NEW ERA UNIVERSITY BARCELLENO, JOBELLE L.

COLLEGE OF LAW JD Non-Thesis

S.Y. 2020-2021

TABLE OF CONTENTS

Guide Questions…………………………………………………………………………1

Military and Paramilitary Activities in and against Nicaragua

Nicaragua v US, ICJ Reports, 27 June 1986…………………………………………….3

North Sea Continental Shelf Cases

Germany/Denmark and Germany/Netherlands, ICJ Reports, 20 February 1969……….4

Asylum Case
Columbia v Peru, ICJ Reports, 20 November 1950……………………………………..5

Nuclear Test Case, ICJ Reports

New Zealand v France, 1974…………………………………………………………….6

Nuclear Test Case, ICJ Reports

Australia v France, 1974 (Sep. Op. Judge Petren)……………………………………….7

Request for Re-examination

Nuclear Test Case, ICJ Reports New Zealand v France, 1995…………………………..8

Fisheries Jurisdiction Case

United Kingdom v Iceland, ICJ Reports, 1974…………………………………………..9

Case Concerning the Right of Passage Over Indian Territory

Portugal v India, ICJ Reports, 12 April 1960…………………………………………..10

Legality of the Treat or Use of Nuclear Weapons, Advisory Opinion

1996 ICJ Reports 226, 8 July 1996……………………………………………………..11

Reservation to the 1948 Convention on the Prevention and Punishment of the Crime of
Genocide, Advisory Opinion, ICJ Reports 1951……………………………………….12

Interpretation of Peace Treaties Case

Second Phase, Advisory Opinion, ICJ Reports, 1950, 221…………………………….13

Gabcikovo-Nagymaros Project Case

Hungary/Slovakia, ICJ Reports, 1997………………………………………………….15

Temple of Preah Vihear Case

Cambodia v Thailand, ICJ Reports, 15 June 1962……………………………………..16

Corfu Channel Case, ICJ Reports, 9 April 1949………………………………………..17

Barcelona Traction, Light and Power Company Case, ICJ Reports, 1970……………..18

South-West Africa Cases

Ethiopia v South Africa; Liberia v South Africa, Second Phase, 18 July 1966……..…19
Module 2.
1. Is international law – law?
- It is a law because it has a certain procedural and substantive rules to follow. It
regulates certain international acts conducted worldwide. It is a law because
world nations have something to use separately and to share communally based
on general principles of international law. International law regulates the
relationships between states, international organizations and individuals across
the globe.
2. What are the bases of international law?
- The roots of international law go deep into history and evidence of treaties,
immunities of ambassadors, usages of war, etc. can be found in ancient Egypt,
India, the Greek and Roman empires. The present day international law owes its
origin to the great jurist Grotius whose work De jure Belli ac Paces (1625) lent
legal basis to many areas of international relations. His main idea is that there are
certain eternal, unchangeable and independent rules of law which have roots in
human reason. This law of reason is called by him as Natural Law.
3. What is meant by “jus cogens”?
- The principles which form the norms of international law that cannot be set
aside.
4. What is meant by “erga omnes”?
- Latin word which means “towards all” or “towards everyone”. Rights and
obligations are owed toward all.
5. What is meant by “opinio jures”?
- Latin phrase which means “an opinion of law or necessity.”
6. What are the sources of international law?
- The sources of International Law are treaties, customary international law
derived from the practice of States, general principles of law recognized by
civilized nations; and subsidiary means for the determination of rules of
international law and judicial decisions and the writings of the most highly
qualified publicists.
7. Is there a hierarchy of this sources?
- In international law there is no hierarchy of sources or rules, at least as between
the two primary law-creating processes, that is, custom and treaty. Both these
processes and the sets of rules created through them possessed equal rank and
status. The reason for this state of affairs is that States did not intend to place
limitations on their sovereign powers that they had not expressly or implicitly
accepted. However, a special class of general rules made by custom has been
endowed with a special legal force: they are peremptory in nature and make up
the so-called jus cogens, in that they may not be derogated from by treaty (or by
ordinary customary process); if they are, the derogating rules may be declared
null and void. Thus, these peremptory norms have a rank and status superior to
those of all the other rules of the international community. This chapter discusses
the emergence of jus cogens; establishment and the scope of jus cogens;
instances of peremptory norms; the limitations of jus cogens as envisaged in the
Vienna Convention; partial remedies to those limitations, provided by customary
international law; the legal effects of jus cogens; the limited reliance on jus
cogens in international dealings; and national cases using jus cogens as a ratio
decidendi and national legislation relying upon the same notion.
8. Distinguish soft law from hard law.
- The soft law is used to denote agreements, principles and declarations that are
not legally binding. Soft law is predominantly found in the internationals sphere.
On the other hand, hard law refers generally to legal obligations that are binding
on the parties involved and which can be legally enforced before a court.
9. How do we distinguish private international law from public international law?
- Public international law refers to all the legal rules governing international
relations between public entities such as States and international organizations.
Page1

