary law, state practice should consist merely of concrete actions, or whether it may also include abstract verbal, ie written or oral, statements of state representatives, or their votes, at diplomatic conferences, or in UN bodies. Judge Reads dissenting opinion in the Anglo-Norwegian Fisheries case (1951), explained the restricted view of state practice in more detail:
Customary law is the generalisation of the practice of states. This cannot be established by citing cases where coastal states have made extensive claims ... Such claims may be important as starting points, which, if not challenged, may ripen into historic title in the course of time ... The only convincing evidence of state practice is to be found in seizures, where the coastal state asserts its sovereignty over the water in question by arresting a foreign ship.26

Dr Thirlway gives a similar view:


The fact that the practice is against interest gives it more weight than the mere acceptance of a theoretical rule in the course of discussion by state representatives at a conference, and considerably more weight than the assertion of such a rule ... Claims may be made in the widest of general terms; but the occasion of an act of state practice contributing to the formation of custom must always be some specific dispute or potential dispute. The mere assertion in abstracto of the existence of a legal right or legal rule is not an act of state practice ... Such assertions can be relied on as supplementary evidence both of state practice and of the existence of the opinio juris.27

Such views regard abstract statements as less, or not at all, relevant, apparently due to a reluctance to accept the notion that one body or conference could make law. However, states themselves do regard comments at conferences as
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25 (1950) ILC Yearbook at pp 36872. 26 Anglo-Norwegian Fisheries case [1951] ICJ Rep at p 116. 27 International Customary Law and Codification, 1972, Leiden: AW Sijthoff at p 64. 71

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constitutive of state practice and the courts do refer to abstract statements when identifying a customary rule. Also the term practice in Article 38 is general enough to cover any act or behaviour of a state and it is not clear in what respect verbal acts originating from a state could not be considered behaviour of a state. It is also the case that the traditional evidence of state practice diplomatic notes, instructions to state representatives are often abstract and verbal. It could be argued that the restricted view of state practice is more compatible with a time when means of communication were much slower and there was less interaction between states. In the past, too, there has been a difficulty in obtaining evidence of state practice in situations not involving concrete actions. It is submitted that today such difficulties are no longer as great. Satellite communication and the development of techniques of information gathering and storage have made the collection of evidence of what states say far easier. Of course, when using statements as evidence of state practice it is necessary to look at the context and the manner in which they were made. Consideration must be given to whether they were made de lege lata (about the law that is in force) or de lege ferenda (about the law which it is desired to establish), against or not against interest, or as trading ploys. Statements made de lege lata and against national interest are likely to provide more compelling evidence than those made de lege ferenda or supporting national interest. It is not always easy to discover a states true motives behind statements. It may be argued that it is unnecessary to look at motives, since whatever a state feels or believes when making a statement, other states may come to rely on the statement and the original state may become estopped from altering its position. A further question concerns whether written texts such as conventions, ILC drafts, resolutions, etc can be regarded as state practice. There seems no difficulty in regarding treaties as state practice, providing it is remembered that state practice must be accompanied by opinio juris for the creation of customary law. In the North Sea Continental Shelf cases the ICJ stated that a very widespread and representative participation in the convention might suffice of itself for a conventional rule to generate customary law but it seems clear that opinio juris has to be demonstrated beyond mere contractual obligation in such cases. Mere participation in a conference and votes on single draft rules possess little value as practice, although votes on the draft text are of much more use but usually only when accompanied by statements and explanations. In the end, one of the main problems in evaluating the evidence for state practice is trying to ascertain what states actually do their practice is not always consistent. For example if one were looking at the law relating to military intervention in the internal affairs of other states does one look at USSR practice in Afghanistan in 1980 which was denounced by the USA or at USA practice in Grenada in 1983 which was denounced by the USSR; how does one reconcile a reluctance to intervene militarily in Yugoslavia with military action taken against Iraq? It is exactly this point that the critics of the traditional view of custom wish to explore further. They are concerned to try to identify the basis on which the ICJ and others applying international law make decisions about conflicting state practice.

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One final point should be made here. Although discussion has been of state practice this should not be taken to mean that it is only the behaviour of states which is of interest. The practice of international organisations and even of individuals may well be taken into account in the attempt to establish the existence of a rule of customary international law.

3.4.2.2 The extent of the practice


The formation and existence of a customary rule requires general state practice. In the North Sea Continental Shelf cases the ICJ postulated that state practice ... should ... have been extensive. The term general indicates that common and widespread practice is required, although universal practice is not necessary. It seems also that practice must be representative in the sense that all the major political and socio-economic systems should be involved in the widespread practice. This marks a shift away from the position before the First World War when Professor Westlake could argue that to prove the existence of a rule of custom:
... it is enough to show that the general consensus of opinion within the limits of European civilisation is in favour of the rule.28

If practice is not widespread or general it may still give rise to a local or regional customary rule/special rule, as was argued, unsuccessfully, in the Asylum case (1950). In that case, the ICJ held that before state practice could be acknowledged as law, it had to be in accordance with a constant and uniform usage practised by the states in question. The case concerned political asylum after an unsuccessful rebellion in Peru one of the leaders was granted asylum in the Colombian embassy in Lima. Columbia sought a guarantee of safe conduct of the leader out of Peru which was refused. Columbia took the matter to the ICJ and asked for a ruling that Columbia, as the state granting asylum, was competent to qualify the offence for the purposes of granting asylum it argued for the ruling on the basis of treaty provisions and American law in general ie local/regional international custom. The court found that it was impossible to find any constant and uniform usage accepted as law. There was too much fluctuation and inconsistency.29 However inconsistency per se is not sufficient to negate the crystallisation of a rule into customary law the inconsistency must be analysed and assessed in the light of such factors as subject matter, the identity of the states practising the inconsistency, the number of states involved and whether or not there are existing rules with which the alleged rule conflicts. The practice of specially affected states is also often significant for example in the North Sea Continental Shelf cases it was coastal states with a continental shelf which were specially affected; the practice of landlocked states was not significant. However, it is not true to say that if all affected states follow a particular practice then a rule of customary law comes into effect, since the practice of non-affected states may be sufficiently inconsistent to prevent the
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28 Westlake, International Law, Part I, 1904, Cambridge: Cambridge University Press. 29 For a successful assertion of a local/special custom see the Right of Passage case [1960] ICJ Rep 6. 73

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formation of a rule. It may be said that what is most significant is the adherence to a rule by all those states who had the opportunity to engage in such practice.

3.4.2.3 The practice of dissenting states and persistent objectors


If, and when, certain patterns of practice are emerging, or have emerged, states may wish to diverge or dissent from such practice. States may dissent from a customary rule from its inception onwards. The feasibility of such dissent was acknowledged by the ICJ in the Anglo-Norwegian Fisheries case (1951). The case concerned the manner in which Norway calculated its territorial sea and the Court found that Norway was not bound by the existing general rules of customary law relating to the matter. A persistent objector is not bound by the eventual customary rule if the state fulfils two conditions: 1 The objections must have been maintained from the early stages of the rule onwards, up to its formation and beyond. 2 The objections must have been maintained consistently, since the position of other states that may have come to rely on the position of the objector, has to be protected. The objector should not be able to rely on his own inconsistencies. Thus if a state objects and at other times invokes the rule, it will no longer be entitled to be regarded as a persistent objector. In all cases the persistent objector bears the burden of proving its exceptional position. It may be that states dissent from a customary rule after its formation. Their position is untenable because other states have come to rely on the subsequent objector originally conforming to the rule. Also, general customary law is binding on all states and cannot be the subject of any right of unilateral exclusion exercisable at will by any one state in its own favour. It should be noted, however, that a large number of subsequent objections may lead to desuetude or modification of the rule. It should also be noted that acquiescence over a period of time to an apparent breach of a general customary rule will lead to the result that the apparent breach cannot be challenged by those states acquiescing in it. There has been some discussion regarding the situation of newly independent states. Such states have not participated in the creation of customary rules already in force when they come into existence, nor have they had any opportunity to oppose the rules formation. It is open to the new state to contest the validity of customary rules or dispute their interpretation but it has no right to refuse to observe such rules, save in regard to those states which have expressly agreed to their waiver. When a new state begins to enter into relations with other states it must be taken to accept the rules of international law which are then in force. When a state applies for membership of the UN it must declare its acceptance of the principles of the Charter, the first purpose of which is the settlement of disputes in conformity with the principles of justice and international law (Article 1(1)).

3.4.2.4 Duration of practice


In the North Sea Continental Shelf cases, the ICJ held that:
Even without the passage of any considerable period of time, a very widespread and representative participation in the (practice) might suffice of itself ... Although the passage of only a short period of time is not necessarily, of itself, a
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bar to the formation of a new rule of customary law ... within the period in question, short though it might be, state practice ... should have been both extensive and virtually uniform.

There is no set time limit and no demand that the behaviour should have existed since time immemorial. The relative unimportance of time was highlighted by the ICJ in the North Sea Continental Shelf cases. The cases involved the Federal Republic of Germany, Denmark and Holland and a dispute over the continental shelf. Denmark and Holland argued that the equidistance principle which was contained in the Convention on the Continental Shelf 1958 was customary law. The two states had argued that even if no customary rule existed at the time of the Convention, a rule had since come into being, partly as a result of the impact of the Convention, and partly on the basis of subsequent state practice. The Court was therefore required to look at the time requirement and it ruled, in rejecting their argument, that although the passage of only a short period of time is not necessarily, or of itself, a bar to the formation of a new rule of customary international law, an indispensable requirement would be that the practice of states whose interests are specially affected, should have been extensive and virtually uniform. The length of time required to establish a rule of customary international law will therefore depend on other factors pertinent to the alleged rule. If, for example, the rule is dealing with subject matter about which there are no previously existing rules, then the duration of practice required is less than if there is an existing rule to be overturned. Time has also become less important as international communication has improved it is much easier to assess a states response to an alleged rule than it was in the past.

3.4.3 The psychological element


In addition to the material element an alleged rule of customary international law also requires a psychological element, otherwise known as opinio juris sive necessitatis. State practice must occur because the state concerned believes it is legally bound to behave in a particular way customary law must be distinguished from mere usage. The Statute of the International Court refers to a general practice accepted as law. The essential problem then becomes one of burden and standard of proof. The position is probably as follows the proponent of a custom has to establish a general practice and, having done this, must show that the general practice is due to a feeling of legal obligation. In many cases the International Court has been willing to assume the existence of an opinio juris on the basis of evidence of a general practice, or the previous determinations of the Court or other international tribunals (for example in the Gulf of Maine case (1984)). However, in a significant minority of cases the Court has adopted a more rigorous approach and has called for more positive evidence of the recognition of the validity of the rules in question. The first occasion where such an approach was taken was in the Lotus case (1927) where the Court said:
Even if the rarity of the judicial decisions to be found among the reported cases were sufficient to prove in point of fact the circumstances alleged by the agent for the French government, it would merely show that states had often, in practice,
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abstained from instituting criminal proceedings, and not that they recognised themselves as being obliged to do so; for only if such abstention were based on their being conscious of a duty to abstain would it be possible to speak of an international custom. The alleged fact does not allow one to infer that the states have been conscious of having such a duty; on the other hand ... there are other circumstances calculated to show that the contrary is true.

More recently the ICJ stated:


For a new customary rule to be formed, not only must the acts concerned amount to a settled practice, but they must be accompanied by the opinio juris sive necessitatis.30 The generally held view of customary law, which has been endorsed by the International Court of Justice, 31 is that the creation of a rule of customary international law postulates: ... two constitutive elements: (1) a general practice of states and (2) the acceptance by states of the general practice as law.32 ... The precise definition of the opinio juris, the psychological element in the formation of custom, the philosophers stone which transmutes the inert mass of accumulated usage into the gold of binding legal rules, has probably caused more academic controversy than all the actual contested claims made by states on the basis of alleged custom, put together. A present-day writer may be understandably reluctant to call upon his readers to devote further time to this juridical squaring of the circle, but it is impossible to discuss the future of customary law without some study of the elements which are regarded as going to its making. The simple equation of the opinio juris with the intention to conform to what is recognised, at the moment of conforming, as an existing rule of law has been exposed to the objection of Kelsen and others which, on its own terms, is unanswerable that it necessarily implies a vicious circle in the logical analysis of the creation of custom. As a usage appears and develops, states may come to consider the practice to be required by law before this is in fact the case; but if the practice cannot become law until states follow it in the correct belief that it is required by law, no practice can ever become law, because this is an impossible condition. Nor does the avenue of escape indicated by the tag communis error facit jus, ie the argument that the belief, even the mistaken belief, of states in the existence of a rule of law requiring them to act, or refrain from acting, in a certain way, is sufficient to create the rule believed in, have many adherents. The extreme opposite view, the theory that the establishment of international custom does not require opinio juris at all, but that established usage is sufficient without evidence of states of mind, has also comparatively few supporters.33 As Professor Zemanek has observed,34 while the requirement of opinio juris does
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30 31 32 33

ICJ in Nicaragua v US (Merits) case (1986). See particularly Continental Shelf cases [1969[ ICJ Rep at p 44. Schwarzenberger, A Manual of International Law, 1967, London: Stevens at p 32. See for example, Kelsen, Thorie du droit international coutumier, Revue internationale de la thorie du droit, 1939, p 253ff; Guggenheim, Lehrbuch des Volkerrechts, 1948, pp 4647; Les deux lments de la coutume en droit international, Etudes en lhonneur de G Scelle, Vol 1, p 275; Principes de droit international public, 80 Receuil des Cours, 1952I, at pp 7072. 34 Die Bedeutung der Kodifizierung des Volkerrechts fr deine Anwerdung, in Festschrift Verdross, 1971, p 565 at p 574. 76

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undoubtedly give rise to many problems in practice, particularly with regard to proof of its existence, to assert that it is wholly unnecessary is to throw out the baby with the bathwater. Furthermore, it is admittedly difficult to distinguish between usage which has not (apart from cases, such as the Right of Passage case before the International Court of Justice,35 in which the question is largely or entirely one of generality or consistency of practice), without allowing the psychological element in the creation of custom to creep back into the discussion by a devious route and under another name.36 A proposal for an interpretation of the traditional concept of the opinio juris which would not be subject to objection that it creates a circulus inextricabilis was advanced by Mr IC MacGibbon in 1957.37 Mr MacGibbon starts by drawing attention to the importance of distinguishing between customary rules expressed as rights and customary rules expressed as obligations, and argues that the opinio juris is principally, if not wholly, of importance from the latter standpoint. It is only with difficulty that it can be conceived that a practice motivated by reasons of convenience or self-interest would have been initiated or evolved under the conviction on the part of the states participating that such a practice was in conformity with the law, far less that it was enjoined by the law, although such consideration may well apply to the formation of a customary obligation. To hold otherwise would be to suppose that the assertion of a claim, far from being made as of right or in a state of indifference as to whether or not it was in conformity with law, was made as a matter of duty.38 The distinction is of course a valid one, and it is perfectly correct that a state can hardly be supposed to believe that customary international law requires it to assert a certain claim, as opposed to requiring it to admit or recognise the claim of some other state, made in conformity with existing law. But the distinction as expressed by Mr MacGibbon is in fact an oversimplification of the problem: for the state which asserts a claim will be guided by what it believes to be the law in fixing the extent of its claim. The opinio juris in the traditional sense does therefore have a real existence and meaning on the side of the state which asserts a right, in that it claims as much and no more as it believes to be due to it,39 that is to say, it does not make its claim because it believes that international law requires it to do so, but because it limits its claim because it believes that international law requires it to do so.40 The orthodox view is that a rule of customary law has two constitutive elements: (i) corpus, the material or objective element, and (ii) animus, the psychological or subjective element. The corpus of a rule of customary law is the existence of a usage (consuetudo) embodying a rule of conduct. The animus consists in the
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35 Right of Passage over Indian Territory (Merits), [1960] ICJ Rep at p 6. 36 Cf Tunkin, Remarks on the Juridical Nature of Customary Norms of International Law (1961) 49 Cal LR p 419 at p 476, with reference to Guggenheims paper (op cit n 28 above). 37 Customary International Law and Acquiescence, 33 BYIL at p 115. 38 MacGibbon, op cit at pp 12728. 39 Of course in practice a state may, and probably will, claim more than it thinks it is entitled to, in the form of a sort of percentage to allow for objections, but this does not affect the point made above. 40 HWA Thirlway, International Customary Law and Codification, 1972, Leiden: AW Sijthoff at pp 4749. 77

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conviction on the part of states that the rule embodied in the usage is binding (opinio juris). This view finds expression in Article 38(1)(b) of the Statute of the International Court of Justice which speaks of the Court applying international custom, being evidence of a general practice accepted as law. There is a school of thought, the principal exponent of which at present is doubtless Professor Guggenheim, which disputes the reality and consequently the requirement of the subjective element of opinio juris. But both the Permanent Court of International Justice and the International Court of Justice have in a number of cases stressed the importance of the subjective element of opinio juris. indeed, it should be perhaps pointed out that by the so-called psychological element of opinio juris, it is intended to mean not so much the mental process or inner motive of a state when it performs or abstains from certain acts, but rather the acceptance or recognition of, or acquiescence in, the binding character of the rule in question implied in a states action or omission. It is not without reason that the Statute of the World Court speaks of international custom, being evidence of a general practice accepted as law. However, Article 38(1)(b) of the Statute would have been even more correct if it had said international custom as evidenced by a general practice accepted as law, for it is not the custom or customary rule of international law which is evidence of the general practice, but rather the general practice accepted as law that provides evidence of the customary rule. Indeed, it may be permissible to go further and say that the role of the usage in the establishment of rules of international customary law is purely evidentiary; it provides evidence on the one hand of the contents of the rule in question and on the other hand of the opinio juris of the states concerned. Not only is it unnecessary that the usage should be prolonged, but there need also be no usage at all in the sense of repeated practice, provided that the opinio juris of the states concerned can be clearly established. Consequently, international customary law has in reality only one constitutive element, the opinio juris. Where there is opinio juris, there is a rule of international customary law. It is true that in the case of a rule without usage, objection might be taken to the use of the term custom or customary. But whether in such a case one speaks of international customary law or an unwritten rule of international law becomes purely a matter of terminology. It should, however, be pointed out that in municipal law it would ordinarily not be possible to have a legally binding custom without usage; for in municipal law it is not the opinio juris of individual subjects of the legal system that is decisive but the opinio juris generalis of the community, locality, trade or profession concerned as a whole. To this opinio juris generalis the general law of the community gives its blessing and lends the weight of its own authority. Such opinio juris generalis can normally be established and ascertained only through a general and usually also prolonged practice. But in international law, the possibility of international customary law without usage becomes obvious if it is remembered that in international society states are their own law-makers. From the analytical point of view, the binding force of all rules of international law ultimately rests on their consent, recognition, acquiescence or the principle of estoppel. If states consider themselves bound by a given rule as a rule of international law, it is difficult to see why it should not be treated as such insofar as these states are concerned, especially when the rule does not infringe the right of a third state not sharing the same opinio juris. The Asylum case and the Right of Passage case have shown that it is possible for such opinio juris to exist among a limited number of states or even between two states
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so that, besides rules of universal international customary law, one finds also local and even bipartite international customary law. From this point of view, there is no reason why an opinio juris communis may not grow up in a very short period of time among all or simply some members of the United Nations with the result that a new rule of international law comes into being among them. And there is also no reason why they may not use an Assembly resolution to positivise their new common opinio juris ... ... when a General Assembly resolution proclaims principles recognised, albeit not long since, by members of the United Nations as principles of international law, and is adopted unanimously, it represents the law as generally accepted in the United Nations. In such an event, the binding force of these principles comes not from the resolution, but from their acceptance by member states as part of international law. They are, therefore, binding even before the resolution, although the resolution helps to establish their existence and contents.41 Discussion of custom usually takes place in the context of discourse about sources. For a positivist (and most international lawyers are more or less positivists today), what this means is process: we seek to identify the types of procedure which, if carried out by authorised actors, create law for members of the society in question ... ... What characterises [custom], above all, is its very lack of formality. So to discuss customary law in terms of elements, steps in its creation, and so on is to impose on it a framework which in a sense falsifies its nature. The problem is exacerbated by the modern jurists unfamiliarity with customary law outside the international sphere. Not so very long ago, the general custom of the realm, the region, or the municipality was an important source of law throughout Europe, as well as in other places; but it came to be replaced by statute law and (to a greater or lesser extent) judicial precedent. True, customary law lingers on in parts of Africa and elsewhere, but even there it has become somewhat subordinated to the modern, Western approach. So most commentators about the sources of international law slip easily into a formalistic mode of analysis without stopping to ask themselves whether the technique is suitable to the phenomenon under consideration. It is submitted that, mutatis mutandis, the study of domestic customary law societies, past and present, can afford useful insights into the nature of customary law ... There is another methodological trap of which one should beware. Because in modern municipal societies jurisdiction is compulsory, it is at least feasible (if not wholly correct) to think of law in terms of what a judge will do; and in few areas is this more marked than in the doctrine of sources, where the question is often reduced to an investigation of what processes a judge would regard as capable of creating binding law. But it should not be forgotten that, in the international system, where jurisdiction is not compulsory, adjudication is the exception, not the rule. The more typical decision-maker is the government official, engaged either in advising his or her own government, or in negotiating with others. The difference in the observational standpoint has the following consequence for our topic. At least in theory, if the status of an alleged rule as customary law is challenged before a tribunal, the judge or arbitrator has to decide whether the processes for the creation of custom had been completed by the critical date.
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41 Bin Cheng, United Nations Resolutions on Outer Space: Instant International Customary Law?, in Bin Cheng (ed), International Law: Teaching and Practice, 1982, London: Stevens at pp 24952. 79

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Government decision-makers, however, need not be so objective; whilst they may well want to find out how much support the practice has attracted up until now, if it is one which they wish to follow on its merits they will probably do so, even if the rule has not yet crystallised... Some identify the subjective element in custom as the states will (or several or all states will) that the practice become a rule of law: in other words, with consent to the (would-be) rule. Proponents of this, voluntarist, approach tend to equate the creation of custom with tacit agreement: just as treaties are the written, formal expression of states will, so custom is its informal manifestation. Others reject the voluntarist thesis, preferring to regard the subjective element as a belief a belief in the legally permissible or obligatory character (as the case may be) of the conduct in question: opinio juris sive necessitatis, or opinio juris as it is known for short. The jurisprudence of the World Court has certainly failed to still the controversy, and proponents of both theories can cite judgments which expressly or impliedly support (or appear to support) their contentions ... OPINIO JURIS SIVE NECESSITATIS Literally, the phrase means belief (or opinion) of law or of necessity. This does not make much sense in English, and in fact its clumsiness as a piece of Latin arouses the suspicion that it is not Roman at all. The present writer has not found it in the Digest or other classical writings on Roman law, and although the Glossators and post-Glossators have not been exhaustively combed through, the expression does not appear to have much of a pedigree in Roman law. The first person to use the complete phrase seems to have been Geny in 1919,42 though, as Guggenheim noted,43 one finds parts of the phrase or something like it in the writings of the German historical school in the late 18th and early 19th centuries. We shall return to the historical school later. So far as specifically international law is concerned, the expression does not seem to have been used by any of the so-called fathers of international law, and the earliest use of the concept though not the precise phrase that the present writer has found in this context is in Rivier in 1896.44 The idea was quickly adopted by many others, however. It is quite common to dress up legal maxims and the like in Roman robes in order to give them an air of respectability, though only too often the toga can muffle thought. In this case, the robes seem not even to be genuine, and it is submitted that the linguistic incoherence of the phrase opinio juris sive necessitatis reflects a certain incoherence of the thought behind it. What does opinio juris sive necessitatis mean, or what should it mean, in the context of international law? At this point, it may be helpful to offer a working translation or definition. It is a belief in (or claim as to) the legally permissible or

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42 Mthode dinterpretation et sources en droit priv positif, 2nd edn, 1919, Paris: Librairie gnrale de droit et de jurisprudence at pp 31924, 360. 43 Contribution lhistoire des sources du droit des gens (1958II) 94 Recueil des Cours pp 1, 52; id, Lorigine de la notion de la opinio juris sive necessitatis comme deuxime lment de la coutume dans lhistorie du droit des gens, in Hommage dune gnration de juristes au Prsident Basdevant, 1960 at p 258. 44 Principe du droit des gens, Vol 1 p 35. But there are perhaps earlier hints of this in Savigny, System des heutigen Romischen Rechts, Vol 1, 1840, Heidelberg: Mohr at pp 3234. 80

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obligatory nature of the conduct in question,45 or of its necessity. We shall return later to the part of the definition which refers to necessity. On the subject of belief, it may also be convenient at this juncture to refer to an observation made by Virally,46 and echoed by DAmato47 and Akehurst,48 amongst others. We cannot know what states believe, it is suggested. First of all states, being abstractions or institutions, do not have minds of their own; and in any case, since much of the decision-making within governments takes place in secret, we cannot know what states (or those who direct or speak for them) really think, but only what they say they think. There may be something of an exaggeration here. In some instances, we can discover their views because the opinions of their legal advisers or governments are published.49 Furthermore, it will be suggested later that the express or presumptive understandings and beliefs of the international community about the rules of international law are in certain circumstances relevant. We should not speak of a psychological element in custom, but of a subjective one, for it is more a question of the positions taken by the organs of state about international law, in their internal processes50 and in their interaction with other states, than of their beliefs. This viewpoint is not unrelated to the well-known observation of McDougal that the customary process is one of claim and response, where the legal claims and the responses thereto can be implied in the conduct concerned without necessarily being expressed ...
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45 The bipolar nature of legal relations means that if X has a legal right (eg to compensation), Y will have a duty to pay; and if X has a liberty (eg of innocent passage through Ys territorial sea), Y will have no right to complain and an obligation not to interfere with that passage. These ideas can be expressed in terms of obligatoriness and permissibility. Cf Mendelson State Acts and Omissions as Explicit or Implicit Claims, in Le Droit international au service de la paix, de la justice et du dveloppement, 1991, Mlanges Michel Virally at p 373. It is hard to follow MacGibbons suggestion that the role of opinio juris should be limited to positive conduct. 46 The Sources of International Law in Sorensen (ed), Manual of Public International Law, 1968, London: Macmillan at pp 116, 1334. 47 The Concept of Custom in International Law, 1971, Ithaca: Cornell University Press at pp 3539. This volume, which enjoyed a considerable vogue, particularly in the United States, for some years after its publication, propounds a number of unconventional ideas, but unfortunately not a few of them seem unfounded or overstated. Reasons of space preclude a complete examination here, but among these questionable ideas are the following. (1) The equation or substitution of opinio juris with a theory of articulation, whereby if any entity, be it a state, international organisation, or scholar, has articulated what it, he or she considers to be a new rule of customary law, and that articulation is followed at any time thereafter by an act of state practice apparently even a single one then that will found the rule, even if the state which performed the act made no connection between its own conduct and the articulation by another so long as it was aware of it, or had reason to be (pp 7487). (2) So far as concerns the material element, the author appears to consider that treaty promises constitute (without more) qualifying state practice, but unilateral acts, such as legislation, cannot a strange reversal (pp 8991). (3) A mechanistic form of reasoning (pp 918) leads him to suggest that just two precedents can constitute a (semble general) customary rule. This seems far too crude. A fortiori the suggestion that, in litigation, a single precedent might well suffice. (4) The legal significance of protest is downgraded (pp 98102) in a manner belied by the practice of states and the decisions of international tribunals. 48 Custom as a Source of International Law (197475) BYIL 47 p 1 at pp 3637. 49 Though admittedly this is done only on a partial and selective basis and often only long after the event, and though it must also be conceded that the opinion of a legal adviser does not invariably become that of the government. 50 Including the communication of governments to national legislatures and courts, and the express or implicit prises de position about rules of international law by national courts and legislatures in the exercise of their functions. 81

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Summary and conclusions 1 A states consent to a rule will be a sufficient explanation of its being bound by it, and its refusal at the formative stage of a rule a reason why it is (probably) not bound. But the voluntarist approach does not provide a satisfactory explanation of the whole of customary law. In particular, it does not provide a convincing reason why states who have not truly participated in the formation of a rule should be bound by it though undoubtedly they are. 2 Opinio juris sive necessitatis, for its part, is a phrase of dubious provenance and uncertain meaning. The concept was originally used by the historical school of jurisprudence to explain the content of substantive national law, and was transferred to the context of international law around the turn of the present century. It does have a role to perform in explaining why certain types of conduct constitute mere comity or otherwise do not count as precedents. It is not certain, however, that these functions could not be as well or better performed by using the language of claim and response. 3 In any case, there seems analytically to be no particular reason to insist on proof of the presence of opinio juris in the standard type of case, where there is a constant, uniform and unambiguous practice of sufficient generality, clearly taking place in a legal context and unaccompanied by disclaimers, with no evidence of opposition at the time of the rules formation by the state which it is sought to burden with the customary obligation, or by another state or group of states sufficiently important to have prevented as general rule coming into existence at all. The adoption of the present thesis would bring doctrine more into line with the practice of states and of international tribunals than the mechanical repetition of the necessity of the two elements. As a matter of theory, too, it is submitted that this approach could be justified in terms of the creation of legitimate expectations. This is not the place for a complete explanation of this authors theory of legitimate expectations which underlie the sources of international law. Perhaps it will suffice for the present to say that if a state actually consents to a rule, a legitimate expectation will be created that it will comply with it, just as a disclaimer or persistent dissent at the appropriate time will prevent such an expectation being created. And where there is a constant and uniform practice of sufficient generality, in a legal context, it seems legitimate for members of the community to expect all others to continue to observe that practice. And finally, as a matter of policy, the solution proposed seems a reasonable one. If a relevant practice is sufficiently widespread, it ought to become law, because otherwise the convoy will have to move at the pace of the slowest. To require proof of consent or even opinio juris on the part of each and every state seems excessive and unnecessary. At the same time, the sovereignty and the reasonable interests of states can be safeguarded. If a sufficient number of like-minded states object to a new practice, they can prevent it from ever becoming general law. And in addition, the individual state can individually opt out, at the formative stage, by becoming a persistent objector. By these means, customary law can continue to make a useful contribution to the formation of international law; and given that the treaty process has disadvantages as well as advantages, it is essential that custom continues to make that contribution.51

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51 M Mendelson, The Subjective Element in customary International Law (1995) 66 BYIL at pp 177, 17881, 19496, 2078. 82

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3.4.4 Treaties as evidence of customary law


The issue here is the extent to which a multilateral treaty can be used as evidence of customary international law. It is a general rule of international law which is confirmed in Article 34 of the Vienna Convention on the Law of Treaties 1969 that treaties cannot bind third parties without their consent. If a state wishes to enforce the provisions of a treaty against a non-party it is necessary to argue that the provisions of the treaty are valid as rules of customary international law. Two possible situations arise: 1 Where the treaty is intended to be declaratory of existing customary international law; 2 Where the treaty is constitutive of new law. If the treaty on its face purports to be declaratory of customary international law or if it can be established that it was intended to be declaratory of customary international law, then it may be accepted as valid evidence of the state of the customary rule. If the treaty at the time of its adoption was constitutive of new rules of law, then the party relying on the treaty as evidence of customary law will have the burden of establishing that the treaty has subsequently been accepted into custom. The ICJ in the North Sea Continental Shelf cases recognised that it is possible for a treaty to contain norm-creating provisions which become accepted by the opinio juris and bind non-parties just as much as parties to the convention but the court did lay down a series of conditions: 1 The convention provision must be of a fundamentally norm-creating character such as could be regarded as forming the basis of a general rule of law; 2 There must be widespread and representative participation in the convention particularly of those states whose interests are specifically affected; 3 There must be opinio juris reflected in extensive state practice virtually uniform in the sense of the provision invoked. The following point should also be noted:
Since treaties and custom are on the same footing, it follows that the relations between rules generated by the two sources are governed by those general principles which in all legal orders govern the relations between norms deriving from the same source: lex posterior derogat priori (a later law repeals an earlier law), lex posterior generalis non derogat priori speciali (a later law, general in character does not derogate from an earlier law which is special in character), and lex specialis derogat generali (a special law prevails over a general law).52

3.5

General principles of law

The general object, then, of inserting the phrase [general principles of law recognised by civilised nations] in the statute seems to have been, essentially, to make it clear that the Court was to be permitted to reason, though not to
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52 Cassese, International Law in a Divided World, 1986 Oxford: Clarendon Press at p 180. 83

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legislate, and by, for instance, the application of analogies from the law within the state, to avoid ever having to declare that there was no law applicable to any question coming before it. This was a problem which troubled the Continental jurists who assisted in the drafting of the Statute, but did not trouble the AngloSaxons, who of course expected judges to reason without express instructions.53

The prevailing view as to the meaning of Article 38(1)(c) is that it authorises the Court to apply the general principles of municipal jurisprudence, in particular of private law, in as far as they are applicable to the relations of states. It is not thought to refer to principles of international law itself, which are to be derived from custom or treaty. International tribunals will often refer to well-known or generally recognised principles such as the principle of the independence and equality of states. Such principles do not come within Article 38(1)(c).
[General principles] are, in the first instance, those principles of law, private and public, which contemplation of the legal experience of civilised nations leads one to regard as obvious maxims of jurisprudence of a general and fundamental character such as the principle that no one may be judge in his own cause, that a breach of legal duty entails the obligation of restitution, that a person cannot invoke his own wrong as a reason for release from legal obligation, that the law will not countenance the abuse of a right, that legal obligations must be fulfilled and rights must be exercised in good faith, and the like.54 No decision of the Court, or indeed the Permanent Court, has yet been based explicitly upon a principle or rule of law drawn from the general principles of law recognised by civilised nations referred to in Article 38, para 1(c) of the Statute.55 It is comparatively rare for a state to base a claim before the Court on such principles, so that it is correspondingly infrequent for the Court to have occasion to refer to them for the purposes of its decision. Even where referred to
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53 Clive Parry, The Sources and Evidences of International Law , 1965, Manchester: Manchester University Press at p 83. 54 Lauterpacht, International Law, Vol 1, 1970, Cambridge: Cambridge University Press at p 69. 55 A member of the Court has however gone on record, in an extra-judicial capacity, to the following effect: The silence observed in this matter by them International Court of Justice or other international tribunals must [not] be misinterpreted as any neglect of the importance of examining the common grounds of national systems. However, as far as my experience goes, basic principles common to national legal systems are not normally disputed. The jus gentium applied by the Roman praetor peregrinus is still a reality. The main question is, however, how a generally accepted principle can provide an appropriate solution in the actual case under consideration. Studies of national legislations which have been submitted to the Court in the past are very helpful in clarifying the concepts and solutions found in national law, but usually they cannot offer precise criteria for the application and interpretation of international law in the given case. The presentation of the various solutions of national legislations paraphrasing the basic principle involved, would often not be in conformity with the style of a judgment, the reasoning of which must proceed in a continuous chain of thought and argument to the operative part. I admit, however, that it would be welcomed not only by the parties but also by the international legal world if the reasoning of judgments and advisory opinions were to explain that the Court had examined, by comparative methods, the assertion sometimes boldly stated that a general principle of law, having a specified meaning and significance, forms part of binding general international law: Mosler, To what extent does the variety of legal systems of the world influence the application of general principles of law within the meaning of Article 38(1)(c) of the Statute of the International Court of Justice?, International Law and the Grotian Heritage, 1985, The Hague: TMC Asser Instituut at p 180. 84

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by a party to proceedings, the general principles tend to be employed as something of a makeweight or last resort, a supplementary argument in case the contentions based on customary law or treaties fail to convince: with the result that the Court hardly ever needs to refer to them. On the other hand, individual Members of the Court invoke general principles more frequently: Judge Ammoun was particularly attached to them, though he had strong objections to the use in the Statute of the term civilised nations. ... It is fairly well established that the general principles contemplated by Article 38, para 1(c) of the Statute are at least primarily those which reveal themselves in the consistent solutions to a particular problem adopted in the various systems of municipal law what Mr Elihu Root called, during the discussions of the 1920 Committee of Jurists, those which were accepted by all nations in foro domestico . 56 It is necessary, though not always easy, to distinguish these principles from, on the one hand, what Sorensen has called les principes fondamentaux de la structure du droit international 57 ... and from, on the other hand, mere arguments from analogy by reference to institutions or rules found in one or more systems of municipal law. These discussions were the subject of much argument between the parties in the Right of Passage case.58 The general principles of law recognised by civilised nations form part of the law to be applied by the permanent forum of the family of nations, the International Court of Justice ... [Article 38 of the Statute of the International Court of Justice] is the same as Article 38 of the Statute of the Permanent Court of International Justice, except for an alteration in the numbering of the paragraphs and sub-paragraphs59 and the addition of a few words of no great practical importance in the introductory phrase. The mention of general principles of law recognised by civilised nations (les principes generaux de droit reconnus par les nations civilises) as part of the law to be applied by the Permanent Court of International Justice at once provoked considerable discussion among writers, in which the most divergent views on the character of such principles were expressed. Some writers consider that the expression refers primarily to general principles of international law and only subsidiarily to principles obtaining in the municipal law of the various states. 60 Others hold that it would have been
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56 Procs-verbal of the Committee, p 335. 57 Les Sources du droit international, p 116. The interpretation of Article 38(1)(c) as restricted to principles derivable from municipal law recognition does not of course signify the exclusion of other general principles form the corpus of law applicable by the Court. Mosler, following Anzilotti, observes that the more basic principles need no transformation into international law, whereas the principles commonly accepted in municipal systems do need to be so transformed, hence the inclusion of Article 38(1)(c) in the Statute: Bedeutungswandel in der Anwendung der van den zivilisierten Staaten annerkannten allgemeinen Rechtgrundsatze, Pensamiento juridico y sociedad internacional, 1986, Madrid: Melanges Treyol Serra at pp 776. 58 H Thirlway, The Law and Procedure of the International Court of Justice 19601989 Part Two (1990) 61 BYIL at pp 110, 114. 59 In the Statute of the PCIJ the paragraphs were not numbered, while the sub-paragraphs were numbered by arabic figures. The present Art 38 1(c) was, therefore, referred to, under the old statute, as Art 38 I 3, or often Art 38 3. For the sake of convenience, the new numbering will be used in this work even when referring to the Statute of the PCIJ. 60 Anzilotti, (1929) 1 Cours de Droit International at p 117. Hudson, The PCIJ 192042, 1943, New York: Macmillan at p 611. Castberg La methodologie du droit international public, (1933) 43 Recueil La Haye p 313 at p 370 et seq. Morellie La thorie gnrale du procs international, 61 ibid, p 253 at p 344 et seq. 85

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redundant for the Statute to require the Court to apply general principles of international law, and that, therefore, this provision can refer only to principles obtaining in municipal law.61 Some writers even maintain that the expression is intended to refer exclusively to principles of private law.62 A difference of opinion also exists as to whether the general principles of law recognised by civilised nations are or are not principles of natural law. While certain authors think they are, others deny categorically that they have any connection with natural law. A leading exponent of the modern doctrine of natural law believes, however, that while they are not actually principles of natural law, they are derived from it.63 Nor do authors agree as to whether general principles of law are part of the international legal order, simply because it is a legal order, or because there exists a rule of customary international law according to which such principles are applicable in international relations. Moreover, some writers maintain that general principles of law do not form part of the law to be applied by the World Court by virtue of the enabling provision in its Statute. The greatest conflict of views concerns the part played in international law by these general principles. While some writers regard them merely as a means for assisting the interpretation and application of international treaty and customary law, and others consider them as no more than a subsidiary source of international law, some modern authors look upon general principles as the embodiment of the highest principles the superconstitution of international law. Interesting though this discussion of the character of such general principles may be in the theory of international law, it is even more important to know what they in fact represent. For this reason, the purpose of the present study is not to ascertain what they ought to be theoretically, or how they should be classified, but is primarily intended to determine what they are in substance and the manner in which they have been applied by international tribunals. As an introduction to this study, the genesis of Article 38(1)(c) of the Statute of the World Court may usefully be examined. In February 1920 at its second meeting, the Council of the League of Nations appointed an Advisory Committee of Jurists for the purpose of preparing plans for the establishment of
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61 Strupp, Le droit de juge international de statuer selon lquit 33 ibid (1930) p 357 at pp 47475. Scerni, I principi generali di diretto riconosciuti dala nazioni civili, 1932, p 13 et seq. 62 Cf Lauterpacht, Private Law Sources and Analogies of International Law, 1927, Cambridge: Cambridge University Press at p 71: Those general principles of law are for the most practical purposes identical with general principles of private law. See also ibid, p 85. For a criticism of this exclusive approach, see Le Fur, Rgles gnrales du droit de la paix (1935) 54 Recueil La Haye p 5 at pp 20607. In his The Function of Law in the International Community, 1933, Lauterpacht admitted that they included also general principles of public law, general maxims and principles of jurisprudence. Graspin, Valeur internationale des principaux generaux du droit, 1934, pp 6466. Ripert Rgles du droit civil applicables aux rapports internationaux (1933) 44 Recueil La Haye at p 569. Ripert believed that they were principles of municipal law (jus civile of the Romans): he seemed to have allowed it subsequently to assume its modern meaning of private law by tracing the evolution of the meaning of the term in France (p 583). His main object, however, was to ascertain which principles of private law were really principles applicable in all legal systems (p 569) and he did not appear to maintain that the latter were exclusively to be found in private law. 63 Le Fur, La coutume et les principes generaux du droit comme sources du droit international public, (1936) 3 Recueil Geny p 362 at p 368. The relevant passage was almost textually reproduced in the same authors Rgles generales etc loc cit p 205. 86

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the Permanent Court of International Justice provided for in Article 14 of the Covenant of the League of Nations. This Advisory Committee held its meetings from June 16 to July 24, 1920 and was able to present its Report together with the Draft Statute of the Court to the Council of the League at its eighth session (July 30August 5, 1920). Before the Advisory Committee actually met, a Memorandum was submitted to it by the Secretariat of the League of Nations, together with a number of draft schemes prepared by states and individuals, relating to the establishment of a World Court. In so far as the law to be applied by the Court was concerned, it will be found that none of these drafts took a positivist64 or voluntarist65 view. Besides treaties and established rules, the Court was according to these various drafts directed to apply general principles of law,66 general principles of law and equity,67 general principles of justice and equity,68 or even rules which, in the considered opinion of the Court, should be the rules of international law.69 It was, therefore, quite in line with these drafts, which may be considered as a fair indication of the general opinion on the subject, that, when the question of the law to be applied by the Court came up for discussion in the Advisory Committee of Jurists, Baron Descamps, Chairman of the Committee, proposed that, after conventions (clause 1) and commonly recognised custom (clause 2), the Court should apply the rules of international law as recognised by the legal conscience of civilised nations (clause 3), or, as they were described in the original French version of the proposal les rgles de droit international telles que les reconnat la conscience juridique des peuples civiliss. Mr Elihu Root, the American member of the Committee, whilst not objecting to the application by the Court of conventions and recognised custom (ie clauses 1 and 2 of the Descamps proposal) said that he could not understand the exact meaning of clause 3. He wondered whether it was possible to compel states to submit their disputes to a court which would administer not merely law but also what it deems to be the conscience of civilised peoples. It may be apposite to point out here that although some words, which are identically spelt in French and English, can be literally transposed from one language into the other, others carry subtle but important differences in meaning in the two languages so that literal transposition becomes impossible. Thus the word conscience, which exists in both English and French, while it often conveys the same meaning in both languages, does not invariably do so. Conscience has
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64 As used in this work, positivism denotes that school of thought which consider that law properly so called consists only of rules derived from a determinate source or, in other words, rendered positive by means of a formal process. 65 As used in this work voluntarism denotes that school of thought which emphasises the element of will in the formation of legal norms, either the will of the state, in the form of a command, or the will of the subjects, as manifested by consent. 66 Draft scheme of Denmark, Norway and Sweden, Art 27 II. 67 German Draft Scheme, Art 35. Clovia Bevilaquas Draft scheme, Art 24 II. Bevilaquas second category of rules is in fact customary international law. 68 Article 42 of the Swiss Draft Scheme establishes the following three categories: conventions, principles of international law, and the general principles of justice and equity. Article 12 of the Draft of the Union Juridique Internationale directs the court to apply law, justice and equity. 69 Draft Scheme of Denmark, Norway and Sweden, Art 27 II (Alternative) Danish Draft Scheme, Art 15 II, Norwegian Draft Scheme, Art 15 II, Swedish Draft Scheme, Art 17 II, Draft Scheme of the Five Neutral Powers (Denmark, Norway, Netherlands, Sweden, Switzerland), Art 2 II. 87

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acquired in current English usage a primarily moral and introspective connotation the sense of what is morally right or wrong possessed by an individual or a group as regards things for which the individual himself, or the group collectively, is responsible. In French conscience denotes also the sense of what is right or wrong, but not necessarily what is morally right or wrong. For instance, the French speak of libert de conscience for freedom of belief, thus distinguishing conscience rligeuse from conscience morale. It follows that conscience juridique is equally distinguishable from conscience morale. It is a familiar expression with French jurists, meaning the sense of what is juridically right or wrong. Furthermore, although conscience in French also implies the passing of judgment upon human actions and motives, it does not invariably mean an introspective judgment upon ones own actions and motives. Thus conscience publique in French merely means the peoples sense of what is right or wrong without necessarily implying self-judgment. For these reasons, the phrase la conscience juridique des peuples civiliss which figured in the Descamps proposal may be translated into English as the sense common to all civilised peoples70 of what is juridically right or wrong, or as the opinio juris communis of civilised mankind. The literal translation of the phrase by the conscience of civilised nations would seem to have a different meaning in English, namely the moral sense of right or wrong possessed by each civilised nation as regards things for which it is responsible. And, since conscience in English denotes an essentially moral quality, the original English translation of the Descamps proposal which spoke of the legal conscience of civilised nations, is, if not self-contradictory, at least as difficult to understand, as, indeed, Mr Root found it. The reason why Mr Root at first objected to the Descamps proposal was certainly more substantial than one arising from a linguistic misunderstanding but a proper understanding of the original proposal is nevertheless important. An examination of the various proposals put forward and opinions expressed during the discussion, concerning the rules of law to be applied by the Court, discloses five distinct views: (1) First, a group of proposals refrained from indicating to the Court which rules of law it was to apply. (2) Secondly, the various Scandinavian drafts and that of the five neutral powers inspired by the Swiss Civil Code directed the Court to apply conventions and recognised rules of international law, and, in default of such rules, to apply what, in its considered opinion, the rule of international law on the subject
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70 It should be noticed that the original proposal of Descamps referred to peuples civiliss, ie civilised peoples or civilised mankind. This is important, because the expressions civilised nations and nations civiliss which are now found in the English and French text of Art 38 1(c) originate from Roots amendment to the Descamps proposal. This amendment referred to civilised nations which was the English translation used by the Committee of Jurists for Descamps peuples civiliss. In fact, the earlier translation of the Root amendment also used peuples civiliss in the French version. Looked at from this angle, the word nation in Art 38 1(c) should be understood not in its politico-legal sense, as it is used in the League of Nations United Nations or International Law but in its more general sense of a people, as for instance, the Scottish nation, the French nation, the Maori nation, etc. Some further support for this view may be found in the fact that, at certain stages of the drafting of the article, the word nation in clause 3 was written with a small n, while the same word in clause 4 in the sense of a country was written with a capital N. 88

