COMPENDIUM (APPLICANT)

1. Charter Of The United Nations And Statute Of The International Court Of Justice :
Article 1 The Purposes of the United Nations are:
1. To maintain international peace and security, and to that end: to take effective collective
measures for the prevention and removal of threats to the peace, and for the suppression of
acts of aggression or other breaches of the peace, and to bring about by peaceful means, and
in conformity with the principles of justice and international law, adjustment or settlement of
international disputes or situations which might lead to a breach of the peace.
2. To develop friendly relations among nations based on respect for the principle of equal
rights and self-determination of peoples, and to take other appropriate measures to strengthen
universal peace.
3. To achieve international cooperation in solving international problems of an economic,
social, cultural, or humanitarian character, and in promoting and encouraging respect for
human rights and for fundamental freedoms for all without distinction as to race, sex,
language, or religion; and
4. To be a center for harmonizing the actions of nations in the attainment of these common
ends.

2. France v United Kingdom [1953] ICJ 47 (Nov.17)

OPINION OF JUDGE BASDEVANT :

Holding the islands-this is an expression which is used in the Treaty of 1360 in the military
sense ; it refers to the situation created by the military strength of the King of England. So far
34 as inhabited islands are concerned, this idea involves the establishment of English military
authority in these islands, the possibility of action taken by the King's agents in respect of the
inhabitants and, by the same token, the prevention of foreign action in the islands thus
occupied. But none of these elements are to be looked for in the case of the Ecrehos and the
Ninquiers, islets and rocks which are practically uninhabited and most of which are
uninhabitable. From military point of view, for the King of England to hold them, it is not
necessary that he should maintain a garrison there ; it is sufficient that by reason of his
military and naval power he should be in a position to intervene there when he considers it
appropriate without being prevented from doing so by the forces of the King of France and
that, by the same token, he should be in a position to prevent intervention by these forces. It
would seem probable that the King of England, who had established himself on the principal
Channel Islands and who remained there by virtue of the naval power available to him, \vas
thus in a position to take such action in respect of the Ecrehos and the Minquiers. Without
here introducing the concept of an archipelago, w-hich is not in consonance with the
geographical situation, the propinquity of these islets in relation to Jersey tends to confirm
this probability. It would therefore seem that within the meaning of the Treaty of 1360, the
disputed islets Tvere then held by the King of England and that the condition imposed by the
Sreaty for their being assigned to him as part of the division was satisfied. It would be of very
great assistance if it were possible to find confirmation of this probability in certain
contemporary facts. The Quo Warranto proceedings of 1309, which can be considered
relevant only with regard to a question of the adüocatio raised therein, did not result in any
expressed decision on this point and the arguments relied on before the Judges and accepted
by them-the arguments relating to the poverty of the Priorywere quite unconnected with that
part of the proceedings ; the desired confirmation is not therefore to be found here. As to the
actual relations with Jersey arising from the gifts made to the Priory by the inhabitants of that
island or the occasional visits of the Prior to Jersey, these are at least counterbalanced by the
relations and the ecclesiastical discipline then existing between the Priory of the Ecrehos and
the Abbey of Val-Richer which was on French soil. Neither here nor in any similar facts is it
possible to find anything which confirms or invalidates the hypothesis according to which the
disputed islets would appear to have formed a part of the islands held by the King of England
in 1360.

3. Western Sahara, advisory opinion 1975 I.C.J.12 (Oct.16)

The Court,

composed as above,

gives the following Advisory Opinion:

The questions upon which the advisory opinion of the Court has been asked were laid before
the Court by a letter dated 17 December 1974, filed in the Registry on 21 December 1974,
addressed by the Secretary-General of the United Nations to the President of the Court. In his
letter the Secretary-General informed the Court that, by resolution 3292 (XXIX) adopted on
13 December 1974, the General Assembly of the United Nations had decided to request the
Court to give an advisory opinion at an early date on the questions set out in the resolution.
The text of that resolution is as follows:

"The General Assembly,

Recalling its resolution 1514 (XV) of 14 December 1960 containing the Declaration on the
Granting of Independence to Colonial Countries and Peoples,
Recalling also its resolutions 2072 (XX) of 16 December 1965, 2229 (XXI) of 20 December
1966, 2354 (XXII) of 19 December 1967, 2428 (XXIII) of 18 December 1968, 2591 (XXIV)
of 16 December 1969, 2711 (XXV) of 14 December 1970, 2983 (XXVII) of 14 December
1972 and 3162 (XXVIII) of 14 December 1973,
Reaffirming the right of the population of the Spanish Sahara to self-determination in
accordance with resolution 1514 (XV),
Considering that the persistence of a colonial situation in Western Sahara jeopardizes stability
and harmony in the north-west African region,
Taking into account the statements made in the General Assembly on 30 September and 2
October 1974 by the Ministers for Foreign Affairs of the Kingdom of Morocco FN1 and of
the Islamic Republic of Mauritania,FN2
Taking note of the statements made in the Fourth Committee by the representatives of
Morocco FN3 and Mauritania,FN4 in which the two countries acknowledged that they were
both interested in the future of the Territory,
Having heard the statements by the representative of Algeria,FN5 Having heard the
statements by the representative of SpainFN6, [p14]
Noting that during the discussion a legal controversy arose over the status of the said territory
at the time of its colonization by Spain,
Considering, therefore, that it is highly desirable that the General Assembly, in order to
continue the discussion of this question at its thirtieth session, should receive an advisory
opinion on some important legal aspects of the problem,
Bearing in mind Article 96 of the Charter of the United Nations and Article 65 of the Statute
of the International Court of Justice,
Decides to request the International Court of Justice, without prejudice to the application of
the principles embodied in General Assembly resolution 1514 (XV), to give an advisory
opinion at an early date on the following questions:
'I. Was Western Sahara (Río 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?';
Calls upon Spain, in its capacity as administering Power in particular, as well as Morocco and
Mauritania, in their capacity as interested parties, to submit to the International Court of
Justice all such information and documents as may be needed to clarify those questions;
Urges the administering Power to postpone the referendum it contemplated holding in
Western Sahara until the General Assembly decides on the policy to be followed in order to
accelerate the decolonization process in the territory, in accordance with resolution 1514
(XV), in the best possible conditions, in the light of the advisory opinion to be given by the
International Court of Justice;
Reiterates its invitation to all States to observe the resolutions of the General Assembly
regarding the activities of foreign economic and financial interests in the Territory and to
abstain from contributing by their investments or immigration policy to the maintenance of a
colonial situation in the Territory;
Requests the Special Committee on the Situation with regard to the Implementation of the
Declaration on the Granting of Independence to Colonial Countries and Peoples to keep the
situation in the Territory under review, including the sending of a visiting mission to the
Territory, and to report thereon to the General Assembly at its thirtieth session."
In a communication received in the Registry on 19 August 1975, the Secretary-General
indicated that, owing to a technical error, the word "controversy" in the ninth paragraph of
the preamble of the above resolution had been replaced by the word "difficulty" in the text
originally transmitted to the President of the Court.
By letters dated 6 January 1975 the Registrar, pursuant to Article 66, paragraph 1, of the
Statute of the Court, gave notice of the request for advisory opinion to all States entitled to
appear before the Court.
Western Sahara (Rio de Oro and Sakiet El Hamra) is a territory having very special
characteristics which, at the time of colonization by Spain, largely determined the way of life
and social and political organization of the peoples inhabiting it. In consequence, the legal
regime of Western Sahara, including its legal relations with neighbouring territories, cannot
properly be appreciated without reference to these special characteristics. The territory forms
part of the great Sahara desert which extends from the Atlantic coast of Africa to Egypt and
the Sudan. At the time of its colonization by Spain, the area of this desert with which the
Court is concerned was being exploited, because of its low and spasmodic rainfall, almost
exclusively by nomads, pasturing their animals or growing crops as and where conditions
were favourable. It may be said that the territory, at the time of its colonization, had a sparse
population that, for the most part, consisted of nomadic tribes the members of which
traversed the desert on more or less regular routes dictated by the seasons and the wells or
water-holes available to them. In general, the Court was informed, the right of pasture was
enjoyed in common by these tribes; some areas suitable for cultivation, on the other hand,
were subject to a greater degree to separate rights. Perennial water-holes were in principle
considered the property of the tribe which put them into commission, though their use also
was open to all, subject to certain customs as to priorities and the amount of water taken.
Similarly, many tribes were said to have their recognized burial grounds, which constituted a
rallying point for themselves and for allied tribes. Another feature of life in the region,
according to the information before the Court, was that inter-tribal conflict was not
infrequent.