In order to settle a public international law dispute, it is the International Court

of Justice (ICJ) sitting in The Hague (Netherlands) that may be seized. The
 International Court of Justice is the principal judicial organ of the United
Nations.
- The main concept of private international law is the “foreign element”. Private
international law is the area of law that comes into play whenever a court is
faced with a question that contains a foreign element, or a foreign connection.
The mere presence of such a foreign element in a legal matter raises a number of
questions and it is the function of private international law to provide an answer
to these questions and to ensure just solutions.
10. Is there collective responsibility for breach of international law?
- International persons only share responsibility when they contribute to an
indivisible injury of another person. This Principle delimits the scope of the
complex cases that the Principles address. One or more internationally wrongful
acts that do not contribute to an indivisible injury do not fall within the scope of
the present Principles. For the purposes of the present Principles, responsibility
is only shared when one or more wrongful acts contribute to an indivisible
injury.
11. What is the extent of state’s freedom of action?
- Law is what sovereigns command, and it cannot limit their power: sovereign
power is absolute. In the international sphere this condition led to a perpetual
state of war, as sovereigns tried to impose their will by force on all other
sovereigns. This situation has changed little over time, with sovereign states
continuing to claim the right to be judges in their own controversies, to enforce
by war their own conception of their rights, to treat their own citizens in any way
that suits them, and to regulate their economic life with complete disregard for
possible repercussions in other states.
- During the 20th century important restrictions on the freedom of action of states
began to appear. The Hague conventions of 1899 and 1907 established detailed
rules governing the conduct of wars on land and at sea. The Covenant of the
League of Nations, the forerunner of the United Nations (UN), restricted the
right to wage war, and the Kellogg-Briand Pact of 1928 condemned recourse to
war for the solution of international controversies and its use as an instrument of
national policy. They were followed by the UN Charter, which imposed the duty
on member states to “settle their international disputes by peaceful means in
such a manner that international peace and security, and justice, are not
endangered” and supplemented it with the injunction that all members “shall
refrain in their international relations from the threat or use of force” (Article 2).
However, the Charter also stated that the UN is “based on the principle of
sovereign equality of all its Members.”
Page2

Military and Paramilitary Activities in and against Nicaragua

Bedaso, Defedo, Nature of International Law: Is International Law a Law?
International Law: Definitions, Nature and Basis
Sources of International Law: An Introduction by Professor Christopher Greenwood
The Hierarchy of Rules in International Law: the Role of Jus Cogens
www.ecchr.eu
Nicaragua v US, ICJ Reports, 27 June 1986

Facts:
In July 1979, the Government of President Somoza was replaced by a government
installed by Frente Sandinista de Liberacion Nacional (FSLN). Supporters of the former
Somoza Government and former members of the National Guard opposed the new
government. The US – initially supportive of the new government – changed its attitude
when, according to the United States, it found that Nicaragua was providing logistical
support and weapons to guerrillas in El Salvador. In April 1981 the United States
stopped its aid to Nicaragua and in September 1981, according to Nicaragua, the United
States “decided to plan and undertake activities directed against Nicaragua”.

The armed activities against the new Government was carried out mainly by (1) Fuerza
Democratica Nicaragüense (FDN), which operated along the border with Honduras, and
(2) Alianza Revolucionaria Democratica (ARDE), which operated along the border with
Costa Rica. Initial US support to these groups fighting against the Nicaraguan
Government (called “contras”) was covert. Later, the United States officially
acknowledged its support (for example: In 1983 budgetary legislation enacted by the
United States Congress made specific provision for funds to be used by United States
intelligence agencies for supporting “directly or indirectly military or paramilitary
operations in Nicaragua”).

Nicaragua also alleged that the United States is effectively in control of the contras, the
United States devised their strategy and directed their tactics, and that the contras were
paid for and directly controlled by the United States. Nicaragua also alleged that some
attacks against Nicaragua were carried out, directly, by the United States military – with
the aim to overthrow the Government of Nicaragua. Attacks against Nicaragua included
the mining of Nicaraguan ports, and other attacks on ports, oil installations, and a naval
base. Nicaragua alleged that aircrafts belonging to the United States flew over
Nicaraguan territory to gather intelligence, supply to the contras in the field, and to
intimidate the population.

Issues:
Did the US violate its customary international law obligation not to intervene in the
affairs of another State, when it trained, armed, equipped, and financed the contra forces
or when it encouraged, supported, and aided the military and paramilitary activities
against Nicaragua?
Did the US violate its customary international law obligation not to use force against
another State, when it directly attacked Nicaragua in 1983 and 1984 and when its
activities in point (1) above resulted in the use of force?
Can the military and paramilitary activities that the US undertook in and against
Nicaragua be justified as collective self-defence?
Did the US breach its customary international law obligation not to violate the
sovereignty of another State, when it directed or authorized its aircrafts to fly over the
territory of Nicaragua and because of acts referred to in (2) above?
Did the USs breach its customary international law obligations not to violate the
sovereignty of another State, not to intervene in its affairs, not to use force against
another State and not to interrupt peaceful maritime commerce, when it laid mines in the
internal waters and in the territorial sea of Nicaragua?