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ought to be. The latter part of this proposal was regarded as conferring on the Court a legislative power, and, since all the members of the Committee were in agreement that a Court should not legislate, this formula did not find any favour. (3) Thirdly, there was the proposal of Baron Descamps, which was supported by M Loder and M Hagerup and received no serious opposition except from Mr Elihu Root. In order to appreciate how much this view coincides with the fifth view which was that of Lord Phillimores, it must be realised that, in his proposal, Baron Descamps defined international custom as pratique commune des nations, accepte par elles comme loi. As such, his conception of custom was much more restrictive than Lord Phillimores. According to the Descamps formula, both the consuetudo and the opinio juris , the two constitutive elements of a custom, have to be common to all nations. Adopting so stringent a view of international custom, it is not surprising that Baron Descamps should classify another portion of international law under a third heading, les rgles de droit international telles que les reconnait la conscience juridique des peuples civiliss. While he conceived these as rules of objective justice, he limited the formula to what the opinio juris communis of the civilised world considered as rules of international law. These rules of objective justice Baron Descamps also called general principles of law, and, as an illustration of the principles he had in mind, he cited the case of the application of the principle of res judicata in the Pious Fund case by the Permanent Court of Arbitration. (4) Fourthly, there was the original view of Mr Root who seemed ready to admit only clauses 1 and 2 of the Descamps proposal, and even entertained some doubt as to clause 2 concerning the application by the Court of commonly recognised custom. The position originally adopted by this distinguished American statesman, who had contributed so much to the establishment of the Permanent Court of International Justice, was, however, actuated more by an earnest wish to see the Statute accepted by all countries than by a strict adherence to juridical principles. In this connection, it should be borne in mind that, at the time, the Advisory Committee had agreed in principle that the compulsory jurisdiction of the Court should be accepted by all the members of the League of Nations by the very fact of adhering to the Statute of the Court. Mr Root rightly linked this aspect of the question with the rules concerning the application of law. However unconnected they may be from a juridical standpoint, their relation is certainly real and substantial from the point of view of states called upon to submit to the jurisdiction of the Court. A restrictive formula with regard to the law to be applied would, in Mr Roots opinion, have facilitated the acceptance of the step forward in the field of jurisdiction. He was, therefore, disposed to accept the Descamps proposal in respect of all the Courts jurisdiction other than its compulsory jurisdiction. He was even disposed to accept it, where the Court had compulsory jurisdiction, so long as the dispute concerned the extent and nature of reparation for breach of an obligation, or the interpretation of judgments, but he was not prepared to accept it where the dispute concerned questions of international law in general. (5) Finally, there was Lord Phillimores amended text of the Descamps proposal, elaborated in conjunction with Mr Root, which was in fact the text adopted by the Advisory Committee. On closer examination, Lord Phillimores views were not so different from Baron Descamps. His attitude with regard to the rules concerning the law to be applied was even more liberal than that of Baron Descamps; for he was ready to allow that, in the absence of treaty law,
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the Court should apply the rules of international law in force from whatever source they may be derived. But, even on the assumption that, by this formula, Lord Phillimore intended the only alternative to treaty law to be customary law, his conception of international custom was much more liberal than that of Baron Descamps; for he declared that generally speaking, all the principles of common law are applicable to international relations. they are in fact part of international law. He considered the example cited by Baron Descamps to illustrate les rgles de droit international telles que les reconnait la conscience juridique des peuples civiliss, namely the principle of res judicata as one of the principles of common law. This, he said, is a principle which has the same character of law as any formulated rule. In other words, there are principles of international law in force which have not yet assumed the form of formulated rules. Indeed when questioned by Baron Descamps Lord Phillimore agreed that international law as understood by him resembled natural law. Theoretical niceties apart, there is, therefore, little practical difference between the views of Baron Descamps who held that international law included certain principles of objective justice and the views of Lord Phillimore who held that international law included all the principles of common law, which itself resembled natural law. Furthermore, Lord Phillimore declared himself generally in agreement with M Ricci-Busatti who has said that the Court should apply general principles of law. It is indeed, in this formula that the views of Baron Descamps and Lord Phillimore found their common denominator. When, therefore, at the 15th meeting of the Committee (3 July 1920) the formula the general principles of law recognised by civilised nations in lieu of the original clause 3 was actually proposed by Mr Root, who had in collaboration with Lord Phillimore prepared an amended text to the Descamps proposal, it was immediately agreed to by Baron Descamps and the rest of the committee. This is the origin of the present Article 38(1)(c) of the Statute of the International Court of Justice.71 Article 1 DRAFT CODE OF GENERAL PRINCIPLES OF LAW Good faith shall govern relations between states. In particular, every state shall fulfil its obligations and exercise its rights in good faith. A state is responsible for any failure on the part of its organs to carry out the international obligations of the state, unless the failure is due to vis major. Vis major, in order to relieve a state of its obligations, must be of such a nature as to make it impossible for the state to fulfil that obligation, and this impossibility must not be imputable to the state itself. Responsibility involves an obligation on the part of the state concerned to make integral reparation for the damage caused, in so far as it is the proximate result of the failure to comply with the international obligation. The state shall, wherever possible, make restitution in kind. If this is not possible, a sum corresponding to the value which restitution in kind would bear shall be paid. Whenever restitution in kind, or

Article 2

Article 3

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71 Bin Cheng, General Principles of Law as applied by International Courts and Tribunals , 1993, Cambridge: Cambridge University Press at pp 114. 90

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payment in lieu of it, does not cover the entire loss suffered, damages shall be paid in order that the injured party is fully compensated. The damage suffered shall be deemed to be the proximate result of an act if it is the normal and natural consequence thereof, or if it would have been foreseen by a reasonable man in the position of the author of the act, or if it is the intended result of the act. Any claim by one state against another shall be deemed invalid if the claimant state has, by its own negligence, failed to present the claim for so long as to give rise to a danger of mistaking the truth. Every tribunal has the power, in the first instance, to determine the extent of its jurisdiction, in the absence of express provision to the contrary. The jurisdiction of a tribunal extends to all relevant matters incidental to the principal question in respect of which it is competent, in the absence of express provisions to the contrary. Parties to a dispute are disqualified from acting as judges or arbitrators in such a dispute. Where a judge or arbitrator is the national of, or has been selected by, one of the parties to the dispute, he shall not consider himself as an agent of that party, but must decide the case submitted to him impartially without fear or favour. In judicial proceedings, the tribunal shall ensure that both parties have an adequate and equal opportunity to be heard. The above provision shall not affect the right of the tribunal to decide by default, if one of the parties, without valid reason, fails to appear before the tribunal, or to defend his case. In such an event the tribunal must decide according to the merits of the case, after satisfying itself that it has jurisdiction. The tribunal shall, within the limits of its jurisdiction, examine points of law proprio motu, without being limited to the arguments of the parties. Parties to a case must abstain from any act which might aggravate or extend the dispute and, in particular, from any measure calculated to have a prejudicial effect in regard to the carrying out of the decision to be given. The decision of an international tribunal is final. Any question which has been resolved by a valid and final decision may not be reopened between the same parties. The decision of an international tribunal is binding only upon the parties to the dispute. Decisions on incidental or preliminary questions are only binding upon the parties to the dispute. A judgment may be annulled: (a) if the tribunal which gave the judgment lacked jurisdiction or exceeded its jurisdiction; (b) if the tribunal, or any member thereof is proved to have been guilty of fraud or corruption in connection with the particular case; or

Article 4

Article 5

Article 6

Article 7

Article 8 Article 9

Article 10

Article 11

Article 12

Article 13

Article 14

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(c) if the tribunal failed to give both parties an equal and adequate opportunity to be heard. Article 15 A judgment may be revised on the grounds of: (a) manifest and essential error; (b) after-discovered evidence; or (c) fraud of the parties or collusion of witnesses. Article 16 A tribunal may annul or revise its own judgment, either proprio motu, or on the application of one of the parties, for any of the reasons mentioned in the two preceding Articles provided that it still has jurisdiction over the dispute.72

3.5.1 Some examples


A number of decisions of the International Court help illustrate the nature of general principles. In the Chorzow Factory (Jurisdiction) case, the Permanent Court enunciated the principle that:
... one party cannot avail himself of the fact that the other has not fulfilled some obligation, or has not had recourse to some means of redress, if the former party has, by some illegal act, prevented the latter from fulfilling the obligation in question, or from having recourse to the tribunal which would be open to him.73

Later on in the same case, the Court observed:


... that it is a principle of international law, and even a general conception of law, that any breach of an engagement involves an obligation to make reparation.74

In a number of cases the International Court has made use of the doctrine of estoppel as recognised by a number of municipal legal systems. Perhaps the clearest example came in the Temple case involving Thailand (formerly Siam) and Cambodia, formerly part of French Indo-China. The two states were in dispute over a section of the frontier. Cambodia successfully relied on a map of 1907 which the predecessor French authorities had produced at the request of the Siamese Government. The map clearly showed the Temple area as part of French IndoChina. The Siamese authorities, far from protesting at the error, had thanked the French for preparing the map and requested a number of copies. Furthermore, in 1930, a Siamese prince paid a state visit to the disputed area and was officially received there by the French authorities. Together, these two events were seen by the International Court as conclusive and it found that Thailand was precluded by its conduct from denying the frontier indicated on the map.75 Other principles considered by the Court have included the right to bring class actions (actio popularis)76 and the doctrine of corporate personality in the Barcelona Traction, Light and Power Company Limited case.77
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72 Bin Cheng, General Principles of Law as applied by International Courts and Tribunals, 1993, Cambridge: Cambridge University Press at Appendix I. 73 Chorzow Factory (Jurisdiction) case PCIJ Ser A, No 9 (1927). 74 Chorzow Factory (Merits) case (1928) PCIJ Ser A, No 17 (1928). 75 Temple of Preah Vihear [1962] ICJ Rep at p 1. 76 South West Africa case [1950] ICJ Rep at p 128. 77 [1970] ICJ Rep at p 3. 92

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3.5.2 Equity
Amongst these general principles it could be argued that equity, in the sense of justice and fairness, is included and in a number of cases it has been used indirectly to affect the way in which substantive law is applied. The application of equity as a general principle should not be confused with Article 38(2) which states that if both parties to a dispute agree, the court can decide a case ex aequo et bono, ie the court can apply equity in precedence to all other legal rules.
During the period under review [19601989] there has been a striking increase in references to equity in the work of the Court not only in the pleadings of the parties, but in the judgments themselves; so much so that one observer has felt able to declare that after 50 years of hesitation the World Court has clearly accepted equity as an important part of the law that it is authorised to apply.78 Concepts of equity have certainly had a very extensive influence in one particular domain that of the delimitation of maritime areas; but it is probably premature to see in the decisions of the Court even in that specific field the application of any consistent and mature theory of equity. In matters unconnected with maritime delimitation, equity has been referred to and applied sporadically, but in ways which paradoxically are easier to reconcile with classical concepts of equity than the specialised use of it in disputes of maritime areas.79

The ICJ itself has on a number of occasions indicated that it considers the principles of equity to constitute an integral part of international law. In the Diversion of Water from the Meuse case (1937), Judge Hudson declared:
What are widely known as principles of equity have long been considered to constitute a part of international law, and as such they have often been applied by international tribunals.80

Over 40 years later the ICJ confirmed this view in the Continental Shelf (Tunisia/Libyan Arab Jamahiriya) case (1982):
Equity as a legal concept is a direct emanation of the idea of justice. The court whose task is by definition to administer justice is bound to apply it ... [The Court] is bound to apply equitable principles as part of international law, and to balance up the various considerations which it regards as relevant in order to produce an equitable result.

For a particularly full discussion of the place of equity within international law readers are referred to the judgment of Judge Weeranmantry in the Case Concerning Maritime Delimitation in the Area Between Greenland and Jan Mayen (Denmark v Norway)(1993).

3.6

Judicial decisions

In the event of the court being unable to solve a dispute by reference to treaty law, custom or general principles, Article 38 provides a subsidiary means of
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78 Sohn, The Role of Equity in the Jurisprudence of the International Court of Justice, 1984, Mlanges Georges Perrin (1984) at p 311. 79 H Thirlway, The Law and Procedure of the International Court of Justice 19601989 Part One (1989) 60, BYIL (1989) at p 49. 80 PCIJ Ser A/B, No 70. 93

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judicial decisions and the teachings of the most highly qualified publicists of the various nations be employed although the increase of treaty law has led to a decline in the use of the subsidiary source. Judicial decisions may be applied subject to the provisions of Article 59 which states:
The decision of the Court has no binding force except between the parties and in respect of that particular case.81

In other words, there is no stare decisis in international law. Nevertheless the ICJ does look at earlier decisions and take them into account. Value is seen in judicial consistency. But caution should be exercised when looking at a particular decision. Decisions are by majority. In the event of even division a decision may have been made by the President using a casting vote. Some dissenting judgments may be made more for political than for legal reasons. Arbitration decisions depend for their weight on the subject matter involved and the agreement between the states to submit the dispute to arbitration. The procedure of international tribunals is considered in more detail in Chapter 12. Article 38 does not limit the judicial decisions that may be applied to international tribunals. If a municipal courts decision is relevant it may be taken into account the weight attached will depend on the standing of the court eg the US Supreme Court is held in high regard, particularly in disputes on state boundaries; similarly the decisions of the English Prize Courts contributed to the growth of prize law the law relating to vessels captured at sea during war. Municipal court decisions may also be evidence of state practice for the purpose of establishing the rules of customary international law.

3.7

The teachings of the most highly qualified publicists of the various nations

Historically, writers have performed a major role in the development of international law. The significance of jurists such as Grotius, Suarez and Gentilis has already been discussed in Chapter 1. Even today states make plentiful reference to academic writings in their pleadings before the Court. Writers have played an important part in the development of international law for two main reasons, the comparative youth of a comprehensive system of international law and the absence of any legislative body. In the formative period writers helped to determine the scope and content of international law. However as the body of substantive law has increased so the influence of writers has decreased although writers still have an important role in developing new areas of law, eg marine pollution. Who are the most qualified writers is a matter for subjective assessment as usual in these matters death is often seen as an important qualification! It should be noted that the Court itself does not usually make reference to specific writers.

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81 Article 59 of the Statute of the ICJ. 94

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3.8

Other possible sources

Over the last 30 years there has been increasing support for the view that Article 38 should not be understood as a comprehensive and complete list of the sources of international law. On the one hand, examples can be found from the more recent decisions of the ICJ which seem to be based on rules of law not readily falling within the triad of sources created by the statute. On the other hand it is argued that international law does not simply consist of the decisions of the ICJ. Indeed, between 1966 and 1980 the work load of the court decreased dramatically following the decision in the South West Africa case, Second Phase (1966).82 The decision was heavily criticised by the newly independent states who were already distrustful of what they perceived as a European and American bias within the Court. Rather than submit disputes to the ICJ they preferred to seek remedies through the political organs of the UN. As the work of the UN has increased it can be seen to have had a profound effect on the behaviour of states which cannot be ignored in any analysis of international law. For both these reasons, it is argued that the discussion of the sources of international law can no longer be confined to the provisions of Article 38. Support for this view can be found among the judges of the ICJ:
We cannot reasonably expect to get very far if we try to rationalise the law of today solely in the language of Article 38 of the Statute of the International Court of Justice, framed as it was in 1920. It too needs urgent rethinking and elaboration ... To use Article 38 as it stands, as we constantly do still, for the purposes of analysing and explaining the elements and categories of the law today has a strong element of absurdity.83

It is therefore necessary to consider a number of other sources of international law.

3.9

Resolutions of international organisations

The exact status of resolutions of international organisations, in particular resolutions of the United Nations General Assembly, has long been an area of controversy. Nonetheless it is certainly true that the resolutions passed by the UN General Assembly have a far more significant role to play in the formation of international law than was envisaged in 1945, let alone in 1920 when Article 38 was drafted. When discussing the effect of resolutions it may be useful to consider the categories suggested by Sloan, who identifies three main categories of resolution:
Decisions By virtue of Article 17 of the UN Charter, the General Assembly may take decisions on budgetary and financial matters which are binding on the members. Failure to abide by budgetary decisions can ultimately lead to suspension and expulsion from membership. In addition, Article 2(5) of the Charter provides that:
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82 [1966] ICJ Rep at p 6. 83 Jennings, The Identification of International Law in International Law, Teaching and Practice, Bin Cheng (ed), 1982, at p 9. 95

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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. Thus arguably, resolutions that commit the UN to taking action can be binding on member states. Recommendations Article 10: The General Assembly may discuss any questions or any matters within the scope of the present Charter ... and ... may make recommendations to the members of the United Nations or to the Security Council or to both on any such questions or matters. The essence of recommendations is that they are non-binding. They cannot, therefore, instantly create binding rules of international law in themselves. However, recommendations can be used as evidence of state practice and thus go towards the creation of customary rules of international law. Declarations Declarations are a species of General Assembly resolutions based on established practice outside the express provisions of Chapter IV of the Charter ... While the effect of declarations remains controversial, they are not recommendations and are not to be evaluated as such.84

Since 1945 the General Assembly has adopted a number of resolutions which have been termed declarations and have expressed principles of international law. Such declarations have often been adopted by unanimous vote or by consensus (ie without voting). The most comprehensive was Declaration on Principles of International Law concerning Friendly Relations and Co-operation among states (GA Resolution 2625 (XXV) (1970)). Other significant declarations have been the Declaration on the Granting of Independence to Colonial Territories and Peoples (GA Resolution 1514 (XV) (1960)); Declaration of Legal Principles Governing the Activities of States in the Exploration and Use of Outer Space (GA Resolution 1962 (XVIII) (1963)). Certain other resolutions, although not designated as declarations have affirmed principles of international law. One example is the resolution entitled Affirmation of the Principles of International Law Recognised by the Charter of the Nuremberg Tribunal (GA Resolution 95 (I) (1946)). It should also be noted that some declarations by the General Assembly are not intended to express legal rights and obligations, an important example being the Universal Declaration of Human Rights (GA Resolution 217 (III)) which is expressly stated to proclaim a common standard of achievement. It seems to be almost universally accepted today, therefore, that in certain situations UN resolutions can be used to establish binding rules of international law. Whether a particular resolution will be regarded as valid international law will depend on a number of criteria including the context in which the resolution was passed, voting behaviour and analysis of the provisions concerned. In Texaco Overseas Petroleum Co v Libya (1978),85 an arbitration which
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84 Sloan, General Assembly Resolutions Revisited (1987) 58 BYIL 93. 85 (1978) 17 ILM at pp 137. 96

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arose after Libya had nationalised the property of two American oil companies, the arbitrator, Professor Dupuy, had cause to discuss the international law relating to nationalisation of foreign owned property. In particular, he referred to the General Assembly Resolution on Permanent Sovereignty over Natural Resources 1962 (GA Res 1803 (XVII)) and the Charter of Economic Rights and Duties of States, 1974 (GA Res 3281 (XXIX)). Resolution 1803 had been adopted by 87 votes to 2, with 12 abstentions. France and South Africa had voted against the resolution and the Soviet bloc, Burma, Cuba and Ghana had abstained. The resolution recognised the right to expropriate foreign owned property where it was carried out for reasons of public utility, security or national interest and where compensation is paid. Arbitrator Dupuy, who had been appointed by the President of the ICJ commented:
On the basis of the circumstances of adoption ... 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 ... 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. 86

He then turned to consider the status of the Charter of Economic Rights and Duties of States 1974. This resolution was adopted by 120 votes to 6 with 10 abstentions. The states voting against were Belgium, Denmark, the Federal Republic of Germany, Luxembourg, the UK and the USA; those abstaining were Austria, Canada, France, Ireland, Israel, Italy, Japan, the Netherlands, Norway and Spain. The provisions of the Charter were much more favourable to the developing states. Arbitrator Dupuy found that there were several factors which mitigated against recognising the Charter as a source of international law:
In the first place, Article 2 of this Charter must be analysed as a political rather than a legal declaration concerned with the ideological strategy of development and, as such, only supported by non-industrial states ... The absence of any connection between the procedures of compensation and international law and the subjection of this procedure solely to municipal law cannot be regarded by the Tribunal except as a de lege ferenda formulation, which even appears contra legem in the eyes of many developed countries.87

Since it now seems to be accepted that resolutions are capable of constituting rules of international law, debate now is focused on whether such resolutions constitute a source of law in their own right or whether they merely provide evidence of customary law or general principles of law. One resolution which has been the subject of much analysis is the Declaration on Outer Space which was passed in 1962. The main aim of the resolution was to establish a legal regime for outer space which incorporated the principles that space exploration was to be carried out for the benefit of all mankind, that outer space and celestial bodies were not to be the subject of national appropriation, and that the use and exploration of outer space was to be carried out for peaceful purposes only. During the discussions leading to the adoption of the resolution
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86 Ibid, p 30. 87 Ibid, p 32. 97

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delegates to the General Assembly considered the legal effect of declarations in general and support was offered for the view that a declaration of legal principles, adopted unanimously could be, in effect, legally binding. A significant number of states expressed the view that the binding nature of such declarations was based on the fact that the declaration constituted state practice and also the necessary opinio juris to create a rule of custom. Such resolutions constituted, in the words of Bin Cheng, instant customary law.88 In the Nicaragua case (1986) the ICJ expressed the view that UN Resolutions could constitute opinio juris which together with evidence of state practice could constitute a rule of custom. Until the provisions of Article 38 of the Statute of the ICJ are amended it seems likely that international tribunals will continue to refer to resolutions in terms of evidence of international custom. Whether that is an accurate description of the procedure remains open to doubt.

3.10 Resolutions of regional organisations


Regional organisations, for example, the European Union, the Council of Europe, the Organisation of American States, and the Organisation for African Unity can, via their internal measures, demonstrate what they, as a regional group, consider to be the law. This is especially important in the area of human rights law, which is discussed in Chapter 15.

3.11 The International Law Commission and codification


The major difficulty with customary law is that it is diffuse and often lacks precision. In the light of this, attempts have been made to codify international law, an early example of which is provided by the Hague Conferences of 1899 and 1907 which did much to codify the laws relating to dispute settlement and the use of armed force. The codification and development of international law was a concern of the founders of the UN and that concern is reflected in Article 13(1) of the UN Charter which provides:
The General Assembly shall initiate studies and make recommendations for the purpose of: (a) promoting international co-operation in the political field and encouraging the progressive development of international law and its codification (emphasis added).

In 1947, under the auspices of the UN, the International Law Commission was set up and charged with the task of progressively developing and codifying international law. The ILC is made up of 34 members from around the world who remain in office for five years each and who are appointed from lists supplied by national governments. The members of the ILC sit as individuals rather than as state representatives. Generally the Commission works on its own initiative. Draft articles are prepared and sent for comments, a conference may then be convened at which the draft articles are discussed with the aim of producing a finished convention which can then be opened for signature. Conferences can last for some time the Third Law of the Sea Conference had
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88 Bin Cheng, UN Resolutions on Outer Space: Instant International Customary Law? (1965) 5 Indian Journal of International Law 23. 98

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its opening session in New York in 1973 and the Law of the Sea Convention was finally opened for signature in December 1982. Ratified conventions are clearly a source of law, while the drafts are often highly persuasive statements of present state practice in a particular area of law. Although the ILC is the most important international body engaged in the development and codification of international law, there do exist a number of other public organisations which are involved in the same mission. Such organisations generally specialise in particular areas of law eg the UN Commission on International Trade Law (UNCITRAL); the International Labour Organisation (ILO); the United Nations Educational, Scientific and Cultural Organisation (UNESCO). Additionally there are also some private, independent bodies engaged in the development of the law eg the International Law Association and the Institut de Droit International are two of the best known today, while the various Harvard Research drafts produced before the Second World War are still of value today.

3.12 Soft law


A recent development in the study of the sources of international law has been the claim that international law consists of norms of behaviour of varying decrees of density or force. On the one hand there are rules, usually contained in treaties, which constitute positive obligations binding states objectively. On the other hand, there are international instruments which, while not binding on states in the manner of treaty provisions, nonetheless constitute normative claims and provide standards or aspirations of behaviour. Such instruments can have an enormous impact on international relations and the behaviour of states but would not be considered law in the positivist sense. A growing body of writers has argued that both types of norms should be considered law and the distinction between the two is indicated by the terms hard law and soft law. The concept of soft law has been used significantly in the area of environmental protection which is discussed more fully in Chapter 17. One particular benefit of soft law is that it allows states to participate in the formulation of standards of behaviour which they may not feel, at the time of formulation, ready to implement fully. For example, the Universal Declaration of Human Rights 1948 might be considered to be soft law since it was expressed to be non-binding and instead set down aims for achievement. Since that time it can be argued that most, if not all, its provisions have transformed into rules of hard law. Another example might be the Charter of Economic Rights and Duties of States 1974 which has already been mentioned. This has undoubtedly had an effect on the behaviour of states but is certainly a long way from hardening into a binding rule of law. It is clear that within soft law there will be varying degrees of hardness. Other examples of soft law would include the Final Act of the Conference on Security and Co-operation in Europe 1975 (the Helsinki Declaration) which was expressed to be non-binding, the OECD Guidelines for Multinational Enterprises and the Gleneagles Agreement on the Sporting Boycott of South Africa. All undoubtedly have some legal effects without being creating legally binding obligations.

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3.13 Jus cogens or peremptory norms


Having discussed the distinction between hard and soft law it seems appropriate to turn to consideration of a duality of levels within hard law itself. Many municipal systems distinguish between jus cogens89 (rules or principles of public policy which cannot be derogated from by legal subjects, often referred to as ordre public) and jus dispositivum (norms which can be replaced by subjects in their private dealings). The idea that there are certain non-derogable fundamental norms in international law is not new. Even before the First World War many writers had expressed the view that treaties which contravened certain fundamental norms would be void. The doctrine of international jus cogens was heavily influenced by natural law theories. Unlike the positivists who argued that sovereign states enjoyed an almost complete freedom of contract, natural lawyers argued that states were not completely free in their treaty-making powers. They argued that there were certain fundamental principles underpinning the international community which all states were obliged to respect. In preparing the draft articles on the Law of Treaties the ILC gave considerable thought to the doctrine of jus cogens. The ILC supported the idea that treaties conflicting with peremptory norms of international law would be void but it proposed no clear criteria by which such norms could be identified. An attempt at definition was made at the Vienna Conference and the result was seen in Article 53 of the Vienna Convention on the Law of Treaties 1969 which provides:
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 general international law is a norm accepted and recognised by the international community of states as a whole from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character.

The identical provision was included in the Vienna Convention on the Law of Treaties Between States and International Organisations or Between International Organisations 1986. The doctrine of jus cogens is further reflected in the Draft Articles on State Responsibility prepared by the ILC which propose the notion of an international crime resulting from the breach by a state of an international obligation essential for the protection of fundamental interests of the international community.90 Support for the existence of peremptory norms is also to be found in a number of judgments of the ICJ, notably in the Nicaragua case (1986) where the Court identified the prohibition on the use of force as being a conspicuous example of a rule of international law having the character of jus cogens. Other activities that have been identified as contravening jus cogens include slave trading, piracy and genocide. Although it seems to be undisputed that international law recognises the concept of jus cogens, what is less clear is the way in which rules of jus cogens
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89 See also the more detailed discussion in Chapter 4. 90 (1976 II) YBILC 73. 100

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may be created. Since jus cogens has the status of a higher law binding all states it should not be possible for rules of jus cogens to be created by a simple majority of states and then imposed on a political or ideological minority. During discussions at the Vienna Conference on the Law of Treaties a number of states stressed the need for universal acceptance of norms of jus cogens while the Austrian delegate argued that rules could only be regarded as having the status of jus cogens if there was the substantial concurrence of states belonging to all principal legal systems91 and the US representative argued that such a norm would require, as a minimum, the absence of dissent by any important element of the international community.92 It therefore seems that the creation of a rule of jus cogens must, at the very least, meet the requirements of the establishment of a rule of customary law. As the Russian jurist, Gennady Danilenko, has written:
As higher law jus cogens clearly requires the application of higher standards for the ascertainment of the existence of community consensus as regards both the content and the peremptory character of the relevant rules. Only such an approach may ensure the required universality in the formation and subsequent implementation of rules designed to reflect and to protect the fundamental interests of the World Community.93

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91 UNCLOT I at p 388. 92 UNCLOT II at p 102. 93 International Jus Cogens: Issues of Law-Making (1991) 2 EJIL at p 65. 101

CHAPTER 4 THE LAW OF TREATIES


The significance of treaties as a source of international law has already been discussed in Chapter 3. This chapter is concerned with the mechanics of treaties: how they are concluded, interpreted, observed, and terminated.

4.1

Introduction

Prior to 1969, the law of treaties consisted of customary rules of international law. Many of the rules relating to treaties between states were codified in the Vienna Convention on the Law of Treaties 1969 (VCT 1969) which was concluded on 23 May 1969 and entered into force on 27 January 1980, following receipt of the 35th ratification. The VCT 1969 is an early and important example of the codifying work of the International Law Commission. Additionally of interest is the Vienna Convention on Succession of States in Respect of Treaties 1978 (VCS 1978), concluded on 23 August 1978 and not yet in force, and the Vienna Convention on the Law of Treaties between States and International Organisations or between International Organisations 1986 (VCIO 1986), concluded on 21 March 1986, also not yet in force. The VCIO 1986 repeats most of the substantive rules contained in VCT 1969 and applies to those treaties which involve international organisations. In this chapter reference will generally only be made to the relevant provisions of the VCT 1969. The VCT 1969 is not retroactive and only applies to treaties concluded after 27 January 1980. The rules of customary law still have an important role and it is important to decide the extent to which the Vienna Conventions codify existing customary law and the extent to which they introduce new rules of law. When studying the law of treaties it is therefore important to be clear as to which rules are contained in the various Vienna Conventions and which rules are to be found in international custom. At its first session in 1949, the International Law Commission included the law of treaties in its provisional list of topics selected for codification.1 The ILC then completed a special report on reservations to treaties in 1951,2 and participation in general multilateral treaties.3, 4

VIENNA CONVENTION ON THE LAW OF TREATIES5


The States Parties to the present Convention, Considering the fundamental role of treaties in the history of international relations,
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1 2 3 4 5

(1949) YBILC at p 281. (1951) YBILC ii at pp 125131. (1963) YBILC ii at pp 217223. See further on multilateral treaties UN Doc A/35/312. For ILC Draft Articles and commentary, see (1966) YBILC ii at pp 173274. For VCIO Draft Articles see (1982) YBILC ii pt 2 at pp 977. UKTS No 58 (1980), Cmnd 7964; 1155 UNTS 331; (1969) 81 ILM 679; (1969) 63 AJIL 875. The Convention entered into force on 27 January 1980. 103

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Recognising the ever-increasing importance of treaties as a source of international law and as a means of developing peaceful co-operation among nations, whatever their constitutional and social systems, Noting that the principles of free consent and of good faith and the pacta sunt servanda rule are universally recognised, Affirming that disputes concerning treaties, like other international disputes, should be settled by peaceful means and in conformity with the principles of justice and international law, Recalling the determination of the peoples of the United Nations to establish conditions under which justice and respect for the obligations arising from treaties can be maintained, Having in mind the principles of international law embodied in the Charter of the United Nations, such as the principles of the equal rights and self-determination of peoples, of the sovereign equality and independence of all states, of noninterference in the domestic affairs of states, of the prohibition of the threat or use of force and of universal respect for, and observance of, human rights and fundamental freedoms for all, Believing that the codification and progressive development of the law of treaties achieved in the present Convention will promote the purposes of the United Nations set forth in the Charter, namely, the maintenance of international peace and security, the development of friendly relations and the achievement of cooperation among nations, Affirming that the rules of customary international law will continue to govern questions not regulated by the provisions of the present Convention, Have agreed as follows: PART I INTRODUCTION Article 1 Scope of the present Convention The present Convention applies to treaties between states Article 2 Use of terms 1 For the purposes of the present Convention: (a) treaty means an international agreement concluded between states in written form and governed by international law, whether embodied in a single instrument or in two or more related instruments and whatever its particular designation;6 (b) ratification, acceptance, approval and accession mean in each case the international act so named whereby a state establishes on the international plane its consent to be bound by a treaty;
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Article 2(1) VCIO 1986 provides: For the purposes of the present Convention: (a) treaty means an international agreement governed by international law and concluded in written form: (i) between one or more states and one or more international organisations; or (ii) between international organisations, whether that agreement is embodied in a single instrument or in two or more related instruments and whatever its particular designation. 104

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full powers means a document emanating from the competent authority of a state designating a person or persons to represent the state for negotiating, adopting or authenticating the text of a treaty, for expressing the consent of the state to be bound by a treaty, or for accomplishing any other act with respect to a treaty; (d) reservation means a unilateral statement, however phrased or named, made by a state, when signing, ratifying, accepting, approving or acceding to a treaty, whereby it purports to exclude or to modify the legal effect of certain provisions of the treaty in their application to that state; (e) negotiating state means a state which took part in the drawing up and adoption of the text of the treaty; (f) Contracting State means a state which has consented to be bound by the treaty, whether or not the treaty has entered into force; (g) party means a state which has consented to be bound by the treaty and for which the treaty is in force; (h) third state means a state not party to the treaty; (i) international organisation means an intergovernmental organisation. 2 The provisions in paragraph 1 regarding the use of terms in the present Convention are without prejudice to the use of those terms, or to the meanings which may be given to them, in the internal law of any state. Article 3 International agreements not within the scope of the present Convention The fact that the present Convention does not apply to international agreements concluded between states and other subjects of international law, or between such other subjects of international law, or to international agreements not in written form, shall not affect: (a) the legal force of such agreements; (b) the application to them of any of the rules set forth in the present Convention to which they would be subject under international law independently of the Convention; (c) the application of the Convention to the relations of states as between themselves under international agreements to which other subjects of international law are also parties. (c)

Agreements not in writing may nonetheless be legally binding although not under the provisions of VCT see US v Gonzales (1986) 80 AJIL p 653, where a telephone conversation created an arrangement with another government.
Article 4 Non-retroactivity of the present Convention Without prejudice to the application of any rules set forth in the present Convention to which treaties would be subject under international law independently of the Convention, the Convention applies only to treaties which are concluded by states after entry into force of the present Convention with regard to such states. Article 5 Treaties constituting international organisations and treaties adopted within an international organisation The present Convention applies to any treaty which is the constituent instrument of an international organisation and to any treaty adopted within an international organisation without prejudice to any relevant rules of the organisation.
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PART II CONCLUSION AND ENTRY INTO FORCE OF TREATIES SECTION 1 CONCLUSION OF TREATIES Article 6 Capacity of states to conclude treaties Every state possesses capacity to conclude treaties. Article 7 Full powers 1 A person is considered as representing a state for the purpose of adopting or authenticating the text of a treaty or for the purpose of expressing the consent of the state to be bound by a treaty if: (a) he produces the appropriate full powers; or (b) it appears from the practice of the states concerned or from other circumstances that their intention was to consider that person as representing the state for such purposes and to dispense with full powers. 2 In virtue of their functions and without having to produce full powers, the following are considered as representing their state: (a) Heads of state, Heads of Government and Ministers for Foreign Affairs, for the purpose of performing all acts relating to the conclusion of a treaty; (b) heads of diplomatic missions, for the purpose of adopting the text of a treaty between the accrediting state and the state to which they are accredited; (c) representatives accredited by states to an international conference or to an international organisation or one of its organs, for the purpose of adopting the text of a treaty in that conference, organisation or organ. Article 8 Subsequent confirmation of an act performed without authorisation An act relating to the conclusion of a treaty performed by a person who cannot be considered under Article 7 as authorised to represent a state for that purpose is without legal effect unless afterwards confirmed by that state. Article 9 Adoption of the text 1 The adoption of the text of a treaty takes place by the consent of all the states participating in its drawing up except as provided in paragraph 2. 2 The adoption of the text of a treaty at an international conference takes place by the vote of two-thirds of the states present and voting, unless by the same majority they shall decide to apply a different rule. Article 10 Authentication of the text The text of a treaty is established as authentic and definitive: (a) by such procedure as may be provided for in the text or agreed upon by the states participating in its drawing up; or (b) failing such procedure, by the signature, signature ad referendum or initialling by the representatives of those states of the text of the treaty or of the Final Act of a conference incorporating the text. Article 11 Means of expressing consent to be bound by a treaty The consent of a state to be bound by a treaty may be expressed by signature, exchange of instruments constituting a treaty, ratification, acceptance, approval or accession, or by any other means if so agreed.

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Article 12 Consent to be bound by a treaty expressed by signature 1 The consent of a state to be bound by a treaty is expressed by the signature of its representatives when: (a) the treaty provides that signature shall have that effect; (b) it is otherwise established that the negotiating states were agreed that signature should have that effect; or (c) the intention of the state to give that effect to the signature appears from the full powers of its representative or was expressed during the negotiation. 2 For the purposes of para 1: (a) the initialing of a text constitutes a signature of the treaty when it is established that the negotiating states so agreed; (b) the signature ad referendum of a treaty by a representative, if confirmed by his state, constitutes a full signature of the treaty. Article 13 Consent to be bound by a treaty expressed by an exchange of instruments constituting a treaty The consent of states to be bound by a treaty constituted by instruments exchanged between them is expressed by that exchange when: (a) the instruments provide that their exchange shall have that effect; or (b) it is otherwise established that those states were agreed that the exchange of instruments should have that effect. Article 14 Consent to be bound by a treaty expressed by ratification, acceptance or approval 1 The consent of a state to be bound by a treaty is expressed by ratification when: (a) the treaty provides for such consent to be expressed by means of ratification; (b) it is otherwise established that the negotiating states were agreed that ratification should be required; (c) the representatives of the state has signed the treaty subject to ratification; or (d) the intention of the state to sign the treaty subject to ratification appears from the full powers of its representative or was expressed during the negotiation. 2 The consent of a state to be bound by a treaty is expressed by acceptance or approval under conditions similar to those which apply to ratification. Article 15 Consent to be bound by a treaty expressed by accession The consent of a state to be bound by a treaty is expressed by accession when: (a) the treaty provides that such consent may be expressed by that state by means of accession: (b) it is otherwise established that the negotiating states were agreed that such consent may be expressed by that state by means of accession; or (c) all the parties have subsequently agreed that such consent may be expressed by that state by means of accession.

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Article 16 Exchange or deposit of instruments of ratification, acceptance, approval or accession Unless the treaty otherwise provides, instruments of ratification, acceptance, approval or accession establish the consent of a state to be bound by a treaty upon: (a) their exchange between the Contracting States; (b) their deposit with the depositary; or (c) their notification to the Contracting States or to the depositary, if so agreed. Article 17 Consent to be bound by part of a treaty and choice of differing provisions 1 Without prejudice to Articles 19 to 23, the consent of a state to be bound by part of a treaty is effective only if the treaty so permits or the other Contracting States so agree. 2 The consent of a state to be bound by a treaty which permits a choice between differing provisions is effective only if it is made clear to which of the provisions the consent relates. Article 18 Obligation not to defeat the object and purpose of a treaty prior to its entry into force A state is obliged to refrain from acts which would defeat the object and purpose of a treaty when: (a) it has signed the treaty or has exchanged instruments constituting the treaty subject to ratification, acceptance or approval, until it shall have made its intention clear not to become a party to the treaty; or (b) it has expressed its consent to be bound by the treaty, pending the entry into force of the treaty and provided that such entry into force is not unduly delayed. SECTION 2 RESERVATIONS Article 19 Formulation of reservations A state may, when signing, ratifying, accepting, approving or acceding to a treaty, 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; or (c) in cases not falling under sub-paras (a) and (b), the reservation is incompatible with the object and purpose of the treaty. Article 20 Acceptance of and objection to reservations 1 A reservation expressly authorised by a treaty does not require any subsequent acceptance by the other Contracting States unless the treaty so provides. 2 When it appears from the limited number of the negotiating states and the object and purpose of a treaty that the application of the treaty in its entirety between all the parties is an essential condition of the consent of each one to be bound by the treaty, a reservation requires acceptance by all the parties.

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When a treaty is a constituent instrument of an international organisation and unless it otherwise provides, a reservation requires the acceptance of the competent organ of that organisation. 4 In cases not falling under the preceding paragraphs and unless the treaty otherwise provides: (a) acceptance by another Contracting State of a reservation constitutes the reserving state a party to the treaty in relation to that other state if or when the treaty is in force for those states; (b) an objection by another Contracting State to a reservation does not preclude the entry into force of the treaty as between the objecting and reserving states unless a contrary intention is definitely expressed by the objecting state; (c) an act expressing a states 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. 5 For the purposes of paras 2 and 4 and unless the treaty otherwise provides, a reservation is considered to have been accepted by a state if it shall have raised no objection to the reservation by the end of a period of 12 months after it was notified of the reservation or by the date on which it expressed its consent to be bound by the treaty, whichever is later. Article 21 Legal effects of reservations and of objections to reservations 1 A reservation established with regard to another party in accordance with Articles 19, 20 and 23: (a) modifies for the reserving state in its relations with that other party the provisions of the treaty to which the reservation relates to the extent of the reservation; and (b) modifies those provisions to the same extent for that other party in its relations with the reserving state. 2 The reservation does not modify the provisions of the treaty for the other parties to the treaty inter se. 3 When a state objecting to a reservation has not opposed the entry into force of the treaty between itself and the reserving state, the provisions to which the reservation relates do not apply as between the two states to the extent of the reservation. Article 22 Withdrawal of reservations and of objections to reservations 1 Unless the treaty otherwise provides, a reservation may be withdrawn at any time and the consent of a state which has accepted the reservation is not required for its withdrawal. 2 Unless the treaty otherwise provides, or it is otherwise agreed: (a) the withdrawal of a reservation becomes operative in relation to another Contracting State only when notice of it has been received by that state; (b) the withdrawal of an objection to a reservation becomes operative only when notice of it has been received by the state which formulated the reservation. Article 23 Procedure regarding reservations 1 A reservation, an express acceptance of a reservation and an objection to a reservation must be formulated in writing and communicated to the Contracting States and other states entitled to become parties to the treaty.
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2 If formulated when signing the treaty subject to ratification, acceptance or approval, a reservation must be formally confirmed by the reserving state when expressing its consent to be bound by the treaty. In such a case the reservation shall be considered as having been made on the date of its confirmation. An express acceptance of, or an objection to, a reservation made previously to confirmation of the reservation does not itself require confirmation. The withdrawal of a reservation or of an objection to a reservation must be formulated in writing.

3 4

SECTION 3 ENTRY INTO FORCE AND PROVISIONAL APPLICATION OF TREATIES Article 24 Entry into force 1 A treaty enters into force in such manner and upon such date as it may provide or as the negotiating states may agree. 2 Failing any such provision or agreement, a treaty enters into force as soon as consent to be bound by the treaty has been established for all the negotiating states. 3 When the consent of a state to be bound by a treaty is established on a date after the treaty has come into force, the treaty enters into force for that state on that date, unless the treaty otherwise provides. 4 The provisions of a treaty regulating the authentication of its text, the establishment of the consent of states to be bound by the treaty, the manner or date of its entry into force, reservations, the functions of the depositary and other matters arising necessarily before the entry into force of the treaty apply from the time of the adoption of its text. Article 25 Provisions application 1 A treaty or a part of a treaty is applied provisionally pending its entry into force if: (a) the treaty itself so provides; or (b) the negotiating states have in some other manner so agreed. 2 Unless the treaty otherwise provides or the negotiating states have otherwise agreed, the provisional application of a treaty or a part of a treaty with respect to a state shall be terminated if that state notifies the other states between which the treaty is being applied provisionally of its intention not to become a party to the treaty. PART III OBSERVANCE, APPLICATION AND INTERPRETATION OF TREATIES SECTION 1 OBSERVANCE OF TREATIES Article 26 Pacta sunt servanda Every treaty is binding upon the parties to it and must be performed by them in good faith. Article 27 Internal law and observance of treaties A party may not invoke the provisions of its internal law as justification for its failure to perform a treaty. This rule is without prejudice to Article 46.

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SECTION 2 APPLICATION OF TREATIES Article 28 Non-retroactivity of treaties Unless a different intention appears from the treaty or is otherwise established, its provisions do not bind a party in relation to any act or fact which took place or any situation which ceased to exist before the date of the entry into force of the treaty with respect to that party. Article 29 Territorial scope of treaties Unless a different intention appears from the treaty or is otherwise established, a treaty is binding upon each party in respect of its entire territory. Article 30 Application of successive treaties relating to the same subjectmatter 1 Subject to Article 103 of the Charter of the United Nations, the rights and obligations of states parties to successive treaties relating to the same subjectmatter shall be determined in accordance with the following paragraphs. 2 When a treaty specifies that it is subject to, or that it is not to be considered as incompatible with, an earlier or later treaty, the provisions of that other treaty prevail. 3 When all the parties to the earlier treaty are parties also to the later treaty but the earlier treaty is not terminated or suspended in operation under Article 59, the earlier treaty applies only to the extent that its provisions are compatible with those of the later treaty. 4 When the parties to the later treaty do not include all the parties to the earlier one: (a) as between state parties to both treaties the same rule applies as in para 3; (b) as between a state party to both treaties and a state party to only one of the treaties, the treaty to which both states are parties governs their mutual rights and obligations. 5 Paragraph 4 is without prejudice to Article 41, or to any question of the termination or suspension of the operation of a treaty under Article 60 or to any question of responsibility which may arise for a state from the conclusions or application of a treaty, the provisions of which are incompatible with its obligations towards another state under another treaty. SECTION 3 INTERPRETATION OF TREATIES Article 31 General rule of interpretation 1 A treaty shall be considered in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose. 2 The context for the purpose of the interpretation of a treaty shall comprise, in addition to the text, including its preamble and annexes: (a) any agreement relating to the treaty which was made between all the parties in connection with the conclusion of the treaty; (b) any instrument which was made by one or more parties in connection with the conclusion of the treaty and accepted by the other parties as an instrument related to the treaty.
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3 There shall be taken into account, together with the context: (a) any subsequent agreement between the parties regarding the interpretation of the treaty or the application of its provisions; (b) any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation; (c) any relevant rules of international law applicable in the relations between the parties. 4 A special meaning shall be given to a term if it is established that the parties so intended. Article 32 Supplementary means of interpretation Recourse may be had to supplementary means of interpretation, including the preparatory work of the treaty and the circumstances of its conclusions, in order to confirm the meaning resulting form the application of Article 31, or to determine the meaning when the interpretation according to Article 31: (a) leaves the meaning ambiguous or obscure; or (b) leads to a result which is manifestly absurd or unreasonable. Article 33 Interpretation of treaties authenticated in two or more languages 1 When a treaty has been authenticated in two or more languages, the text is equally authoritative in each language, unless the treaty provides or the parties agree that, in case of divergence, a particular text shall prevail. 2 A version of the treaty in a language other than one of those in which the text was authenticated shall be considered an authentic text only if the treaty so provides or the parties so agree. 3 The terms of the treaty are presumed to have the same meaning in each authentic text. 4 Except where a particular text prevails in accordance with para 1, when a comparison of the authentic text discloses a difference of meaning which the application of Articles 31 and 32 does not remove, the meaning which best reconciles the texts, having regard to the object and purpose of the treaty, shall be adopted. SECTION 4 TREATIES AND THIRD STATES Article 34 General rule regarding third states A treaty does not create either obligations or rights for a third state without its consent. Article 35 Treaties providing for obligations for third states An obligation arises for a third state from a provision of a treaty if the parties to the treaty intend the provision to be the mans of establishing the obligation and third state expressly accepts that obligation in writing. Article 36 Treaties providing for rights for third states 1 A right arises for a third state from a provision of a treaty if the parties to the treaty intend the provision to accord that right either to the third state, or to a group of states to which it belongs, or to all states, and the third state assents thereto. Its assent shall be presumed so long as the contrary is not indicated, unless the treaty otherwise provides.

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A state exercising a right in accordance with paragraph 1 shall comply with the conditions for its exercise provided for in the treaty or established in conformity with the treaty. Article 37 Revocation or modification of obligations or rights of third states 1 When an obligation has arisen for a third state in conformity with Article 35, the obligation may be revoked or modified only with the consent of the parties to the treaty and of the third state, unless it is established that they had otherwise agreed. 2 When a right has arisen for a third state in conformity with Article 36, the right may not be revoked or modified by the parties if it is established that the right was intended not to be revocable or subject to modification without the consent of the third state. Article 38 Rules in a treaty becoming binding on third states through international custom Nothing in Articles 34 to 37 precludes a rule set forth in a treaty from becoming binding upon a third state as a customary rule of international law, recognised as such. PART IV AMENDMENT AND MODIFICATION OF TREATIES Article 39 General rules regarding the amendment of treaties A treaty may be amended by agreement between the parties. The rules laid down in Part II apply to such an agreement except in so far as the treaty may otherwise provide. Article 40 Amendment of multilateral treaties 1 Unless the treaty otherwise provides, the amendment of multilateral treaties shall be governed by the following paragraphs. 2 Any proposal to amend a multilateral treaty as between all the parties must be notified to all the Contracting States, each one of which shall have the right to take part in: (a) the decision as to the action to be taken in regard to such proposal; (b) the negotiation and conclusion of any agreement for the amendment of the treaty. 3 Every state entitled to become a party to the treaty shall also be entitled to become a party to the treaty as amended. 4 The amending agreement does not bind any state already a party to the treaty which does not become a party to the amending agreement; Article 30, para 4(b), applies in relation to such state. 5 Any state which becomes a party to the treaty after the entry into force of the amending agreement shall, failing an expression of a different intention by that state: (a) be considered as a party to the treaty as amended; and (b) be considered as a party to the unamended treaty in relation to any party to the treaty not bound by the amending agreement. Article 41 Agreements to modify multilateral treaties between certain of the parties only 1 Two or more of the parties to a multilateral treaty may conclude an agreement to modify the treaty as between themselves alone if: 2

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(a) the possibility of such a modification is provided for by the treaty; or (b) the modification in question is not prohibited by the treaty and: (i) does not affect the enjoyment by the other parties of their rights under the treaty or the performance of their obligations; (ii) does not relate to a provision, derogation from which is incompatible with the effective execution of the object and purpose of the treaty as a whole. Unless in a case falling under para 1(a) the treaty otherwise provides, the parties in question shall notify the other parties of their intention to conclude the agreement and of the modification to the treaty for which it provides.

PART V INVALIDITY, TERMINATION AND SUSPENSION OF THE OPERATION OF TREATIES SECTION 1 GENERAL PROVISIONS Article 42 Validity and continuance in force of treaties 1 The validity of a treaty or of the consent of a state to be bound by a treaty may be impeached only through the application of the present Convention. 2 The termination of a treaty, its denunciation or the withdrawal of a party, may take place only as a result of the application of the provisions of the treaty or of the present Convention. The same rule applies to suspension of the operation of a treaty. Article 43 Obligations imposed by international law independently of a treaty The invalidity, termination or denunciation of a treaty, the withdrawal of a party from it, or the suspension of its operation, as a result of the application of the present Convention or of the provisions of the treaty, shall not in any way impair the duty of any state to fulfil any obligation embodied in the treaty to which it would be subject under international law independently of the treaty. Article 44 Separability of treaty provisions 1 A right of a party, provided for in a treaty or arising under Article 56, to denounce, withdraw from or suspend the operation of the treaty may be exercised only with respect to the whole treaty unless the treaty otherwise provides or the parties otherwise agree. 2 A ground for invalidating, terminating, withdrawing from or suspending the operation of a treaty recognised in the present Convention may be invoked only with respect to the whole treaty except as provided in the following paragraphs or in Article 60. 3 If the ground relates solely to particular clauses, it may be invoked only with respect those clauses where: (a) the said clauses are separable from the remainder of the treaty with regard to their application; (b) it appears from the treaty or is otherwise established that acceptance of those clauses was not an essential basis of the consent of the other party or parties to be bound by the treaty as a whole; and (c) continued performance of the remainder of the treaty would not be unjust.

