Case Concerning Rights of Nationals of the United States of America in Morocco (I.C.J.

Reports,176,1952)

By a decree of 30 December 1948, the French authorities in the Moroccan Protectorate imposed a system of
licence control in respect of imports not involving an official allocation of currency, and limited these imports to
a number of products indispensable to the Moroccan economy. The United States maintained that this measure
affected its rights under treaties with Morocco and contended that, in accordance with these treaties and with
the General Act of Algeciras of 1906, no Moroccan law or regulation could be applied to its nationals in Morocco
without its previous consent.

In its Judgment of 27 August 1952, the Court held that the import controls were contrary to the Treaty between
the United States and Morocco of 1836 and the General Act of Algeciras since they involved discrimination in
favour of France against the United States.

The Court then considered the extent of the consular jurisdiction of the United States in Morocco and held that
the United States was entitled to exercise such jurisdiction in the French Zone in all disputes, civil or criminal,
between United States citizens or persons protected by the United States. It was also entitled to exercise such
jurisdiction to the extent required by the relevant provisions of the General Act of Algeciras.

The Court rejected the contention of the United States that its consular jurisdiction included cases in which only
the defendant was a citizen or protégé of the United States. It also rejected the claim by the United States that
the application to United States citizens of laws and regulations in the French Zone of Morocco required the prior
assent of the United States Government. Such assent was required only in so far as the intervention of the
consular courts of the United States was necessary for the effective enforcement of such laws or regulations with
respect to United States citizens.

The Court rejected a counter-claim by the United States that its nationals in Morocco were entitled to immunity
from taxation. It also dealt with the question of the valuation of imports by the Moroccan customs authorities.
Western Sahara Case (Advisory Opinion, I.C. J. Reports, 1975)

On 13 December 1974, the General Assembly requested an advisory opinion on the following questions : “I. Was
Western Sahara (Rio de Oro and Sakiet El Hamra) at the time of colonization by Spain a territory belonging to no
one (terra nullius) ?” 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 Mauritanian entity ?”

In its Advisory Opinion, delivered on 16 October 1975, the Court replied to Question I in the negative. In reply to
Question II, it expressed the opinion that the materials and information presented to it showed the existence, at
the time of Spanish colonization, of legal ties of allegiance between the Sultan of Morocco and some of the tribes
living in the territory of Western Sahara.

They equally showed 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 Court’s conclusion was that the materials and information presented to it did 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 did not find any legal ties of such a nature as might affect the application of the General Assembly’s
1960 resolution 1514 (XV) — containing the Declaration on the Granting of Independence to Colonial Countries
and Peoples — in the decolonization 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.

International Status of South-West Africa (Advisory Opinion, I.C.J. Reports, 1950)

This Advisory Opinion, given on 11 July 1950, at the request of the General Assembly, was concerned with the
determination of the legal status of the Territory, the administration of which had been placed by the League of
Nations after the First World War under the Mandate of the Union of South Africa.

The League had disappeared, and with it the machinery for the supervision of the Mandates. Moreover, the
Charter of the United Nations did not provide that the former mandated Territories should automatically come
under trusteeship. The Court held that the dissolution of the League of Nations and its supervisory machinery
had not entailed the lapse of the Mandate, and that the mandatory Power was still under an obligation to give
an account of its administration to the United Nations, which was legally qualified to discharge the supervisory
functions formerly exercised by the League of Nations.

The degree of supervision to be exercised by the General Assembly should not, however, exceed that which
applied under the Mandates System and should conform as far as possible to the procedure followed in this
respect by the Council of the League of Nations. On the other hand, the mandatory Power was not under an
obligation to place the Territory under trusteeship, although it might have certain political and moral duties in
this connection. Finally, it had no competence to modify the international status of South West Africa unilaterally.
Legal Consequences for States of the Continued Presence of South Africa in Namibia (South-West
Africa) Notwithstanding Security Council Resolution 276 of 1970 (I.C.J. Reports, 1971)

On 27 October 1966, the General Assembly decided that the Mandate for South West Africa was terminated and
that South Africa had no other right to administer the Territory. In 1969 the Security Council called upon South
Africa to withdraw its administration from the Territory, and on 30 January 1970 it declared that the continued
presence of the South African authorities in Namibia was illegal and that all acts taken by the South African
Government on behalf of or concerning Namibia after the termination of the Mandate were illegal and invalid; it
further called upon all States to refrain from any dealings with the South African Government that were
incompatible with that declaration.