These various points of attraction of a tribe to particular localities were reflected in its
nomadic routes. But what is important for present purposes is the fact that the sparsity of the
resources and the spasmodic character of the [p 42] rainfall compelled all those nomadic
tribes to traverse very wide areas of the desert. In consequence, the nomadic routes of none of
them were confined to Western Sahara; some passed also through areas of southern Morocco,
or of present-day Mauritania or Algeria, and some even through further countries. All the
tribes were of the Islamic faith and the whole territory lay within the Dar al-Islam. In general,
authority in the tribe was vested in a sheikh, subject to the assent of the "Juma'a", that is, of
an assembly of its leading members, and the tribe had its own customary law applicable in
conjunction with the Koranic law. Not infrequently one tribe had ties with another, either of
dependence or of alliance, which were essentially tribal rather than territorial, ties of
allegiance or vassalage.

It is in the context of such a territory and such a social and political organization of the
population that the Court has to examine the question of the "legal ties" between Western
Sahara and the Kingdom of Morocco and the Mauritanian entity at the time of colonization
by Spain. At the conclusion of the oral proceedings, as will be seen, Morocco and Mauritania
took up what was almost a common position on the answer to be given by the Court on
Question II. The contentions on which they respectively base the legal ties which they claim
to have had with Western Sahara at the time of its colonization by Spain are, however,
different and in some degree opposed. The Court will, therefore, examine them separately.
Morocco's claim to "legal ties" with Western Sahara at the time of colonization 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. This immemorial possession, it maintains, was based
not on an isolated act of occupation but on the public display of sovereignty, uninterrupted
and uncontested, for centuries.

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 A.D., the evidence of which is,
understandably, for the most part taken from historical works. The far-flung, spasmodic and
often transitory character of many of these events renders the historical material somewhat
equivocal as evidence of possession of the territory now in question. Morocco, however,
invokes inter alia the decision of the Permanent Court of International Justice in the Legal
Status of Eastern Greenland case (P.C.I.J., Series A/B, No. 53). 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 Morocco's claim to a title based "upon continued display of authority"
(loc. cit., p. 45) on the same principles as those applied [p 43] by the Permanent Court in
upholding Denmark's claim to possession of the whole of Greenland.

The Court, as has already been indicated, concurs in the view that Question II does not
envisage any form of territorial delimitation by the [p 67] Court. It is also evident that the
conclusions reached by the Court concerning the ties which existed between Western Sahara
and the Kingdom of Morocco or the Mauritanian entity, as defined above, at the time of
colonization lead also to the conclusion that there was a certain overlapping of those ties. The
findings of the Court, however, regarding the nature of the legal ties of the territory
respectively with the Kingdom of Morocco and the Mauritanian entity differ materially from
the views advanced in that respect by Morocco and Mauritania. In the opinion of the Court
those ties did not involve territorial sovereignty or co-sovereignty or territorial inclusion in a
legal entity. In consequence, the "geographical overlapping" drawn attention to by the two
States had, in the Court's view, a different character from that envisaged in the statements
quoted above.

The overlapping arose simply from the geographical locations of the migration routes of the
nomadic tribes; and the intersection and overlapping of those routes was a crucial element in
the complex situation found in Western Sahara at that time. To speak of a "north" and a
"south" and an overlapping with no void in between does not, therefore, reflect the true
complexity of that situation. This complexity was, indeed, increased by the independence of
some of the nomads, notably the Regheibat, a tribe prominent in Western Sahara. The
Regheibat, although they may have had links with the tribes of the Bilad Shinguitti, were
essentially an autonomous and independent people in the region with which these
proceedings are concerned. Nor is the complexity of the legal relations of Western Sahara
with the neighbouring territories at that time fully described unless mention is made of the
fact that the nomadic routes of certain tribes passed also within areas of what is present-day
Algeria.

In the view of the Court, therefore, the significance of the geographical overlapping is not
that it indicates a "north" and a "south" without a "no-man's land". Its significance is rather
that it indicates the difficulty of disentangling the various relationships existing in the
Western Sahara region at the time of colonization by Spain.

4. Somalia v. Kenya, Judgement on Preliminary Objections :

While perhaps not the most discussed judicial decision by the ICJ in recent years, the
Judgment on the Preliminary Objections in Somalia v. Kenya may have some implications
for the distribution of jurisdiction in law of the sea disputes that cannot be underestimated.
Equally controversial is its method of treaty interpretation, which effectively contributes to
the Court’s jurisprudence on the definition of treaties, the significance of ‘context’ and
applicable relevant rules (Art. 31(3)(c) of the VCLT), and finally, the value of travaux
préparatoires. The judgment has its most immediate influence on the law of the sea. On the
one hand, by rejecting Kenya’s argument that a State must first delineate the outer continental
shelf before delimitation, the Court’s conclusion on the delimitation of the continental shelf
beyond the 200 nautical miles confirms the approach taken by ITLOS (International Tribunal
for the Law of the Sea). In the Bay of Bengal case, for instance, the Tribunal stated that:
‘There is a clear distinction between the delimitation of the continental shelf under article 83
and the delineation of its outer limits under Article 76. Under the latter article, the
Commission is assigned the function of making recommendations to coastal States on matters
relating to the establishment of the outer limits of the continental shelf, but it does so without
prejudice to delimitation of maritime boundaries’. The current state of law, settled by the ICJ
and ITLOS, is therefore, that States are free to choose whether they first follow the CLCS
path or instead delimit the continental shelf with their neighboring States. On the other hand,
concerning the jurisdiction of dispute resolution mechanisms, as observed by Prof. Treves,
the vast majority of the parties to UNCLOS have not chosen any forum under Art.
287.Signatories of UNCLOS that have reservations to the Court’s jurisdiction with one that
looks like Kenya’s (e.g. Canada and Australia) may now find themselves bound by the
International Court of Justice’s compulsory jurisdiction,22 in case such an objection is raised
by one party.The Court’s conclusion is arguably consistent with the majority of scholarly
opinion:for instance, Prof. Alan Boyle comments that: ‘two states which have made
declarations in similar terms under Article 36 (2) of the ICJ Statute will remain subject to the
compulsory jurisdiction of the ICJ even in the LOS Convention cases’. But as confirmed by
Prof. Boyle himself in the proceedings of the present case, this time acting as counsel for
Kenya, what he wrote did not cover the situation of a reservation to an optional clause
declaration. According to Judge Patrick Robinson, the most vehement dissenter in the case,
none of the publicists cited by Somalia covered the situation of a reservation.
If a party wishes to raise an objection of jurisdiction by operation of Art. 282, it will need to
demonstrate that there exists an alternative dispute resolution mechanism that is ‘otherwise
agreed’ by the parties. The case law of ITLOS provides several clarifications. First, Art. 282
requires that the alternative mechanism ‘entails a binding decision’. This is why the Tribunal
denied Japan’s argument in the Southern Bluefin Tuna cases, confirming that a simple
commitment to settle the dispute by peaceful and diplomatic means would not amount to such
an alternative.27 Second, the alternative dispute resolution mechanism must be shown to be
sufficiently general to cover the issues of the law of the sea. In the MOX Plant case (Ireland
v. United Kingdom), the United Kingdom raised the objection that the main elements of the
dispute were governed by the compulsory dispute settlement procedures of, inter alia, the
European Community treaties. The Tribunal rejected the argument by noting that, even if
other treaties do contain ‘rights or obligations similar to or identical with the tights or
obligations set out in UNCLOS, the rights and obligations under those agreements have a
separate existence from those under UNCLOS’.28 In other words, in the Tribunal’s
perspective, the jurisdiction of the European Court of Justice is not sufficiently general to
cover law of the sea disputes as regulated by UNCLOS.29 In this sense, the ICJ’s ruling in
Somalia v. Kenya can be seen as the Court’s declaration that its mandate is sufficiently
general to cover law of the sea disputes.