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4 In cases falling under Articles 49 and 50 the state entitled to invoke the fraud or corruption may do so with respect either to the whole treaty or, subject to para 3, to the particular clauses alone. 5 In cases falling under Articles 51, 52 and 53, no separation of the provisions of the treaty is permitted. Article 45 Loss of a right to invoke a ground for invalidating, terminating, withdrawing from or suspending the operation of a treaty A state may no longer invoke a ground for invalidating, terminating, withdrawing from or suspending the operation of a treaty under Articles 46 to 50 or Articles 60 and 62 if, after becoming aware of the facts: (a) it shall have expressly agreed that the treaty is valid or remains in force or continues in operation, as the case may be; or (b) it must by reason of its conduct be considered as having acquiesced in the validity of the treaty or in its maintenance in force or in operation, as the case may be. SECTION 2 INVALIDITY OF TREATIES Article 46 Provisions of internal 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 of 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 matter in accordance with normal practice and in good faith. Article 47 Specific restrictions on authority to express the consent of a state If the authority of a representative to express the consent of a state to be bound by a particular treaty has been made subject to a specific restriction, his omission to observe that restriction may not be invoked as invalidating the consent expressed by him unless the restriction was notified to the other negotiating states prior to his expressing such consent. Article 48 Error 1 A state may invoke an error in a treaty as invalidating its consent to be bound by the treaty if the error relates to a fact or situation which was assumed by that state to exist at the time when the treaty was concluded and formed an essential basis of its consent to be bound by the treaty. 2 Paragraph 1 shall not apply if the state in question contributed by its own conduct to the error or if the circumstances were such as to put that state on notice of a possible error. 3 An error relating only to the wording of the text of a treaty does not affect its validity; Article 79 then applies. Article 49 Fraud If a state has been induced to conclude a treaty by the fraudulent conduct of another negotiating state, the state may invoke the fraud as invalidating its consent to be bound by the treaty.
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Article 50 Corruption of a representative of a state If the expression of a states consent to be bound by a treaty has been procured through the corruption of its representative directly or indirectly by another negotiating state, the state may invoke such corruption as invalidating its consent to be bound by the treaty. Article 51 Coercion of a representative of a state The expression of a states consent to be bound by a treaty which has been procured by the coercion of its representative through acts or threats directed against him shall be without any legal effect. Article 52 Coercion of a state by the threat or use of force A treaty is void if its conclusion has been procured by the threat or use of force in violation of the principles of international law embodied in the Charter of the United Nations. Article 53 Treaties conflicting with a peremptory norm of general international law (jus cogens) A treaty is void if, at the time of its conclusions, it conflicts with a peremptory norm of general international law. For the purposes of the present Convention, a peremptory norm of general international law is a norm accepted and recognised by the international 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 international law having the same character. SECTION 3 TERMINATION AND SUSPENSION OF THE OPERATION OF TREATIES Article 54 Termination of or withdrawal from a treaty under its provisions or by consent of the parties The termination of a treaty or the withdrawal of a party may take place: (a) in conformity with the provisions of the treaty; or (b) at any time by consent of all the parties after consultation with the other Contracting States. Article 55 Reduction of the parties to a multilateral treaty below the number necessary for its entry into force Unless the treaty otherwise provides, a multilateral treaty does not terminate by reason only of the fact that the number of the parties falls below the number necessary for its entry into force. Article 56 Denunciation of or withdrawal from a treaty containing no provision regarding termination, denunciation or withdrawal 1 A treaty which contains no provision regarding its termination and which does not provide for denunciation or withdrawal is not subject to denunciation or withdrawal unless: (a) it is established that the parties intended to admit the possibility of denunciation or withdrawal; or (b) a right of denunciation or withdrawal may be implied by the nature of the treaty. 2 A party shall give not less than 12 months notice of its intention to denounce or withdraw from a treaty under para 1.

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Article 57 Suspension of the operation of a treaty under its provisions or by consent of the parties The operation of a treaty in regard to all the parties or to a particular party may be suspended: (a) in conformity with the provisions of the treaty; or (b) at any time by consent of all the parties after consultation with the other Contracting States. Article 58 Suspension of the operation of a multilateral treaty by agreement between certain of the parties only 1 Two or more parties to a multilateral treaty may conclude an agreement to suspend the operation of provisions of the treaty, temporarily and as between themselves alone, if: (a) the possibility of such suspension is provided for by the treaty; or (b) the suspension in question is not prohibited by the treaty and: (i) does not affect the enjoyment by the other parties of their rights under the treaty or the performance of their obligations; (ii) is not incompatible with the object and purpose of the treaty. 2 Unless in a case falling under para 1(a) the treaty otherwise provides, the parties in question shall notify the other parties of their intention to conclude the agreement and of those provisions of the treaty the operation of which they intend to suspend. Article 59 Termination or suspension of the operation of a treaty implied by conclusion of a later treaty 1 A treaty shall be considered as terminated if all the parties to it conclude a later treaty relating to the same subject-matter and: (a) it appears from the later treaty or is otherwise established that the parties intended that the matter should be governed by that treaty; or (b) the provisions of the later treaty are so far incompatible with those of the earlier one that the two treaties are not capable of being applied at the same time. 2 The earlier treaty shall be considered as only suspended in operation if it appears from the later treaty or is otherwise established that such was the intention of the parties. Article 60 Termination or suspension of the operation of a treaty as a consequence of its breach. 1 A material breach of a bilateral treaty by one of the parties entitles the other to invoke the breach as a ground for terminating or suspending its operation in whole or in part. 2 A material breach of a multilateral treaty by one of the parties entitles: (a) the other parties by unanimous agreement to suspend the operation of the treaty in whole or in part or to terminate it either: (i) in the relations between themselves and the defaulting state; or (ii) as between all the parties; (b) a party specially affected by the breach, to invoke it as a ground for suspending the operation of the treaty in whole or in part in the relations between itself and the defaulting state;

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any party other than the defaulting state to invoke the breach as a ground for suspending the operation of the treaty in whole or in part with respect to itself if the treaty is of such a character that a material breach of its provisions by one party radically changes the position of every party with respect to the further performance of its obligation under the treaty. 3 A material breach of a treaty, for the purposes of this article, consists in: (a) a repudiation of the treaty not sanctioned by the present Convention; or (b) the violation of a provision essential to the accomplishment of the object and purpose of the treaty. 4 The foregoing paragraphs are without prejudice to any provision in the treaty applicable in the event of a breach. 5 Paragraphs 1 to 3 do not apply to provisions relating to the protection of the human person contained in treaties of a humanitarian character, in particular to provisions prohibiting any form of reprisals against persons protected by such treaties. Article 61 Supervening impossibility of performance 1 A party may invoke the impossibility of performing as treaty as a ground for terminating or withdrawing from it if the impossibility results from the permanent disappearance or destruction of an object indispensable for the execution of the treaty. If the impossibility it temporary, it may be invoked only as a ground for suspending the operation of the treaty. 2 Impossibility of performance may not be invoked by a party as a ground for terminating, withdrawing from or suspending the operation of a treaty if the impossibility is the result of a breach by that party either of an obligation under the treaty or of any other international obligation owed to any other party to the treaty. Article 62 Fundamental change of circumstances 1 A fundamental change of circumstances which has occurred with regard to those existing at the time of the conclusion of a treaty, and which was not foreseen by the parties, may not be invoked as a ground for terminating or withdrawing from the treaty unless: (a) the existence of those circumstances constituted an essential basis of the consent of the parties to be bound by the treaty; and (b) the effect of the change is radically to transform the extent of obligations still to be performed under the treaty. 2 A fundamental change of circumstances may not be invoked as a ground for terminating or withdrawing from a treaty: (a) if the treaty establishes a boundary; or (b) if the fundamental change is the result of a breach by the party invoking it either of an obligation under the treaty or of any other international obligation owed to any other party to the treaty. 3 If, under the foregoing paragraphs, a party may invoke a fundamental change of circumstances as a ground for terminating or withdrawing from a treaty it may also invoke the change as a ground for suspending the operation of the treaty. (c)

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Article 63 Severance of diplomatic or consular relations The severance of diplomatic or consular relations between the parties to a treaty does not affect the legal relations established between them by the treaty except in so far as the existence of diplomatic or consular relations is indispensable for the application of the treaty. Article 64 Emergence of a new peremptory norm of general international law (jus cogens) If a new peremptory norm of general international law emerges, any existing treaty which is in conflict with that norm becomes void and terminates. SECTION 4 PROCEDURE Article 65 Procedure to be followed with respect to invalidity, termination, withdrawal from or suspension of the operation of a treaty 1 A party which, under the provisions of the present Convention, invokes either a defect in its consent to be bound by a treaty or a ground for impeaching the validity of a treaty, terminating it, withdrawing from it or suspending its operation, must notify the other parties of its claim. The notification shall indicate the measures proposed to be taken with respect to the treaty and the reasons therefor. 2 If, after the expiry of a period which, except in cases of special urgency, shall not be less than three months after the receipt of the notification, no party has raised any objection, the party making the notification may carry out in the manner provided in Article 67 the measure which it has proposed. 3 If, however, objection has been raised by any other party, the parties shall seek a solution through the means indicated in Article 33 of the Charter of the United Nations. 4 Nothing in the foregoing paragraphs shall affect the rights or obligations of the parties under any provisions in force binding the parties with regard to the settlement of disputes. 5 Without prejudice to Article 45, the fact that a state has not previously made the notification prescribed in para 1 shall not prevent it from making such notification in answer to another party claiming performance of the treaty or alleging its violation. Article 66 Procedures for judicial settlement, arbitration and conciliation If, under para 3 of Article 65, no solution has been reached within a period of twelve months following the date on which the objection was raised, the following procedures shall be followed: (a) any one of the parties to a dispute concerning the application or the interpretation of Articles 53 to 64 may, by a written application, submit it to the International Court of Justice for a decision unless the parties by common consent agree to submit the dispute to arbitration; (b) any one of the parties to a dispute concerning the application or the interpretation of any of the other articles in Part V of the present Convention may set in motion the procedure specified in the Annex to the Convention by submitting a request to that effect to the Secretary General of the United Nations.

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Article 67 Instruments for declaring invalid, terminating, withdrawing from or suspending the operation of a treaty 1 The notification provided for under Article 65, para 1 must be made in writing. 2 Any act declaring invalid, terminating, withdrawing from or suspending the operation of a treaty pursuant to the provisions of the treaty or of para 2 or 3 of Article 65 shall be carried out through an instrument communicated to the other parties. If the instrument is not signed by the Head of State, Head of Government or Minister for Foreign Affairs, the representative of the state communicating it may be called upon to produce full powers. Article 68 Revocation of notifications and instruments provided for in Articles 65 and 67 A notification or instrument provided for in Articles 65 or 67 may be revoked at any time before it takes effect. SECTION 5 CONSEQUENCES OF THE INVALIDITY, TERMINATION OR SUSPENSION OF THE OPERATION OF A TREATY Article 69 Consequences of the invalidity of a treaty 1 A treaty the invalidity of which is established under the present Convention is void. The provisions of a void treaty have no legal force. 2 If acts have nevertheless been performed in reliance on such a treaty: (a) 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; (b) acts performed in good faith before the invalidity was invoked are not rendered unlawful by reason only of the invalidity of the treaty. 3 In cases falling under Articles 49, 50, 51 or 52, para 2 does not apply with respect to the party to which the fraud, the act of corruption or the coercion is imputable. 4 In the case of the invalidity of a particular states consent to be bound by a multilateral treaty, the foregoing rules apply in the relations between that state and the parties to the treaty. Article 70 Consequences of the termination of a treaty 1 Unless the treaty otherwise provides or the parties otherwise agree, the termination of a treaty under its provisions or in accordance with the present Convention: (a) releases the parties from any obligation further to perform the treaty; (b) does not affect any right, obligation or legal situation of the parties created through the execution of the treaty prior to its termination. 2 If a state denounces or withdraws from a multilateral treaty, paragraph 1 applies in the relations between that state and each of the other parties to the treaty from the date when such denunciation or withdrawal takes effect. Article 71 Consequences of the invalidity of a treaty which conflicts with a peremptory norm of general international law 1 In the case of a treaty which is void under Article 53 the parties shall:

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(a) eliminate as far as possible the consequences of any act performed in reliance on any provision which conflicts with the peremptory norm of general international law; and (b) bring their mutual relations into conformity with the peremptory norm of general international law. 2 In the case of a treaty which becomes void and terminates under Article 64, the termination of the treaty: (a) releases the parties from any obligations further to perform the treaty; (b) does not affect any right, obligation or legal situation of the parties created through the execution of the treaty prior to its termination; provided that those rights, obligations or situations may thereafter be maintained only to the extent that their maintenance is not in itself in conflict with the new peremptory norm of general international law. Article 72 Consequences of the suspension of the operation of a treaty 1 Unless the treaty otherwise provides or the parties otherwise agree, the suspension of the operation of a treaty under its provisions or in accordance with the present Convention: (a) releases the parties between which the operation of the treaty is suspended from the obligation to perform the treaty in their mutual relations during the period of the suspension; (b) does not otherwise affect the legal relations between the parties established by the treaty. 2 During the period of the suspension the parties shall refrain from acts tending to obstruct the resumption of the operation of the treaty. PART VI MISCELLANEOUS PROVISIONS Article 73 Cases of state succession, state responsibility and outbreak of hostilities The provisions of the present Convention shall not prejudice any question that may arise in regard to a treaty from a succession of states or from the international responsibility of a state or from the outbreak of hostilities between states. Article 74 Diplomatic and consular relations and the conclusion of treaties The severance or absence of diplomatic or consular relations between two or more states does not prevent the conclusion of treaties between those states. The conclusion of a treaty does not in itself affect the situation in regard to diplomatic or consular relations. Article 75 Case of an aggressor state The provisions of the present Convention are without prejudice to any obligation in relation to a treaty which may arise for an aggressor state in consequence of measures taken in conformity with the Charter of the United Nations with reference to that states aggression.

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PART VII DEPOSITARIES, NOTIFICATIONS, CORRECTIONS AND REGISTRATION Article 76 Depositaries of treaties 1 The designation of the depositary of a treaty may be made by the negotiating states, either in the treaty itself or in some other manner. The depositary may be one or more states, an international organisation or the chief administrative officer of the organisation. 2 The functions of the depositary of a treaty are international in character and the depositary is under an obligation to act impartially in their performance. In particular, the fact that a treaty has not entered into force between certain of the parties or that a difference has appeared between a state and a depositary with regard to the performance of the latters functions shall not affect that obligation. Article 77 Functions of depositaries 1 The functions of a depositary, unless otherwise provided in the treaty or agreed by the Contracting States, comprise in particular: (a) keeping custody of the original text of the treaty and of any full powers delivered to the depositary; (b) preparing certified copies of the original text and preparing any further text of the treaty in such additional languages as may be required by the treaty and transmitting them to the parties and to the states entitled to become parties to the treaty; (c) receiving any signatures to the treaty and receiving and keeping custody of any instruments, notifications and communications relating to it; (d) examining whether the signature of any instrument, notification or communication relating to the treaty is in due and proper form and, if need be, bringing the matter to the attention of the state in question; (e) informing the parties and the states entitled to become parties to the treaty of acts, notifications and communications relating to the treaty; (f) informing the states entitled to become parties to the treaty when the number of signatures or of instruments of ratification, acceptance, approval or accession required for the entry into force of the treaty has been received or deposited; (g) registering the treaty with the Secretariat of the United Nations; (h) performing the functions specified in other provisions of the present Convention. 2 In the event of any difference appearing between a state and the depositary as to the performance of the latters functions, the depositary shall bring the question to the attention of the signatory states and the Contracting States or, where appropriate, of the competent organ of the international organisation concerned. Article 78 Notifications and communications Except as the treaty or the present Convention otherwise provide, any notification or communication to be made by any state under the present Convention shall: (a) if there is no depositary, be transmitted direct to the states for which it is intended, or if there is a depositary, to the latter;

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(b) be considered as having been made by the state in question only upon its receipt by the state to which it was transmitted or, as the case may be, upon its receipt by the depositary; (c) if transmitted to a depositary, be considered as received by the state for which it was intended only when the latter state has been informed by the depositary in accordance with Article 77, para 1(e). Article 79 Correction of errors in texts or in certified copies of treaties 1 Where, after the authentication of the text of a treaty, the signatory states and the Contracting States are agreed that it contains an error, the error shall, unless they decided upon some other means of correction, be corrected: (a) by having the appropriate correction made in the text and causing the correction to be initialed by duly authorised representatives; (b) by executing or exchanging the instrument or instruments setting out the correction which it has been agreed to make; or (c) by executing a corrected text of the whole treaty by the same procedure as in the case of the original text. 2 Where the treaty is one for which there is a depositary, the latter shall notify the signatory states and the Contracting States of the error and of the proposal to correct it and shall specify an appropriate time limit within which objection to the proposed correction may be raised. If, on the expiry of the time limit: (a) no objection has been raised, the depositary shall make and initial the correction in the text and shall execute a procs-verbal of the rectification of the text and communicate a copy of it to the parties and to the states entitled to become parties to the treaty. (b) an objection has been raised, the depositary shall communicate the objection to the signatory states and to the Contracting States. 3 The rules in paras 1 and 2 apply also where the text has been authenticated in two or more languages and it appears that there is a lack of concordance which the signatory states and the Contracting States agree should be corrected. 4 The corrected text replaces the defective text ab initio, unless the signatory states and the Contracting States otherwise decide. 5 The correction of the text of a treaty that has been registered shall be notified to the Secretariat of the United Nations. 6 Where an error is discovered in a certified copy of a treaty, the depositary shall execute a procs-verbal specifying the rectification and communicate a copy of it to the signatory states and to the Contracting States. Article 80 Registration and publication of treaties 1 Treaties shall, after their entry into force, be transmitted to the Secretariat of the United Nations for registration or filing and recording, as the case may be, and for publication. 2 The designation of a depositary shall constitute authorisation for it to perform the acts specified in the preceding paragraph.

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PART VIII FINAL PROVISIONS Article 81 Signature The present Convention shall be open for signature by all states Members of the United Nations or of any of the specialised agencies or of the international Atomic Energy Agency or parties to the Statute of the International Court of Justice, and by any other state invited by the General Assembly of the United nations to become a party to the Convention, as follows: until 30 November 1969, at the Federal Ministry for Foreign Affairs of the Republic of Austria, and subsequently, until 30 April 1970, at the United Nations Headquarters, New York. Article 82 Ratification The present Convention is subject to ratification. The instruments of ratification shall be deposited with the Secretary General of the United Nations. Article 83 Accession The present Convention shall remain open for accession by any state belonging to any of the categories mentioned in Article 81. The instrument of accession shall be deposited with the Secretary General of the United Nations. Article 84 Entry into force 1 The present Convention shall enter into force on the thirtieth day following the date of deposit of the thirty-fifth instrument of ratification or accession. 2 For each state ratifying or acceding to the Convention after the deposit of the thirty-fifth instrument of ratification or accession, the Convention shall enter into force on the thirtieth day after deposit by such state of its instrument of ratification or accession. Article 85 Authentic texts The original of the present Convention, of which the Chinese, English, French, Russian and Spanish texts are equally authentic, shall be deposited with the Secretary General of the United Nations. In witness whereof the undersigned Plenipotentiaries, being duly authorised thereto by their respective Governments, have signed the present Convention. Done at Vienna, this twenty-third day of May, one thousand nine hundred and sixty-nine. ANNEX A list of conciliators consisting of qualified jurists shall be drawn up and maintained by the Secretary General of the United Nations. To this end, every state which is a Member of the United Nations or a party to the present Convention shall be invited to nominate two conciliators, and the names of the persons so nominated shall constitute the list. The term of a conciliator, including that of any conciliator nominated to fill a casual vacancy, shall be five years and may be renewed. A conciliator whose term expires shall continue to fulfil any function for which he shall have been chosen under the following paragraph. When a request has been made to the Secretary General under Article 66, the Secretary General shall bring the dispute before a conciliation commission constituted as follows:

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The state or states constituting one of the parties to the dispute shall appoint: (a) one conciliator of the nationality of that state or of one of those states, who may or may not be chosen from the list referred to in para 1; and (b) one conciliator not of the nationality of that state or of any of those states, who shall be chosen from the list. The state or states constituting the other party to the dispute shall appoint two conciliators in the same way. The four conciliators chosen by the parties shall be appointed within sixty days following the date on which the Secretary General receives the request. The four conciliators shall, within sixty days following the date of the last of their own appointments, appoint a fifth conciliator chosen from the list, who shall be chairman. If the appointment of the chairman or of any of the other conciliators has not been made within the period prescribed above for such appointment, it shall be made by the Secretary General within 60 days following the expiry of that period. The appointment of the chairman may be made by the Secretary General either from the list or from the membership of the International Law Commission. Any of the periods within which appointments must be made may be extended by agreement between the parties to the dispute. Any vacancy shall be filled in the manner prescribed for the initial appointment. The Conciliation Commission shall decide its own procedure. The Commission, with the consent of the parties to the dispute, may invite any party to the treaty to submit to it its views orally or in writing. Decisions and recommendations of the Commission shall be made by a majority vote of the five members. The Commission may draw the attention of the parties to the dispute to any measures which might facilitate an amicable settlement. The Commission shall hear the parties, examine the claims and objections, and make proposals to the parties with a view to reaching an amicable settlement of the dispute. The Commission shall report within twelve months of its constitution. Its report shall be deposited with the Secretary General and transmitted to the parties to the dispute. The report of the Commission, including any conclusions stated therein regarding the facts or questions of law, shall not be binding upon the parties and it shall have no other character than that of recommendations submitted for the consideration of the parties in order to facilitate an amicable settlement of the dispute. The Secretary General shall provide the Commission with such assistance and facilities as it may require. The expenses of the Commission shall be borne by the United Nations.

4 5

4.2

Definitions

VCT 1969 only applies to written agreements between states, VCIO 1986 deals with written agreements between states and International Organisations or between International Organisations. Although both Conventions only apply to
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written agreements, this should not be taken to mean that agreements not in writing have no effect in international law such unwritten agreements will still be regarded as treaties and will be governed by the customary law on treaties subject to difficulties of proof of content.
There is no precise nomenclature for international treaties: treaty, convention, agreement or protocol are all interchangeable. Furthermore the meaning of most of the terms used in the law of treaties is extremely variable, changing from country to country and from Constitution to Constitution; in international law it could even be said to vary from treaty to treaty: each treaty is, as it were, a microcosm laying down in its final clauses the law of its own existence in its own terms. The uncertainty in wording is a result of the relativity of treaties ... Despite the terminological jumble, a definition is needed if only to delimit the scope of the rules to be discussed. The broader the definition, the fewer the rules applying to all cases it covers. It is precisely because the rules common to written agreements between states are comparatively numerous that the Vienna Convention dealt with them alone. In order to convey the general sense of the problem, a somewhat broader definition will be presented and discussed here, although the greater part of this study is restricted to the Vienna Convention, which covers the most homogeneous and richest part of the subject. The suggested definition is as follows: A treaty is an expression of concurring wills attributable to two or more subjects of international law and intended to have legal effects under the rules of international law.7 The restriction of the use of the term treaty in the draft articles to international agreements expressed in writing is not intended to deny the legal force of oral agreements under international law or to imply that some of the principles contained in later parts of the Commissions draft articles ... may not have relevance in regard to oral agreements.8

An example of an oral agreement is to be found in the case involving the Legal Status of Eastern Greenland (1933).9 The case arose from a dispute between Norway and Denmark over claims to sovereignty in Eastern Greenland. Denmark based its claim on the fact that during negotiations between government ministers, the Danish minister suggested to M Ihlen, the Norwegian Foreign Minister, that Denmark would raise no objection to Norwegian claims to Spitzbergen if Norway would not oppose Danish claims to Greenland at the Paris Peace Conference. A week after this conversation, in further negotiations, M Ihlen declared that Norway would not make any difficulty concerning the Danish claim. The PCIJ found that the Spitzbergen question was interdependent on the Greenland issues and as such the Court found that a binding agreement existed between the two states.

4.2.1 Unilateral agreements


The matter was discussed in the Nuclear Tests cases (1974).10 The cases arose out of opposition by New Zealand and Australia to atmospheric nuclear testing
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7 8 9 10

Paul Reuter, Introduction to the Law of Treaties, 1989, London; Pinter Publishers at p 23. (1966II) YBILC at p 189. PCIJ Ser A/B, No 53 (1933). [1974] ICJ Rep at p 253. 126

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carried out by France in the South Pacific. Australia and New Zealand brought proceedings before the ICJ but before any decision was made France indicated its intention not to hold any further tests in the region. The ICJ found that in the light of the French declaration it was no longer appropriate for it to give a decision on the merits of the case. In the course of its judgment, the ICJ declared:
It is well recognised that declarations made by way of unilateral acts, concerning legal or factual situations, may have the effect of creating legal obligations. Declarations of this kind may be, and often are, very specific. When it is the intention of the state making the declaration that it should be bound according to its terms, that intention confers on the declaration the character of a legal undertaking, the state being thenceforth legally required to follow a course of conduct consistent with the declaration.

4.2.2 Subjects of international law


Only those with international personality can be parties to treaties effectively this means states and international organisations. Whilst the majority of treaties are concluded between states, it should already be clear that it is possible for international organisations to undertake treaty obligations. It is not possible under international law for private individuals or companies to enter into treaties. The nature and requirements of the subjects of international law are dealt with in detail in Chapter 5. Agreements between states themselves create no problem here but a number of marginal cases are becoming increasingly common. Instead of states themselves the parties to an agreement may be other legal entities such as municipalities or public institutions. In such situations the question arises as to whether such bodies have the power to commit their state, and if they do not, the degree to which it can it be said that they have concluded a treaty. On the whole the problem is dealt with by application of the principles of agency and is resolved by looking at the extent to which the particular body can be implied to be acting as agent for the state concerned. Another problem arises in the case of agreements between states and entities which do not yet qualify as states (for example, national liberation organisations or provisional governments) but have been accorded some measure of international personality. In 1982 the Palestine Liberation Organisation issued a communication in which it purported to accede to the Geneva Conventions 1949 and additional Protocols dealing with the laws of war. Switzerland, as depository of the treaties, declined to accept the accession and sent a note to state parties declaring:
Due to the uncertainty within the international community as to the existence or the non-existence of a state of Palestine and as long as the issue has not been settled in an appropriate framework, the Swiss government, in its capacity as depository ... is not in a position to decide whether this communication can be considered as an instrument of accession ... The unilateral declaration of application of the four Geneva Conventions and of the additional Protocol I made on 7 June 1982 by the Palestine Liberation Organisation remains valid.11
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11 Embassy of Switzerland, Note of Information sent to States Parties to the Convention and Protocol, 13 September 1989. 127

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While the Peace Treaty between Israel and Jordan (as in the case of the Camp David Agreements between Israel and Egypt) is clearly a treaty between states governed by international law in the sense of the 1969 Vienna Convention on the Law of Treaties, the legal nature of the agreements between Israel and the PLO is a matter of dispute. Some authors argue that [t]he PLOs lack of status as a state precludes characterisation of the Declaration as a treaty or international convention, and hence as a hard law instrument in the traditional sense.12 It is suggested that it is rather an agreement between the state of Israel and the PLO, representing the Palestinian people and that [b]ecause the Declaration of Principles accepts some, but not all, elements of Palestinian statehood, Palestine may be considered a quasi-state for purposes of the agreement; that is an entity enjoying certain prerogatives ordinarily reserved to states, but not fulfilling all of the traditional prerequisites for statehood.13 the same author concludes that, although the agreement is a soft law document in the traditional sense, it nevertheless is an agreement with considerable binding force which appears on close analysis to embody a solid, substantive accord.14 Other authors have also expressed doubts (at least) on whether the Israel-PLO agreements are international instruments.15
In the above view there is some confusion on two different issues which need to be distinguished in the analysis. The first issue concerns the law to be applied to the agreement, in particular, whether it is an agreement concluded under international law. The second issue is whether, or to what extent it is a legally binding or non-binding agreement, and what the legal consequences are. With regard to the first issue, it is correct that the PLO is not a state in the sense of international law and that it also does not represent any existing state of Palestine. The establishment of a state of Palestine was proclaimed with the Algiers Declaration of 15 November 1988 and it was recognised by many former communist states and developing countries which entered into diplomatic relations with the representatives of this state. However, this state of Palestine does not fulfil one of the essential criteria under international law for the existence of a state because there is no effective sovereign control over the territory and population claimed to form the basis of the state of Palestine. This does not mean that the Israel-PLO agreements cannot be treaties under international law. It is true that the 1969 Vienna Convention on the Law of Treaties only applies to treaties concluded between states. But that does not affect, as expressly acknowledged in Article 3 of the Convention, the legal validity of, and the application of international law rules on the law of treaties to, agreements concluded between states and other subjects of international law. Independently of the attitude taken by Israel towards the PLO in the past, in international practice the latter has become recognised as a national liberation movement with the right to self-determination, which, although it does not exercise effective territorial jurisdiction, is a partial subject of international law with the capacity to maintain diplomatic relations with states and international
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12 The Israel-PLO Declaration of Principles: Prelude to a Peace? (1994) 34 Va J Int L 43569 at p 452. 13 Ibid, p 465. 14 Ibid, p 467. 15 See, for example, YZ Blum, From Camp David to Oslo (1994) 28 Israel LR 211 at pp 21213. 128

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organisations recognising it and to conclude treaties. As a partial subject of international law, the PLO is not equal to a state, but that does not affect the validity of a treaty it concludes with a state. Yehuda Blum argues that, even if one would be prepared to recognise that national liberation movements could have the status as subjects under international law, it does not necessarily follow that agreements entered by them become international agreements; partial and limited subjects of international law logically have only partial capacities under that law.16 This argument is not convincing for the following reasons. If the Israel-PLO agreements are not international agreements under public international law, then they must be governed by some national legal system, as in the case of so-called state contracts concluded by a host state and a foreign company (unless, as more frequently in the past, a reference in the contract is made to international law as the governing law, which does not necessarily elevate the contract to the level of a treaty in the international law sense). Quite apparently, this would lead to absurd results. Moreover, there are two clear indications in the agreements themselves that the parties consider them to be international agreements. First, there is express reference in some provisions that certain action has to be taken in accordance with international law. Second ... the methods of disputes settlement provided for in the agreements are the typical ones of international law dispute settlement procedures. An additional argument can be found in the facts that the United Nations has endorsed the Israel-PLO Accord, that other states have signed as witnesses and that a multilateral international framework has been created in support of the Middle East peace process, all of which does not lend support to the view that the agreements are non-international ones. The agreements made between Israel and the PLO included the recognition by Israel of the PLO as the representative of the Palestinian people, and thereby are clearly governed by international law. The second issue is: what kind of agreements are these under international law? Although the DOP is entitled Declaration its content reveals that the parties did not want to enter into a mere gentlemans agreement or just intended a declaration of policy. There is, furthermore, no reason to consider the text could be qualified as non-binding on the grounds that it lacks precision, in the sense that Judge Lauterpacht argued in his declaration attached to the judgment of the International Court of Justice in the Sovereignty of Certain Frontier Land case, namely that the ... provisions ... must be considered as void and inapplicable on account of uncertainty and unresolved discrepancy.17 First, the view held by some authors that the vagueness of treaty provisions may lead to the conclusion that these provisions are not legally binding is in itself incorrect. If the parties intended to conclude a treaty, then it is binding as a whole, even if some parts contain broad or unclear language. Vague provisions may give the parties a broad margin of discretion, but as Bernhardt notes, that is not to say that they are without legal significance and binding substance.18 Secondly, even if one would like to take the contrary view, the detailed nature of many of the obligations laid down in the Israel-PLO agreements (especially after the DOP) clearly show that

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16 YZ Blum, From Camp David to Oslo (1994) 28 Israel LR 211 at p 213. 17 [1959] ICJ Rep 209 at p 231. 18 See R Bernhardt, Treaties (1984) 7 EPIL 45964 at p 461. 129

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the provisions are sufficiently clear and that the parties intended to enter into binding commitments and not merely concluded a non-binding agreement. This is less true with regard to the agreement to negotiate later on the permanent status. It is generally accepted that an obligation to take part in negotiations and to conduct them in good faith, may form the valid and practical object of an international undertaking.19, 20

4.2.3 An intention to produce legal effects


An analogy may be drawn with the requirement in municipal contract law of an intention to be bound. Agreements will not be legally enforceable as treaties if it can be shown that one or more of the parties did not intend that the agreement should create binding legal obligations. So, for example, the Final Act of the Helsinki Conference on Security and Co-operation in Europe 1975 provided that it was to be not eligible for registration [as a treaty] under Article 102 of the Charter of the United Nations and throughout the conference it was understood by the participants that the Final Act would not be legally binding. Such agreements may create soft law as discussed in Chapter 3.

4.2.4 Legal effects under public international law


Perhaps the most important requirement of a treaty is that it is an agreement governed by international law. In 1962 the ILC started a detailed study of the law of treaties and the Special Rapporteur, Sir Humphrey Waldock, stated in his first report to the ILC that:
The element of subjection to international law is so essential a part of an international agreement that it should be expressly mentioned in the definition. There may be agreements between states, such as agreements for the acquisition of premises for a diplomatic mission or for some purely commercial transaction, the incidents of which are regulated by the local law of one of the parties or by a private law system determined by reference to conflict of laws principles. Whether in such cases the two states are internationally accountable to each other at all may be a nice question; but even if that were held to be so it would not follow that the basis of their international accountability was a treaty obligation.21

An illustration of this point is provided by the Anglo-Iranian Oil Co case (1952).22 In that case, which arose after Iran had nationalised the oil industry, the UK sought to rely on an agreement made in 1933 between the Anglo-Iranian Oil Co and the government of Iran. The UK argued that the agreement was a treaty and therefore was binding on Iran. The argument was rejected by the ICJ which found that the agreement was nothing more than a concessionary contract between a government and a foreign corporation.

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19 Judge De Visscher in his dissenting opoinion to the ICJs Advisory Opinion of 11 July 1950 on South West Africa [1950] ICJ Rep 186 at p 188. 20 P Malanczuk, Some Basic Aspects of the Agrements between Israel and the PLO from the Perspective of International Law (1996) 7 EJIL 485 at pp 48891. 21 Sir Humphrey Waldock [1962] 2 Yearbook of the International Law Commission 32. 22 [1952] ICJ Rep p 1. 130

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4.2.5 Designation
It should also be noted that the particular designation of the agreement does not govern its validity as a treaty agreements may be entitled Conventions, Accords, Final Acts, Statutes, Exchange of Notes, Protocols they are all to be regarded as treaties for these purposes. The designation given may however be of relevance in indicating the nature of the transaction. For example an agreement is usually less formal than a treaty and the term convention will generally indicate a multilateral agreement.

4.3

Conclusion and entry into force of treaties

4.3.1 Accrediting of negotiators


Once a state has decided to create a treaty, it is necessary to appoint representatives to conduct the negotiations. It is necessary that such representatives should be fully accredited and given sufficient authority to conduct negotiations, and conclude and sign the final treaty. As a general rule such authority is contained in a formal document known as Full Powers or often Pleins Pouvoirs. Full Powers can be dispensed with if practice between the negotiating states shows an intention to consider them as read and a gradual reduction in the use of Full Powers by states can be identified in the recent conduct of international relations. In the case of multilateral agreements which are generally concluded at international conferences, the practice is for a committee to be set up to investigate the validity of the accreditation of all delegates. Article 7 of the VCT reflects the rules in customary international law and in the Legal Status of East Greenland case (1933) the special position of foreign ministers as representatives for the purpose of entering into international agreements was expressly recognised by the Permanent Court. If an unauthorised person were to enter into an agreement, his/her actions would be without legal effect unless subsequently confirmed by the state. Article 8 of the VCT 1969 provides a further safeguard against abuse by enabling a state to denounce an agreement entered into by an unauthorised person.

4.3.2 Negotiation and adoption


Negotiations concerning a treaty are conducted either through pourparlers in the case of bilateral treaties or at a diplomatic conference in the case of multilateral treaties. The negotiators will maintain contact with their governments and usually, before actually signing a treaty, they will obtain a new set of instructions indicating the manner of signature. The procedure at diplomatic conferences runs to a standard pattern with the appointment of committees and rapporteurs to manage the conference as efficiently as possible. The aim of negotiation is the production of an agreed text of a treaty. The text is adopted by the consent of the parties. Article 9 of the VCT 1969 provides that the adoption of a treaty text at an international conference requires a twothirds majority of those present and voting, unless a two-thirds majority decides otherwise. A common practice over recent years has been for the final text of
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multilateral treaties to be adopted by a meeting of the relevant international organisation, for example, the UN General Assembly.

4.3.3 Authentication, signature and exchange


When the text of the treaty has been agreed upon and adopted, the treaty is ready for signing. Signing the treaty, which is usually a formal occasion, serves to authenticate the text. Signing is, therefore, essential to the validity of the treaty unless other methods of authentication have been agreed.

4.3.4 Effect of signature


The effect of signature depends upon whether the treaty is subject to ratification, acceptance or approval. If this is the case, then the signature means no more than that the delegates have agreed a text and have referred it to their governments for approval and ratification. Thus in the North Sea Continental Shelf cases (1969), although the Federal Republic of Germany had signed the Continental Shelf Convention 1958 it was not bound by its provisions since it had not ratified it. For this reason, Denmark and Holland had to base their arguments on rules of customary international law. In keeping with the general requirement of good faith, Article 18 of the VCT 1969 provides that where a state signs a treaty which is subject to ratification there is an obligation to do nothing to defeat the object of the treaty until the state has made its intentions clear. Sometimes the treaty will provide that it is to operate on a provisional basis as from the date of signature. If the treaty is not expressed to be subject to ratification or is silent on the matter the treaty is binding as from the date of signature (Article 12 of the VCT 1969).

4.3.5 Ratification
The next stage, if necessary, is for the delegates to refer the treaty back to their governments for approval. Ratification is the approval by the head of state or government of the signature to the treaty. Article 2 of the VCT 1969 defines ratification as the international act whereby a state establishes on the international plane its consent to be bound by a treaty. Ratification does not have retroactive effect, so states are only bound from the date of ratification, not the date of signature. It used to be thought that ratification was always essential, but that is no longer the case. Nowadays, it is a question of the intention of the parties as to whether ratification is a mandatory requirement. It should be noted that the method by which ratification is actually accomplished is a matter for individual states. In the UK, although treaties are signed and ratified under the royal prerogative without the need for reference to Parliament, the practice is to lay the text of any treaty before both Houses of Parliament for 21 days before ratification (this practice is known as the Ponsonby Rule). Generally, ratification has no effect until some notice of it is given to the other parties to the treaty. In the case of bilateral treaties, ratifications are simply exchanged between the parties. This is clearly impractical in the case of multilateral treaties, so multilateral treaties usually provide for the deposit of all
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ratifications with one central body in nearly all cases this function is performed by the Secretariat of the United Nations.

4.3.6 Accessions and adhesions


When a state has not signed a treaty it can only accede or adhere to it. Accession indicates that a state is to become a party to the whole treaty, whereas adhesion only involves acceptance of part of a treaty. Strictly speaking states can only accede or adhere to a treaty with the consent of all the existing parties. In practice, the consent of existing parties to accession is often implied.

4.3.7 Entry into force


When a treaty is to enter into force depends upon its provisions, or upon what the parties may otherwise have agreed. Treaties may be operative on signature, or on ratification. Multilateral treaties usually provide for entry into force only after the deposit of a specific number of ratifications, for example, Article 19 of the International Convention on the Elimination of all Forms of Racial Discrimination 1986 provides:
This Convention shall enter into force on the thirtieth day after the date of the deposit with the Secretary General of the United Nations of the twenty-seventh instrument of ratification or instrument of accession.

VCT 1969 itself entered into force after the receipt by the Secretary General of the 35th ratification. Sometimes a precise date for the entry into force of a treaty is given irrespective of the number of ratifications received.

4.3.8 Registration and publication


Article 102 of the United Nations Charter provides that all treaties entered into by members of the United Nations shall as soon as possible be registered with the Secretariat of the United Nations and be published by it. A similar provision was laid down in Article 18 of the League of Nations Covenant. Failure to so register and publish the treaty will mean that the treaty cannot be invoked in any UN organ. Most significantly this would mean that a state would be unable to rely on an unregistered treaty in proceedings before the ICJ. This provision was included to try to combat the use of secret treaties which were considered to have a detrimental effect on international relations. Article 80 of the VCT 1969 provides that treaties shall, after their entry into force, be transmitted to the Secretariat of the UN for registration or filing and recording, as the case may be, and for publication. In fact a considerable proportion of treaties are not registered. Paul Reuter suggests that statistical research based on the League of Nations and the United Nations Treaty Series shows that 25% of treaties have not been registered. Although the effect of non-registration of treaties has been discussed on a number of occasions before the ICJ, it is not possible to draw any definite conclusions.

4.4

Reservations

It can frequently happen that a state, while wishing to become a party to a treaty, considers that it can do so only if it can exclude or modify one or more particular provisions contained in the treaty. Ideally, such a state will be able to
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convince the other parties to amend the text of the treaty to incorporate its specific wishes. However, often this will not be possible and the regime of reservations allows a state, in certain circumstances, to alter the effect of the treaty in respect of its own obligations while preserving the original treaty intact as between the other parties.

4.4.1 Definitions
The growth of reservations to treaties coincides with the growth in multilateral conventions. With regard to bilateral treaties, the two parties to the treaty may disagree over the precise terms of the treaty which is to bind them. If this is the case, they may re-negotiate the terms until they achieve full agreement. There will be no treaty in existence until both sides agree on the terms. From this it follows that there can be no question of reservations to a bilateral treaty. In the case of multilateral treaties, it may not always be possible to get the full agreement of all the negotiating parties to every provision of the treaty. The general practice is for the text of such treaties to be adopted by two-thirds majorities. In the event of such a vote, those parties in the minority are in something of a dilemma: they can either refuse to become parties to the whole treaty, or they can accept the whole treaty even though they disagree with one or more of its provisions. The regime of reservations provides something of a compromise: those in the minority can become parties to the treaty without accepting all of the provisions therein. Reservations should be distinguished from so-called interpretative declarations whereby a state indicates the view which it holds about the substance of the treaty. Interpretative declarations are not intended as an attempt to derogate from the full legal effect of provisions of the treaty. In practice, the distinction between reservations and interpretative declarations may not always be clear cut. In Belios v Switzerland (1988) the European Court of Human Rights had to consider the nature of a declaration made by Switzerland when it ratified the European Convention on Human Rights. Switzerland argued against a finding of the Commission that the declaration was a mere interpretative declaration which did not have the effect of a reservation. The Court found that the declaration was a reservation and in the course of its judgment said:
The question whether a declaration described as interpretative must be regarded as a reservation is a difficult one ... In order to establish the legal character of such a declaration, one must look behind the title given to it and seek to determine the substantive content.

4.4.2 Validity of reservations


The formerly accepted rule for all kinds of multilateral treaty was that reservations were valid only if the treaty concerned permitted reservations and if all the other parties accepted the reservation. On this basis a reservation constituted a counter-offer which required the acceptance of the other parties, failing which the state making the counter-offer would not become a party to the treaty. During the period of the League of Nations the practice with regard to multilateral conventions was inconsistent. In 1927 the Committee of Experts for
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the Progressive Codification of International Law, the League of Nations equivalent of the International Law Commission, adopted a policy based on the absolute integrity of treaties and argued that reservations to treaties would not be effective without the full acceptance of all parties. At the same time, the members of the Pan-American Union (the forerunner of the Organisation of American states) adopted a more flexible policy including the following key elements: (a) as between states which ratify a treaty without reservations, the treaty applies in the terms in which it was originally drafted and signed; (b) as between states which ratify a treaty with reservations and states which accept those reservations, the treaty applies in the form in which it may be modified by the reservations; and (c) as between states which ratify a treaty with reservations and states which, having already ratified, do not accept those reservations, the treaty will not be in force. A small number of states, principally from Eastern Europe, adhered to the view that every state had a sovereign right to make reservations unilaterally and at will, and to become a party to treaties subject to such reservations, even if they were objected to by other Contracting States. Matters came to a head following the unanimous adoption of the Convention on the Prevention and Punishment of the Crime of Genocide by the UN General Assembly in 1948. Article 9 of the Convention provided that disputes or cases arising under the Convention should be compulsorily within the jurisdiction of the ICJ. A number of states wished, for reasons of their own, to avoid being subject to the ICJs compulsory jurisdiction, but the Convention contained no express provision allowing for reservations. The General Assembly therefore requested an advisory opinion from the ICJ on certain key questions: 1 Could a reserving state be regarded as being a party to the Convention while still maintaining its reservation if the reservation is objected to by one or more of the parties to the Convention but accepted by others? 2 If the answer to question 1 is in the affirmative, what is the effect of the reservation as between the reserving state and: (a) the parties which object to the reservation? (b) those which accept it? The Court in the Reservations to the Convention on Genocide case (1951) ruled, by seven votes to five, in response to question 1 that a state which has made and maintained a reservation which has been objected to by one or more of the parties to the Convention but not by others, can be regarded as being a party to the Convention if the reservation is compatible with the object and purpose of the Convention; otherwise, that state cannot be regarded as being a party to the Convention. In response to question 2, again by a seven:five majority, the ICJ found that: (a) if a party to the Convention objects to a reservation which it considers to be incompatible with the object and purpose of the Convention, it can consider that the reserving state is not a party to the Convention;
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(b) if, on the other hand, a party accepts the reservation as being compatible with the object and purpose of the Convention, it can in fact consider that the reserving state is a party to the Convention. This judgment was not initially well-received. It was felt that the compatibility test was too subjective and that the result of the decision would be further uncertainty. The International Law Commission reported in 1951, after the Court had given its decision, and recommended a return to the traditional view that reservations required the unanimous consent of the parties to a treaty. However views did gradually change. By 1959 the UN General Assembly had adopted the ICJs position and in 1962 the International Law Commission decided in favour of the compatibility test. That position was the one adopted by the VCT 1969 and represents customary international law. The relevant provisions are found in Articles 1923. Article 19 provides that, in general, reservations are always permitted except in three instances: (a) when the treaty explicitly forbids reservations; (b) when the treaty does not permit the type of reservation being made; (c) when the reservation is incompatible with the object and purpose of the treaty. Some treaties provide mechanisms for deciding on compatibility of reservations for example Article 20 of the Convention on the Elimination of Racial Discrimination 1966 provides that a reservation shall be considered incompatible if at least two-thirds of the state Parties to the Convention object to it. Article 20 provides as follows:
1 A reservation expressly authorised by a treaty does not require any subsequent acceptance by the other Contracting States unless the treaty so provides. When it appears from the limited number of negotiating states and the object and purposes of a treaty that the application of the treaty in its entirety between all the parties is an essential condition of the consent of each one to be bound by the treaty, a reservation requires acceptance by all the parties. When a treaty is a constituent instrument of an international organisation and unless it otherwise provides, a reservation requires the acceptance of the competent organ of that organisation. In cases not falling under the preceding paragraphs and unless the treaty otherwise provides: (a) acceptance by another Contracting State of a reservation constitutes the reserving state a party to the treaty in relation to that other state if or when the treaty is in force for those states; (b) an objection by another Contracting State to a reservation does not preclude the entry into force of the treaty as between the objecting and reserving states unless a contrary intention is definitely expressed by the objecting state; (c) an act expressing a states 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.

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5 For the purposes of paras 2 and 4 and unless the treaty otherwise provides, a reservation is considered to have been accepted by a state if it shall have raised no objection to the reservation by the end of a period of twelve months after it was notified of the reservation or by the date on which it expressed its consent to be bound by the treaty, whichever is later.

Article 21 spells out the legal effects of reservations and sets down three main rules:
1 A reservation modifies the provisions of the treaty to which it relates as regards the reserving state in its relations with other parties and as regards the other parties in their relations with the reserving state. A reservation does not modify the provisions of the treaty for the other parties to the treaty inter se. When a state objecting to a reservation has not opposed the entry into force of the treaty between itself and the reserving state, the provisions to which the reservation relates do not apply as between the two states to the extent of the reservation.

2 3

Rule 3 was illustrated in the English Channel Arbitration (1979) between France and the UK. During the course of the arbitration it was necessary to consider the effect of reservations to Article 6 of the Continental Shelf Convention 1958 to which the UK had objected. VCT 1969 does not apply to the Continental Shelf Convention so the issue had to be decided in accordance with customary law. France argued that the combined effect of reservations and objections was to render Article 6 completely inapplicable as between Britain and France, whereas the UK sought to argue that the effect was to render the article applicable in toto. The Court of Arbitration rejected both arguments and held that the combined effect of the reservation and the objection to it was to render Article 6 inapplicable as between the two countries to the extent, but only to the extent, of the reservations. VCT 1969 further provides that reservations and acceptances/objections to reservations must be in writing.

4.5

Application of treaties

4.5.1 The observance of treaties


The doctrine of pacta sunt servanda, the rule that treaties are binding on the parties and must be performed in good faith, is a fundamental principle of international law. The rule is included in the VCT 1969 by Article 26 which provides that every treaty in force is binding on the parties to it and must be performed in good faith. As was mentioned in Chapter 1, the principle is derived from the jus gentium of the Roman legal system. There has been some discussion as to the question of whence the rule derives its authority and the precise status of the rule. The principle is certainly one of customary international law evidenced by widespread state practice and opinio juris. The fact that it is a recognised rule of customary international law enables the VCT 1969 itself to be binding. Arguably, pacta sunt servanda constitutes a higher rule of customary law since it is difficult to envisage how a system of international law could operate without it. In this sense it might be viewed as constituting
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one of the true sources of international law in the sense of a Grundnorm as identified by Kelsen. It could also be validly claimed to constitute a rule of jus cogens.