Decision:
The US violated customary international law in relation to (1), (2), (4) and (5) above.
On (3), the Court found that the United States could not rely on collective self-defence
to justify its use of force against Nicaragua.
Page1

North Sea Continental Shelf Cases

Germany/Denmark and Germany/Netherlands, ICJ Reports, 20 February 1969

Facts:
Netherlands and Denmark had drawn partial boundary lines based on the equidistance
principle (A-B and C-D). An agreement on further prolongation of the boundary proved
difficult because Denmark and Netherlands wanted this prolongation to take place based
on the equidistance principle (B-E and D-E) where as Germany was of the view that,
together, these two boundaries would produce an inequitable result for her. Germany
stated that due to its concave coastline, such a line would result in her loosing out on her
share of the continental shelf based on proportionality to the length of its North Sea
coastline. The Court had to decide the principles and rules of international law
applicable to this delimitation. In doing so, the Court had to decide if the principles
espoused by the parties were binding on the parties either through treaty law or
customary international law.

Issue:
Is Germany under a legal obligation to accept the equidistance-special circumstances
principle, contained in Article 6 of the Geneva Convention on the Continental Shelf of
1958, either as a customary international law rule or on the basis of the Geneva
Convention?

Decision:
The use of the equidistance method had not crystalized into customary law and the
method was not obligatory for the delimitation of the areas in the North Sea related to
the present proceedings.

Page2

Asylum Case
Columbia v Peru, ICJ Reports, 20 November 1950
Bedaso, Defedo, Nature of International Law: Is International Law a Law?
International Law: Definitions, Nature and Basis
Sources of International Law: An Introduction by Professor Christopher Greenwood
The Hierarchy of Rules in International Law: the Role of Jus Cogens
www.ecchr.eu
Facts:
Peru issued an arrest warrant against Victor Raul Haya de la Torre “in respect of the
crime of military rebellion” which took place on October 3, 1949, in Peru. 3 months
after the rebellion, Torre fled to the Colombian Embassy in Lima, Peru. The Colombian
Ambassador confirmed that Torre was granted diplomatic asylum in accordance with
Article 2(2) of the Havana Convention on Asylum of 1928 and requested safe passage
for Torre to leave Peru. Subsequently, the Ambassador also stated Colombia had
qualified Torre as a political refugee in accordance with Article 2 Montevideo
Convention on Political Asylum of 1933 (note the term refugee is not the same as the
Refugee Convention of 1951). Peru refused to accept the unilateral qualification and
refused to grant safe passage.

Issues:
Is Colombia competent, as the country that grants asylum, to unilaterally qualify the
offence for the purpose of asylum under treaty law and international law?
In this specific case, was Peru, as the territorial State, bound to give a guarantee of safe
passage?
Did Colombia violate Article 1 and 2 (2) of the Convention on Asylum of 1928
(hereinafter called the Havana Convention) when it granted asylum and is the continued
maintenance of asylum a violation of the treaty?

Decision:
The Court stated that in the normal course of granting diplomatic asylum a diplomatic
representative has the competence to make a provisional qualification of the offence (for
example, as a political offence) and the territorial State has the right to give consent to
this qualification. In the Torre’s case, Colombia has asserted, as the State granting
asylum, that it is competent to qualify the nature of the offence in a unilateral and
definitive manner that is binding on Peru. The court had to decide if such a decision was
binding on Peru either because of treaty law (in particular the Havana Convention of
1928 and the Montevideo Convention of 1933), other principles of international law or
by way of regional or local custom.

The Court held that there was no expressed or implied right of unilateral and definitive
qualification of the State that grants asylum under the Havana Convention or relevant
principles of international law (p. 12, 13). The Montevideo Convention of 1933, which
accepts the right of unilateral qualification, and on which Colombia relied to justify its
unilateral qualification, was not ratified by Peru. The Convention, per say, was not
binding on Peru and considering the low numbers of ratifications the provisions of the
latter Convention cannot be said to reflect customary international law (p. 15).

Colombia also argued that regional or local customs support the qualification. The court
held that the burden of proof on the existence of an alleged customary law rests with the
party making the allegation:

“The Party which relies on a custom of this kind must prove that this custom is
established in such a manner that it has become binding on the other Party… (that) it is
in accordance with a (1) constant and uniform usage (2) practiced by the States in
question, and that this usage is (3) the expression of a right appertaining to the State
granting asylum (Colombia) and (4) a duty incumbent on the territorial State (in this
case, Peru). This follows from Article 38 of the Statute of the Court, which refers to
international custom “as evidence of a general practice accepted as law(text in brackets
added).”

Nuclear Test Case, ICJ Reports

Page1

New Zealand v France, 1974

Facts:
A series of nuclear tests was completed by France (D) in the South Pacific. This action
made Australia and New Zealand (P) to apply to the I.C.J. demanding that France (D)
cease testing immediately. Before the case could be completed, France (D) announced it
had completed the test and did not plan any further test. So France (D) moved for the
dismissal of the application.

Issue:
May declaration made through unilateral act has effect of creating legal obligations?

Decision:
Yes. Declaration made through unilateral acts may have the effect of creating legal
obligations. In this case, the statement made by the President of France must be held to
constitute an engagement of the State in regard to the circumstances and intention with
which they were made. Therefore, these statement made by the France (D) are relevant
and legally binding. Application was dismissed.

