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CASES OF VIOLATIONS
SUBMITTED TO MR. A. P. SINGH (FACULTY OF INTERNATIONAL LAW) SUBMITTED BY ANOOP KUMAR ROLL NO. 11
DR. RAM MANOHAR LOHIYA NATIONAL LAW UNIVERSITY
The aim of this project is to introduce the reader to the topic INTERNATIONAL TREATIES CASES OF VIOLATIONS. The project also deals with the policy. The subject matter of the project deals with the cases of violations of International Treaties. Thanks are due to staff at the Dr. RMLNLU library, the faculty of the International Law in Dr. RMLNLU, as well as to a number of colleagues who have directly or indirectly given pointers to how this project should proceed. I would also like to thank my father, who provided me with materials and his invaluable blessings. ANOOP KUMAR
CONTENTS. SOURCES OF INTERNATIONAL LAW. PACTA SUNT SERVANDA. EXECUTION AND IMPLEMENTATION OF TREATIES. CASES ON TREATIES. CURRENT SITUATION. VIOLATIONS OF INTERNATIONAL TREATIES BY INDIA. CONCLUSION. BIBLIOGRAPHY.
SOURCES OF INTERNATIONAL LAW. Traditionally, the sources of international law are regarded as being listed in Article 38 of the Statute of the International Court of Justice.
International Conventions whether general or particular establishing rules expressly recognized by ‘the contesting states’; International custom as evidence of a general practice accepted as law; The general principles of law recognized by civilized nations; and 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).
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Nowadays, the term ‘convention’ is assumed to be referring to a multilateral treaty; but at the time Article 38 of the UN Charter was drafted ‘convention’ denoted any sort of treaty: bilateral, plurilateral or multilateral. And in the context of Article 38 it still has this meaning. Since World War II, treaties have assumed a clear prominence as the primary source of law-making on the international plane.
Especially multilateral treaties. Even so, international tribunals have clarified customary international law in ways which have developed the legal principles governing the law applying to treaties. For example, the International Court of Justice has done a lot to clarify the general rules for the interpretation of treaties.
With the increased focus on relations between States that comes with globalisation, there has been greater pressure and demand to codify rules obtaining between those States.
This codification has been done mainly through treaties because they are a relatively simple, clear and quick way of crystallizing existing international rules and developing new ones.
Indeed, it is now commonplace for legal scholars to classify those treaties which lay down universal (or even fairly general) rules governing international society as 'law-making' or 'normative' treaties. The Hague Peace Conferences of 1898 and 1907 are often cited not only as a watershed in the institutionalisation of
international co-operation, but also as the first major international ‘law-making’ conferences. So-called ‘normative treaties’ are:
characterised metaphorically as 'international legislation', and extolled as necessary to accommodate the urgent dynamics that are transforming international relations.
Multilateral treaties – because they have a larger number of parties - are more effective than bilateral treaties in codifying international law.
In negotiating multilateral treaties its parties often try to address the subject matter of the treaties as comprehensively as possible. Of course, States negotiating these agreements often have different or conflicting interests; so the final multilateral treaty text may not fully reflect the views and positions of all the States which negotiated it.
You can imagine how difficult it is to try and achieve conformity of views and approaches in relation to a multilateral instrument that is intended to be comprehensive – even where the instrument’s subject matter is relatively narrow. Even if you can settle the text of a law-making treaty you then face the risk that it may conflict with other law-making treaties. And the legal principles for resolving these conflicts may prove – in particular cases – to be anything but clear and simple. There are many examples of law-making treaties. A classic case is the Law of the Sea Convention, which took nearly a decade to negotiate. This Convention:
codifies the international law applying to the oceans and seas develops international law
provides an invaluable source of the law relating to those aspects of the law of the sea which took its parties so long to negotiate, and is, by and large, extremely clear and explicit - even if there are some provisions that are ambiguous.
Another example of a codifying or 'normative' instrument is the Statute of the International Criminal Court (or ‘Rome Statute’). The Rome Statute is regarded by some as the most important multilateral instrument negotiated in the last decade of the twentieth century.
The Statute codifies international law regarding war crimes and other crimes against humanity. During the negotiation of the Statute momentum developed to create a comprehensive regime on such criminal law. This was premised on certain customary international law norms having achieved such broad acceptance internationally that they could be enshrined in a formal document which would be generally acceptable as binding to a large number of States.