4.5.2 Non-retroactivity
Article 28 of the VCT 1969 reflects the customary rule of non-retroactivity of treaties. The provisions of a treaty do not bind a party in relation to any act or fact which took place or any situation which ceased to exist before the treaty entered into force for that state, unless a different intention appears from the treaty or is otherwise established. The rule applies to the VCT 1969 itself which has no application to any treaty entered into before the VCT 1969 came into force. Where treaties are the subject of ratification it is necessary to remember the rule expressed in Article 18 of the VCT 1969 which provides that states, having signed a treaty, should not act in any way to defeat the object and purpose of the treaty until it has made a clear final decision with regard to ratification. It should also be noted that treaties can apply to continuing situations. Although a situation may have arisen before a treaty came into force, it will be governed by the provisions of the treaty if it continues to exist after the treaty comes into force.

4.5.3 Territorial application


The general rule, reflected in Article 29 of the VCT 1969, is that, unless some other intention is made clear, a treaty applies to the entire territory of each party. The issue of territorial application arises where parties to a treaty have overseas territorial possessions, and the presumption is that a treaty applies to all the territory for which Contracting States are internationally responsible. Thus, unless the contrary is explicitly indicated, treaties to which the UK is a party apply to the British colonies and all territory for which the UK is internationally responsible, for example the Channel Islands and the Isle of Man.

4.5.4 Successive treaties


The problem of a later treaty inconsistent with an earlier one is a complex issue, but Article 30 of the VCT 1969 sets out general rules that deal with the majority of cases. As far as UN members are concerned, the UN Charter prevails over any other international agreement which conflicts with it. Otherwise, the basic rules are: (a) a prior treaty prevails over a later one in any instance of apparent disagreement when the later one specifies that it is subject to, or not incompatible with, the earlier one; (b) where all the parties to the earlier treaty are also parties to the later treaty, the earlier (if still in effect) applies only to the extent that its provisions are compatible with those of the later treaty; (c) when the parties to the two treaties are not identical, the earlier applies between states that are parties to both only to the extent that the earlier is not incompatible with the later, while as between a state which is party to both treaties and a state which is a party to only one of the treaties, the treaty to which both are parties governs their mutual rights and obligations.
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4.5.5 Treaties and third parties


The general rule expressed in the maxim, pacta tertiis nec nocent nec prosunt, is that treaties cannot bind third parties without their consent. The rule is affirmed in Article 34 of the VCT 1969. However, situations in which the rights and duties of third parties are involved have occasionally been created by treaties which are said to establish objective regimes, creating rights and obligations valid universally (erga omnes). Erga omnes is not a term used in VCT 1969 but Article 36 does provide:
1 A right arises for a third state from a provision of a treaty if the parties to the treaty intend the provision to accord that right to a third state, or to a group of states ...

The International Law Commission considered that this provided the legal basis for establishing rights valid erga omnes and did not propose any special provision on treaties creating so-called objective regimes such as the Antarctic Treaty 1959. Certainly there is less difficulty where a treaty creates rights for third parties than the situation where a treaty purports to impose obligations on non parties. The subject of erga omnes obligations will be considered in more detail in connection with human rights law and environmental protection in Chapters 15 and 17. There are a number of examples of treaties establishing rights for third parties particularly with respect to rights over territory. The Constantinople Convention 1888 was for a long time considered to give a right of passage through the Suez Canal to states that were not parties to the agreement, as did the Treaty of Versailles 1919 with respect to the Kiel Canal.
The Vienna Conventions five articles dealing directly with treaties and third parties are narrowly drawn and limited in their application. Article 34 commences with a restatement of the classic pacta tertiis rule which underscores principles of sovereignty and equality. There is no concession to the various claimed exceptions, nor do the subsequent articles shed any light on possible inroads to the rule. The principle enunciated in Article 34, namely that treaties did not have effects with respect to third states was thus absolute. 23 The decision not to enunciate any exceptions meant that there was also no attempt to provide a juridical basis for any such exceptions. After the uncompromising stance of Article 34, the following articles deal separately with the imposition of obligations upon third states and the bestowal of rights. The connecting factors are the intentions of the parties and third party assent, which reinforce a narrow, contractual view of treaties. Articles 35 and 36 assume that the parties intentions and the third partys consent can be accurately determined, and will coincide. If they do not, no obligation can have been imposed, nor right bestowed. A distinction is drawn between rights and obligations for the purpose of the means of manifesting third party consent. A third party must expressly consent in writing to an obligation, but may impliedly consent to the acceptance of a right. However, as has been seen through the examination of many of the claims, rights and obligations cannot be treated as invariably distinct for they are often interrelated. Rights and obligations are interlocked in the formation of a bargain where all involved have duties to perform and expectations arising. Especially is
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23 P Reuter [1982] 1 YBILC 26. 139

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this so where conditions are attached to the claiming of a right. There is no logical reason for according primacy to either concept; rather they should be treated together. The International Law Commission, and subsequently the Conference at Vienna, preferred a rigid construction of treaty law so as more easily to gain agreement on a text. The inflexibility is repeated in the subsequent Vienna Convention on International Organisations which, apart form the inclusion of international organisations as parties and third parties to treaties, adopts the same starting point. The narrowness of Articles 3438 in both Conventions might give the impression that international law has receded from its earlier acceptance of exceptions to the general rule. In fact, a closer examination of both the Conventions, and of developments external to the law of treaties, demonstrates that this has not been the case. ... The effect of treaties on third parties cannot be determined merely by the formal application of specified rules of treaty law. Indeed, in some instances these rules are inadequate for the changing claims of both parties and non-parties. Instead third party claims must be analysed to determine their relevant factual context, the appropriate policies, and the applicable law. Certain exceptions to the pacta tertiis rule can be summarised as falling under the following heads: acquiescence in the conduct of parties and non-parties; application of a special principle of law outweighing the general third party rule; the existence of some situation that displaces the application of treaty law. There is a realisation that the pacta tertiis rule should not be applied inflexibly to produce inequity. While the pacta tertiis rule formally applies to all states and produces an appearance of equality, in fact it favours stronger states. Such states could conclude (and have concluded) agreements in their own interests which were presented as being to further overall community goals and, as such, binding on weaker states. A number of peace settlements and other territorial arrangements in the 19th and early 20th centuries can perhaps be categorised in this way. At the same time the rule could be cited against weaker powers. The manipulation of the pacta tertiis rule by stronger states and the recognition that one of the major exceptions to it worked primarily to their benefit, has perhaps led to a current tendency to ensure as many states as possible are included in a treaty relationship rather than having more powerful states in effect dictate settlements in the name of the public benefit. Sensitivity to the sovereignty of weaker states favours the inclusion of all interested parties in a treaty arrangement. An example is the package of treaties constituting the Afghanistan settlement.24 While the United States and the Soviet Union were parties to the arrangement through the Agreement on the Interrelationships for the Settlement of the Situation relating to Afghanistan, so too were Afghanistan and Pakistan. The settlement was not limited to the superpowers and imposed upon the others. The same is true of the Cambodia peace settlement. Devices to include as many parties as possible are also seen in widely phrased accession clauses, and in the use of Protocols allowing for adherence or accession. While presenting problems of juridical analysis, the aim is to provide certainty and stability by including interested or essential (state) participants in the treaty scheme. it may be that traditional treaty analysis which divides states into parties

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24 Geneva, 4 April 1988 (1988) 27 ILM 581. 140

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and non-parties will not work with these devices whose operation should not be frustrated by the technicalities of international law. The mechanisms described above operate on the assumption of the pacta tertiis rule and use it to create interlocking treaty relationships. On the other hand this process disadvantages weaker states where stronger states refuse to accept the invitation to join a treaty regime. There is another development which impacts in the opposite way. There has been a growing use of less formal ways of creating international obligations, primarily through collective actions of international organisations as expressed through their resolutions. Although the formal position remains that General Assembly resolutions are not binding, it is now widely accepted that legitimate expectations as to future behaviour may be engendered by them, which only an unwise or excessively formalistic decisionmaker would ignore. The pacta tertiis rule has become less relevant with this change: if even those voting in favour of a resolution are not formally bound by it, then third parties are that much further removed form any commitments. However, in a practical sense, it may be very difficult for those states which abstained or dissented form a resolution (third parties) to remain aloof from its consequences. Developing states have favoured the passing of resolutions expressing their interests through their voting majority in the General Assembly and support claims as to their normative effect. Thus there may be a claim that the principles enunciated in General Assembly resolutions relating to the existence of a common heritage of peoples have become opposable even to third parties to a treaty in which the concept is incorporated, for example, the United Nations Convention on the Law of the Sea. Subsequent state conduct and acquiescence may once again play a decisive role in determining obligations flowing from General Assembly resolutions. In considering the current status of the pacta tertiis rule exclusive consideration of treaty-making processes distorts the current international prescriptive process. There are instrumentalities for change and development of international law which may not satisfy rigorous application of the traditional criteria for determining normative effect, and which consequently cause juridical inconsistency, but which cannot be disregarded. Any analysis of the classic third party rule is inevitably entwined with this change in the prescriptive process.25

It should not be forgotten that the provisions contained in treaties might bind non-parties as rules of customary international law either in situations where the treaty is itself a codification of existing international law or where the treaty leads to the gradual development of new rules of custom.

4.6

Amendment and modification

Prior to VCT 1969 the customary law rule was that a treaty could not be revised without the consent of all the parties, although there was evidence that by 1969 state practice had already begun to depart from the rule. The ILC, when considering the draft convention on treaties, noted the enormous increase in the number of multilateral treaties and the fact that obtaining the consent of all the parties would not always be possible (there are parallels here with the discussions about reservations). The VCT 1969 now draws a distinction between amendments and modifications. Amendment, covered by Article 40, denotes
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25 C Chinkin, Third Parties in International Law, 1993, Oxford: Clarendon Press, at pp 13435, 14244. 141

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a formal change in a treaty intended to alter its provisions with respect to all the parties. Modification, dealt with in Article 41, indicates an inter se agreement concluded between certain of the parties only, and intended to alter the provisions of the treaty between themselves alone. Modification is only allowed if: (1) it is permitted by the treaty; (2) it is not prohibited by the treaty; (3) it does not affect the other parties to the treaty; (4) it is not incompatible with the treaty. More usually amendment or modification is achieved in the case of multilateral treaties by another multilateral treaty which comes into force only for those states which agree to the changes.

4.7

Treaty interpretation

23 The Court recalls that, according to customary international law as expressed in Article 31 of the Vienna Convention on the Law of Treaties of 23 May 1969, a treaty must be interpreted in good faith in accordance with the ordinary meaning to be given to its terms in their context and in the light of its object and purpose. Under Article 32, recourse may be had to supplementary means of interpretation such as the preparatory work and the circumstances in which the treaty was concluded.26

4.7.1 Aims and goals of interpretation


There is a measure of disagreement among jurists as to the aims of treaty interpretation. There are those who assert that the primary, and indeed only, aim of treaty interpretation is to ascertain the intention of the parties this is generally referred to as the subjective approach. On the other hand, there are those who start from the proposition that there must be a presumption that the intention of the parties are reflected in the text of the treaty which they have drawn up, and that the primary aim of interpretation is to ascertain the meaning of this text generally referred to as the objective or textual approach. Finally, there are those who maintain that the decision-maker must first ascertain the object and purpose of a treaty and then interpret it so as to give effect to that object and purpose the teleological or object and purpose approach. It should be noted straight away that these three schools of thought are not mutually exclusive and a tribunal will probably draw on all three views to some extent when attempting to interpret a treaty. It should also be noted that some writers have argued that it is impossible to discern any general rules or principles governing treaty interpretation, instead what is found is a series of ex post facto rationalisations of decisions reached for other reasons.

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26 Case Concerning Oil Platforms (Islamic Republic of Iran v United States of America) (Preliminary Objection) Judgment of ICJ of 12 December 1996. 142

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4.7.2 The Vienna Convention on the Law of Treaties 1969 Section 3


Section 3 of the VCT 1969 adopts a composite position. Article 31 states that treaties shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of their object and purpose.

4.7.2.1 Good faith


The principle of good faith underlies the most fundamental norm of treaty law pacta sunt servanda. If the parties to a treaty are required to perform the obligations of a treaty in good faith, it is logical to interpret the treaty in good faith.

4.7.2.2 Ordinary meaning


The ordinary meaning does not necessarily result from a strict grammatical analysis. In order to arrive at the ordinary meaning account will need to be taken of all the consequences which reasonably flow from the text. It is also clear that the ordinary meaning of a phrase cannot be ascertained divorced from the context the phrase has in the treaty as a whole. In the Employment of Women During the Night case (1932), Judge Anzilotti said:
I do not see how it is possible to say that an article of a convention is clear until the subject and aim of the convention have been ascertained, for the article only assumes its true import in this convention and in relation thereto. Only when it is known what the contracting parties intended to do and the aim that they had in view is it possible to say either that the natural meaning of terms used in a particular article corresponds with the real intention of the parties, or that the natural meaning of the terms used falls short of or goes further than such intention.27

This view can be contrasted with the decision of the ICJ given in the advisory opinion in the Competence of the General Assembly for the Admission of a State to the UN case (1950)28 where the Court said that:
the first duty of a tribunal which is called upon to interpret and apply the provisions of a treaty is to endeavour to give effect to them in their natural and ordinary meaning in the context in which they occur. If the relevant words in their natural and ordinary meaning make sense in their context, that is an end of the matter.

4.7.2.3 Special meaning


Paragraph 4 of Article 31 provides that a special meaning shall be given to a term if it is established that the parties so intended. In the Eastern Greenland case, the PCIJ stated:
The geographical meaning of the word Greenland, ie the name which is habitually used in maps to denote the whole island, must be regarded as the ordinary meaning of the word. If it is alleged by one of the parties that some unusual or exceptional meaning is to be attributed to it, it lies on that party to establish its contention.29
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27 PCIJ Ser A/B, No 50 (1932). 28 [1950] ICJ Rep at p 8. 29 PCIJ Ser A/B, No 53 (1933). 143

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4.7.2.4 The context and the object and purpose


The context, for the purposes of interpretation, includes the text, its preamble and annexes and any agreement relating to the treaty made between all the parties, or made by some of the parties and accepted by the other, in connection with the conclusion of the treaty. The text of the treaty must be read as a whole. The preamble to the treaty will often provide assistance in ascertaining the object and purpose of a treaty.

4.7.2.5 Supplementary means of interpretation


Although Article 32 talks of supplementary means of interpretation, in practice international tribunals do tend to blur any differences between Article 31 and Article 32 and the preparatory work often referred to by the French term travaux prparatoires is regarded as a considerable aid. In the Employment of Women case the PCIJ referred to the travaux prparatoires to confirm the clear meaning of the text. One possible restriction on the use of travaux prparatoires as an aid to interpretation arises where some of the parties to the dispute have not been involved in the preparatory work leading to the treaty. So, for example, in the River Oder case (1929) the PCIJ refused to allow reference to the preparatory work of the Treaty of Versailles 1919 on the grounds that several of the parties to the dispute had not taken part in the work of the Conference which had prepared the treaty.

4.8

Multilingual treaties

Treaties are often drafted in two or more languages. In the case of bilateral treaties, the normal practice is that the treaty texts should be drawn up in the two languages of the parties, both texts being equally authentic. Multilateral conventions may be concluded in many languages: conventions concluded under the auspices of the UN will be drawn up in Arabic, Chinese, English, French, Russian and Spanish; the treaty by which Greece became a member of the European Union was concluded in eight languages. A more common practice is to conclude a treaty in two or three widely spoken languages and for these two or three texts to be equally authentic, and for a number of official translations to be deposited with the signed original. If a number of texts are equally authentic, they may be read in conjunction in order to ascertain the meaning of the convention.

4.9

Validity of treaties

The VCT 1969 represents both codification of existing rules of customary international law and also the progressive development of international law. Part V of the Convention which deals with invalidity, termination and suspension represents more a progressive development of the law than simple codification. In looking at the grounds of invalidity contained in the VCT 1969, it should be borne in mind that the customary law rules on validity may well not be as rigid or as settled.

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4.9.1 Non-compliance with municipal law requirements


A state cannot plead a breach of its constitutional provisions as to the making of treaties as a reason for invalidating an agreement. For example, where the representative of the state has had her/his authority to consent on behalf of the state made subject to a specific restriction which is ignored, the state will still be bound by that consent except where the other negotiating states were aware of the restriction on authority prior to the expression of consent.

4.9.2 Error
Unlike the role of mistake in municipal contract law, the scope of error in international law is very limited. In practice, given the number of people and the character of states involved in the negotiation and conclusion of treaties, errors are not very likely to occur. Article 48 declares that a state may only invoke an error in a treaty as invalidating its consent to be bound, if the error relates to a fact or situation which was assumed by that state to exist at the time when the treaty was concluded and formed an essential basis of its consent to be bound. The ground is not open to the state if it contributed to the error by its own conduct or the circumstances were such as to put it on notice of a possible error, or if the error related only to the wording of the text of the treaty.

4.9.3 Fraud and corruption


Where a state consents to be bound by a treaty as a result of the fraudulent conduct of another negotiating state, that state may under Article 49 of the VCT 1969 invoke the fraud as invalidating its consent to be bound. Fraud itself is not defined in the VCT 1969 and since there are no examples of treaties being invalidated as a result of fraud there is a lack of international precedents as to what constitutes fraudulent conduct. If a states consent to a treaty has been procured through the corruption of its representative, directly or indirectly by another negotiating state, the former state is entitled to claim that the treaty is invalid under Article 50 of the VCT 1969.

4.9.4 Coercion
4.9.4.1 Coercion of state representatives
Article 51 of the VCT 1969 provides that the expression of a states consent to be bound by a treaty which has been procured by the coercion of its representative through acts or threats directed against him/her shall be without any legal effect. It has long been an accepted rule of customary international law that duress exercised against a representative concluding a treaty has been a ground for invalidating the treaty.

4.9.4.2 Coercion of a state


There was considerable discussion about Article 52. In the 19th century force had often been seen as a legitimate extension of diplomacy and treaties procured by force were not uncommon. The concept that a treaty may be void if its conclusion has been procured by threat or use of force is therefore of recent
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origin. At the Vienna Conference discussion centred on the exact definition of force. A group of 19 African, Asian and Latin American states sought to define force as including any economic or political pressure. The vast majority of Western states opposed such a definition, arguing that it would seriously undermine the stability of treaty relations given the width of possible interpretations of pressure. In the event, the 19 states did not push the issue to a vote, although the Conference adopted a declaration which called upon states to refrain from economic and political coercion when negotiating and concluding treaties. It should be noted that it is acceptance of the treaty that must be coerced. A peace treaty which is signed as a matter of choice between two independent states is valid even though its terms may have been influenced by a prior use of force. There have been few recent examples of treaties brought about by the use of coercion. One of the best known cases involved the treaty between Germany and Czechoslovakia under which a German Protectorate was established in former Czechoslovakian territory. The treaty was signed by President Hacha of Czechoslovakia in Berlin at 2.00am after he had allegedly been subject to considerable personal threats and told that, if he did not sign, German bombers could destroy Prague within two hours.

4.9.5 Unequal treaties


Many non-Western states take the view that treaties not concluded on the basis of the sovereign equality of all parties are invalid. Thus, treaties between economically powerful states and much weaker states under which the latter grants extensive privileges or facilities to the former should be set aside. For example, the 19th century treaties between the UK and China under which China ceded Hong Kong Island and Kowloon and leased the New Territories to the UK was challenged by the Chinese government on the basis that they were not concluded between two equal states. On the whole, Western writers have regarded the concept of unequal treaties as too vague to be implemented.

4.9.6 Jus cogens


In the ILCs preparation of the Vienna Convention considerable discussion took place about whether there were in international law certain rules so fundamental and of such universal importance that a state would not be entitled to derogate from them even by agreement with another state in a treaty. The ILC concluded that such rules did exist, for example, the prohibition on the unlawful use of force and the use of genocide.
Jus cogens The concept that a treaty concluded in violation of a norm of jus cogens is null and void is highly controversial. Any analysis of the concept requires an investigation into the relevance in international law of private law analogies and into the extent to which, if at all, there exists an objective notion of international public policy consisting of legal rules from which states are not permitted to derogate by way of international agreement. But first, you may ask, what is jus cogens? Suy defines it as the body of those general rules of law whose non-observance may affect the very essence of the
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legal system to which they belong to such an extent that the subject of law may not, under pain of absolute nullity, depart from them in virtue of particular agreements.30 From this definition it will be noted that the concept of jus cogens is wholly general in nature and applicable to any system of law. It is not a concept which has been specially developed within the framework of public international law; on the contrary, it derives from, and is deeply embedded in, particular systems of private law. The origin of the notion of jus cogens has been traced back to Roman law. The maxim jus publicum privatorum pactis mutari non potest is to be found in the Digest. The jus publicum was to be understood in a wide sense as embracing not only public law in the strict sense (that is to say, the law governing relations between individuals and the state) but also rules from which individuals were not permitted to depart by virtue of particular agreements. The pervading influence of this general notion can be recognised by the development of such concepts as ordre public and ffentliche Ordnung in French and German law respectively, and by the gradual establishment in common law of the principle that certain types of contract are, by their very nature, injurious to society and therefore contrary to public policy. The genesis of this principle in English law can be traced back to Elizabethan times, although it was only in the 18th century that its foundations were effectively laid in a series of decisions proclaiming, in somewhat vague and indeterminate language, the nullity of contracts injurious to the public good or contra bonos mores.31 It will, then, be seen that every developed national system of law has devised its own concept of public policy. In civil law jurisdictions the notion of ordre public is essentially variable and relative, evolving in accordance with the political, social and economic circumstances of the time. In English law it is less variable; certain defined heads of public policy have been established by the courts, and although these heads can be moulded to fit the new conditions of a changing world, it is rarely possible for the courts to establish new heads of public policy.32 Thus there has gradually evolved over the years, in practically all systems of municipal law, the principle that the will of the parties to conclude contracts is not unfettered but is subject to certain restraints essential to the continued existence of an ordered society. What the nature of these restraints is will vary according to the political, economic or social climate in the country concerned. Certain restraints may be imposed by statute, others may have been developed by the jurisprudence of the courts. So far as restraints imposed by statute are concerned, political and economic factors may lead to the imposition of new controls on the freedom of individuals to contract, thus in England, the Resale Prices Act 1964 rendered void (subject to an exemption procedure) any term or condition of a contract for the sale of goods by a supplier to a dealer in so far as it provided for the establishment of minimum prices for the resale of the goods. Notwithstanding the close connection between jus cogens and public policy, the two concepts do not entirely coincide, at least if public policy is conceived of in the narrower sense as being confined to the circumstances in which the municipal courts will refuse to enforce a contract. Jus cogens is the sum of
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30 Suy in The Concept of Jus Cogens in International Law, 18 (1967). 31 Cheshire and Fifoot, Law of Contract, 8th edn, 1972, London: Butterworths at pp 31825. 32 Janson v Driefontein Consolidated Mines [1902] AC 484 at p 492; Fender v St John-Mildmay [1938] AC 1 at p 40; see, however, McCardie J in Naylor Benzon Ltd v Krainische Ind Ges [1918] 1 KB 331 at p 349 and Shaw v Director of Public Prosecutions [1962] AC 220. 147

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absolute, ordering, prohibiting municipal law proscriptions, in contrast to jus dispotivium, that is to say, legal prescriptions which can, and do, yield to the will of the parties. ... It now remains to consider the most controversial aspect of them all: if, on the balance of conflicting considerations, one is constrained to admit the existence of jus cogens in international law, what is its content? What are these peremptory norms of general international law from which states are not permitted to derogate by treaty? Let us begin by taking the more obvious candidates. I have already discussed the extreme case of a treaty which purports to abolish both retrospectively and prospectively the rule pacta sunt servanda between the contracting parties; however improbable such a treaty may be, it is difficult to see how its validity could be sustained. But leaving aside treaties whose object and purpose is to deny the fundamental principle underlying the law of treaties itself, what other categories of treaty could be regarded as being inconsistent with rules of jus cogens? The Commissions commentary gives three examples: (a) A treaty contemplating an unlawful use of force contrary to the principles of the Charter. (b) A treaty contemplating the performance of any other act criminal under international law. (c) A treaty contemplating or conniving at the commission of acts, such as trade in slaves, piracy or genocide, in the suppression of which every state is called upon to co-operate. There would be little disposition among jurists to deny the nullity of a treaty contemplating an unlawful use of force contrary to the principles of the Charter; but, given the pervasive influence of the modern propaganda machine designed to stand everything on its head, it is of course necessary to distinguish a treaty of this nature from a perfectly valid treaty for the organisation of collective selfdefence in the event of an armed attack or the threat of an armed attack. The second example given by the Commission in part overlaps the first, since a treaty between states A and B for the initiation of a war of aggression against state C would, as already indicated, fall foul of both prohibitions. But the second example would presumably also cover the other instance cited by Fitzmaurice that is to say, a treaty whereby two states agree not to take any prisoners of war and to execute all captured personnel, during future hostilities between them. In this connection, Schwelb aptly reminds us that the four Geneva Conventions of 1949 on the Protection of War Victims all contain denunciation clauses providing that each of the parties shall be at liberty to denounce the Convention; but the denunciation clauses specifically state that denunciation shall in no way impair the obligations which the parties to the conflict shall remain bound to fulfil by virtue of the principles of the law of nations, as they result from the usages established among civilised peoples, from the laws of humanity and the dictates of the public conscience. Schwelb concludes that this is a reference to something akin to jus cogens since, if a single state cannot release itself from their provisions by the act of denouncing the Conventions, it appears to follow that two or more states cannot derogate from these principles by agreements amongst themselves. In this he is probably right, given the particular content of the Geneva Conventions. But it does not follow that the inclusion of such a provision would constitute conclusive evidence of the jus cogens character of the rules embodied in
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that Convention since its purpose may be simply to preserve the operation of the rules as rules of customary international law. In the final analysis, it is the content of the rules which will be decisive in the determination of whether or not they have the attributes of jus cogens. The third example given by the Commission opens up the floodgates of controversy. The majority of jurists would no doubt go along with the Commission in asserting that the rules prohibiting trade in slaves, piracy or genocide have become norms of jus cogens from which states are not free to derogate by treaty. But a word of caution is necessary here. It is right to recall that general multilateral Conventions (even those recently concluded) which prohibit or outlaw slavery and the slave trade and genocide contain normal denunciation clauses. If a state can release itself easily from the conventional obligations it has undertaken in these fields, can it be said that the prohibitions are in the nature of jus cogens? Of course, it may be said that the rule prohibiting slavery and the slave trade and the rule prohibiting genocide are rules of general international law which apply independently of the treaties embodying them. More to the point, it is clear that a treaty between two member states of the United Nations contemplating genocide or slavery would be wholly contrary to Articles 55 and 56 of the Charter and would therefore be unenforceable by virtue of Article 103, which provides that, in the event of conflict between the obligations of member states under the Charter and obligations under any other international agreement, Charter obligations prevail. The explanation for the existence of normal denunciation clauses in general multilateral conventions which contain asserted norms of jus cogens is, as Schwelb indicates, that the idea of international jus cogens has not yet penetrated into the day-to-day thinking and action of governments.33 Other examples have been suggested: Barberis mentions treaties contrary to the rules of international law relating to the white slave traffic.34 Verdross goes much wider in asserting that all rules of general international law created for a humanitarian purpose constitute jus cogens . 35 Apart from the difficulty of delimiting what is and what is not a humanitarian purpose, this seems to go much too far. It implies that all human rights provisions contained in international treaties have the character of jus cogens. Given that even the United Nations Covenant on Civil and Political Rights is geared only towards achieving progressively the full realisation of the rights recognised in the present Covenant by all appropriate means, 36 it would be unwise to take at face value the suggestion that jus cogens embraces all human rights provisions, despite the fact that, in the Commissions commentary, certain members are recorded as having given treaties violating human rights as examples of treaties which would contravene a rule of jus cogens.37

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33 Schwelb, Some aspects of international jus cogens as formulated by the International Law Commission (1967) 61 AJIL at p 948. 34 Berberis, La libert de traiter des tats et le jus cogens (1970) ZaoRV pp 1945 at p 35. 35 Verdors, Jus dispositivum and jus cogens in international law (1966) 60 AJIL pp 5563 at p 59. 36 Article 2(I). 37 [1966] ILC Rep at p 77. 149

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Scheuner 38 suggests three categories of norms of jus cogens : firstly, rules protecting the foundations of law, peace and humanity, such as the prohibition of genocide, slavery or the use of force; secondly, rules of peaceful co-operation in the protection of common interests, such as freedom of the seas; and thirdly, rules protecting the most fundamental and basic human rights (to which might, as Crawford suggests,39 be added the basic rules for the protection of civilians and combatants in time of war). There would be little dispute with the first and, subject to what is said above about human rights provisions, the third of these three categories; but the second category is, as Crawford implies, very doubtful.40 Jimenez de Arechaga would embrace within the first of Scheuners three categories rules prohibiting racial discrimination, terrorism or the taking of hostages; 41 and Brownlie tentatively puts forward as candidate rules the principle of permanent sovereignty over natural resources and the principle of self-determination.42 Marek, in an attempt to find an underlying principle, advances the superficially attractive proposition that a treaty violative of jus cogens is any treaty in which two or more states undertake to commit acts which would be illegal if committed by a single state.43 But even this appears to go too wide; it would seem to exclude the possibility of inter se modification of a multilateral treaty, even although inter se modification is permissible under certain conditions. ... Whatever their doctrinal point of departure, the majority of jurists would no doubt willingly concede to the sceptics that there is little or no evidence in positive international law for the concept that nullity attaches to a treaty concluded in violation of jus cogens. But they would be constrained to admit that the validity of a treaty between two states to wage a war of aggression against a third state or to engage in acts of physical or armed force against a third state could not be upheld; and, having made this admission, they may be taken to have accepted the principle that there may exist norms of international law so fundamental to the maintenance of an international legal order that a treaty in violation of them is a nullity. Some (among whom may be counted your author) would be prepared to go this far, but would immediately wish to qualify this acceptance of the principle involved by sketching out the limits within which it may be operative in presentday international law. In the first place, they would insist that, in the present state of international society, the concept of an international legal order of hierarchically superior norms binding all states is only just beginning to emerge. Ideological differences and disparities of wealth between the individual states
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38 Scheuner, Conflict of treaty provisions with a peremptory norm of general international law and its consequences (1967) Zeitschrift fr auslndisches ffentliches Recht und Volkerrecht at p 526. 39 Crawford, The Creation of States in International Law, 1979, Oxford: Oxford University Press at p 81. 40 Ibid. 41 Jimenez de Arechaga, International law in the past third of a century (1978) 159 Recueil des Cours at p 64. 42 Brownlie, Principles of Public International Law, 1979, Oxford: Oxford University Press at p 513. But note that there is considerable controversy over the content of these principles, even as jus dispositivum; the suggestion that they may constitute rules of jus cogens is accordingly farfetched. 43 Marek, Contribution ltude du jus cogens en droit international in Hommage Paul Guggenheim, 1968, Geneva: Facult de droit de lUniversit de Genve pp 42659 at p 452. 150

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which make up the international community, combined with the contrasts between the objectives sought by them, hinder the development of an overarching consensus upon the content of jus cogens. Indeed, it is the existence of these very differences and disparities which constitute the principal danger implicit in an unqualified recognition of jus cogens; for it would be only too easy to postulate as a norm of jus cogens a principle which happened neatly to serve a particular ideological or economic goal. In the second place, they would test any assertion that a particular rule constitutes a norm of jus cogens by reference to the evidence for its acceptance as such by the international community as a whole, and they would require that the burden of proof should be discharged by those who allege the jus cogens character of the rule. Applying this test, and leaving aside the highly theoretical case of a treaty purporting to deny the application of the principle of pacta sunt servanda, it would seem that sufficient evidence for ascribing the character of jus cogens to a rule of international law exists in relation to the rule which requires states to refrain in their international relations from the threat of force against the territorial integrity or political independence of any other state. There is ample evidence for the proposition that, subject to the necessary exceptions about the use of force in self-defence or under the authority of a competent organ of the United Nations or a regional agency acting in accordance with the Charter, use of armed or physical force against the territorial integrity or political independence of any state is now prohibited. This proposition is so central to the existence of any international legal order of individual nation states (however nascent that international legal order may be) that it must be taken to have the character of jus cogens. Just as national legal systems begin to discard, at an early stage of their development, such concepts as trial by battle, so also must the international legal order be assumed now to deny any cover of legality to violations of the fundamental rule embodied in Article 2(4) of the Charter. Beyond this, uncertainty begins, and one must tread with considerable caution. The dictates of logic, and overriding considerations of morality, would appear to require that one should characterise as jus cogens those rules which prohibit the slave trade and genocide; but the evidence is ambivalent, since the treaties which embody these prohibitions contain normal denunciation clauses. Of course, it may be argued that the presence or absence of normal denunciaton clauses should not be taken as being decisive; denunciation clauses are regularly embodied in treaties for traditional, rather than practical, reasons. In any event, it is likely that the prohibitions may now be taken to form part of general international law binding all states regardless of whether they are parties to the treaties embodying them. The unenforceability of any treaty contemplating genocide or the slave trade is further assured by the fact that such a treaty would contravene the Charter of the United Nations, which prevails in the event of a conflict. To sum up, there is a place for the concept of jus cogens in international law. Its growth and development will parallel the growth and development of an international legal order expressive of the consensus of the international community as a whole. Such an international legal order is, at present, inchoate, unformed and only just discernible. Jus cogens is neither Dr Jekyll nor Mr Hyde; but it has the potentialities of both. If it is invoked indiscriminately and to serve short-term political purposes, it could rapidly be destructive of confidence in the security of treaties; if it is developed with wisdom and restraint in the overall interest of the international community it could constitute a useful check upon the unbridled will of individual states. This was the conclusion presented in the first edition of this book, published more than 10 years ago. It is a conclusion which the author considers is still valid.
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But he would wish to add the following. In the 14 years which have elapsed since the adoption of the Convention, there has been continued and continuing disputation among scholars as to the content and significance of jus cogens, not only in the context of the law of treaties, but also in other contexts. We have already seen how the notion of jus cogens has been used by way of analogy to sustain a distinction between so-called international crimes and international delicts within the framework of the law of state responsibility.44 The question has also been raised whether, and if so to what extent, jus cogens may, despite all the difficulties, be applicable to problems of territorial status that is to say, whether an entity has been created or extinguished in circumstances of such illegality that international law may, exceptionally, treat an effective entity as not a state (or, conversely, a non-effective entity as continuing to be a state).45 There has also been speculation about how far, if at all, prescription can be operative if the norm violated is one of jus cogens ; 46 it is at any rate clear from the Convention (Article 45) that acquiescence is not admissible in the case of conflict of a treaty with an existing or emerging norm of jus cogens. It is of course only right that there should be a thorough and sustained examination by scholars of the implications of jus cogens in the law of treaties and also in other branches of international law. What is, however, significant is that, during the past 14 years, there have been few, if any, instances in state practice where the validity of a treaty has been seriously challenged on the ground that it conflicted with a rule of jus cogens. The mystery of jus cogens remains a mystery. To borrow another analogy from English literature, 47 it has some of the attributes of the Cheshire cat which had the disconcerting habit of vanishing and then reappearing to deliver further words of wisdom. Jus cogens will undoubtedly continue to exercise its influence on the development of international law in the foreseeable future. How far that influence will extend to the actual practice of states remains to be seen, although there must now be a consciousness among the legal advisers to foreign ministries that international law does impose certain limitations upon the freedom of states to enter into treaties regardless of their object or content.48 Jurists have from time to time attempted to classify rules, or rights and duties, on the international plane by use of terms like fundamental or, in respect to rights, inalienable or inherent. Such classifications have not had much success, but have intermittently affected the interpretation of treaties by tribunals. In the recent past some eminent opinions have supported the view that certain overriding principles of international law exist, forming a body of jus cogens. The major distinguishing feature of such rules is their relative indelibility. They are rules of customary law which cannot be set aside by treaty or acquiescence but only by the formation of a subsequent customary rule of contrary effect. The least controversial examples of the class are the prohibition of the use of force,49
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44 45 46 47 48

See Chapter 10. Crawford, The Creation of States in International Law, 1979, Oxford: Oxford University Press at p 82. Brownlie, Principles of Public International Law, 1979,Oxford: Oxford University Press at p 514. Lewis Carroll, Alices Adventures in Wonderland, 1978, London: Methuen, Chapter VI. IM Sinclair, The Vienna Convention on the Law of Treaties , 2nd edn, 1984, Manchester: Manchester University Press at pp 20203, 21518, 22224. 49 McNair, Law of Treaties, 1961, Oxford: Clarendon Press at pp 21415; Dept of State Memo (1980) 74 AJIL at p 418; judgment of the ICJ in the Case Concerning Military and Para-military Activities in and against Nicaragua (Merits) [1986] ICJ Reps 10001 (para 190). 152

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the law of genocide, the principle of racial non-discrimination,50 crimes against humanity, and the rules prohibiting trade in slaves and piracy.51 In the Barcelona Traction case (Second Phase),52 the majority judgment of the International Court, supported by 12 judges, drew a distinction between obligations of a state arising vis--vis another state and obligations towards the international community as a whole. The Court said: Such obligations derive, for example, in contemporary international law, from the outlawing of acts of aggression, and of genocide, as also from the principles and rules concerning the basic rights of the human person, including protection from slavery and racial discrimination. Other rules which probably have this special status include the principle of permanent sovereignty over natural resources 53 and the principle of selfdetermination.54 The concept of jus cogens was accepted by the International Law Commission and incorporated in the final draft of the Vienna Convention on the Law of Treaties in 1966, Article 50, which provided that: ... a treaty is void if it conflicts with a peremptory norm of general international law from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character. The Commissions commentary makes it clear that by derogation is meant the use of agreement (and presumably acquiescence as a form of agreement) to contract out of rules of general international law. Thus an agreement by a state to allow another state to stop and search its ships on the high seas is valid, but an agreement with a neighbouring state to carry out a joint operation against a racial group straddling the frontier which would constitute genocide, if carried out, is void since the prohibition with which the treaty conflicts is a rule of jus cogens. After some controversy, the Vienna Conference on the Law of Treaties reached agreement on a provision (Art 53) similar to the draft article except that, for the purposes of the Vienna Convention on the Law of Treaties, a peremptory norm of general international law is defined as a norm accepted and recognised by the international community of states as a whole and which can be modified only by a subsequent norm of general international law having the same character. Charles de Visscher55 has pointed out that the proponent of a rule of jus cogens in relation to this article will have a considerable burden of proof. Apart form the law of treaties the specific content of norms of this kind involves the irrelevance of protest, recognition, and acquiescence: prescription cannot
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50 Judge Tanaka, diss op, South West Africa cases (Second Phase) [1966] ICJ Rep at 298; Judge Ammoun, sep op, Barcelona Traction case (Second Phase) [1970] ICJ Rep at 304; Judge Ammoun, sep op, Namibia opinion [1971] ICJ Rep at 7881. The principle of religious nondiscrimination must have the same status as also the principle of non-discrimination as to sex. 51 This statement in the third edition of the work (p 513) was quoted by the Inter-American Commission of Human Rights in the Case of Roach and Pinkerton, Decision of 27 March 1987 (OAS General Secretariat) 3336. 52 [1970] ICJ Rep at 3 at p 32. See also In re Koch, ILR 30, 496 at 503; Assessment of Aliens case, ILR 43, 3 at 8; Tokyo Suikosha case (1969) 13 Japanese Ann of IL 113 at 115. 53 Declaration on Permanent Sovereignty over Natural Resources, Un GA Res 1803 (XVII) of 14 December 1962 adopted by 87 votes to 2 with 12 abstentions. 54 Judge Ammoun, sep op, Barcelona Traction case (Second Phase) [1970] ICJ Rep at p 304. 55 Thories et ralistes en droit international, 4th edn, 1970, Paris: Pedane at pp 29596. 153

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purge this type of illegality. Moreover, it is arguable that jus cogens curtails various privileges, so that, for example, an aggressor state would not benefit from the rule that belligerents are not responsible for damage caused to subjects of neutral states by military operations. Many problems remain: more authority exists for the category of jus cogens than exists for its particular content, and rules do not develop in customary law which readily correspond to the new categories. However, certain portions of jus cogens are the subject of general agreement, including the rules to the use of force by states, self-determination, and genocide. Yet even here many problems of application remain, particularly in regard to the effect of self-determination on the transfer of territory. If a state uses force to implement the principle of self-determination, is it possible to assume that one aspect of jus cogens is more significant than another. The particular corollaries of the concept of jus cogens are still being explored.56

4.9.7 The effect of invalidity


Article 69 of the VCT 1969 provides that where the invalidity of a treaty is established, the treaty is void and its provisions have no legal effect. If acts have been performed in reliance on a void treaty then states may require other parties to establish, as far as possible, the position with regard to their mutual relations that would have existed if the acts had not been performed. Acts performed in good faith in reliance on a treaty before its invalidity was invoked are not rendered unlawful by reason only of the invalidity of the treaty. Article 71 deals with the specific consequences arising where a treaty conflicts with jus cogens. In such a situation the parties to the void treaty are under an obligation to bring their mutual relations into conformity with the peremptory norm. Where the treaty becomes void and terminates as a result of the development of a new rule of jus cogens under Article 64, the parties are released from any obligations further to perform the treaty, but rights and obligations created through the treaty prior to its termination are unaffected provided that such rights or obligations do not themselves conflict with the new peremptory norm. The answer to one question remains unclear: when a cause of invalidity arises, does it operate automatically, in the sense that anyone called upon to apply the treaty may judge whether or not it is valid, or is an international act of denunciation required on the part of the state that seeks to invoke the invalidity. The position at customary international law seems to be that where the invalidity results from error or fraud then an act of denunciation is required, but on questions of coercion or violation of jus cogens there seems to be no real agreement. In practice, however, it will usually be the case that the question of invalidity will arise when a party to the treaty wishes to absolve itself from the obligations contained in it. It is therefore likely that some public act of denunciation will occur. Article 65 of the VCT 1969 provides that a party which seeks to impeach the validity of a treaty must notify the other parties and, providing no objection is received within three months of giving notice, that party may consider the treaty as void. If objections are made there is a duty on the disputants to reach a peaceful settlement. The issue of peaceful settlement of disputes is dealt with in Chapter 12.
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56 Brownlie, Principles of Public International Law, 4th edn, 1990, Oxford: Oxford University Press at pp 51215. 154

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4.10 Termination, suspension of and withdrawal from treaties


4.10.1 By consent
Articles 54 to 59 of the VCT 1969 provide for various situations where a treaty may be terminated or suspended or where a party may withdraw from a treaty by consent. The most straightforward situation will arise where the treaty either makes provision for termination, denunciation or withdrawal or where all parties consent to a change. Where a treaty makes no provision for termination, denunciation or withdrawal then the rule is that withdrawal and denunciation will not be allowed unless it is established that the parties intended to admit its possibility, or a right of termination and denunciation can be implied by the nature of the treaty. In such a case a party wishing to denounce or withdraw from a treaty should give a minimum of 12 months notice. The operation of a treaty may be suspended if provided for in the treaty or if all parties consent. In the case of multilateral conventions, two or more parties may conclude an agreement to suspend the treaty as between themselves provided such suspension is not prohibited by the treaty and provided that it is not incompatible with the object and purpose of the treaty. If such an agreement to partially suspend a treaty is concluded there is a duty on the two or more states to inform the other parties to the treaty.

4.10.2 Material breach


It has always been a rule of customary law that the breach of an important provision of a treaty by one party entitles the other parties to regard that agreement as at an end. The main question that arises is how important a breach needs to be before it will justify the termination of a treaty. A material breach will entitle the other parties to a treaty to terminate or suspend a treaty in whole or in part. In the case of multilateral treaties, those not in breach might decide to terminate or suspend the treaty only in respect of the party in breach. It is clear that a party responsible for a material breach cannot itself rely on that breach to terminate a treaty.

4.10.3 Supervening impossibility of performance


Article 61 of the VCT 1969 introduces a rule analogous to the doctrine of frustration in municipal contract law. If a treaty becomes impossible to perform as a result of the permanent disappearance or destruction of an object indispensable for the execution of the treaty, that impossibility may be invoked as a reason for terminating or suspending the treaty. Where the impossibility is only temporary, it may only be invoked as a ground for suspension of the treaty. An example of the operation of Article 61 would be the case of a treaty governing rights pertaining to a river. The treaty could be terminated if the river dried up permanently. The impossibility of performance cannot be invoked by a party, where the impossibility results form the conduct of that party. Linked to impossibility of performance is the doctrine of force majeure. The doctrine will be discussed in more detail in Chapter 9 since it can provide a

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general defence to international responsibility. The requirements of force majeure are that it must be irresistible, unforeseeable and external to the party relying on it. It may therefore exist under conditions which fall short of absolute material impossibility of performance. At the Vienna Conference on the Law of Treaties Mexico proposed that force majeure should be included in Article 61 but the proposal was rejected. It therefore seems to be the case that although force majeure may provide a defence for states accused of breaching treaty obligations, it will not result in the termination of the treaty. However, since a material breach of a treaty can result in the termination of that treaty, it may be argued that the ultimate effect of force majeure will be the same as a material impossibility of performance.

4.10.4 Fundamental change of circumstances


A fundamental change of the circumstances existing at the time the treaty was concluded has traditionally been a ground for withdrawal or termination. The rule is often referred to as the doctrine of rebus sic stantibus. Before the First World War a number of treaties were brought to an end by states relying on fairly minor changes. Since that time the law has been tightened up and it is clear that any change must be such as to alter radically the circumstances on the basis of which a treaty was concluded. In the Fisheries Jurisdiction case (1973) the ICJ declared that:
... international law admits that a fundamental change in the circumstances which determined the parties to accept a treaty, if it has resulted in a radical transformation of the extent of the obligations imposed by it, may, under certain conditions, afford the party affected a ground for invoking the termination or suspension of the treaty. This principle, and the conditions and exceptions to which it is subject, have been embodied in Article 62 of the Vienna Convention on the Law of Treaties, which may in many respects be considered as a codification of existing customary law on the subject ...57

The conditions and exceptions which are indicated by Article 62 are that the change of circumstances must not have been foreseen at the time of the conclusion of the treaty; the existence of the circumstances must have constituted an essential basis of consent and the effect of the change is to transform radically the nature and extent of the obligations still to be performed under the treaty. A fundamental change of circumstances may not be invoked with regard to a treaty establishing a boundary, nor if the change is the result of a breach of any international obligation owed to any other party to the treaty by the party invoking it.

4.10.5 Other possible grounds


Article 63 of the VCT 1969 provides that severance of diplomatic relations will not in itself affect treaty relationships, unless of course it amounts to a fundamental change of circumstances. There are a number of views as to the effect on a treaty of the outbreak of war. The VCT 1969 contains no provision relating to war, and it is certain that treaties governing war and peace, for
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57 [1974] ICJ Rep 3. 156

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example the UN Charter and the Geneva Conventions 1949 are not terminated or suspended by war. The most sensible view seems to be that expressed by the New York state Court of Appeals in Techt v Hughes (1920): ... treaty provisions compatible with a state of hostilities, unless expressly terminated, will be enforced, and those incompatible rejected.

4.10.6 The effect of termination or suspension


Article 70 of the VCT 1969 provides that termination of a treaty releases the parties form any obligation further to perform the treaty but does not affect rights and obligations or situations created prior to termination. The effect of suspension is to release the parties from their obligations for the period of suspension.

CASE CONCERNING THE GABCIKOVO-NAGYMAROS PROJECT (HUNGARY/SLOVAKIA)58


The case concerned a dispute between Hungary and Slovakia (successor state to Czechoslovakia) arising from a 1977 treaty between Hungary and Czechoslovakia which provided for the two states to undertake a joint project for the construction of a system of locks, flood protection schemes and hydroelectric plants on the river Danube. The project had the aims of improving navigation, producing of electricity and protecting against flooding. The parties also undertook to ensure that the quality of the water in the Danube was not impaired as a result of the project. Following the political changes in Eastern Europe and the growth of environmental concern, particularly in Hungary, the parties agreed to slow down the speed of work on the project in 1983. In 1989, Hungary decided to abandon all work on the project and the dispute commenced. In the course of its judgment the ICJ had to consider a number of important aspects of the law relating to treaties as well as issues of state responsibility and environmental protection.
92 During the proceedings, Hungary presented five arguments in support of the lawfulness, and thus the effectiveness, of its notification of termination. These were the existence of a state of necessity; the impossibility of performance of the Treaty; the occurrence of a fundamental change of circumstances; the material breach of the Treaty by Czechoslovakia; and, finally, the development of new norms of international environmental law. Slovakia contested each of these grounds. On the first point, Hungary stated that, as Czechoslovakia had remained inflexible and continued with its implementation of Variant C, a temporary state of necessity eventually became permanent, justifying termination of the 1977 Treaty. Slovakia, for its part, denied that a state of necessity existed on the basis of what it saw as the scientific facts; and argued that even if such a state of necessity had existed, this would not give rise to a right to terminate the Treaty under the Vienna Convention of 1969 on the Law of Treaties.