On 29 July 1970, the Security Council decided to request of the Court an advisory opinion on the legal
consequences for States of the continued presence of South Africa in Namibia. In its Advisory Opinion of 21 June
1971, the Court found that the continued presence of South Africa in Namibia was illegal and that South Africa
was under an obligation to withdraw its administration immediately.

It found that States Members of the United Nations were under an obligation to recognize the illegality of South
Africa’s presence in Namibia and the invalidity of its acts on behalf of or concerning Namibia, and to refrain from
any acts implying recognition of the legality of, or lending support or assistance to, such presence and
administration. Finally, it stated that it was incumbent upon States which were not Members of the United
Nations to give assistance in the action which had been taken by the United Nations with regard to Namibia.

Judgment of the Nuremberg Tribunal (International Military Tribunal, 1 October 1946)

Brief Fact Summary. For instigating wars of aggression against neighboring countries, officials of Hilter’s Third
Reich were indicted.

Synopsis of Rule of Law. It is a crime to plan or wage war that is a war of aggression or a war in violation of
international treaties.

Facts. Based on the war they instigated, the officials of Hitler’s Third Reich were indicted. Some 5,000 Nazi’s were
charged with war crimes. However, the Nuremberg trials were designed specifically to prosecute high-ranking
Nazi officials with whom authority over heinous atrocities rested. The four counts of the indictment were: 1-
Conspiracy to commit crimes alleged in other counts; 2- Crimes against peace; 3- War crimes; 4- Crimes against
humanity. The Nuremburg trials were one of the first organized attempts to apply principles of international law,
and established new precedents for the international community.

Issue. Is it a crime to plan or wage a war that is a war of aggression or a war in violation of international treaties?

Held. Yes. It is a crime to plan or wage a war that is a war of aggression or a war in violation of international
treaties. The nations who signed the Kellog-Briand Pact or adhered to it unconditionally condemned recourse to
war as an instrument of policy and expressly renounced it. A war of aggression is outlawed by the Pact because
it constitutes an instrument of international controversies.
Discussion. This case is based on the indictment of German officials for the seizure of Austria and Czechoslovakia
and the war against Poland as part of Germany foreign policy. The tribunal found Germany guilty of violating the
Charter’s prohibition against wars of aggression and wars in violation of international treaties (namely the Treaty
of Versailles) because Germany planned wars against 12 separate nations.

Dispute between Texaco Overseas Petroleum Co./California Asiatic Oil Co. and the Government of the
Libyan Arab Republic (Compensation for Nationalized Property, Arbitral Awards on the Merits, 19 January
1977, 17 I.L.M., 1978)

Brief Fact Summary. A decree which attempted to nationalize all of Texaco’s (P) rights, interest and property in
Libya was promulgated by Libya (D).

Synopsis of Rule of Law. Whenever reference is been made to general principles of law in the international
arbitration context, it is always held to be a sufficient criterion for the internationalization of a contract.

Facts. A decree to nationalize all Texaco’s (P) rights, interest and property in Libya was promulgated by Libya (D).
This action of the Libyan Government led Texaco (P) to request for arbitration, but it was refused by Libya (D). A
sole arbitrator was however appointed by the International Court of Justice on Texaco’s request, and Libya (D)
was found to have breached its obligations under the Deeds of Concessions and was also legally bound to perform
in accordance with their terms.

Issue. Whenever reference is being made to general principles of law in the International arbitration context, can
this be held to be a sufficient criterion for the internationalization of a contract?

Held. Yes. Whenever reference is been made to general principles of law in the international arbitration context,
it is always held to be a sufficient criterion for the internationalization of a contract. The lack of adequate law in
the state considered and the need to protect the private contracting party against unilateral and abrupt
modifications of law in the contracting state is a justification to the recourse to general principles. Though
international law involves subjects of a diversified nature, legal international capacity is not solely attributable to
a state. A private contracting party, unlike a state, has only a limited capacity and is limited to invoke only those
rights that he derives from his contract.

Discussion. Applying Libyan law or international law in the arbitration proceedings was a conflict encountered by
in this case. Though the contract itself deferred to Libyan law, the court noted that Libyan law does not preclude
the application of international law, but that the two must be combined in order to verify that Libyan law complies
with international law. Even though the right of a state to nationalize is recognized by international law, this right
in itself is not a sufficient justification not to regard its contractual obligations.
Island of Palmas Case (Netherlands v. U.S.A., 2 R.I.A.A. 829, Permanent Court of Arbitration)

Brief Fact Summary. Both the United States (P) laid claim to the ownership of the Island of Palmas. While the U.S.
(P) maintained that it was part of the Philippines, the Netherlands (D) claimed it as their own.