The Statute illustrates how a treaty can not only crystallize putative customary international norms as conventional law, but also further develop such norms and related standards. Of course, the outcomes of treaty negotiations are not always so exemplary. Negotiating States may refuse to adopt an international norm in a treaty because it does not suit their interests or because they sincerely believe that the norm does not represent customary international law. In such cases you may get straightforward compromises; or you may get (what diplomats call) 'constructive ambiguity' where the meaning of the settled text is not clear.
This ambiguity allows the parties to interpret the treaty provisions in the way that most suits their interests. This may not sound like much of a solution, but often - with diplomats - 'half of something is better than a lot of nothing'. A 'fuzzy' treaty is better than none at all. The Antarctic Treaty is an archetype of such a ‘treaty’ solution. During the 1950’s a ‘tacit agreement’ developed between certain states which were active in Antarctica. (It was called an ‘gentleman’s agreement’ in the sexist terminology of the times.) Under this agreement states would not try to advance or enhance claims to territorial sovereignty in Antarctica. Arguably the gentleman’s agreement constituted customary regional international law which was legally binding. However, it was not at all clear that the parties to this tacit agreement regarded their agreement as legally binding. Contrariwise, there had been many acrid territorial disputes over Antarctica, which the gentleman’s agreement had put a lid on. There was no optimism that this lid would stay on. And, if the lid blew off – with the parties terminating their tacit agreement – the consequences could have been quite grave. There were even fears of armed conflict between Argentina and the UK over their territorial disputes. So, Article IV of the Antarctic Treaty addressed the problem by providing that: ‘No new claim, or enlargement of an existing claim, to territorial sovereignty in Antarctica …’ should be asserted while the Treaty was in force. This meant – in theory – that claims to Antarctica could neither be improved nor worsened. Article IV did not resolve the problem of competing claims to sovereignty in Antarctica. Indeed, it was depicted as the ‘non-solution of a problem that could never be swept completely under the carpet’. However, the Treaty has undoubtedly promoted stability in the international politics of Antarctica. Moreover, what was originally regarded as a modus vivendi (that is an interim arrangement which stays in place till a legal solution is reached) now - with the passage of time - looks increasingly like it will bed down a permanent, legal status quo.
It is even being argued that the Antarctic Treaty has created an objective legal regime which is binding on all states irrespective of whether or not they are parties to the Treaty. (In much the same way as a bilateral treaty which changes borders between countries is regarded as objectively binding on all states.) Just as interesting is the fact that a whole legal regime has sprung up from the fountainhead of Article IX of the Antarctic Treaty. This article provides that parties carrying out scientific research may - by consensus - recommend measures which further the objectives of the Antarctic Treaty. Article IX does not provide any measure adopted pursuant to it is legally binding; but the practice of the parties to the Antarctic Treaty shows that they normally regard such measures as legally binding. From 1961 to 1995 over 200 measures were promulgated under this provision regarding (among other things) environmental protection, telecommunications, tourism and mining. A treaty that was once disdained as a ‘non-solution’ has proven to be the solid foundation for an exemplary international legal regime. There was also criticism of the Antarctic treaty regarding the vagueness of its terms. For example, the term ‘territorial sovereignty’ is ambiguous. Lawyers could argue over whether claims to the territorial sea or the straight baselines adjacent to Antarctic territory are prohibited by Article IV of the Antarctic Treaty. Yet I prefer to see this terminology as reflecting 'constructive ambiguity'. This ambiguity is one of the reasons that the Antarctic Treaty has proved immensely useful in stabilizing the international politics of Antarctica.
PACTA SUNT SERVANDA. Vienna Convention on the Law of Treaties, 1969, art. 26 says: Article 26 “Pacta sunt servanda” 8
Every treaty in force is binding upon the parties to it and must be performed by them in good faith. Pacta sunt servanda is a basic principle of international law and civil law. It is Latin and it means "pacts must be respected" by all sides. With reference to international agreements, “every treaty in force is binding upon the parties to it and must be performed by them in good faith” EXECUTION AND IMPLEMENTATION OF TREATIES Treaties may be seen as 'self-executing', in that merely becoming a party puts the treaty and all of its obligations in action. Other treaties may be non-self-executing and require 'implementing legislation'—a change in the domestic law of a state party that will direct or enable it to fulfill treaty obligations. An example of a treaty requiring such legislation would be one mandating local prosecution by a party for particular crimes. The division between the two is often not clear and is often politicized in disagreements within a government over a treaty, as a non-self-executing treaty cannot be acted upon without the proper change in domestic law. If a treaty requires implementing legislation, a state may be in default of its obligations by the failure of its legislature to pass the necessary domestic laws. CASES ON TREATIES. Anglo-lranian Oil Co. (United Kingdom v. Iran)1 The Anglo-Iranian Oil Co. (United Kingdom v. Iran) case was a dispute between the UK and Iran, in which the UK alleged that the Iranian Oil Nationalization act of 1951 was counter to a convention agreed upon by the (then) Anglo-Persian Oil Co. (now British Petroleum) and the Imperial Government of Persia (now Iran) in 1933, which granted the Anglo-Iranian Oil Co. a 60-year license to mine oil in 100,000 square miles (260,000 km2) of Iran in return for a percentage royalty.