93

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58 Judgment of 25 September 1997 available at: http://www.icj-cij.org/idocket/ihs/ihsframe.htm. 157

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94 Hungarys second argument relied on the terms of Article 61 of the Vienna Convention, which is worded as follows: Article 61 Supervening impossibility of performance 1 A party may invoke the impossibility of performing a treaty as a ground for terminating or withdrawing from it if the impossibility results from the permanent disappearance or destruction of an object indispensable for the execution of the treaty. If the impossibility is temporary, it may be invoked only as a ground for suspending the operation of the treaty. 2 Impossibility of performance may not be invoked by a party as a ground for terminating, withdrawing from or suspending the operation of a treaty if the impossibility is the result of a breach by that party either of an obligation under the treaty or of any other international obligation owed to any other party to the treaty. Hungary declared that it could not be obliged to fulfil a practically impossible task, namely to construct a barrage system on its own territory that would cause irreparable environmental damage. It concluded that: By May 1992 the essential object of the Treaty an economic joint investment which was consistent with environmental protection and which was operated by the two parties jointly had permanently disappeared, and the Treaty had thus become impossible to perform. In Hungarys view, the object indispensable for the execution of the Treaty, whose disappearance or destruction was required by Article 61 of the Vienna Convention, did not have to be a physical object, but could also include, in the words of the International Law Commission, a legal situation which was the raison dtre of the rights and obligations. Slovakia claimed that Article 61 was the only basis for invoking impossibility of performance as a ground for termination, that para 1 of that Article clearly contemplated physical disappearance or destruction of the object in question, and that, in any event, para 2 precluded the invocation of impossibility if the impossibility is the result of a breach by that party ... of an obligation under the treaty. As to fundamental change of circumstances, Hungary relied on Article 62 of the Vienna Convention on the Law of Treaties which states as follows: Article 62 Fundamental change of circumstances 1 A fundamental change of circumstances which has occurred with regard to those existing at the time of the conclusion of a treaty, and which was not foreseen by the parties, may not be invoked as a ground for terminating or withdrawing from the treaty unless: (a) the existence of those circumstances constituted an essential basis of the consent of the parties to be bound by the treaty; and (b) the effect of the change is radically to transform the extent of obligations still to be performed under the treaty. 2 A fundamental change of circumstances may not be invoked as a ground for terminating or withdrawing from a treaty: (a) if the treaty establishes a boundary; or (b) if the fundamental change is the result of a breach by the party invoking it either of an obligation under the treaty or of any other international obligation owed to any other party to the treaty.

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If, under the foregoing paragraphs, a party may invoke a fundamental change of circumstances as a ground for terminating or withdrawing from a treaty it may also invoke the change as a ground for suspending the operation of the treaty. Hungary identified a number of substantive elements present at the conclusion of the 1977 Treaty which it said had changed fundamentally by the date of notification of termination. These included the notion of socialist integration, for which the Treaty had originally been a vehicle, but which subsequently disappeared; the single and indivisible operational system, which was to be replaced by a unilateral scheme; the fact that the basis of the planned joint investment had been overturned by the sudden emergence of both states into a market economy; the attitude of Czechoslovakia which had turned the framework treaty into an immutable norm; and, finally, the transformation of a treaty consistent with environmental protection into a prescription for environmental disaster. Slovakia, for its part, contended that the changes identified by Hungary had not altered the nature of the obligations under the Treaty from those originally undertaken, so that no entitlement to terminate it arose from them. 96 Hungary further argued that termination of the Treaty was justified by Czechoslovakias material breaches of the Treaty, and in this regard it invoked Article 60 of the Vienna Convention on the Law of Treaties, which provides: Article 60 Termination or suspension of the operation of a treaty as a consequence of its breach 1 A material breach of a bilateral treaty by one of the parties entitles the other to invoke the breach as a ground for terminating the treaty or suspending its operation in whole or in part. 2 A material breach of a multilateral treaty by one of the parties entitles: (a) the other parties by unanimous agreement to suspend the operation of the treaty in whole or in part or to terminate it either: (i) in the relations between themselves and the defaulting state, or (ii) as between all the parties; (b) a party specially affected by the breach to invoke it as a ground for suspending the operation of the treaty in whole or in part in the relations between itself and the defaulting state; (c) any party other than the defaulting state to invoke the breach as a ground for suspending the operation of the treaty in whole or in part with respect to itself if the treaty is of such a character that a material breach of its provisions by one party radically changes the position of every party with respect to the further performance of its obligations under the treaty. 3 A material breach of a treaty, for the purposes of this article, consists in: (a) a repudiation of the treaty not sanctioned by the present Convention; or (b) the violation of a provision essential to the accomplishment of the object or purpose of the treaty. 4 The foregoing paragraphs are without prejudice to any provision in the treaty applicable in the event of a breach. 5 Paragraphs 1 to 3 do not apply to provisions relating to the protection of the human person contained in treaties of a humanitarian character, in particular
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to provisions prohibiting any form of reprisals against persons protected by such treaties. Hungary claimed in particular that Czechoslovakia violated the 1977 Treaty by proceeding to the construction and putting into operation of Variant C, as well as failing to comply with its obligations under Articles 15 and 19 of the Treaty. Hungary further maintained that Czechoslovakia had breached other international conventions (among them the Convention of 31 May 1976 on the Regulation of Water Management Issues of Boundary Waters) and general international law. Slovakia denied that there had been, on the part of Czechoslovakia or on its part, any material breach of the obligations to protect water quality and nature, and claimed that Variant C, far from being a breach, was devised as the best possible approximate application of the Treaty. It furthermore denied that Czechoslovakia had acted in breach of other international conventions or general international law. 97 Finally, Hungary argued that subsequently imposed requirements of international law in relation to the protection of the environment precluded performance of the Treaty. The previously existing obligation not to cause substantive damage to the territory of another state had, Hungary claimed, evolved into an erga omnes obligation of prevention of damage pursuant to the precautionary principle. On this basis, Hungary argued, its termination was forced by the other partys refusal to suspend work on Variant C. Slovakia argued, in reply, that none of the intervening developments in environmental law gave rise to norms of jus cogens that would override the Treaty. Further, it contended that the claim by Hungary to be entitled to take action could not in any event serve as legal justification for termination of the Treaty under the law of treaties, but belonged rather to the language of self-help or reprisals. 98 The question, as formulated in Article 2, para 1 (c), of the Special Agreement, deals with treaty law since the Court is asked to determine what the legal effects are of the notification of termination of the Treaty. The question is whether Hungarys notification of 19 May 1992 brought the 1977 Treaty to an end, or whether it did not meet the requirements of international law, with the consequence that it did not terminate the Treaty. 99 The Court has referred earlier to the question of the applicability to the present case of the Vienna Convention of 1969 on the Law of Treaties. The Vienna Convention is not directly applicable to the 1977 Treaty inasmuch as both states ratified that Convention only after the Treatys conclusion. Consequently only those rules which are declaratory of customary law are applicable to the 1977 Treaty. As the Court has already stated above (see para 46), this is the case, in many respects, with Articles 60 to 62 of the Vienna Convention, relating to termination or suspension of the operation of a treaty. On this, the parties, too, were broadly in agreement. 100 The 1977 Treaty does not contain any provision regarding its termination. Nor is there any indication that the parties intended to admit the possibility of denunciation or withdrawal. On the contrary, the Treaty establishes a long-standing and durable regime of joint investment and joint operation. Consequently, the parties not having agreed otherwise, the Treaty could be terminated only on the limited grounds enumerated in the Vienna Convention.

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101 The Court will now turn to the first ground advanced by Hungary, that of the state of necessity. In this respect, the Court will merely observe that, even if a state of necessity is found to exist, it is not a ground for the termination of a treaty. It may only be invoked to exonerate from its responsibility a State which has failed to implement a treaty. Even if found justified, it does not terminate a treaty; the treaty may be ineffective as long as the condition of necessity continues to exist; it may in fact be dormant, but unless the parties by mutual agreement terminate the Treaty it continues to exist. As soon as the state of necessity ceases to exist, the duty to comply with treaty obligations revives. 102 Hungary also relied on the principle of the impossibility of performance as reflected in Article 61 of the Vienna Convention on the Law of Treaties. Hungarys interpretation of the wording of Article 61 is, however, not in conformity with the terms of that Article, nor with the intentions of the Diplomatic Conference which adopted the Convention. Article 61, para 1, requires the permanent disappearance or destruction of an object indispensable for the execution of the Treaty to justify the termination of a treaty on grounds of impossibility of performance. During the conference, a proposal was made to extend the scope of the article by including in it cases such as the impossibility to make certain payments because of serious financial difficulties (Official Records of the United Nations Conference on the Law of Treaties, First Session, Vienna, 26 March24 May 1968, Doc A/CONF.39/11, Summary records of the plenary meetings and of the meetings of the Committee of the Whole, 62nd Meeting of the Committee of the Whole at pp 36165). Although it was recognised that such situations could lead to a preclusion of the wrongfulness of non-performance by a party of its treaty obligations, the participating states were not prepared to consider such situations to be a ground for terminating or suspending a treaty, and preferred to limit themselves to a narrower concept. 103 Hungary contended that the essential object of the Treaty an economic joint investment which was consistent with environmental protection and which was operated by the two contracting parties jointly had permanently disappeared and that the Treaty had thus become impossible to perform. It is not necessary for the Court to determine whether the term object in Article 61 can also be understood to embrace a legal regime as in any event, even if that were the case, it would have to conclude that in this instance that regime had not definitively ceased to exist. The 1977 Treaty and in particular its Articles 15, 19 and 20 actually made available to the parties the necessary means to proceed at any time, by negotiation, to the required readjustments between economic imperatives and ecological imperatives. The Court would add that, if the joint exploitation of the investment was no longer possible, this was originally because Hungary did not carry out most of the works for which it was responsible under the 1977 Treaty; Article 61, para 2 of the Vienna Convention expressly provides that impossibility of performance may not be invoked for the termination of a treaty by a party to that treaty when it results from that partys own breach of an obligation flowing from that treaty. 104 Hungary further argued that it was entitled to invoke a number of events which, cumulatively, would have constituted a fundamental change of circumstances. In this respect it specified profound changes of a political nature, the Projects diminishing economic viability, the progress of environmental knowledge and the development of new norms and prescriptions of international environmental law (see para 95 above).
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The Court recalls that, in the Fisheries Jurisdiction case ([1973] ICJ Rep at p 63, para 36), it stated that: Article 62 of the Vienna Convention on the Law of Treaties, ... may in many respects be considered as a codification of existing customary law on the subject of the termination of a treaty relationship on account of change of circumstances. The prevailing political situation was certainly relevant for the conclusion of the 1977 Treaty. But the Court will recall that the Treaty provided for a joint investment programme for the production of energy, the control of floods and the improvement of navigation on the Danube. In the Courts view, the prevalent political conditions were thus not so closely linked to the object and purpose of the Treaty that they constituted an essential basis of the consent of the parties and, in changing, radically altered the extent of the obligations still to be performed. The same holds good for the economic system in force at the time of the conclusion of the 1977 Treaty. Besides, even though the estimated profitability of the Project might have appeared less in 1992 than in 1977, it does not appear from the record before the Court that it was bound to diminish to such an extent that the Treaty obligations of the parties would have been radically transformed as a result. The Court does not consider that new developments in the state of environmental knowledge and of environmental law can be said to have been completely unforeseen. What is more, the formulation of Articles 15, 19 and 20, designed to accommodate change, made it possible for the parties to take account of such developments and to apply them when implementing those treaty provisions. The changed circumstances advanced by Hungary are, in the Courts view, not of such a nature, either individually or collectively, that their effect would radically transform the extent of the obligations still to be performed in order to accomplish the Project. A fundamental change of circumstances must have been unforeseen; the existence of the circumstances at the time of the Treatys conclusion must have constituted an essential basis of the consent of the parties to be bound by the Treaty. The negative and conditional wording of Article 62 of the Vienna Convention on the Law of Treaties is a clear indication moreover that the stability of treaty relations requires that the plea of fundamental change of circumstances be applied only in exceptional cases. 105 The Court will now examine Hungarys argument that it was entitled to terminate the 1977 Treaty on the ground that Czechoslovakia had violated its Articles 15, 19 and 20 (as well as a number of other conventions and rules of general international law); and that the planning, construction and putting into operation of Variant C also amounted to a material breach of the 1977 Treaty. 106 As to that part of Hungarys argument which was based on other treaties and general rules of international law, the Court is of the view that it is only a material breach of the Treaty itself, by a state party to that treaty, which entitles the other party to rely on it as a ground for terminating the Treaty. The violation of other treaty rules or of rules of general international law may justify the taking of certain measures, including countermeasures, by the injured state, but it does not constitute a ground for termination under the law of treaties. 107 Hungary contended that Czechoslovakia had violated Articles 15, 19 and 20 of the Treaty by refusing to enter into negotiations with Hungary in order to

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adapt the Joint Contractual Plan to new scientific and legal developments regarding the environment. Articles 15, 19 and 20 oblige the parties jointly to take, on a continuous basis, appropriate measures necessary for the protection of water quality, of nature and of fishing interests. Articles 15 and 19 expressly provide that the obligations they contain shall be implemented by the means specified in the Joint Contractual Plan. The failure of the parties to agree on those means cannot, on the basis of the record before the Court, be attributed solely to one party. The Court has not found sufficient evidence to conclude that Czechoslovakia had consistently refused to consult with Hungary about the desirability or necessity of measures for the preservation of the environment. The record rather shows that, while both parties indicated, in principle, a willingness to undertake further studies, in practice Czechoslovakia refused to countenance a suspension of the works at Dunakiliti and, later, on Variant C, while Hungary required suspension as a prior condition of environmental investigation because it claimed continuation of the work would prejudice the outcome of negotiations. In this regard it cannot be left out of consideration that Hungary itself, by suspending the works at Nagymaros and Dunakiliti, contributed to the creation of a situation which was not conducive to the conduct of fruitful negotiations. 108 Hungarys main argument for invoking a material breach of the Treaty was the construction and putting into operation of Variant C. As the Court has found in para 79 above, Czechoslovakia violated the Treaty only when it diverted the waters of the Danube into the bypass canal in October 1992. In constructing the works which would lead to the putting into operation of Variant C, Czechoslovakia did not act unlawfully. In the Courts view, therefore, the notification of termination by Hungary on 19 May 1992 was premature. No breach of the Treaty by Czechoslovakia had yet taken place and consequently Hungary was not entitled to invoke any such breach of the Treaty as a ground for terminating it when it did. 109 In this regard, it should be noted that, according to Hungarys Declaration of 19 May 1992, the termination of the 1977 Treaty was to take effect as from 25 May 1992, that is only six days later. Both parties agree that Articles 65 to 67 of the Vienna Convention on the Law of Treaties, if not codifying customary law, at least generally reflect customary international law and contain certain procedural principles which are based on an obligation to act in good faith. As the Court stated in its Advisory Opinion on the Interpretation of the Agreement of 25 March 1951 between the WHO and Egypt (in which case the Vienna Convention did not apply): Precisely what periods of time may be involved in the observance of the duties to consult and negotiate, and what period of notice of termination should be given, are matters which necessarily vary according to the requirements of the particular case. In principle, therefore, it is for the parties in each case to determine the length of those periods by consultation and negotiation in good faith. ([1980] ICJ Rep at p 96, para 49.) The termination of the Treaty by Hungary was to take effect six days after its notification. On neither of these dates had Hungary suffered injury resulting from acts of Czechoslovakia. The Court must therefore confirm its conclusion that Hungarys termination of the Treaty was premature. 110 Nor can the Court overlook that Czechoslovakia committed the internationally wrongful act of putting into operation Variant C as a result of

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Hungarys own prior wrongful conduct. As was stated by the Permanent Court of International Justice: It is, moreover, a principle generally accepted in the jurisprudence of international arbitration, as well as by municipal courts, that one party cannot avail himself of the fact that the other has not fulfilled some obligation or has not had recourse to some means of redress, if the former party has, by some illegal act, prevented the latter from fulfilling the obligation in question, or from having recourse to the tribunal which would have been open, to him. (Factory at Chorzow, Jurisdiction, Judgment No 8, PCIJ Ser A, No 9 p 31 (1927).) Hungary, by its own conduct, had prejudiced its right to terminate the Treaty; this would still have been the case even if Czechoslovakia, by the time of the purported termination, had violated a provision essential to the accomplishment of the object or purpose of the Treaty. 111 Finally, the Court will address Hungarys claim that it was entitled to terminate the 1977 Treaty because new requirements of international law for the protection of the environment precluded performance of the Treaty. 112 Neither of the parties contended that new peremptory norms of environmental law had emerged since the conclusion of the 1977 Treaty, and the Court will consequently not be required to examine the scope of Article 64 of the Vienna Convention on the Law of Treaties. On the other hand, the Court wishes to point out that newly developed norms of environmental law are relevant for the implementation of the Treaty and that the parties could, by agreement, incorporate them through the application of Articles 15, 19 and 20 of the Treaty. These articles do not contain specific obligations of performance but require the parties, in carrying out their obligations to ensure that the quality of water in the Danube is not impaired and that nature is protected, to take new environmental norms into consideration when agreeing upon the means to be specified in the Joint Contractual Plan. By inserting these evolving provisions in the Treaty, the parties recognised the potential necessity to adapt the Project. Consequently, the Treaty is not static, and is open to adapt to emerging norms of international law. By means of Articles 15 and 19, new environmental norms can be incorporated in the Joint Contractual Plan. The responsibility to do this was a joint responsibility. The obligations contained in Articles 15, 19 and 20 are, by definition, general and have to be transformed into specific obligations of performance through a process of consultation and negotiation. Their implementation thus requires a mutual willingness to discuss, in good faith, actual and potential environmental risks. It is all the more important to do this because as the Court recalled in its Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons, the environment is not an abstraction but represents the living space, the quality of life and the very health of human beings, including generations unborn ([1996] ICJ Rep at para 29; see also para 53 above). The awareness of the vulnerability of the environment and the recognition that environmental risks have to be assessed on a continuous basis have become much stronger in the years since the Treatys conclusion. These new concerns have enhanced the relevance of Articles 15, 19 and 20. 113 The Court recognises that both parties agree on the need to take environmental concerns seriously and to take the required precautionary
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measures, but they fundamentally disagree on the consequences this has for the joint Project. In such a case, third-party involvement may be helpful and instrumental in finding a solution, provided each of the parties is flexible in its position. 114 Finally, Hungary maintained that by their conduct both parties had repudiated the Treaty and that a bilateral treaty repudiated by both parties cannot survive. The Court is of the view, however, that although it has found that both Hungary and Czechoslovakia failed to comply with their obligations under the 1977 Treaty, this reciprocal wrongful conduct did not bring the Treaty to an end nor justify its termination. The Court would set a precedent with disturbing implications for treaty relations and the integrity of the rule pacta sunt servanda if it were to conclude that a treaty in force between states, which the parties have implemented in considerable measure and at great cost over a period of years, might be unilaterally set aside on grounds of reciprocal non-compliance. It would be otherwise, of course, if the parties decided to terminate the Treaty by mutual consent. But in this case, while Hungary purported to terminate the Treaty, Czechoslovakia consistently resisted this act and declared it to be without legal effect. 115 In the light of the conclusions it has reached above, the Court, in reply to the question put to it in Article 2, para 1(c), of the Special Agreement (see para 89), finds that the notification of termination by Hungary of 19 May 1992 did not have the legal effect of terminating the 1977 Treaty and related instruments.

4.11 Dispute settlement


One of the main purposes of international law is to provide a framework for the peaceful settlement of disputes and Article 33 of the UN Charter places an obligation on states to settle their disputes by peaceful means. Clearly this provision applies to disputes between parties to a treaty. Article 66 VCT 1969 deals with the specific question of disputes arising out of questions of validity, termination, withdrawal from or suspension of the operation of a treaty. If parties have not been able to settle the dispute themselves within a period of 12 months then two procedures come into operation. In the case of disputes about the application or interpretation of a rule of jus cogens the parties to the dispute may submit it to the ICJ for a decision. Disputes arising for other reasons are to be submitted to a conciliation procedure operated by the Secretary General of the UN and detailed in an annex to the VCT 1969.

4.12 State succession


State succession involves the replacement of one state by another in the responsibility for the international relations of territory and has been a particularly controversial and unsettled area of law. In 1978 the Vienna Convention on the Succession of States in Respect of Treaties was signed. The VCS has yet to enter into force, although the basic rules are thought to reflect customary international law. As far as newly independent states are concerned, the VCS operates the clean slate rule. In other words, a newly de-colonised state:

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... is not bound to maintain in force, or become a party to, any treaty by reason only of the fact that at the date of the succession of states the treaty was in force in respect of the territory to which the succession of states relates.59

The only exception to this rule is in respect of treaties establishing boundaries or concerning other territorial matters, eg treaties establishing objective regimes. This reflects general international practice with regard to the sanctity of boundaries and is in line with Article 62(2) of the VCT 1969 which provides that a fundamental change of circumstances cannot be invoked as a ground for terminating a treaty that establishes a boundary. Of course, successor states may wish to become parties to treaties which had been in force with respect to the territory in question. In such a situation, a successor state may become a party by giving notice of succession. This rule will not apply where the application of the treaty to the successor state would be incompatible with the object and purpose of the treaty. VCS 1978 was adopted when questions of state succession mainly arose as a result of de-colonisation. Recent events in Central and Eastern Europe have raised new questions and it is not yet possible to identify clearly a body of common state practice. Generally, the problem has been dealt with during negotiations leading to recognition of new states and in the drafting of new constitutions. In the case of German unification, many of the problems were dealt with in the Unification Treaty 1990 between the Federal Republic of Germany and the German Democratic Republic. Under the terms of unification the GDR ceased to exist as a state and its territory was integrated into the FRG. As far as treaties to which the FRG is a party are concerned, the principle of moving treaty frontiers applies in that all treaties remain in force unless it appears that application of the treaty to the new territory would be incompatible with the object and purpose of the treaty or would radically change the conditions for its operation (Article 15 of the VCS 1978). As far as treaties to which the GDR was a party are concerned the position is more difficult. In the case of a union between two states which results in a new successor state the VCS 1978 provides for the continuation of the treaties of both states to the extent that application of the treaties to the successor state is compatible with the object and purpose of the treaties, and does not radically change the conditions for its operation. Such treaties continuing in force shall in general only apply in respect of the part of the territory of the successor state in respect of which the treaty was in force at the date of succession. The situation envisaged here is exemplified by the short-lived union of Egypt and Syria in the United Arab Republic, where the two states continued, in practice, to live a separate existence. The rules applicable to that situation do not seem to apply easily to the German situation. The preferred view seems to be that when states become dissolved, prima facie, no treaties pass to the successor state. and this rule applies where formerly sovereign territory is integrated into an existing state. Thus treaties concluded by former sovereign parts of the Indian, American and Australian federal states have been discontinued. Clearly, the option remains for the successor state to choose expressly to be bound by such treaties, but succession is not regarded as automatic.
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59 Article 16 of the VCS 1978. 166

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With regard to those states which were formerly part of the Soviet Union, Russia has been regarded as a continuation of the Soviet Union and the other former Soviet republics have been regarded as successor states, except in the case of the Baltic republics of Latvia, Estonia, and Lithuania, which are regarded as the continuation of states which existed up until Soviet annexation in 1940. The Baltic states do not regard themselves as bound by treaties entered into by the former Soviet Union. The treaty obligations of the other former Soviet republics have been dealt with on a case-by-case basis. The same formula has been used in relation to the division of the former Czechoslovak Republic into the Czech Republic and the Republic of Slovakia and in the case of the break-up of the former Socialist Republic of Yugoslavia. The problem is complicated with regard to Yugoslavia since while the Belgrade regime of Serbia and Montenegro considers itself to be the continuation of former Yugoslavia and refers to itself as the Republic of Yugoslavia, this claim is not recognised by the rest of the international community. The issue of succession to treaties is currently being considered by the ICJ in the Case Concerning the Application of the Convention on the Prevention and Punishment of the Crime of Genocide, in which proceedings have been brought by the government of Bosnia and Herzegovina against Serbia and Montenegro. Both parties regard themselves as parties to the Genocide Convention although Serbia and Montenegro has not deposited an instrument of succession. There have recently been discussions within the Council of Europe on the whole question of treaty succession and it has been suggested that matters could be clarified if there was an obligation on the depositories of treaties to contact successor states to ascertain their position with regard to the treaty obligations of those formerly responsible for the territory.
17 The proceedings instituted before the Court are between two states whose territories are located within the former Socialist Federal Republic of Yugoslavia. That Republic signed the Genocide Convention on 11 December 1948 and deposited its instrument of ratification, without reservation, on 29 August 1950. At the time of the proclamation of the Federal Republic of Yugoslavia, on 27 April 1992, a formal declaration was adopted on its behalf to the effect that: The Federal Republic of Yugoslavia, continuing the state, international legal and political personality of the Socialist Federal Republic of Yugoslavia, shall strictly abide by all the commitments that the Socialist Federal Republic of Yugoslavia assumed internationally. This intention thus expressed by Yugoslavia to remain bound by the international treaties to which the former Yugoslavia was party was confirmed in an Official Note of 27 April 1992 from the Permanent Mission of Yugoslavia to the United Nations, addressed to the Secretary General. The Court observes, furthermore, that it has not been contested that Yugoslavia was party to the Genocide Convention. Thus, Yugoslavia was bound by the provisions of the Convention on the date of the filing of the Application in the present case, namely, on 20 March 1993. For its part, on 29 December 1992, Bosnia-Herzegovina transmitted to the Secretary General of the United Nations, as depositary of the Genocide Convention, a Notice of Succession in the following terms: The Government of the Republic of Bosnia and Herzegovina, having considered the Convention on the Prevention and Punishment of the

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Crime of Genocide, of 9 December 1948, to which the former Socialist Federal Republic of Yugoslavia was a party, wishes to succeed to the same and undertakes faithfully to perform and carry out all the stipulations therein contained with effect from 6 March 1992, the date on which the Republic of Bosnia and Herzegovina became independent. On 18 March 1993, the Secretary General communicated the following Depositary Notification to the parties to the Genocide Convention: On 29 December 1992, the notification of succession by the Government of Bosnia and Herzegovina to the above-mentioned Convention was deposited with the Secretary General, with effect from 6 March 1992, the date on which Bosnia and Herzegovina assumed responsibility for its international relations. Yugoslavia has contested the validity and legal effect of the Notice of 29 December 1992, contending that, by its acts relating to its accession to independence, the Republic of Bosnia-Herzegovina had flagrantly violated the duties stemming from the principle of equal rights and self-determination of peoples. According to Yugoslavia, Bosnia-Herzegovina was not, for this reason, qualified to become a party to the convention. Yugoslavia subsequently reiterated this objection in the third preliminary objection which it raised in this case. The Court notes that Bosnia-Herzegovina became a Member of the United Nations following the decisions adopted on 22 May 1992 by the Security Council and the General Assembly, bodies competent under the Charter. Article XI of the Genocide Convention opens it to any member of the United Nations; from the time of its admission to the Organisation, BosniaHerzegovina could thus become a party to the Convention. Hence the circumstances of its accession to independence are of little consequence. It is clear from the foregoing that Bosnia-Herzegovina could become a party to the Convention through the mechanism of state succession. Moreover, the Secretary General of the United Nations considered that this had been the case, and the Court took note of this in its Order of 8 April 1993 ([1993] ICJ Rep at p 16, para 25). The Parties to the dispute differed as to the legal consequences to be drawn from the occurrence of a state succession in the present case. In this context, Bosnia-Herzegovina has, among other things, contended that the Genocide Convention falls within the category of instruments for the protection of human rights, and that consequently, the rule of automatic succession necessarily applies. Bosnia-Herzegovina concluded therefrom that it became a party to the Convention with effect from its accession to independence. Yugoslavia disputed any automatic succession of Bosnia-Herzegovina to the Genocide Convention on this or any other basis. As regards the nature of the Genocide Convention, the Court would recall what it stated in its Advisory Opinion of 28 May 1951 relating to the Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide. In such a convention the Contracting States do not have any interests of their own; they merely have, one and all, a common interest, namely, the accomplishment of those high purposes which are the raison dtre of the Convention. Consequently, in a convention of this type one cannot speak of individual advantages or disadvantages to states, or of the

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maintenance of a perfect contractual balance between rights and duties. ([1951] ICJ Rep at p 23.) The Court subsequently noted in that Opinion that: The object and purpose of the Genocide Convention imply that it was the intention of the General Assembly and of the states which adopted it that as many states as possible should participate. The complete exclusion from the Convention of one or more states would not only restrict the scope of its application, but would detract from the authority of the moral and humanitarian principles which are its basis. (Ibid, p 24.) Without prejudice as to whether or not the principle of automatic succession applies in the case of certain types of international treaties or conventions, the Court does not consider it necessary, in order to decide on its jurisdiction in this case, to make a determination on the legal issues concerning state succession in respect to treaties which have been raised by the Parties. Whether Bosnia-Herzegovina automatically became party to the Genocide Convention on the date of its accession to independence on 6 March 1992, or whether it became a party as a result, retroactive or not, of its Notice of Succession of 29 December 1992, at all events it was a party to it on the date of the filing of its Application on 20 March 1993. These matters might, at the most, possess a certain relevance with respect to the determination of the scope ratione temporis of the jurisdiction of the Court, a point which the Court will consider later (paragraph 34 below). Yugoslavia has also contended, in its sixth preliminary objection, that, if the Notice given by Bosnia-Herzegovina on 29 December 1992 had to be interpreted as constituting an instrument of accession within the meaning of Article XI of the Genocide Convention, it could only have become effective, pursuant to Article XIII of the Convention, on the 90th day following its deposit, that is, 29 March 1993. Since the Court has concluded that Bosnia-Herzegovina could become a party to the Genocide Convention as a result of a succession, the question of the application of Articles XI and XIII of the Convention does not arise. However, the Court would recall that, as it noted in its Order of 8 April 1993, even if Bosnia-Herzegovina were to be treated as having acceded to the Genocide Convention, which would mean that the Application could be said to be premature by nine days when filed on 20 March 1993, during the time elapsed since then, Bosnia-Herzegovina could, on its own initiative, have remedied the procedural defect by filing a new Application. It therefore matters little that the Application had been filed some days too early. As will be indicated in the following paragraphs, the Court is not bound to attach the same degree of importance to considerations of form as they might possess in domestic law.60

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117 The Court must first turn to the question whether Slovakia became a party to the 1977 Treaty as successor to Czechoslovakia. As an alternative argument, Hungary contended that, even if the Treaty survived the notification of termination, in any event it ceased to be in force as a treaty on 31 December 1992, as a result of the disappearance of one of the parties. On that date

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60 Case Concerning the Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia-Herzegovina v Yugolslavia) (Preliminary Objections) Judgment of 11 July 1996. 169

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Czechoslovakia ceased to exist as a legal entity, and on 1 January 1993 the Czech Republic and the Slovak Republic came into existence. According to Hungary, there is no rule of international law which provides for automatic succession to bilateral treaties on the disappearance of a party and such a treaty will not survive unless another state succeeds to it by express agreement between that state and the remaining party. While the second paragraph of the Preamble to the Special Agreement recites that the Slovak Republic is one of the two successor States of the Czech and Slovak Federal Republic and the sole successor State in respect of rights and obligations relating to the Gabcikovo-Nagymaros Project, Hungary sought to distinguish between, on the one hand, rights and obligations such as continuing property rights under the 1977 Treaty, and, on the other hand, the Treaty itself. It argued that, during the negotiations leading to signature of the Special Agreement, Slovakia had proposed a text in which it would have been expressly recognised as the successor to the Government of the CSFR with regard to the 1977 Treaty, but that Hungary had rejected that formulation. It contended that it had never agreed to accept Slovakia as successor to the 1977 Treaty. Hungary referred to diplomatic exchanges in which the two parties had each submitted to the other lists of those bilateral treaties which they respectively wished should continue in force between them, for negotiation on a case-by-case basis; and Hungary emphasised that no agreement was ever reached with regard to the 1977 Treaty. Hungary claimed that there was no rule of succession which could operate in the present case to override the absence of consent. Referring to Article 34 of the Vienna Convention of 23 August 1978 on Succession of States in respect of Treaties, in which a rule of automatic succession to all treaties is provided for, based on the principle of continuity, Hungary argued not only that it never signed or ratified the Convention, but that the concept of automatic succession contained in that Article was not and is not, and has never been accepted as, a statement of general international law. Hungary further submitted that the 1977 Treaty did not create obligations and rights ... relating to the regime of a boundary within the meaning of Article 11 of that Convention, and noted that the existing course of the boundary was unaffected by the Treaty. It also denied that the Treaty was a localised treaty, or that it created rights considered as attaching to [the] territory within the meaning of Article 12 of the 1978 Convention, which would, as such, be unaffected by a succession of States. The 1977 Treaty was, Hungary insisted, simply a joint investment. Hungarys conclusion was that there is no basis on which the Treaty could have survived the disappearance of Czechoslovakia so as to be binding as between itself and Slovakia. According to Slovakia, the 1977 Treaty, which was not lawfully terminated by Hungarys notification in May 1992, remains in force between itself, as successor State, and Hungary. Slovakia acknowledged that there was no agreement on succession to the Treaty between itself and Hungary. It relied instead, in the first place, on the general rule of continuity which applies in the case of dissolution; it argued, secondly, that the Treaty is one attaching to the territory within the meaning of Article 12 of the 1978 Vienna Convention, and that it contains provisions relating to a boundary. In support of its first argument Slovakia cited Article 34 of the 1978 Vienna Convention, which it claimed is a statement of customary international law,
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and which imposes the principle of automatic succession as the rule applicable in the case of dissolution of a state where the predecessor state has ceased to exist. Slovakia maintained that state practice in cases of dissolution tends to support continuity as the rule to be followed with regard to bilateral treaties. Slovakia having succeeded to part of the territory of the former Czechoslovakia, this would be the rule applicable in the present case. 122 Slovakias second argument rests on the principle of ipso jure continuity of treaties of a territorial or localised character. This rule, Slovakia said, is embodied in Article 12 of the 1978 Convention, which in part provides as follows: Article 12 Other territorial regimes 2 A succession of states does not as such affect: (a) obligations relating to the use of any territory, or to restrictions upon its use, established by a treaty for the benefit of a group of states or of all states and considered as attaching to that territory; (b) rights established by a treaty for the benefit of a group of states or of all states and relating to the use of any territory, or to restrictions upon its use, and considered as attaching to that territory. According to Slovakia, [this] article [too] can be considered to be one of those provisions of the Vienna Convention that represent the codification of customary international law. The 1977 Treaty is said to fall within its scope because of its specific characteristics ... which place it in the category of treaties of a localised or territorial character. Slovakia also described the Treaty as one which contains boundary provisions and lays down a specific territorial regime which operates in the interest of all Danube riparian States, and as a dispositive treaty, creating rights in rem, independently of the legal personality of its original signatories. Here, Slovakia relied on the recognition by the International Law Commission of the existence of a special rule whereby treaties intended to establish an objective regime must be considered as binding on a successor state (Official Records of the United Nations Conference on the Succession of States in respect of Treaties, Vol III, Doc A/CONF.80/16/Add.2 at p 34). Thus, in Slovakias view, the 1977 Treaty was not one which could have been terminated through the disappearance of one of the original parties. 123 The Court does not find it necessary for the purposes of the present case to enter into a discussion of whether or not Article 34 of the 1978 Convention reflects the state of customary international law. More relevant to its present analysis is the particular nature and character of the 1977 Treaty. An examination of this Treaty confirms that, aside from its undoubted nature as a joint investment, its major elements were the proposed construction and joint operation of a large, integrated and indivisible complex of structures and installations on specific parts of the respective territories of Hungary and Czechoslovakia along the Danube. The Treaty also established the navigational regime for an important sector of an international waterway, in particular, the relocation of the main international shipping lane to the bypass canal. In so doing, it inescapably created a situation in which the interests of other users of the Danube were affected. Furthermore, the interests of third states were expressly acknowledged in Article 18, whereby the parties undertook to ensure uninterrupted and safe navigation on the international fairway in accordance with their obligations under the Convention of 18 August 1948 concerning the Regime of Navigation on the Danube.
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In its Commentary on the Draft Articles on Succession of States in respect of Treaties, adopted at its 26th session, the International Law Commission identified treaties of a territorial character as having been regarded both in traditional doctrine and in modern opinion as unaffected by a succession of states (Official Records of the United Nations Conference on the Succession of States in respect of Treaties, Vol III, Doc A/CONF.80/16/Add.2 at p 27, para 2). The draft text of Article 12, which reflects this principle, was subsequently adopted unchanged in the 1978 Vienna Convention. The Court considers that Article 12 reflects a rule of customary international law; it notes that neither of the parties disputed this. Moreover, the Commission indicated that treaties concerning water rights or navigation on rivers are commonly regarded as candidates for inclusion in the category of territorial treaties (ibid, p 33, para 26). The Court observes that Article 12, in providing only, without reference to the Treaty itself, that rights and obligations of a territorial character established by a treaty are unaffected by a succession of States, appears to lend support to the position of Hungary rather than of Slovakia. However the Court concludes that this formulation was devised rather to take account of the fact that, in many cases, treaties which had established boundaries or territorial regimes were no longer in force (ibid, pp 2637). Those that remained in force would nonetheless bind a successor State. Taking all these factors into account, the Court finds that the content of the 1977 Treaty indicates that it must be regarded as establishing a territorial regime within the meaning of Article 12 of the 1978 Vienna Convention. It created rights and obligations attaching to the parts of the Danube to which it relates; thus the Treaty itself cannot be affected by a succession of states. The Court therefore concludes that the 1977 Treaty became binding upon Slovakia on 1 January 1993. 124 It might be added that Slovakia also contended that, while still a constituent part of Czechoslovakia, it played a role in the development of the Project, as it did later, in the most critical phase of negotiations with Hungary about the fate of the Project. The evidence shows that the Slovak government passed resolutions prior to the signing of the 1977 Treaty in preparation for its implementation; and again, after signature, expressing its support for the Treaty. It was the Slovak Prime Minister who attended the meeting held in Budapest on 22 April 1991 as the Plenipotentiary of the Federal Government to discuss questions arising out of the Project. It was his successor as Prime Minister who notified his Hungarian counterpart by letter on 30 July 1991 of the decision of the government of the Slovak Republic, as well as of the government of the Czech and Slovak Federal Republic, to proceed with the provisional solution (see para 63 above); and who wrote again on 18 December 1991 to the Hungarian Minister without Portfolio, renewing an earlier suggestion that a joint commission be set up under the auspices of the European Communities to consider possible solutions. The Slovak Prime Minister also wrote to the Hungarian Prime Minister in May 1992 on the subject of the decision taken by the Hungarian government to terminate the Treaty, informing him of resolutions passed by the Slovak government in response. It is not necessary, in the light of the conclusions reached in para 123 above, for the Court to determine whether there are legal consequences to be drawn from the prominent part thus played by the Slovak Republic. Its role does, however, deserve mention.

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In the absence of consistent state practice, state succession in respect of treaties has long been a rather uncertain field of international law. For example, while the 1978 Vienna Convention on Succession of States in Respect of Treaties provided, in accordance with the advice given by the International Law Commission, that a new state is bound by the international agreements binding on the predecessor state,61 the 1987 Restatement (Third) of the Foreign Relations Law of the United States took the opposite view. Meanwhile scholars involved in the drafting of these instruments readily acknowledge that these standards were very open to criticism.62 One of the foremost authorities on the subject even observed that state succession is a subject altogether unsuited to the process of codification.63 State practice during the 1990s strongly supports the view that obligations arising from a human rights treaty are not affected by the succession of states.64 This applies to all obligations undertaken by the predecessor state, including any reservations, declarations and derogations made by it. The continuity of these obligations occurs ipso jure. The successor state is under no obligation to issue confirmations to anyone.65 Consent from other states is not required. Individuals residing within a given territory therefore remain entitled to the rights granted to them under a human rights treaty. They cannot be deprived of the protection of these rights by virtue of the fact that another state has assumed responsibility for the territory in which they find themselves. It follows that human rights treaties have a similar localised character as treaties establishing boundaries and other territorial regimes.66

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61 Article 34(1) of the Vienna Convention on Succession of States in Respect of Treaties, adopted 22 August 1978, not yet in force. 62 See, eg I Sinclair, Some Reflections on the Vienna Convention on Succession of States in Respect of Treaties, in Essays in Honour of Erik Castren, 1979, 149, 153. 63 DP OConnell, Reflections on the State Succession Convention (1979) 39 ZAoRV at p 725. 64 For a more cautious conclusion see MN Shaw, State Succession Revisited (1994) 5 Finnish Yearbook of International Law 34, 38 (one is on the verge of widespread international acceptance of the principle that international human rights treaties continue to apply within the territory of a predecessor state irrespective of a succession). Disagreeing, Bosw, State Succession with Regard to Treaties (1995) 111 Mededelingen van de Nederlandse voor International Recht 18. 65 As a matter of fact, while a notification of continuing adherence to a human rights treaty may not be strictly required, in practice such a step may be gratefully accepted by the depository and the other state parties because it resolves any ambiguities that exist. 66 Menno T Kamminga, State Succession in Respect of Human Rights Treaties (1996) 7 EJIL 469 at pp 469, 482. 173

CHAPTER 5 THE SUBJECTS OF INTERNATIONAL LAW


5.1 Introduction

International personality means capacity to be a bearer of rights and duties under international law. Any entity which possesses international personality is an international person or a subject of international law, as distinct from a mere object of international law.1 A subject of international law is considered to be an entity capable of possessing international rights and duties and endowed with the capacity to take certain types of action on the international plane. The terms international legal person or legal personality are commonly used when referring to such entities.2 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. Throughout its history, the development of international law has been influenced by the requirements of international life, and the progressive increase in the collective activities of states has already given rise to instances of action upon the international plane by certain entities which are not states.3 A subject of the law is an entity capable of possessing international rights and duties and having the capacity to maintain its rights by bringing international claims.4

The principal question we are concerned with here is to whom does international law apply? In order to be a subject of international law an entity must have international personality it must be capable of possessing international rights and duties and as a consequence must have the capacity to maintain such rights by bringing international claims. A subject of international law owes responsibilities to the international community and enjoys rights, the benefits of which must be claimed, and which, if denied, may be enforced to the extent recognised by the international legal system, via legal procedures, ie the entity will have procedural capacity.
Since the law of nations is based on the common consent of individual states, and not of individual human beings, states solely and exclusively are the subjects of international law.5

Reparation for Injuries Suffered in the Service of the United Nations Case6
On 17 September 1948, Count Bernadotte, a Swedish national, was killed, allegedly by a private gang of terrorists, in west Jerusalem, at the time
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1 2 3 4 5 6

Schwarzenberger and Brown, Manual of International Law, 6th edn, 1976, London: Stevens at p 42. Henkin et al, International Law: Cases and Materials, 1993, St Pauls, Minn: West Publishing at p 228. ICJ in Reparation case [1949] ICJ Rep p 174 at p 178. Brownlie, Principles of Public International Law, 1990, Oxford: Oxford University Press at p 58. Oppenheim, International Law, 1912, London: Longman. Advisory Opinion [1949] ICJ Rep at p 174. 175

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controlled by Israel. Count Bernadotte was the Chief United Nations Truce Negotiator in the area. In the course of deciding what action to take in respect of his death, the United Nations General Assembly sought the advice of the ICJ. Israel was admitted to the United Nations on 11 May 1949, shortly after the Court gave its opinion.
Opinion of the Court The first question asked of the Court is as follows: In the event of an agent of the United Nations in the performance of his duties suffering injury in circumstances involving the responsibility of a state, has the United Nations, as an Organisation, the capacity to bring an international claim against the responsible de jure or de facto government with a view to obtaining the reparation due in respect of the damage caused (a) to the United Nations, (b) to the victim or to persons entitled through him? ... 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. Throughout its history, the development of international law has been influenced by the requirements of international life, and the progressive increase in the collective action of states has already given rise to instances of action upon the international plane by certain entities which are not states. This development culminated in the establishment in June 1945 of an international organisation whose purposes and principles are specified in the Charter of the United Nations. But to achieve these ends the attribution of international personality is indispensable. The Charter has not been content to make the Organisation created by it merely a centre for harmonising the actions of nations in the attainment of their common ends (Article 1, para 4). It has equipped that centre with organs, and has given it special tasks. It has defined the position of the Members in relation to the Organisation by requiring them to give it every assistance in any action undertaken by it (Article 2, para 5), and to accept and carry out the decisions of the Security Council; by authorising the General Assembly to make recommendations to the Members; by giving the Organisation legal capacity and privileges and immunities in the territory of each of its Members; and by providing for the conclusion of agreements between the Organisation and its Members. Practice in particular the conclusions of conventions to which the Organisation is a party has confirmed the character of the Organisation, which occupies a position in certain respects in detachment from its Members, and which is under a duty to remind them, if need be, of certain obligations. It must be added that the Organisation is a political body, charged with political tasks of an important character, and covering a wide field namely the maintenance of international peace and security, the development of friendly relations among nations, and the achievement of international co-operation in the solution of problems of an economic, social, cultural or humanitarian character (Article 1); and in dealing with its Members it employs political means. The Convention on the Privileges and Immunities of the United Nations of 1946 creates rights and duties between each of the signatories and the Organisations (see in particular section 35). It is difficult to see how such a convention could operate except upon the international plane and as between parties possessing international personality. In the opinion of the Court, the Organisation was intended to exercise and enjoy, and is in fact exercising and enjoying, functions and rights which can only be explained on the basis of the possession of a large measure of international
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personality and the capacity to operate upon an international plane. It is at present the supreme type of international organisation, and it could not carry out the intentions of its founders if it was devoid of international personality. it must be acknowledged that its 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. Accordingly, the Court has come to the conclusions that the Organisation is an international person. That is not the same thing as saying that it is a state, which it certainly is not, or that its legal personality and rights and duties are the same as those of a state. Still less is it the same thing as saying that it is a super-state, whatever that expression may mean. It does not even imply that all its rights and duties must be upon the international plane, any more than all the rights and duties of a state must be upon that plane. What it does mean is that it is a subject of international law and capable of possessing international rights and duties, and that it has the capacity to maintain its rights by bringing international claims. The next question is whether the sum of the international rights of the Organisation comprises the right to bring the kind of international claim described in the Request for this Opinion. That is a claim against a state to obtain reparation in respect of the damage caused by the injury of an agent of the Organisation in the course of the performance of his duties. Whereas a state possesses the totality of international rights and duties recognised by international law, the rights and duties of an entity such as the Organisation must depend upon its purposes and functions as specified or implied in its constituent documents and developed in practice. The functions of the Organisation are of such a character that they could not be effectively discharged if they involved the concurrent action, on the international plane, of 58 or more Foreign Offices, and the Court concludes that the Members have endowed the Organisation with the capacity to bring international claims when necessitated by the discharge of its functions ... ... It cannot be doubted that the Organisation has the capacity to bring an international claim against one of its Members which has caused injury to it by a breach of its intentional obligations towards it. The damage specified in Question I(a) means exclusively damage caused to the interests of the Organisation itself, to its administrative machine, to its property and assets, and to the interests of which it is the guardian. It is clear that the Organisation has the capacity to bring a claim for this damage. As the claim is based on the breach of an international obligation on the part of the Member held responsible by the Organisation, the Member cannot contend that this obligation is governed by municipal law, and the Organisation is justified in giving its claim the character of an international claim. When the Organisation has sustained damage resulting from a breach by a Member of its international obligations, it is impossible to see how it can obtain reparation unless it possesses capacity to bring an international claim. It cannot be supposed that in such an event all the Members of the Organisation, save the defendant state, must combine to bring a claim against the defendant for the damage suffered by the Organisation. In dealing with the question of law which arises out of Question I(b) ... the only legal question which remains to be considered is whether, in the course of bringing an international claim of this kind, the Organisation can recover the reparation due in respect of damage caused ... to the victim ... The traditional rule that diplomatic protection is exercised by the national state does not involve the giving of a negative answer to Question I(b).
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In the first place, this rule applies to claims brought by a state. But here we have the different and new case of a claim that would be brought by an Organisation. In the second place, even in inter-state relations, there are important exceptions to this rule, for there are cases in which protection may be exercised by a state on behalf of persons not having its nationality. In the third place, the rule rests on two bases. The first is that the defendant state has broken an obligation towards the national state in respect of its nationals. The second is that only the party to whom an international obligation is due can bring a claim in respect of its breach. This is precisely what happens when the Organisation, in bringing a claim for damage suffered by its agent, does so by invoking the breach of an obligation towards itself. Thus, the rule of the nationality of claims affords no reason against recognising that the Organisation has the right to bring a claim for the damage referred to in Question I(b). On the contrary, the principle underlying this rule leads to the recognition of this capacity as belonging to the Organisation, when the Organisation invokes, as the ground of its claim, a breach of an obligation towards itself. Nor does the analogy of the traditional rule of diplomatic protection of nationals abroad justify in itself an affirmative reply. It is not possible, by a strained use of the concept of allegiance, to assimilate the legal bond which exists, under Article 100 of the Charter, between the Organisation on the one hand, and the Secretary General and the staff on the other, to the bond of nationality existing between a state and its nationals. The Court is here faced with a new situation. The questions to which it gives rise can only be solved by realising that the situation is dominated by the provisions of the Charter considered in the light of the principles of international law ... The Charter does not expressly confer upon the Organisation the capacity to include, in its claim for reparation, damage caused to the victim or to persons entitled through him. The Court must therefore begin by enquiring whether the provisions of the Charter concerning the functions of the Organisation, and the part played by its agents in the performance of these functions, imply for the Organisation power to afford its agents the limited protection that would consist in the bringing of a claim on their behalf for reparation for damage suffered in such circumstances. Under international law, the Organisation 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. This principle of law was applied by the Permanent Court of International Justice to the International Labour Organisation in its Advisory Opinion No 13 of 23 July 1926 (Ser B, No 13, p 18) and must be applied to the United Nations. Having regard to its purposes and functions already referred to, the Organisation may find it necessary, and has in fact found it necessary, to entrust its agents with important missions to be performed in disturbed parts of the world. Many missions, from their very nature, involve the agents in unusual dangers to which ordinary persons are not exposed. For the same reason, the injuries suffered by its agents in these circumstances will sometimes have occurred in such a manner that their national state would not be justified in bringing a claim for reparation on the ground that diplomatic protection, or, at any rate, would not feel disposed to do so. Both to ensure the efficient and independent performance of these missions and to afford effective support to its agents, the Organisation must provide them with adequate protection ... In order that the agent may perform his duties satisfactorily, he must feel that this protection is assured to him by the Organisation, and that he may count on
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it. To ensure the independence of the agent, and, consequently, the independent action of the Organisation itself, it is essential that in performing his duties he need not have to rely on any other protection than that of the Organisation (save of course for the direct and immediate protection due from the state in whose territory he may be). In particular, he should not have to rely on the protection of his own state. If he had to rely on that state, his independence might well be compromised, contrary to the principle applied by Article 100 of the Charter. And lastly, it is essential that whether the agent belongs to a powerful or to a weak state; to one more affected or less affected by the complications of international life; to one in sympathy or not in sympathy with the mission of the agent he should know that in the performance of his duties he is under the protection of the Organisation. This assurance is even more necessary when the agent is stateless ... The obligations entered into by states to enable the agents of the Organisation to perform their duties are undertaken not in the interest of the agents, but in that of the Organisation. When it claims redress for a breach of these obligations, the Organisation is invoking its own right, the right that the obligations due to it should be respected. On this ground, it asks for reparation of the injury suffered, for it is a principle of international law that the breach of an engagement involves an obligation to make reparation in an adequate form; as was stated by the Permanent Court in its Judgment No 8 of 26 July 1927 (Ser A, No 9, p 21). In claiming reparation based on the injury suffered by its agent, the Organisation does not represent the agent, but is asserting its own right, the right to secure respect for undertakings entered into towards the Organisation. Having regard to the foregoing considerations, and to the undeniable right of the Organisation to demand that its Members shall fulfil the obligations entered into by them in the interest of the good working of the Organisation, the Court is of the opinion that in the case of a breach of these obligations, the Organisation has the capacity to claim adequate reparation, and that in assessing this reparation it is authorised to include the damage suffered by the victim or by persons entitled through him. The questions remains whether the Organisation has the capacity to bring an international claim against the responsible de jure or de facto government with a view to obtaining the reparation due in respect of the damage caused (a) to the United Nations, (b) to the victim or to persons entitled through him when the defendant state is not a member of the Organisation. In considering this aspect of Question I(a) and (b), it is necessary to keep in mind the reasons which have led the Court to give an affirmative answer to it when the defendant state is a Member of the Organisation. It has now been established that the Organisation has capacity to bring claims on the international plane, and that it possessed a right of functional protection in respect of its agents. Here again the Court is authorised to assume that the damage suffered involves the responsibility of a state, and it is not called upon to express an opinion upon the various ways in which that responsibility might be engaged. Accordingly the question is whether the Organisation has capacity to bring a claim against the defendant state to recover reparation in respect of that damage or whether, on the contrary, the defendant state, not being a member, is justified in raising the objection that the Organisations lacks the capacity to bring an international claim. On this point, the Courts opinion is that 50 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

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objective international personality and not merely personality recognised by them alone, together with the capacity to bring international claims ...7

(The Court answered Question I(a), unanimously, and I(b), by 11 votes to four, in the affirmative.)
Question II is as follows: In the event of an affirmative reply on point I(b), how is action by the United Nations to be reconciled with such rights as may be possessed by the state of which the victim is a national? The affirmative reply given by the Court on point I(b) obliges it now to examine Question II. When the victim has a nationality, cases can clearly occur in which the injury suffered by him may engage the interest of both his national state and of the Organisation. In such an event, competition between the states right of diplomatic protection and the Organisations right of functional protection might arise, and this is the only case with which the Court is invited to deal. In such a case, there is no rule of law which assigns priority to the one or to the other, or which compels either the state or the Organisation to refrain from bringing an international claim. ... The Court sees no reason why the parties concerned should not find solutions inspired by goodwill and common sense, and as between the Organisation and its Members it draws attention to their duty to render every assistance provided by Article 2, para 5, of the Charter. Although the bases of the two claims are different, that does not mean that the defendant state can be compelled to pay the reparation due in respect of the damage twice over. International tribunals are already familiar with the problem of a claim in which two or more national states are interested, and they know how to protect the defendant state in such a case. The risk of competition between the Organisation and the national state can be reduced or eliminated either by a general convention or by agreements entered into in each particular case. There is no doubt that in due course a practice will be developed, and it is worthy of note that already certain states whose nationals have been injured in the performance of missions undertaken for the Organisation have shown a reasonable and co-operative disposition to find a practical solution. The question of reconciling action by the Organisation with the rights of a national state may arise in another way; that is to say, when the agent bears the nationality of the defendant state. The ordinary practice whereby a state does not exercise protection on behalf of one of its nationals against a state which regards him as its own national does not constitute a precedent which is relevant here. The action of the Organisation is in fact based not upon the nationality of the victim but upon his status as agent of the Organisation. Therefore it does not matter whether or not the state to which the claim is addressed regards him as its own national, because the question of nationality is not pertinent to the admissibility of the claim. In law, therefore, it does not seem that the fact of the possession of the nationality of the defendant state by the agent constitutes any obstacle to a claim brought by

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the Organisation for a breach of obligations towards it occurring in relation to the performance of his mission by that agent.