Nuclear Test Case, ICJ Reports

Page2

Australia v France, 1974 (Sep. Op. Judge Petren)

Bedaso, Defedo, Nature of International Law: Is International Law a Law?

International Law: Definitions, Nature and Basis
Sources of International Law: An Introduction by Professor Christopher Greenwood
The Hierarchy of Rules in International Law: the Role of Jus Cogens
www.ecchr.eu
SEPARATE OPINION OF JUDGE PETREN

If I have been able to vote for the Judgment, it is because its operative paragraph finds
that the claim is without object and that the Court is not called upon to give a decision
thereon. As my examination of the case has led me to the same conclusion, but on
grounds which do not coincide with the reasoning of the Judgment, I append this
separate opinion.

The case which the Judgment brings to an end has not advanced beyond the preliminary
stage in which the questions of the jurisdiction of the Court and the admissibility of the
Application fall to be resolved. Australia's request for the indication of interim measures
of protection could not have had the consequence of suspending the Court's obligation
to consider the preliminary questions of jurisdiction and admissibility as soon as
possible. On the contrary, that request having been granted, it was particularly urgent
that the Court should decide whether it had been validly seised of the case. Any delay in
that respect meant the prolongation, embarrassing to the Court and to the Parties, of
uncertainty concerning the fulfilment of an absolute condition for the justification of any
indication of interim measures of protection.

In this situation, it was highly imperative that the provisions of the Rules of Court which
were revised not so long ago for the purpose of accelerating proceedings should be
strictly applied. Only recently, moreover, on 22 November 1974, the General Assembly
of the United Nations adopted, on the item concerning a review of the Court's role,
resolution 3232 (XXIX), of which one preambular paragraph recalls how the Court has
amended its Rules in order to facilitate recourse to it for the judicial settlement of
disputes, inter alia, by reducing the likelihood of delays. Among the reasons put forward
by the Court itself to justify revision of the Rules, there was the necessity of adapting its
procedure to the pace of world events (I.C.J. Yearbook 1967-1968, p. 87). Now if ever,
in this atomic age, there was a case which demanded to be settled in accordance with the
pace of world events, it is this one. The Court nevertheless, in its Order of 22 June 1973
FN1 indicating interim measures of protection, deferred the continuance of its
examination of the questions [p 299] of jurisdiction and admissibility, concerning which
it held, in one of the consideranda to the Order, that it was necessary to resolve them as
soon as possible.

FN1 Having voted against the resolution whereby the Court, on 24 March 1974, decided
to close the enquiry into the premature disclosure of its decision, as also of the voting-
figures, before the Order of 22 June 1973 was read at a public sitting, I wish to state my
opinion that the enquiry referred to was one of a judicial character and that its
continuance on the bases already acquired should have enabled the Court to get closer to
the truth. I did not agree with the decision whereby the Court excluded from publication,
in the volume of Pleadings, Oral Arguments, Documents to be devoted to the case,
certain documents which to my mind are important for the comprehension of the
incident and the search for its origins.

Request for Re-examination

Nuclear Test Case, ICJ Reports
Page1

New Zealand v France, 1995

Request for an Examination of the Situation in Accordance with Paragraph 63 of the
Court's Judgment of 20 December 1974 in the Nuclear Tests (New Zealand v. France)
Case

OVERVIEW OF THE CASE

On 21 August 1995, the New Zealand Government filed in the Registry a document
entitled “Request for an Examination of the Situation” in which reference was made to a
“proposed action announced by France which will, if carried out, affect the basis of the
Judgment rendered by the Court on 20 December 1974 in the Nuclear Tests (New
Zealand v. France) case”, namely “a decision announced by France in a media statement
of 13 June 1995” by the President of the French Republic, according to which “France
would conduct a final series of eight nuclear weapons tests in the South Pacific starting
in September 1995”. In that Request, the Court was reminded that, at the end of its 1974
Judgment, it had found that it was not called upon to give a decision on the claim
submitted by New Zealand in 1973, that claim no longer having any object, by virtue of
the declarations by which France had undertaken not to carry out further atmospheric
nuclear tests. That Judgment contained a paragraph 63 worded as follows

“Once the Court has found that a State has entered into a commitment concerning its
future conduct it is not the Court’s function to contemplate that it will not comply with
it. However, the Court observes that if the basis of this Judgment were to be affected,
the Applicant could request an examination of the situation in accordance with the
provisions of the Statute . . .”

New Zealand asserted that this paragraph gave it the “right”, in such circumstances, to
request “the resumption of the case begun by application on 9 May 1973”, and observed
that the operative part of the Judgment concerned could not be construed as showing
any intention on the part of the Court definitively to close the case. On the same day, the
New Zealand Government also filed in the Registry a “Further Request for the
Indication of Provisional Measures” in which reference was made, inter alia, to the
Order for the indication of provisional measures made by the Court on 22 June 1973,
which was principally aimed at ensuring that France would refrain from conducting any
further nuclear tests at Mururoa and Fangataufa Atolls.