Synopsis of Rule of Law. A title that is inchoate cannot prevail over a definite title found on the continuous and
peaceful display of sovereignty.

Facts. Both the United States (P) laid claim to the ownership of the Island of Palmas. While the U.S. (P) maintained
that it was part of the Philippines, the Netherlands (D) claimed it as their own. The claim of the U.S. (P) was back
up with the fact that the islands had been ceded by Spain by the Treaty of Paris in 1898, and as successor to the
rights of Spain over the Philippines, it based its claim of title in the first place on discovery. On the part of the
Netherlands (D), they claimed to have possessed and exercised rights of sovereignty over the island from 1677
or earlier to the present.

Issue. Can a title which is inchoate prevail over a definite title found on the continuous and peaceful display of
sovereignty?

Held. (Huber, Arb.). No. A title that is inchoate cannot prevail over a definite title found on the continuous and
peaceful display of sovereignty. The peaceful and continuous display of territorial sovereignty is as good as title.
However, discovery alone without subsequent act cannot suffice to prove sovereignty over the island. The
territorial sovereignty of the Netherlands (D) was not contested by anyone from 1700 to 1906. The title of
discovery at best an inchoate title does not therefore prevail over the Netherlands (D) claims of sovereignty.

Discussion. Evidence of contracts made by the East India Company and the Netherlands (D) was examined by the
arbitrator. The claims made by the Netherlands (D) were also based on the premise of the convention it had with
the princes and native chieftains of the islands. Hence, at the time of the Treaty of Paris in 1898, Spain was found
not to have dominion over the island. 4,700 private U.S. claims, ordered payment by Iran (D) to U.S. nationals
amounting to over $2.5 billion.

Legal Status of Eastern Greenland (P.C.I.J. Reports, series A/B, No. 53, 1933)

Brief Fact Summary. The statement made by the Norwegian Minister was claimed to be binding on his country
by Denmark (P).

Synopsis of Rule of Law. A country is bound by the reply given on its behalf by its Minister of Foreign Affairs.

Facts. The agreement not to obstruct Danish (P) plans with regard to Greenland was what Denmark wanted to
obtain from Norway (D). To this request, a declaration on behalf of the Norwegian government (D) was made by
its Minister for Foreign Affairs that Norway (D) would not make any difficulty in the settlement of the question.

Issue. Is a country bound by the reply given on its behalf by its Minister of Foreign Affairs?

Held. Yes. A country is bound by the reply given on its behalf by its Minister of Foreign Affairs. Therefore in this
case, the response by the diplomatic representative of a foreign power is binding upon the country the Minister
represents.
Discussion. The main source of international law on treaties is the Vienna Convention on the Law of Treaties. The
Convention was ratified by 35 countries but not by the United States. Unilateral statements may also be binding
on states.
Eritrea-Yemen Arbitration (PCA 8 October 1998)

Eritrea and Yemen both claimed sovereignty over a group of islands in the Red Sea, but agreed to settle their
dispute on questions of territorial sovereignty and maritime delimitation before the Arbitral Tribunal. Eritrea was
found to be sovereign over the Mohabbakah islands, the Haycock islands and Southwest Rocks owing to their
proximity to the Eritrean mainland and presumption of natural unity. The Tribunal found Yemen to be sovereign
over the Zubayr group of islands and the Zuqar-Hanish group on the balance of the evidence from the Parties
regarding the exercise of the functions of state authority.

The Eritrea-Yemen Arbitration is one of the most significant international arbitrations of the end of the twentieth
century. It solved the problem of ownership of the southern islands of the Red Sea, the solution of which had
been awaited since the end of World War I. With its recognition of a 'traditional fishing regime' and crystallisation
of the criteria for maritime delimitation, it also made a significant contribution to the development of
international law.

Preah Vihear Temple Case (ICJ Reports, 1962)

Cambodia complained that Thailand had occupied a piece of its territory surrounding the ruins of the Temple of
Preah Vihear, a place of pilgrimage and worship for Cambodians, and asked the Court to declare that territorial
sovereignty over the Temple belonged to it and that Thailand was under an obligation to withdraw the armed
detachment stationed there since 1954. Thailand filed preliminary objections to the Court’s jurisdiction, which
were rejected in a Judgment given on 26 May 1961.