(The Court answered Question II by 10 votes to five.)

5.2

The subjects of international law

5.2.1 Independent states


States are the principal subjects of international law. Of the term state no exact definition is possible, but so far as modern conditions go, the essential characteristics of a state are well settled.8 The normal criteria which the government apply for recognition as a state are that it should have, and seem likely to continue to have, a clearly defined territory with a population, a government who are able of themselves to exercise effective control of that territory, and independence in their external relations. Other factors, including some United Nations resolutions, may also be relevant.9

The traditional definition of a state for the purposes of international law is the one to be found in the Montevideo Convention on the Rights and Duties of States 1933:

MONTEVIDEO CONVENTION ON THE RIGHTS AND DUTIES OF STATES 193310


Article 1 The state as a person of international law should possess the following qualifications: (a) a permanent population; (b) a defined territory; (c) government; and (d) capacity to enter into relations with other states. Article 2 The federal state shall constitute a sole person in the eyes of international law. Article 3 The political existence of the state is independent of recognition by the other states. Even before recognition the state has the right to defend its integrity and independence, to provide for its conservation and prosperity, and consequently to organise itself as it sees fit, to legislate upon its interests, administer its services, and to define the jurisdiction and competence of its courts. The exercise of these rights has no other limitation than the exercise of the rights of other states according to international law.
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8 Starke, Introduction to International Law, 11th edn, 1994, London: Butterworths at p 95. 9 Minister of state, British Foreign and Commonwealth Office (1986) 57 BYIL 507. 10 Done at Montevideo, Uruguay on 26 December 1933. Entered into force on 26 December 1934. Parties: Brazil, Chile, Colombia, Costa Rica, Cuba, Dominican Republic, Ecuador, El Salvador, Guatemala, Haiti, Honduras, Mexico, Nicaragua, Panama, United States, Venezuela. 181

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Article 4 States are juridically equal, enjoy the same rights, and have equal capacity in their exercise. The rights of each one do not depend upon the power which it possesses to assure its exercise, but upon the simple fact of its existence as a person under international law. Article 5 The fundamental rights of states are not susceptible of being affected in any manner whatsoever. Article 6 The recognition of a state merely signifies that the state which recognises it accepts the personality of the other with all the rights and duties determined by international law. Recognition is unconditional and irrevocable. Article 7 The recognition of a state may be express or tacit. The latter results from any act which implies the intention of recognising the new state. Article 8 No state has the right to intervene in the internal or external affairs of another. Article 9 The jurisdiction of states within the limits of national territory applies to all the inhabitants. Nationals and foreigners are under the same protection of the law and the national authorities and the foreigners may not claim rights other or more extensive than those of the nationals. Article 10 The primary interest of states is the conservation of peace. Differences of any nature which arise between them should be settled by recognised pacific means. Article 11 The contracting states definitely establish as the rule of their conduct the precise obligation not to recognise territorial acquisitions or special advantages which have been obtained by force whether this consists in the employment of arms, in threatening diplomatic representations, or in any other effective coercive measures. The territory of a state is inviolable and may not be the object of military occupation nor of other measures of force imposed by another state directly or indirectly or for any motive whatever even temporarily. Article 12 The present Convention shall not affect obligations previously entered into by the High Contracting Parties by virtue of international agreements. Article 13 The present Convention shall be ratified by the High Contracting Parties in conformity with their respective constitutional procedures. The Minister of Foreign Affairs of the Republic of Uruguay shall transmit authentic certificated copies to the governments for the aforementioned purpose of ratification. The instrument of ratification shall be deposited in the archives of the Pan American Union in Washington, which shall notify the signatory governments of said deposit. Such notification shall be considered as an exchange of ratifications. Article 14 The present Convention will enter into force between the High Contracting Parties in the order in which they deposit their respective ratifications.
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Article 15 The present Convention shall remain in force indefinitely but may be denounced by means of one years notice given to the Pan American Union, which shall transmit it to the other signatory governments. After the expiration of this period the Convention shall cease in its effects as regards the party which denounces but shall remain in effect for the remaining High Contracting Parties. Article 16 The present Convention shall be open for the adherence and accession of the states which are not signatories. The corresponding instruments shall be deposited in the archives of the Pan American Union which shall communicate them to the other High Contracting Parties.

An alternative view of statehood is offered by Schwarzenberger and Brown who argue that an entity must satisfy a minimum of three conditions before it can be considered an independent state. Those conditions are: (1) the entity must possess a stable government which does not recognise any outside superior authority; (2) the government must rule supreme within a territory which has more or less settled frontiers; (3) the government must exercise control over a certain number of people. James Crawford11 identifies five exclusive and general legal characteristics of states:
1 In principle, states have plenary competence to perform acts, make treaties, and so on, in the international sphere: this is one meaning of the term sovereign as applied to states. In principle states are exclusively competent with respect to their internal affairs, a principle reflected by Article 2(7) of the United Nations Charter. This does not of course mean that they are omnicompetent, in international law, with respect to those affairs: it does mean that their jurisdiction is prima facie plenary and not subject to the control of other states. In principle states are not subject to compulsory international process, jurisdiction, or settlement, unless they consent, either in specific cases or generally, to such exercise. States are regarded in international law as equal, a principle also recognised by the Charter (Article 2(1)). This is in part a restatement of the foregoing principles, but it may have certain other corollaries. It does not mean, for example, that all states are entitled to an equal vote in international organisations; merely that, in any international organisation not based on equality, the consent of all the Members to the derogation from equality is required. Finally, any derogations from these principles must be clearly established: in case of doubt an international court or tribunal will decide in favour of the freedom of action of states, whether with respect to external or internal affairs, or as not having consented to a specific exercise of international jurisdiction, or to a particular derogation from equality. This presumption which is of course rebuttable in any case is important in practice, as well as

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11 James Crawford, The Creation of States in International Law, 1979, Oxford: Clarendon Press at p 32. 183

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providing a useful indication of the status of the entity in whose favour it is invoked. It will be referred to throughout this study as the Lotus presumption its classic formulation being the judgment of the Permanent Court in Lotus. These five principles, it is submitted, constitute in legal terms the hard core of the concept of statehood, the essence of the special position in customary international law of states. It follows from this, as a rule of interpretation, that the term state in any document prima facie refers to states having these attributes; but this is of course subject to the context. Courts will tend towards strictness of interpretation of the term state as the context predicates plenitude of functions as, for example, in Article 4(1) of the United Nations Charter. Conversely, if a treaty or other document is concerned with a specific issue, the word state may be construed liberally that is, to mean state for the specific purpose of the treaty or document.12

5.2.1.1 Population and territory


States are aggregates of individuals and accordingly a permanent population living within a defined territory is regarded as a requirement of statehood. But there are no limits as to size of population or territory eg Liechtenstein has a population of under 30,000, and Monaco has a territory of less than two square kilometres. It is not a requirement that the population should hold the nationality of the state in question, merely that they should live there with some degree of permanence. As far as territorial boundaries are concerned, there is no requirement for absolutely settled borders merely some identification of the state with a portion of the earths surface.
In order to say a state exists ... it is enough that this territory has a sufficient consistency, even though its boundaries have not yet been accurately delimited, and that the state actually exercises independent public authority over that territory.13 ... both reason and history demonstrate that the concept of territory does not necessarily include precise delimitation of the boundaries of that territory. The reason for the rule that one of the necessary attributes of a state is that it shall possess territory is that one cannot contemplate a state as a kind of disembodied spirit. Historically, the concept is one of insistence that there must be some portion of the earths surface which its people inhabit and over which its government exercises authority. No one can deny that the state of Israel responds to this requirement.14 There is for instance no rule that the land frontiers of a state must be fully delimited and defined, and often in various places and for long periods they are not, as is shown by the case of the entry of Albania into the League of Nations.15

On the other hand, it is possible to cite a few situations where statehood was refused on the basis of unsettled frontiers, the classic example being that of Lithuania, which was refused membership of the League of Nations until border disputes with neighbouring states were settled.
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12 Crawford, op cit at pp 3233 (footnotes omitted). 13 German-Polish Mixed Arbitral Tribunal in Deutsche Continental Gas-Gesellschaft v Polish State (1929) 5 AD 15. 14 Philip Jessup US representative to the UN Security Council, 1948. 15 ICJ in North Sea Continental Shelf case [1969] ICJ Rep at p 132. 184

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5.2.1.2 Government
The shortest definition of a state for present purposes is perhaps a stable political community, supporting a legal order, in a certain area. The existence of effective government, with centralised administrative and legislative organs is the best evidence of a stable political community.16 Finland did not become a definitely constituted state until a stable political organisation had been created, and until the public authorities had become strong enough to assert themselves throughout the territories of the state without the assistance of foreign troops.17

There is a strong case for regarding the possession of effective government as the single most importance criterion of statehood since, arguably, all the other requirements depend upon it. But the actual application of the criterion has been far from straightforward see, for example, the events surrounding the independence of the Belgian Congo in 1960. More recently the extent to which the state of the Lebanon has had any effective government has been in serious doubt. Moves in the General Assembly of the United Nations have also questioned the requirement of possession of effective government. It is worth noting General Assembly Resolution 1514 (XV) Declaration on the Granting of Independence to Colonial Countries and Peoples which declares that inadequacy of political, economic, social or education preparedness should never serve as a pretext for delaying independence.
The following conclusions suggest themselves. First, to be a state, an entity must possess a government or a system of government in general control of its territory, to the exclusion of other entities not claiming through or under it. Second, international law lays down no specific requirements as to the nature and extent of this control, except, it seems, that it include some degree of maintenance of law and order. Third, in applying the general principles to specific cases, the following must be considered: (i) whether the statehood of the entity is opposed under title of international law; if so, the requirement of effectiveness is likely to be more stringently applied; (ii) whether the government claiming authority in the putative state, if it does not effectively control it, has obtained authority by consent of the previous sovereign and exercises a certain degree of control; (iii) in the latter case at least, the requirement of statehood may be liberally construed; (iv) finally, there is a distinction between the creation of a new state on the one hand and the subsistence or extinction of an established state on the other. There is normally no presumption in favour of the status of the former, and the criterion of effective government therefore tends to be applied more strictly.18

5.2.1.3 Capacity to enter into international relations/independence/ sovereignty


Most writers seem to be agreed that the capacity to enter international relations listed in Article 1 of the Montevideo Convention could be better expressed as
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16 Brownlie, Principles of International Law, 1990, Oxford: Oxford University Press at p 73. 17 League of Nations Commission of Jurists in the Aaland Islands Dispute (1920). 18 Crawford, The Creation of States in International Law, 1979, Oxford: Oxford University Press at p 45. 185

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independence or sovereignty in the sense of having full control over domestic and foreign affairs. The concept of capacity to enter into international relations brings with it a degree of circularity who has capacity to enter into legal relations? states; what are states? Those entities with capacity to enter into international relations.
Independence ... is really no more than the normal condition of states according to international law; it may also be described as sovereignty (suprema potestas), or external sovereignty, by which is meant that the state has over it no other authority than that of international law.19

Examples can be found where the international community formed the opinion that an alleged state did not have a sufficient degree of independence for full statehood, eg Manchukuo. There are a number of situations which are not regarded, in international practice, as derogating from formal independence, although if extended far enough, they may derogate from actual independence: (a) Constitutional restrictions upon freedom of action Provided no outside state has the power to alter the constitution, the fact that the state in question is constitutionally restricted is not seen as a derogation from formal independence, eg the Constitution of the Republic of Cyprus binds the Republic permanently to accept the stationing of foreign (Greek, Turkish and British) military forces on its territory. (b) Treaty obligations The Wimbledon case confirmed the principle that treaty obligations do not derogate from formal independence. (c) The existence of foreign military bases For example, Cyprus, Germany, United Kingdom. (d) The possession of joint organs for certain purposes For example, Customs Unions. Of course it is possible for states to unite totally as Syria and Egypt did in the 1950s to form the United Arab Republic and as East and West Germany, North and South Yemen have done more recently in this case, of course, two states become a single state. (e) Membership of international organisations Even if the international organisation has some degree of coercive authority, eg the EEC, the United Nations, this is not seen as derogating from formal independence.

Customs Regime between Germany and Austria Case20


Article 88 of the Treaty of Saint-Germain 1919 provided:
The independence of Austria is inalienable otherwise than with the consent of the Council of the League of Nations. Consequently, Austria undertakes in the
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19 Judge Anzilotti in the Customs Regime between Germany and Austria case PCIJ Ser A/B, No 41 (1931). 20 PCIJ Ser A/B, No 41 (1931). 186

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absence of the consent of the said Council to abstain from any act which might directly or indirectly or by any means whatever compromise her independence ...

In 1922 an additional protocol was signed at Geneva which contained similar provisions relating to Austrian economic independence. In 1931 Germany and Austria reached preliminary agreement on a customs union between the two states. The proposal caused widespread international concern and as a result the Council of the League of Nations had requested an Advisory Opinion from the PCIJ whether the proposed customs union would be contrary to the Treaty and Protocol. The court found that the proposed union did not contravene the 1919 Treaty but a majority of eight judges to seven found that the proposed union did contravene the 1922 Protocol. In a separate opinion Judge Anzilotti (who found the proposed union incompatible with both the Treaty and the Protocol) gave some thought to the meaning of independence in international law:
The conception of independence, regarded as the normal characteristic of states as subjects of international law, cannot be better defined than by comparing it with the exceptional and, to some extent, abnormal class of states known as dependent states. These are states subject to the authority of one or more other states. The idea of dependence therefore necessarily implies a relation between a superior state (suzerain, protector, etc) and an inferior or subject state (vassal, protg, etc); the relation between the state which can legally impose its will and the state which is legally compelled to submit to that will. Where there is no such relation of superiority and subordination, it is impossible to speak of dependence within the meaning of international law. It follows that the legal conception of independence has nothing to do with a states subordination to international law or with the numerous and constantly increasing states of de facto dependence which characterise the relation of one country to other countries. It also follows that the restrictions upon a states liberty, whether arising out of ordinary international law or contractual engagements, do not as such in the least affect its independence. As long as these restrictions do not place the state under the legal authority of another state, the former remains an independent state however extensive and burdensome those obligations may be.

Admission of Liechtenstein to the League of Nations21


Liechtenstein sought admission to the League of Nations. Membership was open to any fully governing state, Dominion or Colony ... provided that it shall give effective guarantees of its sincere intention to observe its international obligations, and shall accept such regulations as may be prescribed by the League in regard to its military, naval and air forces and armaments (Article 1(2) LN Covenant). Liechtensteins application was rejected in view of the following report.

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21 Report of the 5th Committee to the First Assembly of the LN, 6 December 1920, 1 Hackworth 4849. 187

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The government of the Principality of Liechtenstein has been recognised de jure by many states. It has concluded a number of Treaties with various states ... The Principality of Liechtenstein possesses a stable government and fixed frontiers ... There can be no doubt that juridically the Principality ... is a sovereign state, but by reason of her limited area, small population and her geographical position, she has chosen to depute to others some of the attributes of sovereignty. For instance she has contracted with other Powers for the control of her Customs, the administrations of her Posts, Telegraphs and Telephone Services, for the diplomatic representation of her subjects in foreign countries, other than Switzerland and Austria, and for final decisions in certain judicial cases. Liechtenstein has no army. For the above reasons, we are of opinion that the Principality of Liechtenstein could not discharge all the international obligations which would be imposed upon her by the Covenant.

5.2.1.4 Permanence
A state which has only a very brief life may nevertheless leave an agenda of consequential legal questions on its extinction.22

There is no requirement that a state should endure for a specific minimum period there are examples of states existing for a very short period but they have achieved full statehood, eg Mali Federation 20 June 1960 20 August 1960; British Somaliland 26 June 1960 30 June 1960.

5.2.1.5 Legality
In recent years the view has increasingly been put forward that, in addition to the criteria already mentioned, international law does not permit the creation of states in violation of fundamental principles of international law/in violation of jus cogens.

Self-determination While discussion of the political principle of self-determination has a long history, the process of establishing it as a principle of international law is of more recent origin. It was discussed in the early days of the League of Nations and the Mandate system was to some degree a compromise between outright colonialism and principles of self-determination. In the period 192022 many of the treaties concluded by the Soviet Union enshrined self-determination as a legal right. However the biggest impetus to recognition of self-determination as a legal principle came with the United Nations Charter:
The purposes of the United Nations are: 2 To develop friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples (Article 1). With a view to the creation of conditions of stability and well-being which are necessary for peaceful and friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples ... (Article 55).
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22 Brownlie, Principles of Public International Law, 4th edn, 1979, Oxford: Oxford University Press at p 77. 188

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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 (Article 2(4)).

While it clearly enunciated the principle of self-determination, it left unclear the precise legal ramifications and this fact was seized upon by many Western jurists to deny that self-determination was in any way a legally enforceable right. In 1952 the General Assembly stated (in Resolution 637A (VII)) that the right of peoples and nations to self-determination is a prerequisite to the full enjoyment of all fundamental human rights and is recommended that the United Nations members shall uphold the principle of self-determination of all peoples and nations while promoting realisation of the right of selfdetermination for the peoples of colonial territories. Again the resolution left unclear the precise legal implications of the principle. In 1960 General Assembly Resolution 1514 (XV) entitled Declaration on the Granting of Independence to Colonial Countries and Peoples was adopted 89:0 with nine abstentions (Australia, Belgium, Dominican Republic, France, Portugal, South Africa, Spain, UK, US):
The General Assembly ... Declares that: 2 All peoples have the right to self-determination; by virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development ... 3 Inadequacy of political, economic, social or educational preparedness should never serve as a pretext for delaying independence ... 6 Any attempt at the partial or total disruption of the national unity and the territorial integrity of a country is incompatible with the purposes and principles of the Charter of the United Nations.

In 1966 two conventions on human rights were signed the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights. Both entered into force in 1966 and at present over 90 states have ratified them. The Covenants have a common Article 1 which states:
1 All peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.

Subsequently the Declaration of Principles of International Law Concerning Friendly Relations (General Assembly Resolution 2625 (XXV)) confirmed the principle that self-determination is a right belonging to all peoples and that its implementation is required by the UN Charter in the case of alien subjugation or foreign domination. The Declaration went further in recognising that peoples resisting forcible suppression of their claim to self-determination are entitled to seek and receive support in accordance with the purposes and principles of the Charter.
The principle of self-determination of peoples is rightly considered to be a successor to the political principle of nationality, which became widely recognised in 19th century Europe and related to the emergence of nation states.

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Since then, hardly any political or legal principles have been as highly praised and supported by some and as strongly denied by others as has that of selfdetermination. After World War I the principle received a new boost. In 1917, in the famous Decree of Peace, Lenin wrote: If any nation whatsoever is retained within the boundaries of a given state by coercion, and despite its expressed desire it is not granted the right by a free vote ... with the complete withdrawal of the forces of the annexing or generally more powerful nation, to decide without the slightest coercion the question of the form of state existence of this nation, then it is an annexation ... President Wilson was an ardent proponent of the principle. In his Fourteen Points he enunciated that peoples and provinces must not be bartered from sovereignty to sovereignty as if they were chattels or pawns in a game, and that territorial questions should be decided in the interest of the population concerned. But at the same time Secretary of state Lansing wrote in a note of 30 December 1918: The more I think about the Presidents declaration as to the right of selfdetermination, the more convinced I am of the danger of putting such ideas into the minds of certain races. It is bound to be the basis of impossible demands on the Peace Congress and create trouble in many lands ... The phrase is simply loaded with dynamite. It will raise hopes which can never be realised. It will, I fear, cost thousands of lives. Senator Moynihan quotes Frank P Walsh, to whom President Wilson himself had acknowledges that when he had uttered the words on the right to selfdetermination he had done so without any knowledge that nationalities existed which were coming to them day after day. Already at that time proponents of the principles interpreted it not only differently, they also interpreted it as being not simply an end in itself but as a means of achieving different ends. For Lenin this principle was subordinated to interests of socialism and was considered as a stage and condition of the final merger of all nations into one socialist society. Hurst Hannum is quite right that it should be underscored that self-determination in 1919 had little to do with the demands of the peoples concerned, unless those demands were consistent with the geopolitical and strategic interests of the Great Powers. By the turn of the millennium the principle of the self-determination of peoples has travelled the long road from its original political slogan to being one of the fundamental principles of international law. But as Hannum writes: Yet the meaning of and the content of that principle remain as vague and imprecise as when they were enunciated by President Woodrow Wilson and others in Versailles.23 In the 1990s the self-determination of peoples is once more not only a topical subject for dissertations, but has become a slogan of political struggle in different parts of the world. If after the First World War the principle was applied only to Eastern European nations which had hitherto been parts of the Ottoman and
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23 H Hannum, Autonomy, Sovereignty, and Self Determination: The Accommodation of Conflicting Rights, 1990, Philadelphia: University of Pennsylvania Press at p 28. 190

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Austro-Hungarian empires, and in the 1960s determined outcomes of the anticolonial struggle in Africa and Asia, at the end of the 1980s came the turn of the Russian (Soviet) Empire. All Soviet republics, while seeking independence from the USSR or demanding more autonomy from the centre, vigorously claimed the right to selfdetermination. But even before these republics could achieve their independence, different ethnicities living in their territories where they constituted minorities (for example, Tartars and Chechens in Russia; Crimeans in Ukraine; Crimean Tartars in their turn in the Crimean peninsula, which was their historical motherland; and Ossetians and Abkhazians in Georgia) started to use the same slogan in the furtherance of their claims. It seems that the chain of fission is a law not only of the physical worlds but of the social world as well. When a society breaks up, not only are other societies affected by way of example, but newly born states themselves often start a new round of disintegration. The birth and existence of the Soviet Union had a twofold effect on world society. On the one hand, it was a source of expansion of communist ideas and a resource for different left wing organisations all over the world. On the other hand, the Soviet experience served as a warning for different peoples, averting them from repeating this social experiment. In the same vein, recent and even some current events in the former Soviet Union as well as in the former Yugoslavia, though certainly providing a source of inspiration for many secessionist movements in other counties should, at the same time, sound as a warning. Generalisations, of course, should always be made cautiously, because seemingly identical events may have their roots in different reasons and lead to different results. But there may have been something symbolic in the picture I observed in Geneva in autumn 1992 at the time when Georgians and Abkhazians were killing each other in the Caucasus, when ethnic cleansing was in progress in the territories of the former Yugoslavia, and the UN Human Rights Committee, of which I was a member, considered emergency reports of Bosnia-Herzegovina, Croatia, and Yugoslavia (Serbia and Montenegro) on their implementation of such basic human rights as the right to life and freedom from torture and other inhuman forms of treatment. Looking out of the windows of the Palais des Nations one could see the 179 flags of the UN member states fluttering in the cold autumn wind. At that moment I did not feel especially proud of seeing so many new member states flags, but thought more of the cost of every flag in human lives and suffering. And this notwithstanding the fact that in 1991-92 I was myself actively involved in the process of the dissolution of the Soviet Union as Deputy Foreign Minister of Estonia. No one doubts any more that the principle of the self-determination of peoples is a legal principle and many declare it to be a jus cogens norm of international law. What is much less clear is the content of the principle and its relation to other principles of international law having the same legal force. This last aspect is especially important because such grandiose events like those which have taken place in the erstwhile USSR and in Eastern Europe are never governed only by one principle or norm of international law. Different principles and norms, all being expressions of different real values and interests, if taken in isolation, may often indicate opposite outcomes. Therefore the task of an international lawyer is to apply these principles and norms creatively to concrete events, taking into account not only these legal principles but also important extra-legal factors and possible outcomes as well.
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The right of peoples to self-determination is not only one of fundamental principles of international law governing inter-state relations. It is at the same time a very important human rights norm and therefore rightly belongs to both Covenants on human rights. The Vienna Declaration and Programme of Action adopted by the World Conference on Human Rights in June 1993 emphasises that the Conference considers the denial of the right of self-determination as a violation of human rights and underlies the importance of the effective realisation of this right. This is so because, first, its so-called internal aspect, that is the right of all peoples freely (there are some limitations of even this freedom as I will show later) to determine their political status and to pursue their economic, social and cultural development is the entitlement of all peoples to democracy. Second, even its external aspect, that is the right of peoples freely (so far as this freedom does not infringe upon the freedom of other peoples) to determine their place in the international community of states, is becoming more and more influenced by other human rights norms. When this principle of self-determination as a legal norm started its development in the context of the process of decolonisation, this link between selfdetermination and human rights meant that individuals could not be free if the peoples to which they belonged were under an alien yoke. But the process of development of the principle of respect for human rights one of the most rapidly and radically evolving principles of international law has influenced many international law principles and norms and the principle of selfdetermination of peoples has not remained unaffected either because, as was said in the 1970 Friendly Relations Declaration, all principles of international law and each principle should be construed in the context of other principles. Though in the Friendly Relations Declaration the principle of respect for human rights was still absent, there is no doubt that the following developments in international law have confirmed the place of this principle amongst the fundamental principles of international law. The Final Act of the Conference on Security and Co-operation in Europe contains the principle of respect for human rights and fundamental freedoms and also stresses that all principles should be interpreted whilst taking the others into account. The principle of respect for human rights has been particularly dramatically developed in the framework of the Helsinki process. The Document of the Copenhagen Conference on the Human Dimension of 1990 not only speaks of concrete rights and freedoms and elaborates respective monitoring mechanisms, but for the first time gives the parameters of a society conducive to the protection of individual rights. And for the first time an international document states expressis verbis that freedom of choice by peoples of their political, social, economic and cultural systems is not absolute. Peoples are free to establish their respective political, social and economic systems so far as these systems guarantee respect for international standards of human rights. the states parties to the Conference on the Human Dimension of the CSCE confirmed that: ... they will respect each others right freely to choose and develop, in accordance with international human rights standards [emphasis added], their political, social, economic and cultural systems. In exercising this right, they will ensure that their laws, regulations, practices and policies conform with their obligations under international law and are brought into harmony with the provisions of the Declaration on Principles and other CSCE commitments. One may at first assume that such a clause limits the freedom of choice of peoples with regard to the formulation of their respective economic, social and
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political systems. In reality, however, it does not curb peoples right to selfdetermination but, on the contrary, strengthens the principle by placing limits on rulers or other antidemocratic forces in a society. The link between principles of the self-determination of peoples and respect for human rights or maybe it would be better to say the filling of the principle of self-determination with humanitarian content found further development in the processes of the dissolution of the USSR and Yugoslavia and especially in the reaction of the world community of states to these processes. On 16 December 1991, the Council of the European Communities adopted a Declaration on Guidelines on the Recognition of New states in Eastern Europe and in the Soviet Union. This document establishes the criteria and conditions for the recognition of new states which, following the historic changes in the region, have constituted themselves on a democratic basis, have accepted the appropriate international obligations and have committed themselves in good faith to a peaceful process and to negotiations. The Declaration refers specially to the principles of self-determination as a basis for recognition. Application of the principle of the self-determination of peoples is strongly influenced (or one may say, balanced) also by the principles of the inviolability of frontiers and territorial integrity of states. The sovereignty, territorial integrity and independence of states within the established international system, and the principle of self-determination of peoples, both of great value and importance, must not be permitted to work against each other in the period ahead, states a report prepared by the Secretary General of the UN, Dr Boutros-Ghali. The principles of the self-determination of peoples, the inviolability of frontiers and the territorial integrity of states are inseparable and support each other, which means that they should be balanced in the same way as justice and order need to be balanced in any society. One cannot have justice without order, while order without justice is not only inhuman but it also does not last long. Max Kampelman rightly observes that [t]he inviolability of existing boundaries is an integral part of this process [of self-determination], not because the boundaries are necessarily sound or just, but because respect for them is necessary for peace and stability. The principle of the self-determination of peoples developed in the UN mainly in the context of the process of decolonisation. Though no document confines the principle for the decolonisation of colonies of overseas parent states (so-called salt water colonialism), it was natural that at that time this aspect of the principle became the most prominent, and for some states even the only one.24 Therefore Hector Gross Espiell wrote: The United Nations established the right of self-determination as a right of peoples under colonial and alien domination. The right does not apply to peoples already organised in the form of a state which are not under colonial and alien domination, since Resolution 1514 (XV) and other United Nations
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24 India made the following reservation to article 1 of the Covenant on Civil and Political Rights: With reference to Article 1 of the International Covenant on Civil and Political Rights, the government of the Republic of India declares that the words the right of selfdetermination appearing in [that Article] apply only to the peoples under foreign domination and that these words do not apply to sovereign independent states or to a section of a people or nation which is the essence of national integrity (UN Doc CCPR/C/Rev 3, 12 May 1992, p 18). France, Germany and the Netherlands strongly objected to this reservation by India (ibid, pp 3940). 193

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instruments condemn any attempt aimed at partial or total disruption of the national unity and the territorial integrity of the country. It seem to me that, there are two flaws in this approach. First, that the principle applies only to peoples under colonial or alien domination and, second, the assumption that application of this principle to a sovereign (even multi-ethnic) state would inevitably be fraught with the disruption of its national unity or territorial integrity. In the colonial context, the principle meant the independence of colonies from their parent state. However, the attitude of states 25 as well as that of international bodies clearly shows that the principle of the self-determination of peoples has a universal application and is an ongoing right of all peoples. Outside the colonial context, however, the meaning of the principle becomes less clear and more controversial.26 The historic roots of the principle of self-determination include the American Declaration of Independence and the decree of the French Constituent Assembly of May 1790, which refers both to the Rights of Man and to the rights of peoples. In the course of the 19th century European history the principle of nationality was influential and it was the alter ego of the principle of self-determination. These concepts, together with the concept of the protection of national minorities, were prominent in the deliberations of the Allied Supreme Council at Versailles in 1919. It is obvious that the concept of self-determination was not as yet accepted as a general principle. Thus the concept of racial equality was excluded form the Covenant of the League of Nations. Moreover, the Mandates System and the famous Minorities Treaties were conspicuous in their application only in certain cases. The special application of such institutions to defeated or newly established states only testified to the absence of a general recognition of the principle of equal rights and self-determination of peoples. However, once the principle had been recognised as such, it was in the long run difficult in terms both of morality and logic to maintain that it only applied within the Americas and Europe. Thus, during and after the Second World War it was more and more accepted that self-determination was a universally applicable standard. No doubt there has been continuing doubt and difficulty over the definition of what is a people for the purpose of applying the principle of self-determination. None the less, the principle appears to have a core of reasonable certainty. This core consists in the right of a community which has a distinct character to have this character reflected in the institutions of government under which it lives. The concept of distinct character depends on a number of criteria which may appear in combination. Race (or nationality) is one of the more important of the relevant criteria, but the concept of race can only be expressed scientifically in terms of more specific features, in which matters of culture, language, religion, and group psychology predominate. The physical indicia of race and nationality may evidence the cultural distinctiveness of a group but they certainly do not inevitably condition it. Indeed, if the purely ethnic criteria are applied exclusively many long-standing national identities would be negated on academic grounds such as, for example, the United States. In any case the
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25 For example, the German objection to the Indian reservation to article 1 of the Covenant on Civil and Political Rights states: The right of self determination as enshrined in the Charter of the United Nations and as embodied in the Covenants applies to all peoples and not only to those under foreign domination (UN Doc CCPR/Rev 3, p 39). 26 Rein Mullerson, International Law, Rights and Politics, 1994, London: Routledge at pp 564. 194

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community of states has been prepared to recognise both new states and the existence of legitimate claims by units of self-determination either by institutional procedures within the United Nations or on the basis of general recognition. Bangladesh, for example, was recognised as a state on the basis of general recognition by existing states. Provisions in written constitutions may acknowledge the relevance of self-determination to the affairs of multinational societies. It is my opinion that the heterogeneous terminology which has been used over the years the references to nationalities, peoples, minorities, and indigenous populations involves essentially the same idea. Nor is this view based upon a theoretical construction. Once a member of a people or community is expressing political claims in public discourse in Geneva, New York, Ottawa, of Canberra, and using the available stock of concepts so to do, it seems to me that the type of political consciousness involved is broadly the same. The external participation of culturally distinct groups in the political process is essentially the same as that of individual states in respect of the Law of Nations. By this I mean that in order to obtain recognition of the claim to cultural identity, or to statehood, the claimant must accept the terms of the dialogue. This may sound rather obvious but it is in this context that I want to make the point that the opposition which appears in the sources between the definition of indigenous population by themselves and their definition by others is a false dichotomy. At this point I would like to stress that in practice the claim to self-determination does no necessarily involve a claim to statehood and secession. There are various models of self-government or autonomy but neither is a term of art. It is true that some models, such as Trusteeship, are related to the purpose of an ultimate transition to independence. However, there are a variety of other models, including that of Associated state (as in the case of the Cook Islands and New Zealand), the regional autonomy of Austrians in the South Tyrol, the Cyprus Constitution of 1960, and the various arrangements within the Swiss and other confederations. There can be little doubt that federalism as a system provides a special capacity and a flexibility in facing cultural diversity. Federalism is probably better able than any other system to provide a regime of stable autonomy which provides group freedoms within a wider political cosmos and keeps the principle of nationality in line with ideas of mutuality and genuine coexistence of peoples.27

It now seems an accepted rule of international law that an entity created in defiance of the principle of self-determination cannot be considered a state. There remains the problem, however, of what constitutes a people capable of exercising the right of self-determination. In this context it is worth considering and contrasting the position of the Scots, the Irish, the Croats, the Kurds, the Palestinians, the Basques, the people of Yorkshire, etc, etc. We shall return to the issue of self-determination when looking at the international law of human rights.

5.2.1.6 State succession


The transfer of territory from one state to another takes place in at least five ways:
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27 Ian Brownlie, The Rights of Peoples in Modern International Law, in Crawford (ed), The Rights of Peoples, 1988, Oxford: Oxford University Press at pp 46. 195

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(a) cession; (b) annexation; (c) emancipation; (d) formation of union; (e) federation. In all five situations one sovereign substitutes itself for another there is a disruption of legal continuity.

5.2.2 Non self-governing territories/dependent states


There still exists, although the number is dwindling, a number of territories which have limited/restricted powers of control over their own affairs and can therefore not be considered as fully independent states. The question arises as to whether they possess any degree of international personality prior to full independence.

5.2.2.1 Colonies
Traditionally international law has not regarded colonies as possessing any international personality, because the control of the colonys foreign relations rested entirely in the hands of the colonial power. We have already seen when looking at the law of treaties that there is a presumption that treaties will apply to a colonial power and its colonial possessions. However with the development of the principle of self-determination, international law has come to recognise that for certain purposes pre-independent states and national liberation movements may have some degree of international personality. For example, in 1974 the Palestine Liberation Organisation was accorded observer status at the United Nations, a position previously reserved solely for the representatives of sovereign states that were not at the time members of the United Nations. The head of the PLO was subsequently invited to address the UN General Assembly and PLO representatives have attended various UN conferences and meetings. Similarly the General Assembly recognised the South West African Peoples Organisation (SWAPO) as the sole representative of the people of Namibia. However, the exact nature of the personality of liberation movements is far from clear and in the case of Tel-Oren v Libyan Arab Republic 765 F 2d 774 (1984) a United States Court of Appeal declined to accept a case against the PLO in part on the ground that the PLOs obligations under international law were unclear.
Declaration on the Gaining of Independence to Colonial Territories and Peoples28 The General Assembly ... Declares that: 1 The subjection of peoples to alien subjugation, domination and exploitation constitutes a denial of fundamental human rights, is conntrary to the Charter of the United Nations and is an impediment to the promotion of world peace and co-operation;
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28 GA Resolution 1514 (XV), 14 December 1960 adopted by 89 votes to nil, with nine abstentions. The abstaining states were Australia, Belgium, Dominican Republic, France, Portugal, South Africa, Spain, the UK and the USA. 196

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2 All peoples have the right to self-determination; by virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development; Inadequacy of political, economic, social or education preparedness should never serve as a pretext for delaying independence; All armed action or repressive measures of all kinds directed against dependent peoples shall cease in order to enable them to exercise peacefully and freely their right to complete independence, and the integrity of their national territory shall be respected; Immediate steps shall be taken, in Trust and Non-Self-Governing Territories or all other territories which have not yet attained independence, to transfer all powers to the peoples of those territories, without any conditions or reservations, in accordance with their freely expressed will and desire, without any distinction as to race, creed or colour, in order to enable them to enjoy complete independences and freedom; Any attempt aimed at the partial or total disruption of the national unity and the territorial integrity of a country is incompatible with the Purposes and Principles of the Charter of the United Nations; All states shall observe faithfully and strictly the provisions of the Charter of the United Nations, the Universal Declaration of Human Rights and the present Declaration on the basis of equality, non-interference in the internal affairs of all states, and respect for the sovereign rights of all peoples and their territorial integrity

3 4

5.2.2.2 Protectorates
There are three situations where protection may be given by a foreign state: (a) Protection may be exercised over a territory which did not have international personality before the protectorate was created. This occurred in the late 19th century in respect of a number of European states. In such situations the territory in question will only gain full international personality when it is clear that they are acting independently of the protecting state. For example, Kuwait became a British protectorate in 1899 and was gradually given increased control over its own affairs. Its independence was only formally acknowledged by the UK in 1961, but it is clear that Kuwait had achieved statehood and international personality before that time. (b) Protection may be exercised over an already existing state. The arrangement will usually be covered by agreement between the protecting and the protected state and such protection does not usually affect the legal personality of the protected state. For example, Morocco was an independent state until the start of the 20th century when it was divided into three parts: Tangier became an international city, and the rest of Morocco was divided into a Spanish and a French zone. Foreign relations were completely within Spanish and French control, and France and Spain could conclude treaties on behalf of Morocco. Nevertheless in the Rights of US Nationals in Morocco case,29 the ICJ held that during the period of the protectorate Morocco had retained its international personality.
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29 [1952] ICJ Rep at p 176. 197

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(c) In a few specific cases one state may exercise a protective power over a much smaller state without that smaller state losing its international personality, although the extent of that personality may be limited, eg San Marino, Monaco.

5.2.2.3 Mandates and Trust Territories


The Mandate system was introduced by the League of Nations to provide for the administration of the colonies and dependencies of the losing states in the First World War inhabited by peoples not yet able to stand by themselves under the strenuous conditions of the modern world. 30 The territories concerned were divided into three classes: Class A Territories were those parts of the Turkish Empire which were thought to be closest to independence and were put under the control of Britain or France. Only Iraq achieved independence under the Mandate system, Palestine (to the extent that it has), Transjordan, Syria and Lebanon only achieved independence as a result of the Second World War. Class B Territories comprised peoples especially those of Central Africa, (who) are at such a stage that the Mandatory must be responsible for the administration of the territory under conditions which will guarantee freedom of conscience and religion, subject only to the maintenance of public order and morals, the prohibition of abuses such as the slave trade, the arms traffic and the liquor traffic, and the prevention of the establishment of fortifications or military or naval bases and of military training of the natives for other than police purposes and the defence of the territory, and will also secure equal opportunities for the trade and commerce of other Members of the League.31 Included in the Class B Territories were Tanganyika, British and French Togoland, the British and French Cameroons, Rwanda. The territories concerned only gained independence after transfer to the UN Trusteeship system. Class C Territories included certain territories which, owing to the sparseness of their population, or their small size, or their remoteness from the centres of civilisation, or their geographical contiguity to the territory of the Mandatory, and other circumstances, can be best administered under the laws of the Mandatory as integral portions of its territory, subject to ... safeguards in the interests of the indigenous population. Included in the Class C Mandates were Namibia, Samoa, and New Guinea. When the League of Nations was disbanded to be succeeded by the United Nations a replacement was needed for the Mandate system and an entirely new trusteeship system was established under Chapter XI of the UN Charter. Those territories held under Mandate were placed under the trusteeship system which would involve the conclusion of a trusteeship agreement between the administering authority and the United Nations. The main object of the system was to promote the political, economic, social and educational advancement of
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30 Article 22, para 4 of the Covenant of the League of Nations 1919. 31 Article 22, para 5 of the League of Nations Covenant 1919. 32 Article 22, para 6 of the League of Nations Covenant 1919. 198

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the inhabitants of the trust territories, and their progressive development towards self-government or independence as may be appropriate to the particular circumstances of each territory and its peoples and the freely expressed wishes of the people concerned.33 The traditional view of Mandates and trusteeships was that, as long as they subsisted over a particular territory, that territory could not be regarded as having international personality. However, paralleling the situation with regard to colonies, increasingly the view has been expressed that Trust Territories do possess some degree of separate status and international personality, similar to that accorded to organisations such as the PLO.
Namibia, even at the periods when it had been reduced to the status of a German colony or was subject to the South African Mandate, possessed a legal personality which was denied it only by the law now obsolete ... It nevertheless constituted a subject of law ... possessing national sovereignty but lacking the exercise thereof.34

All of the trust territories have now become independent states and the UN is considering the future role of the Trusteeship Council.

5.2.3 International organisations


Accordingly, the Court has come to the conclusion that the [United Nations] Organisation is an international person. That is not the same thing as saying that it is a state, which it certainly is not, or that its legal personality and rights and duties are the same as those of a state ... What it does mean is that it is a subject of international law and capable of possessing international rights and duties, and that it has capacity to maintain its rights by bringing international claims.35 Whilst ... specific acknowledgement of the possession of international personality is extremely rare, it is permissible to assume that most organisations created by a multilateral inter-governmental agreement will, so far as they are endowed with functions on the international plane, possess some measure of international personality in addition to the personality within the system of municipal law of the members ... Possession of international personality will normally involve, as a consequence, the attribution of power to make treaties, of privileges and immunities, of power to undertake legal proceedings: it will also pose a general problem of dissolution, for in the nature of things, the personality of all such organisations can be brought to an end.36

It is clear that international organisations are capable of possessing international personality and of being subjects of international law. The functions, rights and duties of such organisations are governed by what Starke refers to as international constitutional law. Institutions will be defined by reference to their legal functions and responsibilities and the constitutions of such institutions will set out their powers, objects and purpose analogies can perhaps be drawn with municipal company law and a companys memorandum and articles of association. In that major respect international organisations differ from states
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33 34 35 36

Article 76 of the UN Charter. Judge Ammoun in the Namibia case [1971] ICJ Rep at 68. ICJ in the Reparations case [1949] ICJ Rep at 174. Bowett, The Law of International Institutions, 4th edn, 1982, London: Stevens at p 339. 199

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in that their powers are limited and problems of sovereignty and jurisdiction do not arise. Almost everything is within the competence of states whereas anything not expressly within the powers of an international organisation is prima facie ultra vires although certain powers may be implied, as in the Reparations case. The criteria of legal personality of international organisations may be summarised as follows: (1) a permanent association of states, with lawful objects equipped with organs to carry out those objects; (2) a distinction between the organisation and its member states; (3) the existence of legal powers exercisable on the international plane and not solely within the national system of one or more states. As far as international organisations are concerned the principal questions to be decided are: (1) the extent to which the organisation can conclude treaties; (2) the privileges and immunities to which the organisation is entitled; (3) the capacity of the organisation to bring international claims. It should however be noted at this point that only states have locus standi in contentious cases before the International Court of Justice.

5.2.4 Individuals
[An individual] is a person in international law, though his capacities may be different from and less in number and substance than the capacities of states. An individual, for example, cannot acquire territory, he cannot make treaties, and he cannot have belligerent rights. But he can commit war crimes, and piracy, and crimes against humanity and foreign sovereigns and he can own property which international law protects, and he can have claims to compensation for acts arising ex contractu or ex delicto.37 Any individual who commits a crime against the peace and security of mankind is responsible for such crime.38

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37 OConnell, International Law, Vol 1, 1970, London: Stevens at pp 10809. 38 Article 3 of the Draft Code of Offences Against the Peace and Security of Mankind (1987) ILC Ybk Vol II, part II, 13. 200

CHAPTER 6 RECOGNITION AND LEGITIMATION


6.1 Introduction

It has already been seen that an important requirement of statehood is the capacity to enter into international legal relationships. This inevitably concerns the attitude of other states and in particular raises the question of recognition. Do other states recognise the new entity as a state? What are the implications if they do recognise it? What are the implications if they do not?