After holding public hearings on 11 and 12 September 1995, the Court made its Order
on 22 September 1995. The Court found that, when inserting into paragraph 63 the
sentence “the Applicant could request an examination of the situation in accordance
with the provisions of the Statute”, it had not excluded a special procedure for access to
it (unlike those mentioned in the Court’s Statute, such as the filing of a new application,
or a request for interpretation or revision, which would have been open to the Applicant
in any event) ; however, it found that that special procedure would only be available to
the Applicant if circumstances were to arise which affected the basis of the 1974
Judgment. And that, it found, was not the case, as the decision announced by France in
1995 had related to a series of underground tests, whereas the basis of the Judgment of
1974 was France’s undertaking not to conduct any further atmospheric nuclear tests.
Consequently, New Zealand’s Request for provisional measures and the Applications
for permission to intervene submitted by Australia, Samoa, Solomon Islands, the
Marshall Islands and the Federated States of Micronesia as well as the Declarations of
Intervention made by the last four States, all of which were proceedings incidental to
New Zealand’s main request, likewise had to be dismissed.

Fisheries Jurisdiction Case

United Kingdom v Iceland, ICJ Reports, 1974
Page2

Facts:
Bedaso, Defedo, Nature of International Law: Is International Law a Law?
International Law: Definitions, Nature and Basis
Sources of International Law: An Introduction by Professor Christopher Greenwood
The Hierarchy of Rules in International Law: the Role of Jus Cogens
www.ecchr.eu
Iceland’s (D) claim to a 12-mile fisheries limit was recognized by the United Kingdom
(P) in 1961 in return for Iceland’s (D) agreement that any dispute concerning Icelandic
fisheries jurisdiction beyond the 12-mile limit be referred to the International Court of
Justice. An application was filed before the I.C.J. when Iceland (D) proposed to extend
its exclusive fisheries jurisdiction from 12 to 50 miles around its shores in 1972. By
postulating that changes in circumstances since the 12-mile limit was now generally
recognized was the ground upon which Iceland (D) stood to argue that the agreement
was no longer valid. Iceland (D) also asserted that there would be a failure of
consideration for the 1961 agreement.

Issue:
In order that a change of circumstances may give rise to a ground for invoking the
termination of a treaty, is it necessary that it has resulted in a radical transformation of
the extent of the obligation still to be performed?

Decision:
Yes. In order that a change of circumstances may give rise to the premise calling for the
termination of a treaty, it is necessary that it has resulted in a radical transformation of
the extent of the obligations still to be performed.
The change of circumstances alleged by Iceland (D) cannot be said to have transformed
radically the extent of the jurisdictional obligation that was imposed in the 1961
Exchange of Notes.

Case Concerning the Right of Passage Over Indian Territory

Portugal v India, ICJ Reports, 12 April 1960
Page1

Facts:
The Portuguese possessions in India included the two enclaves of Dadra and Nagar-
Aveli which, in mid-1954, had passed under an autonomous local administration.
Portugal claimed that it had a right of passage to those enclaves and between one
enclave and the other to the extent necessary for the exercise of its sovereignty and
subject to the regulation and control of India; it also claimed that, in July 1954, contrary
to the practice previously followed, India had prevented it from exercising that right and
that that situation should be redressed.

Issue:
Does Portugal have a right to free passage over Indian territory to access its enclaves?

Decision:
A right of passage for non-military civilians exists as a rule of regional customary
international law between India and Portugal.

Reasons:
India argued before the Court that practice between only two states was not sufficient to
form a local custom. The Court rejected this reasoning, finding no reason why a century
and a quarter of practice based on mutual rights and obligations was insufficient for
local custom to arise. This local practice, thus, prevailed over any general rules.

Legality of the Treat or Use of Nuclear Weapons, Advisory Opinion

1996 ICJ Reports 226, 8 July 1996
Page2

THE COURT

Bedaso, Defedo, Nature of International Law: Is International Law a Law?

International Law: Definitions, Nature and Basis
Sources of International Law: An Introduction by Professor Christopher Greenwood
The Hierarchy of Rules in International Law: the Role of Jus Cogens
www.ecchr.eu
(1) By thirteen votes to one,

Decides to comply with the request for an advisory opinion; [...]

(2) Replies in the following manner to the question put by the General Assembly:

A. Unanimously,
There is in neither customary nor conventional international law any specific
authorization of the threat or use of nuclear weapons;

B. By eleven votes to three,

There is in neither customary nor conventional international law any comprehensive and
universal prohibition of the threat or use of nuclear weapons as such;

IN FAVOUR: President Bedjaoui; Vice-President Schwebel; Judges Oda, Guillaume,

Ranjeva, Herczegh, Shi, Fleischhauer, Vereshchetin, Ferrari Bravo, Higgins;

AGAINST: Judges Shahabuddeen, Weeramantry, Koroma.