In its Judgment on the merits, rendered on 15 June 1962, the Court noted that a Franco-Siamese Treaty of 1904
provided that, in the area under consideration, the frontier was to follow the watershed line, and that a map
based on the work of a Mixed Delimitation Commission showed the Temple on the Cambodian side of the
boundary. Thailand asserted various arguments aimed at showing that the map had no binding character. One of
its contentions was that the map had never been accepted by Thailand or, alternatively, that if Thailand had
accepted it, it had done so only because of a mistaken belief that the frontier indicated corresponded to the
watershed line.

The Court found that Thailand had indeed accepted the map and concluded that the Temple was situated on
Cambodian territory. It also held that Thailand was under an obligation to withdraw any military or police force
stationed there and to restore to Cambodia any objects removed from the ruins since 1954.
Frontier Dispute Case (Burkina Faso v. Mali, ICJ Reports, 1986)

Brief Fact Summary. A question pertaining to a border dispute was tabled before the International Court of Justice
by Burkina Faso and Mali.

Synopsis of Rule of Law. An obligation exists to respect pre-existing international frontiers in the event of a state
succession.

Issue. Does an obligation exist to respect pre-existing international frontiers in the event of a state succession?

Facts
Burkina Faso (previously the Republic of Upper Volta) and the Republic of Mali each obtained independence in
1960 following decolonization. Later, the Organization of African Unity, comprised of African Heads of State, was
formed. In 1964, the Organization of African Unity met in Cairo, Egypt and issued a resolution declaring that all
member States of the Organization of African Unity “solemnly…pledge themselves to respect the frontiers
existing on their achievement of national independence.” This resolution codified into law the age-old
international principle of uti possidetis. In 1975, the Head of State of Mali made a statement indicating a lack of
respect for the existing boundaries between Mali and Burkina Faso. Mali and Burkina Faso later submitted to a
Chamber of the International Court of Justice (ICJ) the question of the proper demarcation of boundary lines
between the two States. In considering the case, the ICJ discussed the principle of uti possidetis.

Held. Yes. An obligation exists to respect pre-existing international frontiers in the event of a state succession,
whether or not the rule is the rule is expressed in the form of uti possidetis. The fact that the principle did not
exist when the states declared such independence in 1960 does not foreclose its present application.

Discussion. Yes. An obligation exists to respect pre-existing international frontiers in the event of a state
succession, whether or not the rule is the rule is expressed in the form of uti possidetis. The fact that the principle
did not exist when the states declared such independence in 1960 does not foreclose its present application.

Libya v. Chad (ICJ Reports 1994)

The Aouzou Strip is a barren piece of land located on the border of Chad and Libya. Libya had begun to stage
troops on the strip in order to assist with the defense of its citizens who lived in the area. Despite the land having
no strategic or functional value to Chad, the government saw the Aouzou Strip as part of their sovereign territory.
Due to the inability of both countries to internally establish a line of demarcation, the case was referred to the
International Court of Justice for adjudication in 1990.

Each country has a differing basis from which it is deriving its claims of the Aouzou Strip:

Libya’s claim is on "the basis of a coalescence of rights and titles of the indigenous inhabitants, the Senoussi Order,
the Ottoman Empire, and through an agreement that its government made with Italy."
Chad has argued that the border was established through the Treaty of Friendship and Good Neighborliness which
was concluded between France and Libya in 1955.
From Libya’s perspective, there is not enough evidence to show that a boundary was ever established and that
they have adequately lay claim to the Aouzou Strip through administrative control. Chad’s use of the Treaty of
Friendship and Good Neighborliness as basis of its claim has also been challenged due to the treaty being in effect
for only 20 years (1955-1975).
The International Court of Justice ruled that the boundary between Chad and Libya is defined by the Treaty of
Friendship and Good Neighborliness which was concluded between France and Libya in 1955. Conversely, this
gives Chad territorial sovereignty over the Aouzou Strip

Anglo-Norwegian Fisheries Case (ICJ Reports, 1951)

Background to the case

The United Kingdom requested the court to decide if Norway had used a legally acceptable method in drawing
the baseline from which it measured its territorial sea. The United Kingdom argued that customary international
law did not allow the length of a baseline drawn across a bay to be longer than ten miles. Norway argued that its
delimitation method was consistent with general principles of international law.

Findings of the Court

1. The formation of customary law
The Court referred to (1) positive State practice and (2) lack of contrary State practice as a confirmation of an
existing rule of customary international law (see p. 17 and 18). There was no mention of opinio juris in this early
judgment.

In the following passage, the Court considered expressed dissent by States regarding a particular practice to be
detrimental to the existence of an alleged general rule. Yet, the Court did not examine further whether these
States adopted a contrary practice because, for example, (1) they were claiming an exception to the rule (see the
Nicaragua jurisprudence) or (2) because they believed that the said rule did not possess the character of
customary law.