6.2

The theoretical issue

As is so often the case with international law, discussion of recognition has led to the development of two competing theories. The principal question which the two theories attempt to answer is whether recognition is a necessary requirement for or merely a consequence of international personality.

6.2.1 The constitutive theory


Underlying the constitutive theory is the view that every legal system requires some organ to determine with finality and certainty the subjects of the system. In the present international legal system that organ can only be the states, acting severally or collectively, and their determination must have definitive legal effect. The constitutive theory developed in the 19th century and was closely allied to a positivist view of international law. According to that view the obligation to obey international law derives from the consent of individual states. The creation of a new state would create new legal obligations and existing states would need to consent to those new obligations. Therefore the acceptance of the new state by existing states was essential. A further argument prevalent during the late 19th century was based on the view of international law as existing between civilised nations. New states could not automatically become members of the international community, it was recognition which created their membership. This had the further consequence that entities not recognised as states were not bound by international law, nor were the civilised nations so bound in their dealings with them. Oppenheim stated the position thus:
The formation of a new state is ... a matter of fact and not law. It is through recognition, which is a matter of law, that such a new state becomes subject to international law.1

Recognition is therefore seen as a requirement of international personality. A major criticism of this theory is that it leads to confusion where a new state is recognised by some states but not others. Lauterpacht attempted to get round this problem by alleging an international legal duty to recognise:

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Oppenheims International Law, Vol 1, 8th edn, 1955, London: Longmans at p 544. 201

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To recognise a community as a state is to declare that it fulfils the conditions of statehood as required by international law. If those conditions are present, existing states are under a duty to grant recognition ... in granting or withholding recognition states do not claim and are not entitled to serve exclusively the interests of their national policy and convenience regardless of the principles of international law in the matter. Although recognition is thus declaratory of an existing fact, such declaration, made in the impartial fulfilment of a legal duty, is constitutive, as between the recognising state and the community so recognised, of international rights and duties associated with full statehood. Prior to recognition such rights and obligations exist only to the extent to which they have been expressly conceded or legitimately asserted, by reference to compelling rules of humanity and justice, either by the existing members of the international society or by the people claiming recognition.2

However, although states do make reference to the presence or absence of the factual characteristics of statehood when granting or refusing recognition, in the last resort their decision will normally be based on political expediency there is no real evidence that states themselves feel that there is a legal duty to recognise when the other requirements of statehood have been satisfied. The question has recently arisen with respect to the territory of former Yugoslavia. In June 1991 Slovenia and Croatia declared their independence. The European Union and its member states did not recognise the two states immediately. In December 1991 Foreign Ministers of EU member states adopted Guidelines on the recognition of new states in Eastern Europe and in the Soviet Union. This provided that recognition would be accorded to those new states which agreed to respect five conditions. The five conditions included matters such as respect for human rights, guarantees for minorities, respect for the inviolability of frontiers, acceptance of commitments to regional security and stability and to settle by agreement all questions concerning state succession. Slovenia, Croatia and Bosnia-Herzegovina agreed to the conditions and were formally accorded recognition in early 1992. It is clear that the conditions set down by the European Union exceeded the normal requirements of statehood. The implication would therefore seem to be that the EU viewed recognition as a political measure which was not required by any international obligation. It remains to be seen whether European practice will continue to use these conditions in all decisions on the recognition of new states or whether the application of the conditions will be restricted to the particular situation in the Balkans and Eastern Europe.

6.2.2 The declaratory theory


An early example of the declaratory theory is to be found in two provisions of the Montevideo Convention:
The political existence of the state is independent of recognition by other states. Even before recognition the state has the right to defend its integrity and independence ... and to organise itself as it sees fit. The exercise of these rights has no other limitation than the exercise of the rights of other states according to international law Article 3.
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Lauterpacht, Recognition in International Law, 1978, New York: AMS Press at p 6. 202

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The recognition of a state merely signifies that the state which recognises it accepts the personality of the other, with all the rights and duties determined by international law Article 6.

For the adherents to the declaratory theory the formation of a new state is a matter of fact, not law. Recognition is a political act by which the recognising state indicates a willingness to initiate international relations with the recognised state and the question of international personality is independent of recognition. However, the act of recognition is not totally without legal significance because it does indicate that the recognising state considers that the new entity fulfils all the required conditions for becoming an international subject. The declaratory theory is more widely supported by writers on international law today and it accords more readily with state practice, as is illustrated by the fact that non-recognised states are quite commonly the object of international claims by the very states which are refusing recognition, for example Arab states have continued to maintain that Israel is bound by international law although few of them, until recently, have recognised Israel.

6.3

Non-recognition

The legal regime established by the Covenant of the League of Nations 1919 and the Kellogg-Briand Pact 1928 was the basis for the development of the principle that acquisition of territory or special advantages by illegal threat or use of force would not create a title capable of recognition by other states. The principle achieved particular significance as a result of the Japanese invasion of Manchuria in 1931. The US Secretary of State, Stimson, declared that the illegal invasion would not be recognised as it was contrary to the Kellogg-Briand Pact which outlawed the use of war as an instrument of national policy. Thereafter the doctrine of not recognising any situation, treaty or agreement brought about by non-legal means was often referred to as the Stimson Doctrine. However, state practice before the Second World War did not seem to support the view that the Stimson Doctrine contained a binding rule of international law. The Italian conquest of Abyssinia (Ethiopia) was recognised as was the German take-over of Czechoslovakia. After 1945 the principle was re-examined and the draft Declaration on the Rights and Duties of States prepared by the ILC emphasised that territorial acquisitions achieved in a manner inconsistent with international law should not be recognised by other states. Similarly the Declaration on Principles of International Law 1970 adopted by the UN General Assembly included a provision to the effect that no territorial acquisition resulting from the threat or use of force shall be recognised as legal. There have been a number of occasions where the Security Council of the United Nations has called on states not to accord recognition to situations which have arisen as a result of unlawful acts:
The Security Council, deeply concerned about the situation in Southern Rhodesia ... 6 Calls upon all states not to recognise this illegal authority and not to entertain any diplomatic or other relations with it.3
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Security Council Resolution, 20 November 1965. 203

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Recognition in such situations would itself be a breach of international law.

6.4

Recognition of governments

Although the practice of states is far from establishing the existence of a legal duty to recognise an entity which has established the factual characteristics of statehood, with regard to governments the position is even more difficult. The problem of recognition of governments will arise when a new regime has taken power: (a) unconstitutionally; (b) by violent means; or (c) with foreign help, in a state whose previous and legitimate government was recognised by other states. Recognition in such circumstances may appear an endorsement of the new regime, and the recognising state may not wish to offer such endorsement or approval. Alternatively, it may be impractical not to acknowledge a factual situation, in which case the recognising state may wish to indicate that recognition is inevitable once a given set of facts arise. Two approaches can therefore be identified: an objective approach, whereby recognition will occur if a given set of facts have occurred, or a subjective test, whereby recognition will depend on whether or not the new regime is going to act properly in the eyes of the recognising state. One possible resolution of the problem of when to recognise is to avoid recognition altogether. In 1930, the Mexican Foreign Minister, Seor Estrada, rejected the whole doctrine of recognition on the ground that it allows foreign governments to pass upon the legitimacy or illegitimacy of the regime existing in another country, with the result that situations arise in which the legal qualifications or national status of governments or authorities are apparently made subject to the opinion of foreigners. Henceforward, the Mexican government refused to make declarations granting recognition of governments. This Estrada Doctrine, as it came to be known, denies the need for explicit and formal acts of recognition; all that needs to be determined is whether the new regime has in fact established itself as the effective government of the country. Although slow at first to catch on, the Estrada Doctrine has come to be followed by an increasing number of states. In 1977, the United States announced that it would no longer issue formal declarations of recognition, the only question in future would be whether diplomatic relations continued with the new regime or not. Following the US practice the UK has also deemphasised recognition and there is now no formal recognition of new regimes, although the Foreign Office will still have to decide whether or not a new regime has effective control when considering matters such as trade and diplomatic relations.

6.5

De facto and de jure recognition

A distinction has sometimes been made in cases where governments have been accorded recognition between de facto and de jure recognition. Recognition of an

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entity as the de facto government can be seen as an interim step taken where there is some doubt as to the legitimacy of the new government or as to its longterm prospects of survival. For example, the UK recognised the Soviet government de facto in 1921 and de jure in 1924. In some situations, particularly where there is a civil war, both a de facto and a de jure government may be recognised, as for example during the Spanish Civil War when the Republican government continued to be recognised as the de jure government, but as the Nationalist forces under General Franco took increasingly effective control of Spain, de facto recognition was accorded to the Nationalist government. Eventually the Nationalist government obtained full de jure recognition.

6.6

Collective recognition

COLLECTIVE RESPONSES TO THE UNILATERAL DECLARATIONS OF INDEPENDENCE OF SOUTHERN RHODESIA AND PALESTINE: AN APPLICATION OF THE LEGITIMISING FUNCTION OF THE UNITED NATIONS4 I INTRODUCTION The proclamation in 1988 of the independent state of Palestine has underlined once again a major function which the United Nations has assumed by default, namely that of collective legitimisation, and its corollary, collective illegitimisation. A comparison with the attempted creation of another controversial state this century that of Rhodesia sheds light on this significant development of the United Nations. It will be recalled that on 11 November 1965 a European minority under the leadership of Ian Smith unilaterally declared the independence of the British colony of Southern Rhodesia. The purported new state of Rhodesia had serious claims to fulfil the traditional criteria of statehood. If possessed a defined territory, permanent population and a government clearly manifesting its effectiveness both in terms of authority over the population, and in terms of independence from external control. Twenty-three years later, on 15 November 1988, the Palestine National Council, at its 19th Extraordinary Session in Algiers, adopted the decision to declare in the name of God and on behalf of the Palestinian Arab people, the establishment of the state of Palestine in the land of Palestine with its capital at Jerusalem. Whilst there clearly was an identifiable population, there was no elected government, and an apparent lack of effective control over defined territory. In terms therefore of the traditional criteria for recognition of statehood, the contrasts between the two cases may seem to be evident. Yet in the former, the State of Rhodesia was effectively denied recognition and entry into the international community by the United Nations until its accession to independence in 1980 as the State of Zimbabwe on the basis of majority rule. In the latter case, the proclamation of an independent State of Palestine was officially acknowledged by the General Assembly of the United Nations in December 1988, and granted recognition by close to 100 states.5

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4 5

Vera Gowlland-Debbas (1990) BYIL LXI at pp 13555. Keesings Record of World Events (1988) 34 at para 36321. 205

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This apparent paradox may be explained by reference to an underlying common denominator: in effect in both these cases the traditional criteria of statehood, in particular the principle of effectiveness, were overridden by the legitimising principle of self-determination of peoples, the United Nations acting as the dispenser of approval or disapproval of these unilateral claims to independent status in accordance with their conformity or non-conformity with this principle. The political and moral impact of this United Nations function of legitimisation has been underlined by a number of commentators.6 In briefly reviewing the collective responses to these two unilateral proclamations of independent statehood, the present article seeks to demonstrate, however, that in both cases the United Nations went well beyond a political or moral function. For in its unanimous condemnation of the UDI, and its legitimisation of a Palestinian state, it is contended that the United Nations majority resorted to a series of pronouncements having a quasi-legal function: the collective defence of the right to self-determination, a norm now considered as of fundamental concern to the international community, and which has proved to be the cornerstone of subsequent claims to full sovereignty in both the legal and the material sense. II THE UNILATERAL DECLARATIONS OF INDEPENDENT STATEHOOD UNDER INTERNATIONAL LAW (a) The background The origins of the two unilateral declarations are by now sufficiently well-known to be recalled only briefly. The constitutional relationship between the territory of Southern Rhodesia and the United Kingdom differed from that of other more classic colonies as a result of its particular circumstances. Instigated by Cecil Rhodes, the British had in 1888 first acquired a sphere of influence in the territory and had then secured exclusive mineral rights from the local chief, following this up by occupation in 1890 and conquest in 1894. The origins of the Southern Rhodesian crisis that was to erupt in November 1965 can be traced to the initial British policy of entrusting local administration to a chartered company, and then to the gradual delegation of powers to the European settlers, leading to the grant to this minority of a considerable measure of internal self-government (Constitutions of 1923 and 1961).7 Whilst there was no formal system of apartheid in existence and legislation was not overtly based on racist lines, deliberate white Rhodesian governmental policies ensured that African participation in the political process and the rate of African political advancement were kept to a minimum. As a result, whilst Southern Rhodesias two northern neighbours acceded to independence in 1964 as Zambia and Malawi, the United Kingdom, under pressure from the

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Claude, Collective Legitimisation as a Political Function of the United Nations (1966) 20 International Organisation 36779; Virally, LOrganisation mondiale, 1992, Paris: Armand Colin, at pp 43031 and 45456; id Le Rle des organisations dans lattenuation et le rglement des crises internationles (1976) 14 Politique Etrangre pp 52962. With a passing reference to Rhodesia and the PLO he states: La composition multilatrale de lorganisation internationale, la finalit dintrt-gnral confre aux actes de ses organes une autorit morale spcifique. Par la-mme, elle est en mesure de confrer ou de rfuser le label de la lgitimite aux situations cres par les tats ou dautres acteurs internationaux, ou a leurs aspirations Les consquences practiques de lxercice de cette fonction nont pas besoin dtre longuement commentes, ibid, pp 54041. See Palley, The Constitutional History and Law of Southern Rhodesia 18881965, with special reference to Imperial Control, 1966, Oxford: Clarendon Press. 206

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international community not to abandon this large unenfranchised black majority, denied the territory independence so long as the white minority refused to give certain guarantees for their political advancement.8 It was the resentment of white Rhodesians over this, following the failure of negotiations with the United Kingdom to obtain independence by constitutional means, that led to a unilateral declaration of independence on 11 November 1965 by which the government of Rhodesia purported to enact a constitution for an independent sovereign state. Significantly, the Independence Proclamation, whilst echoing the 1776 American Declaration of Independence, omitted the assertion that all men are created equal, and made no reference to the consent of the governed.9 Palestine, it will be recalled, as one of the territories detached from the Turkish Empire, had been placed under the League of Nations Mandate system with Great Britain designated as the Mandatory Power. Article 22 of the Covenant of the League provided that the Mandates should be governed by the principle that the well-being and development of such peoples form a sacred trust of civilisation, and with respect to Class A Mandates, which included Palestine, provided for the provisional recognition of their existence as independent nations ... subject to the rendering of administrative advice and assistance by a Mandatory. After the Second World War, however, Great Britain, finding itself, in the face of the inherent contradictions of the Mandate and the growing tension in the territory, unable to establish political institutions leading towards selfgovernment, placed the matter in April 1947 in the hands of the General Assembly of the United Nations. The result was the adoption of Resolution 181 (II) on 29 November 1947 recommending a Plan of Partition with Economic Union which provided for the establishment of independent Arab and Jewish states and of a special international regime for the City of Jerusalem. This was never implemented. The consequences are only too well known. Following the 1948-9 Arab-Israeli conflict, the newly proclaimed State of Israel appropriated territories not assigned to it under the Partition Plan, and Egypt and Jordan ended up administering the Gaza Strip and the West Bank respectively,10 both of which territories were occupied by Israel following further hostilities in 1967. There were several milestones leading to the declaration of an independent Palestinian state: the formation of the Palestine Liberation Organisation by the National Congress of Palestine in 1964; the recognition of the PLO as the sole and legitimate representative of the Palestinian people by the 8th Arab Summit in Rabat in October 1974; the Palestinian uprising, the intifadah begun in the

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For a further analysis of the question of Southern Rhodesia see Gowlland-Debbas, Collective Responses to Illegal Acts in International Law: United Nations Action in the Question of Southern Rhodesia, 1990, Dordrecht: Martinus Nijhoff. 9 Rhodesia Proclamation No 53 of 1965. Text in Windrich, The Rhodesia Problem. A Documentary Record 1923-1973, 1975, London/Boston: Routledge/Kegan Paul at pp 21011. 10 On the origins of the Palestine problem and the legal issues raised see Boyle, Creating the State of Palestine (198788) 4 Palestine Yearbook of International Law pp 1543; Cattan, Palestine and International Law. The Legal Aspects of the Arab-Israeli Conflict, 1973, London: Longma; Kassim Legal Systems and Development in Palestine (1984) I Palestine Yearbook of International Law pp 1935; WT and SV Mallinson, The Palestine Problem in International Law and World Order, 1986, London: Longman; Pellet, La Dstruction de Troie naura pas lieu (198788) 4 Palestine Yearbook of International Law pp 4484. 207

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occupied territories in December 1987; and King Husseins decision on 31 July 1988 to give up legal and administrative links with the West Bank.11 In contrast to the Rhodesian Independence Proclamation, the Declaration of Independence of Palestine was made, inter alia:12 By virtue of the natural, historical and legal right of the Palestinian Arab people to its homeland, Palestine ... ... on the basis of the international legitimacy embodied in the resolutions of the United Nations since 1947, and through the exercise by the Palestinian Arab people of its right to selfdetermination, political independence and sovereignty over its territory ... The Declaration also affirmed the establishment in the State of Palestine of, inter alia, a democratic parliamentary system and full equality of rights, and affirmed respect for the principles of the UN Charter. (b) The Unilateral Declarations of Independence and the Criteria of Statehood Under international law, such unilateral declarations of independence can only be considered as a claim to personality and a request for recognition. Actually to attain that end, fulfilment of the international legal criteria for independent statehood has traditionally been required (as a preliminary step or a determining factor in the achievement of international personality, depending on whether one argues from the constitutive or declaratory viewpoints of the effects of recognition).13 In particular, the need for effective governmental control has been underlined.14 Debate relating to the fulfilment of these criteria by Rhodesia and Palestine has been waged on both sides. This debate can be summarised as follows. 1 Southern Rhodesia and the criteria of statehood In 1965 the purported new State of Rhodesia had serious claims to fulfil these criteria. the first two conditions regarding territorial boundaries and permanent population did not come into question. With respect to the criteria of effectiveness and independence, it appeared that the domestic effectiveness of the Smith regime, a regime given the judicial blessing by the Rhodesian courts,15 was assured. It wielded effective control over the organs of government, successfully set up new governmental institutions under new constitutional arrangements, issued passports and introduced decimal currency and UDI
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11 Text in (1988) 27 International Legal Materials, pp 163754. Regarding the prior status of the West Bank, see Kassim, loc cit above pp 2728; Pellet, loc cit p 60. 12 For the English text of the Declaration of Independence and accompanying political communique, see (1988) 27 International Legal Materials, pp 166071, and UN Doc A/43/827 and S/20278, Ann III (1988). See also Flory, Naissance dun Etat Palestinien (1989) 93 Revue generale de droit international public, pp 385407. 13 See Article 1 of the Montevideo Convention on the Rights and Duties of States of 1933, League of Nations Treaty Series, Vol 19, p 165, which states: The state as a person of international law should possess the following qualifications: (a) a permanent population; (b) a defined territory; (c) government; and (d) capacity to enter into relations with other states. See also the American Law Institute, Restatement (Third) of the Foreign Relations Law of the United States, 1987, Vol 1, para 201, St Paul, Minnesota. 14 For example, Brownlie, Principles of Public International Law , 4th edn, 1990, Oxford: Clarendon Press at p 73; Crawford, The Creation of States in International Law, 1979, Oxford: Clarendon Press at pp 36 ff; Thierry, Combacau, Sur and Vallee, Droit International Public, 1984, Paris: Editions Montchrestien at pp 198211. 15 Archion Ndhlovu and others v The Queen, Appellate Division, High Court of Rhodesia, 13 September 1968; [1968] (4) SALR 515. 208

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stamps. There was no serious challenge at the time from within, the threat of guerrilla warfare having initially been contained. Southern Rhodesias independence from the United Kingdom was also clearly demonstrated in the face of that states futile attempts to assert its sovereignty, whilst refusing at the same time to use force against kith and kin. Finally, Southern Rhodesias dependence on South Africas support was said not to affect its legal independence. These arguments concerning statehood were bolstered by the fact that the regime maintained itself in power for over 14 years, despite considerable external pressures. On the other hand, serious doubts were expressed at the time, which in retrospect proved to be only too well founded, concerning the reasonable prospects of permanency of a regime which denied political participation to the majority in the territory on a racially discriminatory basis, and the stability of a state, the independence of which had been opposed by the entire international community.16 2 Palestine and the criteria of statehood The greater part of this debate has arisen from the request of Palestine for a change from its observer status to full membership of certain of the specialised agencies (so far, the WHO and UNESCO), since the constituent instruments of these organisations make admission to full membership contingent on statehood.17 This discussion has not at the time of writing been conclusive, compromise resolutions being adopted in both organisations which effectively shelved the admission for an indeterminate period. However, certain conclusions regarding statehood may be drawn from this stage of the debate. Not surprisingly, the representative from Israel considered that the declaration from Algiers proclaims a so-called independent Palestinian state, with no territory, no borders and with Jerusalem, my home town and the capital of Israel, as its declared capital. That declaration has no meaning in reality.18 Other states such as Canada, Australia, the United States, Spain (speaking in the name of the European Community) and Norway also declared that, in their view, the proclaimed Palestinian state did not conform with the criteria of international law for the recognition of statehood. The French Foreign Minister in a more nuanced statement declared: Si cette reconnaissance par la France dun Etat palestinien ne soulve aucune difficult de principe, il est toutefois contraire sa jurisprudence de reconnatre un Etat qui ne dispose pas dun trritoire dfini.18
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16 For arguments and references, see Gowlland-Debbas, op cit above (n 4, pp 20515). 17 Letters dated 1 and 27 April 1989 from Mr Yasser Arafat in his capacity as President of the State of Palestine and Chairman of the Executive Committee of the PLO, to the DirectorsGeneral of WHO and UNESCO (WHO Doc A42/INF Doc/3 and UNESCO Doc 25 C/106, Annex 1). The application for admission to the WHO, for example, refers to the desire of the State of Palestine to become a full member of the WHO in accordance with Article 6 of the Constitution (which provides that states may apply to become Members and shall be admitted as Members when their application has been approved by a simple majority vote of the Health Assembly), and undertakes to fulfil all duties and responsibilities arising from the full membership of the State of Palestine in WHO. 18 UN Doc A/43/PV 79 at p 32 and letter from the Permanent Representative of Israel to the Director General of the WHO, 21 April 1989 reproduced in WHO Doc A42/INF Doc/3. 19 Le Monde , 18 November 1988. See also the statement by the President of the French Republic, underlining le principe de lffectivit, qui implique lxistence dun pouvoir responsable et indpendant sxerant sur un trritoire et une population. Ce nest pas encore le cas : ibid, 24 November 1988. 209

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The Federal Department of Foreign Affairs of Switzerland, with respect to a communication of 21 June 1989, from the Permanent Observer of Palestine to the UN concerning the participation of Palestine in the four 1949 Geneva Conventions and 1977 Additional Protocols, informed the contracting parties that: due to the uncertainty within the international community as to the existence or the non-existence of a State of Palestine and as long as the issue has not been settled in an appropriate framework, the Swiss government, in its capacity as depositary of the Geneva Conventions and their additional protocols, is not in a position to decide whether this communication can be considered as an instrument of accession in the sense of the relevant provisions of the Conventions and their additional protocols ...20 As for writings on the subject, in a recent article concerning the admission of Palestine to the specialised agencies, one author was led to conclude: It is very doubtful that Palestine currently qualifies as a state under international law.21 The case for fulfilment of the criteria of statehood is, however, convincing. In so far as the requirement of population is concerned, it is hard to dispute the existence of a Palestinian people with its own separate cultural identity. This existence has been recognised in a number of international instruments,22 numerous General Assembly resolutions23 and state unilateral and collective declarations.24 It has also been argued that the intifidah has shown that even 20 years of occupation cannot destroy the aspirations of a people.25 As for a defined territory, it has been pointed out that the declaration of independence and political communiqu of 15 November 1988, combined with recognition of the right of Israel to exist, have now served to remove past ambiguities. These decisions accept the convening of an International Conference on the basis of Security Council Resolution 242 (1967) which, together with General Assembly Resolution 181 (II), would delimit the frontiers of the State of Palestine within the confines of the Palestinian territory occupied since 1967. It may be added that though the Proclamation purports to establish Jerusalem as the capital of an independent Palestinian State (contrary to the corpus separatum established by Resolution 181), this has clearly been limited to Arab Jerusalem. It
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20 Note of information dated 13 September 1989. 21 Kirgis, Admission of Palestine as a Member of a Specialised Agency and Witholding the Payment of Assessments in Response (1990) 84 American Journal of International Law, pp 21830 at pp 219 and 230, although he concludes that this does not necessarily determine its eligibility for admission to the specialised agencies or to the United Nations, since these also take into account other factors than that of statehood under customary international law, such as the ability to carry out the ongoing obligations of membership (ibid, pp 22021). 22 An explanatory memorandum dated 12 May 1989 from six Afro-Asian States (UNESCO Doc 131 EX/43, pp 12) refers to Article 16 of the Treaty of Svres (1920) and the Treaty of Lausanne (1923) and the Mandate over Palestine entrusted to the United Kingdom on the basis of Article 22 of the League Covenant. 23 GA Res 181 of 29 November 1947 on the partition of Palestine and relevant resolutions adopted since 1967 recognising the right to self-determination of the Palestinian people. 24 The Declaration of Venice (12 June 1980) of the Heads of State, Heads of Government and Ministers of Foreign Affairs in the name of the European Community, in which it is explicitly mentioned that the Palestinian people, which is conscious of existing as such should exercise in full its right to self-determination (cited in UNESCO Doc 131 EX/43 p 2). See also the declaration of the President of the French Republic: Dores et dj merge la nation palstinienne, identifie comme telle aux yeux des autres nations du monde: Le Monde, 24 November 1988. 25 UN Doc A/43 PV 80, Austria, p 21; Flory, loc cit p 397; Pellet, loc cit pp 6061. 210

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can also be contended that a new state may exist despite undefined boundaries26 witness the creation of Israel in 1948, admitted to the United Nations on 11 May 1949 despite not only undefined frontiers but also claims relating to its territory as a whole. Furthermore, it may be argued that as a result of the withdrawal of Jordanian administration, there is an absence of other valid claims to this territory since (in accordance with the well-established principle of international law concerning non-acquisition of territory through the use of force) Israel cannot be said to have acquired sovereignty over the territories which it presently occupies. As for the requirement of effectiveness, it has been argued that the state is endowed with legitimate and representative political powers, namely, an Executive Committee entrusted by the Palestinian National Council (the supreme body of the PLO) with governmental functions, exercising responsibility outside the Palestinian territory in full independence and, inside the territory, carrying out certain (clandestine) functions (social, educational, cultural, etc by the intermediary of clandestine popular committees) since it is temporarily deprived of exercising territorial authority. It must be pointed out, however, that despite allusions to precedents such as the Czechoslovak and Polish National Committees (191718) and the French Committee of National Liberation (1943), the status of the Palestinian government remains difficult to define, since the Executive Committee is only entrusted with governmental functions pending the constitution of a provisional Palestinian government and there is a deliberate intention to avoid the term government-in-exile. However, whilst in these two cases of Rhodesia and Palestine states continue to give lip service to the traditional criteria of statehood, it is remarkable that in both cases these should have been considered irrelevant by the United Nations majority, as reflected in the collective response by the organisation to the two declarations of independence. The reason may be sought in the United Nations function of legitimisation. III THE UNITED NATIONS FUNCTION OF LEGITIMISATION The concept of legitimacy plays an important role in international society. Moreover, whereas the function of legitimisation was once exclusively assumed by individual states through the medium of state recognition, the institutionalisation of state relations has provided a means for the international community as a whole to pronounce on the legitimacy of new situations. It has been pointed out quite rightly that legitimacy is not to be defined necessarily with legality. It has been stated: Mme si la distinction nest pas absolue, il convient cependant de tenir pour lgitime ce qui est conforme a une valeur alors quest lgal ce qui est conforme au droit.27 Indeed, legitimacy affirmed within a moral or political framework may serve to counter the existing legal order. In turn, however, where this process is successful, what was previously only legitimate may well become identified with a new legality. The function of legitimisation has thus been closely associated to the doctrine of collective non-recognition traced back to the 1932 Stimson Doctrine but revived in modern form. The Doctrine is envisaged as a collective response to an act or situation contrary to
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26 See, eg, North Sea Continental Shelf cases, in which the Court stated that there is no rule that the land frontiers of a State must be fully delimited or defined [1969] ICJ Rep at p 32; Brownlie, op cit at p 73. 27 Verhoven, La Reconnaissance international dans la practique contemporaine. Les Rlations publiques internationales, 1975, Paris: Editions A Pedone at p 587. 211

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international law and consisting in the withholding of legitimisation, the function of legitimisation being used here in a negative fashion to prevent the consolidation of illegal but otherwise effective changes which would have had, under traditional international law, a law-creating function. This evolution has been well illustrated in contemporary international society where, under the impetus of the so-called new states, the political process set in motion by the UN majority on the basis of a proclaimed new legitimacy has resulted largely though not exclusively by means of the passage of General Assembly declaratory resolutions in the establishment of new rules of conduct for states. In this sense, therefore, the function of legitimisation and its corollary, that of illegitimisation assumed by the political organs of the United Nations may no longer be exclusively analysed within a political context of upholding what is moral, or just, but applied within the framework of a new legal order, considered to be more in conformity with contemporary notions of justice and community interests, and which has seen the erosion of the monolithic structure of traditional international law by a hierarchisation (or relativisation) of norms resulting from novel concepts: those of jus cogens (endorsed by the 1969 Vienna Convention on the Law of Treaties), of obligations erga omnes (enunciated by the International Court in the Barcelona Traction case) and of international crimes (introduced into the Draft Articles on State Responsibility of the International Law Commission). The process of legitimisation and illegitimisation by the United Nations has therefore also become a legal process, as a tool in the collective defence of those norms of the new legal order which are considered fundamental to the international community. Whilst not explicitly stated in the Charter, this UN function has evolved through the practice on the basis of (a) declaratory resolutions affirming the existence of certain fundamental rules, eg the prohibition of the use of force in international relations and the right to self-determination, and (b) resolutions determining or characterising certain situations or acts in particular those relating to territorial changes effected through the use of force, and to the birth of new entities as valid or invalid, as the case may be, a change being considered legitimate only if carried out in conformity with such rules. Unarguably, therefore, the function of legitimisation has become part of the legal process, despite its evident political impetus, in the sense that a whole number of legal consequences (underlined by the International Court of Justice) flow from these declaratory resolutions and from determinations which have operative design,28 thus impinging on and modifying the prior legal situation. Nowhere is this so evident as in the role played by the United Nations in the promotion of the fundamental right to self-determination. Under the vehicle of Resolution 1514 (XV) on the Declaration of Independence to Colonial Countries and Peoples, and subsequent General Assembly resolutions, the principle, formulated as the right of a majority of a people not yet constituted into a state to

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28 Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 [1971] ICJ Rep at p 50 (It would not be correct to assume that because the General Assembly is in principle vested with recommendatory powers, it is debarred from adopting, in specific cases within the framework of its competence, resolutions which make determinations or have operative design). See the by now classic work of Casteneda, Legal Effects of United Nations Resolutions, 1969, London: Columbia University Press. 212

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determine its external and internal political status, was gradually given shape and expanded to include colonialism in all its forms and manifestations. It was to find its way into treaty law and judicial pronouncements, and is now considered to form part of the body of rights fundamental to the international community, breaches of which are deemed to warrant a different and more serious legal response. Placed within the context of the right to self-determination, the questions of Southern Rhodesia and Palestine were to constitute important precedents in this process. IV THE COLLECTIVE RESPONSES TO THE UNILATERAL DECLARATIONS OF INDEPENDENCE Action with respect to Southern Rhodesia had been initiated in 1961 at the international level as a result of the concern of the UN majority over the progressive evolution towards independence of a territory placed under a local administration of settlers and based on racial discrimination and a denial of political and other rights to the African majority. In seeking the means to oppose and eradicate this system before it could slide into the formal apartheid system of its Southern neighbour, and to substitute for it the only goal acceptable, that of self-determination for its people, the UN majority sought to ground international jurisdiction on the international status of Southern Rhodesia. In 1962, this status was determined by the General Assembly, over the protests of the United Kingdom but in the light of international standards and criteria, to be that of a non-self-governing territory under Chapter XI of the Charter (General Assembly Resolution 1747 (XVI)), and hence a self-determination unit to which could be applied the body of law on decolonisation which had progressively been shaped. In this context, it is easy to understand why the UN opposed efforts by the European minority in 1965 to perpetuate colonialism in another form by unilaterally declaring the independence of a state based on minority rule and discrimination. It is contended that the United Nations went well beyond a verbal condemnation in determining, on the basis of a series of quasi-judicial pronouncements (Security Council Resolutions 216, 217 (1965)),29 that this unilateral declaration of independence made by a racist minority, as well as the situation arising from it, was not only unconstitutional but also illegal and invalid under international law as it ran counter to the rights of the majority. The United Nations then called for collective sanctions in the form of a dual response: (1) The refusal to validate the purported changes in the status of the territory, by the initiation of a policy of collective non-recognition (one of the most significant revivals of the pre-war Stimson Doctrine) (Security Council Resolutions 216, 217 (1965), 277 (1970)); and (2) the imposition, for the first time in UN history, of a panoply of economic, financial and diplomatic sanctions under Article 41 of the Charter on the basis of a determination that the illegality of the situations resulting from the unilateral declaration of independence constituted a threat to international peace and security under Chapter VII of the Charter (Security Council Resolutions 232 (1966), 253 (1968)). As a corollary, UN resolutions affirmed the legitimacy of the National Liberation Movements of Southern Rhodesia, entailing their right to representation in the international

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29 See also 277 (1970); 288 (1970); 328 (1973). 213

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arena, recognition of the legitimacy of their struggle by all means at their disposal and their right to assistance by third parties. Thus whilst seemingly prepared to concede to Rhodesia a certain degree of effectiveness, the United Nations nevertheless denied independence to that entity irrespective of the traditional indicia of statehood. It is evident that the United Nations was here distinguishing between ordinary recognition problems predicated on the existence of statehood, and where questions of legality do not arise, and this type of collective non-recognition of a situation based on a determination that an act contrary to international law has occurred. This becomes apparent from an analysis of the function, content and legal effects of this policy, duplicated in the call for non-recognition of South Africas continued presence in Namibia, and the proclaimed independence of the South African bantustans. For behind the apparent object of an independent State of Rhodesia, what states were called on not to recognise was in fact the illegal and invalid situation created by the UDI. Hence efforts to argue from the existence or nonexistence of the criteria of statehood in this situation obscured the true function of non-recognition the refusal to validate the act of UDI and its consequences, considered contrary to international law and thus null and void. Whilst, after the adoption of Resolution 181 (II), and the subsequent establishment of a State of Israel, the Palestine question was not immediately associated with the decolonisation process, the Palestinians initially being looked upon as refugees and treated within the context of an individual right of return, the General Assembly after 1969 shifted its perspective to acknowledge their status as a people belonging to a self-determination unit. At the same time the United Nations sought to illegitimatise all Israeli actions contrary to this right. Thus in a number of resolutions the Assembly affirmed the following: (1) the legitimate inalienable right of the Palestinian people to self-determination, including the right to establish their own independent state; (2) the legitimacy of its representatives the PLO granted observer status in the General Assembly and a right to participate on an equal footing with member states in Security Council debates on the Middle East, as well as in all conferences on the Middle East held under the auspices of the UN; and (3) the illegality under international law and UN resolutions of Israels occupation of Arab territories since 1967, including Jerusalem, considered contrary to the jus ad bellum (the principle of the inadmissibility of the acquisition of territory by force) as well as the jus in bello) (the 1949 Geneva Conventions), and the consequent invalidity of all legislative and administrative measures and actions taken by Israel purporting to alter their character and status, in particular, the so-called Basic Law on Jerusalem, the establishment of settlements, the destruction of homes and property and the policy of deportations. However, the right of all states in the region to exist within secure and internationally recognised boundaries was also affirmed. The Assemblys response to the decision of the Palestine National Council of 15 November 1988 in the form of General Assembly Resolution 43/177 acknowledging the proclamation of an independent State of Palestine must therefore be taken in the same vein as, but acting in an opposite direction to, the Assemblys response to the Southern Rhodesian unilateral declaration of independence. This proclamation is considered in the preamble to be in line with Resolution 181 (II) and in exercise of the inalienable right of the Palestinian people .... The resolution affirms the need to enable the Palestinian people to exercise their sovereignty over their territory occupied since 1967 and decides that, effective as of 15 December 1988, the designation Palestine should be used in place of the

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designation Palestinian Liberation Organisation in the United Nations system.30 Not surprisingly, controversy arose over the legal significance of this acknowledgment. The United States declared that by this resolution the General Assembly had expressly withheld the attribution of statehood from Palestine since it was specified that the change of designation of the PLO to Palestine was without prejudice to the observer status and functions of the PLO within the United Nations system.31 Japan, Australia and the United Kingdom, among others, expressed reservations on the fact that the draft resolution presupposed the establishment of the State of Palestine.32 However, it is clear that the function of this resolution was to recognise and affirm the intrinsic legality of a situation the declaration of independence considered to be in conformity with General Assembly Resolution 181 and other resolutions recognising the right to self-determination of the Palestinian people, including the right to a state of its own, and the consequent intrinsic illegality, despite its effectiveness, of the Israeli occupation which was preventing the state of Palestine from exercising authority over this territory. The Assembly was not concerned with cognition, in the sense of affirmation of the existence of the criteria of statehood, but with a process of legitimisation. In a sense, by implicitly acknowledging that the conditions for the establishment of a Palestinian State had now been met, several years after the adoption of Resolution 181, the Assembly may be said to have been asserting its competence, assumed on a number of occasions, and upheld by the Court as a discretionary right,33 to determine the forms and procedures by which the right to self-determination was to be realised. It may be seen, therefore, as the crowning of the decolonisation process in Palestine. The debate surrounding the adoption of this resolution supports this view. Arafat reiterated in the General Assembly that the independent state of Palestine had been declared by virtue, inter alia , of our belief in international legitimacy.34 Several member states spoke in similar vein. Egypt, amongst others, stated: We are thus called upon to adopt resolutions consistent with the norms of international legitimacy and the purposes and principles enshrined in the UN Charter.35 It was argued that some of the legal pretexts used to justify
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30 The resolution, one of three adopted on Palestine on 15 December 1988, was carried by 1042 (Israel and the United States) with 36 abstentions. The General Assembly took no vote at its 44th session in 1989 on a draft resolution, the operative paragraph of which would have decided that the designation Palestine shall be construed, within the United Nations, as the State of Palestine, without prejudice to the acquired rights of the Palestine Liberation Organisation in accordance with the relevant United Nations resolutions and practice (UN Doc A/44/L50). The decision to defer consideration of the draft resolution occurred as a result of an appeal by the President of the General Assembly following a United States threat to withhold its assessed contribution to the budget of the UN, which the President of the General Assembly insisted was an obligation under the Charter. See Kirgis, loc cit p 220 for the view that there are no legal grounds in this case justifying US withholding of its contributions. 31 A/43/PV 82, United States pp 4647. 32 See A/43/PV 82, Australia, p 81, Japan, p 82, United Kingdom, p 83, Canada, p 86, France, p 87. Kirgis states: The United Nations did not thereby recognise a Palestinian state, nor did it call the PLO a provisional government (loc cit p 220). 33 Western Sahara case [1975] ICJ Reps at p 36. 34 A/43/PV 78 pp 23, 27, 3233. 35 See A/43/PV 78, p 48. See also Saudi Arabia, p 72; Iraq, p 87; A/43/PV 80, Sudan, p 6. 215

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non-recognition of the State of Palestine are clearly no longer part of the spirit of our age.36 Even those states which had not yet recognised the State of Palestine stated that they nevertheless welcomed the proclamation as the exercise of the right to self-determination, including the establishment of a state of its own, by the Palestinian people through its legitimate representatives, differing only in the view that recognition of statehood could take place only within the context of a comprehensive Middle East settlement.37 There have been similar claims to establish a state on the basis of legitimacy. Indeed the declaration of independence of a Palestinian State reflects the wording of the Declaration on the Establishment of the State of Israel made also by virtue of our Natural and Historic Right and on the Strength of the Resolution (181).38 Another significant precedent was admission of Namibia to membership of, inter alia , the International Labour Organisation despite the clear absence of the traditional criteria of statehood, on the basis that the ILO was not prepared to allow the legitimate rights of the Namibian people to be frustrated by the illegal occupation of South Africa, in the absence of which Namibia would have qualified for independent statehood. The Resolution reads:39 Noting that Namibia is the only remaining case of a former Mandate of the League of Nations where the former mandatory Power is still in occupation, Considering that an application for membership in terms of Article I is prevented only by the illegal occupation of Namibia by South Africa, the illegal nature of this occupation having been confirmed by the International Court of Justice in its Advisory Opinion of 21 June 1971, Affirming that the International Labour Organisation is not prepared to allow the legitimate rights of the Namibian people to be frustrated by the illegal actions of South Africa, Making it clear that in now granting the application for membership it does not overlook the wording of Article I and believes that in the near future the illegal occupation of Namibia by South Africa will be terminated, Decides to admit Namibia to membership in the Organisation, it being agreed that, until the present illegal occupation of Namibia is terminated, the United Nations Council for Namibia, established by the United Nations as the legal administering authority for Namibia empowered, inter alia , to represent it in international organisations, will be regarded as the government of Namibia for the purpose of the application of the Constitution of the Organisation. As has been pointed out,40 the ILO was, by the adoption of this resolution, exercising its function of legitimisation. Whilst General Assembly Resolution
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36 A/43/PV 78, Iraq, p 87. 37 A/43/PV 79, Sweden, p 74; A/43/PV 80, Chile pp 1820, Austria pp 2122, New Zealand, p 132, Canada, pp 17276. A/43/PV 82, Australia, p 81, Japan, p 82, France, pp 8788. 38 Quoted in Dugard, Recognition and the United Nations, 1987, Cambridge: Grotius Publications at pp 6061. 39 ILO, 64th Session (Geneva, June 1978) Provisional Record, No 24 pp 1920. 40 Osieke, Admission to Membership in International Organisations: the Case of Namibia, (1980) 51 BYIL pp 189229 at pp 21415. Referring to this resolution Osieke concludes: Here then lies the justification, the raison dtre, for the admission of Namibia as a member of the ILO. By regarding the rights of the Namibian people as subsisting irrespective of the illegal 216

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43/177 was not related to admission of the State of Palestine, it nevertheless appeared to be implying much the same thing. V LEGAL CONSEQUENCES OF LEGITIMISATION Security Council Resolution 277 (1970) calling for collective non-recognition of an independent State of Rhodesia was clearly a mandatory resolution adopted by the Council on the basis of powers conferred under Chapter VII. General Assembly Resolution 43/177 on Palestine, on the other hand, can place no corresponding obligation on member states to acknowledge the proclamation or a fortiori to recognise the State of Palestine, in the absence of admissions procedures,41 though naturally it has determinative effect on the status of the entity for internal purposes (the change of appellation in particular). However, the characterisation by the Organisation of the situation could not remain without legal effect. In the case of Southern Rhodesia, there existed, beyond the conventional obligation, a general international law duty on the part of states not to recognise a situation determined to be contrary to a fundamental norm that of self-determination and hence invalid. It could therefore be argued along the same lines that acknowledgment by the Assembly of the proclamation of an independent State of Palestine, a proclamation determined in this case to be in conformity with that right, could not similarly remain without legal effects. This means, at the very minimum, that recognition by states of this entity cannot be held to be illegal in the sense of premature recognition. This is not to say that in recognition of statehood, the traditional criteria have been totally replaced, but that where this concerns certain postulated legal rules considered essential for the international community, different considerations operate depending on whether a situation of legality or illegality is involved and whether the object is the upholding of the maxim ex injuria non oritur over its rival principle ex factis jus oritur or the law-creating influence of facts.42 As a legal mechanism, this process of legitimisation, which attempts to override considerations of effectiveness, may be criticised for creating an unbridgable gap between the facts and the law. However, just as the lack of legal title may serve to weaken a situation of fact, assumption of legal title may serve to strengthen it. It is undeniable that the ostracism and diplomatic isolation of the European minority regime in Rhodesia and denial to it of international personality had a
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40 [cont] occupation of their territory by South Africa, and by refusing to recognise the illegal acts committed by South Africa or to allow that country to benefit from such acts, the Conference appears to have resorted to the principle ex injuria jus non oritur according to which an illegality cannot as a rule, become a source of legal right to the wrongdoer (ibid, p 217). 41 Even where admission to the United Nations is involved, there has been controversy as to the effects of such admission on recognition of the entity as a state. The majority of authors agree that in the case of ordinary recognition problems, ie where a question of legality does not arise, it is not a function of the United Nations to grant or withhold recognition, since admission to the United Nations is only predicated on the existence of statehood for purposes of the Charter, and other considerations, such as ability to fulfil the obligations of membership, may be relevant. Dugard has, however, convincingly argued that admission to the United Nations constitutes or confirms the existence of a state. (It is generally agreed, however, that membership of an international organisation does not impose an obligation of recognition on member states of that organisation.) 42 Lauterpacht, Recognition in International Law, 1947, London: Cambridge University Press, at pp 42627. Dugard points out that criteria such as effective government and independence are no longer insisted on in matters of admission to the United Nations where they run counter to developments in international law regarding the right of self-determination (op cit, p 72). 217

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constitutive effect to the extent that it undermined its effectiveness: it is enough to think of the corollary of UN policy, had Rhodesia been accepted into the United Nations under a white minority regime in 1965. The application of a similar process of legitimisation to Namibia, where the maintenance of the fiction of a United Nations territory contributed to undermining the effectiveness of South Africas hold over the territory, has had a similarly successful outcome. Whilst, therefore, in the case of Palestine the UN may be accused of perpetuating a legal fiction, it may be argued that acknowledgement of the legitimacy of the proclamation of an independent Palestinian state, coupled with individual state recognition, may likewise serve to create the very effectiveness that is said to be lacking and contribute towards consolidation of its status. Cassese states that traditionally international law has provided that only those claims and situations which are effective can produce legal effects, in other words, international legitimacy. 43 Today, however, there is evidence that only those claims and situations which are legitimate can produce legal effects and hence be effective. United Nations collective responses in terms of denial of legal effects to acts or situations in breach of certain norms deemed fundamental, by a determination that such acts are both illegal and invalid, and by the application, in consequence, of a policy of collective non-recognition, have had an extensive and consistent basis.44 The contrary process of legitimisation of the proclamation of an independent Palestinian State is in line with and strengthens this practice. This practice has been considered as important evidence in the process of identifying and shaping fundamental norms, recognised as essentially dynamic concepts, the content of which evolves in accordance with the changing requirements of the international community. This tendency to entrust to political organs the task of validating or invalidating claims and situations by means of legal judgments has been contested, but it may be said that it is in keeping with the contemporary tendency to reject, at the international level, municipal law concepts of separation of powers, as the Nicaragua case underlined.45 It is in keeping with the concept formulated by the International Law Commission, in relation to the defence of fundamental norms, of the need for collective action within an institutionalised framework. Finally, it is in keeping with a noticeable tendency of the contemporary international community to promote a more dynamic and hence interventionist international law, concerned no longer merely with jurisdictional issues but with the evolution, if not transformation, of the international system.

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43 Cassese, International Law in a Divided World, 1986, Oxford: Clarendon Press at pp 2627. 44 In addition to the cases of Southern Rhodesia, the occupation of Arab territories by Israel, Namibia, and the independence of the South African bantustans already referred to above, one can cite the cases of the declaration of a Turkish Cypriot Republic (SC Res 541 (1983) and 550 (1984)); and the condemnation by the General Assembly in GA Res 35/169B of all partial agreements and separate treaties violating the recognised rights of the Palestinian people (alluding to the Treaty of Peace between Israel and Egypt of 1980). (See also the reaction to the Iraqi invasion of Kuwait in August 1990.) 45 See [1984] ICJ Rep, para 92 where the Court refers to Nicaraguas statement regarding the US arguments as to the delineation of powers between the Security Council and the Court. 218

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6.7

The legal effects of recognition in municipal law: UK practice

Since recognition is basically a political act, it is a decision for the executive branch of government and in the UK it is the Foreign Office which will answer questions about the status of entities which purport to have international personality. Such answers are usually given by means of an executive certificate. As has already been noted, in 1980 the British government announced that it was no longer intending to accord formal recognition to governments, although it would continue to recognise states. Of course the substantive question of whether or not an entity is a government and thus entitled to the consequent immunities and privileges still remains but the courts will no longer have the benefit of an executive certificate to assist them. In The Republic of Somalia v Woodhouse Drake and Carey SA (1993)46 Hobhouse J had to decide whether the interim government of Somalia, which was in a state of civil war at the time, was entitled to bring proceedings as the legitimate government of that state. In the course of his judgment Hobhouse J identified four questions which the courts would consider when deciding whether a regime existed as the government of a state: (1) had the regime come to power by constitutional means? (2) what was the degree, nature and stability of administrative control exercised by the regime over the territory of the state? (3) did the British government maintain any form of relationship with the regime? (4) what was the extent of international recognition of the regime? The status of international organisations raises a particular problem. Parliament passed the International Organisations Act 1968 which allows domestic legal personality to be conferred on international organisations by means of an Order in Council. As has already been seen, international organisations are established by agreement between states. The House of Lords confirmed in Maclaine Watson v Department of Trade and Industry (1990)47 that the courts have no power to adjudicate on or enforce rights arising out of transactions entered into by sovereign states between themselves and that treaties do not automatically become part of English law. There are a number of consequences of recognition and non-recognition and these will be illustrated here by reference to a number of important decisions made by the English courts.