C. Unanimously,
A threat or use of force by means of nuclear weapons that is contrary to Article 2,
paragraph 4, of the United Nations Charter and that fails to meet all the requirements of
Article 51, is unlawful;

D. Unanimously,
A threat or use of nuclear weapons should also be compatible with the requirements of
the international law applicable in armed conflict, particularly those of the principles
and rules of international humanitarian law, as well as with specific obligations under
treaties and other undertakings which expressly deal with nuclear weapons;

E. By seven votes to seven, by the President’s casting vote,

It follows from the above-mentioned requirements that the threat or use of nuclear
weapons would generally be contrary to the rules of international law applicable in
armed conflict, and in particular the principles and rules of humanitarian law;

However, in view of the current state of international law, and of the elements of fact at
its disposal, the Court cannot conclude definitively whether the threat or use of nuclear
weapons would be lawful or unlawful in an extreme circumstance of self-defence, in
which the very survival of a State would be at stake;

IN FAVOUR: President Bedjaoui; Judges Ranjeva, Herczegh, Shi, Fleischhauer,

Vereschetin, Ferrari Bravo;

AGAINST: Vice-President Schwebel; Judges Oda, Guillaume, Shahabuddeen,

Weeramantry, Koroma, Higgins.

F. Unanimously,
There exists an obligation to pursue in good faith and bring to a conclusion negotiations
leading to nuclear disarmament in all its aspects under strict and effective international
control.

Reservation to the 1948 Convention on the Prevention and Punishment of the Crime of
Genocide, Advisory Opinion, ICJ Reports 1951
Page1
The question concerning reservations to the Convention on the Prevention and
Punishment of the Crime of Genocide had been referred for an advisory opinion to the
Court by the General Assembly of the United in the following terms:
"In so far as concerns the Convention on the Prevention and Punishment of the Crime of
Genocide in the event of a State ratifying or acceding to the Convention subject to a
reservation made either on ratification or on accession, or on signature followed by
ratification:

Written statements on the matter were submitted to the Court by the following States
and Organizations:

The Organization of American States, the Union of Soviet Socialist Republics, the
Hashemite Kingdom of Jordan, the United States of America, the United Kingdom of
Great Britain and Northern Ireland, the Secretary-General of the United Nations, Israel,
the International Labour Organisation, Poland, Czechoslovakia, the Netherlands, the
People's Republic of Romania, the Ukrainian Soviet Socialist Republic, the People's
Republic of Bulgaria, the Byelorussian Soviet Socialist Republic, the Republic of the
Philippines.

In addition, the Court heard oral statements submitted on behalf of the Secretary-
General of the United Nations and of the Governments of Israel, the United Kingdom
and France.

By 7 votes to 5 the Court gave the following answers to the questions referred to:
On Question I:
a State which has made and maintained a reservation which has been objected to by one
or more of the parties to the Convention but not by others, can be regarded as being a
party to the Convention if the reservation is compatible with the object and purpose of
the Convention; otherwise, that State cannot be regarded as being a party to the
Convention.

On Question II:
(a) if a party to the Convention objects to a reservation which it considers to be
incompatible with the object and purpose of the Convention, it can in fact consider that
the reserving State is not a party to the Convention;
(b) if, on the other hand, a party accept the reservation as being compatible with the
object and purpose of the Convention, it can in fact consider that the reserving State is a
party to the Convention;

On Question III:
(a) an objection to a reservation made by a signatory State which has not yet ratified the
Convention can have the legal effect indicated in the reply to Question I only upon
ratification. Until that moment it merely serves as a notice to the other State of the
eventual attitude of the signatory State;
(b) an objection to a reservation made by a State which is entitled to sign or accede but
which has not yet done so is without legal effect.

Interpretation of Peace Treaties Case

Second Phase, Advisory Opinion, ICJ Reports, 1950, 221
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Bedaso, Defedo, Nature of International Law: Is International Law a Law?

International Law: Definitions, Nature and Basis
Sources of International Law: An Introduction by Professor Christopher Greenwood
The Hierarchy of Rules in International Law: the Role of Jus Cogens
www.ecchr.eu
On June 22nd, 1950, the Government of the United States of America sent a written
statement. The United Kingdom Government had previously stated its views on
Questions III and IV in the written statement submitted during the first phase of the
case.

At public sittings held on June 27th and 28th, 1950, the Court heard oral statements
submitted on behalf of the Secretary-General of the United Nations by the Assistant
Secretary-General incharge of the Legal Department and on behalf of the Government
of the United States of America and of the Government of the United Kingdom.

In its opinion the Court said that, although the literal sense did not completely exclude
the possibility of appointing the third member before appointing both national
commissioners, the natural and ordinary meaning of the term required that the latter be
appointed before the third member. This clearly resulted from the sequence of events
contemplated by the Article. Moreover, it was the normal order in arbitration practice
and, in the absence of any express provision to the contrary, there was no reason to
suppose that the parties wished to depart from it.

The Secretary-General's power to appoint a third member derived solely from the
agreement of the parties, as expressed in the disputes clause of the treaties. By its very
nature such a clause was to be strictly construed and could be applied only in the case
expressly provided thereby. The case envisaged in the Treaties was that of the failure of
the parties to agree upon the selection of the third member and not the much more
serious one of a complete refusal of cooperation by one of them, taking the form of
refusing to appoint its own Commissioner.