In practice, however, there is no settled view amongst arbitral tribunals. Before Somalia v.
Kenya, despite the general reluctance of arbitral tribunals to treat MOUs as formal treaties,
they are nevertheless generous in granting them residual effect. In the Iron Rhine Railway
arbitration, the arbitral tribunal made it clear that an MOU is not binding ‘as a matter of
international law’ but is ‘not regarded as being without legal relevance’.Tribunals also tended
to favour the subjective theory: as the arbitrators in Salini v. Jordan put it, ‘agreements are
only binding upon the parties if they intended to create legal relations between
themselves’.Similarly, in the US-UK Heathrow Airport User Charges arbitration, the tribunal
ruled that a 1983 US-UK MOU was not a treaty and, therefore, rejected it as an independent
source of rights and duties, as the parties to the MOU did not intend ‘to create independent
legally enforceable obligations’.The tribunal remarked, however, that the MOU is still a
‘potentially important aid to interpretation’ for it ‘constitutes consensual subsequent practice
of the Parties’.In comparison, the Court’s reasoning in Somalia v. Kenya may be regarded as
a deviation from the subjective approach. It is noteworthy that even though Somalia explicitly
asked the Court not to rule on the status of MOU under international law,the Court did so
anyway by putting forward the brief criteria as follows: ‘under the customary international
law of treaties … an international agreement concluded between States in written form and
governed by international law constitutes a treaty’. In the subsequent paragraphs, the Court
focused on the capacity to enter into treaties and left the subjective criteria of intention
unexamined.
 5. Ukraine v. Russia (application no. 20958/14)

The roots of the current conflict lie in autumn 2013 when the Ukrainian government was due
to sign a deal supposed to open European Union markets for Ukrainian goods and put the
country on a pathway to possible EU membership. That endangered Ukraine's ties with
Russia, its closest neighbor and major trading partner.

The Kremlin vehemently opposed the deal, fearing an uncontrolled flow of goods through
what was then virtually an open border. Despite his close ties to Russia, President Viktor
Yanukovych publicly pledged to sign the deal — only to walk out on it at the last moment.
Massive street protests followed, decrying Yanukovych for what was seen as an attempt to
deny Ukrainians a European future.

A crackdown by riot police saw 130 people killed in sniper fire. Yanukovych fled the capital
to Crimea and was eventually whisked away by Russian special forces to southern Russia. An
interim government, made up of the protest leaders, stepped in.

In February 2014, Russian officials began arriving in the Crimean peninsula shortly after the
pro-Western government took power in Kiev, fanning fears of an onslaught on Russian
heritage in parts of Ukraine including Crimea. Troops without insignia soon appeared in
Crimea, occupying crucial infrastructure including Ukrainian military bases. It was only
years later that Putin publicly admitted that these were in fact Russian troops.

Ukrainian troops largely did not put up resistance and retreated.

 6. (United States v. The Netherlands) Permanent Court of Arbitration 2 U.N. Rep. Int’l
Arb. Awards 829 (1928)

Island of Palmas (or Miangas) (The Netherlands / The United States of America)
The dispute concerned the sovereignty over the Island of Palmas, ceded by Spain to the
United States of America by treaty concluded in 1898, but claimed by the Netherlands as
forming part of its possessions on the basis of having excercised sovereignty there for more
than 200 years.

On January 23, 1925, the United States of America and the Netherlands referred their dispute
concerning sovereignty over the Island of Palmas to arbitration by a sole arbitrator. The sole
arbitrator was asked to determine whether the Island of Palmas (or Miangas) in its entirety
formed a part of the territory belonging to the United States of America or of the territory of
the Netherlands.

In his award, the sole arbitrator attached limited significance to discovery as a basis of title
and elaborated on the legal effect of the peaceful and continuous display of state authority
over territory. The arbitrator further considered the role of acquiescence and recognition in
circumstances of competing acts of possession, and the principle nemo dat quod non habet in
relation to treaties of cession.

To determine the question of title it was necessery for the arbitrator to consider arguments
about the presentation of evidence in legal proceedings and the specific issue of maps. The
arbitrator adoped a liberal approach towards the production of evidence, but indicated that
caution was required when assessing the value of maps.  

The arbitrator concluded that even if it had been possible for Spain to have ceded to the
United States of America its inchoate title derived from discovery or contiguity the inchoate
title of the Netherlands could not have been modified by a treaty concluded by third Powers;
and such a treaty could not have impressed the character of illegality on any act undertaken
by the Netherlands with a view to completing their inchoate title... at least as long as no
dispute on the matter had arisen. By the time a dispute had arisen, in 1906, the arbitrator
found that the establishment of Dutch authority had already reached such a degree of
development, that the importance of maintaining this state of things ought to be considered as
prevailing over a claim, possibly based either on discovery in very distant times and
unsupported by occupation or mere geographical position. For these reasons, the arbitrator
held that the Island of Palmas (or Miangas) formed in its entirety a part of Netherlands
territory.