On 26 May 1951, the UK took Iran to the International Court of Justice, demanding that the 1933 agreement be upheld and that Iran pay damages and compensation for disrupting the UK-incorporated company's profits. On 22 July 1952, the ICJ decided because Iran had only conceded to ICJ jurisdiction in cases involving treaties agreed upon after 1932, and as the only treaty cited by the UK after that date was between Iran and a foreign company (and not the UK itself), that it had no jurisdiction in this matter (Iran's original contention). Australia v. France and New Zealand v. France (1974 ICJ Rep 253). France continued to test in the atmosphere until 1974 in the South Pacific. The French test sites on Mururoa and Fangtufa atolls were about 3700 miles east of Australia , and both Australia and New Zealand brought suit in the International Court of Justice in an effort to bring a halt to the tests. The ICJ granted a preliminary injunction but then issued an opinion declining to rule on the merits, since France had issued a statement that it had ?taken steps to [continue with only underground testing] as early as next year.? The Court indicated that Australia or New Zealand could re-open the case if France breached its commitment to them not to conduct such tests. When France declared in 1995 that it was going to conduct eight more underground tests in the South Pacific, New Zealand attempted to re-open the case. New Zealand sought to enjoin the tests because of adverse effects on the marine environment, and requested an environmental impact assessment. The ICJ ruled against New Zealand (which had been joined by Australia ), saying that its new complaint did not fit in under the clause permitting the 1974 case to be re-opened. Moreover, France had removed itself from general ICJ jurisdiction in 1974, preventing an entirely new case from being brought.
Frontier Dispute Case (Burkina Faso v. Mali, 1986 ICJ Rep 554).
By a Special Agreement of 16 September 1983 filed with the Registry of the Court on 20 October 1983 the Republic of Burkina Faso and the Republic of Mali had submitted a dispute to the Court concerning the delimitation of their common frontier. According to Article II of this Special Agreement the case was to be decided by a Chamber of the Court constituted according to Article 26(2) of the Statute. After having duly consulted the Parties as to the composition of the Chamber, the Court decided by an order of 3 April 1985 that the Chamber was to be composed of the Judges Lachs, Ruda and Bedjaoui as well as Judge ad hoc Luchaire to sit for Burkina Faso and Judge ad hoc Abi-Saab to sit for Mali. CURRENT SITUATION. Currently questions have become frequent the binding nature of the international treaties. It is no more evident that the treaties have the same inherent principle of pacta sunt servanda. Various cases of the violation of treaties have become evident. Some of these are as follows: 1. Portuguese Violation of United Nations Convention on the Law of the Sea (1982): In 2004, the Women on Waves' ship, Borndiep, an officially registered commercial vessel under the Dutch Shipping Inspectorate, was inspected by the Dutch authorities and given permission to sail to Portugal, although it complied with all the international regulations and had all the paperwork in order, the Portuguese authorities refused its entrance and the innocent passage through Portuguese waters2. 2. The USA’s attack Against Iraq: Bush attacked Iraq, against the decisions of the United Nations, and thus violated the UN Charter. Planning and committing a war of aggression is a violation of the Nuremberg Principles. According to the US Constitution these international treaties are part of the “supreme Law of the Land”. Bush has violated the Nuremberg Principles and the UN Charter and is, therefore, subject to impeachment3.