6.7.1 Locus standi


Perhaps one of the most important consequences of recognition is that it gives the recognised entity locus standi in the courts. In the City of Berne v The Bank of England (1804)48 the court refused to allow the revolutionary government of
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46 [1993] QB 54. 47 [1989] 3 All ER 523. 48 (1804) 9 Ves Jun 347. 219

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Berne to bring an action against the Bank of England because the government was not recognised by the UK. A number of cases have arisen where recognition has been accorded to both a de facto and a de jure government. Since the British government declared that it would no longer accord formal recognition to governments the problem may not arise in the same way in the future but nonetheless the cases are of historic interest and do shed some light on the way the courts deal with the whole problem of the status of foreign governments. In Haile Selassie v Cable and Wireless Ltd (No 2) (1939) 49 the Emperor of Abyssinia (Ethiopia) was suing a British company for money owed under contract. At the time the action was brought, the British government recognised Haile Selassie as the de jure sovereign but recognised the Italian authorities as the de facto government. At first instance it was held that since the case concerned a debt recoverable in England and not the validity of acts done in Ethiopia, it was the de jure sovereign that was entitled to sue. The defendants appealed. Before the appeal was heard the UK government extended de jure recognition to the Italian authorities. A basic principle of recognition is that it operates retroactively to the date when the authority of the government was first accepted as being established. The Court of Appeal therefore found that the de jure recognition of the Italian government of Ethiopia was deemed to operate from the date of de facto recognition. Since that occurred prior to the commencement of the action for the debt, Haile Selassie was deprived of any locus standi in the case. In Gur Corporation v Trust Bank of Africa (1986)50 the Court of Appeal had to consider the status of the Republic of Ciskei, one of the homelands established by the government of South Africa. At first instance, Steyn J considered whether Ciskei had locus standi and asked the Foreign Office for its attitude to Ciskei. The Foreign Office replied that Ciskei was not recognised as an independent state and Steyn J therefore found that it had no locus to be joined as a party to the dispute. The issue was taken to the Court of Appeal who investigated the establishment of Ciskei. The court found that the British government continued to regard South Africa as internationally responsible for the territory of Ciskei. Furthermore it found that the government of the Republic of Ciskei had been established under the South African Status of Ciskei Act 1981. It therefore held that the government of the Republic of Ciskei was a subordinate body set up by the Republic of South Africa to act on its behalf and it therefore had locus standi in the present case. The question of recognition was raised more recently in Arab Monetary Fund v Hashim (1990).51 The case was brought by the Arab Monetary Fund which was an international organisation created by treaty. The UK was not a party to the treaty and no Order in Council had been made with respect to the AMF under the provisions of the International Organisations Act 1968. In those circumstances the Court of Appeal found that the AMF could not bring the action. The decision was overturned by the House of Lords on the basis not that
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49 [1939] Ch 182. 50 [1986] 3 WLR 583. 51 [1991] 2 WLR 729. 220

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it was an international organisation and therefore entitled to sue irrespective of recognition but that it had been incorporated in Abu Dhabi law and therefore could be regarded as an Abu Dhabi corporation. The decision was more based on pragmatism than strict legal principles and followed a line of reasoning which had been used in the earlier case of Carl Zeiss Stiftung v Rayner and Keeler Ltd (No 2) (1967).

6.7.2 Effectiveness of legislative and executive acts


A further consequence of recognition is that the courts will give effect to the legislative and executive acts of foreign governments. The classic example of this rule is the case of Luther v Sagor (1921).52 The plaintiffs in the case had owned a timber factory which had been nationalised by the government of the Soviet Union in 1919. The defendants had bought a quantity of timber produced at the factory from the Soviet government in 1920. The plaintiffs claimed the timber on the basis that the nationalisation of the factory by the Soviet government should be ignored. When the case was heard at first instance, the Soviet government was not recognised by the UK, and the court therefore found in favour of the plaintiffs. By the time the case was heard by the Court of Appeal, the Soviet government had been accorded de facto recognition. The Court found that recognition would operate from the date when the Soviet government had taken effective control which was accepted as being December 1917. The nationalisation decree was therefore the act of a sovereign government and would have to be given effect to in the UK courts. On that basis the appeal was allowed. In the Arantzazu Mendi (1939)53 the House of Lords had to consider the rival claims of de facto and de jure government. The Arantzazu Mendi was a private ship registered in Bilbao, Spain. In the summer of 1937 following the capture of the region by Nationalist forces, the Republic government issued a decree requisitioning all ships registered in Bilbao. In early 1938 the Nationalist authorities issued a similar decree. While the Arantzazu Mendi was in London the Republican government issued a writ to obtain possession of the ship in accordance with its requisition decree. This was opposed by the owners of the ship who accepted the Nationalists requisition. The Nationalists argued that since they had been recognised as the de facto government over the areas they actually controlled and since they controlled the region around Bilbao, the courts must give effect to their requisition decree and dismiss the Republican action. The House of Lords accepted this view, basing their finding on the fact that the Nationalist government was in effective control of the area and therefore was entitled to be regarded as the government of a sovereign state. In the early 1950s two cases raised again the distinctions between the de facto and de jure recognition and the question of retroactivity. Gdynia Ameryka Linie v Boguslawski (1953)54 concerned recognition of the Polish government in 1945. During the Second World War the Polish government in exile was recognised as
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52 [1921] 1 KB 456. 53 [1939] AC 256. 54 [1953] AC 70. 221

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the de jure government of Poland. On 28 June 1945 the communist provisional government took effective control of the country and was recognised as the de jure government on 5 July. The case concerned the effect of executive action taken by the Polish government in exile on 3 July. The House of Lords emphasised the general principle of retroactivity which would normally mean that all acts of the communist government would be given effect to as from 28 June. However the acts of the government in exile with respect to issues under their control remained effective up until the withdrawal of recognition on 5 July. Therefore the action taken by the government in exile on 3 July would be effective. A similar result obtained in Civil Air Transport Inc v Central Air Transport Corporation (1953).55

6.7.3 Sovereign immunity


One of the underlying principles of international law has been the doctrine of sovereign equality and the consequence that one sovereign cannot exercise authority over another. The practical application of the doctrine means that the many activities carried out by a foreign state cannot be the subject of municipal court proceedings. For example, in Kuwait Airways Corporation v Iraqi Airways Company (1995) an English court dismissed a claim by Kuwait Airways arising out of the confiscation of civilian aircraft as a result of an Iraqi government directive on the grounds that the directive was an exercise of sovereign authority and was therefore entitled to immunity. The law relating to sovereign immunity is discussed in detail in Chapter 8.

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55 [1953] AC 70. 222

CHAPTER 7 TERRITORIAL RIGHTS


7.1 Introduction

Territory is a tangible attribute of statehood and within that particular geographical area which it occupies a state enjoys and exercises sovereignty. Territorial sovereignty may be defined as the right to exercise therein, to the exclusion of any other state, the functions of a state. A states territorial sovereignty extends over the designated land mass, sub-soil, the water enclosed therein, the land under that water, the territorial sea (the nature and extent of the territorial sea will be discussed in Chapter 10) and the airspace over the land mass and territorial sea (airspace will be considered in Chapter 11). It has already been seen in Chapter 5 that territory is undoubtedly a basic requirement of statehood. The fundamental nature of territory and sovereignty over territory can be appreciated when an attempt is made to identify the causes of wars and international disputes throughout history 99 per cent of them could be classified ultimately as territorial disputes. As Philip Allott has written:
Endless international and internal conflicts, costing the lives of countless human beings, have centred on the desire of this or that state-society to control this or that area of the earths surface to the exclusion of this or that state-society.1

Rights and duties with respect to territory have therefore had a central place in the development of international law, and the principle of respect for the territorial integrity of states has been one of the most fundamental principles of international law. It should be pointed out, however, there is a growing body of international law which operates outside concepts of exclusive territorial rights. As the need for interdependence has grown and as technology has presented increasing problems as well as benefits so international law has responded by developing concepts such as the common heritage of mankind and rules regional and global protection of human rights and environmental rights. These matters will be dealt with in more detail in Chapters 15 and 17. It is also important to note that title to territory in international law is more often than not relative rather than absolute. Thus, resolving a territorial dispute is a question of deciding who has the better claim rather than accepting one claim and dismissing another.

7.2

Basic concepts

7.2.1 Terra nullius2


Terra nullius (sometimes res nullius) consists of territory which is capable of being acquired by a single state but which is not yet under territorial sovereignty. In the age of European imperialism there was a tendency for the
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1 2

Allott, Eunomia, New Order for a New World, 1990, Oxford: Oxford University Press at p 330. Terra nullius may be contrasted with res communis ie territory not capable of being claimed by any single State, for example, the high seas and outer space. 223

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Western writers to consider as terra nullius those territories inhabited by nonEuropeans which were not organised on the lines of European states. Such a view was firmly rejected by the ICJ in the Western Sahara Case.

Western Sahara case3


Western Sahara was colonised by Spain in 1884 and was known as Spanish Sahara. In 1960 it was added to the UN General Assembly list of non-selfgoverning territories and from 1963 onwards it was considered by the UN Special Committee on Decolonisation. In 1966 the General Assembly asked Spain, in consultation with Mauritania and Morocco to determine at the earliest possible date ... the procedures for the holding of a referendum under United Nations auspices with a view to enabling the indigenous population of the territory to exercise freely its right to self-determination.4 Spain accepted the principle of self-determination but it was not until 21 August 1974 that it announced that it would hold a referendum under UN auspices in the first half of 1975. At this point both Morocco and Mauritania claimed the territory of Western Sahara on the basis of historic title predating the Spanish colonisation of the area. On 13 December 1974 the General Assembly reaffirmed the right of Spanish Sahara to self-determination and decided to ask the ICJ for an advisory opinion on the following questions:
I Was Western Sahara (Rio de Oro and Sakiet El Hamra) at the time of colonisation by Spain a territory belonging to no-one (terra nullius)? If the answer to the first question is in the negative, II What were the legal ties between this territory and the Kingdom of Morocco and the Mauritian entity?5 Opinion of the Court 79 Turning to Question I, the Court observes that the request specifically locates the question in the context of the time of colonisation by Spain, and it therefore seems clear that the words Was Western Sahara ... a territory belonging to no one (terra nullius)? have to be interpreted by reference to the law in force at that period. The expression terra nullius was a legal term of art employed in connection with occupation as one of the accepted legal methods of acquiring sovereignty over territory. Occupation being legally an original means of peaceably acquiring sovereignty over territory otherwise than by cession or succession, it was a cardinal condition of valid occupation that the territory should be terra nullius a territory belonging to no-one at the time of the act alleged to constitute the occupation (cf Legal Status of Eastern Greenland, PCIJ, Series A/B, No 53, pp 44f and 63f). In the view of the Court, therefore, a determination that Western Sahara was a terra nullius at the time of colonisation by Spain would be possible only if it were established that at that time the territory belonged to no-one in the sense that it was then open to acquisition through the legal process of occupation. 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 organisation were not regarded as terra
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3 4 5

Advisory Opinion [1975] ICJ Rep at p 12. GA Res 2229, GAOR, 21st Session, Supp 16, p 72 (1966). Mauritania was not a state in 1884. 224

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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 rules. 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 a terra nullius in the proper sense of these terms. On the contrary, such agreements were regarded as derivative roots of title, and not original titles obtained by occupation of terra nullius. In the present instance, the information furnished to the Court shows that at the time of colonisation Western Sahara was inhabited by peoples which, if nomadic, were socially and politically organised in tribes and under chiefs competent to represent them. It also shows that, in colonising Western Sahara, Spain did not proceed on the basis that it was establishing its sovereignty over terra nullius. In its Royal Order of 26 December 1884, far from treating the case as one of occupation of terra nullius, Spain proclaimed that the King was taking Rio de Oro under his protection on the basis of agreements which had been entered into with the chiefs of local tribes ... ... Moroccos claim to legal ties with Western Sahara at the time of colonisation by Spain has been put to the Court as a claim to ties of sovereignty on the ground of an alleged immemorial possession of the territory ... In support of this claim Morocco refers to a series of events stretching back to the Arab conquest of North Africa in the seventh century AD, the evidence of which is, understandably, for the most part taken from historical works ... Stressing that during a long period Morocco was the only independent state which existed in the north-west of Africa, it points to the geographical contiguity of Western Sahara to Morocco and the desert character of the territory. In the light of these considerations, it maintains that the historical material suffices to establish Moroccos claim to a title based upon continued display of authority on the same principles as those applied by the Permanent Court in upholding Denmarks claim to possession of the whole of Greenland. This method of formulating Moroccos claims to ties of sovereignty with Western Sahara encounters certain difficulties. As the Permanent Court stated in the case concerning the Legal Status of Eastern Greenland, a claim to sovereignty based upon continued display of authority involves two elements each of which must be shown to exist: the intention and will to act as sovereign, and some actual exercise or display of such authority ( ibid, p 45f). True, the Permanent Court recognised that in the case of claims to sovereignty over areas thinly populated or unsettled countries, very little in the way of actual exercise of sovereign rights (ibid, p 46) might be sufficient in the absence of a competing claim. But, in the present instance, Western Sahara, if somewhat sparsely populated, was a territory across which socially and politically organised tribes were in constant movement and where armed incidents between these tribes were frequent. In the particular circumstances outlined in para 87 and 88 above, the paucity of evidence of actual display of authority unambiguously relating to Western Sahara renders it difficult to consider the Moroccan claim as on all fours with that of Denmark in the Eastern Greenland case. Nor is the difficulty cured by introducing the argument of geographical unity or contiguity. In fact, the information before
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the Court shows that the geographical unity of Western Sahara with Morocco is somewhat debatable, which also militates against giving effect to the concept of contiguity. Even if the geographical contiguity of Western Sahara with Morocco could be taken into account in the present connection, it would only make the paucity of evidence of unambiguous display of authority with respect to Western Sahara more difficult to reconcile with Moroccos claim to immemorial possession. 93 In the view of the Court, however, what must be of decisive importance in determining its answer to Question II is not indirect inferences drawn from events in past history but evidence directly relating to effective display of authority in Western Sahara at the time of its colonisation by Spain and in the period immediately preceding that time (cf Minquiers and Ecrehos, Judgment [1953] ICJ Rep at p 57) ... 162 The materials and information presented to the Court show the existence at the time of Spanish colonisation, of legal ties of allegiance between the Sultan of Morocco and some of the tribes living in the territory of Western Sahara. They equally show the existence of rights, including some rights relating to the land which constituted legal ties between the Mauritanian entity, as understood by the Court, and the territory of Western Sahara. On the other hand, the Courts conclusion is that the materials and information presented to it do not establish any tie of territorial sovereignty between the territory of Western Sahara and the Kingdom of Morocco or the Mauritanian entity. Thus the Court has found no legal ties of such a nature as might affect the application of Resolution 1514 (XV) in the decolonisation of Western Sahara and, in particular, of the principle of self-determination through the free and genuine expression of the will of the peoples of the Territory (cf paras 5459 above6)

7.2.2 Intertemporal law


In many disputes the rights of the parties may derive from legally significant acts concluded a long time ago at a time when particular rules of international law may well have been different to what they are today. It has long been accepted as a principle of international law that in such cases the situation must be appraised or the treaty interpreted in the light of the rules of international law as they existed at the time. This principle was re-affirmed by Judge Huber in the Island of Palmas case7 when he stated that:
Both parties are also agreed that a juridical fact must be appreciated in the light of the law contemporary with it, and not of the law in force at the time when a dispute in regard to it arises or falls to be settled. The effect of discovery by Spain is therefore to be determined by the rules of international law in force in the first half of the sixteenth century.

Some confusion was caused by the fact that Judge Huber went on to note that while the creation of particular rights was dependent upon the international law of the time, the continued existence of such rights depended upon their according with the evolution of the law. One possible implication of this would be that states would constantly have to re-establish title to territory on a basis
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6 7

See Chapter 5 on Subjects of International Law. (1928) 2 RIAA 829. 226

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approved by international law at the time. The potential problem would seem to be resolved by acknowledging the fact that title to territory in international law involves assessing the relative strength of competing claims. Creation of title is to be assessed according to contemporary law and creation coupled with effective occupation is likely to defeat most other rival claims apart, perhaps, from claims based on self-determination.

7.2.3 Critical date


The date on which a dispute over territory crystallises is known as the critical date. In many disputes a certain date will assume particular significance in deciding between rival claims. The choice of the critical date or dates will lie with the tribunal deciding the dispute and will usually depend on the particular facts. Once a date is chosen subsequent events relating to territorial claims will be ignored. Thus in the Island of Palmas case8 the United States claimed the island as successor to Spain under a treaty of cession dated 10 December 1898. That date was chosen as the critical date and the case was decided on the basis of the nature of Spanish rights at that time. In the Minquiers and Ecrehos case9 France and the United Kingdom submitted two different critical dates but the ICJ did not specifically choose between the two. Since that case tribunals have made little reference to the choice of critical date.

7.3

Title to territory

Traditionally, writers have referred to five means by which territory and title to territory may be acquired: 1 occupation of terra nullius; 2 prescription; 3 conquest; 4 accretion; 5 cession. These five modes will be discussed here, but it is important in this matter to note the words of Ian Brownlie:
A tribunal will concern itself with proof of the exercise of sovereignty at the critical date or dates, and in doing so will not apply the orthodox analysis to describe its process of decision. The issue of territorial sovereignty, or title, is often complex, and involves the application of various principles of the law to the material facts. The result of this process cannot always be ascribed to any single dominant rule of mode of acquisition. The orthodox analysis does not prepare the student for the interaction of principles of acquiescence and recognition with the other rules.10

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8 (1928) 2 RIAA 829. 9 France v United Kingdom, [1953] ICJ Rep at p 47. 10 Brownlie, Principles of Public International Law, 1990, Oxford: Oxford University Press at p 132. 227

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7.3.1 Occupation of terra nullius


Occupation is preceded by discovery. Discovery alone is insufficient to establish title; it can only serve to establish a claim which in a reasonable period of time must be completed by effective occupation. Published discovery can obviously establish a better claim in time, but is ineffective against proof of continuous and peaceful display of authority by another state. The exact nature of effective occupation and title to territory was considered in the Island of Palmas case. Under the Treaty of Paris 1898, which brought to an end the Spanish-American War of 1898, Spain ceded the Philippines to the United States. The United States based its claim, as successor to Spain, principally on discovery. There was evidence that Spain had discovered the island in the 17th century, but there was no evidence of any actual exercise of sovereignty over the island by Spain.

Island of Palmas case (1928)11


Under the terms of the Treaty of Paris 1898, which ended the Spanish-American War of 1898, Spain ceded the Philippines to the United States. In 1906, a United States official visited Palmas, believing it to be part of the territory of the Philippines, and found the Dutch exercising sovereignty. There followed a protracted dispute between the US and the Netherlands which was finally submitted to arbitration in 1928.
Award of the arbitrator Sovereignty in the relations between states signifies independence. Independence in regard to a portion of the globe is the right to exercise therein, to the exclusion of any other state, the functions of a state. The development of the national organisation of states during the last few centuries and, as a corollary, the development of international law, have established this principle of the exclusive competence of the state in regard to its own territory in such a way as to make it the point of departure in settling most questions that concern international relations. The special cases of the composite state, of collective sovereignty etc, do not fall to be considered here and do not, for that matter, throw any doubt upon the principle which has just been enunciated. Under this reservation it may be stated that territorial sovereignty belongs always to one, or in exceptional circumstances to several states, to the exclusion of all others. The fact that the functions of a state can be performed by any state within a given zone is, on the other hand, precisely the characteristic feature of the legal situation pertaining in those parts of the globe which, like the high seas or lands without a master, cannot or do not yet form the territory of a state. Territorial sovereignty is, in general, a situation recognised and delimited in space, either by so-called natural frontiers as recognised by international law or by outward signs of delimitation that are undisputed, or else by legal engagements entered into between interested neighbours, such as frontier conventions, or by acts of recognition of states within fixed boundaries. If a dispute arises as to the sovereignty over a portion of territory, it is customary to examine which of the states claiming sovereignty possesses a title cession, conquest, occupation etc superior to that which the other state might possibly
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11 Netherlands v United States (1928) 2 RIAA 829, Permanent Court of Arbitration sole arbitrator: Huber. 228

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bring forward against it. However, if the contestation is based on the fact that the other Party has actually displayed sovereignty, it cannot be sufficient to establish the title by which territorial sovereignty was validly acquired at a certain moment; it must also be shown that the territorial sovereignty has continued to exist and did exist at the moment which for the decision of the dispute must be considered as critical. This demonstration consists in the actual display of state activities, such as belongs only to the territorial sovereign. Titles of acquisition of territorial sovereignty in present-day international law are either based on an act of effective apprehension, such as occupation or conquest, or, like cession, presuppose that the ceding and the cessionary Powers, or at least one of them, have the faculty of effectively disposing of the ceded territory. In the same way natural accretion can only be conceived of as an accretion to a portion of territory where there exists an actual sovereignty capable of extending to a spot which falls within its sphere of activity. It seems therefore natural that an element which is essential for the constitution of sovereignty should not be lacking in its continuation. So true is this, that practice, as well as doctrine, recognises though under different legal formulae and with certain differences as to the conditions required that the continuous and peaceful display of territorial sovereignty (peaceful in relation to other states) is as good as title. The growing insistence with which international law, ever since the middle of the 18th century, has demanded that the occupation shall be effective would be inconceivable, if effectiveness were required only for the act of acquisition and not equally for the maintenance of the right. If the effectiveness has above all been insisted on in regard to occupation, this is because the question rarely arises in connection with territories in which there is already an established order of things. Just as before the rise of international law, boundaries of lands were necessarily determined by the fact that the power of a state was exercised within them, so too, under the reign of international law, the fact of peaceful and continuous display is still one of the most important considerations in establishing boundaries between states. Territorial sovereignty, as has already been said, involves the exclusive right to display the activities of a state. This right has as corollary a duty: the obligation to protect within the territory the rights of other states, in particular their right to integrity and inviolability in peace and in war, together with the rights which each state may claim for its nationals in foreign territory. Without manifesting its territorial sovereignty in a manner corresponding to circumstances, the state cannot fulfil this duty. Territorial sovereignty cannot limit itself to its negative side, ie to excluding the activities of other states; for it serves to divide between nations the space upon which human activities are employed, in order to assure them at all points of the minimum of protection of which international law is the guardian. Although municipal law, thanks to its complete judicial system, is able to recognise abstract rights of property as existing apart from any material display of them, it has none the less limited their effect by the principles of prescription and the protection of possession. International law, the structure of which is not based on any super-state organisation, cannot be presumed to reduce a right such as territorial sovereignty, with which almost all international relations are bound up, to the category of an abstract right, without concrete manifestations ... The principle that continuous and peaceful display of the functions of state within a given region is a constituent element of territorial sovereignty is not only based on the conditions of the formation of independent states and their boundaries (as shown by the experience of political history) as well as on an
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international jurisprudence and doctrine widely accepted; this principle has further been recognised in more than one federal state, where a jurisdiction is established in order to apply, as need arises, rules of international law to the interstate relations of the state members. This is more significant, in that it might well be conceived that in a federal state possessing a complete judicial system for interstate matters far more than in the domain of international relations properly so-called there should be applied to territorial questions the principle that, failing any specific provision of law to the contrary, a jus in re once lawfully acquired shall prevail over de facto possession however well established ... Manifestations of territorial sovereignty assume, it is true, different forms, according to conditions of time and place. Although continuous in principle, sovereignty cannot be exercised in fact at every moment on every point of a territory. The intermittence and discontinuity compatible with the maintenance of the right necessarily differ accordingly as inhabited or uninhabited regions are involved, or regions enclosed within territories in which sovereignty is incontestably displayed or again regions accessible from, for instance, the high seas. It is true that neighbouring states may by convention fix limits to their own sovereignty, even in regions such as the interior of scarcely explored continents where such sovereignty is scarcely manifested, and in this way each may prevent the other from any penetration of its territory. The delimitation of Hinterland may also be mentioned in this connection. If, however, no conventional line of sufficient topographical precision exists or if there are gaps in the frontiers otherwise established, or if a conventional line leaves room for doubt, or if, as, eg, in the case of an island situated in the high seas, the question arises whether a title is valid erga omnes , the actual and continuous and peaceful display of state sovereignty is in case of dispute the sound and natural criterion of territorial sovereignty ... The title alleged by the United States of America as constituting the immediate foundation of its claim is that of cession, brought about by the Treaty of Paris, which cession transferred all rights of sovereignty which Spain may have possessed ... concerning the island of Palmas (or Miangos). It is evident that Spain could not transfer more rights than she herself possessed ... the United States bases its claim, as successor of Spain, in the first place on discovery ... It is admitted by both sides that international law underwent profound modifications between the end of the Middle Ages and the end of the 19th century, as regards the rights of discovery and acquisition of uninhabited region or regions inhabited by savages or semi-civilised peoples. Both Parties are also agreed that a juridical fact must be appreciated in the light of the law contemporary with it, and not of the law in force at the time when a dispute in regard to it arises or falls to be settled. The effect of discovery by Spain is therefore to be determined by the rules of international law in force in the first half of the 16th century ... If the view most favourable to the American argument is adopted with every reservation as to the soundness of such view that is to say, if we consider as positive law at the period in question the rule that discovery as such, ie the mere fact of seeing land, without any act, even symbolical, of taking possession, involved ipso jure territorial sovereignty and not merely an inchoate title, a jus ad rem, to be completed eventually by an actual and durable taking of possession within a reasonable time, the question arises whether sovereignty yet existed at

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the critical date, ie the moment of conclusion and coming into force of the Treaty of Paris. As regards the question which of different legal systems prevailing at successive periods is to be applied in a particular case (the so-called intertemporal law), a distinction must be made between the creation of rights and the existence of rights. The same principle which subjects the act creative of a right to the law in force at the time the right arises, demands that the existence of right, in other words its continued manifestation, shall follow the conditions required by the evolution of law. International law in the 19th century, having regard to the fact that most parts of the globe were under the sovereignty of states members of the community of nations, and that territories without a master had become relatively few, took account of a tendency already existing and especially developed since the middle of the 18th century, and laid 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. It seems therefore incompatible with this rule of positive law that there should be regions which are neither under the effective sovereignty of a state, nor without a master, but which are reserved for the exclusive influence of one state, in virtue solely of a title of acquisition which is no longer recognised by existing law, even if such a titles ever conferred sovereignty. For these reasons, discovery alone, without any subsequent act, cannot, at the present time, suffice to prove sovereignty over the island of Palmas (or Miangos); and in so far as there is no sovereignty, the question of an abandonment properly speaking of sovereignty by one state in order that the sovereignty of another may take its place does not arise. If on the other hand the view is adopted that discovery does not create a definitive title of sovereignty, but only an inchoate title, such a title exists, it is true, without external manifestation. However, according to the view that has prevailed, at any rate since the 19th century, an inchoate title of discovery must be completed within a reasonable period by the effective occupation of the region claimed to be discovered. This principle must be applied in the present case, for the reasons given above in regard to the rules determining which of successive legal systems is to be applied (the so-called intertemporal law). Now, no act of occupation nor, except as to a recent period, any exercise of sovereignty at Palmas by Spain has been alleged. But even admitting that the Spanish title still existed as inchoate in 1898 and must be considered as included in the cession under Article III of the Treaty of Paris, an inchoate title could not prevail over the continuous and peaceful display of authority by another state, for such display may prevail even over a prior, definitive title put forward by another state ... In the last place there remains to be considered title arising out of contiguity. Although states have in certain circumstances maintained that islands relatively close to their shores belonged to them in virtue of their geographical situation, 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 forms the terra firma (nearest continent or island of considerable size). Not only would it seem that there are no precedents sufficiently frequent and sufficiently precise in their bearing to establish such a rule of international law, but the alleged principle itself 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. The principle of contiguity, in regard to islands, may not be out of place when it is a question of allotting them to one state rather than another, either by agreement between the Parties, or by a decision not necessarily based on law; but as a rule

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establishing ipso jure the presumption of sovereignty in favour of a particular state, this principle would be in conflict with what has been said as to territorial sovereignty and as to the necessary relation between the right to exclude other states from a region and the duty to display therein the activities of a state. Nor is this principle of contiguity admissible 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. This would be especially true in a case such as that of the island in question, which is not relatively close to one single continent, but forms part of a large archipelago in which strict delimitations between the different parts are not naturally obvious. There lies, however, at the root of the idea of contiguity one point which must be considered also in regard to the island of Palmas (or Miangas). It has been explained above that in the exercise of territorial sovereignty there are necessarily gaps, intermittence in time and discontinuity in space. This phenomenon will be particularly noticeable in the case of colonial territories, partly uninhabited or as yet partly unsubdued. The fact that a state cannot prove display of sovereignty as regards such a position of territory cannot forthwith be interpreted as showing that sovereignty is inexistent. Each case must be appreciated in accordance with the particular circumstances ... As regards groups of islands, it is possible that a group may under certain circumstances be regarded as in law, a unit, and that the fate of the principal part may involve the rest. Here, however, we must distinguish between, on the one hand, the act of first taking possession, which can hardly extend to every portion of territory, and, on the other hand, the display of sovereignty as a continuous and prolonged manifestation which must make itself felt through the whole territory. As regards the territory forming the subject of the present dispute, it must be remembered that it is a somewhat isolated island, and therefore a territory clearly delimited and individualised. It is moreover an island permanently inhabited, occupied by a population sufficiently numerous for it to be impossible that acts of administration could be lacking for very long periods. The memoranda of both Parties assert that there is communication by boat and even with native craft between the island of Palmas (or Miangas) and neighbouring regions. The inability in such a case to indicate any acts of public administration makes it difficult to imagine the actual display of sovereignty, even if the sovereignty be regarded as confined within such narrow limits as would be supposed for a small island inhabited exclusively by natives ...

[The Court then considered the Dutch claim.]


The Netherlands found their claim to sovereignty essentially on the title of peaceful and continuous display of state authority over the island. Since this title would in international law prevail over a title of acquisition of sovereignty not followed by actual display of state authority, it is necessary to ascertain in the first place, whether the contention of the Netherlands is sufficiently established by evidence, and, if so, for what period of time. In the opinion of the Arbitrator the Netherlands have succeeded in establishing the following facts: 1 The island of Palmas (or Miangas) is identical with an island designated by this or a similar name, which has formed, at least since 1700, successively a part of two of the native states of the island of Sangi (Talautse Isles). 2 These native states were from 1677 onwards connected with the East Indian Company, and thereby with the Netherlands, by contracts of suzerainty,
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which conferred upon the suzerain such powers as would justify his considering the vassal state as part of his territory. 3 Acts characteristic of state authority exercised either by the vassal state or by the suzerain Power in regard precisely to the Island of Palmas (or Miangas) have been established as occurring at different epochs between 1700 and 1898, as well as in the period between 1898 and 1906. The acts of indirect or direct display of Netherlands sovereignty at Palmas (or Miangas), especially in the 18th and early 19th centuries are not numerous, and there are considerable gaps in the evidence of continuous display. But apart from the consideration that the manifestations of sovereignty over a small and distant island, inhabited only by natives, cannot be expected to be frequent, it is not necessary that the display of sovereignty should go back to a very far distant period. It may suffice that such display existed in 1898, and had already existed as continuous and peaceful before that date long enough to enable any Power who might have considered herself as possessing sovereignty over the island, or having a claim to sovereignty, to have, according to local conditions, a reasonable possibility for ascertaining the existence of a state of things contrary to her real or alleged rights.

The decisions of the international tribunals indicate that for a claim to territory based on occupation to succeed two elements must be satisfied: the claiming state must have the intention to act as sovereign (the animus occupandi) and also must be able to point to some actual, physical manifestation of this sovereignty. The intention is a matter of inference from all the facts merely raising a flag is not enough. The second element is satisfied by some concrete evidence of possession or control or some symbolic act of sovereignty it depends on the nature of the territory involved.

Clipperton Island Arbitration12


Award of the arbitrator In fact, we find, in the first place, that on 17 November 1858 Lieutenant Victor Le Coat de Kerweguen, of the French Navy, commissioner of the French Government, whilst cruising about one-half mile off Clipperton, drew up, on board the commercial vessel LAmiral, an act by which, conformably to the orders which had been given to him by the Minister of Marine, he proclaimed and declared that the sovereignty over the said island beginning from that date belonged in perpetuity to His Majesty the Emperor Napoleon III and to his heirs and successors. During the cruise, careful and minute geographical notes were made; a boat succeeded, after numerous difficulties, in landing some members of the crew; and on the evening of 20 November, after a second unsuccessful attempt to reach the shore, the vessel put off without leaving in the island any sign of sovereignty. Lt de Kerweguen officially notified the accomplishment of his mission to the Consulate of France at Honolulu, which made a like communication to the Government of Hawaii. Moreover, the same consulate had published in English in the journal The Polynesian, of Honolulu, on 8 December, the declaration by which French sovereignty over Clipperton had already been proclaimed.
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12 France v Mexico (1932) 26 AJIL 390 arbitrator: King Victor Emmanuel III of Italy. Clipperton is a coral reef less than three miles in diameter situated in the Pacific Island 670 miles southwest of Mexico. 233

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Thereafter, until the end of 1887, no positive and apparent act of sovereignty can be recalled either on the part of France or on the part of any other Powers. The island remained without population, at least stable, and no administration was organised there. A concession for the exploitation of guano beds existing there, which had been approved by the Emperor on 8 April 1858, in favour of a certain Mr Lockhart, and which had given rise to the expedition of Lt de Kerweguen, had not been followed up, nor had its exploitation been undertaken on the part of any other French subjects. Towards the end of 1897 ... France stated ... that three persons were found in the island collecting guano ... and that they had, on the appearance of the French vessel, raised the American flag. Explanations were demanded on this subject from the United States, which responded that it had not granted any concession to the said company and did not intend to claim any right of sovereignty over Clipperton ... About a month after this act of surveillance had been accomplished by the French Navy ... Mexico, ignoring the occupation claimed by France and considering that Clipperton was territory belonging to her for a long time, sent to the place a gun boat, La Democrata, which action was caused by the report, afterwards acknowledged to be inaccurate, that England had designs on the island. A detachment of officers and marines landed from the said ship on 13 December 1897, and again found the three persons who resided on the island at the time of the preceding arrival of the French ship. it made them lower the American flag and hoist the Mexican flag in its place ... After that the Democrata left on 15 December On 8 January, France, having learned of the Mexican expedition, reminded that power of its rights over Clipperton ... According to Mexico, Clipperton Island ... had been discovered by the Spanish Navy and, by virtue of the law then in force, fixed by the Bull of Alexander VII, had belonged to Spain, and afterwards, from 1836, to Mexico as the successor to the Spanish state. But according to the actual state of our knowledge, it has not been proven that this island ... had been actually discovered by the Spanish navigators ... However, even admitting that the discovery had been made by Spanish subjects, it would be necessary, to establish the contention of Mexico, to prove that Spain not only had the right, as a state, to incorporate the island in her possessions, but also had effectively exercised the right. But that has not been demonstrated at all. The proof of an historic right of Mexicos is not supported by any manifestation of her sovereignty over the island, a sovereignty never exercised until the expedition of 1897, and the mere conviction that this was territory belonging to Mexico, although general and of long standing, cannot be retained. Consequently, there is ground to admit that, when in November 1858, France proclaimed her sovereignty over Clipperton, that island was in the legal situation of territorium nullius, and therefore, susceptible of occupation. The question remains whether France proceeded to an effective occupation, satisfying the conditions required by international law for validity of this kind of territorial acquisition. In effect, Mexico maintains, secondarily to her principal contention which has just been examined, that the French occupation was not valid, and consequently her own right to occupy the island which must still be considered as nullius in 1897. In whatever concerns this question, there is, first of all, ground to hold as incontestable, the regularity of the act by which France in 1858 made known in a clear and precise manner, her intention to consider the island as her territory.
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On the other hand, it is disputed that France took effective possession of the island, and it is maintained that without such a taking of possession of an effective character, the occupation must be considered as null and void. It is beyond doubt that by immemorial usage having the force of law, besides the animus occupandi, the actual, not the nominal, taking of possession is a necessary condition of occupation. This taking of possession consists in the act, or series of acts, by which the occupying states reduces to its possession the territory in question and takes steps to exercise exclusive authority there. Strictly speaking, and in ordinary cases, that only takes place when the state establishes in the territory itself an organisation capable of making its laws respected. But this step is, properly speaking, but a means of procedure to the taking of possession, and, therefore, is not identical with the latter. There may also be cases where it is unnecessary to have recourse to this method. Thus, if a territory, by virtue of the fact that it was completely uninhabited, is, from the first moment when the occupying state makes its appearance there, at the absolute and undisputed disposition of that state, from that moment the taking of possession must be considered as accomplished, and the occupation is thereby completed ... It follows from these premises that Clipperton Island was legitimately acquired by France on 17 November 1858. There is no reason to suppose that France has subsequently lost her right by derelicto , since she never had the animus of abandoning the island, and the fact that she has not exercised her authority there in a positive manner does not imply the forfeiture of an acquisition already definitively perfected. For these reasons, we decide, as arbiter, that the sovereignty over Clipperton Island belongs to France, dating from 17 November 1858.

Legal Status of Greenland case (Norway v Denmark)13


The case concerned the competing claims of Norway and Denmark. On 10 July 1931 Norway officially claimed sovereignty over the territory on the basis of occupation of terra nullius . Denmark objected on the basis that Danish sovereignty had existed over the area since the early part of the 18th century. The Permanent Court upheld the Danish claim.
... a claim to sovereignty based not upon some particular act or title such as a treaty of cession but merely upon continued display of authority, involves two elements each of which must be shown to exist: the intention and will to act as sovereign, and some actual exercise or display of such authority. Another circumstance which must be taken into account by any tribunal which has to adjudicate upon a claim to sovereignty over a particular territory, is the extent to which the sovereignty is also claimed by some other Power. In most of the cases involving claims to territorial sovereignty which have come before an international tribunal, there have been two competing claims to the sovereignty, and the tribunal has had to decide which of the two is the stronger. One of the peculiar features of the present case is that up to 1931 there was no claim by any Power other than Denmark to the sovereignty over Greenland. Indeed, up till 1921, no Power disputed the Danish claim to sovereignty. It is impossible to read the records of the decisions in cases as to territorial sovereignty without observing that in many cases the tribunal has been satisfied with very little in the way of the actual exercise of sovereign rights, provided that
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13 Norway v Denmark PCIJ Ser A/B, No 53 (1933). 235

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the other state could not make out a superior claim. This is particularly true in the case of claims to sovereignty over areas in thinly populated or unsettled countries ... The conclusion to which the Court is led is that, bearing in mind the absence of any claim to territorial sovereignty by another Power, and the Arctic and inaccessible character of the uncolonised parts of the country, the King of Denmark and Norway displayed during the period from the founding of the colonies by Hans Egede in 1721 up to 1814 his authority to an extent sufficient to give his country a valid claim to sovereignty and that his rights were not limited to the colonised areas ... the result of all the documents connected with the grant of the [trading, hunting, and mining] concession is to show that, on the one side, it was granted upon the footing that the King of Denmark was in a position to grant a valid monopoly on the east coast and that his sovereign rights entitled him to do so, and, on the other, that the concessionaires in England regarded the grant of a monopoly as essential to the success of their projects and had no doubt as to the validity of the rights conferred ... The concessions granted for the erection of telegraph lines and the legislation fixing the limits of territorial waters in 1905 are also manifestations of the exercise of sovereign authority. In view of the above facts, when taken in conjunction with the legislation she had enacted applicable to Greenland generally, the numerous treaties in which Denmark, with the concurrence of the other contracting Party, provided for the non-application of the treaty to Greenland in general, and the absence of all claim to sovereignty over Greenland by any other Power, Denmark must be regarded as having displayed during this period of 1814 to 1915 her authority over the uncolonised part of the country to the degree sufficient to confer a valid title to the sovereignty.

Minquiers and Ecrehos case14


The Minquiers and the Ecrehos are two groups of rocks and islets which lie between Jersey and the French coast. The islets were claimed by both France and the UK, each state tracing its title back to the Middle Ages. On 6 December 1951 the UK filed a special agreement at the ICJ between France and itself asking the court to determine the question of which state had the better title.
Judgment of the Court Both parties contend that they have respectively an ancient or original title to the Ecrehos and the Minquiers, and that their title has always been maintained and was never lost. The present case does not therefore present the characteristics of a dispute concerning the acquisition of terra nullius. The United Kingdom government derives the ancient title invoked by it from the conquest of England in 1066 by William, Duke of Normandy. By this conquest England became united with the Duchy of Normandy, including the Channel Islands, and this union lasted until 1204 when King Philip Augustus of France drove the Anglo-Norman forces out of Continental Normandy. But his attempts to occupy also the Islands were not successful, except for brief periods when some of them were taken by French forces. On this ground the United Kingdom Government submits the view that all of the Channel islands, including the Ecrehos and the Minquiers, remained, as before, united with England, and that
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14 France v United Kingdom [1953] ICJ Rep at p 47. 236

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this situation of fact was placed on a legal basis by subsequent Treaties concluded between the English and French Kings ... The French Government derives the original title invoked by it from the fact that the Dukes of Normandy were the vassals of the Kings of France, and that the Kings of England after 1066, in their capacity as Dukes of Normandy, held the Duchy in the fee of the French Kings ... The Court considers it sufficient to state as its view that even if the Kings of France did have an original feudal title also in respect of the Channel Islands, such a title must have lapsed as a consequence of the events of the year 1204 and the following years. Such an alleged original feudal title of the Kings of France in respect of the Channel Islands could today produce no legal effect, unless it had been replaced by another title valid according to the law of the time of replacement. What is of decisive importance, in the opinion of the Court, is not indirect presumptions deduced from events in the Middle Ages, but the evidence which relates directly to the possession of the Ecrehos and Minquiers groups ... The Parties have further discussed the question of the selection of a critical date for allowing evidence in the present case. The United Kingdom submits that, although the Parties have for a long time disagreed as to the sovereignty over the two groups, the dispute did not become crystallised before the conclusion of the Special Agreement of 29 December 1950, and that therefore this date should be considered as the critical date, with the result that all acts before that date must be taken into consideration by the Court. The French government, on the other hand, contends that the date of the Convention of 1839 should be selected as the critical date, and that all subsequent acts must be excluded from consideration. At the date of the Convention of 1839, no dispute as to the sovereignty over the Ecrehos and Minquiers groups had yet arisen. The Parties had for a considerable time been in disagreement with regard to the exclusive right to fish oysters, but they did not link that question to the question of sovereignty over the Ecrehos and the Minquiers. In such circumstances there is no reason why the conclusion of that Convention should have any effect on the question of allowing or ruling out evidence relating to sovereignty. A dispute as to sovereignty over the groups did not arise before the years 1886 and 1888, when France for the first time claimed sovereignty over the Ecrehos and the Minquiers respectively. But in view of the special circumstances of the present case, subsequent acts should also be considered by the Court, unless the measure in question was taken with a view to improving the legal position of the Party concerned. In many respects activity in regard to these groups had developed gradually long before the dispute as to sovereignty arose, and it has since continued without interruption and in a similar manner. In such circumstances there would be no justification for ruling out all events which during this continued development occurred after the years 1886 and 1888 respectively ... In 1826 criminal proceedings were instituted before the Royal Court of Jersey against a Jerseyman for having shot at a person on the Ecrehos. Similar judicial proceedings in Jersey in respect of criminal offences committed on the Ecrehos took place in 1881, 1891, 1913 and 1921. On the evidence produced the Court is satisfied that the ... Jersey authorities took action in these cases because the Ecrehos were considered to be within the Bailiwick. These facts show therefore that Jersey courts have exercised criminal jurisdiction in respect of the Ecrehos during nearly a hundred years. Evidence produced shows that the law of Jersey has for centuries required the holding of an inquest on corpses found within the Bailiwick where it was not clear that death was due to natural causes. Such inquests on corpses found at the
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Ecrehos were held in 1859, 1917 and 1948 and are additional evidence of the exercise of jurisdiction in respect of these islets ... The Court, being now called upon to appraise the relative strength of the opposing claims to sovereignty over the Ecrehos in the light of the facts considered above, finds that the Ecrehos group in the beginning of the 13th century was considered and treated as an integral part of the fief of the Channel Islands which were held by the English King, and that the group continued to be under the dominion of that King, who in the beginning of the 14th century exercised jurisdiction in respect thereof. The Court further finds that the British authorities during the greater part of the 19th century and in the 20th century have exercised state functions in respect of the group. The French government, on the other hand, has not produced evidence showing that it has any valid title to the group. In such circumstances it must be concluded that the sovereignty over the Ecrehos belongs to the United Kingdom ... It is established that contracts of sale relating to real property in the Minquiers have, as is the case of the Ecrehos, been passed before the competent authorities of Jersey and registered in the public registry of deeds of the island. Examples of such registration of contracts are given for 1896, 1909 and some later years. In 1909 Jersey customs authorities established in the Minquiers a custom-house with the arms of Jersey. The islets have been included by Jersey authorities within the scope of their census enumerations, and in 1921 an official enumerator visited the islets for the purpose of taking the census. 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 ... The evidence thus produced by the United Kingdom government shows in the opinion of the Court that the Minquiers in the beginning of the 17th century were treated as a part of the fief of Noirmont in Jersey, and that British authorities during a considerable part of the 19th century and in the 20th century have exercised state functions in respect of this group ... In such circumstances, and having regard to the view expressed above with regard to the evidence produced by the United Kingdom government, the Court is of the opinion that the sovereignty over the Minquiers belongs to the United Kingdom.

7.3.2 Prescription and acquiescence


... the submission is that (if one excludes adverse holding or negative prescription) the situations described under the rubric of prescription by the writers, on analysis, fall into three categories: cases of immemorial possession; competing acts of sovereignty (Island of Palmas case); and cases of acquiescence. The first two categories are not really cases of prescription, but, as to the third, it may be said that acquiescence is a form of prescription and that the question ends as a matter of terminology. However, the doctrine is so tangled that it would be a help if the more candid and unambiguous label were used. And, of course, this would make clear the position of adverse holding in the law. However, it is important to notice that, whilst it is intended as an aid to understanding, the threefold analysis offered is not necessarily reflected neatly by life. In some cases it is not entirely clear whether there has been an occupation by one claimant of a res nullius followed later on by competing acts by another state, or whether there have been contemporaneously competing acts from the outset. Again, in either case, a court will take acquiescence into account; in other words the second and third categories may overlap in practice. In conclusion,
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one may doubt whether there is any role in the law for a doctrine of prescription as such.15

Brownlies warning should be taken seriously and it can be read in conjunction with his comments referred to earlier regarding the dangers of too zealously looking for a single dominant mode of acquisition.16 Nevertheless, reference is made, by states, by writers and by international tribunals17 to prescription and it is necessary to have some understanding as to what is meant by it.
Acquisitive prescription is the means by which, under international law, legal recognition is given to the right of a state to exercise sovereignty over land or sea territory in cases where that state has, in fact, exercised its authority in a continuous, uninterrupted, and peaceful manner over the area concerned for a sufficient period of time, provided that all other interested and affected states (in the case of land territory, the previous possessor, in the case of sea territory neighbouring state and other states whose maritime interests are affected) have acquiesced in this exercise of authority. Such acquiescence is implied in cases where the interested and affected state have failed within a reasonable time to refer the matter to the appropriate international organisation or international tribunal or exceptionally in cases where no such action was possible have failed to manifest their opposition in a sufficiently positive manner through the instrumentality of diplomatic protests. The length of time required for the establishment of a prescriptive title on the one hand, and the extent of the action required to prevent the establishment of a prescriptive title on the other hand, are invariable matters of fact to be decided by the international tribunal before which the matter is eventually brought for adjudication.18

Prescription can validate an otherwise doubtful title. It depends on public control and the implication that other states see the effective control and acquiesce to the assumption of sovereignty. Protests by other states can defeat a claim based on prescription. Traditionally it was thought that in order to be effective, protests had to involve the threat or use of armed force. As the use of armed force gradually became restricted by international law, so diplomatic protest came to suffice. There remains some discussion as to the precise requirements of effective protest. Some writers have argued that diplomatic protest must, within a reasonable time, be followed by reference of the matter to the UN or the ICJ. The issue of protest was raised in relation to the dispute between Argentina and the UK over sovereignty over the Falklands Islands (Malvinas). In 1982 the British Foreign Secretary stated that Britains claim to the Falkland Islands rested partly on principles of prescription. 19 According to Argentinean
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15 Brownlie, Principles of Public International Law, 4th edn, 1990, Oxford: Oxford University Press at p 159. 16 Ibid at p 132. 17 See the Chamizal Arbitration (US v Mexico) (1911) 5 AJIL 782 where the International Boundary Commission considered a US argument based on prescription. The Commission made no decision as to whether prescription was a principle recognised by international law finding on the facts that there was no basis on which the US could found a claim on prescription. 18 Johnson (1950) 27 BYIL 332 at pp 353. 19 (1983) 54 BYIL 461. 239

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accounts, the Falkland Islands were first discovered by Spain in 1520. Britain claims they were first discovered by Britain in 1592. The islands remained unoccupied until 1764 when a French settlement was established on East Falkland. This settlement was sold to Spain two years later and was maintained by Spain until 1811. Meanwhile a British settlement had been established in West Falkland in 1766. The British