7 (Denmark v. Norway), 1933 P.C.I.J. (ser. A/B) No. 53 (Apr. 5)

In its exposition of the law, the Court first of all observes that the Danish claim is founded on
the contention that the area occupied was, at the time of the occupation, subject to Danish
sovereignty, since that area is part of Greenland and at the time of the occupation Danish
sovereignty existed over all Greenland. In support of this contention, the Danish Government
advances two propositions. The first is that the sovereignty which Denmark now enjoys over
Greenland has existed for a long time, has been continuously and peacefully exercised and,
until the present dispute, has not been contested by any Power. The second proposition is that
Norway has by treaty or otherwise herself recognized Danish sovereignty over Greenland as
a whole and therefore cannot now dispute it. The Danish Government also relies on the Ihlen
Declaration which, it maintains, debars Norway from proceeding to any occupation of
territory in Greenland, and likewise on certain other undertakings entered into by Norway.
The Norwegian Government, on the other hand, submits that the area occupied was, at the
time of the occupation, terra nullius; its contention being, indeed, that the area in question lay
outside the limits of the Danish colonies in Greenland and that Danish sovereignty extended
no further than the limits of those colonies. Norway also maintains that the attitude which
Denmark adopted between 1915 and 1921, when she addressed herself to various Powers in
order to obtain a recognition of her position in Greenland, was inconsistent with a claim to be
already in possession of the sovereignty 311 over all Greenland, and that in the circumstances
she is now estopped from alleging a long-established sovereignty over the whole country.
Proceeding to consider the first Danish argument, the Court observes that Denmark’s claim is
not founded upon any particular act of occupation, but alleges a title founded on the peaceful
and continuous display of State authority. The Court goes on to say that such 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. Having laid down this principle, the Court undertakes a detailed
analysis of the historical data respecting Greenland from the earliest times, and particularly of
the legislative instruments of the XVIIIth century. In this connection it observes that
legislation is one of the most obvious forms of the exercise of sovereign power. Norway
argues that in the legislative and administrative acts of this period, the word “Greenland” was
not used in the geographical sense but meant only the colonies or the colonized area on the
west coast. In the view of the Court, that is a point as to which the burden of proof lies on
Norway; but that country, it holds, has not succeeded in establishing her contention: in the
eyes of the Court, it is clear that the operation of these legislative measures was not confined
to the colonies. The conclusion to which the Court is led is that, bearing in mind the absence
of any claim to sovereignty by another Power, and the arctic and inaccessible character of the
uncolonized parts of the country, the King of Denmark and Norway, during the period from
the founding of the colonies by Hans Egede in 1721 up to 1814, displayed his authority to an
extent sufficient to give his country a valid claim to sovereignty and that his rights over
Greenland were not limited to the colonized area. With regard to the period following the
Treaty of Kiel—the result of which was that what had been a Norwegian possession remained
with the King of Denmark and became for the future a Danish possession—Denmark relies
inter alia on the long series of conventions—mostly commercial in character—which have
been concluded by her and in which, with the concurrence of the other contracting Party, a
stipulation has been inserted to the effect that the convention shall not apply to Greenland.
Norway has argued that in these conventions also the word “Greenland” only means the
colonized area; but the Court holds that she has not succeeded in proving this contention and
that, to the extent that these treaties constitute evidence of recognition of her sovereignty over
Greenland in general, Denmark is entitled to rely upon them. These treaties may also be
regarded as demonstrating sufficiently Denmark’s will and intention to exercise sovereignty
over Greenland. With regard to the exercise of sovereignty over the uncolonized area, the
Court examines certain concessions granted by Denmark in respect of this region. It arrives at
the conclusion that Denmark must be regarded as having displayed during the period 1814–
1915 her authority over the uncolonized part of the country to a degree sufficient to confer a
valid title to the sovereignty. The Court next considers the applications which the Danish
Government addressed to foreign governments between 1915 and 1921, seeking the
recognition of Denmark’s position in Greenland. The point at issue between the Parties is
whether Denmark was seeking a recognition of an existing sovereignty extending over all
Greenland, as urged by her Counsel, or, as maintained by Counsel for Norway, whether she
was trying to persuade the Powers to agree to an extension of her sovereignty to territory
which did not as yet belong to her. The terms used in the correspondence between the Danish
Government and the foreign governments concerned relating to these applications are not
always clear. Nevertheless, the Court holds that in judging the effect of these notes too much
importance must not be attached to particular expressions here and there; the correspondence
must be judged as a whole. Considered thus, it can be reconciled with the view upheld by the
Danish Government in the present case, namely, that what that Government was seeking in
these applications was recognition of existing sovereignty and not consent to the acquisition
of new sovereignty. In this connection, the Court notes 312 in particular that as soon as one
of the Powers to whom application had been made indicated a desire to obtain some return
for the grant of what had been asked, the Danish Government replied with a note setting out
the legal basis of its claim to sovereignty in Greenland on lines similar to those which it has
followed in the present case. If that was the view which the Danish Government held before,
during and at the close of these applications to the Powers, its action in approaching them in
the way it did must certainly have been intended to ensure that those Powers should accept
the point of view maintained by the Danish Government, namely, that sovereignty already
existed over all Greenland; and not to persuade them to agree that a part of Greenland not
previously under Danish sovereignty should now be brought thereunder. Their object was to
ensure that those Powers would not themselves attempt to take possession of any non-
colonized part of Greenland, and the method of achieving this object was to get the Powers to
recognize an existing state of fact. In these circumstances, there can, in the Court’s opinion,
be no ground for holding that, by the attitude which the Danish Government adopted, it
admitted that it possessed no sovereignty over the uncolonized part of Greenland, nor for
holding that it is estopped from claiming that Denmark possesses an old established
sovereignty over all Greenland. Turning next to the period 1921–1931, the Court observes
that subsequent to the date when the Danish Government issued the Decree of May 10th,
1921, referred to above, there was a considerable increase in that Government’s activity on
the eastern coast of Greenland. The Court holds that the legislative and administrative
measures taken by Denmark at this time show that she was exercising governmental
functions in connection with the territory in dispute. They show to a sufficient extent the two
elements necessary to establish a valid title to sovereignty, namely: the intention and will to
exercise such sovereignty and the manifestation of State activity. Earlier in the judgment the
Court had already remarked that, as the critical date was July 10th, 1931, it was not necessary
that Danish sovereignty over Greenland should have existed throughout the period during
which the Danish Government maintained that it had possessed it: it was sufficient to
establish the existence of a valid title in the period immediately preceding the occupation. It
follows from the above that the Court is satisfied that Denmark has succeeded in establishing
her contention that at the critical date, namely July 10th, 1931, she possessed a valid title to
the sovereignty over all Greenland. In considering the second Danish proposition that
Norway had given certain undertakings which recognized Danish sovereignty over all
Greenland, the Court arrives at the conclusion that in three cases undertakings were given. In
the first place, the Court holds that, at the time of the termination of the Union between
Denmark and Norway (1814–1819), Norway undertook not to dispute Danish sovereignty
over Greenland. In the course of the negotiations following upon the dissolution of the Union
between Denmark and Norway, the restitution of Greenland to Norway was claimed, but the
claim was withdrawn and the King of Sweden and Norway renounced in the name of the
latter country all claims in respect of the Faroe Islands, Iceland and Greenland. Furthermore,
in the view of the Court, Article 9 of the Convention of September 1st, 1819, finally disposed
not only of the financial questions dealt with in Article 6 of the Treaty of Kiel, but of all
questions mentioned in the Treaty, and therefore also of the territorial questions in Article 4,
which leaves Greenland to Denmark. Since, in the view of the Court, “Greenland” in
Article 4 of the Treaty of Kiel means the whole of Greenland, the Court holds that in
consequence of the various undertakings resulting from the separation of Norway and
Denmark and culminating in Article 9 of the Convention of September 1st, 1819, Norway has
recognized Danish sovereignty over all Greenland. 313 In the Court’s opinion, a second
series of undertakings by Norway, recognizing Danish sovereignty over Greenland, is
afforded by various bilateral agreements concluded by Norway with Denmark, and by
various multilateral agreements to which both Denmark and Norway were contracting
Parties. In these agreements, concluded since 1826, Greenland is described as a Danish
colony or as forming part of Denmark, or Denmark is allowed to exclude Greenland from the
operation of the agreement. In accepting these bilateral and multilateral agreements as
binding upon herself, Norway reaffirmed that she recognized the whole of Greenland as
Danish. Thirdly and lastly, the Court considers the Ihlen Declaration. In this connection, it
does not accept the Danish view that this amounted to a recognition of an existing Danish
sovereignty in Greenland. But it holds that the declaration, even if not constituting a
definitive recognition of Danish sovereignty, is an engagement obliging Norway to refrain
from occupying any part of Greenland. The Court considers it beyond all dispute that a reply,
given by the Minister for Foreign Affairs of a particular country on behalf of his Government,
in response to a request by the diplomatic representative of a foreign Power, in regard to a
question falling within his province, is binding upon that country. On the other hand, the
Court does not admit the Norwegian objection that the Minister’s declaration, though
unconditional and definitive in form, cannot be relied upon against Norway because, if the
Norwegian Minister had been warned of the Danish Government’s intention to extend the
régime of exclusion to the whole of Greenland, his answer would—it is argued—have been
different. The Court finds it difficult to believe that Norway could not have foreseen the
extension of the monopoly. Accordingly, the Court does not agree that the Decree of May
10th, 1921, introducing the régime of exclusion for all Greenland, justified Norway in
changing her attitude. In regard to this particular point, it recalls that as early as December
1921, Denmark announced her willingness to do everything in her power to make
arrangements to safeguard Norwegian subjects against any loss they might incur as a result of
the issue of the Decree, and that the Convention of July 9th, 1924, was a confirmation of
Denmark’s friendly disposition in respect of these Norwegian hunting and fishing interests.
Lastly, the Court is unable to read into the words of the Ihlen declaration “in the settlement of
this question” a condition which would render the promise to refrain from making any
difficulties inoperative should a settlement not be reached. The promise was unconditional
and definitive. It follows that, as a result of the undertaking involved in the Ihlen Declaration
of July 22nd, 1919, Norway is under an obligation to refrain from contesting Danish
sovereignty over Greenland as a whole, and a fortiori to refrain from occupying a part of
Greenland. Denmark also maintains that the Convention of July 9th, 1924, excluded any right
on the part of Norway to occupy a part of Greenland. But the question of the sovereignty and
that of the terra nullius—to mention that point alone—were left entirely outside the
Convention, as is made clear by the notes exchanged on July 9th, 1924, and the Court
accordingly finds that neither Denmark nor Norway can derive support from the Convention
for their respective fundamental standpoints. Finally, Denmark maintains that, under certain
provisions of the Covenant of the League of Nations, of the General Act of Conciliation,
Judicial Settlement and Arbitration of 1928, and of the conventions between Denmark and
Norway for the pacific settlement of disputes, Norway was likewise bound to abstain from
occupying any part of Greenland; she also maintains that the same result ensued from two
agreements said to have been arrived at by the two Parties at the beginning of July 1931, in
the course of the exchange of views which preceded the occupation of July 10th. In view of
the conclusion reached by the Court, there is no need for these questions to be considered.
Each Party prayed the Court to order the other Party to pay the costs in this case. The Court,
however, holds that there is no need to deviate from the general rule laid down in Article 64
of the Statute, namely, that each Party will bear its own costs.