A change in the normal sequence of appointments could only be justified if it were

shown by the attitude of the parties that they desired such a reversal to facilitate the
constitution of Commissions in accordance with the terms of the Treaties. But such was
not the present case. In these circumstances the appointment of the third member by the
Secretary-General, instead of bringing about the constitution of a three-member
Commission provided for by the Treaties, would result only in the constitution of a two-
member Commission, not the kind of Commission for which the Treaties had provided.
The opposition of the one national Commissioner could prevent the Commission from
reaching any decision. It could decide only by unanimity, whereas the disputes clause
provided for a majority decision. There was no doubt that the decisions of a two-
member Commission, one of which was designated by one party only, would not have
the same degree of moral authority as those of a three-member Commission.

In short, the Secretary-General would be authorized to proceed to the appointment of a

third member only if it were possible to constitute a Commission in conformity with the
Treaty provisions.

The Court had declared in its Opinion of March 30th that the Governments of Bulgaria,
Hungary and Romania were under an obligation to appoint their representative to the
Treaty Commissions. Refusal to fulfil a Treaty obligation would involve international
responsibility. Nevertheless, such a refusal could not alter the conditions contemplated
in the Treaties for the exercise of the Secretary-General's power of appointment. These
conditions were not present in this case and their lack was not supplied by the fact that
their absence was due to the breach of a Treaty obligation. The failure of machinery for
settling disputes by reason of the practical impossibility of creating the Commission
provided for in the Treaties was one thing; international responsibility another. One
could not remedy the breach of a Treaty obligation by creating a Commission which
was not the kind of Commission contemplated by the Treaties. It was the Court's duty to
interpret Treaties, not to revise them.
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Nor could the principle that a clause must be interpreted so as to give it practical effect
justify the Court in attributing to the provisions a meaning which would be contrary to
their letter and spirit.

The fact that an arbitration commission may make a valid decision although the original
number of its members is later reduced, for instance, by withdrawal of one of the
arbitrators, did not permit drawing an analogy with the case of the appointment of a
third member by the Secretary-General in circumstances other than those contemplated
in the Treaties, because this raised precisely the question of the initial validity of the
constitution of the Commission.

Nor could it be said that a negative answer to Question III would seriously jeopardize
the future of the many similar arbitration clauses in other treaties. The practice of
arbitration showed that, whereas craftsmen of arbitration conventions often took care to
provide for the consequences of the inability of the parties to agree upon the
appointment of a third member, they had, apart from exceptional cases, refrained from
contemplating the possibility of a refusal by a party to appoint its own Commissioner.
The few Treaties containing express provisions on the matter indicated that the
signatory States in those cases felt the impossibility of remedying the situation simply
by way of interpretation of the Treaties. In fact, the risk was a small one as, normally,
each party had a direct interest in the appointment of its Commissioner and must, in any
case, be presumed to observe its Treaty obligations. That this was not so in the present
case did not justify the Court in exceeding its judicial function on the pretext of
remedying a default for the occurrence of which the Treaties had made no provision.

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Gabcikovo-Nagymaros Project Case

Hungary/Slovakia, ICJ Reports, 1997
Bedaso, Defedo, Nature of International Law: Is International Law a Law?
International Law: Definitions, Nature and Basis
Sources of International Law: An Introduction by Professor Christopher Greenwood
The Hierarchy of Rules in International Law: the Role of Jus Cogens
www.ecchr.eu
Facts:
In 1977, Hungary (P) and Czechoslovakia (D) signed a Treaty for the construction of
dams and other projects along the Danube River that bordered both nations.
Czechoslovakia (D) began work on damming the river in its territory when Hungary (P)
stopped working on the project and negotiation could not resolve the matter which led
Hungary (P) to terminate the Treaty. Hungary (P) based its action on the fact that the
damming of the river had been agreed to only on the ground of a joint operation and
sharing of benefits associated with the project, to which Czechoslovakia (D) had
unlawfully unilaterally assumed control of a shared resource.

Issue:
Shall watercourse states participate in the use, development and protection of an
international watercourse in an equitable and reasonable manner?

Decision:
Yes. Watercourse states shall participate in the use, development and protection of an
international watercourse in an equitable and reasonable manner. Hungary (P) was
deprived of its rights to an equitable and reasonable share of the natural resources of the
Danube by Czechoslovakia (D) and also failed to respect the proportionality that is
required by international law. Cooperative administration must be reestablished by the
parties of what remains of the project.

Discussion:
The Court’s decision was that the joint regime must be restored. In order to achieve
most of the Treaty’s objectives, common utilization of shared water resources was
necessary. Hence, the defendant was not authorized to proceed without the plaintiff’s
consent.

Temple of Preah Vihear Case

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Cambodia v Thailand, ICJ Reports, 15 June 1962

The dispute arose from the different maps each party used in national delimitation.
France, who was the protector of Cambodia at the time, agreed with Siam in Franco-
Siamese boundary treaty of 1904. The Mixed Commission was set up in 1905, and it
was to carry out delimitation between Siam and Cambodia. Cambodia used the map
published by French geographers in 1907 (called "Annex I map") which showed the
Temple in Cambodian territory. While Thailand used the provisions of the treaty of
1904 which reads:

"The frontier between Siam and Cambodia starts, on the left shore of the Great Lake,
from the mouth of the river Stung Roluos, it follows the parallel from that point easterly
direction until it meets the river Prek Kompong Tiam, then, turning northwards, it
merges with the meridian from that meeting-point as far as the Pnom Dang Rek
mountain chain. From there it follows the watershed between the basins of Nam Sen and
the Mekong, on the one hand, and the Nam Moun, on the other hand, and joins the
Pnom Padang chain the crest of which it follows eastwards as far as the Mekong.
Upstream from that point, the Mekong remains the frontier of the Kingdom of Siam, in
accordance with Article 1 of the Treaty of 3 October 1893."