“In these circumstances the Court deems it necessary to point out that although the ten-mile rule has been
adopted by certain States both in their national law and in their treaties and conventions, and although certain
arbitral decisions have applied it as between these States, other States have adopted a different limit.
Consequently, the ten-mile rule has not acquired the authority of a general rule of international law.”

1.1. The persistent objector

The Court in its judgment held that even if a customary law rule existed on the aforementioned ten-mile rule,

“…the ten-mile rule would appear to be inapplicable as against Norway inasmuch as she has always opposed any
attempt to apply it to the Norwegian coast.”

In this case, the Court appears to support the idea that an existing customary law rule would not apply to a State
if (1) it objected to the application of the rule to itself (2) at the initial stages and (3) in a consistent manner. The
Anglo Norwegian Fisheries Case, thus, supports the Asylum Case (Peru vs Colombia) in articulating what we now
call the persistent objector rule.

a. Initial objection
The Court pointed out that the Norwegian Minister of Foreign Affairs, in 1870, stated that, “in spite of the
adoption in some treaties of the quite arbitrary distance of 10 sea miles, this distance would not appear to me to
have acquired the force of international law. Still less would it appear to have any foundation in reality…”
The Court held that “Language of this kind can only be construed as the considered expression of a legal
conception regarded by the Norwegian Government as compatible with international law”. Thus, the Court held
that Norway had refused to accept the rule as regards to it in 1870.

b. Sustained objection
The Court also went on to hold that Norway had followed the principles of delimitation that it considered a part
of its system in a consistent and uninterrupted manner from 1869 until the time of the dispute.

In establishing consistent practice, the Court held that “…too much importance need not be attached to the few
uncertainties or contradictions, real or apparent, which the United Kingdom Government claims to have
discovered in Norwegian practice.”

c. No objection by other States

The Court held that the 10-mile rule did not form a part of the general law and, in any event, could not bind
Norway because of the latter’s objections. Next, the Court inquired whether the Norwegian system of
delimitation was nevertheless contrary to international law. To do so, the Court relied on state practice once
more.

“The general toleration of foreign States with regard to the Norwegian practice is an unchallenged fact. For a
period of more than sixty years the United Kingdom Government itself in no way contested it… The Court notes
that in respect of a situation which could only be strengthened with the passage of time, the United Kingdom
Government refrained from formulating reservations.”

1.2. Contrary State practice of Norway?

In this case, Norway adopted a contrary practice – a practice that was the subject of litigation.

However, interestingly, Norway was clear that it was not claiming an exception to the rule (i.e. that its practice
was not contrary to international law). It emphasized that its practice – even if it was a deviation from the general
practice – was in conformity with international law (see page 21).

“In its (Norway’s) view, these rules of international law take into account the diversity of facts and, therefore,
concede that the drawing of base-lines must be adapted to the special conditions obtaining in different regions.
In its view, the system of delimitation applied in 1935, a system characterized by the use of straight lines, does
not therefore infringe the general law; it is an adaptation rendered necessary by local conditions. ”

The Court held that the fact that this consistent and sufficiently long practice took place without any objection to
the practice from other States (until the time of dispute) indicated that these States did not consider the
Norwegian system to be “contrary to international law”.

“The notoriety of the facts, the general toleration of the international community, Great Britain’s position in the
North Sea, her own interest in the question, and her prolonged abstention would in any case warrant Norway’s
enforcement of her system against the United Kingdom. The Court is thus led to conclude that the method of
straight lines, established in the Norwegian system, was imposed by the peculiar geography of the Norwegian
coast; that even before the dispute arose, this method had been consolidated by a consistent and sufficiently
long practice, in the face of which the attitude of governments bears witness to the fact that they did not consider
it to be contrary to international law.”
2. Relationship between international and national law
The Court alluded to the relationship between national and international law in delimitation of maritime
boundaries. In delimitation cases, States “must be allowed the latitude necessary in order to be able to adapt its
delimitation to practical needs and local requirements…” The Court would also consider “…certain economic
interests peculiar to a region, the reality and importance of which are clearly evidenced by a long usage.”
However, while the act of delimitation can be undertaken by the State, its legal validity depends on international
law.

“The delimitation of sea areas has always an international aspect; it cannot be dependent merely upon the will
of the coastal State as expressed in its municipal law. Although it is true that the act of delimitation is necessarily
a unilateral act, because only the coastal State is competent to undertake it, the validity of the delimitation with
regard to other States depends upon international law. (p. 20)”