8 (France v. Mexico) (1931) 2 R.I.A.A. 1105.

Remote and tiny Clipperton Atoll is 1,120 kilometers southwest of Mexico. 1 Its land area
forms a circle with an average width of about 200 meters and a circumference of about 12
kilometers, making up about 1.6 square kilometers of land area. If its stagnant brackish-water
interior lagoon is also included it measures about six square kilometers, 12 times larger than
the size of The Mall in Washington, D.C? The Atoll had been located earlier by Spanish
navigators, but was named after the English pirate John Clipperton who was said to have
hidden there in 1705 with 21 other mutineers.3 The French claim of sovereignty over
Clipperton is based on a visit to the atoll in November 1858 by the merchant ship L 'Amiral,
operated by a French shipowner named Lockhart and carrying the French Lieutenant Victor
Ie Coat de Kerveguen who was authorized by Napoleon III to assert sovereignty over guano
islands.4 The crew landed, after considerable difficulty, in a small boat, sampled the guano
deposits (finding that they were not rich in phosphates), and left no permanent plaque on
shore. When L 'Amiral arrived in Honolulu, Hawaii the next month, its crew published a two-
square-inch advertisement in the newspaper of the Kingdom of Hawaii - The
Polynesianproclaiming "that from this day the full sovereignty of Clipperton Island belongs
to His Majesty the Ermperor Napoleon III, his heirs and successors in perpetuity."s No other
public recordation of France's claim was ever made. Because of the poor quality of the guano,
as well as the landing and loading difficulties made by the reef, neither Lockhart nor any
other French citizen ever used the atoll6 and no record exists of any French activity on or
near Clipperton for another 39 years, until 1897. The French took a renewed interest when
they learned that a U.S. company was removing guano from Clipperton and that a British
company had been granted a concession to remove guano from Clipperton by the Mexican
government. Mexico claimed the atoll based on historic links traced back to earlier Spanish
explorers. After a series of diplomatic exchanges, Mexico and France agreed in 1907 to
arbitrate their dispute over the atoll and selected King Victor Emmanuel III of Italy to be
arbitrator in their compromis of 1909.8 Victor Emmanuel did not issue his opinion until
1931, rejecting Mexico's claims of earlier discovery and the view that France had abandoned
its claim based on nonuse and inattention to the atoll, and he awarded the atoll to France
based on its "discovery" of the feature 1858.9 The opinion explained that something more
than mere discovery is normally required to establish ownership, and that typically "effective
occupation" will also be necessary, which occurs "when the state establishes in the territory
itself an organization capable of making its laws respected."lo "Effective occupation" usually
requires a presence in the territory and some exercise of sovereign authority, but the arbitrator
determined that for uninhabited islets these requirements are reduced. All that is necessary is
that "from the first moment when the occupying State makes its appearance there, the
territory is "at the absolute and undisputed disposition of that state.,,11 Although U.S.
citizens had subsequently removed guano from the atoll and British citizens were seeking a
concession from Mexico to do the same, the arbitrator concluded that these actions had not
dislodged the superior French claim based on earlier formal announcement of its claim, done
"in a clear and precise manner.,,12 This decision is sometimes viewed as departing in some
respects from the 1928 arbitral ruling in The Island of Palmas Case, 13 and from decisions on
sovereignty disputes that came later,14 because it focused on the moment of discovery rather
than requiring continuous displays of sovereignty ("effective occupation") on the islet. In
Palmas, for instance, Spain's "discovery" of the disputed island did not confer title because it
was not acompanied by any subsequent occupation or attempts to exercise sovereignty. These
differences may result from the fact that Clipperton was uninhabited, and was determined by
the Emperor to be "territorium nullius,,,15 and therefore susceptible to "discovery," in
contrast to Palmas, which was inhabited, and was therefore not terra nullius.

9. 1961 Convention on the Reduction of Statelessness

Article 7
1.(a) If the law of a Contracting State permits renunciation of nationality, such renunciation
shall not result in loss of nationality unless the person concerned possesses or acquires
another nationality. (b) The provisions of sub-paragraph (a) of this paragraph shall not apply
where their application would be inconsistent with the principles stated in Articles 13 and l4
of the Universal Declaration of Human Rights approved on 10 December 1948 by the
General Assembly of the United Nations.
2. A national of a Contracting State who seeks naturalization in a foreign country shall not
lose his nationality unless he acquires or has been accorded assurance of acquiring the
nationality of that foreign country.
3. Subject to the provisions of paragraphs 4 and 5 of this Article, a national of a Contracting
State shall not lose his nationality, so as to become stateless, on the ground of departure,
residence abroad, failure to register or on any similar ground.
4. A naturalized person may lose his nationality on account of residence abroad for a period,
not less than seven consecutive years, specified by the law of the Contracting State concerned
if he fails to declare to the appropriate authority his intention to retain his nationality.
5. In the case of a national of a Contracting State, born outside its territory, the law of that
State may make the retention of its nationality after the expiry of one year from his attaining
his majority conditional upon residence at that time in the territory of the State or registration
with the appropriate authority.
6. Except in the circumstances mentioned in this Article, a person shall not lose the
nationality of a Contracting State, if such loss would render him stateless, notwithstanding
that such loss is not expressly prohibited by any other provision of this Convention.