This would deem the temple as being located within Thai territory.

ICJ's Judgement
The ICJ judged on 15 June 1962 that Annex I map did not bind both parties because it
was not the work of the Mixed Commission per the treaty. However, both parties
adopted the map and the demarcation line in it, therefore had a binding character. The
Siamese government did not disagree or object to the map, hence Thailand was bound
by it, according to the legal principle "Qui tacet consentire videtur si loqui debuisset ac
potuisset." ICJ ruled by nine to three that the Temple was located in Cambodian
territory and Thailand was obliged to withdraw all stationed troops there, and by seven
to five, that Thailand restore to Cambodia any objects removed from the ruins since
1954.

Upset, Field Marshal Sarit Thanarat strongly declared that Thailand must, in the future,
reclaim the Castle. The verdict itself however was obeyed, and Thai forces removed the
flag from Preah Vehar accordingly. Nevertheless, the removal process involved keeping
the flag atop the pole, and the pole itself uprooted upright and carried all the way down
in that manner, citing "the pride of having ruled the land for only so long".

Corfu Channel Case, ICJ Reports, 9 April 1949

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Facts:
Bedaso, Defedo, Nature of International Law: Is International Law a Law?
International Law: Definitions, Nature and Basis
Sources of International Law: An Introduction by Professor Christopher Greenwood
The Hierarchy of Rules in International Law: the Role of Jus Cogens
www.ecchr.eu
The explosion of mines in the Albanian (P) waters resulted in the death of a British
naval personnel. It was on this basis that the United Kingdom (D) claimed that Albania
(P) was internationally responsible for damages.

Issue:
Are international obligations in time of peace created through elementary consideration?

Held:
Yes. International obligations in peace time are created through elementary
consideration. Every state has an obligation not to knowingly allow its territory to be
used for acts contrary to the rights of other states.

Discussion:
In this case, the Court found that the Hague Convention of 1907 could not be applied
but the Convention was applicable only in time of war. It was on the basis of the
principle of freedom of maritime communication that this case was decided.

Barcelona Traction, Light and Power Company Case, ICJ Reports, 1970
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Facts:
On behalf of Belgian nationals (P) who had invested in a Canadian corporation,
Belgium (P) sued Spain (D) on the premise that Spain (D) was responsible for acts in
violation of international law that had caused injury to the Canadian corporation and its
Belgian shareholders (P).

Issue:
Does a state assume an obligation concerning the treatment of foreign investments based
on general international law, once the state admits foreign investments or foreign
nationals into its territory?

Decision:
Yes. A state assumes an obligation concerning the treatment of foreign investments
based on general international law, once the state admits foreign investments or foreign
nationals into its territory. It is highly imperative to draw a distinction between those
obligations of a state toward the international community as a whole and those arising
from the field of diplomatic protection. It is only the party to whom an international
obligation is due can bring a claim if a breach of an obligation that is the subject of
diplomatic protection occurs.

Discussion:
The basic right of all human persons was mentioned by the Court to be protected against
slavery and racial discrimination as deriving from basic general international law. Such
rights may derive from international instruments of a universal or quasi-universal
character. Such obligations are obligations erga omnes, that is, all states have a legal
interest in their protection.

South-West Africa Cases

Ethiopia v South Africa; Liberia v South Africa, Second Phase, 18 July 1966
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Judgment of 18 July 1966

Bedaso, Defedo, Nature of International Law: Is International Law a Law?
International Law: Definitions, Nature and Basis
Sources of International Law: An Introduction by Professor Christopher Greenwood
The Hierarchy of Rules in International Law: the Role of Jus Cogens
www.ecchr.eu
The South West Africa cases (Ethiopia v. South Africa; Liberia v. South Africa), which
relate to the continued existence of the Mandate for South West Africa and the duties
and performance of South Africa as Mandatory thereunder, were instituted by
Applications of the Governments of Ethiopia and Liberia filed in the Registry on 4
November 1960. By an Order of 20 May 1961 the Court joined the proceedings in the
two cases. The Government of South Africa raised preliminary objections to the Court's
proceeding to hear the merits of the case, but these were dismissed by the Court on 21
December 1962, the Court finding that it had jurisdiction to adjudicate upon the merits
of the dispute.

In its Judgment on the second phase of the cases the Court, by the President's casting
vote, the votes being equally divided (seven-seven), found that the Applicant States
could not be considered to have established any legal right or interest in the subject
matter of their claims and accordingly decided to reject them.

The President, Sir Percy Spender, has appended a Declaration to the Judgment. Judge
Morelli and Judge ad hoc van Wyk have appended separate opinions. Vice-President
Wellington Koo, Judges Koretsky, Tanaka, Jessup, Padilla Nervo and Forster and Judge
ad hoc Sor Louis Mbanefo have appended dissenting opinions.

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