3. Violation of the Land Mine Treaty (also called Ottawa Treaty): Greece, Turkey and Belarus all violated an international treaty by not destroying land mine stockpiles, and 15 other countries, including Britain, will miss their 2009 clearance targets, a coalition of monitors said Friday. The coalition, the International Campaign to Ban Landmines, said that more than 5,400 people were killed or maimed last year by antipersonnel mines, cluster munitions and other ordnance that can lie dormant for decades before exploding4. 4. 1963 Vienna Convention Violation: An international court ruled in 2004 that the convictions of Medellin and 50 other Mexicans on death row around the United States violated the 1963 Vienna Convention, which provides that people arrested abroad should have access to their home country's consular officials. The International Court of Justice, also known as the world court, said the Mexican prisoners should have new court hearings to determine whether the violation affected their cases5. VIOLATIONS OF INTERNATIONAL TREATIES BY INDIA. While victims of injustice and violence have always had trouble being heard, historically none have had more trouble than children. It has long been internationally agreed that the child, by reason of his/her physical and mental vulnerability, needs special safeguards and care, including appropriate legal protection, before as well as after birth. The Geneva Declaration of the Rights of the Child of 1924, the Universal Declaration of Human Rights and the statutes of specialized agencies and international organizations concerned with the welfare of children straightforwardly document the need for such special safeguards. The State’s failure to implement various International Treaties that relate to the rights of every human being, adult of child, such as the Universal Declaration of Human Rights, The Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, and The Convention on the Prevention and Punishment of the Crime of Genocide, has been convincingly demonstrated.
Declaration of the Rights of the Child (1959) Nothing seems more distant from the children in the Gujarat Relief Camps than a promise of “healthy and normal” development. The entitlement to a Muslim name has unfortunately threatened the right to the Indian nationality. Most of these children have either lost the bread winning members of their families, or their parents have lost all their savings, as well as their means of livelihood in the genocide. It remains the duty of the State, which has unmistakably and miserably failed to protect the children and their parents from acts of organized violence, to now secure the “benefits of social security” for them. If the State fails to do so, this second failure – being less spectacular in form – might be more harmful in its lingering effect since serious psychological dislocation accompanies economic and social dispossession. In the Shah-e-Alam Camp alone, almost fifty babies were born immediately after the genocide and another fifty were expected during the time of our visit. The Government has not taken any substantial measure to provide “adequate pre-natal and post-natal care” to these newborns and their mothers. The right to education has been violated. The sources of family incomes have been irrecoverably destroyed. The course of normal life has been suddenly disrupted. It is clear that one of the aims of the genocide was ethnic cleansing – hence the systematic and widespread rapes and burning of women, foetuses and children. Another was to psychologically traumatize and emotionally destabilize the children from the minority communities. Many of them have been forced to witness the rapes of their mothers, sisters, relatives and friends, some of whom have been burnt to death, and some others were left semi-charred. The “spirit of understanding, tolerance, friendship among peoples, peace and universal brotherhood” that they were promised now sounds like a cruel joke. The Government has failed not only to live up to the requirements of the Geneva Principles, but also to guarantee the minimal constitutional rights of the citizens from a particular community.
A Treaty is an agreement under international law entered into by actors in international law, namely states and international organizations. A Treaty may also be known as: (international) agreement, protocol, covenant, convention, exchange of letters, exchange of notes, accord, memorandum of understanding, etc. Regardless of the terminology, all of these international agreements under international law are equally treaties and the rules are the same. (Note that in United States constitutional law, the term "treaty" has a special meaning which is more restricted than its meaning in international law; see below.) Treaties can be loosely compared to contracts: both are means of willing parties assuming obligations among themselves, and a party to either that fails to live up to their obligations can be held liable under international law for that breach. The central principle of treaty law is expressed in the maxim pacta sunt servanda- “pacts must be respected”.
Agarwal, H.O., International Law & Human Rights, 14th ed., 2007, Central Law Publications, Allahabad. Dixon, Martin and McCorquodale, Cases and Materials on International Law, 1st Ind. Ed., 1995, Lawman (India) Pvt. Ltd., New Delhi. Tendon, M P, and Tandon, Rajesh, Cases on International Law, 4th ed., 1998, Allahabas Law Agency, Faridabad.
URLs. • • • • • • http://www.dfat.gov.au/treaties/workshops/treaties_global/moraitis.html http://www.womenonwaves.org/article-160-en.html http://www.impeachbush.tv/impeach/treaties.html http://www.iht.com/articles/2008/11/21/europe/mines.php http://nysbar.com/blogs/ILPSExec/2008/03/mexican_treaty_violation_case.html http://www.mpil.de/ww/en/pub/research/details/publications/institute/wcd.cfm?fu seaction_wcd=aktdat&aktdat=dec0101.cfm
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