10. Universal Declaration of Human Rights

The General Assembly proclaims this Universal Declaration of Human Rights as a common
standard of achievement for all peoples and all nations, to the end that every individual and
every organ of society, keeping this Declaration constantly in mind, shall strive by teaching
and education to promote respect for these rights and freedoms and by progressive measures,
national and international, to secure their universal and effective recognition and observance,
both among the peoples of Member States themselves and among the peoples of territories
under their jurisdiction.
Article 3 :
Everyone has the right to life, liberty and security of person.

11. Universal Declaration of Human Rights

Article 22:
Everyone, as a member of society, has the right to social security and is entitled to
realization, through national effort and international cooperation and in accordance with the
organization and resources of each State, of the economic, social and cultural rights
indispensable for his dignity and the free development of his personality.

12. Customary IHL ,Rule 97. The use of human shields is prohibited ICRC
Rule 97. The use of human shields is prohibited.
Summary: State practice establishes this rule as a norm of customary international law
applicable in both international and non-international armed conflicts.

13. Third Geneva Convention, Article 23

ART. 23. — Security of prisoners
No prisoner of war may at any time be sent to, or detained in areas where he may be exposed
to the fire of the combat zone, nor may his presence be used to render certain points or areas
immune from military operations.
Prisoners of war shall have shelters against air bombardment and other hazards of war, to the
same extent as the local civilian population. With the exception of those engaged in the
protection of their quarters against the aforesaid hazards, they may enter such shelters as soon
as possible after the giving of the alarm. Any other protective measure taken in favour of the
population shall also apply to them.
Detaining Powers shall give the Powers concerned, through the intermediary of the
Protecting Powers, all useful information regarding the geographical location of prisoner of
war camps.
Whenever military considerations permit, prisoner of war camps shall be indicated in the day-
time by the letters PW or PG, placed so as to be clearly visible from the air. The Powers
concerned may, however, agree upon any other system of marking. Only prisoner of war
camps shall be marked as such.

14. Fourth Geneva Convention, Article 28

PART III STATUS AND TREATMENT OF PROTECTED PERSONS

SECTION I PROVISIONS COMMON TO THE TERRITORIES OF THE PARTIES TO
THE CONFLICT AND TO OCCUPIED TERRITORIES
ART. 28. — The presence of a protected person may not be used to render certain points or
areas immune from military operations.

15. Additional Protocol I, Article 51(7)

Article 51 — Protection of the civilian population
1. The civilian population and individual civilians shall enjoy general protection against
dangers arising from military operations. To give effect to this protection, the following rules,
which are additional to other applicable rules of international law,shall be observed in all
circumstances.
2. The civilian population as such, as well as individual civilians, shall not be the object of
attack. Acts or threats of violence the primary purpose of which is to spread terror among the
civilian population are prohibited.
3. Civilians shall enjoy the protection afforded by this Section, unless and for such time as
they take a direct part in hostilities.
4. Indiscriminate attacks are prohibited. Indiscriminate attacks are: a) those which are not
directed at a specific military objective; b) those which employ a method or means of combat
which cannot be directed at a specific military objective; or c) those which employ a method
or means of combat the effects of which cannot be limited as required by this Protocol; and
consequently, in each such case, are of a nature to strike military objectives and civilians or
civilian objects without distinction.
5. Among others, the following types of attacks are to be considered as indiscriminate: a) an
attack by bombardment by any methods or means which treats as a single military objective a
number of clearly separated and distinct military objectives located in a city, town, village or
other area containing a similar concentration of civilians or civilian objects; and 38
ADDITIONAL PROTOCOL I OF 1977 b) an attack which may be expected to cause
incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination
thereof, which would be excessive in relation to the concrete and direct military advantage
anticipated.
6. Attacks against the civilian population or civilians by way of reprisals are prohibited.
7. The presence or movements of the civilian population or individual civilians shall not be
used to render certain points or areas immune from military operations, in particular in
attempts to shield military objectives from attacks or to shield, favour or impede military
operations. The Parties to the conflict shall not direct the movement of the civilian population
or individual civilians in order to attempt to shield military objectives from attacks or to
shield military operations.
8. Any violation of these prohibitions shall not release the Parties to the conflict from their
legal obligations with respect to the civilian population and civilians, including the obligation
to take the precautionary measures provided for in Article 57.

16. Case no ICTY-95-5-D (Official Case No) ICL 755 (ICTY 1995) (OUP reference)
(Karadžić and Mladić case)

Radovan Karadžić has been sentenced to life in prison at an appeal court in The Hague for his
role in mass killings of civilians in the conflict that tore Bosnia apart a quarter century ago.
Five judges at the UN-mandated court upheld the 2016 verdict at the former Bosnian Serb
leader’s first trial almost in its entirety, dismissing all but one of Karadžić’s appeals as “mere
disagreement” with the court’s conclusions rather than valid legal objections.

By a majority of three to two, the judges decided to increase his original 40-year jail term to
life in prison, saying the trial chamber had “abused its discretion” in passing sentence.

The judges upheld the charge of genocide for the July 1995 massacre of more than 7,000
Muslim men and boys at Srebrenica, pointing to an order Karadžić had signed four months
earlier that called for conditions for the city’s people to be made “unbearable with no hope of
further survival”.
Reading the verdict, Judge Vagn Prüsse Joensen said Karadžić had been in constant touch
with his forces on the ground at the fall of Srebrenica. He said he had also failed to rebut the
2016 court ruling that, as commander-in-chief of Bosnian Serb forces, he was obliged to
investigate and punish perpetrators of war crimes.

17. Fourth Geneva Convention of 1949, Article 8

ART. 8. — Non renunciation of rights

Protected persons may in no circumstances renounce in part or in entirety the rights secured
to them by the present Convention, and by the special agreements referred to in the foregoing
Article, if such there be.

18. 2nd Geneva Convention

ART. 7. — Non renunciation of rights

Wounded, sick and shipwrecked persons, as well as members of the medical personnel and
chaplains, may in no circumstances renounce in part or in entirety the rights secured to them
by the present Convention, and by the special agreements referred to in the foregoing Article,
if such there be.
19. Rome Statute of the International Criminal Court, Article 8

Article 8
War crimes
  
1.         The Court shall have jurisdiction in respect of war crimes in particular when
committed as part of a plan or policy or as part of a large-scale commission of such crimes. 
  
2.         For the purpose of this Statute, "war crimes" means:
(a)     Grave breaches of the Geneva Conventions of 12 August 1949, namely, any of
the following acts against persons or property protected under the provisions of the
relevant Geneva Convention:
(i)     Wilful killing;

(ii)     Torture or inhuman treatment, including biological experiments;

(iii)     Wilfully causing great suffering, or serious injury to body or health;

(iv)     Extensive destruction and appropriation of property, not justified by

military necessity and carried out unlawfully and wantonly;

(v)     Compelling a prisoner of war or other protected person to serve in the

forces of a hostile Power;

(vi)     Wilfully depriving a prisoner of war or other protected person of the

rights of fair and regular trial;

(vii)     Unlawful deportation or transfer or unlawful confinement;

(viii)     Taking of hostages. 

 

(b)     Other serious violations of the laws and customs applicable in international
armed conflict, within the established framework of international law, namely, any of
the following acts:
(i)     Intentionally directing attacks against the civilian population as such or
against individual civilians not taking direct part in hostilities;

(ii)     Intentionally directing attacks against civilian objects, that is, objects
which are not military objectives;

(iii)     Intentionally directing attacks against personnel, installations, material,

units or vehicles involved in a humanitarian assistance or peacekeeping
mission in accordance with the Charter of the United Nations, as long as they
are entitled to the protection given to civilians or civilian objects under the
international law of armed conflict;
(iv)     Intentionally launching an attack in the knowledge that such attack will
cause incidental loss of life or injury to civilians or damage to civilian objects
or widespread, long-term and severe damage to the natural environment which
would be clearly excessive in relation to the concrete and direct overall
military advantage anticipated;

(v)     Attacking or bombarding, by whatever means, towns, villages,

dwellings or buildings which are undefended and which are not military
objectives;

(vi)     Killing or wounding a combatant who, having laid down his arms or
having no longer means of defence, has surrendered at discretion;

(vii)     Making improper use of a flag of truce, of the flag or of the military
insignia and uniform of the enemy or of the United Nations, as well as of the
distinctive emblems of the Geneva Conventions, resulting in death or serious
personal injury;

(viii)     The transfer, directly or indirectly, by the Occupying Power of parts of

its own civilian population into the territory it occupies, or the deportation or
transfer of all or parts of the population of the occupied territory within or
outside this territory;

(ix)     Intentionally directing attacks against buildings dedicated to religion,

education, art, science or charitable purposes, historic monuments, hospitals
and places where the sick and wounded are collected, provided they are not
military objectives;

(x)     Subjecting persons who are in the power of an adverse party to physical
mutilation or to medical or scientific experiments of any kind which are
neither justified by the medical, dental or hospital treatment of the person
concerned nor carried out in his or her interest, and which cause death to or
seriously endanger the health of such person or persons;

(xi)     Killing or wounding treacherously individuals belonging to the hostile

nation or army;

(xii)     Declaring that no quarter will be given;

(xiii)     Destroying or seizing the enemy's property unless such destruction or

seizure be imperatively demanded by the necessities of war;

(xiv)     Declaring abolished, suspended or inadmissible in a court of law the

rights and actions of the nationals of the hostile party;

(xv)     Compelling the nationals of the hostile party to take part in the
operations of war directed against their own country, even if they were in the
belligerent's service before the commencement of the war;

(xvi)     Pillaging a town or place, even when taken by assault;

 (xvii)     Employing poison or poisoned weapons;

(xviii)     Employing asphyxiating, poisonous or other gases, and all analogous

liquids, materials or devices;

(xix)     Employing bullets which expand or flatten easily in the human body,
such as bullets with a hard envelope which does not entirely cover the core or
is pierced with incisions;

(xx)     Employing weapons, projectiles and material and methods of warfare

which are of a nature to cause superfluous injury or unnecessary suffering or
which are inherently indiscriminate in violation of the international law of
armed conflict, provided that such weapons, projectiles and material and
methods of warfare are the subject of a comprehensive prohibition and are
included in an annex to this Statute, by an amendment in accordance with the
relevant provisions set forth in articles 121 and 123;

(xxi)     Committing outrages upon personal dignity, in particular humiliating

and degrading treatment;

(xxii)     Committing rape, sexual slavery, enforced prostitution, forced

pregnancy, as defined in article 7, paragraph 2 (f), enforced sterilization, or
any other form of sexual violence also constituting a grave breach of the
Geneva Conventions;

(xxiii)     Utilizing the presence of a civilian or other protected person to

render certain points, areas or military forces immune from military
operations;

(xxiv)     Intentionally directing attacks against buildings, material, medical

units and transport, and personnel using the distinctive emblems of the Geneva
Conventions in conformity with international law;

(xxv)     Intentionally using starvation of civilians as a method of warfare by

depriving them of objects indispensable to their survival, including wilfully
impeding relief supplies as provided for under the Geneva Conventions;

(xxvi)     Conscripting or enlisting children under the age of fifteen years into
the national armed forces or using them to participate actively in hostilities. 
 

(c)     In the case of an armed conflict not of an international character, serious

violations of article 3 common to the four Geneva Conventions of 12 August 1949,
namely, any of the following acts committed against persons taking no active part in
the hostilities, including members of armed forces who have laid down their arms and
those placed hors de combat by sickness, wounds, detention or any other cause: 
 
(i)     Violence to life and person, in particular murder of all kinds, mutilation,
cruel treatment and torture;
 (ii)     Committing outrages upon personal dignity, in particular humiliating
and degrading treatment;

(iii)     Taking of hostages;

(iv)     The passing of sentences and the carrying out of executions without
previous judgement pronounced by a regularly constituted court, affording all
judicial guarantees which are generally recognized as indispensable. 
 

(d)     Paragraph 2 (c) applies to armed conflicts not of an international character and
thus does not apply to situations of internal disturbances and tensions, such as riots,
isolated and sporadic acts of violence or other acts of a similar nature.

(e)     Other serious violations of the laws and customs applicable in armed conflicts
not of an international character, within the established framework of international
law, namely, any of the following acts: 
 

(i)     Intentionally directing attacks against the civilian population as such or

against individual civilians not taking direct part in hostilities;

(ii)     Intentionally directing attacks against buildings, material, medical units

and transport, and personnel using the distinctive emblems of the Geneva
Conventions in conformity with international law;

(iii)     Intentionally directing attacks against personnel, installations, material,

units or vehicles involved in a humanitarian assistance or peacekeeping
mission in accordance with the Charter of the United Nations, as long as they
are entitled to the protection given to civilians or civilian objects under the
international law of armed conflict;

(iv)     Intentionally directing attacks against buildings dedicated to religion,

education, art, science or charitable purposes, historic monuments, hospitals
and places where the sick and wounded are collected, provided they are not
military objectives;

(v)     Pillaging a town or place, even when taken by assault;

(vi)     Committing rape, sexual slavery, enforced prostitution, forced

pregnancy, as defined in article 7, paragraph 2 (f), enforced sterilization, and
any other form of sexual violence also constituting a serious violation of
article 3 common to the four Geneva Conventions;

(vii)     Conscripting or enlisting children under the age of fifteen years into
armed forces or groups or using them to participate actively in hostilities;

(viii)     Ordering the displacement of the civilian population for reasons

related to the conflict, unless the security of the civilians involved or
imperative military reasons so demand;
 (ix)     Killing or wounding treacherously a combatant adversary;

(x)     Declaring that no quarter will be given;

(xi)     Subjecting persons who are in the power of another party to the conflict
to physical mutilation or to medical or scientific experiments of any kind
which are neither justified by the medical, dental or hospital treatment of the
person concerned nor carried out in his or her interest, and which cause death
to or seriously endanger the health of such person or persons;

(xii)     Destroying or seizing the property of an adversary unless such

destruction or seizure be imperatively demanded by the necessities of the
conflict; 
 

(f)       Paragraph 2 (e) applies to armed conflicts not of an international character and
thus does not apply to situations of internal disturbances and tensions, such as riots,
isolated and sporadic acts of violence or other acts of a similar nature. It applies to
armed conflicts that take place in the territory of a State when there is protracted
armed conflict between governmental authorities and organized armed groups or
between such groups.

3.         Nothing in paragraph 2 (c) and (e) shall affect the responsibility of a Government to
maintain or re-establish law and order in the State or to defend the unity and territorial
integrity of the State, by all legitimate means. 

20. Universal Declaration of Human Rights

The General Assembly proclaims this Universal Declaration of Human Rights as a common
standard of achievement for all peoples and all nations, to the end that every individual and
every organ of society, keeping this Declaration constantly in mind, shall strive by teaching
and education to promote respect for these rights and freedoms and by progressive measures,
national and international, to secure their universal and effective recognition and observance,
both among the peoples of Member States themselves and among the peoples of territories
under their jurisdiction.
Article 5:
No one shall be subjected to torture or to cruel, inhuman or degrading treatment or
punishment

21. Jus cogens or peremptory norms of international law are those norms of customary law
from which no derogation is allowed (even through treaties).
Elements of Jus Cogens in Judicial Decisions :
As mentioned earlier, jus cogens has been referred to in a number of judgments of both the
Permanent Court of International Justice and the International Court of Justice as well as in
dissenting and separate opinions of various judges.
In earlier cases, however, the Court had not sought to clarify the nature, requirements, content
or consequences of jus cogens and had been content to simply refer to jus cogens. A typical
example in this regard is the Court’s observations on the prohibition on the use of force in the
Military and Paramilitary Activities case. The Court referred to the fact that the prohibition
on the use of force is often referred to by states as being “a fundamental or cardinal principle
of [customary international] law”, that the Commission has referred to “the law of the Charter
concerning the prohibition” as a “conspicuous example of a rule of international law having
the character of jus cogens”, and that both parties to the dispute referred to its jus cogens
status. The Court itself, however, did not state expressly that it viewed the prohibition on the
use of force as constituting a norm of jus cogens.
In more recent cases, however, the Court has been more willing to characterise certain norms
as jus cogens and to engage more with the intricacies of jus cogens. In Questions Relating to
the Obligation to Extradite or Prosecute, for example, the Court states that “the prohibition of
torture is part of customary international law and it has become a peremptory norm (jus
cogens)”.Further, the Court indicated that the prohibition was “grounded in a widespread
international practice and on the opinio juris of States,” that it appeared “in numerous
international instruments of universal application”, that “it hasbeen introduced into the
domestic law of almost all States”, and that “acts of torture are regularly denounced within
national and international fora”.
In the Jurisdictional Immunities of the State case, the Court considered various aspects of jus
cogens, including its relationship with sovereign immunity from jurisdiction. It held that,
because rules of immunities and possible jus cogens norms of the law of armed conflict
“address different matters”, there was no conflict between them. According to the Court,
immunities are procedural in nature, regulating the exercise of national jurisdiction in respect
of particular conduct, and not the lawfulness of the conduct being proscribed by jus cogens.
There could, therefore, be no conflict between immunity and jus cogens. The Court draws a
firm distinction between the substantive prohibition on state conduct constituting jus cogens
and the procedural immunity states enjoy from national jurisdiction, holding that they operate
on different planes such that they cannot be in conflict even in cases where “a means by
which a jus cogens rule might be enforced was rendered unavailable”. In addition to
addressing the issue of the relationship between immunity and jus cogens, the Court’s
judgment also suggests that the prohibition of crimes against humanity constitutes jus cogens.
A similar view of the relationship between jus cogens and procedural rules is adopted by the
Court in Armed Activities on the Territory of the Congo (DRC v. Rwanda), where the Court
found that the fact that a matter related to a jus cogens norm, in that case the prohibition on
genocide, “cannot of itself provide a basis for the jurisdiction of the Court to entertain the
dispute”.The Court’s reasoning in these cases could be interpreted as suggesting that
international rules unrelated to the legality of the underlying conduct are not affected by the
fact that the prohibition of that conduct is jus cogens. In any event, these recent cases address
the issue of the relationship between jus cogens and other rules of international law in a way
that could assist the Commission in systematising the rules of international law in this area.
22. Universal Declaration of Human Rights

The General Assembly proclaims this Universal Declaration of Human Rights as a common
standard of achievement for all peoples and all nations, to the end that every individual and
every organ of society, keeping this Declaration constantly in mind, shall strive by teaching
and education to promote respect for these rights and freedoms and by progressive measures,
national and international, to secure their universal and effective recognition and observance,
both among the peoples of Member States themselves and among the peoples of territories
under their jurisdiction.
Article 9:
No one shall be subjected to arbitrary arrest, detention or exile.

23. CHARTER OF THE UNITED NATIONS 1945

CHAPTER I PURPOSES AND PRINCIPLES
Article 1 The Purposes of the United Nations are:
1. To maintain international peace and security, and to that end: to take effective collective
measures for the prevention and removal of threats to the peace, and for the suppression of
acts of aggression or other breaches of the peace, and to bring about by peaceful means, and
in conformity with the principles of justice and international law, adjustment or settlement of
international disputes or situations which might lead to a breach of the peace
2. To develop friendly relations among nations based on respect for the principle of equal
rights and self-determination of peoples, and to take other appropriate measures to strengthen
universal peace.
3. To achieve international cooperation in solving international problems of an economic,
social, cultural, or humanitarian character, and in promoting and encouraging respect for
human rights and for fundamental freedoms for all without distinction as to race, sex,
language, or religion.
4. To be a center for harmonizing the actions of nations in the attainment of these common
ends.

24. Montevideo Convention On Rights And Duties Of States Signed At Montevideo,

December 26, 1933 :
Convention On Rights And Duties Of States :
The Governments represented in the Seventh International Conference of American States:
ARTICLE 10 :
The primary interest of states is the conservation of peace. Differences of any nature which
arise between them should be settled by recognized pacific methods.

25. Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment :

Article 2
1. Each State Party shall take effective legislative, administrative, judicial or other measures
to prevent acts of torture in any territory under its jurisdiction.
2. No exceptional circumstances whatsoever, whether a state of war or a threat of war,
internal political instability or any other public emergency, may be invoked as a justification
of torture.
3. An order from a superior officer or a public authority may not be invoked as a justification
of torture.

26. Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment
PART I
Article 1
1. For the purposes of this Convention, the term "torture" means any act by which severe pain
or suffering, whether physical or mental, is intentionally inflicted on a person for such
purposes as obtaining from him or a third person information or a confession, punishing him
for an act he or a third person has committed or is suspected of having committed, or
intimidating or coercing him or a third person, or for any reason based on discrimination of
any kind, when such pain or suffering is inflicted by or at the instigation of or with the
consent or acquiescence of a public official or other person acting in an official capacity. It
does not include pain or suffering arising only from, inherent in or incidental to lawful
sanctions.
2. This article is without prejudice to any international instrument or national legislation
which does or may contain provisions of wider application.

27. Charter Of The United Nations And Statute Of The International Court Of Justice:
Article 2 The Organization and its Members, in pursuit of the Purposes stated in Article 1,
shall act in accordance with the following Principles.
1. The Organization is based on the principle of the sovereign equality of all its Members.
2. All Members, in order to ensure to all of them the rights and benefits resulting from
membership, shall fulfil in good faith the obligations assumed by them in accordance with the
present Charter.
3. All Members shall settle their international disputes by peaceful means in such a manner
that international peace and security, and justice, are not endangered.
4. 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.